12/11/2014 03:29 pm ET Updated Feb 10, 2015

Moral Confusion in the War on Terror

The debate over the Senate Select Committee on Intelligence's "torture report" has quickly taken a predictable form. The report claims that "Enhanced Interrogation Techniques" (EITs) were ineffective. Its critics claim: They produced actionable intelligence. The report argues that the techniques were brutal and their use legally suspect. Its critics claim that those techniques were appropriate and legal. Most liberals praise the report. Most conservatives attack it as politically motivated. Former CIA directors claim the report is flawed and that the program worked. The current CIA director is concerned about the report's impact on agency morale.

What's largely missing from the current debate is a healthy conversation about morality and ethics. This absence was highlighted in an NBC News interview with James Mitchell, one of two psychologists that the CIA hired to develop the EIT program. Asked about water boarding, Mitchell said: "I don't think it's the right thing to do. I don't think it's the wrong thing to do. ... I think it's like every tool in the tool box. You can under use it. You can overuse it." By Mitchell's reasoning, the sole criterion to consider in regard to water boarding is whether the tool was properly applied. The morality of the tool and those who apply it are presumably irrelevant.

The conversation about morality and moral boundaries that we need should also discuss lying. The Senate report does not use that word, but it refers frequently to CIA "misrepresentations" and "inaccuracies." These were directed, the report states, at the Department of Justice, the National Security Council, the White House, the Congress and even the CIA's Office of Inspector General. As to what constitutes a "lie," when and if lying is justified, what lying does to relationships among those in government who must wage the war on terror and to the public's trust in government, and when lying is inexcusable, the current public conversation is mostly silent.

A conversation about morality would also include a broader discussion of the question: By what standards should we judge our government's actions in the war on terror? For example, how should we rank order the following in terms of their importance in how we want our government to behave: morally; legally, constitutionally, effectively? Of course, we want all these things, but when push comes to shove, as it does for an individual government worker in the CIA, a government agency, and a nation, what matters most?

The prevalence of the words "legal" and "constitutional" in the report and the current conversation suggests that they are at the top of the ranking. Administrations take great pains to ensure they are acting Constitutionally and legally. They should. But we should also recognize that getting a legal opinion supporting an action does not mean it is legal -- or constitutional. Lawyers at the top of government agencies in all administrations are paid to be both professional and creative. Many of those who argue for the use of EITs note that the Bush administration got legal opinions supporting this action. Yet those same people are having no trouble arguing against the Obama Administration's legal opinions supporting his Executive Order on immigration. Nor does a supporting legal opinion mean the action is moral or ethical. The Fugitive Slave Law was Constitutional for nearly three-quarters of a century. Segregation was legal for longer than that. The Supreme Court and lesser court decisions supporting both were extensive.

One purpose of law is to set a standard -- to guide, sanction, and constrain human behavior. But if morality does not stand behind the law, the law damages society. Debating whether enhanced interrogation techniques were legal and Constitutional is a necessary but not a sufficient condition for justice, the ultimate standard to which we are all pledged as part of "We, the People."

The attention the report directs to its claims that EITs were ineffective is meant to counter the argument of those who condone the techniques because they "work." But this debate -- for both the report's authors and its critics -- seems to rank effectiveness above morality in deciding on the appropriateness of an action. What would the report have said if it found considerable evidence that EITs worked? If the most important criterion is effectiveness, as the CIA's contract psychologist James Mitchell argues, then we have chosen ends over means. We should discuss where that may lead us.

Thirteen years into the war on terror, we have found ourselves, as a nation, willing to use admittedly brutal techniques to protect ourselves. But we have ended up in that stance through anger and fear after the 9/11 attacks. We now have the time to decide where we end up through foresight and democratic conversation. Absent that, we will continue to lack moral clarity and political consensus on just what we are willing to endorse our government doing in the name of security. For most of the past thirteen years, we have been without a second major terrorist attack or attempt. What would we do -- and who are we willing to be -- if Americans experience more frequent instances of terrorism? We should not let cataclysmic events rush us to an answer again.

We owe it to ourselves to be much clearer about our moral anchors. The danger of moral confusion in the first instance is that it leads to bad policy and execution. The danger in the second instance is that it can lead to immoral action. The danger in the third instance is that it dulls the ability or willingness to think morally at all and may produce amoral government.

In one situation -- the decision that we do not pay ransom to terrorists -- we have managed a moral consensus. Beyond that, we are adrift. This is not healthy. It also sends a confusing message to the public servants, especially in the intelligence community, that we ask to act on our behalf. They deserve better guidance. We cannot abdicate our moral responsibility, leave it solely to them to wrestle with these issues, and then criticize them for how they have done so.

Polls show that only about one in seven Americans trust the government in Washington to do the right thing "most of the time or just about always." We are at the lowest point in the over fifty years that this question has been asked. When we permit the use of torture on the one hand and condemn it on the other, we are accessories to this growing distrust.

Two words not found in a search of the Senate's report are "honor" and "dishonor." Perhaps this is because the aim of the report was, as Chairwoman Dianne Feinstein put it, "to review the program and to shape detention and interrogation policies in the future." Nevertheless, in the well of the Senate, Senator John McCain claimed that the CIA's practices "stained our national honor." Morality and honor are connected. A lack of focus on one inherently means a lack of attention to the other.

Americans are concerned with morality and honor, not just legality and effectiveness. But if we aim to produce the first two as well as the latter two, our conversation must get deeper.