Cornyn’s Absurd Hypothetical For Holder: What If Waterboarding Were Your Only Interrogation Option?

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"Cornyn’s Absurd Hypothetical For Holder: What If Waterboarding Were Your Only Interrogation Option?"

During his confirmation hearing today, Attorey General nominee Eric Holder unequivocally rejected torture. “No one is above the law,” Holder said repeatedly during the hearing.

Sen. John Cornyn (R-TX) could not fathom that an Attorney General would reject a practice that both is unlawful and endangers Americans. He tried to get Holder to back off his anti-torture stance by presenting an absurd “ticking time bomb” hypothetical in which thousands of American lives are at stake. “You would still refuse to condone aggressive interrogation techniques?” Cornyn asked. When Holder replied that waterboarding is not the only interrogation method, Cornyn insisted, “Assume that it was”:

HOLDER: I think your hypothetical assumes a premise that I’m not willing to concede.

CORNYN: I know you don’t like my hypothetical.

HOLDER: No, the hypothetical’s fine; the premise that underlies it I’m not willing to accept, and that is that waterboarding is the only way that I could get that information from those people.

CORNYN: Assume that it was.

HOLDER: [Laughs] Given the knowledge that I have about other techniques and what I’ve heard from retired admirals and generals and FBI agents, there are other ways in a timely fashion that you can get information out of people that is accurate and will produce useable intelligence. And so it’s hard for me to accept or to answer your hypothetical without accepting your premise. And in fact, I don’t think I can do that.

Watch it:

A few minutes later, Sen. Dick Durbin (D-IL) identified where Cornyn most likely thought up his torture-is-the-only-option scenario: “I understand Senator Cornyn’s questions. They are questions that anyone who watches Jack Bauer on ’24’ would ask.”

Intelligence officials have repeatedly rejected the idea of a ticking time bomb scenario. Jack Cloonan, who spent 25 years as an FBI special agent and interrogated members of al Qaeda, said that he has “been hard pressed to find a situation where anybody” can say “that they’ve ever encountered the ticking bomb scenario” when interrogating terrorists. He said it is a “red herring” and “[i]n the real world it doesn’t happen.”

One law professor, who has extensively researched interrogation, said she had heard of only one ticking time bomb scenario. “It’s on the show ’24.’ And that’s the only one I know of.”

Transcript:

CORNYN: I wanna just ask you a hypothetical. Earlier, you condemned the use of waterboarding. But you’re familiar with the ticking time bomb scenario, and I just wanna pose a hypothetical for you. Let’s say as Attorney General you find out that there are terrorists that have access to chemical, biological, or nuclear weapons, and that you have a detainee who’s in possession of information that, if disclosed, would prevent those weapons from being detonated in the United States and thousands, maybe tens of thousands people being killed. You would still refuse to condone aggressive interrogation techniques like waterboarding to get that information, which would, under my hypothetical, save perhaps tens of thousands of lives.

HOLDER: Well, I think there are a couple of ways in which I’d look at that. One, I would not assume that because I say waterboarding should not be done that that’s the only tool, the only mechanism, that we have in our arsenal to try to get that information from that person as quickly as we could. I also think I’m not at all certain that waterboarding somebody, torturing somebody – whatever technique you want to use – is necessarily going to produce the results that we want. What I’ve heard from the experts is that people will say almost anything to avoid torture. They will give you whatever information they think you want to hear. And so, I’m not at all certain that given the time sensitivity that I assume we have in your hypothetical, that waterboarding that person would necessarily give us the result that we want. And I think we also have to understand that we have other things in our arsenal that we could use – other techniques that we could use that would, I think, perhaps the result that we want.

CORNYN: Well, of course, torture’s illegal under international treaties and under domestic laws, and I’ve heard people talk about torture in expansive ways, where things like sleep deprivation, other techniques that maybe you would employ as an alternative are considered torture to them as well. But under my hypothetical, if that were the only thing standing between you and deaths of tens of thousands of Americans, you would decline to use that interrogation technique in order to save those lives. Is that correct?

HOLDER: Again, I think your hypothetical assumes a premise that I’m not willing to concede.

CORNYN: I know you don’t like my hypothetical.

HOLDER: No, the hypothetical’s fine; the premise that underlies it I’m not willing to accept, and that is that waterboarding is the only way that I could get that information from those people.

CORNYN: Assume that it was.

HOLDER: [Laughs] Given the knowledge that I have about other techniques and what I’ve heard from retired admirals and generals and FBI agents, there are other ways in a timely fashion that you can get information out of people that is accurate and will produce useable intelligence. And so it’s hard for me to accept or to answer your hypothetical without accepting your premise. And in fact, I don’t think I can do that.

[…]

DURBIN: I listened to your opening statement and in three words, in three words, the world changed as far as I’m concerned, because you stated without hesitation that waterboarding is torture. I can’t tell you how many times Senator Whitehouse and I asked that of the current Attorney General and we could never, ever get a straight declarative sentence. I think it’s important — important for our country, important for our position in the world. And I understand Senator Cornyn’s questions. They are questions that anyone who watches Jack Bauer on “24” would ask. And most Americans do, I have. But it’s a different scenario, and when we’re going to draw up values and principles and laws, we have to really be cognizant of the fact that you can always construct the scenario that will challenge the foundation of any legal principle. And I think it’s far better for us to stand by standards that have guided our nation for generations and return to them now with this new administration.

Update

Cornyn’s question was reminiscent of a question asked by Fox News’ Brit Hume during a Republican presidential primary debate. Hume spelled out a complicated hypothetical — in which shopping centers have been hit by suicide bombers and a suspect rests in custody — to press the candidates on whether they would torture. All but Sen. John McCain (R-AZ) suggested they would.

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