Torture, Euthanasia, and Decision-Making Without A Bright Line

Khalid_Shaikh_MohammedLawyers often talk about “bright-line rules.”  Example:  If you are at least 21 years old, you can legally buy liquor in the U.S.  If you will turn 21 when the clock strikes midnight tonight, you cannot. Never mind that certain 20-year-olds would be able to drink more responsibly than certain older people — there’s a bright-line rule.

Bright-line rules provide the comfort of easy decision-making. But many times there is no bright line, leaving people of good will to agonize about the lesser evil, often under intense pressure.

  • When does a ticking-time-bomb interrogation cross the line from harsh to torturous?
  • When does giving morphine to a dying patient cross the line from providing comfort to homicide?

The first question, of course, has been hotly debated for the past few years, with new information emerging this week. The second is cast in stark relief by an extraordinary 13,000-word cover story in the New York Times Magazine, about allegations of euthanasia in the wake of Hurricane Katrina.

First things first: On Saturday, the Washington Post published a front-page article describing how valuable intelligence was gathered from Khalid Sheik Mohammed:

These scenes provide previously unpublicized details about the transformation of the man known to U.S. officials as KSM from an avowed and truculent enemy of the United States into what the CIA called its “preeminent source” on al-Qaeda. This reversal occurred after Mohammed was subjected to simulated drowning and prolonged sleep deprivation, among other harsh interrogation techniques.

KSM, an accomplished resistor, provided only a few intelligence reports prior to the use of the waterboard, and analysis of that information revealed that much of it was outdated, inaccurate or incomplete,” according to newly unclassified portions of a 2004 report by the CIA’s then-inspector general released Monday by the Justice Department.

The debate over the effectiveness of subjecting detainees to psychological and physical pressure is in some ways irresolvable, because it is impossible to know whether less coercive methods would have achieved the same result. But for defenders of waterboarding, the evidence is clear: Mohammed cooperated, and to an extraordinary extent, only when his spirit was broken in the month after his capture March 1, 2003, as the inspector general’s report and other documents released this week indicate.

This was as close to a ticking-time-bomb scenario as you are likely to get in the real world:  The mastermind of 9/11 was replying “soon you will know” in response to questions about additional terror attacks.  It seems clear that specific terrorists were apprehended and actual American lives were saved based on the information KSM oh-so-reluctantly provided. The argument is over whether that justifies torturing him.

It’s hard to feel sympathy for KSM, but I’m troubled by the fact that techniques that arguably are torture seem to have been used on numerous prisoners.  However, at least in  the case of KSM, waterboarding was authorized and conducted in the belief, supported by legal counsel, that it fell short of torture.  We as a society seem to be deciding that waterboarding should not be permissible — but the desire by some on the Left to prosecute Bush Administration officials relies too much on the benefit of hindsight.

I’m struck by the parallels between this debate and the dying-patient issue, after reading Sheri Fink’s NYT Magazine cover story, the product of two and a half years of research.  After the Katrina floodwaters receded and 45 patients were found dead at Memorial Medical Center, an investigation was launched, focusing on patients who received morphine injections.

You really should read the whole thing, but because you probably won’t, here’s the key passage for this purpose:

Morphine, a powerful narcotic, is frequently used to control severe pain or discomfort. But the drug can also slow breathing, and suddenly introducing much higher doses can lead to death.

Doctors, nurses and clinical researchers who specialize in treating patients near the ends of their lives say that this “double effect” poses little danger when drugs are administered properly. [Dr. Ewing] Cook [of New Orleans’ Memorial Medical Center] says it’s not so simple. “If you don’t think that by giving a person a lot of morphine you’re not prematurely sending them to their grave, then you’re a very naïve doctor,” Cook told me when we spoke for the first time, in December 2007. “We kill ’em.”

In fact, the distinction between murder and medical care often comes down to the intent of the person administering the drug. Cook walked this line often as a pulmonologist, he told me, and he prided himself as the go-to man for difficult end-of-life situations. When a very sick patient or the patient’s family made the decision to disconnect a ventilator, for example, Cook would prescribe morphine to make sure the patient wasn’t gasping for breath as the machine was withdrawn.

Often Cook found that achieving this level of comfort required enough morphine that the drug markedly suppressed the patient’s breathing. The intent was to provide comfort, but the result was to hasten death, and Cook knew it. To Cook, the difference between something ethical and something illegal “is so fine as to be imperceivable.

The article does a masterful job of taking the reader through the thought processes and decisions involved in triaging patients as the floodwaters rose, knowing some of them will die either because of the conditions or from the stress of evacuation.  Faced with an evacuation order and a shortage of helicopters, medical personnel had to decide whether to leave dying patients alive but unattended, or to hasten the inevitable with a large dose of morphine.

Although a grandstanding attorney general called some of the deaths “simple homicide” and staged SWAT-team arrests, a grand jury ultimately refused to issue any indictments against medical personnel at the hospital.

I think declining to indict was the right call in New Orleans — and I think it would be the right call regarding the Bush Administration’s use of harsh interrogation techniques, or torture if you prefer.  People in unique situations and under incredible life-and-death pressure have to have some latitude in choosing the lesser evil.

(I told the Web Goddess what I was writing about, and she said she thought the analogy between the two situations was “tortured.”  What do you think?)

These scenes provide previously unpublicized details about the transformation of the man known to U.S. officials as KSM from an avowed and truculent enemy of the United States into what the CIA called its “preeminent source” on al-Qaeda.

This reversal occurred after Mohammed was subjected to simulated drowning and prolonged sleep deprivation, among other harsh interrogation techniques.

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“KSM, an accomplished resistor, provided only a few intelligence reports prior to the use of the waterboard, and analysis of that information revealed that much of it was outdated, inaccurate or incomplete,” according to newly unclassified portions of a 2004 report by the CIA’s then-inspector general released Monday by the Justice Department.

The debate over the effectiveness of subjecting detainees to psychological and physical pressure is in some ways irresolvable, because it is impossible to know whether less coercive methods would have achieved the same result. But for defenders of waterboarding, the evidence is clear: Mohammed cooperated, and to an extraordinary extent, only when his spirit was broken in the month after his capture March 1, 2003, as the inspector general’s report and other documents released this week indicate.

Obama’s National Security Policy Looks Like Bush’s Third Term. Thank Goodness.

George W. Obama at the National Archives yesterday (AP)

George W. Obama at the National Archives yesterday (AP)

Krauthammer today:

The genius of democracy is that the rotation of power forces the opposition to come to its senses when it takes over. When the new guys, brought to power by popular will, then adopt the policies of the old guys, a national consensus is forged and a new legitimacy established.

Exactly right.  I fear that Obama is busily making a mess of the economy — or rather, more of a mess.  But on national security, it becomes clearer every day that despite Obama’s persistent sniping at his predecessor, we’ve essentially re-elected George Bush, and I for one am grateful.

After starting by retaining Bush’s Secretary of Defense, Obama has begun a surge in Afghanistan, adopted Bush’s timetable for withdrawal from Iraq, authorized repeated Predator drone strikes on al Qaeda targets in Pakistan, affirmed the use of military commissions, and yesterday acknowledged that some terrorists will have to be held indefinitely even though it will not be possible to prosecute them successfully.

Ponnuru:

President Obama and former Vice President Cheney weren’t so much a study in contrast today as a portrait of harmony. Both men agree that the Bush administration’s anti-terrorist policies were largely correct. Cheney signaled his acceptance of this view by vigorously defending those policies. Obama signaled it by largely adopting those same policies and emitting a fog of words to cover up the fact. (See this defense of Obama for a run-down of all the continuities.)

Obama’s fellow Democrats are helping to save him from his ill-advised promise to close Guantanamo within a year — the Senate vote eliminating funding for the closure was 90-6.  On the torture issue, Obama is trying to reclaim the moral high ground for America, and as long as he continues aggressively prosecuting the war, I largely wish him well.  It will give him a means of staking out a genuine policy difference, it may gain us some goodwill abroad, and if a time comes when we once again have a Khalid Sheikh Mohammad in custody smirking that “soon you will know” about imminent terror attacks, I strongly suspect that somebody will find a technique and a justification for doing what needs to be done.

I caught snatches of Obama’s speech yesterday on the radio, and I remember thinking that if I closed my eyes, I could imagine these words coming out of Bush’s mouth:

In the midst of all these challenges, however, my single most important responsibility as President is to keep the American people safe. That is the first thing that I think about when I wake up in the morning. It is the last thing that I think about when I go to sleep at night.

This responsibility is only magnified in an era when an extremist ideology threatens our people, and technology gives a handful of terrorists the potential to do us great harm. We are less than eight years removed from the deadliest attack on American soil in our history. We know that al Qaeda is actively planning to attack us again. We know that this threat will be with us for a long time, and that we must use all elements of our power to defeat it.

Of course he quickly slipped back into campaign mode and blamed every problem on the Bush Administration.  But that will get old quickly, even among his supporters.  Meanwhile, look to his deeds, not just his words.

Does Jon Stewart Really Think Truman Was A War Criminal?

Update: Nevermind.

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Unlike many conservatives, I love The Daily Show with Jon Stewart. He’s a very funny man, backed by an outstanding research staff.  His views skew hard to the left, but he’s not an America-basher like Michael Moore.

The idea that he’s the primary source of information for legions of college students is a little scary… but anyone who watched the April 28 episode got to see a very spirited and substantive debate on the issue of interrogation techniques.

Because of careful preparation and home-field advantage, Stewart often runs circles around his guests.  But Cliff May of the Foundation for the Defense of Democracies more than held his own, and in the process very effectively made the point that different people can honorably draw lines in different places.

In the heat of the debate, Stewart responded to May’s question by saying yes, President Truman was a war criminal because of the atomic bomb attacks.  As Michael Goldfarb points out on the Weekly Standard:

He’s certainly not the only American who would take that view, but it’s a useful reminder that the most vocal and popular criticism of the Bush administration’s war on terror policies comes from people who, if they were being as honest as Stewart, would also judge Lincoln (suspension of habeas), FDR (internment), and Truman (use of nuclear weapons) as war criminals or tyrants or worse.

Somehow I think Stewart would moderate his opinions about Truman if he took a little more time to think about it.  My take? Truman certainly wasn’t a war criminal. The Hiroshima bomb undeniably saved many American lives compared to an invasion, and may even have saved Japanese lives on a net basis.  I’m more troubled by Nagsaki just three days later.

OK, Let’s Have A Fact-Finding Commission On Torture

Was it worth it?

Was it worth it?

The Washington Post offers the best argument I’ve seen for a bipartisan commission into the use of torture, or “torture” if you prefer, by Americans during the Bush Administration.  The editorial ends with this (emphasis added):

But a presidential commission could produce the fullest, least-heated account possible.

Once it did so, prosecutions would not be the only option. Based on what we know today, we do not believe they would be the best option. For reasons laid out at the beginning of this editorial, we would be extremely reluctant to go after lawyers and officials acting in what they believed to be the nation’s best interest at a time of grave danger. If laws were broken, Congress or the president can opt for amnesty. In gray areas, the government can exercise prosecutorial discretion. But the work of the commission should not be prejudged. And the prudence of not prosecuting, if that proves the wisest course, would earn more respect, here and abroad, if it followed a process of thorough review and calm deliberation.

And here are some of the “reasons laid out at the beginning of this editorial:

On one side, you have the sacred American tradition of peacefully transferring power from one party to another every four or eight years without cycles of revenge and criminal investigation. It’s one thing to investigate Richard Nixon for authorizing wiretaps and burglaries in secrecy, outside the normal channels of government, for personal political gain. It’s another to criminalize decisions authorized through all the proper channels, with congressional approval or at least awareness, for what everyone agrees to be the high purpose of keeping Americans safe from terrorist attack. Once you start down that road, where do you stop? Should Bill Clinton, Sandy Berger and their team have been held criminally or civilly liable for dereliction of duty 3,000 people died in the Sept. 11, 2001, attacks, given that they knowingly allowed Osama bin Laden to flee Sudan for sanctuary in Afghanistan? What if the next administration believes that Barack Obama is committing war crimes every time he allows the Air Force to fling missiles into Pakistan, killing innocent civilians in a country with which we are not at war?

In an Oval Office press availability after meeting with the king of Jordan last week, Obama said:

… this has been a difficult chapter in our history, and one of the tougher decisions that I’ve had to make as President. On the one hand, we have very real enemies out there. And we rely on some very courageous people, not just in our military but also in the Central Intelligence Agency, to help protect the American people. And they have to make some very difficult decisions because, as I mentioned yesterday, they are confronted with an enemy that doesn’t have scruples, that isn’t constrained by constitutions, aren’t constrained by legal niceties.

Having said that, the OLC memos that were released reflected, in my view, us losing our moral bearings.

Hawk though I am, Obama’s statements here work for me.  I voted for Bush in 2004, and would do so again today if he were running against Kerry.  Because of widespread Bush Derangement Syndrome in the media and the Democratic Party, my instinct is to defend Bush against almost any attack, at least in his role as commander-in-chief.

But regarding the torture issue, all I can say is I hope they saved a lot of American lives with whatever information they waterboarded out of Khalid Sheikh Mohammed and whoever else, because the ramifications are going to continue for years. I’ve thought for some time that the best spin I can put on it is to say that “America” — I’ll not blame Bush alone, although it happened on his watch — abandoned the moral high ground on the issue of torture.  We should reclaim the moral high ground, and a fact-finding commission may be the best way to start.

Update: From this morning’s WaPo, a news article with a fairly balanced cost-benefit analysis of the torture/harsh interrogation program.  This part rings true to me:

The Obama administration’s top intelligence officer, Dennis C. Blair, has said the information obtained through the interrogation program was of “high value.” But he also concluded that those gains weren’t worth the cost.

“There is no way of knowing whether the same information could have been obtained through other means,” Blair said in a statement. “The bottom line is these techniques have hurt our image around the world, the damage they have done to our interests far outweighed whatever benefit they gave us and they are not essential to our national security.”