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I’ve spent far too much of this weekend reading about the line between enhanced interrogation and torture, looking to clarify some issues in my own mind.

I’ve started with this Federalist Society forum, which also includes links to the Office of Legal Counsel memos released by the Obama administration. I recommend reading most of all of the memos, although there is a lot repetition in defining terms. To me, they seemed to wrestle very seriously with the application of vague federal anti-torture laws, and those laws’ relevance to standards set by the U.N.’s Conventi0n Against Torture.

Unless one starts with the presumption that the Bush administration was inherently sadistic, it shouldn’t be difficult to see in the memos a good-faith effort to draw lines and micromanage the enhanced interrogation process of high value targets to the point that the 10 techniques therein deemed legally permissible were conducted within the limits of the law.

Now that I’ve gone through the memos without too much concern about the reasonableness of their legal advice, some of the discussion in this forum does raise concern.

The timeline of the use of these interrogation techniques post-9/11 and the writing of the OLC memos does indicate that the techniques were used first, and legal cover for these techniques was sought later. In the debate, David Luban assumes this was a CYA maneuver to retroactively justify knowingly illegal conduct. However, one with a different set of assumptions may just as easily suspect that the legal cover was sought only after the fact because those engaged in the conduct did not consider it torture and in need of legal justification until objections were made later.

Most of the key issues come down to that same conflict of contrasting assumptions, and while I’m still combing through the discussion, I think Stephen Vladeck made this important point early on in the exchange:

The first question is whether any of these officials could be prosecuted for the opinions they wrote, the advice they provided, or the decisions they made. And it’s only if that question is answered in the affirmative that we need to reach the second question, i.e., whether they should be.

To suggest, as Andy McCarthy does, that prosecutions would represent the “criminalization of politics” is to invert the inquiry. Thus, those (like Andy) who oppose prosecutions appear to believe beyond question that the relevant officials were all acting “in good faith,” and that the overwhelming majority of the conduct undertaken by our CIA and military personnel did not actually constitute “torture.” In other words, prosecutions would be inappropriate because no crimes were committed. Of course, that only assumes the first question, rather than answering it. And while it is possible that some of those who oppose prosecution believe that we should not hold officials to account even if they did break the law, such a view would rest on underlying beliefs quite distinct from those that have been articulated thus far.

On the flip side, those who support prosecutions also assume the first question, for they are equally convinced that the relevant officials acted with malice aforethought, and that they knew that the specific interrogation techniques they were sanctioning violated fundamental precepts of both domestic and international law. In other words, it is clear that these officials can be prosecuted, and so they should be, lest we jeopardize our moral leadership on the international stage, and perhaps even the central premise of American constitutionalism-that ours is “a government of laws, not of men.”

As long as the debate takes place on these terms, it will be intractable, and any solution will necessarily alienate one side of the conversation. That’s why the real underlying imperative, at least for the time being, should be the gathering and dissemination of more information-whether by Congress, the Obama Administration, or an independent body established for that purpose. And that’s why President Obama’s decision to release the OLC memos was, in my view, such a necessary (albeit not sufficient) step.

MORE: The Federalist Society » Debates.

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