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Is Cheney right about the memos?

Crime, Law and JusticeSocial IssuesAbusive BehaviorUnrest, Conflicts and WarJustice SystemTerrorismCrime

Today's topic: Is Dick Cheney right that the Obama administration should release all the memos related to the interrogation of high-value targets and the resulting actionable intelligence? Should the release extend beyond memos relating to information acquired through rough interrogations and include all official memos considering or urging the use of such tactics? And even if such interrogations did yield valuable information, would it justify using practices that most people would call torture?

Complete Dust-Up: Day 1  |  Day 2  |  Day 3

Keep the memos coming, ObamaPoint: James Jay Carafano

I suspect, David, that you and I will start the second round by again agreeing more than we disagree.

First, torture is not permissible, period. There is no circumstance in which a free people should tolerate such practices. Even the "ticking time bomb" scenario (in which, unless Jack Bauer throttles the terrorist to make him talk, millions will die) cannot be condoned. Democracy isn't a suicide pact. But it is a pact, and unless we live up to the principles in the original contract that bound us together as a nation, we are not a nation. And then we're no better than the terrorists.

That said, the issue of how effective the interrogations were is not relevant. Even if the administration could prove it stopped hundreds of terrorist attacks through torture, that result would not justify its use. And while the four released memos detail procedures that may make some people's stomachs churn, they demonstrate that the administration did not authorize torture. Indeed, it went out of its way to painstakingly detail the rationale for its policies.

The issue of effectiveness, however, does matter because critics of the past administration have opened the door. "Even if it was legal," they say, "it was ineffective." As an afterthought, they add, "Even it was effective, the information could have been gleaned in a more humane way."

Because the critics have started what is essentially a political debate over interrogation policies, all sides should now have their say. This is particularly important because the current administration only released information that many feel was meant to put its predecessor's policies in as a poor a light as possible.

Therefore, Dick Cheney is probably right in calling for the release of additional memos. After all, what's the risk? It's hard to see how releasing more information would jeopardize national security. The current administration has different interrogation polices, and its policies are limited to procedures in government manuals that are available to everyone. A suspected terrorist caught by the CIA now knows exactly what he's in for.

What we'll find with the release of additional memos (because some of the material has already been leaked) is that these controversial interrogation practices did produce information that helped stop terrorist conspiracies.

What we are unlikely to ever know is if the information could have been gained more effectively through other means. The debate over harsh interrogation techniques is largely subjective, with experts trading opinions back and forth. There is very little hard scientific data to conclusively prove the best way to get information under each and every circumstance.

Interrogation is still more art than science. The only distinction that the law can and should make is whether a particular procedure is legal. Beyond that, when it comes to deciding the right thing to do, that task belongs to the officials we elect to keep us safe in the presence of those who want to kill us.

James Jay Carafano is assistant director of the Kathryn and Shelby Cullom Davis Institute for International Studies and a senior research fellow at the Douglas and Sarah Allison Center for Foreign Policy Studies at the Heritage Foundation.

It means nothing to oppose torture if you actually tortureCounterpoint: David Kaye

James, I appreciate your categorical statement that "torture is not permissible" under any circumstances. The problem is this: George W. Bush said the same thing.

The Bush lawyers defined torture down, making the president's opposition meaningless. Sens. Carl Levin (D-Mich.), John McCain (R-Ariz.), Lindsey Graham (R-S.C.) and others, referring to the harsh interrogation techniques in the Senate report I mentioned Wednesday, concluded that senior Bush administration officials "redefined the law to create the appearance of their legality." David Rivkin and Lee Casey, the Bush administration's outside legal apologists whom you cite, have done the same thing.

So let's be honest: It means nothing to oppose torture if, as the White House Office of Legal Counsel defined it in August 2002, we raise the bar for physical pain to "organ failure, impairment of bodily function or even death" and for mental pain to that which has "significant duration, e.g., lasting for months or even years."

This kind of "lawyering" followed a pattern: Define away domestic criminal sanctions, whether under the anti-torture statute or the War Crimes Act, ignore contrary advice and authorize otherwise illegal treatment. It remains unclear whether President Bush himself even knew that senior military lawyers throughout the Pentagon were opposing his interrogation program on legal, moral and force-protection grounds.

Let's move away from the question of criminal sanctions for a moment and pretend, much as the Office of Legal Counsel did, that we didn't have a torture statute, an international ban on torture or a domestic War Crimes Act. Even so, the Bush techniques were still illegal as cruel, inhuman and degrading treatment, banned by such fundamental rules of law as the post- World War II Geneva Convention and the Reagan-era United Nations Convention Against Torture. Americans should take the time to read this OLC memo, more or less corroborating this Red Cross report , to understand what was done to detainees who were in American hands. Do they show, as you nicely put it, James, that we lived up to the "principles in the original contract that bound us together as a nation"?

We seem to agree that Americans have a right to know the full story behind the harsh physical and mental treatment applied to the detainees. That means releasing all documents dealing with the program, including the kind of information coerced from detainees. I think it's fair to bring this all to public light, and we seem to agree that additional information won't jeopardize our security.

At the same time, I don't think these documents should just be dumped on the public. We need an organized, high-level way to assess what happened, which we should discuss tomorrow.

Finally, we agree that the effectiveness of torture should be irrelevant. But as you say, this is now part of the debate. As it happens, we already know from a key FBI agent involved in interrogations that interrogators learned key information from "high-value detainees" before harsh techniques were applied, and administration officials misled the public about it afterward. You mention Jack Bauer, who represents a fictional characterization and a celebration of torture as effective. Experienced interrogators have long held that torture is counterproductive, as this short film from Human Rights First nicely demonstrates.

Ten years ago, the Israeli Supreme Court held that a variety of harsh physical techniques, much like those authorized by OLC, were illegal as cruel, inhuman and degrading. The conclusion of the court's opinion bears reflection: "This is the destiny of a democracy -- it does not see all means as acceptable, and the ways of its enemies are not always open before it. A democracy must sometimes fight with one hand tied behind its back. Even so, a democracy has the upper hand."

David Kaye, a former State Department lawyer, is executive director of the International Human Rights Program at the UCLA School of Law.

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