Mr. Obama and his allies need to discredit the techniques he has banned. Otherwise, in the event of a future terrorist attack, critics may blame his decision to rein in C.I.A. interrogators.
Succinctly and accurately put by the New York Times of all people. The president is putting his future political needs ahead of the country’s national security so that if another devastating attack occurs in this new era of 9/10 tactics and thinking about our Islamist enemies, he and the Democrats in Congress will have a defense as to why they lowered our defenses.
The Washington Post’s David Ignatius sums up some of the obvious, deeply damaging consequences of President Obama’s flip-flop on the prosecutions/show trial-hearings/McCarthyism-of-the-left announced yesterday.
Here’s Mitt Romney on my program today:
HH: I want to start with the big news from yesterday, that President Obama has reopened the door, opened the door to the prosecution of former Bush administration officials in connection to the interrogation memos. What’s your reaction to that, Governor?
MR: Well, it’s a bad decision on a number of fronts. First of all, it violates his most consistent campaign pledge that he was going to work on a bipartisan basis in Washington. There’s nothing that could be more hostile than saying we’re going to go after the prior administration and see if we can make them all get lawyers and pay millions of dollars in legal fees, and drag them in for hearings, and see if we can really demonize the prior administration. That’s the lowest form of partisanship, and it’s something which I think the American people will recognize was very different than what they heard during the campaign. And secondly, these matters that are related to protecting our country from terrorism, you know, I think the Democrats are making a mistake by calling this into question. President Bush informed members of Congress as to the policies that were being pursued. There was a national emergency, America was kept safe during the Bush years. I think Barack Obama’s leading with his chin on this, because you know what? He’s got to keep this country safe.
Here is Andrew McCarthy, who successfully prosecuted the terrorists behind the first World Trade Center attack, from yesterday’s program:
HH: [Y]our legal analysis of whether or not at any time until the present the use of waterboarding has been illegal in the United States. Let’s start there, Andrew McCarthy.
AM: I think the use of waterboarding has never been illegal in the United States. No prosecutor who was a competent, professional prosecutor doing a non-politicized case would indict a waterboarding case, because there’s not enough certainty that it’s actually been illegal. And in fact, I think the better of the argument is that it hasn’t been illegal.
HH: Has Congress had ample opportunity to define waterboarding as illegal and it refused to do so, Andy?
AM: Yes, they absolutely have. In fact, it came up directly, the question came straight up in the Senate, and they voted it down, to add waterboarding. They also, Hugh, did, if you remember I think it was a couple of years ago, they did a major amendment to the War Crimes Statute. I believe it was in connection with the Military Commissions Act in ’06 where they clarified the atrocities that would be prosecutable for war crimes. They could certainly have added waterboarding. Everybody knew at that point that it was a controversial issue, and yet again, they ducked it.
HH: Is that probative at all, Andrew McCarthy, in a prosecutor’s assessment of guilt and innocence?
AM: Yeah, I think it absolutely is. Anything, Hugh, I think that goes to, particularly now we’re talking about potential prosecutions of Justice Department people, of lawyers, where I think the legal playing field is more relevant than it might be for the normal prosecution, anything that would go to the state of mind of anyone who you would potentially indict, because a war crime, generally speaking, is a specific intent crime. You have to really understand that you’re breaking the law and follow through anyway.
And check back later if you are interested in the transcript of a debate on the pending Obama show trials between Erwin Chemerinsky and John Eastman, which I will post as soon as it is available.
The 2007 Washington Post article referenced by Dean Eastman –Hill Briefed on Waterboarding in 2002: In Meetings, Spy Panels’ Chiefs Did Not Protest, Officials Say– is here. The opening paragraphs of that article:
In September 2002, four members of Congress met in secret for a first look at a unique CIA program designed to wring vital information from reticent terrorism suspects in U.S. custody. For more than an hour, the bipartisan group, which included current House Speaker Nancy Pelosi (D-Calif.), was given a virtual tour of the CIA’s overseas detention sites and the harsh techniques interrogators had devised to try to make their prisoners talk.
Among the techniques described, said two officials present, was waterboarding, a practice that years later would be condemned as torture by Democrats and some Republicans on Capitol Hill. But on that day, no objections were raised. Instead, at least two lawmakers in the room asked the CIA to push harder, two U.S. officials said.
“The briefer was specifically asked if the methods were tough enough,” said a U.S. official who witnessed the exchange.
Instant and genuine outrage from callers and e-mailers greeted President Obama’s about-face on the possibility of prosecuting former Bush Adminstration officials. Not only do such wild swings give everyone dealing with the president or the U.S. pause over his reliability, the idea of such an unprecedented attempt to criminalize prior policy positions immediately summons up the memory of Tailgunner Joe, though this time the hunted are conservatives and the pitchforks are in the hands of Democrats. The absurdity of a prosecution is laid out by an attorney with experience in the field here at Patterico’s second site, but of course it isn’t about convicting anyone, but about ruining lives and reputations.
The transcript of my interview with former Bush speechwriter Michael Gerson is below. Though Gerson doubts he’ll be caught up in any investigation or commission proceedings, any senior Bush Adminstration official has got to realize immediately that the “senior counsel” to any “blue ribbon” commission could easily become Javert, in fact might be selected for his Javert-like qualities. The time to “lawyer-up” is now, and a call to Andy McCarthy for advice would be the first one I’d make if I had been within two arms-lengths of the prosecution of the war and the collection of intelligence. Further, every single professional up-and-down the line of the war effort has to begin wondering right now when the subpoena arrives.
The Gerson conversation:
HH: Joined now by Washington Post columnist Michael Gerson, long time aide to former President Bush, speechwriter and consigliere in many respects. Michael Gerson, welcome back to the program, good to talk to you.
MG: Great to be with you again.
HH: I’d like to play for you a part of President Obama’s comments in the Oval Office today.
PBO: With respect to those who formulated those legal decisions, I would say that that is going to be more of a decision for the Attorney General within the parameters of various laws, and I don’t want to prejudge that.
HH: Michael Gerson, these are your friends they’re talking about, obviously. You might even be on of them. I guess you’re not a lawyer, but…
MG: No, I don’t think I am in this case. But I still, you know, but they are some of my friends.
HH: What do you…I think this is an enormous error. I think this is the launching of a witch hunt. What do you think?
MG: I think it’s a terrible error for a couple of reasons. One of them is that I think that the release of these memos, and now the talk of these prosecutions, is creating an atmosphere in which people in our intelligence services, people in our government, are going to be very timid about pursuing absolutely essential elements in the war on terror. This is creating an atmosphere that’s more like the pre-9/11 atmosphere when people were complacent and afraid to confront these problems. And I’m afraid that we’ve returned to that attitude, that we’re going to return to some of those outcomes eventually. And so I think it’s a serious challenge. Now let me make one more point here, which is if there are going to be investigations of people who knew about these things, and who approved of them, then that’s going to have to include Nancy Pelosi and Senator Rockefeller, who were both briefed, along with other members of the Intelligence community in Congress about thirty times on all of these techniques beginning in 2002. The fact of the matter is that this represents what was happening in the immediate aftermath of 9/11. the intelligence community had no idea if there were going to be further attacks, how large the al Qaeda network was in the United States. And they were pursuing by their best lights, according to their best legal interpretation, matters that they thought were essential to American security. You can’t criminalize that.
HH: Michael Gerson, I know there’s also talk of a bipartisan commission like the 9/11 Commission, which of course will be more witch hunt theater. But at that point, when do you start to lawyer up? Because when this stuff gets going, you know, it doesn’t stop anywhere. It goes off on a head hunt for anyone. And obviously, you had to have discussed, you wrote the speeches, about the need for surveillance, and the need to be proactive, and the need to go after al Qaeda. When do you lawyer up, Michael Gerson?
MG: Well, I haven’t been presented with that, and I hope not to. I mean, it’s one of the real concerns here. And this is true of people that were in the Clinton administration, it’s true of people in the Bush administration. I think it’s a real mistake to try to criminalize policy disagreements. You know, we can disagree with some of the things that the Clinton people did. You know, people disagree with things that people in the Bush administration did. But people were involved, for example, at the Justice Department, were making their best legal judgments. It’s very hard under those circumstances to try to impose a mindset, a kind of witch hunt mindset to people that thought they were doing their duty.
HH: Did you ever talk about waterboarding with anyone in the White House?
MG: No, those were, in fact, those techniques and approaches that were revealed in the memo were known by a very small group of people, on a kind of need to know basis. I didn’t know about them.
HH: Do you expect…how wide of a circle would that have been debated that among? You knew the White House pretty well, even if you’re not in the meetings on al Qaeda, how many people are we talking about? 20?
MG: I honestly don’t know the answer to that. Obviously, it would be the senior people who were involved in this, the lawyers at Justice, the people at the CIA who were involved in these efforts in the intelligence community, and the people at the White House that were involved as well.
HH: You know, I’m just shocked by this. I really am. This is a war that we’re in, Michael Gerson. You lived it every single day for your service to the President, and this is so cavalier and so deeply damaging the national security, I’m actually kind of stunned.
MG: Well, it is stunning certainly in one way, which is every member of the Obama administration could imagine circumstances where they might be forced to use such methods, okay? In fact, Leon Panetta, entering his own hearing, seemed to indicate that that was the case. If you face a circumstance with a nuclear or biological attack on an American city, you know, you may well employ sleep depravation to try to get information.
HH: Oh, I think waterboarding would make a comeback in a moment if, for example, the scenario outlined in Rich Lowry’s new book, Banquo’s Ghosts comes to pass. I don’t know if you’ve had the chance to read that yet, Michael Gerson, but it’s chillingly realistic, and I’ll leave it at that. I look forward to talking to you again soon, Michael Gerson of the Washington Post.
UPDATE: The New York Times has a story on President Obama’s new director of intelligence admitting that the interrogation techniques that are allegedly the basis for prosecuting lawyers for writing memos yielded valuable information. The absurd idea of prosecuting these public servants for non-crimes just got even more absurd.
The opening graphs:
President Obama‘s national intelligence director told colleagues in a private memo last week that the harsh interrogation techniques banned by the White House did produce significant information that helped the nation in its struggle with terrorists.
High value information came from interrogations in which those methods were used and provided a deeper understanding of the al Qa’ida organization that was attacking this country,” Adm. Dennis C. Blair, the intelligence director, wrote in a memo to his staff last Thursday.