Five Questions For The Show Trials

The debate over the Bush administration’s interrogation methods is really a debate over five very different questions:

Did the methods work?
Was it justified to use them in the circumstances of 2002?
Would it be justified under the different circumstances of 2009?
Were they illegal?
If illegal, should they be prosecuted?

Conservatives do not need to answer “yes” to every one of the first 4 to deliver an emphatic “no” to the 5th and last.

First question: Did the interrogation methods work? Did they obtain useful information that saved American lives?

Four former CIA directors and Obama’s own Director of National Intelligence say yes. So of course does former vice president Cheney. I’m inclined to defer to the judgment of these knowledgeable persons. But I don’t know. And maybe we’ll never know for certain – it’s very possible that this question will be debated forever, like the question whether we needed to drop an atomic bomb on Nagasaki even after the bombing of Hiroshima. Horrible decisions in both cases, in which flawed human beings can only struggle to make the right choice between the contradictory moral imperatives of defending their country and avoiding unnecessary destruction and cruelty.

Second issue: Even if the methods did not “work,” that does not mean they were unjustified when initiated. The country was still reeling from 9/11, and the intelligence agencies knew ominously little about al Qaeda’s organization and plans. When Abu Zubaydah were captured, it’s hard to fault an anxious administration from doing everything they could to extract from him all he knew, as fast as possible. Maybe they went too far. Who would really prefer they fell too short?

In the different circumstances of 2009, with al Qaeda looking far less formidable than it once did, it’s easy to condemn what was done 7 years ago. On the other hand: suppose the Obama administration captured Ayman Zawahiri and suspected he knew of Osama bin Laden’s whereabouts. Would they really allow bin Laden time to escape while interrogators tried to build rapport with his chief henchman? Would they revert to Clinton-era practice and deliver Zawahiri to Egyptian intelligence – and then trust the result? Or would they want to do as the Bush people did: squeeze him fast?

The claim of illegality in the Bush interrogations depends on the assumption that (1) the methods used violate congressional statutes barring torture and (2) that such statues, even if violated, can supersede the president’s constitutionally inherent war-making power, If the Obama administration does decide to proceed with prosecutions, we can all look forward to a decade of litigation of these issues. It will be curious to see whether President Obama really wishes to argue that Congress can by ordinary statute abridge his powers as commander-in-chief.

So we are left with this array of answers to questions 1-4: don’t know, probably, possibly, don’t know. Only question 5 is certain: absolutely no. Barack Obama may chose to become the first president to prosecute his predecessors for carrying out official duties in ways disapproved by their successors. If so, we can guarantee: He will not be the last.

And if he finds himself prosecuting America’s counter-terrorism combatants before the conviction of a single enemy international terrorist – in that case, prepare for a firestorm.