Prof. Dershowitz, renowned civil libertarian, has an important op-ed in the WSJ this morning which should be bracing for his fellow liberal Democrats who have used the waterboarding controversy to posture for their hard-Left base at the expense of their national-security credentials.
After noting that former President Clinton has proposed a narrow exception to our categorical ban against torture which would allow the president to authorize harsh methods in dire emergencies, Dershowitz writes:
The kind of torture that President Clinton was talking about is not designed to secure confessions of past crimes, but rather to obtain real time, actionable intelligence deemed necessary to prevent an act of mass casualty terrorism. The question put to the captured terrorist is not “Did you do it?” Instead, the suspect is asked to disclose self-proving information, such as the location of the bomber.
Recently, Israeli security officials confronted a ticking-bomb situation. Several days before Yom Kippur, they received credible information that a suicide bomber was planning to blow himself up in a crowded synagogue on the holiest day of the Jewish year. After a gun battle in which an Israeli soldier was killed, the commander of the terrorist cell in Nablus was captured. Interrogation led to the location of the suicide bomb in a Tel Aviv apartment. Israel denies that it uses torture and I am aware of no evidence that it did so to extract life-saving information in this case.
But what if lawful interrogation failed to uncover the whereabouts of the suicide bomber? What other forms of pressure should be employed in this situation?
This brings us to waterboarding. Michael Mukasey, whose confirmation as attorney general now seems assured, is absolutely correct, as a matter of constitutional law, that the issue of “waterboarding” cannot be decided in the abstract. Under prevailing precedents–some of which I disagree with–the court must examine the nature of the governmental interest at stake, and the degree to which the government actions at issue shock the conscience, and then decide on a case-by-case basis. In several cases involving actions at least as severe as waterboarding, courts have found no violations of due process.
The members of the judiciary committee who voted against Judge Mukasey, because of his unwillingness to support an absolute prohibition on waterboarding and all other forms of torture, should be asked the direct question: Would you authorize the use of waterboarding, or other non-lethal forms of torture, if you believed that it was the only possible way of saving the lives of hundreds of Americans in a situation of the kind faced by Israeli authorities on the eve of Yom Kippur? Would you want your president to authorize extraordinary means of interrogation in such a situation? If so, what means? If not, would you be prepared to accept responsibility for the preventable deaths of hundreds of Americans?