Let's End the Debate Over Torture

The Bush Administration has threatened to veto a bill that would ban waterboarding and a variety of other "interrogation techniques" that embarrassed our country in the Abu Ghraib scandal. Even though these techniques, as described in the bill, clearly meet the legal definition of torture and are explicitly forbidden by the army field manual, the Administration has previously tried to assert that although "we do not torture," they will not address the issue of whether the specific act of waterboarding is torture, nor will they address whether the administration has sanctioned the use of waterboarding.

The primary justification given by Bush's defenders is that we need to keep all options on the table when we are dealing with terrorists and attempting to gain intelligence from them. They proceed to argue that they will not allow our intelligence agencies to be restricted from using interrogation methods that save American lives. We are then subjected to the rote slogan that "the Constitution is not a suicide pact."

I have regularly found this set of arguments to be bogus, largely because we have learned time and again that torture is an incredibly inefficient way of protecting American lives. But the arguments for allowing torture/waterboarding are moot as a matter of law, as well. The reason for this is that anyone charged with the crime of torture/waterboarding has a legal defense of necessity available to them, in which they are excused from their otherwise criminal activity due to the fact that they were acting to deter an imminent threat to life.

Nonetheless, civil libertarians and Progressives of all sorts should care more about putting an effective end to torture than they should care about showing up the Bush Administration. So, I propose that Congress introduce and pass a bill that bans all of the aforementioned "interrogation techniques," but explicitly provides for an affirmative defense of necessity. Explicitly providing such an affirmative defense would largely negate the aformentioned primary argument against an outright ban on waterboarding and the other techniques. Moreover, it would not actually weaken the ban because such an affirmative defense is already available at common law for most traditional offenses.

For readers of mine who are non-lawyers, an affirmative defense is not an automatic excuse that the prosecution must disprove. Instead, it is a defense that the defendant (in this case, the Administration or torturer) must prove by a "preponderence of the evidence." In the case of a torture trial, you can best think of it as a post-sentence trial of the alleged terrorist. While the alleged terrorist will have had no due process rights when they were getting tortured, this affirmative defense issue will at least give them a day in court. If the alleged terrorist is indeed a terrorist who had legitimate knowledge of imminent potential attacks against Americans, then the defendant's affirmative defense will succeed, and the torturer will walk free. Importantly, under the defense of necessity, the defendant will also need to show that a legal way of gaining the intelligence in a timely fashion was unavailable.

If on the other hand the alleged terrorist knew nothing of value about imminent attacks or well-developed attack plans or was not actually a terrorist at all, then the defendant torturer (and anyone who ordered him to torture) will go to prison.

In either event, justice is served in a way that I think even neo-cons would accept.