At midday, the Baghdad marketplace was teeming with humanity. Mothers with children in tow were doing their shopping.
That is exactly what the would-be martyr -- bomb strapped to his chest -- was hoping to see, when the vehicle bringing him to the market was stopped two blocks short of that destination at a U.S. checkpoint.
The bomber burst from the car, running toward the market. A U.S. solder shouted in Arabic: "Stop!" The bomber didn't. With adrenalin pumping, heart racing, nerves twitching, another soldier took aim as well as he could. There was no time to think twice. His purpose was not to kill the bomber. It was to save the innocent. He had never killed a person before and never would again. But now, he squeezed the trigger. A bullet ripped through the bomber's neck -- and an aspiring mass murderer went to meet his Maker one block short of his intended victims.
So, did this hypothetical soldier commit an immoral act? Was this a murder the deliberate taking of an innocent life? Or was it an unavoidable and legitimate act in defense of innocent life?
Let me give you a second case.
It's the wee hours of a Sunday morning in some future February. An al-Qaida cell has hidden a bomb inside the stadium where tens of thousands will gather that day for the Super Bowl. A caller in Pakistan dials a number in the United States. Voices on both ends greet one another in Arabic, not the native tongue of Pakistan. A U.S. spy satellite intercepts the call; an NSA computer records it. The computer has no warrant and no probable cause to believe this call will produce evidence of a crime. It is just programmed to record certain types of calls. This is one of them.
"Is Operation Hail Mary set?" says the voice in Pakistan.
"It will end with a bomb in the fourth quarter," responds the voice in the United States.
"Be careful," says the voice in Pakistan. "The Americans have ways of tracing these calls."
"The package is too cleverly hidden," says the voice in the states. "This Super Bowl will be a victory for the faith."
"Insha'allah," says the voice in Pakistan.
Fourteen hours later the stadium is filling with fans as an analyst translates the call. Precious minutes later, the director of national intelligence is heading to the White House to brief the president. He arrives shortly before kickoff.
Meanwhile, federal agents arrest the U.S. citizen whose voice was on the American side of the intercepted call.
"Where is the bomb?" an agent asks him.
"You'll never find it," he says smugly. The U.S. agent briefly entertains thoughts of violence. But he stifles them. He is both a devout Christian and a professional. He has a job to do, save lives -- and he intends to do it within the law and traditional rules of right and wrong. He is not Jack Bauer, just a dutiful, low-level public servant.
Back at the White House, the DNI says, "Madame President, our investigators want to know if they can water-board the detainee?"
"Wait a minute, Madame President," says Attorney General Charles Schumer, "they intercepted this guy's call without a warrant."
National Security Advisor Sandy Berger nods knowingly. "If we abuse our power now," he says, "the public will never trust us again."
So much for hypotheticals.
Water-boarding is an interrogation technique in which a piece of plastic is placed over a subject's face and water is poured on it. The subject feels as if he is drowning, although he is not. According to a report for ABC News by Brian Ross, Richard Esposito and Martha Raddatz: "Its most effective use, say current and former CIA officials, was in breaking Khalid Sheikh Mohammed, known as KSM, who subsequently confessed to a number of ongoing plots against the United States."
Two years ago, at the insistence of Sen. John McCain, the defense authorization bill included language prohibiting "cruel, inhuman and degrading" treatment of detainees. Before that, according to a report last week in The New York Times, the Justice Department's Office of Legal Counsel had issued a secret opinion saying, as the Times put it, that "in some circumstances not even water-boarding was necessarily cruel, inhuman or degrading, if, for example, a suspect was believed to possess crucial intelligence about a planned terrorist attack."
McCain has insisted the words "cruel, inhuman and degrading" in his legislation must be interpreted to prohibit water-boarding. So, why didn't he simply put the word "water-boarding" in his law?
If members of Congress now want to prohibit water-boarding of captured terrorists who might have knowledge of coming attacks, they should propose a law expressly forbidding it.
Then, we can have an illuminating public debate. Was pouring water over Khalid Sheikh Mohammed's face an intrinsically evil act of torture no morally enlightened country should countenance, or an unavoidable act of self-defense that was as much a duty -- if not so severe -- as shooting a bomber running toward a marketplace?
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