By Andrew C. McCarthy
http://www.nationalreview.com/
April 21, 2009
‘Does it shock the conscience?” Chris Wallace, the Fox News Sunday anchor, pressed former CIA director Michael Hayden about waterboarding. General Hayden gave the only responsible answer that honesty would allow: “It depends on the circumstances.”Wallace’s question came after the Obama administration’s shockingly irresponsible decision to release government memoranda that spell out, in exquisite detail, the enhanced interrogation methods that were approved for top-tier al-Qaeda detainees in 2002–2003. Certainly President Obama is entitled to his rose-tinted opinion that more is to be gained by shelving the tactics than by further exploiting them. As chief executive, moreover, it is his prerogative to supplant a policy of proven effectiveness with one based on vague, counter-historical hopes of depressing terrorist recruitment. He could easily have altered the policy course, however, without giving a tactics seminar to our enemies.
The revelations will make al-Qaeda a more efficient killing machine: better able to resist our efforts to thwart its attacks. Worse, they will paralyze our intelligence community, which now knows that even a presidential assurance complemented by Justice Department guidance and congressional encouragement will not protect agents from second-guessing and possible legal jeopardy a few months or years from now, when vigilance is no longer in fashion and political power has changed hands. To complete the triple play, the disclosures demonstrate to intelligence agents that the commander-in-chief is not to be trusted: He claimed that coercive interrogation tactics beyond the anodyne Army Field Manual measures were being studied to determine whether their authorization might be appropriate; but the revelations make the “study” a hollow gesture — there is nothing to be gained from authorizing tactics the enemy has already been armed against.
All this folly finds its way back to that simple question: “Does [insert interrogation tactic of choice] shock the conscience?” As Wallace put it to Hayden, and as Obama frames it in policy debates, the question is utterly devoid of context. The “shock the conscience” standard is derived from a 1952 Supreme Court case, Rochin v. California. That, evidently, is enough to qualify it as the high-minded yardstick of permissible government behavior — no need to get into icky complications like circumstances or (dare I say) obligations.
We have “waterboarding,” or simulated drowning. Grisly stuff. Tough guys wrestle the subject onto a slab. Another tough guy does the dirty work, rendering the subject unable to breath, creating the fear of imminent death. How could that not be shocking to even a jaded conscience? Next case.
Except what if the next case involves coercing a subject onto a slab for the purpose of administering injections that will kill him? Or what if we shoot a hellfire missile at a house where a subject is meeting with three other subjects and their guests? Or what if we drop a bomb on a densely populated area, knowing full well that many subjects will be killed and others permanently maimed? Doesn’t all that shock the conscience too? Does it not matter that the subject is a convicted rapist-murderer? The emir of a terrorist organization plotting mass murder? A member of an organization with which we are at war?
Law provides guidance for the human condition in all its endless variety. As such, it always accounts for context. It is a favorite talking point of leftists and libertarian extremists that heightened security measures “suspend” the Constitution even though a crisis is when the Constitution is most needed. Never has anything so vapid been repeated with such indignation. The Constitution is never suspended. It anticipates war and peace, insurrection and domestic tranquility, and prescribes adjustments for different conditions. Free speech is guaranteed but treason is proscribed. Privacy is guaranteed but searches are authorized. Liberty is guaranteed but imprisonment is permitted. Life is guaranteed but the death penalty is permitted.“
The great ordinances of the Constitution,” Justice Oliver Wendell Holmes Jr. instructed, “do not establish and divide fields of black and white.” Everything is contingent. In peacetime, the rule of law is what the statutes prescribe and the courts ensure. But the Framers also knew it would not always be peacetime. That is why, Holmes elsewhere wrote, “when it comes to a decision by the head of the State upon a matter involving its life, the ordinary rights of individuals must yield to what he deems the necessities of the moment. Public danger warrants the substitution of executive process for judicial process.” Executive process doesn’t suspend the Constitution any more than Congress would be suspending the Constitution if it suspended habeas corpus. Rather, executive, legislative, and judicial processes are all parts of the Constitution, their roles waxing and waning based on “the necessities of the moment.”
Rochin itself is testament to the seemingly rudimentary but often ignored fact that circumstances matter. The police behavior in that case — breaking into a home without a warrant, forcing a man to have his stomach pumped to coerce evidence in a run-of-the-mill drug case — did “shock the conscience.” But it might not in other contexts. Here is Justice Felix Frankfurter, explaining the test that he and his fellow justices were inventing: “Hypothetical situations can be conjured up, shading imperceptibly from the circumstances of this case and by gradations producing practical differences despite seemingly logical extensions.” What shocks the conscience in some situations may be less, even far less, than what duty demands in others.
Which brings us to two final points that are especially crucial in wartime (and it is worth remembering that enhanced interrogation techniques were adopted after an unprecedented domestic attack, during a defensive war authorized by Congress). First, war is just, and proportional, only because of evils so pronounced that they have triggered the legal and moral obligation of government officials to use the powers necessary to quell the evil — to protect the lives those officials are sworn to defend. That obligation is no less solemn than any obligation not to “shock the conscience.” Indeed, no faithful “shock the conscience” test can fail to account for it.
President Obama and Attorney General Eric Holder are within their right to claim, however implausibly, that their national-security obligations can be satisfied without resorting to enhanced interrogation tactics. But they should forthrightly admit, then, that they are willing to lose the thousands of lives their policy decision may cost. They shouldn’t get to continue spouting the nonsense that tradeoffs between our security and “our values” present “a false choice.” In fact, it’s the choice we’ve trusted them to make, for better or worse.
Second, in fighting a just war, proportionality is dictated by the circumstances in which actions are taken, not the (reputedly) calmer times in which they are judged. A civilized society won’t condemn conduct ex post facto; there is no guilt absent notice of the wrong. There is no guilt if, in its context, the behavior was officially encouraged.
In 2002, the only thing our lawmakers wanted to know was whether we were being tough enough on high-value detainees. In 2002, Barack Obama and Eric Holder wouldn’t have dared take a courageous stand against enhanced interrogation tactics for Khalid Sheikh Mohammed. In fact, back then, when it was expedient to be tough on terror, Holder was telling anyone who would listen that these al-Qaeda savages who murdered Americans absolutely did not deserve Geneva Convention protections.
To carp now about the rule of law is shameful. The rule of law hasn’t changed. But they have.
— National Review’s Andrew C. McCarthy is a senior fellow at the National Review Institute and the author of Willful Blindness: A Memoir of the Jihad (Encounter Books, 2008).
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