Constitution Daily

Smart conversation from the National Constitution Center

Let's not talk about torture

May 4, 2011 by Deborah Pearlstein


Cross-posted at Opinio Juris and Balkinization

Editor's Note: Guest blogger Deborah Pearlstein is a Visiting Faculty Fellow in national security and international human rights at the University of Pennsylvania Law School. She is participating in the program "What Is National Security" at the National Constiution Center on Monday, May 9, at 6:30 p.m.

For all the interesting things that might be said about the still-emerging circumstances of bin Laden’s death, it’s disheartening to see conversation already turning to old, old debates about interrogation. Peter King (R-N.Y.) was naturally quick to suggest that reports that information leading to bin Laden’s capture came from detainees held at Guantanamo Bay should lead Obama to rethink his opposition to torture. Others, naturally, say it’s clear waterboarding had nothing to do with it.

Why is this a fruitless (not to mention so, so old) conversation? Any number of reasons. For one, the odds that we will ever know precisely who produced the critical piece of information when and for what reason are negligible. If perchance we do learn the actual “fact” about what happened – facts as distinct from competing anecdotal accounts selectively leaked by “official sources” with agendas of their own – they will prove nothing in any meaningful way.

If a detainee effectively volunteered key information, advocates of waterboarding, prolonged isolation, etc. will insist torture could have produced it sooner. I’ll look forward to their controlled study. If a detainee gave up the information under torture, critics will insist that it is impossible to know whether he also would have conveyed the same information under other conditions. Just right.

Either way, let’s be clear that the arguments in this realm have never been about ‘interrogation’ as an intelligence collection method per se. No one seriously thinks we should refrain from using our broad range of lawfully available means to seek information from terrorist suspects who are otherwise lawfully in our custody.

The debate is about torture and cruelty. And all the arguments that existed about the legality, morality, and efficacy of torture that we had when we had the debate in 2002, and 2004, and 2006, and 2008 and all the years in between – remain the same today as they were last week. So let’s note that the U.S. law prohibiting cruel techniques has been strengthened since 9/11.

Let’s recall that there was nothing at all in the President’s speech Sunday night to suggest that this no-doubt defining experience of his presidency has led him to reconsider his standing executive order reinforcing existing prohibitions. And let’s not nudge the blogosphere to see that recent events “reignite” that old, rightly concluded, debate.


Sign up for our email newsletter