Nancy Pelosi is the Central Issue

Nancy Pelosi recently accused the CIA of misleading Congress as to interrogation techniques employed against three al-Qaeda leaders.  The CIA pushed back, claiming that Pelosi was given truthful details at briefings at least as early as September 2002.  Democratic leaders and left-wing blogs have portrayed the controversy as a distraction. To the contrary, what Pelosi knew, when she knew it, and how she reacted are essential to putting events in historical context, rather than engaging in disingenuous moralizing or political theater.

The battle over interrogations takes place on legal, moral and political fronts. On the legal front, the issue is definitional. What constitutes unlawful "torture" as opposed to lawful interrogation? The criminal statute defining torture, 18 U.S.C. sec. 2340, is vague and leaves much to interpretation.  Torture is defined as "an act committed by a person acting under the color of law specifically intended to inflict severe physical or mental pain or suffering...." 

The key wording in the statute is "specifically intended" and "severe." A generalized intent to cause harm, but not necessarily severe pain or suffering, is not a crime. Similarly, a specific intent to cause some, but not severe, pain or suffering also is not a violation. There are no guidelines as to what constitutes severe pain or suffering.

The four previously-classified legal memoranda released by President Obama in April were an attempt by Justice Department lawyers to interpret this vague statute in the context of specific interrogation techniques the CIA believed were necessary to prevent future attacks.  The memoranda go through a detailed analysis, which some inaccurately describe as banal, in order to apply the law to the specific set of facts.

Despite calls for prosecution of the authors of the memoranda, and those who relied on them, it appears that there will be no prosecutions.  There likely were no crimes committed under the specific wording of the law, and Obama does not want his agenda sidetracked by the desire of some to get revenge on the Bush administration.

Lacking a legal remedy, many people have resorted to a different front, moral indignation.  This indignation is genuine in some and feigned in others.  In this view, whether waterboarding and other harsh methods constituted torture under the law is irrelevant; keeping someone awake for days, in uncomfortable positions for long periods, or using waterboarding, never is justified even to save lives.

People who refuse to use harsh interrogation methods (whether "torture" or not) as an honest matter of conscience, deserve respect, much like conscientious objectors.  This is why when we had a draft we distinguished someone who simply didn't want to serve in the military from someone who had such a profound believe that killing was wrong regardless of circumstance that he could not in good conscience serve in the military. 

The moral high ground, however, is not what is at play in the current interrogation debate.  No prominent politician, Democratic or Republican, is willing to sacrifice a city for the sake of moral purity.  The same people who decry the waterboarding of the mastermind of 9/11 are silent when Obama orders missile attacks on Pakistan which inevitably cause civilian casualties. To continue the analogy, in this debate there are many draft evaders and few conscientious objectors.

The real front in this battle is not the law or morality, but politics.  The response of many leading Democrats in Congress, including Nancy Pelosi, is to call for a "truth commission" to expose the use of harsh interrogation methods.  A truth commission cannot prosecute, but it can humiliate.  When Democrats talk about bringing out the truth, what they really mean is that they want a political circus aimed at the Bush administration alone.  To accomplish this mission, the interrogations must be viewed in isolation from the historical events in which they took place, with morality used in hearings as a sword not a principle.  To these Democrats, the only truth which matters is what was done to whom and when.

In reality, what was done to whom cannot be viewed outside the context of when it took place.  The use of nuclear weapons against Japan is a good example.  One could take the position that the use of nuclear weapons, with the inevitable civilian casualties, never is justified.  But in the context, the alternatives were the survival of an Imperial Japan with its legacy of brutal pillage throughout Asia or a bloody invasion of the Japanese mainland which would have killed more people (both American and Japanese).  In this context, the moral wrong of a nuclear weapon was the lesser of two evils, and was the only politically acceptable solution at the time.

So too, the use of waterboarding and other interrogation methods cannot be viewed in isolation from the historical events in which they were used.  In 2002-2003, when most of the controversial interrogations took place, the nation justifiably was fearful of imminent attack from al-Qaeda.  The three individuals subjected to waterboarding were believed to have information vital to stopping attacks which were in the planning or operational stages.  Waterboarding these three was viewed at the time as the lesser of two evils, the alternative being more dead Americans.

And it is this historical context which the Democrats wish to evade, and which makes what Nancy Pelosi knew and when she knew it absolutely critical. 

Far from being a distraction, the information provided to Pelosi, and her acquiescence in the interrogation methods, puts the whole debate in proper historical context.  If Pelosi, who states that she is against "torture" under any circumstance, was willing to go along with the interrogation methods, then the planned political circus falls apart.  Nancy Pelosi was the classic example of a person who opposed certain interrogation methods in principle, but under certain circumstances and certain places in time was willing to go along or look the other way because the alternative was worse. 

Historical context and national self-defense are essential to the truth of how we should view the interrogation of al-Qaeda leaders.  But these are the very topics which would be avoided or obscured unless what Nancy Pelosi knew, when she knew it, and how she reacted are the central focuses of any inquiry.

William A. Jacobson is Associate Clinical Professor of Law at Cornell Law School in Ithaca, NY, and author of the Legal Insurrection Blog
Nancy Pelosi recently accused the CIA of misleading Congress as to interrogation techniques employed against three al-Qaeda leaders.  The CIA pushed back, claiming that Pelosi was given truthful details at briefings at least as early as September 2002.  Democratic leaders and left-wing blogs have portrayed the controversy as a distraction. To the contrary, what Pelosi knew, when she knew it, and how she reacted are essential to putting events in historical context, rather than engaging in disingenuous moralizing or political theater.

The battle over interrogations takes place on legal, moral and political fronts. On the legal front, the issue is definitional. What constitutes unlawful "torture" as opposed to lawful interrogation? The criminal statute defining torture, 18 U.S.C. sec. 2340, is vague and leaves much to interpretation.  Torture is defined as "an act committed by a person acting under the color of law specifically intended to inflict severe physical or mental pain or suffering...." 

The key wording in the statute is "specifically intended" and "severe." A generalized intent to cause harm, but not necessarily severe pain or suffering, is not a crime. Similarly, a specific intent to cause some, but not severe, pain or suffering also is not a violation. There are no guidelines as to what constitutes severe pain or suffering.

The four previously-classified legal memoranda released by President Obama in April were an attempt by Justice Department lawyers to interpret this vague statute in the context of specific interrogation techniques the CIA believed were necessary to prevent future attacks.  The memoranda go through a detailed analysis, which some inaccurately describe as banal, in order to apply the law to the specific set of facts.

Despite calls for prosecution of the authors of the memoranda, and those who relied on them, it appears that there will be no prosecutions.  There likely were no crimes committed under the specific wording of the law, and Obama does not want his agenda sidetracked by the desire of some to get revenge on the Bush administration.

Lacking a legal remedy, many people have resorted to a different front, moral indignation.  This indignation is genuine in some and feigned in others.  In this view, whether waterboarding and other harsh methods constituted torture under the law is irrelevant; keeping someone awake for days, in uncomfortable positions for long periods, or using waterboarding, never is justified even to save lives.

People who refuse to use harsh interrogation methods (whether "torture" or not) as an honest matter of conscience, deserve respect, much like conscientious objectors.  This is why when we had a draft we distinguished someone who simply didn't want to serve in the military from someone who had such a profound believe that killing was wrong regardless of circumstance that he could not in good conscience serve in the military. 

The moral high ground, however, is not what is at play in the current interrogation debate.  No prominent politician, Democratic or Republican, is willing to sacrifice a city for the sake of moral purity.  The same people who decry the waterboarding of the mastermind of 9/11 are silent when Obama orders missile attacks on Pakistan which inevitably cause civilian casualties. To continue the analogy, in this debate there are many draft evaders and few conscientious objectors.

The real front in this battle is not the law or morality, but politics.  The response of many leading Democrats in Congress, including Nancy Pelosi, is to call for a "truth commission" to expose the use of harsh interrogation methods.  A truth commission cannot prosecute, but it can humiliate.  When Democrats talk about bringing out the truth, what they really mean is that they want a political circus aimed at the Bush administration alone.  To accomplish this mission, the interrogations must be viewed in isolation from the historical events in which they took place, with morality used in hearings as a sword not a principle.  To these Democrats, the only truth which matters is what was done to whom and when.

In reality, what was done to whom cannot be viewed outside the context of when it took place.  The use of nuclear weapons against Japan is a good example.  One could take the position that the use of nuclear weapons, with the inevitable civilian casualties, never is justified.  But in the context, the alternatives were the survival of an Imperial Japan with its legacy of brutal pillage throughout Asia or a bloody invasion of the Japanese mainland which would have killed more people (both American and Japanese).  In this context, the moral wrong of a nuclear weapon was the lesser of two evils, and was the only politically acceptable solution at the time.

So too, the use of waterboarding and other interrogation methods cannot be viewed in isolation from the historical events in which they were used.  In 2002-2003, when most of the controversial interrogations took place, the nation justifiably was fearful of imminent attack from al-Qaeda.  The three individuals subjected to waterboarding were believed to have information vital to stopping attacks which were in the planning or operational stages.  Waterboarding these three was viewed at the time as the lesser of two evils, the alternative being more dead Americans.

And it is this historical context which the Democrats wish to evade, and which makes what Nancy Pelosi knew and when she knew it absolutely critical. 

Far from being a distraction, the information provided to Pelosi, and her acquiescence in the interrogation methods, puts the whole debate in proper historical context.  If Pelosi, who states that she is against "torture" under any circumstance, was willing to go along with the interrogation methods, then the planned political circus falls apart.  Nancy Pelosi was the classic example of a person who opposed certain interrogation methods in principle, but under certain circumstances and certain places in time was willing to go along or look the other way because the alternative was worse. 

Historical context and national self-defense are essential to the truth of how we should view the interrogation of al-Qaeda leaders.  But these are the very topics which would be avoided or obscured unless what Nancy Pelosi knew, when she knew it, and how she reacted are the central focuses of any inquiry.

William A. Jacobson is Associate Clinical Professor of Law at Cornell Law School in Ithaca, NY, and author of the Legal Insurrection Blog