... the institution at the center of the controversy about torture -- the Justice Department's Office of Legal Counsel. From it came the so-called "torture memos" arguing the legality of certain "enhanced interrogation" techniques.
The OLC provides opinions about what is and is not lawful government behavior. By not quickly quashing talk about prosecutions of the authors of the memos -- or, by inference, higher officials who acted on the basis of those memos -- the president has compromised the OLC's usefulness: If its judgments can be criminalized by the next administration, the OLC can no longer be considered a bulwark of the rule of law.
On the other hand, four things are clear. First, torture is illegal. Second, if an enemy used some of the "enhanced interrogation" techniques against any American, most Americans would call that torture. Third, that does not mean that the memos defending the legality of those techniques were indefensible, let alone criminal, because: Fourth, the president might be mistaken in saying that there is no difficult choice because coercive interrogation techniques are ineffective.
A congressional panel, or one akin to the Sept. 11 commission, should discover what former CIA director George Tenet meant when he said: "I know that this program has saved lives. I know we've disrupted plots." And what former national intelligence director Mike McConnell meant when he said: "We have people walking around in this country that are alive today because this process happened."
House Speaker Nancy Pelosi, who was frequently briefed as a member of the intelligence committee, could usefully answer the question: What did you know and when did you know it? She regularly conquered reticence about her disapproval of the Bush administration. Why not about the interrogation methods?
Furthermore, four of the president's 15 Cabinet members are former members of Congress, as are the president, vice president and White House chief of staff. So seven of the administration's 18 most senior figures might usefully answer those questions, and this one: What did you do about what you knew?
Much of this is right, but not the part about when and under what circumstances "the OLC can no longer be considered a bulwark of the rule of law." This blog feels that the OLC sacrificed its right to that designation by trying, under the previous administration, to justify the unjustifiable torturing of enemy combatants: terrorists who might (or might not) cough up information about al Qaeda's plans for future mischief.
Calling waterboardings (simulated drownings) "enhanced interrogation techniques" rather than "torture" was a transparent attempt to obfuscate the truth. Admittedly, it was done by patriots for understandable reasons: to provide cover for other patriots, namely CIA operatives trying to protect American lives from further 9/11-type terrorist acts. It was still wrong.
As Mr. Will says, "First, torture is illegal. Second, if an enemy used some of the 'enhanced interrogation' techniques against any American, most Americans would call that torture."
Agreed. So it was still "torture" when we did it to our enemies.
Yet Mr. Will, in his third point, insists that "that does not mean that the memos defending the legality of those techniques were indefensible, let alone criminal." His rationale here is embodied in his fourth point, which I find a bit "tortured" in its verbal expression. By "the president [Obama] might be mistaken in saying that there is no difficult choice because coercive interrogation techniques are ineffective," I assume Mr. Will means: interrogation under extreme duress just might produce reliable and useful information. That is, what the victims of torture say to their tormentors might actually be reliably true, and hence useful.
Moreover, it might not be truth that could be elicited any other way, such as slowly and steadily wearing down a detainee's resistance by non-abusive methods.
And it might be truth that we can reliably distinguish from falsehoods the detainee might likewise utter, just to get the pain and fear of torture to stop.
And it might help us foil future attacks.
So it might be defensible (and non-criminal) that OLC endorsed the use of torture in the dire situation the Bush administration faced in 2002 and 2003.
Huh?
I'm not totally clear on Mr. Will's line of argument here, but he seems to be saying that, if all the above are so, the OLC memos might have been legally proper.
That's hard to swallow. Mr. Will seems to be contending that what "most Americans" would find to be "torture" if it were used against Americans should not be the determinative factor in this case. OK, say I: what should be determinative? Not, I would contend, memos from within the machinery of an administration bound and determined to skirt the spirit of international law on torture by redefining what that law proscribes as "enhanced interrogation techniques."
So, yes, a formal adjudicative panel, congressional or independent, should ask the hard questions, including those whose answers liberal Democrats (such as this blogger) least want to hear. Was former CIA Director Tenet right about the interrogations saving lives and disrupting plots? Was former national intelligence director McConnell likewise correct in attributing saved lives to the interrogations? Why didn't House Speaker Pelosi, who (prior to becoming Speaker) was briefed on anticipated interrogation techniques, speak up?
All this needs to come out before the country can put the torture issue to rest.
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