--Richard E. Vatz
First off, let's be clear that the issue is Bush Administration legal opinions regarding interrogations and what to do about claims of legal errors, not what to do about soldiers' committing war crimes.
As THE WASHINGTON POST tells the story, “President Obama met with top advisers on the evening of April 15…[f]ive CIA directors -- including Leon E. Panetta and his four immediate predecessors – and Obama's top counterterrorism adviser had expressed firm opposition to the release of interrogation details in four ‘top secret’ memos in which Bush administration lawyers sanctioned harsh tactics.”
On the other side of the issue, supporting the release, were Attorney General Eric H. Holder Jr., Director of National Intelligence Dennis C. Blair and White House counsel Gregory B. Craig, whose colleagues during the campaign recall him expressing enthusiasm for fixing U.S. detainee policy.
The POST reports that Defense Secretary Robert M. Gates supported the disclosures in part because President Obama had promised “that CIA officers would not be prosecuted for any abuse.”
Once released, the significant fight over the consequences to those who approved, formulated and enacted interrogation policy remained. Despite President Obama’s apparent ambivalence – opposition to holding CIA interrogators responsible followed by lack of clarity as to whether he supports holding legally harmless those who formulated the policy – it appears now that he has rejected the creation of a “truth commission,” a notion supported by House Speaker Nancy Pelosi and Senate Judiciary Chairman Patrick Leahy.
In addition to Speaker Pelosi and Sen. Leahy, among the usual suspects of irresponsible, retributive policy we find, of course, THE NEW YORK TIMES’ Spitefulness-in-Chief Paul Krugman.
At least the post-release fight may at last have been resolved for the president.
There are serious arguments on both sides, although there are otherwise serious people whose petty ideological vindictiveness is destructive, filled with unintended consequences and defended in an ostentatious exhibition of misleading argument.
Let’s look at Mr. Krugman’s position and arguments of the retributive left. He quotes President Obama’s first publicly known and now well-known disposition on the issue: “Nothing will be gained by spending our time and energy laying blame for the past.” Mr. Krugman then claims that means: “No prosecutions, please; no investigations; we’re just too busy.” Sorry, but that is an intentional misinterpretation and is not what the president’s statement means or was intended to mean.
The president’s position-as-stated is inadequate, but not because what he’s saying is tantamount to saying “we’re just too busy.” It isn’t.
He is saying that recriminations are not fruitful. What he should have said is that enacting retaliatory policy to punish political adversaries is a nasty business, and one which can be taken up by any succeeding administration and/or new Congress. Unless laws are broken in secret, such a policy makes us a banana republic wherein we begin our polity anew by transforming policy differences into criminal acts by the loyal opposition. This entails using the criminal justice system to adjudicate policy differences. Simply put, this is not a proper action for a democratic state.
In assessing the relationship between liberty and order, Supreme Court Justice Robert H. Jackson stated that if the court were too ideological and impractical regarding free speech that it would “convert the constitutional Bill of Rights into a suicide pact.”
As with some Supreme Court decisions, ignored throughout the interrogation controversy is the claim of important positive consequences that resulted. When the country is attacked, the argument regarding appropriate interrogation in terms of consequences has more important sway; when sufficient time has elapsed to give the American people true or false security, arguments on principle become dominant, and consequences are ignored.
Former Vice President Cheney argued, as the POST summarizes, that ”the [Justice Department] memos will make clear that aggressive tactics yielded valuable intelligence information that prevented further terrorist attacks.“
This information is needed before reasonable conclusions can be made regarding the appropriateness of interrogation techniques. Regarding lawyers who gave legal opinions, it would be unconscionable and counter-productive to hold in legal jeopardy those who gave such opinions as professional judgments.
If we ever want to discourage lawyers from honest appraisal of legal questions and ensure that they follow the line of long-term least resistance, just criminalize those judgments after the fact.
President Obama appears at times to be conflicted when he should be resolute. One hopes that he will recognize the danger of turning our country against itself for political retributive purposes.
Professor Vatz teaches political communication at Towson University
Friday, April 24, 2009
--Richard E. Vatz