Among the Justice Department memos released recently by the Bush administration, the one that generated the most criticism, dated Aug. 1, 2002, considered the definition of torture under federal criminal laws.
Its critics have attacked the differences between the memo's conclusions and the definition of torture in the 1984 Convention Against Torture. They've attacked its discussion of possible defenses against prosecution and of the scope of the commander in chief's power. Most of all, they have attacked the fact that it did not consider policy or moral issues.
The Justice Department's office of legal counsel, in which I served, produced the memo. It is important to understand the memo's function so that future administrations may receive such candid advice on the most delicate and important kinds of legal questions.
First, there is a clear and necessary difference between law and policy. The memo did not advocate or recommend torture; indeed, it did not discuss the pros and cons of any interrogation tactic. Rather, the memo sought to answer a discrete question: What is the meaning of "torture" under the federal criminal laws? What the law permits and what policymakers chose to do are entirely different things. Second, there was nothing wrong -- and everything right -- with analyzing a law that establishes boundaries on interrogation in the war on terrorism. Unlike previous wars, our enemy now is a stateless network of religious extremists. They do not obey the laws of war, they hide among peaceful populations and launch surprise attacks on civilians. They have no armed forces per se, no territory or citizens to defend and no fear of dying during their attacks. Information is our primary weapon against this enemy, and intelligence gathered from captured operatives is perhaps the most effective means of preventing future attacks.
An American leader would be derelict of duty if he did not seek to understand all his options in such unprecedented circumstances. Presidents Lincoln during the Civil War and Roosevelt in the lead-up to World War II sought legal advice about the outer bounds of their power -- even if they did not always use it. Our leaders should ask legal questions first, before setting policy or making decisions in a fog of uncertainty.
