Sunday, January 23, 2005


This need not be a partisan issue. The President, Secretary of Defense, and Attorney General nominee, have all said that "torture" is illegal and immoral and unAmerican, and that we will not engage in torture. Let us not look back at Guantanamo or Abu Grhaib; nor argue how far up the chain of command the responsibility went or should go. That leads to arguments and further polarization. Let us go forward, with definitions of approved interrogation techniques and specification of the circumstances that will justify the tehniques, and the procedures to protect against abuse of the process.

Let us agree to go forward with a rule of law that we are willing to follow, that most Americans will approve, and that we may, if we choose, recommend to the rest of the civilized world through the United Nations. Let us amend the Geneva accords relating to prisoners of war, if need be, or let us state (or affirm) that they do not apply to terrorists and enact a rule of law for the United States to deal with the problem.

Because we are all against "torture," perhaps we should not try to define torture (impermissible) but define permissible interrogation techniques. We could follow the principle we use in the United States, that is, we restrict the action (interrogation techniques) to use by qualified enforcement officers; we require such officers to have probable cause; we require the probable cause to be presented to a neutral, independent magistrate; and if the warrant is issued, the warrant sets forth what the officer may do. Let any JAG officer make the sworn application, on oath, setting forth the reliable hearsay that warrants the action. Let a general ranking officer, at least, be the magistrate and issue the order, the warrant. Let the warrant set forth exactly what may be done to get this suspect to reveal information he or she is believed to have and to which we are entitled. Let it be done by email to avoid delay in exigent cases.

Frankly, we are not talking about the Miranda rule (June 13, 1966); nor are we talking about the rule that says involuntary confessions (those obtained by mental or physical coercion or threats of such coercion, or promises of leniency) are inadmissible in American courts of criminal law. We are talking about what coercion will be permitted to get these terrorists to talk. Let Congress debate this in open session. Let us consider techniques that Congresspersons may advocate. We may consider authorizing the near-drowning (water-board) technique; the chain-him-in-a-fetal-position-in-waste for 48 hours technique; the forced en masse masturbation technique; the "light stick" or broom stick insertion technique; and the electrical shock to the appendages technique.

We certainly should consider the twenty-plus techniques signed off on by Secretary Rumsfeld,
as a great deal of expertise and thought went into them. Consider also the three techniques withdrawn from the Secretary's list after the digital pictures showed up. The point is that nothing is off limits to consider and reject or accept, and the rule of law which we adopt will give Americans a standard which we may all be willing to accept. If the rest of the civilized world goes along, fine. No global test here, however.

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