The Torture Memos: Obama, Holder Strike the Right Balance … Again

This article appears originally in The Washington Times of Monday, April 20.

On the issue of the release of interrogation memos and the decision not to prosecute interrogators, once again President Obama has shown the courage to do the right thing while angering some elements on both the left and the right.

The latter decision on non-prosecution was based on a fundamental principle that all Americans understand — fair play.

“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,” said Attorney General Eric H. Holder Jr.

“Sanctioned in advance” is the key phrase in Mr. Holder’s explanation. The principle of “good faith reliance” by the interrogators has long-standing precedent regarding certain crimes and civil actions.

Mr. Obama has also indicated resistance to criminal prosecutions of any former Bush administration officials for the policy judgments they made. If President Lincoln was opposed to prosecuting Confederate leaders who were by definition guilty of treason, then Mr. Obama’s judgment, despite anger on the left, is defensible.

Jonathan Turley — a professor at George Washington University, a thoughtful liberal and a good friend — appeared to reject the “good faith reliance” defense Friday night on MSNBC as he criticized President Obama’s decision to immunize the interrogators from prosecution and cited the “Nuremberg rule,” applicable to Nazis responsible for the Holocaust, that “following orders” is not a defense to war crimes and crimes against humanity.

Had MSNBC chosen to offer a counterperspective, which they rarely do on their evening talk shows, the obvious and vast difference in the two cases could have been pointed out. CIA interrogators were trying to obtain information from detainees in order to prevent a future Sept. 11, relying on the advice of attorneys working for the world’s greatest constitutional democracy. They were not trying to kill the detainees, much less planning a mass murder of millions, as the Nazis were.

But there are still ways to hold higher-ups accountable. The first is the establishment of a “truth commission.”

While I still have concerns that such a commission might too easily become a media circus and present opportunities for raw partisanship, if such a commission could be conducted along the bipartisan and professional models of the Warren or Sept. 11 commissions, it could have the benefit of allowing those involved to explain themselves publicly and let history judge.

The second method of accountability is the ongoing investigation by the Justice Department’s Office of Professional Responsibility on potential ethical and professional violations by senior attorneys in the Justice Department.

One of those undoubtedly under OPR investigation is John Yoo, who in 2002 served as deputy assistant attorney general in the Justice Department’s Office of Legal Counsel (OLC) and wrote or co-authored some of the memos claiming that waterboarding and other techniques that inflict intense pain, terror and human degradation did not constitute what has up to now been understood to constitute illegal torture.

Others likely included in this investigation might be subsequent authors or recipients of similar memos, including Jay S. Bybee, now a sitting judge on the 9th U.S. Circuit Court of Appeals, Steven G. Bradbury, Mr. Bybee’s successor as OLC head, and John A. Rizzo, then and now acting general counsel of the CIA.

Mr. Yoo advanced one intriguing potential defense to this scrutiny in a recent public comment.

“We were functioning as lawyers,” he is quoted on CNN.com as saying. “We don’t make policy. Policy choices in these matters were up to the National Security Council or the White House or the Department of Defense.”

But Mr. Yoo may be missing the ethical obligation that all attorneys have, regardless of client (or “policy”) objectives, and that is to base their legal opinions on sound and plausible facts and legal precedents before reaching conclusions. It could be professionally unethical — and grounds for disbarment — for a lawyer to start with a conclusion that he thinks his client wants, and then come up with nonplausible, legally specious reasons for justifying that conclusion.

There is certainly a good possibility that that is exactly what happened here. But, as has been argued by David Rivkin, a brilliant conservative attorney and White House associate counsel in the first Bush administration, these memos appear to be good-faith “careful and nuanced legal analysis” seeking the outer parameters of the definition of torture.

Drawing the line between good faith and result-driven unethical legal analysis is not easy, but the DOJ’s Office of Professional Responsibility and state bar associations should proceed with full and fair investigations of the government attorneys involved.

But the inquiries, however, cannot stop with these lawyers. To whom was Mr. Yoo referring when he said others made the “policy choices” concerning torture and ignoring the Geneva Conventions? They too must be held to a transparent process that could lead to some form of accountability, even if it is nothing more than public and peer opprobrium.

So far, we have suspicions but no hard evidence. And the suspicions, published fairly widely, always seem to go back to Vice President Dick Cheney and his reportedly powerful and domineering chief of staff, attorney David Addington.

He and Mr. Cheney should certainly be high on the list of those questioned by any truth commission or other Justice and congressional investigations to explain their positions fully.

Asked by Rep. Jerrold Nadler, New York Democrat, during a congressional hearing about whether he had “contributed to the analysis or assisted in the drafting of the August 1, 2002, interrogation memo,” Mr. Addington at first answered a flat “No.”

But when Mr. Nadler followed up with, “You had nothing to do with that?” Mr. Addington replied: “No, I didn’t say I had nothing to do with it” — a classic non-denial denial that he never was required to clarify.

Releasing these memos must have been an especially difficult decision for the president, since he faced opposition from his own CIA chief, as well as respectable members of the national security and intelligence community, such as former Attorney General Michael Mukasey, former CIA Director Michael Hayden and former Homeland Security Secretary Michael Chertoff.

Mr. Obama tried to but didn’t entirely quiet by his public assurances concerns that this disclosure decision reflected “extraordinary circumstances” and would not set a precedent for other releases.

Nevertheless, Mr. Obama took the heat from all — so what else is new? Whether it is last week’s decision on immunizing interrogators or the weekend’s outreach to Cuba and Venezuela, he shows an amazing resilience in withstanding flak from the left and the right. He remains hugely popular among most Americans because his focus remains on getting the government back into the “solutions business,” where most of the American people want it to be.