I am reading through the Justice Department memos on whether certain enhanced interrogation techniques constituted legally prohibited torture and plan a series of blog posts, dealing with the legal analysis in the memos and the larger question of when and if something that might fall within the "definition" of torture could ever be justified.
But before I do that, it helps to set the guidelines for the debate. Much of our converation on the issue is superficial. We have one side screaming "torture" without much thought about what was actually done and how often. There is little, or no, consideration of what was at stake in the period immediately following the 9-11 attacks.
We have the other side invoking "national security" and the spectre of the ticking time bomb without, again, much consideration of what was actually done and whether the larger moral and strategicand political issues.
We should start, I think, by waiting to emote. 9-11 was an awful and unprecedented attack on US soil. As bad as it was, it was a near miracle that only 3000 persons were killed. Given the nature of an open society and the lethal nature of readily deployed technologies, it is unlikely - and perhaps impossible - that security measures alone will thwart attackers. It is imperative to detect potential plots.
Of course, this must be done in a way which is consistent with life in a liberal and civilized democracy. But our desire to preserve the latter cuts both ways. We have to keep in mind the ways in which our responses to terror can undermine the values of such a society, while also acknowledging that terror will destroy such a society. I don't know how many 9-11s a liberal society can survive, but it is probably a smaller number than we might imagine.
So I don't think it was outrageous to ask whether a series of interrogation techniques which the experts involved believed were likely to lead, not to "confessions" (there was no need for that), but information that would help prevent future attacks. Certain of these techniques (e.g., water dousing, sleep deprivation and waterboarding), which were to be applied only to persons that everyone concedes were involved with Al-Qaeda and its attacks, certainly involved the imposition of physical and mental distress. Indeed, the purpose of their use was to create a level of discomfort sufficient to wear down the prisioner's resistance to interrogation.
On the other hand, they were extremely unlikely to result in lasting or prolonged harm and the law does not prohibit the imposition of phyical and mental distress, but "severe pain and suffering, whether physical or mental." In other words, there is some level of pain and suffering which may be inflicted without amounting to torture.
Whether these techniques were in fact prohibited remains to be seen, but the answer is not obvious and, in light of what was at stake, I am not prepared to say it was odious to ask. Whether the imposition of less than severe pain and suffering is, even if legal, an unwise or immoral policy is yet another question. All I am saying now is that we should take these questions seriously.
Now, did DOJ get it right?