This column originally appeared in the Washington Times on June 17, 2009.
Raging members of Congress, agitated TV commentators and hyperventilating bloggers have called for prosecuting George W. Bush administration officials they claim broke the law and committed war crimes by participating in what they say was illegal “torture” of captured high-level accused terrorists.
A federal District Court judge in California ruled last week that convicted terrorist Jose Padilla can sue former Bush administration lawyer John Yoo for legal memos he wrote advising the administration about the legality of the CIA’s enhanced interrogation techniques.
President Obama himself has denounced Bush interrogation policies as “torture” and ordered all such interrogations ended in his administration. However, he has declined to prosecute or even investigate any of the CIA operatives who carried out such interrogations, on the grounds that they were just acting under orders and with the legal approval of more senior Bush officials.
So the focus has turned to those more senior officials and, in particular, on the lawyers from the Justice Department’s Office of Legal Counsel who wrote memos concluding that the enhanced interrogation techniques, including waterboarding, used on the captured terrorists were legal under applicable U.S. law. One commentator on a CNN broadcast, Lanny Davis, called for prosecuting former Vice President Dick Cheney, on the grounds Mr. Cheney has defended the Bush interrogation policies too vigorously.
At the American Civil Rights Union (ACRU), a conservative alternative to the American Civil Liberties Union (ACLU), we have reviewed the four challenged legal memos. They 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 used under President Bush.
We found that those memos involve a thorough, well-reasoned, praiseworthy legal effort and analysis. We agree that their conclusions as to the legality of waterboarding and the other CIA enhanced interrogation techniques are correct under applicable law, and we are prepared to debate that point in any forum. A complete report containing our analysis is on our Web site at www.theacru.org.
In the report, we discuss the enhanced interrogation techniques used and their results. The most controversial of these techniques, waterboarding, was used on just three of the highest-level detainees, all accused senior terrorist leaders involved in major attacks on Americans and U.S. targets and had information regarding planned future attacks.
Contrary to the claims of some uninformed media commentary, this waterboarding technique has been very effective in the most difficult interrogations. It resulted in information that stopped at least two planned terrorist attacks on American soil that would have killed thousands of Americans.
It also produced extensive operational information about al Qaeda that enabled American officials in cooperation with our allies to disrupt and shut down international al Qaeda networks and consequently stop untold terrorist attacks.
Waterboarding was used on these three senior detainees accused of involvement in attacks on America only after lesser techniques were tried and failed. Moreover, it was used only after evaluations by medical and psychiatric experts and only with the presence and supervision of such experts, to ensure that the practice did not remotely involve infliction of “severe physical or mental pain or suffering,” which is what is prohibited as torture under U.S. law.
Given the moral heinousness attributed to the three targeted with this waterboarding technique, the laudable results of the technique in saving thousands of innocent American lives, and the protections and safeguards involved in the application, we find the moral calculus that labels the Bush administration’s use of this technique as impermissible torture to be inexplicably perverted.
It is those who are asserting this libel against America who are undermining America’s standing in the world and promoting the recruitment of additional terrorists (though ample numbers of terrorists seem to have been recruited before the CIA interrogated any of them).
Indeed, in these circumstances, the suggested, unprecedented prosecution of the lawyers who authored the thorough, carefully reasoned legal memos finding this waterboarding practice to be legal under U.S. law is extremist and offensive – offensive to American political traditions and to the social fabric that holds us together as Americans.
After the Sept. 11, 2001, attacks, the Bush administration did not seek to impose blame or retribution on the Clinton administration, even though President Clinton’s Deputy Attorney General Jamie Gorelick and Attorney General Janet Reno were responsible for maintaining a strict wall of separation between American intelligence agencies and law enforcement, which ultimately prevented American officials from stopping the attacks.
To the contrary, Ms. Gorelick was appointed as a prized member of the Sept. 11 Commission that investigated the attacks and recommended reforms to prevent them from happening again, including reversing her own policy of strict separation between American intelligence and law enforcement.
There are risks in pursuing a course that seeks in hindsight to criminalize policy initiatives of a prior administration. Zealots rarely understand that the witch hunt they delight in pursuing today can (and frequently does) come back to haunt them in the future.
Turnabout is fair play. Should there be another deadly terrorist attack on American soil that could kill hundreds of thousands of Americans gruesomely with nuclear, biological or chemical weapons, will not the precedent of the present outcry for prosecutions provide the foundation for similar scrutiny of those current officials whose policy or administrative mistakes might have resulted in a failure to prevent the attack? Might the public fury against these current officials be all the greater after seven years under the Bush administration without a single terrorist incident in the United States?
The more far-fetched the present clamor (and it is pretty far-fetched) the less content will be needed to justify the pursuit of similar vendettas in the future.
Peter Ferrara is general counsel of the American Civil Rights Union. He served in the White House Office of Policy Development under President Reagan and as associate deputy attorney general of the United States under President George H.W. Bush. See the ACRU analysis of the CIA interrogation memos at https://theacru.org/ciainterrogationmemos.pdf.