The Interrogation Memos and the Law

Criminalizing legitimate policy differences will paralyze the conduct of foreign policy.
By RICHARD N. HAASS

Calls are mounting to establish some sort of inquiry -- a special prosecutor, a congressional investigation, a truth commission -- to determine if the Bush administration lawyers who argued that waterboarding and other harsh interrogation techniques could be employed in the aftermath of 9/11 should be prosecuted. David Klein

At the center of the frenzy are four detailed legal analyses. The memos, written by Justice Department lawyers in 2002 and 2005 and recently declassified and released, read as you would expect them to. The individuals writing them were reflecting their own interpretation of the law, their own policy views, and quite possibly the policy preferences of their bosses.

The subject matter lent itself to debate. Law tends to be more gray than black and white.

The memos make the case that what is not explicitly banned is permitted. What comes to mind is the difference between tax evasion and avoidance. The former is illegal whereas the latter is not. The lawyers were making an aggressive case for the terrorism equivalent of avoidance.

I served in the Bush administration for two and a half years, from January 2001 through June 2003, and knew nothing about these memos or the interrogation techniques they advocate. I harbor deep doubts about the use of such techniques because of the clear cost to America's reputation and the unclear benefits to U.S. intelligence gathering.

But these questions (as important as they are) are not at the heart of today's debate. The issue is whether those who argued that such techniques were not illegal -- and therefore should be available -- ought to be tried.

They should not. To begin with, prosecution of Justice Department officials would have a chilling effect on future U.S. government officials. Few would be brave or foolhardy enough to put forward daring proposals that one day could be judged illegal. Putting things down in writing is a useful intellectual exercise that is also central to good decision-making. With the threat of prosecution, serious memos on controversial matters will increasingly become the exception rather than the rule.

Prosecution would also set a terrible precedent. One would have thought today's politics sufficiently partisan and poisonous without adding legal threats to the mix. Even knowing this was a possibility would discourage people from entering government in the first place.

Last, investigation and prosecution would take time and focus away from what this country and its elected and appointed representatives need to focus on. Investigations and trials would constitute an enormous distraction for the Obama administration and the Congress at a time when this country faces a daunting array of international problems (Afghanistan, Pakistan, Iran, Iraq, North Korea, climate change, swine flu) and is limited by the effects of a recession that is sure to be both deep and enduring.

If there is a fault here that requires attention, it is with the policy and political process. Mid-level officials do not make policy; they seek to influence it through their analysis and recommendations. What is required is a process inside the executive branch in which competing assessments and alternative prescriptions are subject to rigorous scrutiny. And Congress is responsible for effective oversight. Both the previous administration and the Congress failed to meet these tests.

I have had to deal with questions that relate to the current debate twice in my career. One example was Northern Ireland, where for three years (from 2001-2003) I was the U.S. envoy to the peace process. Major progress was made in bridging the divide between mostly Protestant Unionists and mostly Catholic Republicans and in restoring the institutions of local self-government in Northern Ireland.

A good many people were not content with these gains, and sought to reopen the past by creating some sort of truth and reconciliation process. I argued against going down this path: Doing so would reopen more wounds than it would heal, and the "justice" produced would be too much for some and not enough for others. Rather than contributing to Northern Ireland's continuing normalization, it could slow or even reverse it.

My concern over a truth and reconciliation process today to examine alleged torture is similar -- it would likely produce little in the way of truth and even less in the way of reconciliation.

A second experience was more personal. During the Iran-Iraq war of the 1980s and its aftermath, the U.S. provided limited assistance to Iraq. The administrations of Ronald Reagan and George H.W. Bush initially did this to help prevent a military victory by revolutionary Iran, an outcome they feared would destabilize the entire region. After the war ended in mid-1988, the two administrations continued the practice of providing support (mostly economic) to Iraq in an attempt to integrate it into the region and persuade it to adopt a more responsible foreign policy.

The attempt failed.

Years later, following the Iraqi invasion of Kuwait, allegations regarding the improper administration of economic assistance programs were cited as "proof" of a scandal dubbed "Iraqgate." The charge was levied that the administration of George H.W. Bush had secretly armed the Iraqis through these programs and had in part created the threat that the war had to combat. More than four years of hearings and investigations by various executive branch, congressional, and judicial bodies during the Bush and Clinton administrations made clear that these charges were false. No economic assistance funds were ever provided to Iraq, no U.S. arms were exported, and the amount and significance of U.S. dual-use exports were minimal. If there was a scandal, it was in the behavior of the Congress.

What made all this serious was the congressional investigations that absorbed hundreds of hours. I was the senior Middle East hand on the National Security Council staff at the time, and I remember putting in full 12-hour days and then, along with my staff, having to spend several more hours responding to various congressional requests for documents. I was concerned not over anything we had done but over the possibility we might miss locating and handing over some document in a file drawer and be charged with obstruction of justice.

Policy differences over how best to modify the behavior of rogue regimes are legitimate and unavoidable, but this was something else. For those in the executive branch, it was demoralizing and exhausting and, in some cases, costly. People who complain about why it is so difficult to attract talented people to public service could get some of their answers from this episode and others like it.

Government service already asks a lot of individuals. It entails sacrifice, pays little, and often violates privacy. Adding risk of prosecution to the mix will make recruiting the best and brightest that much more difficult. If we are not careful, we will get the government we deserve, but not the government we need.

Mr. Haass is president of the Council on Foreign Relations and the author of "War of Necessity, War of Choice: A Memoir of Two Iraq Wars," published this month by Simon & Schuster.

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washingtonpost.com
http://www.washingtonpost.com/wp-dyn/content/article/2009/04/30/AR2009043003108.html?wpisrc=newsletter&wpisrc=newsletter&wpisrc=newsletter
Torture? No. Except . . .

By Charles Krauthammer
Friday, May 1, 2009

Torture is an impermissible evil. Except under two circumstances. The first is the ticking time bomb. An innocent's life is at stake. The bad guy you have captured possesses information that could save this life. He refuses to divulge. In such a case, the choice is easy. Even John McCain, the most admirable and estimable torture opponent, says openly that in such circumstances, "You do what you have to do." And then take the responsibility.

Some people, however, believe you never torture. Ever. They are akin to conscientious objectors who will never fight in any war under any circumstances, and for whom we correctly show respect by exempting them from war duty. But we would never make one of them Centcom commander. Private principles are fine, but you don't entrust such a person with the military decisions upon which hinges the safety of the nation. It is similarly imprudent to have a person who would abjure torture in all circumstances making national security decisions upon which depends the protection of 300 million countrymen.

The second exception to the no-torture rule is the extraction of information from a high-value enemy in possession of high-value information likely to save lives. This case lacks the black-and-white clarity of the ticking time bomb scenario. We know less about the length of the fuse or the nature of the next attack. But we do know the danger is great. (One of the "torture memos" noted that the CIA had warned that terrorist "chatter" had reached pre-9/11 levels.) We know we must act but have no idea where or how -- and we can't know that until we have information. Catch-22.

Under those circumstances, you do what you have to do. And that includes waterboarding. (To call some of the other "enhanced interrogation" techniques -- face slap, sleep interruption, a caterpillar in a small space -- torture is to empty the word of any meaning.)

Did it work? The current evidence is fairly compelling. George Tenet said that the "enhanced interrogation" program alone yielded more information than everything gotten from "the FBI, the Central Intelligence Agency and the National Security Agency put together."

Michael Hayden, CIA director after waterboarding had been discontinued, writes (with former attorney general Michael Mukasey) that "as late as 2006 . . . fully half of the government's knowledge about the structure and activities of al-Qaeda came from those interrogations." Even Dennis Blair, Obama's director of national intelligence, concurs that these interrogations yielded "high value information." So much for the lazy, mindless assertion that torture never works.

Could we not, as the president repeatedly asserted in his Wednesday news conference, have obtained the information by less morally poisonous means? Perhaps if we'd spoken softly and sincerely to Khalid Sheik Mohammed, we could equally have obtained "high-value information."

There are two problems with the "good cop" technique. KSM, the mastermind of 9/11 who knew more about more plots than anyone else, did not seem very inclined to respond to polite inquiries about future plans. The man who boasted of personally beheading Daniel Pearl with a butcher knife answered questions about plots with "soon you will know" -- meaning, when you count the bodies in the morgue and find horribly disfigured burn victims in hospitals, you will know then what we are planning now.

The other problem is one of timing. The good cop routine can take weeks or months or years. We didn't have that luxury in the aftermath of 9/11 when waterboarding, for example, was in use. We'd been caught totally blind. We knew there were more plots out there, and we knew almost nothing about them. We needed to find out fast. We found out a lot.

"We have people walking around in this country that are alive today because this process happened," asserts Blair's predecessor, Mike McConnell. Of course, the morality of torture hinges on whether at the time the information was important enough, the danger great enough and our blindness about the enemy's plans severe enough to justify an exception to the moral injunction against torture.

Judging by Nancy Pelosi and other members of Congress who were informed at the time, the answer seems to be yes. In December 2007, after a report in The Post that she had knowledge of these procedures and did not object, she admitted that she'd been "briefed on interrogation techniques the administration was considering using in the future."

Today Pelosi protests "we were not -- I repeat -- were not told that waterboarding or any other of these other enhanced interrogation methods were used." She imagines that this distinction between past and present, Clintonian in its parsing, is exonerating.

On the contrary. It is self-indicting. If you are told about torture that has already occurred, you might justify silence on the grounds that what's done is done and you are simply being used in a post-facto exercise to cover the CIA's rear end. The time to protest torture, if you really are as outraged as you now pretend to be, is when the CIA tells you what it is planning to do "in the future."

But Pelosi did nothing. No protest. No move to cut off funding. No letter to the president or the CIA chief or anyone else saying "Don't do it."

On the contrary, notes Porter Goss, then chairman of the House intelligence committee: The members briefed on these techniques did not just refrain from objecting, "on a bipartisan basis, we asked if the CIA needed more support from Congress to carry out its mission against al-Qaeda."

More support, mind you. Which makes the current spectacle of self-righteous condemnation not just cowardly but hollow. It is one thing to have disagreed at the time and said so. It is utterly contemptible, however, to have been silent then and to rise now "on a bright, sunny, safe day in April 2009" (the words are Blair's) to excoriate those who kept us safe these harrowing last eight years.

letters@charleskrauthammer.com

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U.S. to release photos showing alleged abuses by American personnel
By Peter Wallsten, Greg Miller and Julian Barnes | Washington Bureau
April 23, 2009
http://www.chicagotribune.com/news/nationworld/chi-obama-interrogationapr24,0,1567604.story
WASHINGTON - The Obama administration agreed late Thursday to release dozens of photographs depicting alleged abuse by U.S. personnel during the Bush administration of prisoners in Iraq and Afghanistan.
At least 44 pictures will be released by May 28 -- making public for the first time images of what the military investigated as abuse that took place at facilities other than the Abu Ghraib prison in Iraq.
Defense Department officials would not say exactly what is contained in the photos, but said they are concerned that the release could incite a backlash in the Middle East.
The photos, taken from military criminal investigations of abuse, are apparently not as shocking as the photographs from the Abu Ghraib investigation that became a lasting symbol of U.S. mistakes in Iraq. But some show military service members intimidating or threatening detainees by pointing weapons at them. Military officers have been court martialed for threatening detainees at gunpoint.
"This will constitute visual proof that, unlike the Bush administration's claim, the abuse was not confined to Abu Ghraib and was not aberrational," said Amrit Singh, a lawyer for the American Civil Liberties Union, which obtained the agreement as part of a long-running legal battle for documents related to Bush-era anti-terror policies.
The photo release decision comes as President Barack Obama is already trying to quell a drive to investigate Bush-era anti-terror practices. But now the photos and a series of other possible disclosures stemming from the ACLU lawsuit threatens to fuel the already explosive controversy.
Additional disclosures to be considered in the coming weeks include transcripts of detainee interrogations by the CIA, a CIA inspector general's report that has been kept mostly secret, and background materials of a Justice Department internal investigation into prisoner abuse.
In each instance, Obama and his administration are being forced to decide whether to release material entirely, disclose it with redactions or follow the lead of the Bush administration and fight in court to keep the material classified.
Last week, Obama opted to demand relatively few redactions when his administration released Justice Department memos detailing the Bush administration's justifications and strategies for harsh interrogations.
But those disclosures created a problem for the president, prompting Democratic lawmakers and interest groups to demand that Congress investigate the Bush-era practices and possibly prosecute officials of the prior administration.
With Obama trying to navigate ambitious health, tax and environment legislation through Congress, the White House fears that such an investigation could become a highly partisan distraction and Obama has for that reason already rejected the idea of a 9/11 Commission-style review of Bush's anti-terror policies, according to an official.
Now, with the president must consider the release of new materials that could be inflammatory and heighten the already combustible mix of political pressures he faces. While the liberal base that elected him wants wide disclosure and an investigation of Bush practices, pursuing that course would likely alienate the intelligence and military communities that are crucial to Obama's success as president.
Obama tried to walk that rhetorical line last week, heeding liberals' calls to release the torture memos but appearing to argue against further investigation or prosecution by saying that " "this is a time for reflection, not retribution."
Instead, he managed to anger both constituencies.
"My sense is the president was trying to please a lot of audiences at one time and that over the last (week) he has totally failed to put the mind of the intelligence community at ease," said Mark Lowenthal, a former senior adviser to CIA Director George J. Tenet. "He is going to end up with a national clandestine service that will not be willing to do anything because they feel he will not be there for them when they need him."
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http://www.ibdeditorials.com/IBDArticles.aspx?id=323910736577223
Conventional Wisdom

By INVESTOR'S BUSINESS DAILY | Posted Monday, April 06, 2009 4:20 PM PT

Defense: Does it make sense for the U.S. to slash conventional force spending as terrorist groups become quasi-conventional entities? We must be able to defeat a China, an al-Qaida, and everything in between.

As the Washington Post reported Monday, the Pentagon has sent numerous investigative teams to Israel to ascertain how the Hezbollah terrorist group managed to fend off the mighty Israeli military during their brief war in Lebanon in 2006.

Israel may have won, but by using anti-tank missiles and other facets more associated with modern conventional armies than Islamist insurgencies, Hezbollah succeeded in giving the Israel Defense Forces a surprisingly bloody nose.

And the Lebanese terrorists aren't the only ones moving toward conventional armies. Colombia's Marxist FARC terrorists, in spite of their bombings, assassinations, kidnappings, extortions, hijackings and drug trafficking, consider themselves a "people's army" who must inevitably evolve from a guerrilla orientation to traditional military action. In the past, they've tried to move in this direction.

We may have won the Cold War — won it because we outspent and outbuilt the communists on every front, from troop readiness to missile defense — but Russia and China remain ambitious military and economic rivals who have continually facilitated the aggressive tendencies of terror states.

Both Russia and China, for instance, have aided Iran's nuclear program. As unpleasant as it is to ponder, we may one day have to wage war against one or the other — or both. So why is Defense Secretary Robert Gates so keen to reduce our conventional deterrent and re-jigger our forces to be "closer to irregular warfare and counterinsurgency," as the Pentagon said this week?

Gates would scale back the Pentagon's $160 billion high-tech Future Combat Systems, which uses battlefield robots, sensors and combat vehicles controlled by a linked communications network.

It features rockets that can automatically change direction in midair and night-vision surveillance hovercraft, and would turn our military into a lighter, highly mobile force that could confront the unpredictable conflicts of tomorrow.

Strangely, with the most lavish spending spree in history in Washington, the Pentagon has embraced a philosophy of penny-pinching.

"The perennial procurement and contracting cycle, going back many decades, of adding layer and layer of cost and complexity onto fewer and fewer platforms that take longer and longer to build, must come to an end," Secretary Gates recently groused.

Gates has rejected the Air Force's appeals for more F-22 fighter aircraft because no F-22s have been used in the low-intensity Iran and Afghanistan operations.

The secretary has said that the low "level of risk of conflict" with Russia or China "over the next four or five years" means the Air Force can wait "until the Joint Strike Fighter comes along," meaning the F-35, which is still years away from mass production.

But Americans could lose more than their shirts on that bet — we could lose our freedoms.

The multiplicity of threats to the free world should not let our defense spending become an either-or proposition. The Chinese military is actively expanding. To our south, Venezuela's Hugo Chavez is on a military spending spree and cultivating U.S. adversaries ranging from Russia's Vladimir Putin to Iran's Mahmoud Ahmadinejad.

The U.S. must be able to engage in low-intensity warfare against Iraq/Afghan-style guerillas, and we must also be able to defeat Russia, China or any other potential adversary in a conventional war.

If we can spend trillions on massive stimulus bills featuring green make-work schemes and everything else on the liberal Democratic wish list of the past three decades, we can pay the costs of guaranteeing our liberty in the long term.

In the future, the security of the free world will depend upon a very simple but challenging variable: whether the U.S. military is so overpowering as to appear indestructible to any enemy, whether it's a sovereign power or an extra-national armed organization.

That way, they won't dare wage war against us or our allies. And if they do, they'll regret it.
Aggies's Comments: I was unaware that the release of the "torture" memos and photos was the result of an ACLU lawsuit. It is an organization that has become extremist in its zeal to protect our constitutional rights, supporting and compelling action that results in harm to the national interest in terms of security and defense. This ACLU quest for freedom does nothing but to strengthen our enemies. It is a self defeating policy, as often any form of extremism is. I became disenchanted by the ACLU when it defended the right of Nazis to march in Skokie.

Aggie