I haven’t seen the interview (w/ Jon Stewart) itself, but National Review ran the transcript online here.
CM: No one who reads the memos can think that [these memos authorize folks using “enhanced interrogation techniques” to go ahead and “knock themselves out”]. The media keep calling these “torture memos.” They’re really “anti-torture memos.” They tell the CIA where they must draw the line. They instruct them not to cross from coercive interrogations — sometimes called “stress and duress” — to torture, a practice which is made illegal under law. You can disagree about where the attorneys drew the line — but drawing it was indisputably what they were doing in these memos.
Yes! Perfectly put! The whole point of legal counsel is to determine where the line is between “legal” and “illegal.” Note: I’ve pointed out here and here that the “legal/illegal” line is not the same as “moral/immoral,” the latter of which has, frankly, little place in war. And do our adversaries’ actions indicate that they consider this “war”?
CM: Defining torture is not easy. A simple legal definition is that it “shocks the conscience.” Cutting off Daniel Pearl’s head on videotape — that shocks my conscience. Sending a child out as a suicide bomber — that shocks my conscience. People jumping off the World Trade Towers because they’d rather die that way than by burning — that shocks my conscience. Khalid Sheikh Mohammed, mastermind of the 9/11 atrocities, gagging for a few minutes and, as a result, providing information that saves lives, then going back to his cell for dinner and a movie — no, my conscience is not shocked by that.
Ok, so again: The point of legal memos is to point out where the reasonable line is, when “reasonableness” is somewhere shy of “shocks the conscience” and somewhere south of mandating that we treat enemy combatants like this.
May notes that when Khalid Sheikh Mohamed was captured he was asked repeatedly: Will there be another attack? KSM smiled (I picture an archetypical mephistophelian smile) and said: Soon, you will see. May’s response:
The current administration appears to have ruled out any coercive techniques: No sleep deprivation — not even for a night. No loud music — it drives the terrorists crazy! So it’s torture! Better to let the attack proceed. The victims and their families surely will understand.
We basically have three weapons against terrorists: capture them, interrogate them, kill them. But there’s no point in capturing if you can’t effectively interrogate, so that leaves just killing. How do you justify that? How do you say, “Yes, you can hit that terrorist with a Predator missile but you can’t make him listen to Slim Shady”?
Now forgive my gigantic closing block quote, because May finishes the interview perfectly:
JS: Fair enough. But those who have already broken the law, shouldn’t they be prosecuted?
CM: What we’re talking about is astonishing: Government lawyers in the current administration prosecuting government lawyers from the previous administration because they disagree with their legal opinions. Never before in American history has policy been so politicized. It’s as though Eisenhower prosecuted Truman for dropping the atomic bomb on Hiroshima.
The one indisputable achievement of the Bush administration was keeping Americans safe from terrorism for seven years. It’s one thing to minimize that; it’s quite another to try to spin it as a war crime.
JS: But surely no one is above the law?
CM: If there was any real basis for prosecutions, those cases should have been brought. They could have been brought anytime since 2003 — when, as I said, waterboarding stopped being used. Instead, leaders of Congress from both parties were briefed on these interrogation methods and they not only approved of them — they funded them. And there were occasions when bills were brought before Congress to specifically outlaw waterboarding. Those bills did not pass.
If members of Congress want to make a statement now, let them pass a law against waterboarding. Let them do that this week. But no witch hunts or show trials. That’s not good for the country.
A resounding yes, yes, yes! Ignorance is not bliss. If we are going to run a government, let those in charge be educated. If someone is going to educate government leaders, let those educators (*cough* lawyers *cough*) be subject to sanctions if their advice is wrong or in bad faith, or to discipline if their method is flawed. But if government officials would prefer not to define a line between “legal” and “illegal” and instead simply assume that we should tickle enemy combatants like the slow loris then to those officials I would suggest heading to one of the many, many countries in the world where peace, rather than citizens’ freedom to pursue happiness, is the primary goal of the government.
NB: Click through to NRO above, and find a link to the Daily Show interview embedded in that article.