The conversation involved the following scenario/question: should the government be able to search the homes of an entire neighborhood if they had reason to believe that a terrorist was planning to detonate some sort of explosive but they did not know the precise location?  Our professor explained that this pits public safety against principles of due process and our basic constitutional values.  After several comments, some in the class seemed to draw the conclusion that such conduct by the government represents nothing less than an Orwellian police state; a state where people live in fear of the government, have no sense of security or privacy in their persons, and thus reshape the way in which they live their lives in order to survive in such a climate.

The thought of government searching its citizens’ homes without constraint is indeed problematic.  And there are few things scarier to me than an Orwellian police state.  But the jump from the facts of the hypothetical to an Orwellian police state is an enormous one and many seemed to miss an important distinction.  Police states, as I understand them, are themselves spawned out of fear.  They are created because the government lacks any real legitimacy and the only way for the government to endure is to constrain its citizens in such a way that they do not constitute a threat to the regime.  Thus, police states are essentially at war with their own people and their actions are tailored to protecting the regime itself.

Conversely, the hypothetical suggests that the state would not be searching its citizens’ homes in order to protect itself, but rather to protect its people.  To me, the motive of the state is the central inquiry.  Protecting the lives of its citizens who are under a serious threat from an immediate terrorist attack is, generally speaking, a more worthy justification for any government action.  That’s not to say that any action by the government is necessarily justified under such circumstances, but it’s further along on the legitimate/illegitimate continuum than, say, searching peoples’ homes in order to find and seize pamphlets criticizing the state.

Officials who work on the Guantánamo issue say administration lawyers have become concerned that they would face significant obstacles to trying some terrorism suspects in federal courts. Judges might make it difficult to prosecute detainees who were subjected to brutal treatment or for prosecutors to use hearsay evidence gathered by intelligence agencies.

The Obama administration will certainly strive to provide more legal protections than the commissions did under the Bush administration.  But, to me, the point is clear.  There are certain talking points that resonate with people when a candidate is in opposition.  A candidate prevails by identifying a common thread in a large portion of the populace and tapping into it to win votes.  But when the candidate becomes the President and the  repercussions of policy choice fall squarely on the new administration, things take on a new context.

President Obama criticized the use of military commissions as a candidate and made the prosecution of suspected terrorists in either civilian courts or courts-martial part of his platform.  Now, with the challenge on his shoulders, the President is beginning to see the utility in the policies he previously criticized.  As one official put it: “The more they look at it, the more commissions don’t look as bad as they did on January 20th.”

This is in no way meant to pick on the Obama administration.  I would much rather the President change his position for the better than stick to a problematic policy.  But it’s interesting to notice how the idealism of a campaign morphs into the pragmatism of a presidency.

In response, Dick Cheney had this to say in a television interview:

One of the things that I find a little bit disturbing about this recent disclosure (approved by Obama) is they put out the legal memos, the memos that the CIA got from the Office of Legal Counsel, but they didn’t put out the memos that showed the success of the effort. And there are reports that show specifically what we gained as a result of this activity. They have not been declassified. I formally asked that they be declassified now. I haven’t announced this up until now, I haven’t talked about it, but I know specifically of reports that I read, that I saw that lay out what we learned through the interrogation process and what the consequences were for the country.

A few points about this.  First, all the memos should be released in order for the public to truly understand and appreciate the decisions that were made.  Regardless of where one stands, we certainly have an interest in seeing the whole picture.  Second, waterboarding does seem less problematic if it in fact worked; that is, if it prevented something concrete.  It seems that many fair-minded Americans would agree that if waterboarding three senior al-Qaeda operatives prevented an attack on American civilians, so be it.  Of course, reasonable minds can differ on this issue.

However, this leads to my third point.  Whether such policies were actually successful in preventing another attack misses the argument that many of those that are against waterbroading preach.  That argument was summed up yesterday by President Obama at C.I.A. headquarters:

What makes the United States special and what makes [the C.I.A.] special is precisely the fact that we are willing to uphold our values and our ideals even when it’s hard, not just when it’s easy, even when we are afraid and under threat, not just when its expedient to do so.  So yes, you’ve got a harder job and so do I, and that’s okay.

To me, this quote demonstrates that even President Obama himself believes that these procedures work.  He recognizes that not having them in the C.I.A.’s arsenal will make America’s job of preventing another attack harder.  Yet, this is the precise bargain that the President is willing to make.  To him, the issue is not whether these procedures work, but rather whether we should be implementing these tactics even though they work.

While I appreciate this argument, I have trouble conceiving a value more important for an administration than protecting its people from attacks.  This is the fundamental responsibility of government.  In fact, it’s the reason we enter into organized society via the social compact and leave behind our brutish natural state.  If government fails in this objective, it loses much of its legitimacy.

Another oft-cited argument is that evidence of waterboarding by the United States is a recruitment tool for terrorists.  The more the United States engages in this sort of thing, the more terrorists it creates, or so the argument goes.  It might be true that evidence of torture causes an influx in those willing to take up arms against the US.  But I can’t imagine it being that significant of an influx.  If evidence of waterboarding makes someone a terrorist, chances are they were pretty much there already.  After all, the tactic was used on three people and not administered at-will to every inmate at Guantanamo Bay.  This was a targeted campaign directed at those with the most information – three senior al-Quaeda operatives – for the purpose of preventing attacks on American civilians.  One of them was the self-confessed decapitator of Daniel Pearl, Khalid Sheik Mohammed.  One might disagree with waterboarding, but, considering all of this, I can’t imagine it being so shocking and so infuriating as to turn a house-wife into a suicide bomber.

I don’t know.  All I can say is that if I were president of the United States and I had serious reason to believe that one of three senior al-Quaeda operatives had information that could lead to stopping an attack on, say, the Brooklyn Bridge, I just might have the guy waterboarded.