For the past few weeks, former Vice-President Dick Cheney has been saying, in effect, that the use of “enhanced interrogation techniques” used by the U.S. against suspected bad guys was justified because:

1. When our side does it, it is not torture, and
2. The methods used were critical to preventing additional terrorist attacks, and
3. Even if it is torture, the recipients were terrorist murders who deserved it anyway.

It seems to me that the first and second points are false, and the third one, whether true or false, is not a valid justification for torturing suspects in captivity. 

Under the Bush administration, the U.S. engaged in practices – not simply by a few low-level rogue operatives, but under guidelines approved by the president – some of which are widely agreed to constitute torture.  It can be debated regarding some of the methods used, but there should be no doubt that waterboarding qualified as torture.  The U.S. in the past has approved of prosecuting for waterboarding as a war crime.  If waterboarding is torture, then it is torture, regardless of which side does it. 

The apologists for Mr. Cheney in Congress and the media point to the mildest of the questionable techniques, and then sarcastically ask: “Is that really torture?  Should we have risked another ‘9/11’ attack because we were afraid to hurt the terrorists’ feelings?”  Fortunately, I have never been in the position of knowing what I would do if I was subjected to torture, but it is not hard to guess.  I would say anything to make it stop.  If I though it would make a difference, I would confess to the assassinations of both John and Robert Kennedy, and for a little icing on the cake, Abraham Lincoln. 

What surprises me about the Democrats’ reaction to Mr. Cheney is that they have implicitly accepted Cheney’s terms of the discussion.  According to Cheney and his friends, torture was effective in getting valuable information about the terrorists’ plans.  The other side says that torture is not effective, or that even if it occasionally produces genuinely valuable information, the same information could probably have been obtained by other means.  This basis for argument gives Cheney an advantage he should not have.  Did the “enhanced interrogation techniques” actually help the U.S. to prevent another terrorist attack on U.S. soil?  It is probably impossible to prove either way, but the assertion is at least plausible.  The problem with presenting the issue this way is that there is an implied assumption that there is no incremental cost to using torture as a means of getting information.  Cheney, and everybody else who advocates for torture, should be vigorously challenged on that point.  In fact, there is a huge cost to the U.S. when its leaders try to give legal sanction to torturing people.  To use economic terminology, in any major decision, the expected benefits should be weighed against the expected costs.  Is it worthwhile to waterboard (or otherwise torture) so-called high-level detainees who might be able to provide information that could help prevent future acts of terrorism?  If the cost is perceived to be zero, as Mr. Cheney implies, the resulting benefit – even if zero or negligible – should still at least equal the cost. 

What is the “cost” of an American president deciding that torture is an acceptable method of interrogating prisoners?  Although it would be difficult to quantify, I would say that the cost is huge.  The U.S. is still the largest economic and military power in the world, but our relative power is declining, and we need allies.  Our ability to influence world events in our favor is largely a function of our ability to persuade other countries to act in a manner consistent with our interests.  To a large degree, our power to persuade depends on our continuing to be seen as a force for good, and respectful of international law.  If we decide that international law is something to be followed only when it is convenient, and that torture is acceptable as long as we claim to be doing it for lofty purposes, our reputation and moral standing take a big hit.  The resulting costs are immense.  Simply asserting that “America does not torture” only makes us look like hypocrites if the claim is demonstrated to be false.  Pictures and believable journalistic accounts of prisoners under American control being mistreated are effectively a recruiting poster for the terrorists.  They also increase the likelihood that Americans will be mistreated when the bad guys have the opportunity.  The way I see it, Mr. Cheney greatly understates the cost to the U.S. of using torture as an interrogation tool, and he also greatly overstates the incremental value that results.  People are widely debating only the second half of that statement (does it produce valuable information?), but most discussions I have seen on television ignore the first half (what is the cost?). 

If we are able to agree that the Bush administration did authorize torture (while claiming the contrary), and that some captives were in fact tortured, who – if anybody – should be prosecuted, either for committing acts of torture, or causing others to do so?  There are some well-reasoned arguments in favor of such prosecutions, but based on presently known information, I do not favor prosecuting anybody.  Basically, I am weighing political reality more heavily than moral or legal purity.  If there is strong evidence of criminal wrongdoing far beyond what is now known, that would be different. 

There is widespread agreement with President Obama that the CIA operatives who acted within the guidelines they were given should not be prosecuted.  They were following what they had reason to believe were lawful orders.  If those orders were later determined to have been unlawful, it is not fair to charge the interrogators themselves for crimes based on ex post standards.  Some people have suggested that the U.S. should prosecute the Bush Justice Department lawyers who crafted the morally challenged standards and gave an apparent legal stamp of approval to torture.  Although it might be emotionally satisfying to see some of these people in the slammer, I cannot see a legal justification for prosecuting a lawyer who offers morally repugnant advice to a client, even though the client in this case was the Pesident of the United States.  If there is a basis for disbarment of some of these lawyers (and I don’t know if that is the case), that would suit me fine, but I think a criminal prosecution would be wrong. 

That leaves the question of whether to prosecute Mr. Bush, Mr. Cheney, and perhaps a couple of other high officials such as Mr. Rumsfeld or Mr. Gonzales.  These are the people who gave the orders.  Legally and morally, they probably deserve it.  Politically, I think it is a bad idea.  In the aftermath of the 9/11 terrorist attacks, they could argue that preventing further disasters was such a critical priority that everything they did with that objective in mind should be regarded as both legal and proper.  If they believed that aggressive interrogation of suspected terrorists, and the equally illegal warrantless domestic spying, were useful in protecting the American people from another attack, they would have been derelict in their duty if they had refrained from such actions.  We can argue several years later, with the benefit of hindsight (and of course, no additional terrorist attacks in the U.S.), that some of their actions were illegal, but they should be judged on the basis of what the political atmosphere was like at that time.  Personally, I do not buy that argument, but my guess is that most Americans would accept it.  The prosecutions would be widely seen as politically motivated, and based on changed standards.  I do not want George W. Bush or (even worse) Dick Cheney to get the chance to become martyrs.  They do not deserve the moral high ground, and criminal prosecutions against them would hand them that opportunity.  Remember that back in the 1980’s, even a contemptible lawbreaker like Oliver North was able to transform himself into a folk hero when it was commonly perceived that he was treated unfairly.  It would be much better to let Bush and Cheney live out their remaining years in personal comfort and prosperity… and the disgrace that they richly deserve.  The best way to make sure that torture is never again part of U.S. official policy is not to jail the former leaders, but to make sure they are thoroughly discredited.  A criminal trial would be counter-productive. 

If there is going to be a fact-finding commission to examine some of the possibly illegal actions of the Bush administration’s “war on terror,” it should be set up by the president (not by Congress), and the appointees should be a highly respected group of Democrats and Republicans – people whose integrity is beyond doubt.  If the commission is widely perceived to be loaded one way or the other, it would be worse than useless.  On the other hand, if the commission is generally perceived as fair to all sides, it could provide a valuable public service.