John Yoo Advises Pres. Obama To Keep Torturing
The lawyer who butchered the law to give his political masters what they wanted urges the new president — who, unlike the last president, actually knows the law and holds the Constitution in high regard — to want the same thing:
During his first week as commander in chief, President Barack Obama ordered the closure of Guantanamo Bay and terminated the CIA’s special authority to interrogate terrorists.
While these actions will certainly please his base — gone are the cries of an “imperial presidency” — they will also seriously handicap our intelligence agencies from preventing future terrorist attacks. In issuing these executive orders, Mr. Obama is returning America to the failed law enforcement approach to fighting terrorism that prevailed before Sept. 11, 2001. He’s also drying up the most valuable sources of intelligence on al Qaeda, which, according to CIA Director Michael Hayden, has come largely out of the tough interrogation of high-level operatives during the early years of the war.
The question Mr. Obama should have asked right after the inaugural parade was: What will happen after we capture the next Khalid Sheikh Mohammed or Abu Zubaydah? Instead, he took action without a meeting of his full national security staff, and without a legal review of all the policy options available to meet the threats facing our country.
What such a review would have made clear is that the civilian law-enforcement system cannot prevent terrorist attacks. What is needed are the tools to gain vital intelligence, which is why, under President George W. Bush, the CIA could hold and interrogate high-value al Qaeda leaders. On the advice of his intelligence advisers, the president could have authorized coercive interrogation methods like those used by Israel and Great Britain in their antiterrorism campaigns. (He could even authorize waterboarding, which he did three times in the years after 9/11.)
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It’s also likely Mr. Obama will declare terrorists to be prisoners of war under the Geneva Conventions. The Bush administration classified terrorists — well supported by legal and historical precedent — like pirates, illegal combatants who do not fight on behalf of a nation and refuse to obey the laws of war.
The CIA must now conduct interrogations according to the rules of the Army Field Manual, which prohibits coercive techniques, threats and promises, and the good-cop bad-cop routines used in police stations throughout America. Mr. Obama has also ordered that al Qaeda leaders are to be protected from “outrages on personal dignity” and “humiliating and degrading treatment” in accord with the Geneva Conventions. His new order amounts to requiring — on penalty of prosecution — that CIA interrogators be polite. Coercive measures are unwisely banned with no exceptions, regardless of the danger confronting the country.
Eliminating the Bush system will mean that we will get no more information from captured al Qaeda terrorists. Every prisoner will have the right to a lawyer (which they will surely demand), the right to remain silent, and the right to a speedy trial.
The first thing any lawyer will do is tell his clients to shut up. The KSMs or Abu Zubaydahs of the future will respond to no verbal questioning or trickery — which is precisely why the Bush administration felt compelled to use more coercive measures in the first place. Our soldiers and agents in the field will have to run more risks as they must secure physical evidence at the point of capture and maintain a chain of custody that will stand up to the standards of a civilian court.
Relying on the civilian justice system not only robs us of the most effective intelligence tool to avert future attacks, it provides an opportunity for our enemies to obtain intelligence on us. If terrorists are now to be treated as ordinary criminals, their defense lawyers will insist that the government produce in open court all U.S. intelligence on their client along with the methods used by the CIA and NSA to get it. …
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It is naïve to say, as Mr. Obama did in his inaugural speech, that we can “reject as false the choice between our safety and our ideals.” That high-flying rhetoric means that we must give al Qaeda — a hardened enemy committed to our destruction — the same rights as garden-variety criminals at the cost of losing critical intelligence about real, future threats.
Government policy choices are all about trade-offs, which cannot simply be wished away by rhetoric. Mr. Obama seems to have respected these realities in his hesitation to end the NSA’s electronic surveillance programs, or to stop the use of predator drones to target individual al Qaeda leaders.
But in his decisions taken so precipitously just two days after the inauguration, Mr. Obama may have opened the door to further terrorist acts on U.S. soil by shattering some of the nation’s most critical defenses.
Obviously, this garbage is mostly about Yoo’s fear of prosecution for war crimes. We don’t know yet whether this fear will become reality, but that doesn’t change the fact that Yoo’s arguments are morally bankrupt and atrociously reasoned.
Larisa Alexandrovna counts three lies in just the first two paragraphs:
Lie 1: Torture produces good intelligence. No, it does not. Ask any credible intelligence officer (and I have asked plenty) and they will tell you no it does not work and does not produce actionable results.
Lie 2: The CIA has special authority. No, it does not. The last time this argument was used was during the Church Investigations. It did not work then and it won’t work now.
Lie 3: 9/11 Could have been stopped if the CIA was allowed to torture. No, the attack on this nation was not a failure of intelligence. The IC did its job - the 8/6/2001 PDB (among other, many warnings) is an example of this – it is the leadership who failed. Spin it any way you want – and it has been by the Bush administration – 9/11 was a failure of the President to take action, not a failure of intelligence.
For an authoritative deconstruction of the lie that torture produces good intelligence, see David Rose’s December 16, 2008, article in Vanity Fair. And for an account of the non-coercive interrogation methods that led to the capture of Abu Musab al-Zarqawi, the al Qaeda in Iraq leader, see the op-ed published in the November 30, 2008, edition of the Washington Post, by Matthew Alexander, who headed the interrogation team that accomplished that feat.
D-Day reminds us that Gitmo isn’t the only U.S.-run facility where torture is, or has been, going on.
Los Angeles Times columnist Rosa Brooks wrote an indirectly related piece in Thursday’s edition.
Remember Rep. John Conyers, grilling Yoo about whether the president has the authority to bury a detainee alive? It’s worth another look. (Hat tip to Ali Frick at Think Progress.)
