Tortured Meanings

I give Richard Cohen credit. Among the critics of coercive interrogation techniques, he is unusual. He’s not one of those who claims that harsh interrogation techniques are necessarily unreliable. He acknowledges that such techniques must not be used, even if they would save lives. In On higher ground but not safer, Cohen concludes:

I know it is offensive to compare almost anyone or anything to the Nazis, but the Bush-era memos struck me as echoes from the past. Here, once again, were the squalid efforts of legal toadies to justify the unjustifiable. Here, again, was a lesson that needs constant refreshing: Before you can torture anyone, you must first torture the law. When that happens, we are all on the rack.

It’s a nice effort, but ultimately futile – and the Nazi reference was gratuitous.

Andrew McCarthy observes in A Dishonest Debate that Congress did indeed consider classifying waterboarding as torture – in 2006. But as he points out, the Democrats, since gaining control over the executive and legislative branches of government have failed to change the classification.

So Sen. Ted Kennedy proposed an amendment to the Military Commissions Act (MCA) then under consideration. His measure would, finally, have brought clarity to the legal status of waterboarding. It would have expressly defined the procedure as a violation of Common Article 3 (CA3) of the Geneva Conventions, putting it on a par with “torture” — which is specified in CA3 — and making it punishable as a war crime.

The amendment lost, 46-53. All Democrats except one (Sen. Ben Nelson of Nebraska) voted in favor. One Republican still in the Senate, Arlen Specter of Pennsylvania, voted with the Democrats. As a result, while the MCA substantially overhauled the war-crimes statute (Section 2441 of the federal penal code), it did not criminalize waterboarding (to say nothing of less harsh tactics). Nor did Congress touch the torture statutes (Sections 2340 and 2340A, which define and punish torture), much less enact a clarification that waterboarding is torture. The legal status of waterboarding remained exactly what it had been: ambiguous, at best.

This history is significant because Republicans no longer run Congress, like they did back then. Since January 2007, Democrats have been in charge of both houses. At any time they wished, they could have revived the Kennedy Amendment, and passed it. Since January 2009, moreover, Democrats have run not only Congress but the White House. At any time they wished, they could have ended what they call the “false choice between our security and our values” (translation: their considered choice of no security and their values). At any time they wished, they could have settled the debate and passed a law: No more waterboarding.

In other words what’s going on isn’t, as Cohen puts it, “torturing the law,” rather it is political posturing. And it is those who purport to be against coercive techniques who are doing it.

Enjoy this week’s council and non-council posts with an emphasis on the controversy over coercive interrogation techniques.

Soccer Dad for the Watcher.

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Non-Council Submissions