Imagine you are an intelligence officer in 2002, when journalist Daniel Pearl is being held captive by terrorists in Pakistan. You have an al Qaeda leader in custody. He knows who is holding Pearl and where Pearl is being held. But when you ask him to give you that information, he says: "You'll soon see Mr. Pearl. You'll see his head. You'll see his body. Of course, they will no longer be attached."
And then he smiles, pleased by his defiance, amused by your impotence.
Your chief interrogator tells you: "I think we can get the information out of this guy."
You say: "No, we can't torture him."
He replies: "We won't. We know what torture is. The Justice Department has spelled it out for us clearly. We know where the line must be drawn. We will not cross that line. But let us do what is allowed under the law. Yes, we will scare him and inflict discomfort, even pain. But it will not rise to the level of torture. And as soon as he cooperates, we'll send him for a hot shower and a good meal—while our special operators go in and save Pearl."
What do you say? "OK, do it."
Or: "No. It would not be moral. We're better than that. I'm sorry for Danny and his family, but I'm sure they wouldn't want it any other way."
I know what I'd do in this circumstance. But I understand that some people will disagree with me for the same reason that some people cannot, as a matter of conscience, participate in wars—any wars, even against very evil forces.
What I can't understand is proposing that the American intelligence officers who have been working in good faith to keep us safe in the middle of the current war, and who have made every effort to stay within the permissible boundaries, should now be slandered as "pro torture," put on trial, and perhaps sent to prison.
Some people may say: "OK, don't put the intelligence officers on trial. But what about the lawyers who wrote the memos telling them what they could do? They should be held accountable."
Think about that: You are saying that government lawyers in the current administration should prosecute government lawyers from the previous administration—because they disagree with their legal opinions. What a historic assault against freedom that would be. It's as though President Eisenhower had prosecuted President Truman for the decision to drop atomic bombs on Hiroshima and Nagasaki—because Eisenhower decided there had been a better way for Truman to defeat Japan.
And, on a more practical level, prosecution of these attorneys means that never again can advisers to American presidents feel free to offer opinions that are unorthodox—or even opinions that may become unfashionable at a later date.
Indeed, this is happening already. Andrew McCarthy, the respected former federal prosecutor who put Sheik Omar Abdel Rahman and others responsible for the 1993 World Trade Center bombing behind bars, recently was asked to provide advice to the U.S. government. He declined because, he wrote in a letter to Attorney General Eric Holder, it is now clear that any lawyer who "offers legal advice to government policymakers—like the government lawyers who offered good-faith advice on interrogation policy—may be subject to investigation and prosecution for the content of that advice, in addition to empty but professionally damaging accusations of ethical misconduct."
Many in the mainstream media have described the legal analyses drafted by the Justice Department attorneys for the CIA as "torture memos." That is simply false, as anyone who reads the memos will recognize. The memos are an attempt to draw a red line between torture and interrogation methods that may be harsh and coercive, that cause "stress and duress"—but do not meet the legal criteria of torture.
The most controversial of these methods is "waterboarding." This method was not used to punish or force confessions. It was used against only three individuals, all of them al Qaeda leaders, all of them believed to be in possession of information that, if revealed, could prevent terrorist plots against Americans from succeeding. The CIA has not used waterboarding on anyone, anywhere, since 2003.
Updated on 5/18/09: An earlier headline for this article was replaced.