On the Morality of Waterboarding

By David French

Monday, May 14, 2018

Last week, the Internet briefly lit up with the claim that President Trump’s nominee to run the CIA, Gina Haspel, repeatedly dodged and evaded when asked to opine about the morality of waterboarding and other forms of “enhanced interrogation.” California senator Kamala Harris was particularly tenacious in trying to tie Haspel to a yes or no answer to the question of whether “previous techniques” were immoral.

It’s not a question susceptible to a yes or no response. The true answer is highly dependent on the technique at issue and the circumstances of its use.

Morality in war is a complex and shifting thing. Let’s take, for example, two of the most famous and most successful operations in American military history — Sherman’s March to the Sea and Truman’s atomic-bomb strikes on Japan. Both of them involved deliberate, mass-scale targeting of civilian assets. The atomic bombings also included the deliberate mass killing of innocent men, women, and children. In ordinary times and in more “ordinary” wars, the morality of both actions is clear and unequivocal. They’re wrong. Indeed, in ordinary times and in ordinary wars, they’re more than just wrong — they’re unlawful.

And that’s the proper default position of American arms. Absent extraordinary circumstances, American forces should not deliberately target civilians or civilian assets. That’s also the proper default position regarding enhanced interrogation. Absent extraordinary circumstances, American forces should not engage in “enhanced interrogation.” But these default presumptions should be rebuttable.

In the context of both the Civil War and World War II, American forces were engaged in an existential struggle. The Civil War was one of the first modern “total wars,” where the resources of the entire society are mobilized to wage war. The South in particular — with its smaller manpower and industrial base — had to mobilize all its resources to stay on the battlefield against the Union. And so, to defeat the South, intelligent Union generals like Grant and Sherman knew that they had to diminish Confederate resources, in both men and material. Thus, the war of attrition against Lee in Virginia. Thus, Sherman’s campaign to rip the heart out of the southern economy in Georgia.

In a very real sense, Sherman and Grant — as brutal as they were — saved lives. They cut short a war that was far bloodier than either side expected, and they ultimately ended the meat grinder of 1861-1864 — when Confederate armies stood toe-to-toe with a larger foe and bested it time and again on the battlefield. Do we condemn Sherman today?

Similarly, imagine the shock and horror in the American public had we chosen not to use the atomic bomb, fought Japan for every inch of the home islands, and then later found out that Truman sat on a war-ending weapon that could have spared the hundreds of thousands of American lives.

Moving back to enhanced interrogation, it’s easy to imagine a very different kind of hearing than the one Haspel endured last week. Think of the hearing that would happen after a catastrophic terror strike that could have been averted through more dramatic interrogation measures. The architects of restraint would face thousands of bereaved families, each of them demanding to know why an interrogation technique (like waterboarding) — long used in training against our own soldiers — was deemed too brutal to use to avert catastrophe. The moral argument would look very different indeed.

The United States should maintain general prohibitions against extreme measures, but it must also leave room for extraordinary circumstances. When it comes to enhanced interrogation, I prefer a solution advanced by Alan Dershowitz during the Obama administration — what he called the “torture warrant.” In other words, prohibit enhanced interrogation except in circumstances defined by law and channeled through the law. Emergency orders can be granted with speed, and the techniques limited by statute. The Dershowitz proposal introduces transparency and accountability to a process shrouded in secrecy — where the secrecy itself often enables grotesque abuse.

“War is hell,” Sherman famously declared, and life in that hell involves making the most challenging of moral decisions with the highest possible stakes. At a minimum, the consequences of failure can mean death and dismemberment. At most, they can mean the end of a civilization. In that circumstance, lines can and must be drawn, but they must often be drawn with pencils, not pens. Our enemies must know that when they violate the laws of war that they cannot rely on the straitjacket we stitch to save them from the fate they so richly deserve.