The New Yorker's Jeff Toobin offers a good response to my open question about how we should be handling Najibullah Zazi, an accused al Qaeda terrorist who may be in league with men still on the loose:

Time to break the waterboard out of storage?

I think not—and not just because it’s illegal. The U.S. Attorney’s office in Brooklyn which is bringing the case (and where I was a prosecutor in the early nineties) filed a brief where it outlined the reasons why Zazi should be detained rather than released on bail. The brief strongly suggests that our government has been tracking Zazi for months—that investigators have tapped both his computer and his phones, in Pakistan as well as the United States. According to the brief, Zazi has been discussing bomb-making with confederates, sharing information about how to make a bomb, and generally making plans for a terrorist attack. All of this surveillance means that the government has good information about Zazi’s confederates—their phone numbers and email addresses. This information can, of course, be traced back to identify further possible associates. It’s investigative gold.

A rough interrogation of Zazi, Toobin concludes, "would be both immoral and counterproductive."

It's a well-argued case, and I think I agree. But, let's play Devil's Advocate:

1) While the Obama administration's new emphasis on the illegality of torture is very important here, of course, even some mainstream Democrats have argued for an implicit wink-wink exception in "ticking bomb" cases. (This was Hillary Clinton's position for a time during the 2008 primaries; and although she refined her language under pressure, in my reading she still allowed for such exceptions.*)

2) Toobin argues that this isn't really a ticking bomb case anyway. Rough interrogation isn't warranted, he argues, given that the feds have already amassed so much information about Zazi's associates. That is reassuring. But it still doesn't mean we know where those guys are right now. Zazi might.

3) Toobin adds that mistreating Zazi might hurt the government's legal case against him. But is that really more important than preventing a bombing? (A question which complicates the question of morality, I would argue.)

4) One argument I'm surprised Toobin doesn't make: that torture doesn't yield useful information. That could be the best rationale of all here, although I've never quite been convinced that's an indisputable fact--and I suspect others in the government, probably including White House counterterrorism advisor John Brennan, feel the same.

If it were up to me, I don't know what I would do; I would need to know more facts. I am not a proponent of torture, which I think has done enormous harm to America's image abroad and moral fiber at home. But I ride the subways these guys may have been planning to attack and I would like to be quite sure we've found all of them. At a minimum, this is a  good opportunity to stress-test* the debate about interrogation techniques, because it may be that life can imitate 24 after all.

*Update: I see that Obama has been more definitive than I had realized about the ticking-bomb exception. From March 2008:

When I am President, the American people and the world will be able to trust that I will outlaw torture, because unlike Senator Clinton I have never made an exception for torture and I never will.

**Update II: Based on at least one misreading, let me clarify: My desire to "stress-test" doesn't apply to Zazi himself, it refers to the arguments at play here.

Related: The Ticking Zazi Bomb? by Michael Crowley

Related: The Ticking Zazi Bomb (cont'd) by Jason Zengerle