President Obama has said that the U.S. “lost its moral bearings” under President Bush. In so asserting, Obama is making both a claim about morality and a claim about history. He is saying that Bush’s policies with respect to detainee interrogation (the subject about which Obama was speaking) were immoral and he is saying that they represent a major departure from past policy.
Obama’s moral claim is unsustainable. Indeed, I consider it frivolous to describe as immoral decisions to subject terrorists to, say, sleep deprivation, slapping, and waterboarding (a procedure we have used our own personnel) for the purpose of obtaining information that could potentially save innocent lives, where the decision is made with the good faith belief that the information cannot be obtained through less harsh means.
It’s usually not possible, however, to change someone’s mind on a moral question. But what of the historical question; is it true that Bush administration interrogation techniques represent a significant departure from past practice? This is a factual question and thus should yield a much less controversial answer.
A piece in the current issue of Yale Law Journal by William Ranney Levi argues that there has been no dramatic break. I hope to discuss this law review “Note” (it’s called that because the author is a student, not a professor or a practicing attorney) in more detail when I have the opportunity. Tonight, I will simply quote the conclusion to Levi’s piece:
This Note has shown that in times of national insecurity since World War II, the law has been interpreted to permit the authorization of highly coercive interrogation methods. The current debate over interrogation law and policy is not served by the erroneous historical framework to which even the opposing parties to this debate have subscribed, namely, that a dramatic break with the past occurred in the aftermath of 2001.
Interrogation’s law — the absolute bans on vaguely defined abuse — has provided the latitude that has, in turn, permitted the authorization of coercive interrogation since World War II. To declare that the law’s mandates were clear before 9/11 but grossly misconstrued — even repudiated — in its aftermath, and that if only properly acknowledged will be clear yet again, is to delegate the tough questions in future interrogation dramas to the executive branch agencies discussed in this Note.
This Note has shown how, prior to 9/11, responsible officials who wished to obey the law’s uncertain boundaries found sufficient latitude to authorize highly coercive interrogation techniques. In light of the past, there is little reason to expect different practicies in times of future fear. If this is troubling, then a rethinking of interrogation law and policy is necessary.