More Tortured Thinking

The issue of waterboarding has been brought to a head by Obama's release of the OLC memos on enhanced interrogation and his green lighting of a criminal investigation aimed at the OLC attorneys for rendering those opinions. There have been several articles out today that weigh in on aspects of this controversy. Before addressing them, I wanted to note Obama's intemperate remarks at his 100 day press conference. When asked about the legality of waterboarding, he weighed in that he thought it was "illegal." Given that there is now an ongoing criminal investigation to determine that issue, the President weighing in on it during the pendency of that investigation is, at the very least, unethical. Beyond that, as the WSJ notes, the careful wording of Obama's answers to questions on waterboarding strongly suggest that Dick Cheney, who claims that the information resulting from waterboarding was invaluable, is correct.

Charles Krauthammer, writing at the Washington Post, defends the use of waterboarding as a highly effective and necessary tool to retain in our arsenal, even if very sparingly used. He also has harsh criticism for House Speaker Nancy Pelosi who is doing all she can in an attempt to deny her role in the waterboarding saga. This from Mr. Krauthammer:

"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.

Read the entire article.

Then there is this from the President of the Foreign Relations Council, Richard Haass, discussing the implications of Obama's decision to greenlight a criminal investigation of the OLC attorneys. As Mr. Haass notes, and as I have previously noted on this blog, that decision will have a profound negative impact on our intelligence gathering capabilities far into the future. This from Mr. 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.

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.

. . . 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. . . .

Read the entire article. The damage the Obama presidency portends for our nation will be long lasting indeed, I think.

Related Posts:

Words Have Meaning Rick (analyzing the legal status of waterboarding)

Ex-CIA Agent Michael Scheuer Flays Obama

The Moral, Legal & Prudential Considerations Surrounding Waterboarding

The Ticking Time Bomb & Coerecive Interrogation

Moral Confusion At The Rightwing Nuthouse