Let's try a thought experiment. Let's suppose that the Bush administration didn't use waterboarding and other enhanced interrogation techniques when capturing the likes of KSM. Let's further suppose that there was an attack several years later and it was then learned that KSM knew about it but we didn't get that information from him. Does anyone believe that this day, now, we wouldn't be using each and every tough interrogation technique available? Does anyone believe that anyone but the truly looney would have any doubt about their legality? Does anyone think we would be debating whether or not we should try those that made legal opinions about its legality?
What's truly infuriating about this debate is that many on both sides are turning a political debate into a Constitutional one. Let's make this clear. Whether or not waterboarding and other tough techniques are or are not torture is NOT clear. It is a debate that folks all stripes can have till everyone is blue in the face and reach no resolution. Furthermore, whether or not this is or is not Constitutional is also entirely unclear.
Here's how I know. Back in the 1940's, FDR set up an office of censorship. That's right. FDR brazenly violated the First Amendment. Now, I don't remember any of the lawyers involved in formulating the legal opinion to allow him to do this ever being threatened with prosecution. I don't remember anyone involved with this policy ever being threatened with prison. During WWI, Woodrow Wilson set up the Creel Commission, which among other things opened up mail of war opponents. This blatant violation of the Fourth Amendment landed no one in jail. Just more recently, the District of Columbia was found to violate the 2nd Amendment with their handgun ban. Despite decades of illegal activity, no one associated with the formulation or implementation of this blatantly unconstitutional policy was ever threatened with jail time.
The main difference between the three examples that I cited and the Bush policy is that those three were perpetrated against American citizens themselves not our enemy during war time. Now, some will purport to say that while FDR can censor and face no punishment, President Bush can't dunk Al Qaeda in water in order to gain valuable information that winds up saving American lives.
If the Obama administration believes this policy is both unnecessary and unconstitutional, then they should proceed without it. Furthermore, the best way to prove their point is to keep America as safe as the Bush administration did without its use. All the Obama administration needed to do to indict this policy is to make sure that there were no attacks under its watch without using it. Yet, that wasn't good enough. Istead of simply moving forward with that goal, they skipped, three months into their term, by trying to indict, literally, their predecessors.
This is a political exercise masquerading as a Constitutional one. What exactly will justice find to be illegal? Al Qaeda wear no uniform. They represent no country. They target civilians. Where exactly in the Constitution is there a black and white assertion that waterboarding these folks is against the Constitution. If the current Justice Department decides this interrogation technique is illegal, they can draw that opinion. Furthermore, the Obama administration can follow that opinion. To then decide that because another administration interpreted the Constitution differently on the same issue that would be an illegal act would masquerade a political debate as a Constitutional one.
Please check out my new books, "Prosecutors Gone Wild: The Inside Story of the Trial of Chuck Panici, John Gliottoni, and Louise Marshall" and also, "The Definitive Dossier of PTSD in Whistleblowers"