Patterico's Pontifications


A Response to Sebastian Holsclaw on Waterboarding

Filed under: General — Patterico @ 10:12 pm

This is a response to Sebastian Holsclaw’s response to my hypothetical about waterboarding Khalid Sheikh Mohammed. In case you missed my original hypo, here it is:

Let’s assume the following hypothetical facts are true. U.S. officials have KSM in custody. They know he planned 9/11 and therefore have a solid basis to believe he has other deadly plots in the works. They try various noncoercive techniques to learn the details of those plots. Nothing works.

They then waterboard him for two and one half minutes.

During this session KSM feels panicky and unable to breathe. Even though he can breathe, he has the sensation that he is drowning. So he gives up information — reliable information — that stops a plot involving people flying planes into buildings.

My simple question is this: based on these hypothetical facts, was the waterboarding session worth it?

The hypo assumes that waterboarding is the least coercive way to obtain the information, and that there are no legal obstacles to performing the waterboarding. It is purely a moral question.

Sebastian starts by giving a clear answer to my hypo: yes. I think that is the only reasonable answer. I don’t mean to insult the people here who have answered no. I just happen to think that a “no” answer to my carefully phrased hypo reveals such an incredibly ideological mindset that I can’t relate to it. It’s 2 1/2 minutes of a mild form of torture with no lasting physical effects, performed on an undoubtedly evil terrorist and mass murderer, to obtain information certain to obtain thousands of lives. When someone says that such mild torture would be morally unjustified, that answer to me lacks common sense. And when it’s coupled with a smug self-righteous attitude, — well, I find it insufferable.

My first question to Sebastian is this: what do you think of the opinion of people who would answer that question “no”? I bet that is not an uncommon feeling on the left. But, Sebastian, given the assumptions of my hypothetical, isn’t a “no” answer indicative of a highly ideological view of this subject — one that would alienate most of the American public? (It will take courage for Sebastian to answer my question, because he risks offending some of his readers, who are among the ideological people I describe above. But I think he’s a man of principle and will say what he thinks.)

On to Sebastian’s objection. In a nutshell, he argues that we can’t trust government with the authority to torture, because once government has that authority, it will abuse it. As he says:

I don’t trust the government to be able to fairly and nimbly navigate the rules that would be necessary to make certain that it only used a legal right to torture when it was the right choice.

That’s not a bad argument. It feeds into the general conservative mistrust of government. I certainly don’t want to see torture become commonplace. And I have recently blogged about the trouble the U.S. Government gets into when it too readily employs coercive techniques such as threatening a suspect’s family. My post on the Higazy case illustrates the concerns I have about that — especially concerning the danger that coercive techniques will result in bad information, as it did with Higazy.

At the same time, we entrust to government far more grave responsibilities than deciding whether to waterboard terrorists. On the high end of the scale, the President has his finger on the nuclear trigger. Decisions about going to war are made by government actors. On a smaller scale, prosecutors decide whether to charge defendants with the death penalty, or with crimes that could imprison them for life.

So if the argument is merely that waterboarding is too significant a decision to entrust to government, because government screws everything up, then I don’t think the argument ultimately prevails. Sebastian raises a valid concern, one which may militate in favor of the decision being made at a high level, or subject to greater procedural protections. But, while there may be other valid arguments against waterboarding terrorists, I can’t agree that we can forego it simply because government could screw it up. Governments screw up wars, too, but that’s not a valid reason to take away government’s ability to wage war.

Sebastian supports his argument by asserting that we have actually tortured innocent people. He doesn’t provide links to any specific cases — and I bet that if he did, it would be to cases where someone claims to have been tortured and the U.S. government denies it — but he may be right. I’m not sure he’s proved it, but he may be right. We have also imprisoned innocent people, waged wars that proved to be a mistake, and made plenty of other errors. I need a better argument than that to deprive government of a tool that might be necessary to save thousands of lives.

But Sebastian doesn’t seem to agree that waterboarding could be necessary to save thousands. He says:

Your hypothetical doesn’t speak to the question of what the policy of our government ought to be, because no important part of the hypothetical actually has anything to do with the empirical reality of governmental torture.


The extent to which my hypothetical is grounded in reality depends on the accuracy of a Brian Ross report on ABC News, which I referenced in my original post on the subject. You can view a video of Ross discussing his findings with Bill O’Reilly here. The blog Conflicting Opinions transcribed some of the relevant parts:

ROSS: They start with a slap, then a slap on the chest, and then the cold room, sleep deprivation, which seems to be the most effective. But for some, the water boarding is what it took.

O’REILLY: OK. Now you say the guy who held out the longest was Khalid Sheikh Mohammed, who is the alleged mastermind behind 9/11.

ROSS: That’s right.

O’REILLY: How long did he last?

ROSS: About two and a half minutes, according to our CIA sources.

And what did the 2 1/2 minutes of waterboarding reveal, according to Ross?

O’REILLY: So in all 14 cases, coerced interrogation methods, being debated in the Senate right now, were used. And in all 14 cases, according to your report, they gave it up.Now the opposition, you just heard it. Human Rights Watch, ACLU, they say it’s garbage. They told them what they want to hear. It wasn’t truthful. Is that true?

ROSS: That has happened in some cases where the material that’s been given has not been accurate, has been essentially to stop the torture. In the case of Khalid Sheikh Mohammed, the information was very valuable, particularly names and addresses of people who were involved with al Qaeda in this country and in Europe. And in one particular plot, which would involve an airline attack on the tallest building in Los Angeles, known as the Library Tower.

O’REILLY: Well, in fact, you say in your report that more than a dozen plots, a dozen al Qaeda plots to kill people were stopped because of the information they got from coerced interrogation?

ROSS: That’s what we were told by sources.

O’REILLY: Do you believe that?

ROSS: I do believe that.

I didn’t pull this hypothetical out of thin air. It is grounded in Brian Ross’s report.

Now, do I know Ross’s report is accurate? No. But O’Reilly asked him: “Couldn’t they be misleading you?” and Ross replied:

Well, Bill, in some of these cases, people talked to us because they actually opposed the techniques. They didn’t like them. But nevertheless they recognized that they worked. . . . [T]here are also some CIA officers who don’t like it at all, and they were our sources as well.

Maybe Ross was duped. But as the quotes above show, Ross’s report discusses instances of waterboarding leading to bad information. That tends to show that he wasn’t talking to fans of waterboarding, posing as concerned opponents.

So although lazy commenters on my site and others have condemned my hypothetical as purely manufactured and utterly divorced from reality . . . it ain’t necessarily so.

So my second question to Sebastian is this:

What if Brian Ross’s report is accurate? Does that mean that you have supported a real-life case of waterboarding?

Sebastian Holsclaw, have you sanctioned torture??

I throw the same question open to any commenter who answered “yes” to my original hypothetical.

UPDATE: A commenter at Obsidian Wings (a sensible sounding one, not one of the ones wishing that I die a painful death in a fire!) says she can disprove Ross’s report. I’ll be interested to read that, and will certainly link it sometime tomorrow.

UPDATE x2: My post originally contained the line: “What would you say to my commenter ‘Stace,’ who said to me: ‘If you say yes, you disgust me.’?” I apologize to Stace; I misremembered the content of her comment and thus completely distorted it. I promise it was inadvertent. Her comment about being disgusted did not relate to simple waterboarding, but rather to a much more extreme example in which someone chops off KSM’s fingers and toes. Again, my apologies.

Sebastian Holsclaw Responds

Filed under: General — Patterico @ 9:01 pm

Sebastian Holsclaw has responded to my KSM hypothetical. I think his post is excellent — which is not to say that I agree with all of it. Mostly, it’s a relief to get a straight answer from a waterboarding opponent who has carefully read my post and all the qualifications in it, and understands that I am just getting off the ground with a philosophical/moral exploration of the issues.

If I have one quibble with Sebastian’s post, it’s that I think he slightly misreads my post as unqualified support for Bush policies on waterboarding. I actually think the issue is more complicated than that, as I expressed in this post, and my KSM hypothetical is mostly an attempt to highlight some of the complexities involved, for the benefit of the more self-righteous among those opposed to waterboarding.

I have spent days fighting with the leftists here to a) give a straight answer, b) stop badly misreading my post and ignoring the limitations of the hypo, and c) stop making assumptions about my viewpoint. But I can see I won’t have to fight with Sebastian on these points. Even if we disagree, he is willing to state my arguments fairly and respond to them reasonably. (I can’t say the same for all of his commenters.)

So maybe the best way to move this debate forward is to have the discussion with him, rather than trying to engage in the Socratic method with commenters who mostly obfuscate, misread me, and generally frustrate me.

Hopefully he’ll agree to continue the discussion.

Ken Lay is Back in the News

Filed under: Law — DRJ @ 7:01 pm

[Guest post by DRJ]

A Houston federal district judge ruled that the government can proceed with a $13M civil forfeiture proceeding against the estate of former Enron CEO Ken Lay:

“A judge rejected on Wednesday a request from the widow of former Enron Chairman Ken Lay to throw out the government’s bid to seize nearly $13 million from his estate, including the upscale condominium they shared.

U.S. District Judge Ewing Werlein’s ruling allows the government to move ahead with its effort to recover the gains, which it contends are ill-gotten. The judge wrote that prosecutors had provided “ample allegations” of criminal activity by Lay and others to pursue its case.”

The court’s decision overrruled legal objections by Lay’s widow Linda, but she apparently intends to appeal the decision:

“Samuel Buffone, a Washington attorney who represents Linda Lay, the executrix of her husband’s estate, said that she intends to fight.
Linda Lay argued that the case should be dismissed because the government is trying to tie tainted funds to money laundering, a crime with which her husband never was charged. She had argued that at the very least, the government shouldn’t be able to seize the dwelling whether or not part of the mortgage was paid off with tainted money.”

The case was unusual because Lay died prior to sentencing, resulting in the dismissal of his pending criminal case and thus preventing the government from pursuing criminal forfeiture proceedings:

“Lay was convicted last year on 10 counts of fraud, conspiracy, bank fraud and lying to banks in two separate cases. He died in July 2006 of heart disease, and a judge later erased his convictions because he hadn’t been sentenced or launched an appeal.

The government had intended to seek seizure of the assets based on his convictions. After the convictions were erased in October last year, prosecutors filed the civil forfeiture case.”

Wealthy criminals aren’t common. Wealthy criminals that die before sentencing are even less common. That undoubtedly presented a problem for the prosecution but the prosecutors did a good job making civil forfeiture work in this case.


A New Hypothetical

Filed under: General — Patterico @ 8:26 am

While we wait for Oregonian and Semanticleo to answer my previous hypothetical, which was based on a news report by ABC’s Brian Ross, let’s fill the time with another hypo:

If we could have prevented 9/11 by waterboarding Osama bin Laden for 2 1/2 minutes, should we have done it?

Standard assumptions apply. It’s a moral question, not a legal one, so assume that the waterboarding is legal. Assume that the waterboarding is the least coercive method of obtaining the information. Assume that the information obtained is reliable.

I don’t see why the answer to this question would be any different from the answer to the last one. It just sounds different because 9/11 actually happened, so maybe it will be harder to be flippant about the consequences.

Bonus question: is the morality of waterboarding dependent on its reliability? In other words, if your objection to my hypotheticals is that waterboarding won’t necessarily reveal reliable information, then is your moral objection based on the practical question of whether it will work? (I don’t mean to suggest that a yes answer is wrong. I’m just throwing it out there for discussion.)

Colorado Initiative would Define Personhood as a Fertilized Egg

Filed under: Abortion,Law — DRJ @ 6:35 am

[Guest post by DRJ]

In an initiative that could have a significant impact on abortion in Colorado, the Colorado Supreme Court allowed a group to begin collecting signatures for a ballot initiative that would define personhood as a fertilized egg:

“The Colorado Supreme Court today released a decision giving proponents the go-ahead for a ballot initiative that would amend the state Constitution in 2008 to define personhood as a fertilized egg. Opponents of the measure, which would lay the constitutional foundation for making abortion illegal in the state, asked the court to reject the ballot title as misleading to voters.

The court ruled that the measure’s wording is clear and meets state requirements in terms of covering a single subject. The measure, if approved by voters, would extend constitutional protection from the moment of conception with regard to rights of life, liberty, equality of justice and due process of law.

The group pushing the measure, Colorado for Equal Rights, can now begin gathering the 76,000 signatures required to put the issue on the November 2008 ballot.”

Planned Parenthood and other opponents of the initiative are working to ensure its defeat:

“Planned Parenthood of the Rocky Mountains is one of the reproductive-rights groups opposing the measure, which it said in a statement would have sweeping consequences for women using contraception to prevent pregnancy as well as for couples using in-vitro fertilization to start families.

Planned Parenthood has called the ballot initiative “deceptive and dangerous.”

I think of liberal Aspen celebrities and Ward Churchill when I consider Colorado politics but it is also the home of Tom Tancredo. With a political range like that in one (relatively small) state, this will undoubtedly be a volatile issue. Overall, though, Colorado seems an unlikely state to define personhood at fertilization.


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