- The Washington Times - Wednesday, April 22, 2009

ANALYSIS/OPINION:

The debate over the just-released Justice Department memorandums on interrogation techniques ended as soon as they were dubbed the “torture memos.” Forevermore, they will be remembered as the legal lowlights of a “dark and painful chapter in our history,” as President Obama put it.

Rightly considered, the memos should be a source of pride. They represent a nation of laws struggling to defend itself against a savage, lawless enemy while adhering to its legal commitments and norms. Most societies throughout human history wouldn’t have bothered.

The memos cite conduct that is indisputably torture from a court case involving Serbs abusing Muslims in Bosnia: “severe beatings to the genitals, head, and other parts of the body with metal pipes and various other items; removal of teeth with pliers; kicking in the face and ribs; breaking of bones and ribs and dislocation of fingers; cutting a figure into the victim’s forehead; hanging the victim and beating him; extreme limitations of food and water; and subjection to games of ‘Russian roulette.’ ”

In contrast, we carefully parsed each of our techniques to ensure it wouldn’t cause “severe physical or mental pain or suffering.” This touchingly legalistic exercise at times took on a comic aspect. We could put a caterpillar in a box with a detainee afraid of stinging insects, Abu Zubaydah, so long as we didn’t falsely tell him the caterpillar was a threat to sting. We could put detainees in diapers so long as “the diaper is checked regularly and changed as needed to prevent skin irritation.”

The practice of “walling” was characteristic. A report of the International Committee of the Red Cross made it seem a brutish exercise involving slamming the heads of recalcitrant detainees against walls. The memos make it clear the detainees were thrown against fake, flexible walls, with their necks swathed in towels to prevent whiplash. The point was to push their shoulder blades against the wall to make a loud, startling noise.

Not exactly Torquemada. Several of the harshest methods - sleep deprivation, stress positions and waterboarding - could easily constitute torture, depending on their application. The tone of the press coverage makes the very act of subjecting these methods to close legal analysis seem dirty, as if the Justice Department should have come down with a case of the vapors when asked for guidance.

But there is a line somewhere between the highly restricted methods approved in the Army Field Manual for interrogation of enemy soldiers and illegal torture. The only way to find and honor that line is by lots of lawyerly analysis of practices that - in the words of Director of National Intelligence Dennis C. Blair - “read on a bright, sunny, safe day in April 2009, appear graphic and disturbing.”

Mr. Blair’s point is an important one - context matters. If any of these methods were used against domestic criminal suspects, it would shock the conscience. They instead were deployed against terrorists with information about their network and perhaps ongoing plots.

U.S. officials have dueling obligations in such circumstances, both to abide by our laws and to protect the public. Balancing these obligations is necessarily a fraught, complicated task; it can only seem simple in retrospect, when the threat appears to have receded.

Reasonable people can disagree about whether the Bush administration succeeded in its balancing act. Waterboarding has always been the most controversial method, and it was used 183 times - in short bursts not exceeding 40 seconds - against top al Qaeda captive Khalid Shaikh Mohammed in March 2003. Were intelligence benefits gained commensurate with the frequent resort to this method?

If we had a more mature political culture, this and other questions could be examined thoroughly by a special congressional committee. (As it happens, the CIA produced a memo on the benefits of the interrogation program that has never been released.) But such an inquiry inevitably would descend into a hyperpoliticized takedown of the CIA and the Bush Justice Department for “war crimes.” The frenzied reception of the “torture memos” is just a preview.

Rich Lowry is a nationally syndicated columnist.

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