Prof. Bainbridge has taken me to task for having failed to provide an answer for one of the inquiries I suggested we should be exploring in the torture/coercion debate (assuming we could ever get beyond the preliminary question of whether we should just hold to an absolute prohibition and not discuss this further at all).
Specifically, in an article about the McCain amendment, I said we should be “forthright about … the lengths [we] would be willing to go” to get information. Bainbridge wants me to spell out methods of coercion I would find acceptable, and wants me to go through a list of tactics (from slapping to water-boarding) that ABC News claims have been used.
Pardon me if I don’t play along. I don’t understand where lawyers get the idea that because they have law degrees they are vested with competence to pronounce conclusively on all life’s questions, including those that have precious little to do with the law. (Judge Richard Posner makes this point very well in Preventing Surprise Attacks, his book on the 9/11 Commission, wherein he asks why anyone thought we should hand over to a panel of mostly lawyers — with no intelligence professionals, economists and other more suitable experts — the task of restructuring the entire intelligence community).
Like most laymen I suspect, I can easily see that slapping falls on one side of the spectrum and Saddam’s wood-chipper on the other. In between, what works, what is a waste of time, and what is naked sadism is what we should be exploring. That is what I said — being knowledgeable enough to spot an issue does not necessarily make one knowledgeable enough to provide an answer. That’s the reason we have congressional hearings and testimony from people who have relevant experience and expertise.
If we brought a lawyer in to rewrite the penalty structure of the federal securities laws with no hearings, no input from business or reglatory professionals, nothing other than his subjective perceptions, I imagine Prof. Bainbridge would be among the first to cry foul. And I’d be right there with him. I don’t see how this is different. Why should anyone care what I think about water-boarding? I’ve never used it, I don’t know what its track record is, and I don’t know anything more about it than anyone who reads the papers — which have been known, on occasion, to get things wrong.