Let’s say for the sake of argument that sometime in July 2001, the CIA had intercepted a communication that informed them that there were sleeper cells in the United States planning to hijack airplanes and fly them into the Pentagon, the Capitol, and the World Trade Center. The details of the plan were somewhat vague and no names were mentioned, but it was clear that some of the hijackers had trained for the mission in U.S. flight schools.
And let’s say that the CIA coordinated with the FBI at that point to try to identify suspects that had recently attended flight schools. And when, on August 16, the FBI arrested Zacarias Moussaoui, let’s say that the CIA decided to use ‘enhanced interrogation techniques’ to learn the identity of any potential co-conspirators. This, then, would have been a classic ‘ticking timebomb’ scenario. If Zacarias Moussaoui had cracked under torture and identified the person that was wiring him money, the CIA and Treasury Department might have been able to identify other people who had been wired money and potentially disrupt the plot.
Having stopped the attacks, America never would have experienced the horror of 9/11, and might not sufficiently understand why the government bent the rules and broke the law in their treatment of Zacarias Moussaoui. Yet, I think it is safe to say that a jury would have been hard-pressed to throw the torturers in prison. They probably could have been convinced that the ends justified the means in that particular case. After seeing the horror of 9/11, it was even less likely that a jury would convict torturers if they could be convinced that they were acting in good faith to prevent a second attack.
Nonetheless, the CIA demanded legal justification for such acts, knowing that over time the American people’s memories of 9/11 would fade. And that is what David Yoo and the Department of Justice’s Office of Legal Counsel provided. As weak as their legal reasoning was, it gave legal cover to the people that tortured Al Qaeda suspects and made it difficult to prosecute them for committing crimes.
It should be obvious that juries and prosecutors are less likely to look the other way at acts of torture if the torturers cannot point to a defused bomb as justification. Even less so, if it doesn’t appear that there ever was a bomb in the first place. But the defense is still the same. A crime may have been committed, but it was committed in a good faith effort to prevent a mass casualty terrorist attack like 9/11. A prosecutor or a jury have to weigh the evidence and decide whether they think that defense is valid.
It has been noted repeatedly by experts in interrogation and psychology that torture does not necessarily lead to good intelligence. It creates false leads, particularly if the victim doesn’t know the information that they are being asked to provide. Using precious resources to track down false leads can result in a net loss of security. And, taking a look at the damage that has been done to America’s global reputation from the decision to use torture, it has to be noted that even good intelligence arising from torture can make us less safe in the long run. Considerations of this type should be weighed heavily when deciding how to address the crimes that were committed by our intelligence community at the behest of the Bush administration.
Senate Judiciary chairman Patrick Leahy (D-VT) has said that we have to read the page of history before we can turn the page. He wants to uncover for the public what was done, even if it means immunizing criminals against prosecution. That is the middle position between those that want to have a war crimes tribunal and those that want to build an Ollie North Statue of Freedom to memorialize the courage and steadfastness of the torturers. I go back and forth on this issue. I would like to see George W. Bush, Dick Cheney, David Addington, Scooter Libby, and perhaps others, face a jury of their peers. If they can convince those juries to nullify the law in light of the circumstances, I can accept that. But, I also recognize how incredibly divisive such trials would be and I place a high priority on getting to the truth of what happened. So, I can understand Sen. Leahy’s position.
What I cannot support is doing nothing.
