In the wee hours of Christmas morning (and I mean EARLY - Santa had not yet come to deliver me all the material possessions I desire, but do not need) a man attempted to detonate an explosive on a flight landing at the Detroit airport. Aside from my initial snarky reaction as a Detroit-area resident ("You mean there's something worth attacking in Detroit?"), I wondered how this would alter the discourse surrounding the use of torture and suspension of basic Constitutional rights during the Bush years. It is, of course, one thing to condemn these things during a time of apparent safety; it is another thing altogether to have the political and moral fortitude to do it immediately following another attack on U.S. soil.

So I was not surprised to learn that Rudy Giuliani was upset that the Failed Terrorist, as we will now call him, was allowed to speak to a lawyer after he was detained. As Giuliani put it, "[h]e was talking until he went out and got him a lawyer. You want to talk to this guy for a month. You want to keep him for a month or two to get you the intelligence he is going to give you." This apparently means denying an individual arrested in the United States the opportunity to get legal counsel, in direct violation of the Constitution.  What Giuliani is saying, essentially, is, "HEY GUYS! DID YOU KNOW THE CONSTITUTION IS JUST A BUNCH OF SUGGESTIONS?"

It doesn't end there - a Rasmussen Reports telephone survey found that 58% of "U.S. voters" believe that waterboarding and "other aggressive interrogation techniques" should be used on the Failed Terrorist to gather information.  While I question the ability of any telephone poll to really tell me what U.S. voters are thinking, this is still a disappointing and frightening finding.

Further, Jonah Goldberg, conservative columnist, favorably quoted a reader's comment that suggested that "enhanced interrogation techniques" used on detainees aren't really that big a deal after all, because "the average American college student"  is also sleep deprived, and, though detainees will be "startled by loud noises" and "have water splashed in their faces", "no harm will come to them." Described this way, these interrogation techniques seem like no big deal - especially not to us. No matter how long an average college student stays awake, we probably stay awake longer because of all the reading, research, and random legal extracurriculars we all participate in. But, my dear "average" law school students, have you ever stayed awake for 20 hours a day for 48 out of 54 consecutive days (that adds up to 960 hours, for those of you playing along at home)? Did you ever decide that the best way to stay awake to finish that pesky memo was to have someone play loud music continuously, force you to remain standing for hours, or physically wake you up if you did indeed fall asleep? No? Cause I haven't. I like my sleep. It's crucial to maintain physical and mental health. Even the Supreme Court thought it was important in Ashcraft v. Tennessee (1944) when they ruled that a confession was inadmissible because the suspect had been interrogated for 36 hours straight. And that water splashing? That would be waterboarding - the same technique that Eric Holder decried as torture in January 2009.

The problem with encouraging suspension of Constitutional rights and application of torture methods to detainees extends further than just the obvious human rights implications. It is a stunningly short-sighted view of what it will take to keep Americans safe, and is, ultimately, a vicious cycle. Though the suspension of basic human rights may be (arguably) justified by the pressing need to prevent future attacks on American soil, and though torture may elict a "confession" from a suspect, the confession should be viewed with extreme skepticism, as the case of Fouad al-Rabiah demonstrates.

Recently, Judge Colleen Kollar-Kotelly of the D.C. District Court ordered the release of al-Rabiah, a prisoner held at Guantanamo. The ruling, which can be found online, contains a chilling account of the U.S. government's efforts to extract a confession from a man who, according to the court and, to some extent the interrogators themselves, was totally innocent. The interrogators used "enhanced interrogation techniques", including sleep deprivation, until al-Rabiah produced a confession that not even the interrogators believed. In fact, shortly after al-Rabiah's arrival at Guantanamo, an interrogator told him, "There is nothing against you. But there is no innocent person here. So, you should confess to something so you can be charged and sentenced and serve your sentence and then go back to your family and country, because you will not leave this place innocent." And then, unbelievably, the U.S. government chose to prosecute al-Rabiah based on confessions that they themselves believed to be false. It's pretty undeniable that all the time spent with al-Rabiah could have been better spent finding out about actual threats to the United States.

It's fortunate that in that case there was so much evidence to prove al-Rabiah's innocence. But if someone questions the use of torture as a tactic of interrogation, one can simply point to all the instances where it did generate a confession as justification for its use - and if the record is scant, there will be no way to prove that the confession was a lie. So was the Failed Terrorist a terrorist? Undoubtedly. Should he be tried, convicted, and punished to the fullest extent of the law? Of course. But should we sacrifice our Constitution, our morals, and our commitment to human rights and civil liberties on the altar of "national security"? Uh, no. We probably shouldn't do that. Ever.