Playing politics with America’s defenses and settling scores with its defenders.
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Why should they aggressively pursue terrorists if they might get hauled in for prosecution? Why would smart, talented young people who want to defend their country go to the CIA if first they need to lawyer up? Why would our current officers on the battlefield continue their dogged pursuit of Al Qaeda if they are going to get nailed for trying to extract information…to prevent another attack?
Or, as the Wall Street Journal editorialized last week, “The message that Mr. Holder’s criminal probe will send to thousands of men and women is that they had better not do anything remotely controversial [for] American safety, even with a lawyer’s permission.”
Criminal Legal Memos
Obama’s rabid left-wing base bears a special hatred for the Justice Department lawyers who wrote the legal memos during the Bush Administration concluding that the CIA’s enhanced interrogation techniques were not illegal torture under U.S. law. They want these lawyers criminally prosecuted as well, and disbarred. Holder has Justice’s Office of Professional Responsibility (OPR) already conducting an investigation of this.
I led a review of these legal memos by the American Civil Rights Union (ACRU), which I serve as General Counsel, and published a report on them which is available at the ACRU website. The memos add up to 124 single-spaced pages of careful legal reasoning reviewing all applicable statutes, treaties, cases, and word definitions, and applying that law to a thorough discussion of the CIA’s enhanced interrogation techniques. There is no precedent for criminally prosecuting a lawyer for any legal memo, let alone a careful and thorough job of legal reasoning like this. Mere disagreement with the legal conclusions does not remotely provide a foundation for criminal liability, but I don’t know of even a scholarly rebuttal to this work. Indeed, in my study of the memos, I found their conclusions to be legally correct.
Criminally prosecuting these lawyers for this work would be an abuse of power morally equivalent to taking political prisoners. Disbarring them for such work would be similar. Given the enormous benefit to the American people from the interrogations discussed below, the lawyers and the interrogators should be sanctioned if they had failed to pursue the interrogations, and so failed in their duty to protect the American people.
Saving Thousands of Innocent Americans
Waterboarding involves laying the detainee on his back with a cloth over his face and pouring water on the cloth. The body naturally reacts to this procedure with feelings of drowning and panic, even if the detainee can still physically breathe and knows it. But the waterboarding does not produce actual physical pain. Moreover, under the CIA’s interrogation rules, the water pouring must be stopped and the cloth removed after a maximum of 40 seconds. Also, such applications of waterboarding may be done no more than 6 times in a maximum of 2 hours in a day. Consequently, the CIA’s waterboarding did not involve “severe physical pain” or “prolonged mental suffering,” and so was not illegal torture under U.S. law.
The CIA required a doctor and a psychologist to be present during waterboarding to ensure that the interrogators complied with the requirements and there was no violation of the legal standard. Specific authorization had to be obtained from CIA headquarters before waterboarding could be applied. Moreover, such waterboarding could only be used if (1) the CIA had credible intelligence that a terrorist attack is imminent, (2) there were substantial and credible indicators the subject had actionable intelligence that could prevent, disrupt or delay this attack, and (3) other interrogation methods had failed or were unlikely to yield actionable intelligence in time to prevent the attack.
As a result, waterboarding was used on just three of the most high level, senior terrorist leaders. One was Khalid Sheik Mohammad (KSM), who was the operational mastermind behind the September 11, 2001 attacks. He was the general who designed the operation, picked the targets, assigned the terrorists to their planes, and gave them their specific marching orders. After 9/11, KSM assumed the role of operations chief for al Qaeda around the world.
Another was Abu Zubaydah, who, the CIA reported, “served as Usama Bin Laden’s senior lieutenant” and was “involved in every major terrorist operation carried out by al Qaeda.” He also served as “Deputy Camp Commander for al Qaeda’s training camp in Afghanistan” and “acted as al Qaeda’s coordinator of external contacts and foreign communications.”
Despite uninformed media commentary, waterboarding has a history of being highly effective in the most difficult interrogations, and it was so in these cases. Information obtained only by waterboarding Zubaydah led to the capture of KSM. Before waterboarding, KSM laughed off CIA interrogators, saying in regard to questions about future terrorist attacks, “soon you will find out.” After waterboarding, he became a fountain of information about Al Qaeda capabilities, methodologies and mindsets.
This included information that stopped two terrorist plots underway which would have killed thousands of innocent Americans. One was Al Qaeda’s planned “Second Wave,” a second 9/11 on the west coast, involving East Asian Al Qaeda operatives crashing a hijacked airliner into the Library Tower in Los Angeles, the tallest building on the west coast. The second was a plot to bring down the Brooklyn Bridge.
Cheney summarized on Fox News Sunday:
My overwhelming view is that the enhanced interrogation techniques were absolutely essential in saving thousands of American lives and preventing further attacks against the United States and giving us the intelligence we needed to go find Al Qaeda, to find their camps, to find out how they were being financed. Those interrogations were involved in the arrest of nearly all the Al Qaeda members that we were able to bring to justice. I think they were directly responsible for the fact that for eight years, we had no further mass casualty attacks against the United States.”
A man of faith in a godless age is hitting Americans where it hurts.
Mr. and Mrs. American Spectator Reader, let P.J. O’Rourke talk sense to your kids.
In Britain, defending your property can get you life.
The debacle of this president’s administration is both a cause and a symptom of the decline of American values. Unless Congress impeaches him, that decline will go on unchecked. An eminent jurist surveys the damage and assesses the chances for the recovery of our culture.
It won’t take long for conservatives to scratch this presidential wannabe off their 2008 scorecard.
The American Christmas, like the songs that celebrate it, makes room for everybody under the rainbow. Is that why so many people seem to be hostile to it?
Was the President done in by the economy, or by the politics of the economy?