Playing Partisan Politics with Terrorists and Torture

Approximately one week ago, President Obama made the dumbest move in a series of almost non-stop stupid moves since his inauguration, and it remains to be seen whether he will be able to avoid being sucked in and crushed in the whirlwind of his creation.

I'm speaking of his inexplicable decision to release four memos drafted by Bush administration attorneys in the Department of Justice's Office of Legal Counsel (OLC), which detailed how and when enhanced methods of interrogation could be used on captured terrorists -- terrorists whose conduct and organization clearly places them well outside the agreed upon protocol for the treatment of prisoners of war.

The rationale for this move -- extraordinarily harmful to national security because it reveals methods that should not be known to our enemies -- doesn't merit credence. The president contended that after three hard weeks of internal debate by his team, he decided that since so much of the information in the misnamed "torture" memos had already been made public, he should release them in response to an ACLU suit. This was utter nonsense. As Steven Aftergood, the Federation of American Scientists' expert on the law of secrecy noted, this would not be an adequate defense of a criminal charge of unlawful disclosure of classified information. And former CIA Director Michael Hayden has publicly stated that the government should not have disclosed the memos and that it could have successfully defended the demand for their release.  The ACLU says it's pushing for more memos to be made public.  It remains to be seen how quickly Obama can learn from his already substantial mistake in releasing some of what the ACLU asked for.

Taking the  most charitable view  possible, this was, as Tom Maguire notes, an act of "cheap grace" from a man who  was:

committed to public campaign finance as an important principle of fair elections [and] dropped that principle as soon as it became helpful to him to do so.  And he would drop this "no torture" rhetoric just as quickly if someone that mattered to him was [affected] by it.  I am just troubled by his current eagerness to pretend that the safety of the good [people] of the United States is not a priority.

The manner of the release shows  the president's lack of executive experience and that he is already -- in the important area of national defense -- hopelessly naïve, uncoordinated, and irrational. It shows that his claim of being post-partisan and above the fray is risible, because he has now unleashed the most bitter national partisan knife fight of our lifetime and one that may well sink him. It shows that his constant claim that he intends to look forward not backward is a lie, because he will try to  distract from his  increasingly unpopular domestic policies by continuing to demonize the prior administration and selectively leaking classified information to this end.

How do the president's actions define him as a failure?

  • The disjointed handling of the issue is a mark of his lack of executive experience, a critical failure in the area of national defense.

As the president released the memos, C.I.A. Director Leon Panetta sent a letter to his agents:

In releasing these memos, the men and women of the CIA have assurances from both myself, and from Attorney General Holder, that we will protect all who acted reasonably [emphasis supplied] and relied upon legal advice from the Department of Justice that their actions were lawful. The attorney General has assured me that these individuals will not be prosecuted and that the government will stand by them.

This can hardly be of much comfort to those agents who realize that the government is now in the hands of those who'd sacrifice whole cities for some naïve notion of a moral high ground, which will make our enemies love us and cease their aggression. Such men are not likely to feel the need to worry much about the lives and safety of those who were tasked to save us and did so honorably and within the bounds of the law when the threat appeared more immediate.

The president's chief of staff also offered specific reassurance that there would be no prosecutions of the authors of the legal memos. But when the results of the Senate Armed Services Committee Investigation respecting water boarding (something more anti-war demonstrators than U.S. detainees have endured, and something regularly used in our Survival Evasion Resistance Escape (SERE)program to prepare our troops for treatment if captured) came up, Obama  said he'd leave the question of prosecution of the memos' authors and former administration officials  to his attorney general.

Surely the White House had to be aware that this report was coming down. Doesn't the White House also have a legislative liaison with the Democrats in Congress to get a heads up on reports like this? And if he did get a heads up why did he allow his chief of staff to say there would be no prosecutions and then right afterward suggest there might be some?

  • Instead of a post-partisan president, we have one who is unleashing the most bitter partisan battle of our lifetime.

Cornell law professor William A. Jacobson notes that the the authors of these memos should not be criminally prosecuted for expressing legal opinions. Nor, Jacobsen says, should Alberto Gonzales,  John Yoo, or Jamie Gorelick (author of the now infamous "wall" memo that surely contributed to 9/11) be prosecuted. There is no evidence that any of these people simply concocted their opinions out of thin air, the only way such a claim could be successfully prosecuted.

The president has said he'd leave the question of whether the lawyers should be prosecuted to Attorney General Eric Holder, who, as fate would have it, expressed a similar view to the one running throughout the interrogation memos in 2002:

One of the things we clearly want to do with these prisoners is to have an ability to interrogate them and find out what their future plans might be, where other cells are located; under the Geneva Convention that you are really limited in the amount of information that you can elicit from people

It seems to me that given the way in which they have conducted themselves, however, that they are not, in fact, people entitled to the protection of the Geneva Convention. They are not prisoners of war. If, for instance, Mohamed Atta had survived the attack on the World Trade Center, would we now be calling him a prisoner of war? I think not. Should Zacarias Moussaoui be called a prisoner of war? Again, I think not.

But pawning the issue of prosecuting Bush-era attorneys off to Holder is the least of his problems. The Democratic Congress, still smarting from the 2000 election and the party's  belief that the contest was stolen, hopes to pour yet more venom into the inter-party fight with a series of hearings designed to demonize the man who won that election and those who worked for him.

The blood is in the water and Congressman Pete Hoekstra lets us know he's fully armed and up to the fight:

It was not necessary to release details of the enhanced interrogation techniques, because members of Congress from both parties have been fully aware of them since the program began in 2002. We believed it was something that had to be done in the aftermath of the 9/11 terrorist attacks to keep our nation safe. After many long and contentious debates, Congress repeatedly approved and funded this program on a bipartisan basis in both Republican and Democratic Congresses.

Members of Congress calling for an investigation of the enhanced interrogation program should remember that such an investigation can't be a selective review of information, or solely focus on the lawyers who wrote the memos, or the low-level employees who carried out this program. I have asked Mr. Blair to provide me with a list of the dates, locations and names of all members of Congress who attended briefings on enhanced interrogation techniques.

He has, it seems, signaled such a battle will be a war of mutually assured destruction.

Former CIA Director Porter Goss has been unreservedly critical of Obama's decision:

Porter Goss, former CIA director and past chairman of the House Intelligence Committee, blasted the Obama administration for releasing Justice Department memos on harsh interrogation techniques. "For the first time in my experience we've crossed the red line of properly protecting our national security in order to gain partisan political advantage," Goss said in an interview.

Goss, a former CIA operative, has made few public comments since leaving his post as DCI in September 2006. In December 2007, he told a Washington Post reporter that members of Congress had been fully briefed on the CIA's special interrogation program. "Among those being briefed, there was a pretty full understanding of what the CIA was doing," Goss told the Post. "And the reaction in the room was not just approval, but encouragement."

I agree fully with Professor Jacobson:

There is no ego as large as a Congressional ego. Combine that with a history of bitterness of the 2000 election and personal animosity, and you have the makings of a vendetta by congressional hearing. If not interrogation, then it would be something else.

Obama did not create the profound desire for retribution, but he has unleashed it. And it will consume his presidency. This will be a fight unlike anything any of us have seen in our lifetimes, because it involves the nation's most emotional moment since Pearl Harbor. The legal battle lines already are being drawn, fund raising plans drawn, and lawyering up is about to begin. And both sides relish the prospect of a battle.

Obama should not underestimate the destructive power of Congress. Barely three months into his term,  Obama's ability to control the agenda  is on the cusp. The inimitable Democratic penchant for self-destructive behavior will not be satisfied until Bush has been bashed, even if the ultimate victims are our national security and Obama's legacy.

The Wall Street Journal also observes that any Congressional investigation will unleash a partisan brawl that will harm the president and the nation.

  • In the first round of the battle the selective leaking of information shows the administration is dishonest, and this conduct will harm it in the partisan battle it has initiated.

As the White House and Senate committee were selectively leaking classified information harmful to the nation to provide cheap grace for Obama and the weaponry for a new partisan food fight on Capitol Hill , former Vice President Dick Cheney indicated he'd not  sit as a piñata to be beat upon by the likes of Levin, Waxman, and Leahy. He pointed out that the one thing the selective releases were leaving out of the picture was the one thing most persuasively in favor of the former officials. The fact is that the techniques worked and saved many lives. An al-Qaeda plot to wreak havoc on Los Angeles as it had  earlier on New York was disrupted.

As Marc A. Thiessen, former chief speechwriter for President Bush, reported in the Washington Post:

In releasing highly classified documents on the CIA interrogation program last week, President Obama declared that the techniques used to question captured terrorists "did not make us safer." This is patently false. The proof is in the memos Obama made public -- in sections that have gone virtually unreported in the media.

Consider the Justice Department memo of May 30, 2005. It notes that "the CIA believes 'the intelligence acquired from these interrogations has been a key reason why al-Qaeda has failed to launch a spectacular attack in the West since 11 September 2001.'  ... In particular, the CIA believes that it would have been unable to obtain critical information from numerous detainees, including [Khalid Sheik Mohammed] and Abu Zubaydah, without these enhanced techniques." The memo continues: "Before the CIA used enhanced techniques ... KSM resisted giving any answers to questions about future attacks, simply noting, 'Soon you will find out.'" Once the techniques were applied, "interrogations have led to specific, actionable intelligence, as well as a general increase in the amount of intelligence regarding al-Qaeda and its affiliates."

Specifically, interrogation with enhanced techniques "led to the discovery of a KSM plot, the 'Second Wave,' 'to use East Asian operatives to crash a hijacked airliner into' a building in Los Angeles." KSM later acknowledged before a military commission at Guantanamo Bay that the target was the Library Tower, the tallest building on the West Coast. The memo explains that "information obtained from KSM also led to the capture of Riduan bin Isomuddin, better known as Hambali, and the discovery of the Guraba Cell, a 17-member Jemmah Islamiyah cell tasked with executing the 'Second Wave.'" In other words, without enhanced interrogations, there could be a hole in the ground in Los Angeles to match the one in New York.

[Snip]

But just as the memo begins to describe previously undisclosed details of what enhanced interrogations achieved, the page is almost entirely blacked out. The Obama administration released pages of unredacted classified information on the techniques used to question captured terrorist leaders but pulled out its black marker when it came to the details of what those interrogations achieved.

It is clear that an effort is already underway to suggest that the interrogations were unnecessary and achieved little or nothing. Tom Maguire deals with such an effort in the New York Time's piece, where  a quote from  FBI Director Robert Mueller to the effect that they didn't achieve any interruptions of plots is cited in a way to suggest the interrogations were not useful. They were, if you are not being as selective in measuring success as the administration has been in dribbling out the memos:

All that said, Mr. Shane fails to draw an important distinction here and finds a contradiction where none may, in fact, exist:

In an interview with Vanity Fair last year, the F.B.I. director since 2001, Robert S. Mueller III, was asked whether any attacks had been disrupted because of intelligence obtained through the coercive methods. "I don't believe that has been the case," Mr. Mueller said. (A spokesman for Mr. Mueller, John Miller, said on Tuesday, "The quote is accurate.")

That assessment stands in sharp contrast to many assertions by Mr. Bush and Mr. Cheney, who on Fox News on Sunday said of the methods: "They did work. They kept us safe for seven years."

Four successive C.I.A. directors have made similar claims, and the most recent, Michael V. Hayden, said in January that he believed the methods "got the maximum amount of information" from prisoners, citing specifically Abu Zubaydah and Khalid Shaikh Mohammed, the chief 9/11 plotter.

The OLC memos make it clear that deterring attacks was the lesser benefit of the enhanced interrogation program.  The real value was in learning the names, leads, motivations, and the organization of al-Qaeda.  For instance, information from Khalid Sheik Mohammed led to the arrest of Hambali, a leader of the group responsible for the Bali bombing.  That may or may not have disrupted a specific attack (Hambali was working on the Library Tower attack and his first team was arrested prior to KSM's arrest and interrogation), but the arrests clearly had value.  Put it this way -- would capturing Bin Laden have value even if it did not disrupt a specific attack?

The only reason one can imagine for redacting the parts in the memos that point to the success of these interrogations, for moving the goalposts on what the interrogations accomplished, and for responding slowly to Cheney's request for the full declassification of the memos is that the redacted portions are exculpatory and greatly diminish the arguments of those calling for the blood of Bush administration officials.

A  long public partisan battle in which government officials are pilloried, after they have sacrificed to protect American lives and interests, can only further harm the president's  public standing -- one issue about which this president seems to demonstrate a genuine concern.