Hinkle: TORTURE: Where's the Conservative Skepticism?

Umar Farouk Abdulmutallab's failed attempt to blow up a jetliner over Detroit on Christmas Day has resurrected the debate over torture. A Rasmussen Poll at year's end found a solid majority of Americans favor using "waterboarding and other aggressive interrogation techniques" to "gain information" from him.

The idea enjoys support from conservative organs such as National Review and The Weekly Standard. Scott Brown, the Massachusetts Republican who hopes to win Ted Kennedy's old Senate seat in today's special election, has said Abdulmutallab should be interrogated at Guantanamo, though he has not specifically stipulated that the underwear bomber should be waterboarded. But Brown, a military lawyer, has said something he knows, or should know, is not true -- that waterboarding is not torture.

This is not a position gracefully held by the conservative end of the political spectrum -- which remains, in domestic matters, highly skeptical about the government's ability to do things right. For the past several months conservatives have been asking: Do we really want medical care handed over to the same people who brought you the IRS, the DMV, and the Post Office? Given the TSA's recent confiscation of 3-year-old Josh Pitney's Play-Doh and the fact that Mikey Hicks, an 8-year-old Cub Scout, is stuck on the no-fly list, perhaps a little cynicism about national security and black ops would be in order, too.

For one thing, it's not clear that waterboarding would enable the U.S. to "gain information." Maybe it would gain only a pack of lies. As two former military interrogators, Steven Kleinman and Matthew Alexander, observed last March, there has been no serious research concerning what ought to be a paramount question: whether brutal interrogation techniques actually work. A majority of Americans support something that could be a complete waste of time.

All we have suggesting otherwise is a few anecdotes over which there is a great deal of disagreement. For instance, conservatives say the waterboarding of al-Qaida associate Abu Zubaida led to information about dirty bomber Jose Padilla. But as FBI special agent Ali Soufan has noted, the authorization to use enhanced interrogation techniques came in August, 2002 -- three months after Padilla had been arrested. As for other information gleaned from Zubaida, "there was no actionable intelligence . . . that wasn't, or couldn't have been, gained from regular [interrogation] tactics." Another examination says the breaking of Zubaida's will produced only a lot of bad leads: "We spent millions of dollars chasing false alarms," an intelligence official told The Washington Post last year.

Many Americans might not particularly care whether torturing terrorists produces any useful information or not. Lashing 9/11 mastermind Khalid Sheikh Mohammed to a wagon wheel and breaking every bone in his body would seem to be just what he deserves. But what about Maher Arar? Through extraordinary rendition, U.S. agents shipped him off to Syria, where the Canadian national was subjected to months of ghastly sadism. Turns out he was innocent, and the Canadian government wound up paying him $10 million in reparations. (U.S. courts recently ruled he couldn't sue here.) Oops. A case of mistaken identity led to similar treatment for Khaled el-Masri, who was brutalized in the "salt pit," a secret CIA prison in Afghanistan.

For some, torturing the occasional innocent bystander might be the price we have to pay to keep America safe. But that line of reasoning -- the end justifies the means -- is a treacherous road to go down. It might start with the ticking time-bomb hypothetical: Would you torture one guilty person to save a million innocents? Most people would say yes. (How about a thousand innocents? Fifty? Two?) It ends with the organ-donation hypothetical: Would you kill one innocent person to harvest his organs and save five others? Most people would say no. Yet it's hard to draw a bright line that stops movement from one pole to the other.

Indeed, as Michael Kinsley writes in Slate, abandoning the prohibition on torture makes it easier to erase all kinds of lines: For instance, "it is hard to explain why you would torture a teenager abducted into a terrorist gang if this would save a dozen lives, but would not torture a uniformed military officer in order to save a thousand." We can go further: Why torture a possibly innocent foreigner, but not a clearly guilty American? Why not torture the next Timothy McVeigh to find out about any other homegrown terrorist plots that might be afoot? Given the toll illicit drug use inflicts -- 17,000 lives annually -- why not torture streetcorner drug dealers to find their suppliers?

Most of the arguments for waterboarding and other forms of torture (and waterboarding is one: The U.S. prosecuted Japanese military officials after WWII for waterboarding American G.I.s) assume that American agents will know with perfect clarity that they have the right guy, that the right guy will have useful information, that he will tell the truth about it under torture, and that he would not tell the truth about it under more professional approaches.

Experience already has given us reason to doubt all those premises. Do conservatives who speculate that a government which would ship granny off to a death panel think it will exercise greater care in deciding who ought to be tortured, and how much? Or has the war on terror simply led them to a renewed appreciation for moral relativism?

The spirit of liberty is the spirit which is not too sure that it is right.

--Judge Learned Hand.

Contact A. Barton Hinkle at (804) 649-6627 or bhinkle@timesdispatch.com.