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Commentary: Little good will follow release of torture memos

This article first appeared in the St. Louis Beacon, April 30, 2009 - You would think that Barack Obama had enough on his plate. Not since Harry Truman assumed office in the midst of a world war has a president inherited so many daunting challenges on Inauguration Day.

With two interminable wars raging and no clear end in sight on either, a budget deficit of biblical proportions and a collapsing global economy to worry about, one would suppose that Mr. Obama would be anxious to avoid further insolvable problems. Apparently not. His administration has just kicked over a hornets' nest by de-classifying so-called "torture memos" from the Justice Department.

These Bush-era documents authorized the CIA to employ "enhanced interrogation techniques" on terrorism suspects. If you're ever searching for an ominous euphemism, "enhanced interrogation techniques" should do until a better one comes along.

Acquiescing to an ACLU Freedom of Information request, Attorney General Eric Holder released the memos along with initial assurances from himself and the president that persons who relied on the legal opinions expressed in them to torment suspected terrorists would not be prosecuted.

In doing so, they sought to strike a compromise between the dictates of the rule of law and the need for expediency. What they got was a bad bargain.

It's easy now to pontificate about our shared American values and to condemn the extra-legal measures that were adopted in the wake of the 9/11 attacks. But things looked differently from the smoldering ruins of the World Trade Center.

We had just been hit -- and hit hard -- by an elusive and ill-defined enemy fanatically intent on our destruction. Gleaning information about our adversaries was the paramount national security objective.

I'd be willing to bet that had we put it to a vote on 9/12, an overwhelming majority of Americans would have been more than willing to allow our intelligence operatives to do whatever was necessary to defend us. Ordinary citizens may not have wanted to learn the grisly details, but they certainly wanted the desired results: a sort of "don't ask, don't tell" policy on torture.

Now that we've collectively calmed down, it's hardly fair to the people who did the dirty work to announce that they'll be prosecuted for their crimes -- crimes they committed on our behalf and with our silent consent. While most of us had the luxury of looking the other way, some had a job to do.

That said, there remains the pesky problem of the rule of law. To the extent that torture violates the U.S. Constitution, the Geneva Convention -- to which the U.S. is a signatory -- and international law, its use cannot be formally condoned or excused. Once acknowledged, it has to be acted upon, which is why it was a singularly bad idea to make the incriminating memoranda public.

Of course, you could argue that no crimes were committed because the interrogators lacked criminal intent. After all, the operatives had been told that their actions were permissible; and the authors of the tortured reasoning contained in the memos could claim to be lousy attorneys who innocently misinterpreted the constitutional powers of the president. Unfortunately, ignorance of the law is no excuse; and we rejected the facile "only following orders" defense at Nuremberg, where we hanged many Nazis who relied upon it.

As the film Dirty Harry illustrates, when a cop crosses the line on behalf of the greater good, he's well advised to keep his mouth shut. In Don Siegel's iconic cop thriller, Clint Eastwood portrays Inspector Harry Callahan, a homicide detective in pursuit of the serial killer, Scorpio.

Early in the film, Scorpio kidnaps a young girl. After molesting her, he phones authorities to advise that he has buried the victim alive with a limited air supply at a hidden location. If his demands for ransom are not met, he'll let the girl die.

Harry finds incriminating evidence during a constitutionally dubious search of a possible suspect's living quarters, after which he catches up to his perp on a deserted football field in the middle of the night. The fleeing suspect makes it to about the 50-yard line before Harry produces his legendary .44 magnum and shoots his right leg from under him.

As the detective approaches his now prostrate prey, Scorpio sobs in pain and demands his lawyer. Harry responds to this assertion of 6th Amendment rights by standing on the wounded limb until he learns where the girl is buried.

So far, so good: What the cop did was clearly illegal, but the audience is firmly on his side because he broke the law trying to save the girl. Things go to hell, however, when the case reaches the DA's office.

There, we learn that Harry detailed his own version of "enhanced interrogation techniques" in his official arrest report. Because of the Exclusionary Rule -- the Supreme Court doctrine that prohibits illegally obtained evidence from being introduced at trial -- the DA has no case.

The girl died before cops could reach her, so she can't testify. Evidence seized during the unconstitutional search is inadmissible, as is the confession obtained by torture. The DA concludes by telling Harry that he's lucky he's not being charged, and the killer is released.

An apparent villain, the DA was actually upholding the rule of law. Harry, who apparently slept through all classes at the police academy not held at the firing range, made it impossible to prosecute.

Similarly, the president has ignited a firestorm that promises to grow out of control by publicly detailing activities that would have been better left to the imagination.

Once the facts are known, the law becomes despotic.

In the movies, everything worked out in the end. Scorpio got his just desert at the business end of Harry's magnum and Harry went on to star in several sequels.

Our president, however, has a problem: Pardons would outrage his supporters on the left; prosecutions will galvanize his critics on the right. We shall see if his commitment to transparency wins his first term a sequel of its own.

M.W. Guzy is a retired St. Louis cop who currently works for the city Sheriff's Department. His column appears weekly in the Beacon. 

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