The Torture Debate, Continued…
By Charles Krauthammer/WaPo
This month, I wrote aÂ columnÂ outlining two exceptions to the no-torture rule: the ticking time bomb scenario and its less extreme variant in which a high-value terrorist refuses to divulge crucial information that could save innocent lives. The column elicited protest and opposition that were, shall we say, spirited.
And occasionally stupid.Â Dan Froomkin, writing for washingtonpost.com and echoing a common meme among my critics, asserted that “the ticking time bomb scenario only exists in two places: On TV and in the dark fantasies of power-crazed and morally deficient authoritarians.” (He later helpfully suggested that my moral deficiencies derived from “watching TV and fantasizing about being Jack Bauer.”) Â
Continue reading below….
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On Oct. 9, 1994, Israeli Cpl. Nachshon Waxman was kidnapped by Palestinian terrorists. The Israelis captured the driver of the car. He was interrogated with methods so brutal that they violated Israel’s existing 1987 interrogation guidelines, which themselves were revoked in 1999 by the Israeli Supreme Court as unconscionably harsh. The Israeli prime minister who ordered this enhanced interrogation (as we now say) explained without apology: “If we’d been so careful to follow the  Landau Commission [guidelines], we would never have found out where Waxman was being held.”
Who was that prime minister? Yitzhak Rabin, Nobel Peace laureate. The fact that Waxman died in the rescue raid compounds the tragedy but changes nothing of Rabin’s moral calculus.
That moral calculus is important. Even John McCain says that in ticking time bomb scenarios you “do what you have to do.” The no-torture principle is not inviolable. One therefore has to think about what kind of transgressive interrogation might be permissible in the less pristine circumstance of the high-value terrorist who knows about less imminent attacks. (By the way, I’ve never seen five seconds of “24.”)
My column also pointed out the contemptible hypocrisy of House Speaker Nancy Pelosi, who is feigning outrage now about techniques that she knew about and did nothing to stop at the time.
My critics say: So what if Pelosi is a hypocrite? Her behavior doesn’t change the truth about torture.
But it does. The fact that Pelosi (and her intelligence aide) and then-House Intelligence Committee Chairman Porter Goss and dozens of other members of Congress knew about the enhanced interrogation and said nothing, and did nothing to cut off the funding, tells us something very important.
Our jurisprudence has the “reasonable man” standard. A jury is asked to consider what a reasonable person would do under certain urgent circumstances.
On the morality of waterboarding and other “torture,” Pelosi and other senior and expert members of Congress represented their colleagues, and indeed the entire American people, in rendering the reasonable person verdict. What did they do? They gave tacit approval. In fact, according to Goss, they offered encouragement. Given the circumstances, they clearly deemed the interrogations warranted.
Moreover, the circle of approval was wider than that. As Slate’sÂ Jacob WeisbergÂ points out, those favoring harsh interrogation at the time included Alan Dershowitz, Mark Bowden and Newsweek’s JonathanÂ Alter. In November 2001, Alter suggested we consider “transferring some suspects to our less squeamish allies” (i.e., those that torture). And, as Weisberg notes, these were just the liberals.
So what happened? The reason Pelosi raised no objection to waterboarding at the time, the reason the American people (who by 2004 knew what was going on) strongly reelected the man who ordered these interrogations, is not because she and the rest of the American people suffered a years-long moral psychosis from which they have just now awoken. It is because at that time they were aware of the existing conditions — our blindness to al-Qaeda’s plans, the urgency of the threat, the magnitude of the suffering that might be caused by a second 9/11, the likelihood that the interrogation would extract intelligence that President Obama’s own director of national intelligence now tells us was indeed “high-value information” — and concluded that on balance it was a reasonable response to a terrible threat.
And they were right.
You can believe that Pelosi and the American public underwent a radical transformation from moral normality to complicity with war criminality back to normality. Or you can believe that their personalities and moral compasses have remained steady throughout the years, but changes in circumstances (threat, knowledge, imminence) alter the moral calculus attached to any interrogation technique.
You don’t need a psychiatrist to tell you which of these theories is utterly fantastical.
Dr Andy Bostom:
Dear Mr. Krauthammer,
I read with interest your opinion piece on Hamas’ ten year “truce” offer, “The Hamas ‘Peace’ Gambit,” published today, Friday, May 8, 2009. While I certainly share your overall sentiments,Â unfortunately the piece ignores the uniquely Islamic context of Hamas’ truce “offer” which is firmly rooted in classical Muslim jurisprudence, the precedent being Muhammad’s temporary “treaty” of Hudaybiyyah
Below are extracts from my book “The Legacy of Jihad” which elucidate the underlying Islamic principles for such truces. I have included for your edification the classical interpretation of the great jurist and scholar Averroes (d. 1198), followed by the historical/juridical analyses of two important 20thÂ century scholars of Islamic Law/ jihadism, Antoine Fattal, and Bassam Tibi.
Andrew G. Bostom, MD, MS
Associate Professor of Medicine
The Warren Alpert Medical School of Brown University
Averroes (Ibn Rushd) [d. 1198]: “Among those who profess that the Imam is entitled toÂ conclude a truce when he considers it in the interest [of the Muslims]Â are MÄlik (founder of the Maliki school of Sunni Islamic Law), ShÄfiÄ« (founder of the Shafi’ite school of Sunni Islamic Law), and AbÅ« Hanifah (founder of the Hanafi school of Sunni Islamic Law). ShÄfiÄ« maintains that a truce may not be concluded for a period longer than that of the truce which the Prophet concluded with the unbelievers in the year of Hudaybiyyah… Therefore, says ShÄfiÄ«, a truce may never exceed the period for which the Prophet concluded truce in the case of Hudaybiyyah.Â Â Still, there is controversy about the duration of this period.Â Â According to some it amounts to four years, but according to others threeÂ or ten years. ShÄfiÄ« opts for the latter.”Â
Antoine Fattal (1958): “Connected with the notion of jihad is the distinction between dar al-harb (territory or “house” of war) and dar al-islam (house of Islam).Â Â The latter includes all territories subject to Moslem authority.Â Â It is in a state of perpetual war with the dar al-harb.Â Â The inhabitants of the dar al-harb are harbis, who are not answerable to the Islamic authority and whose persons and goods are mubah, that is, at the mercy of Believers.Â Â However,Â when Muslims are in a subordinate state, they can negotiate a truce with the Harbis lasting no more than ten years, which they are obliged to revoke unilaterally as soon as they regain the upper hand, following the example of the Prophet after Hudaibiyya.”
Bassam Tibi (1996): “Islamic wars are not hurub (the plural of harb) but rather futuhat, acts of “opening” the world to Islam and expressing Islamic jihad. Relations between dar al-Islam, the home of peace, and dar al-harb, the world of unbelievers, nevertheless take place in a state of war, according to the Qur’an and to the authoritative commentaries of Islamic jurists. Unbelievers who stand in the way, creating obstacles for the da’wa, are blamed for this state of war, for the da’wa can be pursued peacefully if others submit to it. In other words, those who resist Islam cause wars and are responsible for them.Â Only when Muslim power is weak is “temporary truce” (hudna) allowed.”