As part of the Hoover Institution's "Defining Ideas" series, New York University law professor Richard Epstein lays out some of the legal blunders made by the U.S. government in the wake of the 9/11 attacks:
The United States should have extended the protections of the Geneva Conventions to enemy combatants whether the U.S. was strictly required to or not. That approach would have led to a different attitude toward the question of rendition and torture. It would have led government officials to reject categorically the idea that we could farm out the right to torture to our allies overseas while retaining the right to reclaim custody of prisoners once the torture was over. And it would have led the administration to reject the untenable, narrow definitions of torture that were advanced in John Yoo's famous torture memos.
Try as I might, I cannot bring myself to believe that a statutory prohibition against the infliction of "severe physical or mental pain or suffering" should be read so narrowly that it covers only "death, organ failure, or the permanent, impairment of a significant body function." In particular, a sensible definition of torture seems to cover water boarding, where one pours water over the face of an immobilized and blindfolded individual to induce the immediate gag reflex of drowning. There is of course a separate question of whether any set of dire circumstances might justify water boarding. But that question is quite different from the broader assertion that the narrow definition of torture dispenses with the need for any justification at all. The Bush administration eventually stopped this practice. It should have done so much sooner, without putting up a public defense that lacked the power to persuade.
For more on the erosion of liberty after 9/11, see Reason.tv's interview with ACLU policy counsel and former FBI agent Mike German: