Comes now former CIA Agent John Kiriakou to say that: (1) the waterboarding of the previously tight-lipped Abu Zubayda led him to give up Khalid Sheikh Mohammed and otherwise inform the govt about the operations of al Qaeda; (2) the capture of Khalid Sheikh Mohammed and the other use of the info obtained from Zubayda thus saved the lives of persons who otherwise might/would have perished in terrorist attacks; but (3) the U.S. should not engage in further waterboarding going forward because "time has passed, and we're more on our feet in this fight against al Qaeda, and I think it's unnecessary."
How does this all fit together? First, as to conclusion (2), well maybe. If we're speaking in utilitarian terms, it's very hard to know whether more lives were saved as a result of the actionable intelligence obtained from waterboarding Abu Zubayda than will be lost as a result of the additional terrorist attacks to which it could lead. A conservative friend of mine recently said to me, plausibly, that the people who are inspired by their government-controlled media and radical clerics to commit acts of violence against Americans will be so inspired and will commit such acts regardless of how the U.S. actually behaves. To which the answer, I think, is that even granting this point, preventing and foiling terrorist plots requires the assistance of well-informed people around the world who would not become terrorists themselves but whose opinion of the U.S. and its government plays a large role in their willingness to cooperate with us.
Suppose, however, that we grant (2). Suppose, that is, that the waterboarding of Zubayda did save lives. One might still think, on Kantian or even rule-utilitarian grounds, that it was nonetheless wrong, and it's possible to read Kiriakou as saying this. However, his point (3) seems to imply that this is not his view, that is, that the waterboarding of Zubayda was "necessary" because of the lives it would (and he says, did) save, but that waterboarding other captives would be wrong now because it's not necessary. If this is what Kiriakou is saying, then he is making only the morally obvious point that one shouldn't torture people for no good reason. I don't know anybody (who is not a monster) who disagrees.
The morally important question is not whether to torture when it's unnecessary but whether to torture when (one believes) it's necessary to save innocent lives. There is a substantial body of philosophical literature on this question, and though I myself favor a categorical prohibition on torture (including waterboarding) in all circumstances, the argument for a narrow exception in the case of the ticking bomb cannot be easily dismissed. The familiar dodge that torture "doesn't work" is an overstatement. Of course torture doesn't always work, but even if Kiriakou is wrong about it having worked in Zubayda's case, there are historical examples of it working. (See, for example, some of the successful uses of torture by the French in Algeria, as recounted in Alistair Horne's A Savage War of Peace). The problem with revelations like Kiriakou's and the inevitably superficial news coverage of the issue is that what should be a starting point in the public debate about the question "is torture wrong even if it's sometimes effective" ends up becoming an end point.
Posted by Mike Dorf