The following is a comment on Mike Rulle's essay "Torture": Bringing it All Back Home published on Mike's blog, Law of the Bad Premise.
I commend you for venturing a justification for "waterboarding" that does not rely on the usual argument that it is at worst a necessary evil - something that successfully elicits critical information, not otherwise obtainable, from those seeking to do us harm. I happen not to believe the premise, but the fact of the matter is that the debate over whether waterboarding "works" has too obscured the underlying moral issues.
Is "Waterboarding" Illegal Under Existing Law?
Before I venture a view on whether waterboarding "should be" legal, it is relevant to discuss whether it currently is legal, because those who hold public office have an obligation to uphold the law as it is, not as they believe it should be. Debating whether waterboarding is "torture" may be an "intellectual punt" when discussing the morality of the practice, but from a legal perspective it is, of course, the very essence of the question. It is a shorthand way of asking whether the practice known as waterboarding falls within the technical definition of "torture" for purposes of treaties and domestic legislation that proscribe and punish torture. If waterboarding does not constitute torture, as the treaties and legislation define it, then the Administration certainly may (and in my view should) take into account the morality of the technique in deciding whether the United States should or should not engage in it. But if waterboarding does meet the definition of torture, then two consequences necessarily follow. First, the Administration should not authorize it and no agency of the U.S. should engage in it. Second, if it happens. the Administration has an obligation to prosecute those who ordered or perpetrated it. For practical purposes, any remaining debate on the topic basically boils down to a question of whether or not we expect our elected officials to follow the law, even if they don't agree with it.
The United States is one of 146 countries that have ratified the UN Convention Against Torture. I mention this because it is unusual for 146 countries to agree on anything, and the mere existence of the Convention suggests a broad, even overwhelming, acceptance of the moral values from which it derives. As relevant to this discussion, the Convention defines "torture" as "any act by which severe pain or suffering, whether physical or mental is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession." Signatory States are prohibited from engaging in torture, are required to enact domestic legislation making torture a criminal offense and have an affirmative obligation to prosecute those who have authorized or perpetrated it. The U.S. has enacted legislation (codified in Chapter 113C of Title 18 of the U.S. Code) that incorporates the general definition of torture found in the U.N. Convention and elaborates on the meaning of "severe mental pain or suffering". Persons responsible for authorizing torture may be charged as conspirators. The anti-torture statute applies to torture committed outside the United States, though torture committed within our boarders is prosecutable under a variety of re-existing criminal statutes.
My view (and that of others, such John McCain, whose views on the subject deserve infinitely more respect than mine) is that waterboarding is "torture" for purposes of the U.N. Convention and U.S. law. At the very least, there is in my opinion sufficient evidence to make out a prima facie case against those directly and immediately involved in the waterboarding of terrorist suspects, and a further investigation is warranted to determine who else is implicated. Anecdotal evidence and press reports suggest the trail of evidence reaches high into the chain of command. But these issues should properly be decided by courts of law, not by politicians based upon what seems politically expedient at the time - but I return to that later.
Is Waterboarding Moral and Should it be Legal?
I therefore suggest that opposition to waterboarding is not, as you posit, "inconsistent, incoherent and immoral". It is merely an affirmation of the rule of law. But (to address the broader question) I also believe it and any other form of torture should be illegal, and I therefore turn to your argument that waterboarding and similar techniques are justified in part because they are "consistent with war's purpose".
I think the problem with this analysis is threefold. First, the definition of "war" is becoming increasingly illusive. We have had traditional wars between Nation States, such as the Great War and World War Two, metaphorical wars, such as the "War on Want", law enforcement actions, such as the "War on Drugs", and more recently the "War on Terror" which is none of the above but has elements of all three. Torture does not become an accepted practice simply because it takes place against a backdrop of something we refer to as a "war". We don't, for example, torture drug traffickers in order to get information about the whereabouts of the kingpin. One could argue that justifying torture as being consistent with war's purpose is as much of an intellectual punt as stating that waterboarding is immoral if its constitutes torture. It simply asks the question in a different form.
Second, even if we confine the analysis to a "traditional" conflict (you cite WWII), "war" does not have a purpose per se. Its purpose depends on the circumstances of the conflict, and any given conflict will generally have different purposes for the opposing parties. Some purposes may be moral and legal, others will not. So justifying the morality of torture based on the purpose of war begs the question of whether the war in question is moral. Surely torture cannot be justified as moral and/or legal because it is consistent with the purposes of war, if the war itself is immoral and/or illegal? But if not, doesn't this leads to the anomalous result that the "good guys" may use torture, whereas the "bad guys" may not.
Third, and perhaps most important in the context of the current discussion, the "war's purpose" analysis invites exactly the type of "expediency" argument you are seek at the outset to avoid. Your premise that "it is impossible to not waterboard [a suspected terrorist] if we believe it will give us the best chance to get information to prevent hostages from being killed" implies that the practice should be legal - provided we think it will work.
Among nation states, war is an accepted instrument (perhaps the ultimate instrument) of foreign policy. As such, it has for centuries been governed by standards that derive from generally accepted norms of morality, which evolve with time. The Geneva Convention is merely the latest embodiment of these standards. Countries are not free to dispense with those minimum standards of morality simply because they are at war and wars kill people. The bombing of civilian populations during WWII by both the Allies and Germans does raise troubling issues. I think it is fair to say, however, that the practice offended the "rules of war" as they then existed. Perhaps this was simply because the technology of aerial bombardment had evolved more quickly than the rules of war, and I would venture to suggest that, by contemporary standards, bombing of civilian populations, and the use of weapons that cause an unnecessary degree of what we euphemistically refer to as "collateral damage", do offend fundamental moral values and are illegal under international law. In any event, the bombing of London, Coventry, Dresden, Hamburg, Hiroshima, Nagasaki, et al during WWII does not in my view justify the use of torture half a century later. Neither does the fact that, as you point out, we also kill criminals from time to time in the course of enforcing the law. The essence of the moral argument against torture is not the fact that it causes death - indeed, the skilled torturer always seeks to keep his victim alive to suffer another day - but rather the extraordinary degree of physical and/or mental pain it entails. To use your "criminals" analogy, criminals may only be lawfully executed if the mode of execution is not "cruel and unusual", and the police may not use torture to extract confessions from suspects.
Everyone can form his or her own views on the morality of waterboarding and whether or not it should be legal, but there is nothing inconsistent or immoral in opposing it. (I'd also like to believe the views I've outlined aren't incoherent, but I'll leave that for others to decide.)
Tortured Logic
As we like to say, ours is a government of laws not of men. This means that Presidents cannot decide for themselves what is a crime and what is not, that crimes should be prosecuted if there is a case to answer, and that no man is above the law. To judge from recent statements, this seems to have been lost on both the Bush and Obama Administrations (though for different reasons) in their handling of the "enhanced interrogation techniques" issue.
Responding recently to a question about whether waterboarding is torture, Condoleezza Rice recently made the astonishing assertion that "by definition, if it was authorized by the president, it did not violate our obligations under the Convention Against Torture." In other words, she apparently believes that George W. Bush had the unilateral right to decide what was and was not a crime. MSNBC et al were quick to draw comparisons to Richard Nixon, and I won't belabor the analogy. I only hope that Rice misspoke and she doesn't really believe what she actually said.
For his part, Barack Obama has apparently concluded that waterboarding is illegal under U.S. law, but that we should nonetheless not prosecute anyone involved because, in his view, we should only look "forward". I'm sure many people who violate criminal statutes would wholeheartedly endorse his approach. However, politicians, even Mr. Obama, are not free to pick and chose which laws they follow and which they don't. If Obama believes that waterboarding is torture he is required to ensure that those who perpetrated it are prosecuted.
Of course the reality is that Bush, Cheney, Rice, Gonzalez et al are not going to be facing trial for torture any time soon (though if they have plans for a vacation in Spain they may want to re-think the itinerary) (see http://www.guardian.co.uk/world/2009/apr/29/spain-court-guantanamo-detainees-torture). But we need to have an impartial judicial investigation into what happened. If this reveals that crimes may have committed, Obama has the constitutional authority, should he chose to use it, to grant clemency or issue pardons to those involved (again, the example of Richard Nixon comes to mind). He does not have the constitutional authority simply to sweep illegality under the mat because he is afraid of the political fallout. The handling of this case will show whether Obama's professed desire to set a high moral tone for the rest of the world is anything more than empty campaign rhetoric. Don't hold your breath.
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