Two disgraced Bush flunkies have written a Wall Street Journal op-ed attacking Barack Obama for releasing the torture memos. In doing so, they admit that what we did actually was torture.
Former Attorney Michael Mukasey and former CIA director Michael Hayden have come forward to attack Obama for giving up the ghost on our interrogation tactics. One reason he shouldn't have released the memos, they say, is that now the terrorists know precisely how far we are willing to take things to get information.
However, public disclosure of the OLC opinions, and thus of the techniques themselves, assures that terrorists are now aware of the absolute limit of what the U.S. government could do to extract information from them.
This is bad, presumably, because if somebody knows that there is a limit to what their interrogators are willing to do, they could resist more easily without fear that things will get worse, and more painful.
The only reason it could be a good thing for terrorist suspects not to know the absolute limit of what the U.S. government can do to extract information from them is that they will be more likely to divulge intelligence if they fear worse treatment. Things start out nice, then get worse and more violent—"attention grasp," "facial hold," "walling," "insult slap," "abdominal slap," and "the 'waterboard,'" to quote the memos. Someone undergoing such treatment, if it is applied in an escalating fashion, would reasonably expect the progression to continue. This is known as a threat.
And, as the torture memos make clear, "the threatened infliction of severe physical pain or suffering" is a predicate act for torture as defined by federal law. The OLC lawyers were very cognizant of this, and went out of their way to warn the CIA inquisitors that the obvious point of the interrogation program—to shake loose the detainees' confidence that the CIA didn't have the balls to get really ugly—could be illegal if they didn't carefully and disingenuously dot the i's and cross the t's.
But the OLC scribes at least kept up the legal pretense that the program wasn't designed to scare the living shit out of these people and make them think that they were going to die slow, painful deaths. Mukasey and Hayden, on the other hand, admit it outright: Without the threat of more, and worse, torture, then yes—the whole program is useless. Which makes it torture.
Hayden and Mukasey also shed a little light on an enduring torture mystery—whether or not Khalid Sheikh Mohammed actually personally murdered Wall Street Journal Reporter Daniel Pearl, as he confessed to doing under torture. The Bush Administration professed to believe that Mohammed was telling the truth when he claimed responsibility for the beheading, which you'd kind of have to do unless you want to call the entire torture regime into doubt. But Pearl's family and others—including at least one federal official involved in Mohammed's case who spoke to the New Yorker's Jane Mayer—suspect that Mohammed was simply telling interrogators what they wanted to hear in the hopes that they would stop torturing him.
So when Hayden and Mukasey identify Mohammed as a guy who "has boasted of having beheaded Daniel Pearl," it's notable for two reasons:
1) You can boast of beheading someone even if you didn't actually behead them, a distinction Hayden and Mukasey are no doubt aware of. It's odd that, if they know the facts and are certain that Mohammed was the beheader, they didn't simply say so, and
2) People who describe confessions under torture as "boasts" are sick, rotten motherfuckers.