In Defense of Torture

There is a blog on the Huffington Post today that attacks U.C. Berkley’s Boalt Hall School of Law for, of all things, having a former Bush Administration lawyer as a Professor. The blog is entitled Why Is Torture Lawyer John Yoo Still Teaching at Berkeley by Barry Yourgrau. As Yourgrau writes:

John Yoo is one of the prime--if not the prime--formulators of the blatantly inadequate and outrageous legal opinions that justified the Bush administration's use of torture.

His opinions were not just idle academic theories: They helped further the actual practice of war crimes and crimes against humanity.

Why is he still allowed to teach at Berkeley? Why hasn't or doesn't the Berkeley faculty senate or law-school senate demand his dismissal? Why haven't or aren't disbarment proceedings being brought against him?

Where do I start? First of all, having a different opinion does not make you a war criminal. As a matter of fact, the First Amendment protects your right to have a different opinion. People are for example free to disagree with Yoo’s argument that water boarding Al Qaeda prisoners like Khalid Sheik Mohammed (the mastermind behind the 9/11 attacks) was legal.

I haven’t read Yoo’s legal memoranda (I believe they are still classified) but I can speculate as to what they said. First of all you need to ask what specific law water-boarding Khalid Sheik Mohammed would have violated. In order for something to be illegal, there actually has to be a law against it.

It didn’t violate the Geneva Convention because Al Qaeda is not a signatory. Therefore, Al Qaeda prisoners have no rights under it. The idea behind having “rules of war” is that they are binding on both sides and therefore, by following the rules, you protect your own captured soldiers. You can ask Daniel Pearl if Al Qaeda respects the rules of the Geneva Convention despite not being a signatory. No wait, you can’t because Khalid Sheik Mohammed cut his head off with a knife as part of a snuff film.

It was not unconstitutional. The Eighth Amendment prohibits torture as punishment, but the water boarding that was done was for interrogation purposes, not punishment. The Fifth Amendment Due Process Clause would prohibit the use of a coerced statement at a trial, but the information was instead used to disrupt ongoing Al Qaeda operations, preventing several planned terrorist attacks and saving lives.

There are certainly arguments against the use of torture by the United States regardless of its legality. John McCain is one of the people making those arguments. His experience of being tortured as a POW makes it a personal issue for him. But even he opposed a recent attempt by congress to outlaw water-boarding by limiting CIA interrogators to techniques allowed by an army interrogation manual. We do not want future Al Qaeda prisoners to know in advance what techniques will be used against them. Otherwise they can harden themselves against those techniques. There is of course another reason, the ticking bomb scenario. While torturing prisoners may not be our policy, we may in the future need to make an exception or two.
But I will vehemently disagree with any kind of argument that alleges water boarding a terrorist makes us just as bad as they are.

The late William F. Buckley, Jr. used to use this analogy about moral equivalence. A man who pushes an old lady in front of a bus and a man that pushes an old lady out of the way of a bus ought not be lumped together as people that push old ladies around.