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.
Here's what we know now that we did not know a few days ago: The information that was elicited from KSM through these methods provided the seed of intelligence from which grew the vine that led Navy SEALs to OBL.
In other words, waterboarding worked. It was almost certainly not the Jack Bauer version: KSM coughing up the answer his interrogators were seeking. Rather, over time, he apparently became compliant and talkative, providing interrogators with large amounts of information — including, at one point, the nickname of OBL's trusted courier. Some analyst was clever enough to realize that this tidbit might be developed into "actionable intelligence."
According to credible accounts, Abu Faraj al-Libi, KSM's replacement as al-Qaeda's external operations chief, and Mohammed al-Qahtani, who was intended to be the "20th hijacker," revealed additional information that helped lead to what U.S. officials are now calling al-Qaeda's command and control facility 40 miles from the Pakistani capital of Islamabad.
Al-Libi and al-Qahtani were subjected to EITs — though not waterboarding. Only three terrorists were ever waterboarded. But al-Libi and al-Qahtani were among the 30-odd unlawful combatants — out of thousands who have been detained — subjected to other "stress and duress" measures, probably including sleep deprivation and psychological manipulation. These methods have now been classified as "torture" and removed from the American interrogator's tool box.
Is it possible that the road to OBL's house could have been found without recourse to coercion — through nothing harsher than polite conversations? I doubt that such hardened terrorists as KSM could have been broken only through "good cop" interrogations. But I suppose we'll never know for sure. What we do know is that in this instance, vital intelligence was produced through methods of interrogation that critics of the Bush administration insisted were ineffective, immoral, and illegal. The first of those three claims has now been proven wrong. This should not come as a surprise: Former CIA director Michael Hayden has said that as late as 2006, fully half of the government's knowledge about the structure and activities of al-Qaeda came from harsh interrogations. In his book Courting Disaster, Marc Thiessen details the several terrorist attacks that were thwarted thanks to the use of EITs.
This, too, should be obvious: If President Obama deserves praise for authorizing the attack on OBL, and the Special Operators who carried out the mission deserve medals, the CIA interrogators who produced the intelligence that made all this possible should not be prosecuted for their contributions. They were acting in good faith and obeying the laws as the Justice Department had explained them.
Last week, when President Obama visited Ground Zero in New York, he was asked by Debra Burlingame, the sister of one of those murdered on 9/11, if he would at least advise Attorney General Eric Holder to remove the threat that the CIA interrogators have faced since he was elected. "No, I won't," Obama replied before walking away. To say this was discourteous to her and unjust to the CIA officers who gave Obama the greatest victory of his presidency is an understatement.
The debate over how to define torture will go on. The debate over what, if any, interrogation methods short of torture should be permitted — and under what circumstances and with whose authorization — should resume. But the Obama administration's current practice — killing terrorists in their homes but never causing them sleepless nights, not even to elicit life-saving intelligence — defies logic. It is willing the ends while prohibiting the means. It is bad policy and confused morality.