NEAL CONAN, host:
This is TALK OF THE NATION. I'm Neal Conan in Washington.
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In October, the US Senate approved legislation that would ban the use of torture by any agent of the US government. It's still uncertain whether this amendment, proposed by Senator John McCain, will become law. For now the debate about what constitutes torture and when, if ever, to use it and on whom continues amongst government leaders and on editorial pages. For the remainder of the program, we're going to listen to two perspectives on torture; first from David Luban, a law professor at Georgetown University who's currently doing a stint at Stanford University's law school. Yesterday he published an op-ed piece in The Washington Post about the confusion surrounding this issue, and he joins us now from the studio at Stanford University in Stanford, California.
Nice to have you on the program.
Professor DAVID LUBAN (Georgetown University): Well, hi, Neal. It's really great to be here.
CONAN: Is there any debate in your mind about whether torture is legal under any circumstance?
Prof. LUBAN: Well, there's no real debate about whether torture is legal. Torture is a federal felony and it has been for years. What the current debate is about are about a group of tactics that are called cruel, inhuman and degrading tactics, but that fall short of torture. And, you know, what would those be? Those would be such things as sexual humiliation, so leading somebody around on a leash, making them do dog tricks, blasting them with ultra-loud rock 'n' roll music while flashing a strobe light in their face, intense sleep deprivation, making them stand up for 40 hours in a row. Those are cruel, inhuman and degrading tactics, and that's really what the McCain amendment is about. Let me just make sure that the people understand that torture, infliction of severe mental or physical pain and suffering is already a crime.
CONAN: Mm-hmm. So there is this category which, I guess, goes by the abbreviation CID, that is beyond what is permitted in the Army Field Manual--and again, the McCain amendment would limit all agents of the US government to what's in that Army Field Manual--and yet these CID tactics, if you will, fall short of torture.
Prof. LUBAN: Well, they fall short of the legal definition of torture. I think that there are people who would say that being forced to stand up for 40 hours in a row, you know, while your feet are shackled to an eye bolt in the floor is torture, but, you know, I don't think that there's any prophet involved in, you know, sort of figuring out the semantics of those tactics. I mean, we look at the tactics and we know that in some sense those are cruel tactics, and the question is whether to close a legal loophole that right now the government claims exists that permits us to use tactics like that if it's not done in US territory.
CONAN: And that is why the United States at least, according to The Washington Post and other sources, established this system of black prisons in various places, some in Eastern Europe, according to The Washington Post and other news services, where people like al-Qaeda suspects are being held without charge and are being questioned.
Prof. LUBAN: That's right.
CONAN: And these tactics, though, these are not being practiced on US citizens. They're not being practiced on US soil.
Prof. LUBAN: Well, that's right. They're not being practiced on US soil. They're being practiced at bases controlled by the United States, except that sometimes we outsource. We have been involved in rendering al-Qaeda suspects to police forces from other countries who will be given a list of questions or maybe an American agent who is present while they use rough tactics, maybe crossing the line to torture, to get information. But it's true that as far as we know, these tactics aren't being used on US soil, and I think that the government agrees that they would be completely unlawful if they were used on US soil.
CONAN: Mm-hmm. Yet, then again, you have people who have been involved in plots, the 9/11 plot for one, presumably still planning to carry out attacks on Americans in this country and abroad, people who may have information about those plots. Are you just supposed to ask them questions?
Prof. LUBAN: Well, I think that we can't ever underestimate the danger that terrorists pose. I mean, we can't ever really forget 9/11. It's important to get information. You know, the problem is that for at least four years when we've talked about this, we've always talked about it through a kind of melodramatic hypothetical. You know, the ticking bomb story. And it always goes the same way. It's--there's a time bomb planted in a US city, it could kill hundreds of thousands, millions of people. You know that it's planted, you know that the clock is ticking. You've got somebody and you know that he knows where it is, and you know that he's not going to give up that information unless he's tortured. In that case, would you torture him?
And one of the things that I've been finding dismaying is that we take this hypothetical and treat it as if that's the thing that we ought to be talking about. But it isn't, because in real life, we don't have all of these knowledge levels that the hypothetical just assumes. I mean, in fact, what we're really doing is we've got somebody who is an al-Qaeda suspect, in some cases his identity is known with certainty, in other cases it isn't. Nobody really knows exactly what information he has. Nobody knows if there is a ticking time bomb out there. Nobody knows that anything that he's got to tell could stop any particular plot. So the question is whether to use illegal tactics or tactics that we think are morally revolting on a fishing expedition for facts in the hope that maybe there's something there that would be useful. And, you know, I think that when we talk about, well, what would you do about the ticking bomb, we're really just drifting off of reality and into fiction.
CONAN: Well, maybe not a ticking bomb, but you do have people like Khalid Sheik Mohammed, one of the intellectual architects of the 9/11 attacks, responsible, many people believe, for the deaths of almost 3,000 Americans in those attacks, and even if he certainly has information about others who may have been involved in that situation and might well have information about other plots that are in various stages of conception around the world.
Prof. LUBAN: Yes, that's right. Look, for years, before 2002 at any rate, military interrogators had a set of tactics and techniques that were used and used with great effectiveness, and so far nobody has--and the government has claimed that there's been information that's been dragged out of anybody, including Khalid Sheik Mohammed, that couldn't possibly have been gotten by other methods of interrogation. I would think that had there been another attack that had been stopped with information that had been gotten from a high-value al-Qaeda suspect and that was gotten only by using the rough stuff, couldn't have been gotten otherwise, that the government would have been happy to claim bragging rights about it and would have told us.
But as it is, all we know is that Khalid Sheik Mohammed was water-boarded and that he confessed. I mean, that was the word that was used, and we don't know, does that mean that he was water-boarded--which is kind of like the ducking stool in the Salem witch trials, which was very effective at getting witches to confess that they'd been engaged in witchcraft--do we know that water-boarding got valuable information and not just a confession, `Yes, I was the mastermind of 9/11?' And we don't--I hope we don't torture in order to get confessions.
CONAN: David Luban, thank you very much for being with us today.
Prof. LUBAN: Well, it's been a pleasure.
CONAN: David Luban, a professor of law at Georgetown University, visiting professor at Stanford, a contributor to the forthcoming book "The Torture Debate in America," and he joined us from the studio at Stanford University there in California.
For another view we turn to Charles Krauthammer, syndicated columnist who wrote an article about torture in the forthcoming issue of the magazine The Weekly Standard where he's also employed, and he joins us now by phone from his office here in Washington, DC.
Good to talk with you, Charles.
Mr. CHARLES KRAUTHAMMER (Syndicated Columnist): It's a pleasure. A slight correction, Neal. I'm not employed there. I'm merely a contributor.
CONAN: I regret--contributor there to The Weekly Standard.
Mr. KRAUTHAMMER: I'm an outside agitator, as we used to say in the '60s.
CONAN: Well, if you're not getting paid for it, you're underprized. Getting on to the subject, though, you argue that we have to stop talking in euphemisms about torture, that it does have a small but necessary place.
Mr. KRAUTHAMMER: Well, I find one side of the debate, which is the administration, talking in euphemisms, with the president saying we don't torture, not defining it, while we know that all kinds of other stuff is going on. And as I understand it, the administration rationalizes that by defining the torture as organ failure. So obviously it's doing rough stuff, but is using other words. The other side you have McCain--and I'm presuming your earlier guest, although I only heard the end of his remarks--talking in pieties. We must never and it never works, and the ticking time bomb is a hypothetical. This is nonsense.
We know, for example, there are cases in Israel almost every other week where there's an alert about an imminent attack and the Israelis often are able to find somebody who knows information. There's a famous case of a kidnapper in which the driver of a car in a kidnapping was found while the Israeli soldier was being held. He was tortured. The driver--the Israelis found him. So you've got to ask yourself the question. It's a hypothetical in some--if I give you a nuclear example, but there are different scales of this, you have to ask yourself, if you had somebody who had information you thought you could obtain, life-saving information right on the spot, could you morally justify not doing anything required in order to save that innocent life, and my answer is no.
CONAN: And yet you also say this needs to be carefully controlled. Obviously you, for one, say this authority should never be placed in the hands of the US military.
Mr. KRAUTHAMMER: Absolutely. Look, there's--torture is a terrible and monstrous thing which corrupts people who use it, and is one of the great evils. Sometimes evil is necessary, and the classic example is supporting Stalin against Hitler. You have to choose the lesser of the two evils. So when you use it, and it should be very constrained, very restricted, I believe we ought to never have the military to do it. It ought to be handled by a very small cadre of highly trained people, screened people with high--or who receive written authority from high officials, and then only two very constrained cases. First is the ticking time bomb, and the second is what's called the high-value suspect like a Khalid Sheik Mohammed where then they have what I call slow ...(unintelligible) information, information about a future attack that may not be imminent but is certainly coming.
CONAN: Or about an organization planning such attacks or...
Mr. KRAUTHAMMER: Exactly, in which case if you obtain information, you can preempt and prevent attack.
CONAN: We're talking with syndicated columnist Charles Krauthammer, as we hear two views on the definition and use of torture.
You're listening to TALK OF THE NATION from NPR News.
Charles Krauthammer, you used the example of Khalid Sheik Mohammed and the situation where he is being interrogated, however roughly, overseas, not in the United States. Would these--your proposal on torture, would this apply to American citizens on American soil?
Mr. KRAUTHAMMER: I think that distinction is one that probably for legal reasons we might want to exclude it on American soil. I was trying to make a moral argument. I was trying to understand if a person's principles, what do we as Americans, as a humane people think is morally justified. I believe it would be morally justified to water-board, as we have Khalid Sheik Mohammed, if that would have yielded information that would save lives. The question of whether or not it would be allowed in the United States or not, I think, is a peripheral one. I have no strong opinions one way or the other. I suspect for constitutional reasons we might not want to do it here. But I think it has to do with the legalities of the torture convention which we had signed years ago, which we understand to mean it can't be done in the United States.
CONAN: Others, as you know, disagree with you and say it also means we can't use it overseas. This is an argument where...
Mr. KRAUTHAMMER: Well, I understand, and I'm not debating whether or not that legally applies or not. As I say, I'm trying to understand whether or not it ought to be considered out of bounds by Americans on moral grounds.
CONAN: If it required, and again I'm no lawyer, but some would say it would require the United States renouncing the Geneva Conventions.
Mr. KRAUTHAMMER: We're not speaking about the Geneva Convention here. There is a separate protocol about torture and inhumane treatment which--look, we have lawyers in this debate department whose job it is to interpret a treaty any way we want. It seems to me that's not the relevant issue. The relevant issue is the McCain amendment, which would apply to the United States, within our borders and without, that essentially says no torture ever, and I believe that kind of policy which is heartwarming and sounds very humane and just and American, is simply wrong. It cannot be sustained under any kind of moral scrutiny; not just practical scrutiny, but moral scrutiny.
CONAN: You point to the example of Israel, yet this has been a live debate in Israel as well. At one point I think the Israeli Supreme Court said, `Hey, torture isn't justified because it isn't productive.'
Mr. KRAUTHAMMER: Absolutely, and that's why everybody says Israel's a paragon of this no torture rule. But, in fact, as Glenn Frankel reported in The Washington Post in a review of these practices, and as has been written about elsewhere, that when the intifada broke out, the second intifada in 2001, the Israelis were facing a suicide attack almost every other day and the slaughter of innocents almost weekly. They reverted to pre-1999 practices, which every government, the most liberal and the most conservative, including at one point earlier on Yitzhak Rabin, a great peacemaker, approved of. And in that case I gave you about the soldier who'd been kidnapped, it was Rabin who was prime minister and who approved the torture of that driver, and his justification was if they hadn't done that, they never would have located the missing--the soldier.
And I would add, Neal, that when McCain was asked in Newsweek about the ticking time bomb situation, where a life is at stake and you have somebody who has the information, McCain responded, `You do--the president should do what he has to do and take responsibility for it.' Well, it seems to me incoherent to say that you're allowed to do what you have to do in that case of a ticking time bomb and then go around arguing that this should never be done, ever, under any conditions. It's a contradiction, it seems to me.
CONAN: You also say that there are circumstances under which the criminal charge procedures used against, for example, the people who first bombed the World Trade Center, are inappropriate, yet what do you do with a Khalid Sheik Mohammed after he's been held and, if the word isn't tortured, very aggressively questioned...
Mr. KRAUTHAMMER: Right.
CONAN: ...for years?
Mr. KRAUTHAMMER: Well, I wrote in the piece that the only reason I'm in favor of rough treatment is because we believe he still has information. If we reach a point where we think that we have squeezed out of him everything he knows, I would then treat him like a common mass murderer. In other words, I'd bring him into Manhattan, I'd give him a nice warm cell, I'd put him on trial and I'd do to him whatever that that jury would decide. It's in the absence of information that you would treat a terrorist as an ordinary criminal. But I think it's a mistake to treat a terrorist who has information--we are in a time of war--who has declared war on you has information, has other cadres waging that war, to treat him as a common criminal and give him all of those protections when he has information in the middle of a war and you need that information.
CONAN: Charles Krauthammer, thanks very much.
Mr. KRAUTHAMMER: Pleasure.
CONAN: Charles Krauthammer, syndicated columnist. His opinion on torture appears in The Weekly Standard.
This is TALK OF THE NATION from NPR News.