Koch's Comments: Torture as a counter-terrorism tool

For several years, Democrats in Congress have been denouncing the Bush administration for defending the use of torture to get information from terrorists. Then Democrats were denounced for not attempting to pass legislation barring torture and, in particular, waterboarding.  Finally, both houses of Congress, having passed the controversial legislation, sent the bill to the White House for signature. President George W. Bush, true to his word, vetoed the bill on March 8.

The Democratic Congress has done its job on this issue. They don't have the votes to override the veto.  Their only recourse now is to make the use of torture one of the major issues in the general election in November.  Surprisingly, Senator John McCain, the presumed Republican presidential nominee who was one of the first members of Congress to denounce the use of torture supported the President's veto. His support of the President on the legislation is in contradiction to his statement, according to The New York Times on October 27, 2007, calling waterboarding "very exquisite torture."  Heretofore, McCain was unalterably opposed to torture, no ifs, ands or buts.  Now that he will be the Republican candidate, he apparently has weakened in his resolve.

According to The New York Times of March 9th, McCain "supported the administration's position, arguing as Mr. Bush did Saturday that the legislation would have limited the C.I.A.'s ability to gather intelligence."  But that argument flies in the face of his prior statements on torture.  According to The New York Times of March 3rd, "Mr. McCain has said he opposed the bill, which the Senate passed last month with a vote of 51 to 45, because he believes that C.I.A. interrogators should have the flexibility to use additional tactics not listed in the field manual. Mr. McCain has argued that none of those tactics would include torture because 'cruel, inhumane and degrading treatment' is banned in the Military Commissions Act of 2006.  But human rights advocates say there is disagreement over what tactics are actually prohibited. Although Mr. McCain calls waterboarding, a simulated drowning technique, an illegal form of torture and the C.I.A. says it no longer uses it, the Bush administration has not ruled it out. Mr. McCain was tortured as a prisoner of war in Vietnam and has led the battle in recent years to end torture by the United States. His vote against the bill puts him squarely on the side of Mr. Bush..."

According to the Times, General David Petraeus argues "that the military's interrogation techniques were effective and that the use of any others could create risks for any future American prisoners of war."  As also reported by the Times, "The administration has also said that waterboarding is no longer in use, though officials acknowledged last month that it had been used in three instances before the middle of 2003." The US Army Field Manual on the interrogation of prisoners of war prohibits the use of physical force against prisoners, as does the Geneva Convention.

I have expressed my position on this issue on prior occasions. I believe that torture may be warranted in the "ticking bomb" situation, where the interrogators reasonably believe based on credible information in their possession that the suspect knows where the "ticking bomb" is located and no other source is available to them. I do not believe there should be any statute or regulation authorizing torture, but we must depend on interrogators of conscience, mindful of the consequences of their actions. If any such interrogator is wrong in his judgment, tortures the suspect and elicits no bomb information, he should be indicted and serve a prison sentence upon conviction. If he elicits information that allows the "ticking bomb" to be located before it goes off, in all probability, he will be hailed as a hero and probably not indicted, or if indicted, probably not convicted by any jury which will exonerate him using the doctrine of jury nullification. If he were to be convicted under these circumstances, he could expect a presidential pardon in the interest of justice.

The Democratic Congress should be applauded for passing anti-torture legislation. Those who opposed the legislation should pay a price at the polls during the Congressional race this year. Torture will be one of the most powerful issues available to the Democrats in the election.