In-my-dreams dep’t: what Holder might have said to Cornyn

All right, Senator, I’ll take your “ticking-bomb” hypo. Let’s imagine that the person who might know where the ticking bomb is happens to be named “John Cornyn.”

Eric Holder did a good job of deflecting Sen. John Cornyn’s attempt to use the “ticking bomb” scenario to get him to endorse torture. Holder politely but firmly rejected the hypothesis that only waterboarding could get information quickly.

Fine. Since Holder has now done four confirmation hearings and I don’t expect ever to do one, I ought to defer to his judgment about what works. And I can add Sen. Cornyn to the list of people I’d like to see tortured to the point of madness: without, of course, ever having his skin broken.

Still, Holder’s answer wasn’t the answer I’d have liked to see him give, because it rejected torture only as unnecessary, not as absolutely immoral. My fantasy answer follows.


Thank you, Senator, for that penetrating question. I should start out by remarking on your skepticism that sleep deprivation and stress positions are torture, or that waterboarding is torture. They are. Ask anyone who’s undergone them. Read Menachem Begin’s memoirs, or Natan Scharansky’s.

And I’d like to say right now, so no one will be in any doubt: Any foreign solider or intelligence agent, or any terrorist, who uses those techniques, or any other torture technique under any euphemism such as “enhanced interrogation,” on an American captive while I’m Attorney General, will be captured, if we have any way of capturing him, tried for war crimes, and imprisoned for the longest sentence we can convince a court to impose. And that’s a promise.

As you have noted, torture is a crime under international law and a felony under our domestic law: a capital crime if the victim dies. The U.S. government has always regarded waterboarding, whether done by Americans to foreign captives or by foreigners to American captives, as torture, and we have tried and punished the perpetrators.

So frankly, Senator, I am shocked that you would ask me, as the nominee to be Attorney General, whether there are circumstances under which I would commit a war crime and a felony. Of course there are not. As long as I am Attorney General, the Justice Department will obey the law.

But now back to your very interesting hypothetical. Let me extend it just a little bit to show how hairy it can get. In your hypo, you imagine it to be certain that the captive has information that could prevent the detonation of weapon of mass destruction on U.S. soil. But of course no one ever knows for certain that a particular captive has a particular piece of information, that he will give it up if tortured, and that he will not give it up if interrogated without torture. I don’t see the point in answering a hypothetical set in an alternative universe; I prefer to stick to the real world.

In the real world, there might be a situation where we have captured someone we think knows the location of a “ticking bomb.” If I were to follow the logic of your question, and agree that it was worth torturing someone to prevent 1,000 deaths, then I guess I’d have to agree also that it was worth torturing that person for a 10% chance of preventing 10,000 deaths,or a 1% chance of preventing 100,000 deaths. You see how tricky this gets.

So to give it specificity, let me imagine that the person involved is, let’s just say, Sen. John Cornyn. Someone — it might be one of your political enemies, Sen. Cornyn, since I know your rock-like integrity has earned you many of them, or some criminal whose brother was executed as a result of a prosecution brought when you were Attorney General of Texas, or it might be a terrorist group aware of your firm commitment to the War on Terror — has carefully planted evidence suggesting that you have knowledge about where a nuclear device has been concealed, and that you are being blackmailed not to reveal it.

The whole thing seems wildly unlikely, of course, but it’s not completely impossible. If a high-level FBI agent and devout Christian with impeccable anti-Communist credentials could turn out to be a Soviet spy, as Robert Hanssen did, then I’d have to think, in the situation you have asked me to imagine, that it’s not inconceivable that a U.S. Senator could have somehow been trapped into working for a terrorist group, perhaps through pressure put on one of your loved ones. In my version of your hypothetical, your enemies have been very skillful about it: the case has what seem to be several independent sources of corroboration, though they’re all planted by the same organization. And the bomb is supposed to go off within hours; there’s no time to check any further.

So I have to decide whether to put you on the waterboard or not.

I know perfectly well that the waterboard will get you to say anything: that within a minute, or five minutes, or if your physical endurance and courage are truly extraordinary a quarter of an hour, you will be willing to spit on the American flag, use a photograph of one your daughters as toilet paper, and proclaim that there is no God but Allah and Mohammad is His prophet: anything to avoid being, again, partially drowned.

Now if it’s really true that you know where the ticking bomb is, maybe you’ll tell us (or maybe you’ll send us on a wild-goose chase that will make it more likely, rather than less, that the bomb will detonate before we can find it and disable it). And if it’s not true, then I will have ordered you reduced to a level no human being should ever experience, a level where you would have sex with a goat or bite the head off a live chicken or betray your best friend or plead for me to do it to your wife instead of you, anything, anything, anything! to make it stop: and I will have done all that, committed a felony and left your mind permanently damaged, for nothing.

So there’s your hypothetical, Senator: To bring about some unknowable reduction in the risk of having a WMD detonated in this country, would I be prepared to order that done to John Cornyn? And I think you’ll be relieved to know, Senator, that the answer is a firm and unequivocal “No.” Or make that, “Hell, no!”

If this honorable Committee insists on having an Attorney General who is prepared to do that to you, or to someone else, even hypothetically, then you should not vote to confirm me. Because if you do confirm me, I will obey the law. And the law of the United States of America forbids torture. No ifs. No ands. No buts.

Author: Mark Kleiman

Professor of Public Policy at the NYU Marron Institute for Urban Management and editor of the Journal of Drug Policy Analysis. Teaches about the methods of policy analysis about drug abuse control and crime control policy, working out the implications of two principles: that swift and certain sanctions don't have to be severe to be effective, and that well-designed threats usually don't have to be carried out. Books: Drugs and Drug Policy: What Everyone Needs to Know (with Jonathan Caulkins and Angela Hawken) When Brute Force Fails: How to Have Less Crime and Less Punishment (Princeton, 2009; named one of the "books of the year" by The Economist Against Excess: Drug Policy for Results (Basic, 1993) Marijuana: Costs of Abuse, Costs of Control (Greenwood, 1989) UCLA Homepage Curriculum Vitae Contact: