WASHINGTON—Several years ago, I asked a veteran journalist for advice.
"I'm trying to figure out if I have an ethical conflict," I began.
"If you have to ask, you do," he said.
Simple as that. In posing a question, we often reveal the answer.
Apply the same construct to torture. If we have to ask, it probably is.
Yet, as we've learned with the recent release of Justice Department memos related to interrogation techniques, Bush administration lawyers tortured the English language trying to justify the unjustifiable.
"Enhanced interrogation" wasn't really torture, they decided, as long as the pain administered didn't result in "death, organ failure or serious impairment of bodily functions."
By that definition, waterboarding—the simulated drowning technique favored by Inquisitors ferreting out heretics—wasn't torture. People might feel like they were going to die, but they weren't really, and so ...
In other now-familiar mutations, those held in custody weren't really prisoners, but "detainees" or "alien combatants," and therefore not entitled to humane treatment under the Geneva Conventions.
Granted, it is easy now to sit back and judge these definitions and memos as morally repugnant. It is less easy to place ourselves in the mindset that dominated the nation immediately after 9/11 and that guided the Bush administration in trying to prevent future attacks.
But we are also reminded that those who objected most strenuously to relaxed definitions of torture and the scrapping of due process even for "alien combatants" were among those most familiar with war and interrogation, including Sen. John McCain and then-Secretary of State Colin Powell. While lawyers sought loopholes, our most admired warriors argued for protection of the laws of war.
Few have put it more clearly than South Carolina Sen. Lindsey Graham, who is also an Air Force colonel and senior instructor at the Air Force JAG School and has served tours of duty in Iraq and Afghanistan. In a 2006 Newsweek interview, Graham said: "Either we're going to use torture or we're not. And when you say, we won't use torture, unless we think we really, really need it (then) we're not a rule-of-law nation."
It comes down to that. We're either a rule-of-law nation—or we're not. We can't invent definitions of torture for one type of person that wouldn't be acceptable for another, no matter how much we may despise or distrust him. As Graham put it: "I don't love the terrorists, I just love what Americans stand for."
Meanwhile, how trustworthy are the confessions of the tortured? Not very, according to those who know.
Most important, we can hardly present ourselves as arbiters and protectors of human rights when we selectively abuse those in our custody, no matter how compelling our cause. When we parse definitions of "mental pain" and "suffering," we begin to slip down the slope of moral ambiguity where deceit finds company among the dead.
The lawyers who wrote these now-public opinions clearly were looking for ways out of a moral quandary—how to square the means with the end. And doubtless many Americans agree that protecting the U.S. against terrorist attacks justified nearly any method.
Almost daily I receive a recycled 2002 quote by Harvard law professor Alan Dershowitz, who argued in a "60 Minutes" interview that most people would justify torture under certain circumstances:
"Is there anybody who wouldn't use torture to save the life of his child? And if you would, isn't it a bit selfish to say, 'It's OK to save my child's life, but it's not OK to save the life of 1,000 strangers?' That's the way people will think about it."
In his book "Shouting Fire: Civil Liberties in a Turbulent Age," Dershowitz proposes that since torture is a given under those certain circumstances, then "torture warrants" should be issued by a judge.
He is right that most of us would do whatever necessary to save our child, possibly even torture a kidnapper. Likewise, if we stumbled upon someone trying to harm a loved one, we would kill the attacker if necessary to stop him.
But those are both darkly impassioned environments. It is by the cool light of day that we devise our laws. And it is by that same light that we judge our actions.
When we ask if something is torture, the answer is another question: What kind of people should we be?