Jonathan Adler, writing at The Volokh Conspiracy, says:
Waterboarding was a horrific thing to do to someone, even someone as evil as Abu Zubaydah. Such conduct should be forbidden and never sanctioned as official policy.... At the same time, there may be extreme (and extremely rare) circumstances in which life does imitate an episode of "24," and horrific measures may be necessary. This does not mean such measures should be legal. Rather... the specific context should be considered when authorities decide whether and how to prosecute those involved for breaking the law.To which I say:
1. Adler, like most opponents of torture, frames the issue wrongly. If Abu Zubaydah is evil, he is evil because of what he does or enables others to do. The purpose of torture, when used against an Abu Zubaydah, is to prevent evil, not to commit it. By Adler's standard, it would be wrong to defend oneself against an armed aggressor because the possible result -- the aggressor's death -- would be "horrific." As if one's own death would not be "horrific."
2. The "authorities" should prosecute those who commit an illegal act. To do otherwise -- to wink at illegality -- is to undermine the rule of law.
3. Uncertainty about prosecutorial responses to acts of "aggressive interrogation" will, in some cases, cause interrogators to restrain themselves when they should not.
4. It is better to define torture by statute and, as Alan Dershowitz advises, allow its authorized use.
UPDATE: Mark Bowden, in this article, makes the same wrong-headed case as Adler does with respect to the legality of torture. Bowden, at least, acknowledges its effectiveness in certain circumstances:
Opponents of torture argue that it never works, that it always produces false information. If that were so, then this would be a simple issue, and the whole logic of incentive/disincentive is false, which defies common sense. In one of the cases I have cited previously, a German police captain was able to crack the defiance of a kidnapper who had buried a child alive simply by threatening torture (the police chief was fired, a price any moral individual would gladly pay). The chief acted on the only moral justification for starting down this road, which is to prevent something worse from happening. If published reports can be believed, this is precisely what happened with Zubaydah.In order to induce fear, torture must be known to be an option. There must be a real threat of pain or psychological terror (as in the case of waterboarding) if fear is to play its role in extracting crucial information.
People can be coerced into revealing important, truthful information. The German kidnapper did, Zubaydah did, and prisoners have throughout recorded time. What works varies for every individual, but in most cases, what works is fear, fear of imprisonment, fear of discomfort, fear of pain, fear of bad things happening to you, fear of bad things happening to those close to you. Some years ago in Israel, in the course of investigating this subject exhaustively, I interviewed Michael Koubi, a master interrogator who has questioned literally thousands of prisoners in a long career with Shin Bet. He said that the prisoner who resisted noncoercive methods was rare, but in those hard cases, fear usually produced results. Fear works better than pain.
"Torture and Morality" (04 Dec 2005)
"A Rant about Torture" (16 Feb 2006)
"Taking on Torture" (15 Aug 2006)