Osama bin Laden sleeps with the fishes. His deputy, Khalid Sheikh Mohammed, sleeps between clean sheets, eats three square meals a day, and receives the same quality of medical care as U.S. military officers. Yet for many people, not least the president of the United States, what happened to OBL — shot dead by Navy SEALs — represents justice and victory, while what happened to KSM — waterboarded under conditions designed to ensure no lasting physical harm — was unjust and outrageous. Is there any logic to this?
Let me concede that there may be a little. OBL was confronted in a private residence in a suburban community in an allied country. But because he was engaged in unconventional warfare, his presence transformed that area into an unconventional battlefield. KSM, by contrast, was subjected to waterboarding after his capture and while in U.S. custody. An American captive becomes an American responsibility. That raises the question: Precisely what are we responsible to do?
Because KSM violated the most fundamental laws of war, he does not merit the rights and privileges due an honorable soldier who, once captured, becomes a prisoner of war obligated only to reveal his name, rank, date of birth, and serial number, and entitled to such privileges as cooking implements, musical instruments, and a modest salary.
Nor should an unlawful combatant be regarded as a common criminal entitled to Miranda rights, a speedy trial by a jury of his peers, and the presumption of innocence. The distinction between a terrorist who targets innocent civilians for mass murder and a guy who holds up a grocery store should not be as difficult to grasp as it apparently is for many who fancy themselves “human-rights activists.”
In addition to providing due process to KSM — meaning only the process due an unlawful combatant — national-security officials are obligated to defend Americans. To fulfill that duty, they had to make a strenuous attempt to elicit information from KSM about planned terrorist attacks and al-Qaeda’s methods of organizing them, and, of course, they had an interest in locating KSM’s boss and taking him out of the fight.
That implies that CIA officers had to determine which interrogation techniques were most likely to prove effective and, of these, which were permitted and which prohibited. The Justice Department provided written guidance. The media have called this guidance “torture memos,” but they were really “don’t-torture memos,” because they drew a line between “torture” and Enhanced Interrogation Techniques (EITs), coercive methods short of torture as the memos’ drafters believed that term is defined under the relevant laws.
One can argue that Justice Department legal experts drew the line between torture and EITs in the wrong place, but no one who actually reads the memos can say they did not make a serious attempt to draw a line. The charge that they were merely granting license for interrogators to do anything at all is flatly spurious.