Mirror of Justice

A blog dedicated to the development of Catholic legal theory.
Affiliated with the Program on Church, State & Society at Notre Dame Law School.

Thursday, April 23, 2009

More from Chris Eberle . . .

This, from Chris:

I'm not sure from Rob's response whether or not we actually disagree on principle.  I articulated a non-consequentialist argument in support of the permissibility of waterboarding KSM-- fairness is distributing harms permits us to waterboard KSM if waterboarding KSM is our only available means to prevent one of his plans from killing innocents.  Rob responds by denying that we will ever be so situated ... or that we cannot ever know that we are so situated, or that we cannot reasonably believe that we are so situated.  There might be effective ways to get info from KSM that don't involve waterboarding.  Waterboarding might not work.  And the like.  I grant that these will often be genuine possibilities.  None of this, however, is responsive.  Surely those who are responsible for protecting the innocent can realistically be circumstanced  such that waterboarding a known terrorist who admits to knowing about future attacks is our only remaining means of acquiring the necessary information (even if unlikely to work). (What possible reason could we have for thinking this to be impossible?) 

So far as I know, we might have been so circumstanced with respect to KSM -- as a last resort, having tried all manner of alternatives, we possessed no realistic way to gather any more information than waterboarding KSM.  Perhaps, perhaps not.  That's why we want information about who knew what, when, and where, which was the initial question.  We should have a impartial and bipartisan analysis of what was done to KSM, what he said, what his statements led to.  Then we'll be in a position to judge whether those who waterboarded KSM actually has reason to waterboard him.


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