If waterboarding is torture and a crime, why weren’t the CIA agents who waterboarded KSM charged?

Because, at the time they did it, the Office of Legal Counsel said it was legal. When they realized that no court would ever agree with that, Congress passed a law to protect the torturers:

Public Law 109-148 DEPARTMENT OF DEFENSE, EMERGENCY SUPPLEMENTAL APPROPRIATIONS TO ADDRESS HURRICANES IN THE GULF OF MEXICO, AND PANDEMIC INFLUENZA ACT, 2006

SEC. 1004. PROTECTION OF UNITED STATES GOVERNMENT PERSONNEL ENGAGED IN AUTHORIZED INTERROGATIONS.

(a) Protection of United States Government Personnel.–In any civil action or criminal prosecution against an officer, employee, member of the Armed Forces, or other agent of the United States Government who is a United States person, arising out of the officer, employee, member of the Armed Forces, or other agent’s engaging in specific operational practices, that involve detention and interrogation of aliens who the President or his designees have determined are believed to be engaged in or associated with international terrorist activity that poses a serious, continuing threat to the United States, its interests, or its allies, and that were officially authorized and determined to be lawful at the time that they were conducted, it shall be a defense that such officer, employee, member of the Armed Forces, or other agent did not know that the practices were unlawful and a person of ordinary sense and understanding would not know the practices were unlawful. Good faith reliance on advice of counsel should be an important factor, among others, to consider in assessing whether a person of ordinary sense and understanding would have known the practices to be unlawful. Nothing in this section shall be construed to limit or extinguish any defense or protection otherwise available to any person or entity from suit, civil or criminal liability, or damages, or to provide immunity from prosecution for any criminal offense by the proper authorities.

If waterboarding is torture and a crime, why weren’t the CIA agents who waterboarded KSM charged?

so what this comes down to is whether defining waterboarding as torture is reasonable.

Waterboarding is torture, as has been found by courts before. See this brief article in today’s Washington Post, or this rough draft of an academic article. And it is torture according to acting assistant attorney general Daniel Levin, who voluntarily underwent waterboarding in order to investigate its legality.

It’s established law, not a matter of semantic quibbling. There are no exceptions to the law for national security purposes. There are no exceptions for any purpose. Our national security personnel our not in a Catch-22. They are not permitted to torture. It is a crime punishable by up to 20 years in prison.

Even if we change our laws to permit torture, anybody who tortures is still subject to prosecution by any number of other countries, our allies.

Nobody has presented any convincing evidence to me that torture makes us safer.

Analysis? I think she’s better than Patterico on these subjects, not least of which because she’s more interested in them. Also, she seems to “get them” more than many male bloggers without military experience do. Style? Gag me.

Let’s assume for the purpose of this discussion that waterboarding is torture. In fact, let’s assume that standing naked in freezing cold and other coercive interrogation techniques used by the CIA are torture, too. Where does that get us?

From a legal standpoint, it means we can’t use those techniques because US law forbids torture – except possibly for national security purposes, so maybe those techniques are back on the table again. However, anyone who uses those techniques will be subject to an elevated risk of prosecution since torture is illegal. That puts our national security personnel in a real Catch-22.

From a moral standpoint, we can feel good about ourselves because we have principles – except when we learn we could have avoided another 9/11 or Madrid or London bombing but we didn’t. It’s a hollow principle that let’s innocent people die – people who believe the government is working to protect them – when it might have prevented it.

From a practical standpoint, we may have hamstrung our national security intelligence-gatherers – so what this comes down to is whether defining waterboarding as torture is reasonable. That’s really all we’re talking about here. It’s semantics to argue other whether this is coercive or torture, and one is fine while the other isn’t.

The ultimate question is where on the continuum of interrogation techniques do we as a society (not you and I as individuals) draw the line on permissible tactics. It doesn’t matter whether we are Democrats or Republicans. Until we find a better technique, waterboarding high-value detainees who we think have valuable information is effective. I submit it’s a technique our leaders and people are willing to use in some situations.

Ken, your sweeping generalities and hyperbole have left me permanently scarred. Quit torturing me.