Former President George W. Bush commented recently: “Yeah, we water-boarded Khalid Sheikh Mohammed,” adding, “I’d do it again to save lives.” Much has already been said about the fact that KSM was waterboarded 183 times, and whether this constitutes a war crime warranting prosecution. Bush’s comment certainly reopens that issue, but I want to focus on what it means to say regarding torture, that “I’d do it again to save lives.”
One response is to contest the factual assumption of the claim—that torture of KSM actually saved lives. David Luban’s analysis of the claim, for example, suggests that it is highly doubtful. But let’s assume that there is some factual basis for the claim that torture of KSM saved lives. But let’s also agree on the consensus that waterboarding constitutes torture, as Attorney General Holder has made clear. I want to comment on two further aspects of Former President Bush’s statement regarding necessity and the social imaginary.
What principle might justify Bush’s claim? Can we reconstruct Bush’s enthymeme? Begin with the general principle that the President has a textually explicit duty through the Oath Clause to preserve and protect the Constitution, as well as an implied duty to protect the American people. We can say that saving lives against security threats is a constitutional duty. It is also clear that members of international terrorist organizations pose a threat to American lives. Assuming that waterboarding is an effective technique, then waterboarding members of such terrorist organizations like KSM protects American lives. According to this argument, the duty to protect American lives leads to the necessity of waterboarding.
But is this duty to be pursued by any means necessary? Are there limits to the means by which the President can pursue the goal of protecting the American people?
Surely there are, and they are easily identifiable as limits imposed by law. Torture is illegal, and thus, it would seem to be an unavailable means. So why would Bush not only authorize the torture KSM, but announce in advance his intent to do it again in the future? The first response might be to claim that in pursuit of his constitutional duty, no other legal limits apply to restrict executive action. This is the principle articulated by Former President Nixon to David Frost: “when the President does it, that means that it is not illegal.” No one can doubt the importance of saving lives, and therefore the President acts appropriately in pursuing that goal, no matter the means. I doubt that any reflective person actually believes this latter claim (no matter the means). We can easily construct a hypothetical case to demonstrate that the means matters. So if there is some limit to necessity, why then does it not apply in the case of torturing KSM, or a future KSM? I leave this question unanswered (for now) to pursue a related question about the scope of the principle (more on necessity here).
What is the scope of the President’s obligation to act to save lives? Does it only apply when it derives from an imputed constitutional duty? When Congress passes laws that direct the executive to protect lives through safety regulations, the President has an obligation to save lives. If safety regulations increase costs to business, then the President has an obligation to impose costs on businesses in order to save lives. After all, saving lives is an overriding priority. Nonetheless, we never heard President Bush using muscular rhetoric about the need to save lives through robust enforcement of safety regulations of businesses. There are many ways government intervention could save lives, from food safety, to workplace safety, to public transportation policy, etc., yet we do not hear the former President proclaiming that yes he cracked down on businesses, increasing their costs, and that he’d do it again to save lives. Both means of saving lives require government action. Here’s the puzzle: why do we inherit a presidential legacy of prioritizing claims to save lives against threats of terrorism, but no such legacy of prioritizing saving lives through the regulatory state? Why is a life lost to a mining accident or an oil-rig explosion, in part through the lack of regulatory oversight as directed by Congress, conceptualized differently than a life lost to a suicide bomber? Against the suicide bomber the imperative to save lives apparently justifies breaking laws by torturing, but against the profligate mine operator or the unsafe oil-rig operator the injunction to save lives does not even warrant enforcing existing laws to their fullest extent. Why the asymmetry? It is beyond the scope if my comments here to develop the argument, but let me say that I don’t think that any distinction between active harm (the suicide bomber) and passive harm (failure to operate a safe mine) will do the justificatory work that might leap to mind as a possible way of explaining the asymmetry. Instead, my suggestion is that the asymmetry exists because the imperative to “save lives” does no real analytic work in the President’s statement.
The imperative to save lives functions in the social imaginary as part of complex narrative of American identity. Innocent lives are to be saved, we tell ourselves, except when we forget to do so. In what we can describe as tragic choices, we fail to save lives all the time because of resource and regulatory allocations. Despite our best intentions to save lives, we sometimes fail to recognize the effects of our choices. But terrorists are different. Their very purpose is to do us harm. Theirs is not the (unrecognized) harmful effect of an otherwise proper pursuit of the good life. Because of the terrorists’ evil intent, the ticking-bomb hypothetical plays an important role in this imaginary, and is never far from the imagination when Bush delivers remarks about waterboarding and saving lives. Waterboarding is justified because KSM has knowledge that will lead directly to saving lives much as the hypothetical bomber has information that will save Manhattan. Although the real-world situation of KSM is vastly different than the imagined ticking-bomber, the hypothetical circulates in our imaginations to give credence to the real-world torture. The torture functions in an “us” versus “them” narrative where “we” need to know what they know, “they” have no right to withhold it, and a “dunk in the water” is an available means of forcing disclosure. Waterboarding KSM is thus no longer about a utilitarian calculus of saving Manhattan (no such event was at stake), but is about preserving the means of exercising presidential power to act in the face of legal limitations, only loosely connected to a calculus of saving lives. The social imaginary needs the claim to save lives because an unaccompanied claim about presidential prerogative to act in contravention to law fails to inspire the unarticulated and inchoate sense of American identity. The President may not always act to save lives where possible, but when he does act, even in violation of domestic and international law, saving lives works well with a commonly held value. Whatever the imagined limit to the means we may choose to save lives turns out to be, torturing someone like KSM falls within that inchoate and unarticulated limit. If I’m right, then the limits to presidential power to protect the American people depend in part on the social imaginary—what we are willing to accept as official practices in light of common (and conflicted) values we may hold. If the limits were determined by law alone, I do not think that we could make sense of the fierce debate over whether to prosecute Bush officials (and now apparently Bush himself) for violations of law in torturing KSM (and al Qahtani and others).
The President preserves the prerogative to save lives—or not—at his discretion. He may rigorously enforce safety provisions against businesses, or allow self-regulation. He may violate international and domestic law by torturing KSM, or he could employ alternative means. These are prerogative choices, not absolute imperatives, under the Bush principle of “saving lives.” So here’s my suggestion. The claim that he would torture again, despite the widespread and historically significant condemnation of torture (U.S. courts have declared that “the torturer has become . . . an enemy of all mankind”), is not about saving lives. It’s about preserving power.