Those who opine about the "torture memos" released last week by the Justice Department ought to at least take a look at the real thing, which are easily available online. Reading them shows the level of detail Justice Department lawyers were giving to agents in the field, as in this description:

Those who opine about the "torture memos" released last week by the Justice Department ought to at least take a look at the real thing, which are easily available online. Reading them shows the level of detail Justice Department lawyers were giving to agents in the field, as in this description:


"Once the cloth is saturated and completely covers the mouth and nose, air now is slightly restricted for 20 to 40 seconds due to the presence of the cloth. This causes an increase in carbon dioxide level in the individual's blood. This increase in the carbon dioxide level stimulates increased effort to breathe. This effort plus the cloth produces the perception of 'suffocation and incipient panic,' i.e., the perception of drowning."


On the one hand, the lawyers' clinical language makes the treatment seem almost benign (until we learn later that the prisoner in question was waterboarded 183 times). On the other hand, the bureaucratized cruelty is sadly reminiscent of Nazi concentration camp records. It doesn't look anything like is a rogue agent - Jack Bauer on "24" - improvising torture methods as a time bomb ticks away.


Obama's promise not to prosecute those who administered the interrogations has drawn protests from the left that those who violated laws shouldn't be able to claim they were just following orders. But Nuremberg didn't repeal "just following orders" as a defense, it forced its refinement. The law now says that a government operative cannot be prosecuted if he is just following a legal order. How is the agent in the field, on a classified operation, supposed to know if an order is legal? He asks for a ruling from the Justice Department's Office of Legal Counsel, which is what these memos are.


From other accounts, we know there were people in the chain of command who questioned the legal reasoning in the OLC memos. Still, we have a hard time blaming the agents in the field for thinking the memos gave them legal protection. And we're sensitive to the possibility of demoralizing the CIA through second-guessing by Washington. It's happened before.


Obama shares that concern, which is why he visited CIA headquarters Monday and issued a statement that "It is our intention to assure those who carried out their duties relying in good faith upon legal advice from the Department of Justice that they will not be subject to prosecution."


But that does not preclude investigation and, if warranted, prosecution of those who wrote the memos and anyone in the White House who interfered with the OLC's legal obligations. Nor should Obama be making decisions about prosecutions in any case. Not long ago, Alberto Gonzales was forced to resign as attorney general over allegations he had let the White House politicize prosecutorial decisions.


Obama said yesterday he is open to having a bipartisan commission investigate, along the lines of the successful 9/11 Commission, which would be our preference. The advantage is that, unlike a prosecutor's investigation, a special commission can make recommendations that cover laws and policies, not just prosecutions. The commission could then refer cases to Justice for possible prosecution.


Obama's preference to look forward, not back, is understandable. But the future holds new tests involving intelligence agencies, the military, and the laws so inadequately interpreted by the OLC. It would be unwise to close the book on this controversy without first reading and learning from it.


The MetroWest Daily News