Dafydd ap Hugh has devised an interesting little exercise in ethical theory, which –if nothing else– will give all our liberal friends another opportunity to feel morally superior.
You are a CIA station chief in an undisclosed, secret CIA prison in Poland (with Warsaw’s consent). A prisoner is brought to your location, picked up by the Germans in Afghanistan and transferred to U.S. custody six days ago. We’ll call him Mahmoud.
Mahmoud was not previously known to any intelligence agency before his capture (he was not the main target of the raid). He doesn’t appear to be a big fish. But when he was grabbed, he had a laptop with him, and he was in the process of trying to erase the hard drive. Most of the information is irretrievably gone, a little bit remains; and within that remaining little bit, your techies manage to extract references to a huge attack planned for somewhere on the American mainland. From the timeframe discussed, it appears to be one to three months away. You don’t know anything more than that.
You do not know for sure whether Mahmoud has more detailed information about the attack, but he evidently knew enough to try to erase the drive, even at risk of his own life. He has already been interrogated by the Marines and by CIA personnel where you are, but it’s clear he has more information that he’s holding back. The timeframe is tight enough that you must make a decision immediately, but not so tight that there would be no time to act on any information.
So what you know is this:
A major attack is planned somewhere in the continental United States;
Mahmoud may or may not be a major player, but he appears to know something significant about it;
However, he might not know enough to allow authorities to thwart the attack. But on the other hand, he might;
He would not talk under ordinary interrogation. You might be able to break him given time, but every week that passes makes it less likely his intelligence can be used to stop the attack.
We add one more point:
You already have solid evidence that he participated in some attacks on American troops that resulted in fatalities. So if we want to try him later at a military tribunal, we don’t need a confession to convict him; we already have ample forensic evidence.
You ask the DCI whether you can waterboard him; word comes from the White House via the DCI that you are authorized to waterboard Mahmoud, but you must use your own discretion whether you actually do it: You are the only one close enough to the scene to make that call. You get the impression that the president will stand behind you, whatever you decide… but of course, that only applies to this particular president. You don’t know who will be president in 2009.
So the question is, do you order Mahmoud to be waterboarded?
But, are we only allowed to water-board him?