Law

By Christian Brose

This New Republic profile by Michael Crowley of U.S. Ambassador Dan Fried, the man charged with finding foreign homes for many of the Guantanamo detainees, is worth reading:

Perhaps half the 240 detainees now in custody will have to be relocated to countries other than their native lands because they risk being tortured there (or worse) upon their return. For Fried, that means shuttling endlessly between foreign capitals to plead for help, and often to be met by extortionist demands and haughty lectures from foreign diplomats. It is grueling work, making the respected career diplomat something like a door-to-door salesman peddling the human equivalent of radioactive waste.

But perhaps the hardest part is handling the obstacles that keep cropping up in Washington itself. First, there's the ticking clock of Barack Obama's pledge to shut Guantanamo by January 2010 -- a bold statement that defied the warnings of advisers who said that, if closing Guantanamo were easy, George W. Bush would have made good on his own stated wishes to do so himself. Then, there's the craven opportunism of members of Congress who want to look tough on terrorism by vowing to block any effort to resettle the wrongly detained here in America. "It is a tough job, to put it mildly," says Fried. Or, as one friend simply commented after the latest round of congressional grandstanding against accepting the detainees, "Poor Dan."

Full disclosure: I worked with Dan for four years at the State Department, and at the risk of making his life even more difficult by singing his praises on this blog, I'll say that he is one of the most impressive and talented Foreign Service Officers I encountered. But more than that, he spent the past four years helping to rebuild America's bridges to our European allies, and rather than doing what any normal person his age would have done -- which was retire to make money, or live out his days in peace, or both -- Dan chose instead to take the single most thankless job in government because he's a great American.

As for the ultimate goal of Dan's job, consider this quote from John Bellinger, who worked as much as anyone to solve this problem in recent years:

Ultimately, says Bellinger, the former Bush official, it may be impossible to find homes in humane countries for the vast majority of the men at Guantanamo. As a fallback, the United States might have to repatriate some of the men to their repressive home countries after all -- which would leave Fried the task of winning promises of good treatment from those governments. "Those are some of the toughest negotiations," says Bellinger, "where we say we have to have high-level, ironclad, specific assurances that [detainees] will not be mistreated, but with some kind of monitoring mechanism."

What is dawning on the Obama administration is that, in the moral interest of closing Guantanamo, they'll have to cut some moral corners elsewhere. This is not a new idea, and it's what makes the prison dilemma so hard. Maybe those "assurances" and "monitoring mechanisms" will hold up. But it's very possible they won't, and to some degree the administration will just have to look the other way, or else Guantanamo will be open forever. Other moral corner-cutting might (and likely will) include holding more detainees in Bagram Air Base, or just killing more of them preemptively on the battlefield so as to avoid the whole problem of detention altogether, as Jack Goldsmith suggested this weekend in the Washington Post. There is no easy or morally straightforward answer.

Poor Dan. Poor us.

By Christian Brose

President Obama's nomination of Judge Sonia Sotomayor for the Supreme Court got me thinking about this very sharp observation by Reihan Salam last week, after Cheney and Obama made their dueling speeches:

National security has become part of the culture wars, only with Dick Cheney as the new Jerry Falwell. It doesn't matter that Obama is escalating the war in Afghanistan or that he's embraced rendition. To Cheney, Obama's anti-torture stance represents the moral vanity of a naïve one-worlder.

We'll be hearing much more about this new culture clash. During the hearings on Obama's first Supreme Court appointment, Republicans will spend more time hammering the Democratic nominee on Hamdan v. Rumsfeld and Boumediene v. Bush than about Roe v. Wade. At the moment, Obama looks untouchable. But the politics of national security could prove his undoing.

I think this is a shrewd point, and it's the first time I'd read this. Presidential power in detaining, interrogating, and fighting non-state actors is one of the hardest and most contentious constitutional debates, right now and for the remaining future. It's a legal growth industry. It is also becoming a sharp line of division between culture-warring elements in each party, much like Roe.

I suspect Republicans will try to drill down and press on these issues in Sotomayor's confirmation, especially since her opinions on them are less well-defined. But it's a fraught strategy, because it opens Republicans up to the attack that they are accusing a rather sympathetic Hispanic woman of not wanting to protect America. This is a political minefield, especially at a time when Republicans are at risk of losing the Hispanic vote for the foreseeable future.

By Christian Brose

Say what you will about Vice President Cheney's decision to come out swinging so soon after leaving office, or President Obama's decision to launch a preemptive strike against him today, the speech that each man gave this morning was smart, serious, sober, and civil. Here we had one of the hardest national security issues of our time debated head to head in front of the entire country by the two best advocates for their respective sides. It was a fascinating occasion. And yet I am left thinking, now even more than before, that this is an argument that will never end, for two reasons: facts and fear.

One thing that rubbed me the wrong way about Obama's speech was how dismissive he was of fear and the people who rightly felt it (and still do). The decisions made after 9/11, he said, were "based upon fear rather than foresight," as if that alone discredits them. Cheney and others are "fear-mongering" by reminding the voting public that there are people out there who want to kill us, and that Americans differ over how to prevent that from happening. The truth is, fear is a human emotion, and thus an inherently political issue. Obama and company are perfectly willing to play on people's fears when it comes to jobs, or health care, or the environment. People are legitimately afraid for those things, just as they are for their security. And one purpose of policymaking is to assuage those fears.

Everyone was afraid after 9/11, for one good reason: a lack of facts -- about whether more attacks were coming, and if so, how, and when, and from where, and by whom. Uncertainty is the greatest fear of all, and like it or not, in the weeks after 9/11, that was the climate in which new policies had to be made on a host of hard problems for which there were few precedents, legal or historical. Cheney and others contend that those policies worked. They generated facts, and those facts saved lives. And if only Obama would release the CIA memos that supposedly lay out what was learned, the American people could see those facts for themselves and draw their own conclusions about "enhanced" interrogation.

Would that settle things once and for all? Somehow I doubt it. For when it comes to intelligence, facts are strange things.

Cheney himself acknowledged today that some people who have reviewed the CIA memos think they are "inconclusive." Others agree. In time, it's easy to imagine there will be other memos, if there aren't already, that look at the same record of "enhanced" interrogations and the same resulting intelligence and yet draw the opposite conclusion from the CIA, which is after all justifying a CIA program. I'm not sure we will ever be able to say with absolute certainty that one specific "enhanced" interrogation led to the disruption of a specific terrorist plot that definitely would have killed Americans. With any luck, the Senate Intelligence Committee's comprehensive investigation of this issue will reach firm conclusions. But I'm just not sure intelligence works this way, that it's this conclusive. It's like pulling one strand of a tightly knit sweater and saying it is the decisive thread holding the whole thing together. And of course, even if you were able to corroborate that judgment, you still wouldn't be able to prove the negative -- that this piece of intelligence could not have been gained through other, less harsh means.

This is what I mean by an argument without end. For all of the facts we now have, and those that may still emerge, I doubt they will convince the American public decisively to side either with Obama or Cheney. And where there is uncertainty there will continue to be fear. This helps to explain the recent paradoxical findings from a major Gallup poll that a slight majority of Americans believe both that "enhanced" interrogations were justified and that past instances of their use should be investigated for misconduct.

Fear isn't going anywhere. The question is, how best to manage and assuage it while not exploiting it.

I don't fear for America because of the policies Obama laid out today, because I agree with Jack Goldsmith that most of these policies are largely similar in their substance to where the Bush administration ended up, often as a result of shifts in its approach during the second term based on new facts that emerged and new perspectives that were gained. This is the irony of Cheney's current position: Many of the policies he is arguing for now were in recent years rolled back by President Bush himself, or overturned by the Supreme Court. Closing Guantanamo is an exception, but it was Bush's stated goal to do so, and people like Secretary Rice and John Bellinger and Matt Waxman worked tirelessly to do it. Closing it now, though difficult, is both right and necessary. So in all these ways, Cheney's argument is with Bush as much as it is with Obama.

What does make me fearful, though, is the way the White house has handled this entire thing -- deciding to release the Justice Department memos, but saying there would be no prosecutions, but then reversing and saying, actually, there may be some prosecutions after all. Obama said he released those memos because the information they contained was already widely known. Well, that works just as well as an argument for not releasing them, because nothing would be gained by doing so. We already knew that senior Al-Qaeda terrorists had been waterboarded; how many times it was done is just a detail, gory though it is. What the release of those memos did accomplish, though, was to greatly exacerbate the fear on the part of our national security professionals. And here, I think, Cheney gets it right:

[A]t the CIA, operatives are left to wonder if they can depend on the White House or Congress to back them up when the going gets tough. Why should any agency employee take on a difficult assignment when, even though they act lawfully and in good faith, years down the road the press and Congress will treat everything they do with suspicion, outright hostility, and second-guessing?

I would add that this applies to the military as well.

The debate over "enhanced" interrogation, the rule of law, and national security will never end. But I fear the tragedy is just beginning. Before 9/11, America's counter-terrorism policies suffered from excessive caution and risk-aversion. After 9/11, that pendulum swung too far in the other direction, toward what Cheney once called "the dark side." Now that pendulum is swinging right back toward the other extreme again -- not because Obama wants it to, or believes it should, or mandated that it must in his policies, but because of unnecessary actions he took without adequate "foresight," and the manner in which he took them. The professionals entrusted to keep America safe now work in fear of taking the risks that their jobs entail. And the people they're charged with protecting still don't have the facts to reach a political consensus on this issue (and likely never will, even if Cheney were to get his way).

This debate may reduce to a low boil, but it won't go away. And when the next attack comes, as everyone believes it inevitably will, we will be right back in the teeth of this thing. It is a fight without end, and I fear it will only get nastier.

By Philip Zelikow

The two speeches on counterterrorism today by President Obama and former Vice President Cheney were each, in their way, exceptionally well-crafted addresses showcasing each man's rhetorical gifts. The two addresses repay careful study and comparison. But everything I could say to contrast the style and substance of the two speeches can be gleaned from this pair of quotations from them:

Mr. Cheney: 

Behind the overwrought reaction to enhanced interrogations is a broader misconception about the threats that still face our country. You can sense the problem in the emergence of euphemisms that strive to put an imaginary distance between the American people and the terrorist enemy. Apparently using the term 'war' where terrorists are concerned is starting to feel a bit dated. So henceforth we're advised by the administration to think of the fight against terrorists as, quote, 'Overseas contingency operations.'

President Obama: 

After 9/11, we knew that we had entered a new era -- that enemies who did not abide by any law of war would present new challenges to the application of the law; that our government would need new tools to protect the American people, and that these tools would have to allow us to prevent attacks instead of simply prosecuting those who try to carry them out....

Now let me be clear: we are indeed at war with al Qaeda and its affiliates. We do need to update our institutions to deal with this threat. But we must do so with an abiding confidence in the rule of law and due process; in checks and balances and accountability.

By Christian Brose

Before tomorrow's battle royale of speechmaking between President Obama and former Vice President Cheney regarding the conflict formerly known as the War on Terror, make sure you first check out Jack Goldsmith's spot-on piece in the New Republic. It's a must-read:

Former Vice President Cheney says that President Obama's reversal of Bush-era terrorism policies endangers American security. The Obama administration, he charges, has "moved to take down a lot of those policies we put in place that kept the nation safe for nearly eight years from a follow-on terrorist attack like 9/11." Many people think Cheney is scare-mongering and owes President Obama his support or at least his silence. But there is a different problem with Cheney's criticisms: his premise that the Obama administration has reversed Bush-era policies is largely wrong. The truth is closer to the opposite: The new administration has copied most of the Bush program, has expanded some of it, and has narrowed only a bit. Almost all of the Obama changes have been at the level of packaging, argumentation, symbol, and rhetoric. This does not mean that the Obama changes are unimportant. Packaging, argumentation, symbol, and rhetoric, it turns out, are vitally important to the legitimacy of terrorism policies.

Also, over at AEI's great new blog, Danielle Pletka makes a good case for why Obama, despite running the "savviest information ops of any White House in modern history," still has his work cut out for him tomorrow.

This will be very interesting...

By Philip Zelikow

One other consequence of the declassification of the Justice Department opinions and the revelation of the CIA interrogation program is a debate on the effectiveness of these methods. Some of my friends are troubled, because they have been told so often that these methods work.

I will have more to say on the topic of effectiveness later. But for now, I urge those following this controversy to read the op-ed piece published in the New York Times today by former FBI special agent Ali Soufan. I met and interviewed Soufan in the course of my work at the 9/11 Commission, while he was still doing important work at the FBI. From my commission work, my fellow staffers and I had direct knowledge about several of the specific assertions Soufan makes in this piece: about Abu Zubaydah, Ramzi Binalshibh, and Khalid Sheikh Mohammed. My fellow staffers and I considered Soufan to be credible. Indeed, Soufan is fluent in Arabic, and he seemed to us to be one of the more impressive intelligence agents -- from any agency -- that we encountered in our work.

Soufan states, accurately, that some of the CIA claims reprinted in the Justice opinions (and recently repeated in the media) are demonstrably false or overstated. Some of the very claims that Soufan describes were also used, while I was in government, in CIA memos defending the program that were submitted to the White House. Therefore, the declassification of those memos, as Vice President Cheney and others have called for, would only raise questions that would have to be answered with still more disclosures. The Senate Select Committee on Intelligence appears to be trying to sort this out.

To be fair to the program's proponents, many successful intelligence cases are accompanied by rival claims about credit, arguments about which agent or which source provided the key information. That is natural and healthy. And sometimes both sides can be right: a successful stream can have many tributaries. But Soufan's piece is a reminder to be wary of such claims, and especially wary about claims on the key point: whether the extreme techniques were necessary to get satisfactory results.

Among the many hidden costs to intelligence collection are ones like this point, which Soufan makes: "An F.B.I. colleague of mine who knew more about Khalid Shaikh Mohammed than anyone in the government was not allowed to speak to him." At the 9/11 Commission, we noticed this too. At the time (late 2003), my commission colleagues and I could not understand why this agent was not helping to question KSM. This was part of broader concerns we had about the substantive quality of the interrogations. I raised the issue in writing with the CIA's General Counsel in our efforts to dig deeper into the way the interrogations were being conducted --  a point that I mentioned in this previously disclosed memo.

FBI Director Robert Mueller has said publicly that he does not believe that coercive techniques made the difference in averting any planned terrorist attacks against the United States. Mueller has sweated the details of innumerable leads and cases over the last eight years. So, though he may or may not be right, his opinion is entitled to some attention, and it is not self-serving.

By Philip Zelikow

I first gained access to the OLC memos and learned details about CIA's program for high-value detainees shortly after the set of opinions were issued in May 2005. I did so as Secretary of State Condoleezza Rice's policy representative to the NSC Deputies Committee on these and other intelligence/terrorism issues. In the State Department, Secretary Rice and her Legal Adviser, John Bellinger, were then the only other individuals briefed on these details. In compliance with the security agreements I have signed, I have never discussed or disclosed any substantive details about the program until the classified information has been released.

Having been the executive director of the 9/11 Commission, I'm aware of what some of these captives did. The Commission wondered how captives were questioned (for details on that, see this previously disclosed report), and the matter is now the subject of a federal criminal investigation by special prosecutor John Durham. Nonetheless, the evidence against most -- if not all -- of the high-value detainees remains damning. But the issue is not about who or what they are. It is about who or what we are.

Based on what had earlier been released, I have offered some general views on "Legal Policy for a Twilight War." With the release of these OLC memos, I can add three more sets of comments, each of which could be developed at much greater length.

1. The focus on water-boarding misses the main point of the program. 

Which is that it was a program. Unlike the image of using intense physical coercion as a quick, desperate expedient, the program developed "interrogation plans" to disorient, abuse, dehumanize, and torment individuals over time. 

The plan employed the combined, cumulative use of many techniques of medically-monitored physical coercion. Before getting to water-boarding, the captive had already been stripped naked, shackled to ceiling chains keeping him standing so he cannot fall asleep for extended periods, hosed periodically with cold water, slapped around, jammed into boxes, etc. etc. Sleep deprivation is most important. 

2. Measuring the value of such methods should be done professionally and morally before turning to lawyers.

A professional analysis would not simply ask: Did they tell us important information? Congress is apparently now preparing to parse the various claims on this score -- and that would be quite valuable. 

But the argument that they gave us vital information, which readers can see deployed in the memos just as they were deployed to reassure an uneasy president, is based on a fallacy. The real question is: What is the unique value of these methods? 

For this analysis, the administration had the benefit of past U.S. government treatment of high-value detainees in its own history (especially World War II and Vietnam) and substantial, painful lessons from sympathetic foreign governments. By 2005, the Bush administration also had the benefit of what amounted to a double-blind study it had inadvertently conducted, comparing methods that had evolved in Iraq (different Geneva-based rules, different kinds of teams) and the methods the CIA had developed, with both sets being used to against hardened killers.

Opponents should not overstate their side either. Had a serious analysis been conducted beforehand (it apparently was not), my rough guess is that it might have found that physical coercion can break people faster, with some tradeoff in degraded and less reliable results.

Which underscores the importance of moral analysis. There is an elementary distinction, too often lost, between the moral (and policy) question -- "What should we do?" -- and the legal question: "What can we do?" We live in a policy world too inclined to turn lawyers into surrogate priests granting a form of absolution. "The lawyers say it's OK."  Well, not really. They say it might be legal. They don't know about OK.

3. The legal opinions have grave weaknesses. 

Weakest of all is the May 30 opinion, just because it had to get over the lowest standard -- "cruel, inhuman, or degrading" in Article 16 of the Convention Against Torture. That standard was also being codified in the bill Senator John McCain was fighting to pass. It is also found in Common Article 3 of the Geneva Conventions, a standard that the Supreme Court ruled in 2006 does apply to these prisoners. Violation of Common Article 3 is a war crime under federal law (18 U.S.C. section 2441), a felony punishable by up to life imprisonment. (The OLC opinions do not discuss this law because in 2005 the administration also denied the applicability of Common Article 3.)

The OLC holds, rightly, that the United States complies with the international standard if it complies with the comparable body of constitutional prohibitions in U.S. law (the 5th, 8th, and 14th Amendments). Many years earlier, I had worked in that area of the law. I believed that the OLC opinions (especially the May 30 one) presented the U.S. government with a distorted rendering of relevant U.S. law. 

At the time, in 2005, I circulated an opposing view of the legal reasoning. My bureaucratic position, as counselor to the secretary of state, didn't entitle me to offer a legal opinion. But I felt obliged to put an alternative view in front of my colleagues at other agencies, warning them that other lawyers (and judges) might find the OLC views unsustainable. My colleagues were entitled to ignore my views. They did more than that:  The White House attempted to collect and destroy all copies of my memo. I expect that one or two are still at least in the State Department's archives. 

Stated in a shorthand way, mainly for the benefit of other specialists who work these issues, my main concerns were:

• the case law on the "shocks the conscience" standard for interrogations would proscribe the CIA's methods;

• the OLC memo basically ignored standard 8th Amendment "conditions of confinement" analysis (long incorporated into the 5th amendment as a matter of substantive due process and thus applicable to detentions like these). That case law would regard the conditions of confinement in the CIA facilities as unlawful.

• the use of a balancing test to measure constitutional validity (national security gain vs. harm to individuals) is lawful for some techniques, but other kinds of cruel treatment should be barred categorically under U.S. law -- whatever the alleged gain.

The underlying absurdity of the administration's position can be summarized this way. Once you get to a substantive compliance analysis for "cruel, inhuman, and degrading" you get the position that the substantive standard is the same as it is in analogous U.S. constitutional law. So the OLC must argue, in effect, that the methods and the conditions of confinement in the CIA program could constitutionally be inflicted on American citizens in a county jail. 

In other words, Americans in any town of this country could constitutionally be hung from the ceiling naked, sleep deprived, water-boarded, and all the rest -- if the alleged national security justification was compelling. I did not believe our federal courts could reasonably be expected to agree with such a reading of the Constitution.

By Phil Zelikow

I will have more to say soon about interrogation policies in the Bush administration and the recently renewed debate over them, but for now I'll just say this: I am not eager to see any government officials prosecuted for crimes because of their zeal to protect their country. But crimes committed for worthy motives are still crimes, and we have institutions to sort this out.

So has anyone beside me found it troubling that President Obama is making announcements on who should be prosecuted for possible crimes? Whatever one's view of the matter, didn't the administration ardently announce its dedication to depoliticizing the Department of Justice? So why is it proper for the president to tell Attorney General Eric Holder what he should conclude?

There seem to be four possibilities here:

1. No unlawful conduct occurred. That judgment should, at least initially, be made by the Attorney General, free from political influence.

2. Unlawful conduct occurred, but the suspects have a credible defense -- that before undertaking their unlawful conduct, they relied in good faith on authoritative (though in retrospect, mistaken) legal opinions that the planned conduct would be lawful, and these opinions were also issued in good faith. Again, that judgment should be made, at least initially, by the attorney general, free from political influence.

3. Unlawful conduct occurred, and the legal opinions are not an adequate defense. Federal prosecutors, regular or specially appointed, then go to work. Again, the prosecutorial judgments should be free from inappropriate political influence.

4. Unlawful conduct occurred, and the legal opinions might not be an adequate defense. But President Obama decides to issue a blanket pardon for any possible criminal activity.

Or you have option #5, in which the president does not exercise his pardon power but instead, in effect, tells his attorney general what conclusions he should reach about whether federal officials broke the law.

Can you imagine what folks would say if a Republican president exercised option #5? I wish President Obama would just play this straight. He also does no favor to suspects if he politicizes the question of their innocence.