“This is the destiny of democracy, as not all means are acceptable to it, and not all practices employed by its enemies are open before it. Although a democracy must often fight with one hand tied behind its back, it nonetheless has the upper hand.” – Supreme Court of Israel, 1999

Torture. It was a prominent topic in yesterday’s news — with ongoing debate about former VP Cheney’s stubborn defense of “enhanced interrogation” and Jesse Ventura’s unequivocal response on “Larry King Live.” It’s a prominent topic again in today’s news — with Obama’s refusal to release more photographs, plus another development in the saga of what Speaker Pelosi knew and whether or not she and others could have done anything about what they knew (if they knew it).

Naturally, a debate of this scope, endurance, and consequence extends well beyond newsrooms and chambers of government to the backyards of “everyday” Americans — including this one, this past Saturday night, with a group of friends. Two of those friends sided with Cheney: one with caveats, one without. The latter, the unequivocal Cheney backer, has a son in the military. That friend eventually grew so disgusted with my contrary questions that he stormed out, suggesting my opinions were the equivalent of wishing harm to his military son.

Earlier in our conversation, before he stormed out, this friend said the CIA was compelled to resort to techniques like waterboarding and sleep deprivation for two reasons:

1. The suspected terrorists were trained to resist hypnosis. Waterboarding and sleep deprivation were employed to accelerate their exhaustion and thus reduce their resistance to hypnosis.

2. Truth serum (sodium pentothal, etc.) is forbidden under the Geneva conventions. If truth serum were allowed, then it, rather than waterboarding and sleep deprivation, could have been used to reduce resistance to hypnosis.

Ignoring for now the problems with my friend’s strained logic, his second point (re: the disallowance of truth serum) surprised me and prompted some research. Before summarizing what I learned from that research, I’m compelled to caveat: I don’t recall, nor could I readily find, any discussion of the use of truth serum among the interrogation techniques dominating the current debate. If truth serum is on that list, I apologize for (and invite one or more of our astute readers to correct) my oversight. Assuming no such oversight until proven otherwise, here’s a synopsis of what I learned this week.

Starting points: Hollywood portrays truth serum as having a greater effect on truth telling than it actually does. The effectiveness of truth serum is debatable. Confessions rendered under its influence are inadmissible in a U.S. court of law.

What truth serum does accomplish is a short-term lowering of inhibitions, which would arguably make a subject more prone to hypnosis and the related probing of potentially useful intelligence, which (though not admissible in court) might enhance the conduct of war.

The most relevant, detailed legal argument I was able to find largely bypasses the effectiveness question and delineates the scope of consideration to “whether administration of an effective truth serum constitutes torture” (emphasis added).

The author of the aforementioned legal argument, Linda M. Keller, concludes that even an effective truth serum, even if it is used on suspected terrorists, should be considered torture because, among other things:

It is a mind-altering substance (p. 589), making its use the equivalent of “mental rape” (p. 587), the forced removal of “free will” (p. 603) — which could lead to “severe mental harm” including post-traumatic stress disorder (p.586).

Allowing the use of truth serum in the fight against terrorism could lead to a slippery slope of other applications (pp. 606-609).

Her opinion notwithstanding, Ms. Keller acknowledges a substantive “loophole” in the international Convention Against Torture (CAT), namely: While the loss of free will and resulting confessions obtained via truth serum might lead to severe mental harm, any such harm is presumed to be “not intentionally inflicted for the purpose of obtaining information” and “merely a side effect of the use of truth serum” (p. 595).

Keller considers this and related distinctions senseless (p. 611) and recommends they be remedied, but she acknowledges that trying this matter in court would result in a “split decision” (p. 596) — at least, it would have in October 2004 when her paper was published.

I was not able to determine if CAT or other such agreements have been updated since October 2004 to address Keller’s concern and thus wholly prevent the use of truth serum in the interrogation of suspected terrorists.

Keller does make references to pro-serum arguments from the Office of Legal Counsel (OLC), but our current national debate does not, to the best of my knowledge. That discrepancy might suggest the OLC encountered some insurmountable obstacles after October 2004 and thus dropped any effort to justify the use of truth serum, refocusing on justifications for waterboarding, sleep deprivation, etc. If so, why?

Regardless of any real or perceived obstacles, it seems the time and energy that Bush’s OLC spent carving out nuances for techniques as severe and inhumane as waterboarding could have been more productively spent carving out nuances for truth serum — e.g., only to be used in the lowest possible dose, administered by a certified medical professional, for the purpose of reducing resistance to hypnosis, and so on.

Had the OLC/Bush Administration done that — avoiding waterboarding, sleep deprivation, stress positions, etc. — there might still be a debate on the anti-serum grounds argued by Keller, but I have to believe the furor and durability of that debate would be far less than in the current one, with less-conflicted public opinion.

So why didn’t Bush’s team focus on truth serum rather than waterboarding? It is perhaps too easy to jump to the darkest conclusion: Certain members of the prior administration were so vengeful they deliberately wanted to justify the harshest-possible techniques. I pray that’s not the answer; that there’s something else I’m missing here.