06/18/2009 05:12 am ET | Updated May 25, 2011


The current debate on the legality and morality of torture is . . .

Well, tortured.

We should start with first principles (or at least what everyone thought were first principles prior to 9/11). Torture has been illegal for some time. The ban on torture is clear in the Geneva Convention and in most state law, including our own, which either adopts that Convention or reflects it in domestic statutes. The prohibition is also something that has engendered near universal support in the civilized world. Our contemporary affection for it was born largely out of the Nuremberg trials, which claimed that civilized peoples had jurisdiction to prosecute crimes against humanity wherever and by whomever they were perpetrated. At that time, the defense of superior orders, as well as the notion that any prosecution of these crimes was merely a case of "victor's justice," was soundly rejected.

Not for 'nuthin, moreoever, the United States led the charge.

Herman Goering proudly marched into an American base at the end of World War II ready to surrender his sword in the quaint but time honored ritual of a defeated General recognizing the legitimate conquest of his victorious foe. He expected in the process to be treated with the respect all prior surrendering Generals had received, a sort of reciprocal noblesse oblige in which officers were deemed members of the same club and the surrendering losers were given reasonable quarters, hot food, good wine and continued respect. Instead, within a relatively short period, he was indicted and thrown in the dock. More or less the same thing occurred in Japan in the wake of their defeat.

Fast forward fifty five plus years or so, we now find ourselves debating whether our own "officers," including Bush and especially Cheney, must be indicted for their own crimes against humanity. Because it is an issue no sitting American politician truly wants to confront, both sides of the ideological divide are crafting their own unique avoidance strategies. For its part, the Obama Administration for the time being abjures any outright indictment of the former President and Vice President, embracing a kind of good faith procedural legalism in which Obama himself announces that any who violated the law will be held responsible . . .

By the US Department of Justice . . .

In due course . . .

Which presumably is on the case.

Don't hold your breath waiting for the trials to start.

On the other side, the avoidance strategy is quite explicit and embraces two tactical moves in order to reach the stated goal of no prosecutions, not now, not ever. On the one hand, there is absolutely no acknowledgment of the Nuremberg principle, let alone any reasoned effort to grapple with it. Try googling "Nuremberg" to see if it comes up in any articles on the current torture debate. I did and couldn't find any. Cheney hasn't mentioned it, nor has Charles Krauthammer, who is otherwise waxing eloquent in his defense of the morality of torture as practiced by the Bush Administration.

What Cheney and Krauthammer do say is the right wing's second tactical move is reducible, at its core, to two words. They are . . .

Torture works.

So, for a large part of the past month, we have witnessed an unprecedented display of public comment from a former Vice President insisting that the Bush Administration's "enhanced interrogation techniques" saved "tens of thousands, if not hundred of thousands" of lives. And, for his part, Krauthammer is claiming that torture is justified in two situations -- the so-called "ticking time bomb scenario and its less extreme variant in which a high value terrorist refuses to divulge crucial information that could save innocent lives." In his first of two articles on the subject, he cited Bush Administration figures who claimed that information of both sorts was obtained via torture in the immediate aftermath of 9/11. In his second article, he cited the success of the Israelis in getting information via torture as to the whereabouts of Cpl. Waxman when Palestinian terrorists had captured him in 1994. Both sources assert that if not for the interrogation techniques used, critical information would not have been gained.

There is, of course, a fairly short answer to both Cheney's and Krauthammer's claims. It is that . . .

We'll never know.

Which is exactly where the right wing wants to leave it.

And exactly where it cannot be left.

We now live in a world where the efficacy of torture is being tested on a grand scale. Unfortunately, however, empirical realities are being ignored in the face of asserted realities that, though unproven, would be catastrophic were they to be true. The essence of the right wing's claims, and the motive behind Obama's careful proceduralism which appears to put the issue on a permanent (or at least four or eight year) back burner, is not that torture works. Rather, it's that we can't take the risk of figuring out whether it does not. The answer, as George Bush and Condoleeza Rice were want to say only a short time ago, "may come in the form of a mushroom cloud." Fairly confident that we will not take that risk, Cheney and Krauthammer simply assert -- with no evidence whatsoever -- that torture is efficacious.

In fact, however, it is not.

For at least two reasons.

First, no one can claim that catastrophes were averted in the wake of 9/11 owing to the use of enhanced interrogation techniques. We do not know what else was tried or what else was gleaned from whatever was tried, and what we do know about the lengths of interrogations suggests that it often took months, not minutes, to get a lot of the information deemed so valuable. Both realities would tend to refute the notion that torture works, the first by demonstrating either that Bush and Co. simply ignored alternatives on the assumption they would not work or used torture even in the face of information being gleaned legitimately, the second by demonstrating that a months long torture regime more or less refutes the notion that what was learned was catastrophically time-sensitive. The whole point of Krauthammer's point is that we need to know now, not a year (and 100 plus episodes of water boarding) from now.

Second, there is at least some current evidence that, far from working, torture may have created false information. This has historically been proven to be the case and is one reason why John McCain, a torture victim himself, opposes it. Now, according to some reports surfacing, a high value Iraqi was tortured in order to get him to disclose a link between Al Qaeda and Saddam Hussein's Baathist regime in Iraq. This dovetailed nicely with the Administration's need to trump up an alternative justification for the war in Iraq once their WMD claims went up in smoke. And the Iraqi, of course, coughed up the necessary link. There was, however, only one problem with his information.

It was false.

Cheney (and presumably Krauthammer as well) wants all of the CIA's torture memos declassified and claims they will support his assertion that torture works. No doubt they will. Cheney, after all, was regularly parking himself at Langley to make sure that whatever the agency said comported with his views. Many contend the former Veep is a war criminal. But no one asserts he is stupid. So I have no doubt that those memos will help him spin his position in some way.

But I want to see them anyway.

For two reasons here, as well.

First, if the memos do not show that legitimate alternatives were tried and failed, or that the techniques were not used over long periods of time on particular detainees, or that the information gleaned was not in fact false, then the only thing tortured about Cheney's and Krauthammer's current position will be its logic.

And second, I'd like to see what the memos say about . . .