Trials for Those Who Authorized and Justified "Enhanced Interrogation Techniques"?

There has been much debate about what, if anything, to do about senior Bush Administration officials and attorneys who authorized and justified -- through legal memoranda and policy decisions -- techniques such as waterboarding and other methods deemed advisable to extract information from suspected terrorists.

What is apparent from these debates is that the premises of debaters appears to define their respective answers. In other words, agendas are at hand. This is not surprising or problemmatic. What is maddening about these discussions, however, is that they are circular. What is more, the questions raised -- what is torture, did it work, should we prosecute -- are separate questions without a ready answer.

Was It Torture?
I am far from an authority on this question. Nonetheless, I am prepared to accept that waterboarding is torture. I am also prepared to accept that no reasonable person can, with a straight face, claim otherwise. There is little doubt in my mind that waterboarding was the least of what suspected terrorists endured under Bush policies. Now that we have that question out of the way, the next issue is whether to do anything about it.

Who Was Responsible?
The curent debate is whether any inquiry and prosecution should be launched for those responsible. Who are those responsible? Plainly senior Bush Administration officials are responsible, leading up to and including former President Bush. Those senior officials who authorized torture should be included.

Legal counel is often lumped into this group. Various memoranda were prepared to justify, as perfectly legal, the practices which many (including me) regard as torture. But the inclusion of government attorneys in a group of potential target defendants is really troublesome. Those attorneys were asked to provide legal advice, perhaps even to find a rationale, under law, to justify a particular position. To my mind, they were not part of any criminal conspiracy. The alternative is to say that attorneys are responsible for clients' activities. This is a dangerous position and would create precedent where, in the future, attorneys may decline to give advice. Clients will act without advice, probably a more precarious position for them and for us.

Should We Prosecute?
This is an extremely complicated question. In order to prosecute, we must be convinced that laws were willfully broken. This means that we must be certain that the Executive Branch of the Government actually had no authority to authorize the actions. Is that the case? Once again, I am no authority on Executive Branch authority. But I suspect the issue is not "cut and dried." We do have a strong Executive. That coupled with a time of crisis may translate into ample authority. If we conclude that, in no circumstances, was there lawful authority, would the federal courts see it that way? Would this be considered a "political question" the courts would not undertake? Moreover, there has been some call for prosecution in the War Crimes Tribunal at The Hague. Is this what we want as a society? Is the prosecution of a former American President the type of precedent we wish to promote?

What would be the goal of such prosecutions? It is easy to claim that trials would have deterrent effect on future torturers. But it is far from clear this would be the case. Perhaps the goal would be re-establish our world leadership as enemies of torture, and strong proponents of the rule of law. But would prosecutions actually have this result? Maybe the true motive for some proponents is a type of payback for perceived extra-lawful actions and fabrications of the Bush Administration. But such revenge motivation would be dangerous precedent and weken the Executive Branch for generations.

Did It Work?
Former Vice President Cheney has been calling for the Obama Administration to release classified memoranda purportedly extolling the virtues of enhanced interrogation techniques. These documents will, according to proponents, prove waterboarding's usefulness for extracting information.

This is, in my opinion, a red herring. First, there is no doubt in my mind that those subject to torture will provide information. Of course they would do so. They would want to end the torture. Second, there is no evidence that most of the information obtained was actually accurate. You can bet that if I were subjected to torture (or threatened with it), I would, if necessary, spin a tall tale to avoid the whole thing. Third, so what? Is there a suggestion that torture is justified based upon a risk-utility analysis? It is easy -- as a mantra -- to claim that the saving of even a single American life is worth the price we pay. But did we actually save lives because of these techniques or because of other actions we undertook? We lose so much of our ideals, and create such a troublesome precedent in the eyes of the world, when we avoid our own standards of law and decency. We must be mindful of the historical significance of our actions.

It has been interesting to hear President Obama carefully deflect questions about possible prosecutions. He is rightfully concerned about the potential impact such prosecutions would have on Executive Branch authority. he is rightfully concerned with the host of ancillary issues inhenerent in a declaration of past unlawfulness by our leaders. President Obama has urged us to move forward, and not to harp on the mistakes of the last administration. I do not believe President Obama is asking us simply to "play ostrich" to torture. On balance, I agree with the concept that we should learn from past errors and move forward carefully to avoid the same mistakes.