This column originally appeared on The American Spectator on September 2, 2009.
President Obama has decided that the CIA is a greater threat to America than Al Qaeda and Islamic terrorism. If that decision turns out to be wrong, with thousands of Americans dying in another terrorist attack, President Obama and the Democrat Party will end up paying a grievous political price, which would be well deserved.
As former Vice-President Dick Cheney said on Fox News Sunday this past week,
We had a track record now of eight years of defending the nation against any further mass casualty attacks from Al Qaeda. The approach of the Obama Administration should be to come to those people who were involved in that policy and say, how did you do it? What were the keys to keeping this country safe over that period of time? Instead they're out there now threatening to disbar the lawyers who gave us the legal opinions...They're going to go out and investigate the CIA personnel who carried out those investigations. I just think it's an outrageous political act that will do great damage long term to our capacity to be able to have people take on difficult jobs, make difficult decisions, without having to worry about what the next administration is going to say.
President Obama is blundering into these missteps to satisfy his far left political base, particularly the flower children that populate the Huffington Post and the Daily Kos. These are the people who are now setting our policies on terrorism, rather than George Bush and Dick Cheney. And if their uninformed, simplistic misjudgments lead to further mass murder of innocent Americans, they should be held morally responsible.
Taking Out the CIA
Just a few days before he took office, President-elect Obama visited the CIA and said he would not prosecute CIA agents for interrogations during the Bush Administration, which had been approved by the National Security Council and the President, and cleared as legal by the Justice Department. Obama said:
We need to look forward, as opposed to looking backwards. At the CIA you've got extraordinarily talented people who are working very hard to keep Americans safe. I don't want them to suddenly feel like they've got to spend all their time looking over their shoulders and lawyering up.
In April, President Obama released classified documents that detailed the CIA's enhanced interrogation techniques, and said:
This is a time for reflection, not retribution. Nothing will be gained by spending our time and energy laying blame for the past. For those who carried out...these operations within the four corners of legal opinions or guidance...provided from the White House, I do not think it's appropriate for them to be prosecuted.
Attorney General Eric Holder chimed in, agreeing, "It would be unfair to prosecute dedicated men and women working to protect America for conduct that was sanctioned in advance by the Justice Department."
But after hearing increasing outrage from the ever angry left, Obama green-lighted Holder to authorize an independent prosecutor to investigate the CIA interrogations for possible prosecution of interrogators who exceeded Justice Department guidelines. As for Obama's prior statements above, you should have learned from the health care campaign that you can't believe a word he says.
American law includes a specific definition of illegal torture, which is "severe physical pain," or "prolonged mental suffering." Anyone in the U.S. government who violates that standard, not "Justice Department guidelines," should be criminally prosecuted for violating the law. Indeed, the Bush Administration itself prosecuted and convicted one contract interrogator who violated this standard and is now serving time.
But the CIA's enhanced interrogation techniques, including waterboarding as discussed further below, did not remotely violate this standard. The party controlled press is aghast at reports of gun shots that could be heard next door, a menacing power drill that was not used, blowing smoke in a detainee's face, and empty threats. None of this involved "severe physical pain" or "prolonged mental suffering," and so did not amount to illegal torture. Remember these are mass murderers targeting innocent American civilians we were dealing with, and the interrogations were conducted solely for the purpose of preventing more such murder in the future.
Career prosecutors at Justice already looked into all the charges now referred to the special prosecutor and could find no CIA violations of law. The interrogators stepped up to the defense of the American people at a time of grave threat, and as discussed below saved thousands of American lives. To subject them now to an additional political investigation and possible prosecution to politically satisfy left-wing extremists dishonors their valor, and our entire nation, with possibly grievous practical consequences.
CIA Director Leon Panetta, a lifelong partisan Democrat, warns publicly that America will "pay a price" if Washington plays politics with intelligence. More specifically, Monica Crowley writes in the Washington Times that Obama's special prosecutor investigation of CIA interrogations "will have a deathly chilling effect on all CIA officers in the field." She explains,
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."
The Wall Street Journal elaborated last Thursday, reporting that intelligence obtained through these interrogations
included the identification of Jose Padilla and Binyam Muhammed, who planned to detonate a dirty bomb, and the arrest of previously unknown members of an al Qaeda cell in Karachi, Pakistan, designated to pilot an aircraft attack in the U.S. The information also [revealed] plots to attack the U.S. consulate in Karachi, hijack aircraft to fly into Heathrow, loosen track spikes to derail a U.S. train, blow up U.S. gas stations, fly an airplane into a California building, and cut the lines of suspension bridges in New York.
Threatening Their Lives
Not happy with possible criminal prosecution or disbarment of the CIA interrogators, Obama's left wing allies are now threatening their very lives. The ACLU sponsors a self-styled "John Adams project" that seeks to identify the interrogators of their terrorist clients held in custody. ACLU operatives have surreptitiously taken photographs of CIA officers and interrogators outside their homes and shown them to detained terrorists. As Brett Stephens reported in the Wall Street Journal last week:
[T]hose officers will have considerably more to fear if the detainees they once interrogated learn their names and are able to get the word out to their associates (as the "Blind Shiek" Omar Abdel Rahman was able to get messages out of federal prison through his lawyer Lynn Stewart), assuming they don't get out themselves. In that case, more CIA agents will be gunned down -- and the John Adamses of our day will have given demonstrable material support to terrorists.
Indeed, these photos "outside their homes" threaten whole neighborhoods where these interrogators live, including their families. Terrorists have murdered CIA officials outside their Langley, Virginia headquarters.
Yet, even Holder's reinvestigation of the CIA interrogators threatens disclosure of the interrogators, as Stephens further reports:
What's nearly certain is that the names of the agents will soon become part of the public record, either directly or through leaks that the liberal press will have no scruple about printing. Last year, the New York Times published the name of a CIA officer who interrogated 9/11 mastermind Khalid Sheik Mohammedâ¦despite [CIA] protests that to identify him would 'put him at risk of retaliation from terrorists or harassment from critics...
White House Wise Guys
Not to worry, though. Obama has it all under control. He has taken all future terrorist interrogations away from the CIA altogether, giving jurisdiction to the FBI, under supervision from the White House staff at the NSC.
As a result of all of this, on behalf of the Democrat Party, President Obama has now taken personal political ownership of any future terrorist attack that his Huffington Post/Daily Kos policies allow. As the Wall Street Journal concluded last week:
By threatening to prosecute CIA officials, the Obama Administration is taking ownership of future troubles in a way that will only do itself harm. Like the Church and Pike probes of the 1970s, Americans will once again see that the Democratic Party cares as much or more about settling scores against fellow Americans as it does about fighting the war on terror.