Ever since 9/11, the greatest challenge for us all has been how to keep a sense of proportion and maintain a capacity for dispassionate judgement. Through the aftermath of the attacks themselves, the war in Afghanistan, the debate over weapons of mass destruction and Iraq, the war there and its aftermath, the pressure on our sense and judgement has been relentless. The Torture Papers: The Road to Abu Ghraib, just published by Cambridge University Press, epitomises these pressures and why we must cope with them. It goes to the heart of our common concerns about human rights. It confronts us with a greater than usual imperative to exercise sense and judgement - and define where we stand.

Michael Ratner, President of the US Centre for Constitutional Rights, is quoted on the dust jacket as stating, The Torture Papers may well be the most important and damning set of documents exposing US government lawlessness ever published&Each page tells the story of US leaders consciously willing to ignore the fundamental protections that guarantee all of us our humanity. I fear for our future. Read these pages and weep for our country, the rule of law and the victims of torture everywhere. I think Ratner is in error. I think the book highlights not lawlessness in the US government, but the acute attention paid by the administration to the legal implications of attempting to suppress the most unconventional and truly lawless enemy it has ever confronted.

The Torture Papers consists of three kinds of documents: memorandums drafted and circulated within the American government in the wake of 9/11; reports on the abuses in Iraq and supplementary testimonies and letters. The government memorandums take up the first 380 pages of the book. They date from September 25,  2001, to March 19, 2004. They tell the story that Ratner describes as damning. The second set of documents consists of seven reports, supplemented by various sworn statements and letters. These seven reports consist of a report by the Red Cross and four official American inquiries into the abuses in Iraq, which address what happened in great detail, along with two reports by committees of lawyers, which argue on more general lines that there should be an absolute prohibition on torture of any kind under all circumstances. The inverted commas are an indication of what is actually at stake here.

The government memorandums make fascinating reading for two reasons. First, because they address a vitally important subject in great detail, making closely reasoned arguments. Second, because the editors of the book, like Ratner and others, see these memorandums as the conscious preparation, by policy makers who do not like our system of justice, of a warrant for three pernicious purposes&(1) the desire to place the detainees beyond the reach of any court or law; (2) the desire to abrogate the Geneva Convention with respect to the treatment of persons seized in the context of armed hostilities; and (3) the desire to absolve those implementing the policies of any liability for war crimes under US and international law. The consequence, in the words of editor Joshua Dratel, was the rampant abuse of detainees first in Afghanistan, then at Guantanamo Bay, and later in Iraq.[iv]

I think Dratels reading of the documents is seriously overwrought. There are cases, of course, where such pernicious planning is done with both evil intent and grievous consequence. Perhaps the most notorious is the Wannsee protocol, of January 20, 1942, in which Reinhard Heydrich laid out the blueprint for the Nazi genocide of Europes Jews.[v] Another case is that of the voluminous archival evidence of Lenins and Stalins complicity in the creation of a system of terror and forced labour in the Soviet Union, which led to the slaughter of millions between 1917 and 1953.[vi] If your reaction to these comparisons is a reflex incredulity, along the lines of Come on, no ones suggesting that the US government has behaved like Nazis or Stalinists, you have a sense of proportion.

Dratel, however, does not seem to see such parallels as overdrawn. He draws just such a comparison himself, writing: like the Nazis punctilious legalisation of their final solution, the memos reproduced here reveal a carefully orchestrated legal rationale, but one without valid legal or moral foundation&[vii] He likens them, also, to the other legally instituted but forever discredited stains upon US legal history: the internment of Japanese during World War II, the treatment of native Americans and slavery.[viii] Somewhat surprisingly, he does not refer to the public hounding of real or suspected communists in America after the Bolshevik Revolution and in the first decade of the Cold War, though these would surely have been better parallels to what he is dealing with than the treatment of native Americans or slavery. The internment of the Japanese is another matter, itself the subject of much misunderstanding and confused thinking.[ix]

But there is a better mental model than any of these for thinking about what The Torture Papers reveal. It might be called the Dirty Harry syndrome, after Harry Callahan (Clint Eastwood), in Don Siegels famous 1971 film about crime and law in San Francisco. It is the frustrated desire to be able to get hold of the al Qaeda terrorists, hold a .44 Magnum in their faces and ask Feel lucky, do you, punk?[x] On any reasonable reading of the evidence, this was the mentality that gripped much of America in the aftermath of 9/11. Whether it led to unacceptable consequences is the debate we should have, but we need to begin by keeping it in clear moral perspective and not confusing it with such things as Nazi genocide or the history of slavery.

The Dirty Harry syndrome is nicely captured by an exchange between Chicago cop Jimmy Malone (Sean Connery) and Federal agent Eliot Ness (Kevin Costner) in Brian de Palmas excellent 1987 film, The Untouchables. Ness has been assigned the task, in thoroughly corrupt and violence-ridden Chicago, of going after the kingpin of organised crime, Al Capone, who runs his crime empire with utter contempt for the law, using ruthless violence against all who stand in his way. Ness quickly discovers that his guileless assumption that he could count on the police force and the letter of the law to ensnare the gangster is naïve and risks leaving him and his family and colleagues exposed to violence without any serious hope of achieving his aim. He is set straight by the disillusioned and hard-edged Malone.[xi]

Malone: You said you wanted to know how to get Capone. Do you really want to get him? Do you see what Im saying? What are you prepared to do?

Ness: Everything within the law.

Malone: And then what are you prepared to do? If you open up the ball on these people, Mr. Ness, you must be prepared to go all the way, because they wont give up the fight until one of you is dead.

Ness: I want to get Capone. I dont know how to get him.

Malone: You want to get Capone? Heres how you get him. He pulls a knife, you pull a gun. He sends one of yours to the hospital, you send one of his to the morgue. Thats the Chicago way. Now, do you want to do that? Are you ready to do that? Im making you a deal. Do you want that deal?

Ness: I have sworn to put this man away, with any and all legal means at my disposal and I will do so.

Read in this perspective, the memorandums in The Torture Papers are not damning at all, simply illuminating. They proceeded from three premises: that the US faced a national security crisis of a novel and extremely dangerous nature;[xii] that the President has the constitutional authority, in such circumstances, to take extraordinary measures for the public safety;[xiii] and that existing conventions on the treatment of prisoners would directly inhibit the effective interrogation and secure detention of those involved, by their own account, in seeking to inflict the maximum possible harm on the US without regard to any of the laws of war.

These premises, not any darker or more pernicious agenda clearly shaped the reasoning set out in the memoranda. The third of them is, surely, the only one that is at all controversial. It was, however, demonstrably grounded on two credible arguments: that the Geneva Convention protections do not apply to those who choose to operate as al Qaeda and its allies had done; and that the protections of US domestic law not only do not, legally, apply to foreign terrorists, but would obstruct the urgent need to apprehend and suppress them by military means. However uncomfortable one might feel with some of the implications of such reasoning, especially in the light of abuses that subsequently occurred, they surely do not constitute specious reasoning, but practical reasoning in time of war.

            These are not self-evident claims and they are, of course, the subject of passionate dispute, but the editors of The Torture Papers do not at any point so much as entertain the possibility that this is what was going on. Instead, they draw the worst imaginable conclusions about the intentions of the drafters of the memoranda and offer lurid comparisons that distract from the argument in hand rather than clarifying it. The single most important claim here is that the Geneva Convention does not apply to terrorists. Unless you actually read the text of the Geneva Convention, you might be misled into believing that the US Justice Department was engaging in tendentious reasoning in offering this advice to the White House. It was not. The convention is quite explicit in this regard.

            The third Geneva Convention, on the treatment of prisoners of war is the key bone of contention. The whole set of conventions are framed as an agreement between high contracting parties, which means states governed by stable and responsible authorities, to abide by certain civilised rules in times of war, in order to minimize cruelty and inhumanity to both combatants and civilians of those high contracting parties. The third convention stipulates, consistent with the fourth Hague Convention of 1907, that combatants, if they are to expect protection as POWs, must fulfil four conditions: be commanded by responsible individuals, wear identifiable insignia, carry arms openly and themselves obey the laws of war. Unarguably, al Qaeda did not and does not fulfil any of these conditions. There cannot, therefore, be any serious claim that its jihadists, when captured, are entitled to the protections of the third Geneva Convention. There is nothing pernicious in this legal argument. It is clear and straightforward.[xiv]

            The charge that Bush Administration personnel were working with pernicious purposes could only be sustained if, in the light of the above reasoning and its various corollaries, they had declared that America would, without qualification, disregard the customary and legal standards of treatment for prisoners in its war against terrorism. They did no such thing. There are three key memorandums in this regard, one signed by President Bush, on  February 7, 2002; one signed by Secretary of Defence Donald Rumsfeld, on  January 15, 2003; and a very long one, dated April 4, 2003, which is the Working Group Report on Detainee Interrogations in the Global War on Terrorism. They make clear that the administration sought only the legal scope to conduct coercive interrogation of terrorists during the national emergency triggered by 9/11.

This did not involve anything like a wholesale repudiation of the Geneva Convention. The President wrote, Of course, our values as a Nation, values that we share with many nations in the world, call for us to treat detainees humanely, including those who are not legally entitled to such treatment. Our Nation has been and will continue to be a strong supporter of Geneva and its principles. As a matter of policy, the United States Armed Forces shall continue to treat detainees humanely and, to the extent appropriate and consistent with military necessity, in a manner consistent with the principles of Geneva.[xv]

            Rumsfelds memorandum was addressed to the Commander of Southern Command, who had responsibility for Guantanamo Bay. He stipulated that any use of coercive interrogation techniques should be based on individual cases, authorised explicitly by him and that any requests for such authorisation should include a thorough justification for the employment of those techniques and a detailed plan for the use of such techniques. He added, In all interrogations, you should continue the humane treatment of detainees, regardless of the type of interrogation technique employed.[xvi] No smoking gun here.

The Working Group Report provides a detailed account of the techniques in question[xvii] and carefully differentiates among them in terms of their utility and their lawfulness. At no point does it indicate or imply that there is a warrant for the assault, injury or killing of detainees. Quite the contrary. This is thrown into high relief by considering the full range of techniques in question. None of them constitutes what most of us would customarily think of as torture: insertion of sharp objects under finger nails, of alien objects into bodily orifices, application of electrodes to the genitals, beatings, rape, racking and the like. They are overwhelmingly of a psychological nature, but include at the upper end of the range such things as hooding, isolation, sleep deprivation, slapping and removal of clothing. These were the things the Bush administration was concerned to have in its arsenal for interrogating terrorists. These are what The Torture Papers are about. What we usually think of as torture was never either contemplated or given licence. Nor were the grosser forms of abuse that occurred at Abu Ghraib.

            It is those abuses, rather than the memorandums, which should give us pause; but here, too, what the documents show is strikingly different from what we are being asked to believe by the critics of the Bush administration. This is evident even from a simple reading of the February 2004 Red Cross (ICRC) Report on the treatment of prisoners in Iraq, which brought the Abu Ghraib abuses to international attention.[xviii] Its key finding was: In most cases, the allegations of ill treatment referred to acts that occurred prior to the internment of persons deprived of their liberty in regular internment facilities&When persons deprived of their liberty were transferred to regular internment facilities, such as those administered by the military police, where the behaviour of guards was strictly supervised, ill-treatment of the type described in this report usually ceased.[xix] Nota bene: the abuses were irregularities, not official policy.

This needs to be emphasised and the report itself underscores it: The ICRC assessed the treatment of persons deprived of their liberty in regular internment facilities by the CF personnel as respectful, with a few individual exceptions due to individual personalities or occasional loss of control on the part of the guards. Abusive behaviour by guards, when reported to their officers, was usually quickly reprimanded and disciplined by superiors.[xx] In other words, the sub-title of The Torture Papers The Road to Abu Ghraib is itself seriously misleading. The memorandums do not give any warrant to the abuses that occurred there and even the Red Cross does not allege that those abuses were the consequence of official licence.

The March 2004 Taguba Report, on the 800^th Military Police Brigade, which guarded prisoners in Iraq,[xxi] the July 2004 Mikolashek Report, by the Inspector General of the Department of the Army, into detainee operations[xxii]; the August 2004 Schlesinger Report, by the Independent Panel to Review Detention Operations[xxiii]; and the August 2004 Fay-Jones Report, by Lieutenant General Anthony Jones and Major General George Fay, into the performance of the 205^th Military Intelligence Brigade at Abu Ghraib[xxiv], bear this out. They specify abuses, identify culprits, describe in detail the circumstances in which the abuses occurred, clearly delineate between what was done and what was authorised and call for detailed corrective measures to prevent a recurrence of such abuses. They nowhere and in no way take cover behind some presumed warrant for the use of torture by American military or intelligence officers or civilian contractors.

What, then, are we to conclude in this matter, at least on the basis of the documents in The Torture Papers? That the war on terrorism is being waged by evil people with criminal intent? No. The papers do not support any such allegation. That those people have used coercive methods in an effort to break the resistance of terrorists and other lawless opponents in this grim struggle? Yes. That those methods constitute torture as most of us would normally understand that term? No. That the specific abuses at Abu Ghraib and the small number of killings that have occurred in the detention centres operated by the American military were authorised or intended by the architects of this coercive interrogation policy? No. There is no evidence in these papers that that was so and clear evidence that those things have been reprehended and punished.[xxv]

If, in the light of what has happened over the past few years, we are to decide where we stand, we need to be clear that it is the use of limited coercive interrogation in time of military emergency and not the wholesale use of torture as that word is normally understood that is at issue[xxvi]. This is where the debate should be centred. The challenge then becomes setting guidelines and procedures of governance which ensure, as far as possible, that emergency measures do not become arbitrary measures, that strong measures do not become atrocious measures and that the innocent do not become confused with the guilty. This last remains a matter of acute concern, as the long-running debate about the detention of suspects at Guantanamo Bay demonstrates. There are no neat, comfortable answers here, only an acute need for cool heads and ethical responsibility.[xxvii]

In dealing with ruthless enemies who, by their own account, hold our rules and conventions of restraint in contempt, we face all but intractable dilemmas. Two recent books by individuals of impeccable moral and intellectual standing highlight these dilemmas: Alan Dershowitzs Why Terrorism Works[xxviii] and Michael Ignatieffs The Lesser Evil[xxix]. They differ precisely on whether torture of any description should be used against terrorists. Dershowitz provides a carefully reasoned defence of a closely circumscribed version of the Dirty Harry syndrome; Ignatieff says we should never soil our hands, because torture is both morally depraved and a contradiction of the values our civilisation stands for. Being responsible does not mean reacting viscerally one way or the other, but acknowledging how deep the dilemma is here particularly for those charged with the defence of the realm against terrorism.[xxx]

One American professional, using the pseudonym Chris Mackey, writing in 2004, expressed revulsion for what had happened at Abu Ghraib[xxxi] and went to great lengths to describe how American interrogators were trained to use psychological methods only, based on a Cold War paradigm[xxxii]. Once in Afghanistan, they found that Islamist prisoners had been extensively trained in how to resist such methods and assured by their terrorist masters that the Americans could not and would not apply any more coercive methods. Consequently, interrogation was often fruitless[xxxiii]. He concludes, in evident moral uncertainty, that the old adage that harsh treatment of prisoners only produces bad intelligence is not particularly persuasive[xxxiv]. Therefore, as a matter of practical reality, the question of how far to go doesnt have an easy answer and, in the wake of September 11, the calculation is more complicated. The price for erring too far in either direction may be paid in blood.[xxxv]

New York lawyer Andrew McCarthy reflected recently on the question of whether we, in the liberal democracies, have any obligation to extend the right of free speech to those who openly advocate terrorism. Those who insist that coercive interrogation, however limited, constitutes torture and that captured terrorists should be accorded full protection under the Geneva Convention, also tend to insist that terrorist propaganda should not be proscribed or punished in any way[xxxvi]. McCarthys reasoning is not dissimilar in nature to that of the drafters of the memorandums in The Torture Papers: one would think such steps [proscription and punishment] would be straightforward, but they are not. He concludes that the advocacy of terrorism in this day and age is entitled to no First Amendment protection.[xxxvii]

He no more has a pernicious purpose in making this argument than did Abraham Lincoln in suspending the writ of habeas corpus in 1861 and interning thousands of suspected rebels and subversives for the sake of the Union. Nor, I suggest, did the Bush administrations legal counsels, when they argued that al Qaeda and the Taliban were not entitled to the protections of the Geneva Convention. McCarthy is urging that we must give priority to defending ourselves and our freedoms, with as much restraint as we can, against those whose actions and words put them outside any rational claim to our trust or respect.

Rights are a two way street: they require a mutual commitment to standards and rules. Where one side totally violates such rules, it is asking the unreasonable and, at the end of the day, the impossible, of the other side to observe them in every particular and at lethal risk to themselves. It is like expecting a heavy weight boxer to stick to the Marquis of Queensbury Rules when his opponent pulls out a knife and threatens both him and the referee with it. Since it is we, not our Islamist enemies, who wish to maintain both freedom and human rights, we clearly should do all we can to follow the rules ourselves. But we confound ourselves if, out of purity of heart, we refuse to take even limited steps to deny to terrorists the rights and protections that they hold in contempt. You are Eliot Ness, in The Untouchables. What is your choice: to suffer Capone or work with Malone?