It seems to be that much of the debate about the use of waterboarding on suspected terrorists involves posturing rather than a willingness to address the tough issues presented by using extremely aggressive interrogation techniques to attempt to avoid extremely harmful events. Here's where I think the deabate gets off the rails.
Does it matter whether waterboarding can be called torture? Let's put aside whether it fals within the statutory of torture so we can focus on the question of what the law ought to be. I think it certainly can be called torture, although it is still substantially different from forms of torture that inflict bodily harm. It does not result in physical injury (although I suspect that there is always a risk involved in inducing extreme stress), but it also seems to be extremely unpleasant and terrifying. Call it torture, but does that answer the questions we are presented with? I suggest that it does not for the following reason.
Few people really believe that torture is never justified. Imagine that we have uncovered a plot to detonate an old Soviet nuke somewhere in New York. We know that the weapon is in country but we don't know where it is or when it will be detonated. We have captured one of the plotters but have been unable to crack him through traditional interrogation techniques.
Should he be waterboarded? It won't kill him. It won't injure him. It might save millions of lives.
You can't duck this by saying that torture "doesn't work." Experts who advocate waterboarding in this type of situation are not sadists. There is a difference between waterboarding to extract a confession and doing it to obtain objectively verifiable information to prevent an attack.
Unless you can say that you would allow New York to blow up rather than waterboard, then you cannot advocate a complete ban on the technique.
If you are willing to let New York go, I think you are in a very small minority. The fact that leading Congressional Democrats, including Nancy Pelosi, were aware of waterboarding and raised no objection until its use became public and the political winds had shifted underscores this.
(Incidentally, can Pelosi's conduct on this issue be described as anything other than reprehensible? How can you fail to raise an objection to something and, then when it becomes public (and is no longer being used), act as if those who did what you wanted them to do were immoral and criminal?)
I don't think that you can avoid answering by saying that this hypothetical could never happen. The former CIA agent who has said that Abu Zubadayh was waterboarded says that the information that was obtained disrupted "maybe dozens of attacks."
But I agree that it will be a rare circumstance and suggest that those who advocate waterboarding somethimes miss the following.
Permitting waterboarding is dangerous and requires stringent limitations. Although waterboarding may not cause permanent injury, it does involve the infliction of extreme discomfort and panic and risks opening the door to other more damaging forms of interrogation. (I am less moved by the argument that it subjects American captives to harsh interrogation because I think they would be anyway.) It should never be used to extract confessions or uncorroborated accusations. It seems to be that it ought to be used only to prevent serious attacks that we have reason to believe (from other sources) may be in process and only upon Presidential approval with Congressional disclosure. It should not be used in circumstances when the Geneva Conventions apply.
If you accept those guidelines (or can think of better ones that would still acommodate my hypothetical), then isn't the prohibition passed by the House a bad bill that ought to be vetoed?