May 5, 2011

The killing of Osama bin Laden after a fierce firefight in his Abbottabad compound is a great victory for our military and intelligence forces and for our civilian leadership. But the handwringing about whether it looked as though bin Laden was reaching for a gun or suicide belt, as if this were some who-is-the fastest-gun-in-the-West movie, and about whether we violated Pakistani sovereignty by going in after him is risible.

As the code of war that Abraham Lincoln promulgated in 1863 — the first anywhere — made clear: “military necessity admits of all direct destruction of life or limb of armed enemies . . . it allows of the capturing of . . . every enemy of importance to the hostile government.” Yet Lincoln’s code also said that “military necessity does not admit of cruelty . . . nor of torture.”

In this all civilized men and women agree: Torture is condemned by American law, international law and by the pronouncements of the Roman Catholic Church. In 2005 it was condemned by Congress at the instance of, among others, Sen. John McCain. Now, the same apologists who applauded President George W. Bush’s authorization of torture — and make no mistake, waterboarding is torture — are working to stain this great triumph. They argue that but for their barbaric treatment of detainees through 2003, we would never have found our man.

The claim is indecent most immediately because there is no way of knowing whether it is true, and any attempt to prove or disprove it must reveal intelligence that our security requires remain secret. But even if true, it does not make the point. However dangerous he may have been, Osama bin Laden was not the ticking bomb requiring immediate defusing, so familiar now from television dramas. And that’s just the point about making exceptions to moral imperatives that should remain exceptionless — like Lincoln’s absolute condemnation of torture, or the condemnation of sexual degradation as a weapon of war, or the judicial killing of an innocent person to keep the peace. These things must never be done. To put such moral boundaries on the same level as legal niceties about sovereignty or the need for a warrant reveals a profoundly flawed sense of proportion.

Those who defend the use of torture and who are using bin Laden’s killing to prove their point prove just the opposite. However vile, bin Laden was not the armed-nuclear-bomb-hidden-in-downtown-L.A. scenario of Jack Bauer’s “24.” The point is that once you are willing to cross the line of absolutely wrong, you must answer impossible questions: How many people must be endangered; how certain must we be of the danger; how sure must we be that this is the person who can lead us to the bomb and that the torture will work on him? What if the terrorist who planted the bomb is immune to torture or beyond our reach, but his young child is not? May we torture the child if that will make the terrorist talk? And how certain must we be that that will work?

One Bush torture apologist, like the 13th chime of the clock, has famously argued that even the torture of the child would be allowed. But, of course, the lack of a stopping place in justifying this evil shows how readily the resort to deliberate brutality metastasizes so that it can be used to justify torture to save just one person, or even if there is a chance of saving one person, or even if it involves random cruelty to soften up the next person we interrogate, as in the case of Abu Ghraib. To paraphrase Justice Robert Jackson, such an argument either has no beginning or it has no end.

As Lincoln understood, the main damage torture inflicts is on the torturer. We all suffer pain and we all must die. But while we live we must strive to be worthy of the humanity that is supposed to be the goal of our battles. Lincoln’s code proclaims: “Men who take up arms against one another in public war do not cease on this account to be moral beings, responsible to one another and to God.” Francis Lieber, who drafted the code at Lincoln’s direction, elaborated: “The late proclamation of General Halleck, declaring himself ready for retaliation . . . distinctly tells his officers and soldiers not to retaliate cruelly. . . . Can we roast Indians, though they have roasted one of our own? Simple infliction of death is not considered cruelty.”

The death of Osama bin Laden may ultimately prove to be a footnote to al-Qaeda’s real moment of defeat. The same Muslim men and women bin Laden sought to recruit to jihad in the name of his Pol Pot-like caliphate are now revolting for a chance to lead decent lives in democratic nations governed by the same values that we proclaim guide us. Their goal is also our best hope for a lasting end to this war on terror. It defiles their sacrifice, as well as that of our own troops, if we who have long championed democracy embrace the brutal values of our enemies, even in the name of self-defense. We must deny bin Laden this posthumous victory.

Charles Fried, who teaches at Harvard Law School, and Gregory Fried, who is chairman of the philosophy department at Suffolk University, are the authors of “Because It Is Wrong: Torture, Privacy and Presidential Power in the Age of Terror.”