There is a distinct strain of though among certain chatterers of that class that the administration’s policies in the GWOT are not merely misguided, counter-productive or inefficacious but actually criminal. Really.
Former White House counsel (and current UC Berkeley prof) John Yoo comes in for more than the average amount of obloquy from the perpetually hyperventilated set. It is partly this predisposition to the criminalization of policy disputes that makes rational discourse about critically important issues in this country so very hard: If your goal is to jail those who dare to disagree with you, you shouldn’t be surprised when they decline to meet you half way.
And anyway, it’s all stuff say David Rivkin and Lee Casey in the WSJ today. Lawyers – especially – ought to have the intellectual freedom to explore the limits of the law, but ultimately it’s policy makers who have to choose.
Several legal memoranda, particularly 2002 and 2003 opinions written by Mr. Yoo as deputy assistant attorney general for the Office of Legal Counsel, considered whether such methods can lawfully be used. These memoranda, some of which remain classified, explore the limits imposed on the United States by statute, treaties, and customary international law. The goal clearly was to find a legal means to give U.S. interrogators the maximum flexibility, while defining the point at which lawful interrogation ended and unlawful torture began.
Behind this inquiry is a stark fact. In this war on terror, the U.S. must not only attack and defeat enemy forces. It must also anticipate and prevent their deliberate attacks on its civilian population ‚Äì al Qaeda’s preferred target. International law gives the civilian population an indisputable right to that protection.
Lawyers can and do disagree over the administration’s conclusions. However, it’s now being claimed that the administration’s legal advisers can be held responsible for detainee abuses.
This is madness.
Madness? No. This. Is. Partisan. Politics. A silly game, really. Although not necessarily inconsequential:
To the extent that international law can be made, it is made through actual state practice – whether in the form of custom, or in the manner states implement treaty obligations. In the areas relevant to the war on terror, there is precious little state practice against the U.S. position, but a very great deal of academic orthodoxy.
For more than 40 years, as part of the post World War II decolonization process, a legal orthodoxy has arisen that supports limiting the ability of nations to use robust armed force against irregular or guerilla fighters. It has also attempted to privilege such guerillas with the rights traditionally reserved to sovereign states. The U.S. has always been skeptical of these notions, and at critical points has flatly refused to be bound by these new rules. Most especially, it refused to join the 1977 Protocol I Additional to the Geneva Conventions, involving the treatment of guerillas, from which many of the “norms” the U.S. has supposedly violated, are drawn.
The Bush administration acted on this skepticism – insisting on the right of a sovereign nation to determine for itself what international law means. This is at bottom the sin for which its legal advisers will never be forgiven. To the extent they can be punished – or at least harassed – perhaps their successors in government office will be deterred from again challenging the prevailing view, even at the cost of the national interest.
For the Glenn Greenwald(s) of this world, that’s probably OK. The national interest in his world view is only worth defending once it corresponds with his own. Like the controlling partner in an abusive relationship, he’ll love you if…
There were some questions that came to mind when I read this article.
First, is this an attempt to remove a degree of accountability from the people that are actually making the decisions?
A disclosure of sorts ought to come next. By the standards of the people with which I work with (active duty Navy) I am a flaming liberal. This is something of a misnomer, as I vote my conscience versus down party lines.
My point here is that the current administration has been charged with an almost impossible task, which is to rewrite the orthodoxy for a non-conventional conflict as events progress. I am not going to get into my opinion that we have waded into a hell of our own making in Iraq, but I will say some of the policy debates coming out of the White House have made me want to alternately slap myself in the forehead and shake the hands of the people participating. This particular case is definitely one of the latter.
The substance of the memorandum penned by Mr. Woo can be theorized about but not actually discussed due to their classification. This is a significant disappointment in that it may explain the why behind the what insofar as detention and torture policy are concerned. The lack of transparency, not the actual policy, I think ought to be attacked. Trying to crucify someone at least smart enough to ask these questions is idiotic.
One of the things that people rarely talk about is the fact that this is not the first time the United States government has been down the road of making difficult decisions. The decision to utilize atomic weapons against Imperial Japan in 1945 is one such argument, and a model of how not to execute that process.
By that I mean Secretary of War Henry Stimson provided to President Truman a grossly inflated set of statistics for casualty figures for an invasion of Kyushu. Admirals Leahy and King rejected the position put forth that Kyushu would cost 500,000 – 1,000,000 American lives, saying that the numbers would fall somewhere between the percentages seen at Okinawa and Luzon (20-35% of the invasion force. Adm. King and Leahy put the actual numbers at between 76,000 – 268,000. Ratios for casualties on the Japanese side were put at between 10:1 to 22:1, for a range of 767,000 – 5,903,000. For those that are interested, the Truman Presidential Library has a huge number of declassified memorandum available online should you doubt the veracity of these claims.)
Given that the memorandum in which these estimates (not to mention the option of utilizing Mustard gas against the population of Imperial Japan) were all classified for some time, I feel that we will eventually see a degree of full disclosure from the Bush administration that may simultaneously dam(n) and vindicate the decisions / process employed. Most importantly, it took Stimson some years to produce a sort of justification and apologia for his involvement, whereas we see everyone and their brother penning tell-all books to cover their sixes shortly after departing the pattern on Pennsylvania Avenue.
Ultimately what I am driving at is whether I agree or disagree with the decisions being made by the current administration is a moot point. I do not envy the people undertaking the thorny issues of justifying degrees of torture to ensure national security. Although the “Ticking Time Bomb” scenario is a ludicrous way to dumb things down to a 3rd grade soundbite, it does raise the fundamental question being asked here.
Second: How, and when, do you justify torture?
Seriously. Think about that for a moment. When is it acceptable to wire someone’s naughty bits up to car batteries, pull fingernails, drown, suffocate, fatigue, or otherwise generally #@$% with someone to a very physical degree. When you think about this, please try to be as objective as possible and think carefully. Don’t default to a political viewpoint espoused by talking heads on television. Really think about this and the ramifications of getting it wrong.
I agree with Lex that this is partisan politics. The Republican congress took President Clinton to task for restructuring the military to shift away from a Cold War massive overwhelming response mode to one more suited (note I did not say ideally suited) for rapid response and asymmetric warfare. I am certain had Kerry or Gore managed to win we’d be looking at making the same complaints. (Also, I am certain that right-wing media would be making the same snarky comments being made by the left at the moment.)
President Bush has his hands full managing a cabinet alternating between retreading Johnson and Nixon era policy and actually reinventing the wheel to deal with the GWOT. I do not envy him, or some of the personalities, with which he must deal on a daily basis.
Ultimately this is an exceptionally hard thing to do, and I pity Woo for having been made scapegoat for at least trying to have the discussion. Postulation about position and actual content aside, I reserve judgement on the entire issue until we have hard facts and the actual memorandum on hand. Until then it’s nothing more than armchair quarterbacking and irresponsible journalism.
Drew,
Lots of good points here by both yourself and Lex. My biggest issue is this little statement here:
“The lack of transparency, not the actual policy, I think ought to be attacked.” I don’t care what anyone thinks about this administration or the next (or even the last), the point in warfare is to defeat your enemy and part of that is NOT telling the enemy what we are doing! It seems wrong to put in the press the debate and the very policy memo’s regarding the conduct of warfare ON OUR PART. I don’t see AQ washing their laundry in public? And don’t you think they are not reveling in our consternations over this? Don’t you think they run to Al Jazzeria with stories of “duress” to simply get CNN poking around? Knowing full well CNN will only point fingers at the Administration with or without actual facts? And lets not add to the fuel to those Liberals whose only desire is to bash the administration, not caring for even one Millie-second for either our sworn enemy or our Troops.
Why does this bother me, and let me tell you right now that I am sanguine about the use of “excessive force” when interrogating prisoners of the state. In fact, I feel we should adopt the policy of reciprocity, whereby we treat prisoners in the same method/conditions that we think our men/women are being treated by the enemy. This way, if we cut off a head or two on the way to a confession we can point to them as having started it in the first place. A simple attitude I know, but look at the mess created trying to justify the very simple procedures adopted to date. And don’t you think AQ is out there training their guys in how to survive the water boarding technique? And for all their troubles Woo and Bush only get lambasted, they were trying to codify something no one wants to own up to. Can you imagine what Woo has in his resume regarding his time as the “point man” to the Executive Branch for the Justice Department? I wouldn’t want that stink on Me, but I have to admire the man and the men who at least tackled this very ugly issue.
The last thing we need is any of this becoming public.
Not at least until the enemy is completely pacified.
Oh, Drew C., we so had that torture discussion about 6 months or so ago. Epic comment thread.
I think one of the things we have to think about when talking about this issue is what exactly constitues torture. As for myself, I don’t consider waterboarding torture.
That’s one of the things that frustrates me so much about the screaming and screeching going on about this issue amoungst some on the left; they are calling things torture that aren’t torture — Abu Ghraib, waterboarding, etc. They also claim that these decisions are made out of malice and greed when in reality they are made — I believe — out of a genuine intrest in keeping our country safe and preventing another 9-11.
But, as Lex said… it’s partisan politics.
Jim C
**Correction: I named Mr. Yoo as Mr. Woo above. Sorry to inspire confusion and thoughts of slow-motion wide-angle pans as doves fly by and people walk across large bits of exploding tarmac.**
JimmyT,
Thanks for the reply. Thought I might do you the same favor. There are a few things that I thought I might comment on here.
Yes, I’ll cede you the point that classification exists for a reason. This is precisely the reason why policies extraordinary rendition should have been sat on by the press as a matter of courtesy to the United States government. It didn’t help that the United Fruit Company made a pig’s ear out of the op in Italy and provided fodder for the press.
However, that being said. The United States has a moral obligation to, as you put it, “wash our laundry in public.” At least as far as major issues like this go, it’s a good thing for the entity puporting itself to be a bastion of morality and goodness in the world to at least put on a show in the public square that we’re not hip with this sort of business. Note that I won’t say we shouldn’t a ‘gentleman’s agreement’ if you will with cooperative third parties for when things really matter. This would enable us to take the moral high ground and make tsk-tsk noises at the offenders but still get the job done. Methinks this sort of thing has gone on before.
As far as al-Qaeda (AQ) not washing their own laundry in public goes, I’d beg to disagree. They do, just not in the same manner. The disagreement between al-Qaeda in Iraq (AQI) and AQ itself is a good example. They’re (AQI) running around, lopping people’s heads off, blowing stuff up, and generally making a mess of things. The problem is they were being indiscriminate, and AQ knew this was not exactly endearing them to the people they were trying to recruit. The head of AQI, Abu Musab al-Zarqawi, gave the main organization the finger and effectively told them “’tis my ship, I shall hazard it as I see fit.”
This, needless to say, didn’t go over well, and actually worked to our favor as organizations like the Sons of Iraq (SOI) are now fighting with us instead of the other way around. (And SOI isn’t exactly a particularly pleasant group of people themselves.)
CNN is owned by Ted Turner. Fox is owned by Rupert Murdoch. I care for neither and choose to get my news from a mix of sources. Depending on a sole point of failure invites bad things to happen, and I’d ask Lex to weigh in on this, why else did the single engine A-7 Corsair and F-8 Crusader go the way of the dodo? Anything I hear come out of these organizations is suspect until it is confirmed and washed through the old noggin caca-filter for a moment or two.
The media is what the media is. I pine for the days of Walter Cronkite, Dan Rather, Morely Safer, and more objective reporting. There was a time there when news was actual reporting versus infotainment or infoporn, depending on your point of view.
Furthermore, I agree with you on the thorny place Yoo and the Bush administration have found themselves when trying to “codify something no one wants to own up to.”
But I do strenuously disagree that we should treat our own detainees as they are treating ours. Part of this asymmetric conflict is information warfare, and I could think of nothing easier than adding the transparency I mentioned earlier. Al-Qaeda insists in the Muslim world that the U.S. is being mean to the detainees? Okay, here’s a half-hour piece on al-Jazeera showing smiling prisoners happily toiling away in the sun and being asked questions in the air conditioning by men respectful of their cultural differences. Here’s another piece about the transparent American justice system providing each detainee their day in court, complete with competent lawyers on both sides, televised on C-SPAN and al-Jazeera where why they’re being held is discussed (with certain classified portions redacted) and broadcast or printed in every outlet we can find.
What this would accomplish is invaluable. Let al-Qaeda spin it as they will, we have the moral high ground. We, at that point, can take pot shots at them as we like. Every time they have a public execution or release a tape excoriating America, we’re on television expressing grave concern about their actual interests (of course implying they’re nothing more than brutish thugs) and pointing to the Muslim world and telling them what bozos al-Qaeda really is. Simply: let them step on their own junk.
Meanranch, back at the while, you may ignore the Large Innocuous Airplane from the United Fruit Company. It is there to import bananas to Afghanistan. Those black cases are the latest technology in fruit transportation, and nothing more. What I’m saying here is have the debates and the policy in public, and leave the dark waters to stir as they will.
Drew,
Yes, the United Fruit Company has made a mess of things on their own many times – it seems as if they are at war with AQ, AQI, the Taliban and the Bush Administration. How else would the “Ole Gray Lady” have the first clue about extraordinary rendition or that “secret” wire tapping program of phoncon’s made between terrorists phones overseas and someone in the US?
And Yes, AQ does occasionally wash their laundry in the public forum however, I dare say to compare their discussion to what we do is a huge leap. While we debate the care, feeding, storage and handling of the human excrement corralled off the battle field, they debate what kind of blade cuts heads off the best!! Not even close.
I agree with you on the USA’s obligation to the Free World, with respect to our moral position. Someone has to tackle these important issues otherwise, who would improve the human condition? Certainly not those inhabiting the “cradle” of civilization!! My issue is – the public discussion has to be done in Pease times, once the very first American fighting man/woman is placed in jeopardy we must close shop on discussion, fight the fight and at the end of hostilities conduct the “lessons learned” exercise and move on.
On the Media, I believe like you that MSM in America today, print, TV and Radio is fully compromised by partisan interests. I have no respect for lawyers, politicians (and I used to be one) and “news” persons. Fox or otherwise. I don’t pine for the likes of Dan Rather, Ernie Pyle maybe but no one from the Communist Broadcasting System.
Not sure what to think of the reference to the A-7 and F-8, the F-16 and the soon to hit the fan F-35 are single engine. Hmmmm, I thought we learned something about only having one motor in the heavier than air vehicle, oh yeah – that’s right. Always have a good escape system onboard!!!
Finally, I will also cede to you the issue regarding the PR aspects of our treatment of prisoners at Gitmo. While the pictures of their treatment and their access to a pseudo-quasi-judicial system may look good in western eyes, I really don’t believe the imagery will stick in the Arab/Persian world. The Inman’s , Ayatollahs and thug with the gun at their back, have too much of a lock on the street their part of the world. I really don’t think any amount of good faith on our part will make a bit of difference. And, I can’t think of one thing that will.
Thanks for the discourse!!!
Professor Yoo was in the Justice Dept. during W’s first term. He argued very forcefully for not giving Geneva Convention rights to the Al Qaeda terrorists and for using high pressure interrogations. His line of reasoning carried the day.
After he left the administration, he wrote a book, “The Powers of War and Peace: Foreign Affairs and the Constitution after 9/11″(University of Chicago Press, 2005).
I read the book. He laid out all the legal arguments both for and against the policies they adopted. Some in the administration (even John Ashcroft) argued forcefully against the policies, but Yoo’s ideas pretty much carried the day. I thought the book was even handed in showing the pro and con of the arguments, but I may not understand all the “nuances” of such legal questions.