But what if the United States did torture? That is the national question raised anew by a Red Cross report (reproduced by THE NEW YORK REVIEW OF BOOKS) and the recent declassification of Bush administration memos. The memos, written by the White House Office of Legal Council, provided legal guidance outlining acceptable interrogation techniques under U.S. and international law. But the Red Cross report, based on interviews with 14 high-value detainees, alleges that the use of these techniques did constitute torture. Additionally, President Barack Obama and Attorney General Eric Holder have stated publicly that at least one of the techniques — water-boarding — constitutes torture.

Legal scholar Bruce Fein and journalist Mark Danner explain to Bill Moyers on THE JOURNAL that all of this creates a tricky legal and political situation for the President. Fein argues that President Obama, as head of the executive branch, is charged by the Constitution with enforcing the law, and must therefore pursue the allegations. And Danner points out that our nation cannot afford to ignore the political debate surrounding torture — the issue must confronted publicly.

Many people, though, think the costs of investigating the allegations would be too great.

In the WASHINGTON POST, David Broder argues: "That way, inevitably, lies endless political warfare. It would set the precedent for turning all future policy disagreements into political or criminal vendettas. That way lies untold bitterness -- and injustice."

But Fein rejects the notion that torture is a partisan policy dispute. Reacting to Karl Rove making a similar point on FOX NEWS, Fein told Bill Moyers on the JOURNAL: "That is nonsense on stilts. Torture is not a political issue. Torture is something prohibited under a treaty by the U.S. Senate. It was prohibited in the U.S. Criminal Code — a bill passed by the House and Senate, including Republicans."

In the WALL STREET JOURNAL, Peggy Noonan writes that public hearings would divide the country and "would be a self-immolating exercise that would both excite and inform America's foes. And possibly inspire them."

But according to Mark Danner, it is this very divisiveness that makes it such an important political issue. He believes addressing the political climate in which the U.S. government used these techniques is as important as investigating potential lawbreakers. Without publicly considering the costs and efficacy of torture, we cannot come to a national consensus, leaving the door open for prisoner abuse by this or future administrations.

Danner notes on THE JOURNAL that some sizable portion of the country agrees with Dick Cheney, who continues to argue that these tactics protected the country, and "that President Obama, in deciding not to torture, has left the country vulnerable to another attack." Danner continues, "that is present politics [...] and that's why this has to be confronted, not only legally [...] but politically, as well."

At the moment, the President has clearly stated he does not wish to pursue investigations. But a series of legal decisions may force his hand. A recent decision by a federal appeals court clears the path for a civil lawsuit brought by five men against an airline company they allege cooperated with the CIA to fly them to black sites where they were tortured. The court rejected an argument — first advanced by the Bush administration and reaffirmed by the Obama administration — that the case should be thrown out because it would reveal state secrets. Additionally, a Spanish judge confirmed that he will proceed with an inquiry into six top Bush administration officials on charges that they set up a systematic program of torture at Guantanamo.

His political law career would take him to various outlets, including general counsel of the Federal Communications Commission, followed by an appointment as research director for the Joint Congressional Committee on Covert Arms Sales to Iran. Mr. Fein has been an adjunct scholar with the American Enterprise Institute, a resident scholar at the Heritage Foundation, a lecturer at the Brookings Institute, and an adjunct professor at George Washington University.

Fein has also authored a number of volumes on United States Constitution, Supreme Court, and international law, as well as assisted three dozen countries in constitutional revision, including Russia, Spain, South Africa, Iraq, Cyprus, and Mozambique.

Fein's writing, devoted to legal and international affairs, has appeared in THE WASHINGTON TIMES, THE CAPITOL LEADER, THE LEXINGTON HERALD-LEADER, SLATE.COM and THE DAILY BEAST, among others.

His books include THE SECRET WAY TO WAR: THE DOWNING STREET MEMO AND THE IRAQ WAR'S BURIED HISTORY (2006), TORTURE AND TRUTH: AMERICA, ABU GHRAIB AND THE WAR ON TERROR (2004), THE ROAD TO ILLEGITIMACY: ONE REPORTER'S TRAVEL'S THROUGH THE 2000 FLORIDA VOTE RECOUNT (2004) and THE MASSACRE AT EL MOZOTE: A PARABLE OF THE COLD WAR (1994). Danner was a longtime staff writer for THE NEW YORKER and is a regular contributor to THE NEW YORK REVIEW OF BOOKS.

He is also professor of Journalism at the University of California at Berkeley, where he directs the Goldman Forum, and the James Clarke Chace Professor of Foreign Affairs, Politics, and Humanities at Bard College.

Published May 1, 2009.

Guest photos by Robin Holland.