The “Moral Authority” Canard

In Rhetoric, Aristotle observed that personal character is often the most formidable weapon in the speaker’s arsenal–more persuasive, if skillfully deployed, than even the logical force of his arguments.

Two-and-a-half millennia later, in a world of made-for-TV sound bites, techno-imagery, and information overload, the concept is hollowed out. Personal character has devolved into “moral authority,” an attribute interred in the pantheon of the vapid when the anti-Aristotle herself, Maureen Dowd, divined it in Cindy Sheehan — a walking caricature whose hijinks after the combat death of her noble soldier son have become the pathetic emblem of the antiwar left.

Maybe that's as it should be. There has, after all, always been more flash than heft to the whole idea. For every Cindy Sheehan, there are countless parents of fallen heroes whose resonant pride in the mission, and demands that we fight on lest it be in vain, overwhelm her “moral authority” over our deliberations.

I spent a number of years in the eye of the counterterror storm: prosecuting jihadists, putting my family through the attendant anxieties, and watching the criminal-justice system writhe through what the Clinton administration called its “war” on terror — a curious battle plan in which the enemy kills you and is then presumed innocent. I came away thinking the whole prosecution paradigm was a national-security debacle.

Now, do I get to end all discussion? Do I have the “moral authority” to render that judgment simply because I was there and you weren't? I suppose…except there were other people there, too. They were doing the same thing I was doing, experiencing the same personal and professional tensions. And they will tell you that prosecuting terrorists in the full flower of due process was America's finest hour — and one we should return to, posthaste.

So whose moral authority do you believe? In the end, no one's. What matters is not the personal character of the speaker. This is not to say his unique perspective is unworthy of our respectful attention. Of course it is. But it can't, of its own force, carry the day. Gravitas notwithstanding, what matters is whether the speaker's arguments are compelling. Whether they make logical sense and match up factually with what we know empirically.

This dichotomy of character and substance burdens any effort to address coercive interrogation tactics in the teeth of opposition by Senator John McCain, a great patriot and an authentic American hero.

Coercive interrogation, in our current climate, simply cannot be separated from the imagery and agitprop of torture. Senator McCain is our searing national conscience on that matter, having been subjected to years of sadistic abuse as a prisoner-of-war in Vietnam. When he speaks about torture, it is not just with MoDo-fied claptrap like “moral authority.” McCain is the guy Aristotle had in mind. Singularly, in this debate, he brims over with bravery, insight, and awe-inspiring personal character.

But he's still wrong.

THE “SHINING EXAMPLE” MYTH

Senator McCain is currently spearheading an initiative to impose on all interrogation of terrorist prisoners, by force of law, the anti-coercion standards of the Army Field Manual. (I've previously described the effort here.) The major asset he brings to the table is his towering presence. Coupled with his unquestioned status as the mainstream press's favorite Republican, this has cowed any meaningful opposition in the Senate, where the McCain Amendment garnered a lopsided 90 yeas. Nonetheless, to the extent the measure is not transparent grandstanding in furtherance of the Arizonan's anticipated 2008 presidential run, it is ill-conceived and dangerous.

To his great credit, the senator has seen the need to bolster his persona with substance, even if those rallied behind him seem paralyzed by the word “torture” and any utterance of the word “McCain” related thereto. The result was an essay last week in Newsweek — the cover of which depicts McCain's familiar visage and the headline “Torture.” The piece is powerfully evocative, rife with reminiscence of his years in captivity. Yet, it also betrays the folly of his position.

The Geneva Convention standards for respectful treatment of honorable prisoners of war are rooted not merely in our ideals but in practical considerations of comity. Yet McCain concedes that al Qaeda's butchers will continue to torture and kill prisoners no matter how we treat ours. Alerting them — as the media glare of his legislation would do — that they had nothing to fear from U.S. captivity would not just cut off an essential intelligence pipeline but reward their savagery, guaranteeing more of it.

McCain counters that this would be worth enduring for the cumulative benefit we stand to gain from so shining an example of decency. “Our commitment to basic humanitarian values,” he writes, “affects — in part — the willingness of other nations to do the same.” The point, however pleasantly reassuring, is meritless.

Let's leave aside that our treatment of al Qaeda prisoners is actually deferential to the point of self-destructiveness. (Issuing Korans to jihadists known to interpret those scriptures as a command to annihilate us is a dubious strategy for winning over the so-called “Arab street”). How we treat unlawful enemy combatants, as McCain knows, has utterly nothing to do with how we treat, and would treat, the soldiers (i.e., the lawful privileged combatants) of enemy nations who have executed and abide by Geneva. We honor those commitments in Iraq (where violators have been aggressively prosecuted). We honored them in Vietnam, even though we knew our brave fighting men, like McCain, were not reciprocally honored upon capture. And we would honor them in a war against any of the nations McCain is talking about.

With those nations, moreover, intelligence is not of the same premium as it is in a war against a transnational terror network. Other nations can be put in fear of having their territory seized, their regimes overthrown, their economies shredded by sanctions and blockades, etc. You can afford to forego what you might learn from grilling their soldiers. To the contrary, the only weapon you have against terrorists is knowledge of where they might strike next so you can stop them, and knowledge of where they are so you can kill or capture them. With terrorists, intelligence is the whole ballgame.

THE “COERCION DOESN'T WORK” MYTH

McCain also posits a tiresome bromide so easily discredited that no serious person is swayed by it — including McCain himself, as (we shall see) the balance of his essay demonstrates. It is the claim that there is no upside to coercion because its fruits are inherently unreliable. The interrogee, so the claim goes, will tell his tormentor whatever the latter wants to hear, regardless of its truth. Here, McCain harks back to his own torment, during which, instead of identifying members of his flight squadron, he gave the North Vietnamese the names of offensive linemen from the Green Bay Packers.

In point of fact, many strategies for culling information, which we readily accept as staples of competent, everyday intelligence gathering, unavoidably incentivize the informant to tell his inquisitor what he wants to hear. Terrorists and criminals, among many other classes of humans, do not cooperate with government out of a sudden love of America. You have to arrange things so it's in their interest to comply.

For example, accomplice witnesses who would otherwise be looking at long jail terms are inherently suspect when they agree to testify against their confederates in exchange for a reduced sentence. The litigator's professional magpie of expert witnesses is paid handsomely. So are informants for police and intelligence agencies. Defendants — some facing the death penalty if convicted — often take the stand in their own defense, and only after hearing (and thus potentially weaving around) the prosecution's whole case.

Despite the rich opportunity (perhaps even the likelihood) that these scenarios, and others, present for self-interested lying, we do not systematically deny ourselves access to the resulting information. Rather, we trust our ability to hear the information, determine whether it makes internal sense, test how it matches up against other things we know, and factor in the motives to falsify. Sometimes, predictably, the stories turn out to be as bogus as McCain's Packer linemen. Very often, however, some or all of the information turns out to be true, and salient.

Now, are we proud as a society to be extracting information in such heavy-handed ways? No. But when not plunged into the stupefying slough of “torture” rhetoric, we recognize well enough that values don't reside in a vacuum. It's not that we don't revere integrity in our fact-finding processes. There are many times when, as a society, we conclude that it is better not to know something than to engage in disreputable means to learn it. But, when the stakes get high enough, our priority is getting the information. We are willing to accept a degree of unseemliness for the greater good of promoting justice and public safety.

There is, of course, no greater value for government than the security of the governed. Government is not there to teach us morality lessons. Government is there, first and foremost, to protect us. In the struggle against Islamic terrorism, that means getting the intelligence if there is reason to believe a plot is afoot to kill massively.

THE TICKING TIME BOMB

Senator McCain well knows this. That's why the most telling part of his essay is his wholly dissatisfying answer to the so-called ticking-time-bomb scenario. Yes, he admits, “if we capture a terrorist who we have sound reasons to believe possesses specific knowledge of an imminent terrorist attack … an interrogator might well try extreme measures to extract information that could save lives.”

But why, Senator? You just got done telling us such information would be inherently unreliable — aside from its method of extraction somehow causing our own soldiers to be tortured by the same countries that foreswore such abuse when they solemnly signed the Geneva Conventions. Why is it that we “might well” try some rough stuff?

Naturally, we might well do it because it might well work, with the result that we might well be spared thousands of slaughtered innocents.

So what's McCain's answer to the ticking-bomb dilemma? It is: Let's make such “extreme measures” illegal, but in the full expectation that the law would be broken with impunity. As he puts it: “Should [an interrogator engage in coercion,] and thereby save an American city or prevent another 9/11, authorities and the public would surely take this into account when judging his actions and recognize the extremely dire situation which he confronted.” They would opt, in other words, not to prosecute.

This is the same rabbit Yale Law School Dean Harold Koh pulled out of his hat when he couldn't answer the ticking-bomb problem at Attorney General Alberto Gonzales's confirmation hearings. (See here.) It is sleight-of-hand — ducking the hard question in a way that is sure to cause more, rather than less, torture.

On one hand, it conveys the nod-and-a-wink message that the law is not serious: If the circumstances seem grim enough, go ahead and abuse the captive and we're likely to look the other way. It announces that the president, because he wields ultimate prosecutorial authority, is effectively above the law — precisely the notion Congress is supposed to be defeating when it enacts behavioral standards for executive-branch agencies.

On the other hand, it is craven. It leaves the decision whether to violate a foolish proscription that cannot be justified in a crisis to the judgment of a lowly, young interrogator. “Our lives are in your hands, son, so do what you think is right — and, if things work out well, maybe, just maybe, we'll let you slide” — at least if you're lucky enough to have your actions come to light on that rare day when we're feeling feisty enough to face down Amnesty International, Human Rights Watch, the ACLU, the New York Times and that pesky Arab Street.

Most of all, though, McCain's answer is perverse. It would be reprehensible to convert into an illegality something any responsible, good-faith government official would do — viz., try to coerce information from a morally guilty person in a real emergency with thousands of lives on the line. However noble the driving impulse, it would be a law designed to protect the physical comfort of a morally culpable person at the expense of the lives of countless innocent people whose deaths might be avoidable. That's not what we have a government for.

Senator McCain is, justly, an American icon who earnestly wants to minimize torture. That's something we should all want. But the best way to prevent torture is not to bar all forms of coercion, even those that fall well short of torture, with a law that you actually hope no one will pay attention to when the moment of truth arrives.

The best way, the honest, bright-line way, is to acknowledge that there are circumstances in which coercive interrogation would be appropriate; to be forthright about what those circumstances are and the lengths you would be willing to go; to require personal approval by a very high-ranking executive-branch official who would then be accountable; and to prove you mean business by aggressively prosecuting anyone and anything that does not meet the rigorous standards you've taken pains to establish.

That would be a sensible plan, not a nod and a wink. If followed faithfully, it would reduce torture and coercion. And Senator McCain, with the gravitas he brings to this issue, could make it happen. To the contrary, the course he is currently on would imperil us all — no matter how many members of Congress are swayed by the undeniable power of his stature.

— Andrew C. McCarthy, a former federal prosecutor, is a senior fellow at the Foundation for the Defense of Democracies.