Torture prosecutions

My new column for the FT discusses this issue. I already have an inbox full of emails calling me reprehensible and a torturer. Read the column for an insight into the mind of a monster, and I'll address some of the arguments (many fewer in number than the insults, but there are some) offered against what I say tomorrow.

When Barack Obama directed the release of George W. Bush administration documents describing the brutal interrogation of terrorist suspects and defending the legality of those methods, his aim was to draw a line under the issue. He was right to want to, and the compromise he first proposed was a good one.

In releasing the memos the president in effect repudiated methods such as waterboarding, the slamming of prisoners against walls, confinement in boxes, and other practices. These techniques would not be used on Mr Obama's watch.

At the same time he promised that there would be no prosecutions of interrogators, so long as they had acted in good faith and under guidance that the methods were lawful. And he implied, at least, that the same would go for the lawyers and other officials who had designed the earlier policy.

This would not do, however, for many in Mr Obama's party. They accused him of being too timid. Immediately, the president began to vacillate. He allowed for the possibility of some prosecutions, and mused on the proper form of further investigations - not, his spokesman explained, that he was necessarily in favour of such investigations.

Mr Obama's position is still in flux. The only certainties are that the approach he seems to have had in mind is dead, the issue is violently inflamed, and the US is now preoccupied - when it can ill afford to be - with a bitterly divisive and self-destructive quarrel.

Mr Obama got it right first time. Bringing prosecutions would be a mistake. To see why, it is necessary to separate two questions that are routinely muddled together: whether methods such as waterboarding are ever justified, and whether they are legal. The answer to neither question is self-evident, but the key thing is that they are different questions.

To many critics of the Bush administration, it is all so simple: waterboarding is torture, and thus both impossible to justify and illegal. Some prop up their certainty by denying that waterboarding can ever succeed in extracting vital information. If that were true, of course, the dilemma at the centre of this controversy would evaporate. The dilemma is real, in my view, precisely because torture might sometimes work. CIA officers and senior intelligence officials have said that "harsh interrogation" did yield important information.

The Bush administration's more honest critics accept that possibility, but argue that it does not justify these brutal methods. They are right. The damage that practices such as waterboarding do to US standing in the world, their power as a recruiting aid for terrorists, and - to my mind, most important of all - the harm they do to the country's idea of itself as a force for good outweigh any plausible benefits. Methods that shame the nation are both wrong and counter-productive even if they can claim a measure of success in the narrower sense.

But this already far from simple issue gets even more complicated when you turn from the question of justification to the law. Many just take it for granted that waterboarding is torture, and hence illegal. The convoluted legal defences in the memos are so false, in their view, that they compound the crime. The bizarre care the memos prescribe to guard against lasting physical harm to suspects, for instance, is dismissed as a sham that only makes the enterprise more disgusting.

Not so fast. Common sense may tell you waterboarding is torture, but the law is less clear-cut. Congress should make waterboarding a crime, for the reasons I have stated, and it has had many chances before and since 9/11 to do so. The fact is, it has chosen not to. Some of those in Congress now calling for prosecutions, including Nancy Pelosi, speaker of the House, were briefed about these methods in the panic-stricken aftermath of 9/11 and offered no objection.

It is worth noting that the methods in question were adopted from the training US soldiers undergo to resist interrogation. This underlines the fact that using these methods lowers the US to the level of its enemies. But it also suggests that distinctions may be made between waterboarding and, say, breaking on the rack. Unsurprisingly, US soldiers are not subjected to that technique as part of their training. Journalists and YouTube video-makers have undergone waterboarding, the better to pronounce it torture. None that I know of has volunteered to be flayed, or have his fingers crushed.

So far as moral and tactical justification goes, this can be set aside. Waterboarding is shameful, and one may leave it at that. To repeat, Mr Obama was right to forswear its use and that of other brutal measures. But the law does not set these points aside. If the lawyers who worked on the memos can show a court that they worked in good faith, under extreme pressure, to design methods that fell short of torture - in its legal, not commonsense, meaning - they would be innocent of knowingly shielding illegality. They have a strong case.

What would acquittals mean for US standing in the world? Those calling for prosecutions do not appear to have considered this possibility. They ought to.

And that is by no means the only risk. The drive for prosecutions is a furiously partisan project. The Democratic left is plainly out for revenge more than for justice - and Mr Obama is wavering in the face of their rage. Already, little hope remains of a bipartisan approach to the myriad problems that confront his administration. If the president fails to get a grip on this new controversy, the prospect of any such co-operation will be nil.