June 14, 2004, 8:31 a.m.
Torturing Good Governance
The Democrats’ posturing over internal memos imperils national security.

It was the chaotic aftermath of the 9/11 attacks. I can't remember if it was the next day, a few days later, or maybe even longer than that. I just remember that the rubble peaks that had once been the World Trade Center were yet in flames, and that heroic rescue teams were still mining the wreckage, sometimes for survivors, mostly for remains.

What I most recall is the fatigued urgency of a command post several blocks away, where hundreds of agents and prosecutors scrambled 24/7 — unsure if it was over; unsure if the suicide hijackings had just been a first wave of assault. What we were most desperate for was intelligence, and what we were most frantic about were the legal roadblocks to getting it.

There were Justice Department regulations imposing a "wall" that impeded information sharing between intelligence agents and criminal investigators. There was federal law requiring the government to inform alien arrestees of the right to contact their consulate to seek assistance — a procedure that invited embarrassed diplomats to advise their countrymen to clam up. There was, of course, Miranda, the Supreme Court's fabled bolstering of the Fifth Amendment's self-incrimination clause, which systematically required police, before trying to talk to detainees, to discourage them from speaking. There was the Fourth Amendment, the Constitution's proscription against unreasonable searches and seizures, which presumptively barred investigators from arresting people or searching locations absent probable cause that a crime had been committed.

Grandstanding & Brainstorming

One couldn't help recalling desperate times and desperate measures while watching the abominable politicking in the Senate Judiciary Committee last week as Attorney General John Ashcroft was grilled by grandstanding Democrats about internal Justice Department memos analyzing the law of interrogation tactics and the propriety of torture. How could they ever ponder such things? Planet Earth to Senator Kennedy: What do you think the Justice Department does in times of crisis when the high-minded hamstrings Congress and the courts impose from their airy redoubts come crashing into the reality of government's first obligation, which — newsflash! — remains protecting the lives of the governed?

What it does — just as it did when the attorney general's last name was Kennedy — is brainstorm. It deliberates internally. It debates and grapples with what by nature are dicey, gut-wrenching questions. No sophisticated, decent, evolved society lives on the razor's edge of good and evil. As a rule, we do not make law at the margins of what is acceptable. We devise guidelines for conduct that are comfortably within those margins. Necessarily, that means there is frequently a gap — sometimes it is a gulf, sometimes a sliver — between what is legally permissible and what is morally, ethically and even politically acceptable.

Over 90 percent of the time, there is no need to divine where the lines should be drawn; it is easy and honorable to live well within them. But there is a galactic difference in matters of national security. In these, one finds no easy choices; only competing evils: Do I comply with the letter of the guidelines and risk the death of thousands of innocents it is my duty to protect, or do I violate the letter of the guidelines and subject a fellow human being to indignities in the hope of saving lives?

It is surely fair game, especially in an electoral season, for politicos to pounce on policy decisions. If the president were to adopt sadistic interrogation methods on the mere suspicion of terrorist activity; or even if he were to adopt more modest measures, restricted to only worthy targets, but try to implement them by fiat without seeking changes in conflicting laws; these would be topics highly worthy of Senate hearings, impassioned discussion, and perhaps vigorous criticism. It is an act of supreme recklessness, however, to publicize, much less politicize, internal policy deliberations.

Thinking of Everything

We want — we need — our decision makers, particularly the president in wartime, to be acting on the best, most candid, most comprehensive advice of top aides. In times of crisis, the options posed will be dire because dire may be what is called for to thwart an imminent terrorist attack or an act of brazen aggression by a rogue state. In such circumstances, it may be irresponsible not to consider, say, an aggressive interrogation method or a tactical nuclear strike. We have to be clear-eyed. We have to know what our capabilities are. We have to struggle with the shifting balance between security and decency. It is perilous, if not suicidal, to live in a world where an adviser is cowed from giving his unvarnished assessments because he knows an irresponsible legislator may someday use it to mug for the cameras, or an opportunist may betray it in a cash-in, tell-all book.

In the bedlam after the 9/11 attacks, I am quite certain I personally posited, during internal deliberations, any number of propositions that were wholly accurate, completely appropriate for us to have considered given what was at stake, and yet entirely amenable of being skewed — in the hands of Monday-morning quarterbacks who themselves avoid real-time accountability like the Plague — as if I'd proposed installing the Reich. In an appropriate case we could narrowly construe "custody," the condition that triggers the obligation to give Miranda warnings, in order to encourage detained people to speak. We could broadly construe "exigent circumstances," a condition that permits agents to search speedily without a warrant. We could detain someone as a material witness if we didn't have enough evidence of a crime to bring charges but had colorable reason to suspect the person either was a terrorist, or was aiding terrorists. We could simply ignore the self-imposed anti-sharing walls and fuse information. We could delay advising alien detainees of the right to contact their consulates until we were done interviewing them.

Giving vent to these considerations did not enshrine them as policy. But they were options and they merited mulling over. They were legal approaches for dealing with a netherworld — the one that starts just beyond the strict procedures that govern in ordinary times and ends right at the brink of moral acceptability that must, whether we like it or not, be confronted when our existence is at risk.

If I had had the luxury of time in the days right after 9/11 to put it all in a memo, I would have done just what the government lawyers did for their principals in the memos now under congressional scrutiny. I would have written to my chain of command that these steps were options we should consider in adopting a philosophy that elevated prevention of calamity over prosecuting terrorists post hoc. One is not being helpful if he minces words when asked for advice during a crisis — ambiguity is for weasels whose biggest worry is having a soft place to land whichever way the wind happens to blow. Thus, I'm sure I would have written explicitly about what this meant: On a close legal call, we will be erring on the side of obtaining vital information that could save lives; we must do it, but we should not kid ourselves; we are going to make some mistakes, and some day, when the hot breath of the threat has long cooled, someone — a judge, a senator, a newspaper of record — will ignore the deep anxiety that beset these hellacious choices and pronounce that we cavalierly ran roughshod over the Constitution we were sworn to uphold.

As we are learning, the wartime lines between aggressive interrogation, torture, and savagery also prompt anxiety for serious people. Yes, the U.S. is a party to the Geneva Conventions and the United Nations Convention against torture. Yes, we have also enacted sweeping domestic anti-torture legislation. But let's be blunt: A wide spectrum of conceivable interrogation techniques has been tucked under the bracing label of "torture." Are we really comfortable saying all of them are off the table? How do we think each of the Judiciary Committee Democrats would answer the following question: "Senator, Terrorist A knows a nuclear device is going to detonate in one hour in the most populous area of your state. Terrorist A refuses to talk. Should we try some rough stuff or just wait for the mushroom cloud?"

This is a serious matter for serious people. Even people who disagree with, or are alarmed by, what was in the government memos should still be able to recognize that they were sober and necessary treatments by able legal minds. Their insights edified the policymakers, who, by the way, never adopted the most provocative suggestions. Instead of trying to score cheap points by slinging hyperbole at public officials who were simply doing exactly what we pay them to do, mightn't it be refreshing for the Judiciary Committee to actually try to be helpful? What would be the harm of holding some hearings aimed at asking whether Congress itself hasn't erred here? Asking whether prior Congresses and prior administrations haven't put us in a bind by enacting and ratifying lofty laws and treaty obligations based on the Pollyannaish assumption that there was no need to think about the unthinkable?

On that score, it is disheartening to hear Senator Joseph Biden — who was such an honorable exception to the Democrats' lockstep libeling of the Patriot Act — going smugly native while finger-wagging at the attorney general over internal memos about interrogation and torture. "There's a reason why we sign these treaties: to protect my son in the military[,]" he piously intoned. "That's why we have these treaties, so when Americans are captured they are not tortured. That's the reason in case anybody forgets it."

No Senator, we haven't forgotten it. No doubt Daniel Pearl and Nicholas Berg would remember it, too, if only they were here to do so. But they're not. Al Qaeda, which tortured and beheaded them in captivity, seems singularly unimpressed with the Geneva Conventions and the U.N. convention against torture. Al Qaeda doesn't have a country, you see, or, alas, a prison system. They have, instead, a practice of torturing and killing their captives (unless, of course, time happens to be short, in which case the captives are simply killed). It's very economical: It saves on all that reciprocal Geneva Convention compliance we can rest assured they'd otherwise be doing.

That's what we're up against.

— Andrew C. McCarthy, a former chief assistant U.S. attorney who led the 1995 terrorism prosecution against Sheik Omar Abdel Rahman and eleven others, is an NRO contributor.