I’m reluctant to criticize the work of other journalists, and especially that of investigative journalists, because as a reader I usually don’t know enough about the subject matter, or the sources, or the corroborating work that shaped the story in question. But this Washington Post piece, which makes bold claims about the efficacy of waterboarding, bothered me for various reasons. It burned up the blogosphere over the weekend and was a kind of overture to Dick Cheney’s appearance on Fox News Sunday.

My complaint has more to do with the context, or lack of it, than with the content of the story itself. But in this case, context is everything.

The story is titled “How a Detainee Became an Asset: Sept. 11 Plotter Cooperated After Waterboarding.” And that’s pretty much its only point, gleaned mainly from interviews with anonymous sources and a few lines from CIA reports released last week: waterboarding done on Khalid Sheikh Mohammed, the 9/11 plotter, made him cooperate and yield valuable information about al Qaeda.

What happened in KSM’s interrogations is historically and legally significant, and thus politically controversial – hugely so. This story, however, treats its subject matter not from that perspective but as a daily scoop, advancing the story of the week – the release of the CIA’s torture documents and Cheney’s response.

And in that sense, the biggest problem here is opacity. We don’t know who the Post’s anonymous sources are. But we do know what bureaucratic or political agendas they are seeking to advance by talking about this case right now. The CIA is embarrassed and facing a Justice Department investigation. So some elements within the agency – and especially those who participated directly in this program – have a political and legal interest in trying to paint the “EITs” (the official acronym for enhanced interrogation techniques – who knew?) as successful. As do Dick Cheney and his various acolytes. This undermines the story’s credibility, yet the Post basically asks us to take the statements of its anonymous sources at face value.

There’s also the timing. The story appeared the day before a scheduled Cheney interview, and bolstered his arguments (which are not real arguments but demagogic assertions, which in my mind damages whatever actual, utilitarian case might be made for torture). When I saw it I thought instantly of how the Bush administration had played the New York Times with the “aluminum tubes” story. In 2002, “senior administration officials” strategically leaked disputed information about Saddam Hussein’s alleged (and, as it turned out, nonexistent) nuclear program to the Times, then used the NYT’s own story to bolster the case for war. Here’s the NYT’s own retrospective account:

“On Sept. 8., the lead article on Page 1 of The New York Times gave the first detailed account of the aluminum tubes. The article cited unidentified senior administration officials who insisted that the dimensions, specifications and numbers of tubes sought showed that they were intended for a nuclear weapons program.

”The closer he gets to a nuclear capability, the more credible is his threat to use chemical and biological weapons,” a senior administration official was quoted as saying. ”Nuclear weapons are his hole card.”

The article gave no hint of a debate over the tubes.

The White House did much to increase the impact of The Times’ article. The morning it was published, Mr. Cheney went on the NBC News program ”Meet the Press” and confirmed when asked that the tubes were the most alarming evidence behind the administration’s view that Iraq had resumed its nuclear weapons program. The tubes, he said, had ”raised our level of concern.” Ms. Rice, the national security adviser, went on CNN and said the tubes ”are only really suited for nuclear weapons programs.”

After the tubes incident, I never read an intelligence-related story quite the same way again. Did the Post allow itself to be manipulated here in exchange for a scoop? Cheney didn’t mention the Post story in his interview – whew! But clearly, something went wrong here. The scoop here doesn’t tell us anything about the efficacy of torture in producing reliable information – even in KSM’s case, for that matter. If a scoop actually obscures the issue at hand, what good is it?

President Obama deserves credit for releasing the Bush torture memos. But his position on torture prosecutions is so muddled it gives nuance a bad name (and just when it was making a comeback). There are so many bad actors it’s hard to figure out how to handle them all, but Obama’s position is, or appears to be: CIA interrogators won’t be prosecuted. The lawyers who wrote the now-infamous memos may be. The top officials who were ultimately responsible – Bush, Cheney, Rumsfeld, Tenet, others – probably not. And – maybe – there should be some kind of 9/11-style commission to examine this. But Obama is not actually calling for that, just suggesting it.

This makes sense only through the prism of politics – and a complex politics it is, involving constituencies in the intelligence and defense bureaucracies, Congress and the nation as a whole. Obama is trying to please, or to not offend, as many of these constituencies as possible, while at the same time laying down a clear marker against torture.

Obama should be setting the tone for how the country handles the torture issue. Instead, the debate has slipped away from him entirely and taken on a life of its own. Democrats are agitating for investigations and prosecutions. Republicans are arguing that torture works (pivoting from, without completely abandoning, the now-untenable “we do not torture” refrain). And Obama is both parsing up a storm and trying to stay above it all.

I empathize – Obama is trying to accomplish a lot, and the torture debate can only suck attention from much bigger issues, while opening up political and social divisions the president is trying to put behind him. It may even make more sense, in terms of building a lasting anti-torture consensus, to have less accountability rather than more. But this process requires clarity, not endless caveats. How, for example, does Obama’s don’t-prosecute-the-interrogators-policy apply to the period before the legally enabling memos were written? A process has begun here; more disclosures will follow the ones we’ve already seen. It will be messy and politically contentious – exactly the kind of thing we know Obama doesn’t like one bit. But that is how democracy works, and Obama would be advised, to the degree he can, to simply get out of the way.

This weekend the Washington Post reported that Abu Zubaida, the alleged al-Qaeda operations chief who was waterboarded and subjected to other forms of torture was neither a particularly important terrorist nor revealed much useful information. Interestingly, Ron Suskind had already reported this three years ago in his book The One Percent Doctrine. As Dan Froomkin notes, “mainstream news organizations, unable to match Suskind’s sources, largely refused to acknowledge his reporting.” And Bush continued to cite Abu Zubaida as an example that “enhanced interrogation techniques” work.

There’s an interesting lesson here on how history – both unfolding events and our collective interpretation of them – works. Suskind went out on a limb in his book – getting a source or sources to give an account completely at odds with the official line. But why did it take so long to confirm? Why were reporters for the Post, the New York Times, and other outlets unable to persuade their sources in the intelligence community to go on the record? There are a number of reasons for this: the threat of discovery and retaliation has lessened considerably; they want to discredit a dishonorable and defective technique; they want to be on the right side of history. In other words, the oddly pragmatic mixture of conscience and opportunism always at work in leaks of this nature.

I am a big fan of 24 – at least, I was until the last season – but the right’s gushing love of the show and the hero-worship of Jack Bauer always baffled me. It should be obvious to anyone over the age of 12 that TV suspense dramas are not the foundations on which effective government policies are built. The fact that so many in the upper levels of the federal government saw Bauer’s ridiculously improbable antics as the model when they ginned up the legal superstructure governing “enhanced interrogation” is alarming not just because it enabled torture, but because it’s just dumb on its face.

Dahlia Lithwick takes this point to its logical conclusion, which is that those who emulated Jack didn’t really understand him or the milieu in which he operates. He is the outsider, the only person willing to cross any bureaucratic, legal, and moral line to save the day:

Bauer is also willing to accept the consequences of his decisions to break the law. In fact, that is the real source of his heroism—to the extent one finds torture heroic. He makes a moral choice at odds with the prevailing system and accepts the consequences of the system’s judgment by periodically reinventing a whole new identity for himself or enduring punishment at the hands of foreign governments. The “heroism” of the Bush administration’s torture apologists is slightly less inspiring. None of them is willing to stand up and admit, as Bauer does, that yes, they did “whatever it takes.” They instead point fingers and cry, “Witch hunt.”

In other words, the moral universe of 24 is a little more complicated than it’s usually given credit for. Jack Bauer is the only character on the show – and, by extension, in 24‘s fictional U.S. government – with the judgment to cross those lines. And he pays a terrible price for it. By legalizing and bureaucratizing torture to protect would-be Bauers, the Bush administration guaranteed that lots of people w/o Jack Bauer’s judgment, or his willingness to take the fall for the greater good, would be greenlighting torture. If this happened on the show, all those scheming CTU and Homeland Security hacks who give Jack trouble would be whipping out the electrodes on any flimsy pretext available, making it impossible to discern the truth. In fact, that’s not a bad plot device. Too bad it really happened.

I have a Guardian piece up discounting the possibility of war crimes trials for Bush & Co. in the United States. I do think, though, that a Pinochet scenario – a torture indictment by a zealous foreign prosecutor – is probable at some point from 2009 on for Bush, Cheney, or Rumsfeld, most likely the latter.

There is just too much to be gained, in terms of international opinion, political stock, and, well, justice itself, for some enterprising European civil servant not to go after those big, big fish. You might think that outrage in the United States, and the various forms of diplomatic pressure that would follow on that, would render this impossible. But once Bush leaves the White House, he will lose the symbolic cloak of office that makes him a symbol of America and still buys him a measure of respect and deference. No one of consequence will rise to his defense. Pinochet at least had Margaret Thatcher – who will speak for Bush? Most of the country will be so relieved to see Bush go they will quickly forget he ever existed, and won’t care a whit if he or his associates are indicted in absentia abroad somewhere.

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