The newly-unearthed Zelikow memorandum is interesting as historic record, like the dissenting opinion in an 8-1 Supreme Court decision. There has been some speculation that it provides a “smoking gun” to reopen the possibility of criminal prosecutions for torture, but that is not going to happen. In fact, the Zelikow memo is becoming another cudgel with which to beat President Obama:
“If your baseline is the Bush years, it’s night and day,” said Tom Blanton, director of the National Security Archive. “If your baselines are a set of first principles, as the ACLU calls for, or as us openness advocates call for, then your situation is: Is the glass half full or the glass half empty?”
Well put, Mr. Blanton! If you start from a zone of acceptability that’s too narrow, you will always be disappointed. There has been too much dissonance on this point: the Bush war doctrine was fantastical, but the war is very real. It predated the Bush administration, and didn’t end with the Obama administration. A realist compares their varying doctrines to one another, while the idealist compares them both against the ideal. HuffPo’s Dan Froomkin continues:
Obama has refused to pursue legal action against those who may have engaged in law-breaking under his predecessor’s watch — saying he prefers to “look forward instead of looking backward.” To some, this indicates there is little assurance that the U.S. won’t torture again in the future.
Even with trials, you get no assurance against future torture. Let me say that again: trials are no guarantee against future torture. If things worked that way, there would be zero crime in America. It is up to the American people, lawmakers, the president, the vast security bureaucracy, and the military to not allow torture. Good leadership and oversight are essential. This is something America had gotten right many times before, got horribly wrong in the last decade, and has started to get right again.
“The administration has clearly disavowed torture, and that is an important and welcome thing,” said Jameel Jaffer, a national security expert at the American Civil Liberties Union.
“But they’re steadily building a framework for impunity.”
How much political oxygen would have been sucked out of Washington by prosecutions? Of the ACA, Frank-Dodd, DADT repeal, and Lily Ledbetter, etc., which were worth the criminal indictment? Remember, Nancy Pelosi took impeachment off the table in 2006 — for the same reason. Prosecution was still an unpopular idea in 2009. Is prosecution more politically possible because of this memo? I doubt it. There’s your impunity.
But the main problem with pursuing criminal indictments isn’t political, it’s practical. Where would they lead? Obama took the oath of office with two hundred thousand troops already deployed. How do you get the best outcome from that situation without people who know what is going on, but who knew about the torture as part of their job? How many American lives and operational disasters are indictments worth?
If you haven’t guessed, my own answer is that indicting Darth Cheney is not worth one iota of the progress that we’ve made — or worth one more life. Putting him in the dock will not undo the damage and may very well result in even more damage.
When it comes to issues like warrantless surveillance, “continuity is the rule and not the exception and in fact in some very important areas this administration has gone even farther than the Bush Administration did,” Jaffer said.
The war has warped our laws, to be sure. Unfortunately, the president doesn’t write the laws. Legislation on the books in January 2009 didn’t blink out of existence when Obama took the oath of office. Indeed, our chief complaint during the Bush years was about ‘restoring the rule of law’ — because America is a nation of laws. Old laws continue under a new administration until they are changed. That’s how it works.
And as I keep saying, to actually change the laws you have to change lawmakers, not presidents. But we’re just getting to Froomkin’s money quote:
Most alarming, says Jafeer, is the issue of the targeted killing of American citizens who are terrorism suspects.
Jaffer said the idea that the government can mark an American for death without any judicial oversight is something the framers of the Constitution “would have found totally foreign to the project they were engaged in.”
First of all, “terrorism suspects” is hogwash. Anwar al-Awlaki was an actual, real, not-imaginary terrorist in an actual, real, not-imaginary terrorist group making actual, real, not-imaginary war on the United States. No one made him take up arms against the nation in time of declared war. Yes, one of the laws that hasn’t evaporated with the new administration is the 2001 Authorization for Use of Military Force (AUMF), from which the entire war on al-Qaeda depends.
Second, the framers had a war underway when they started framing, and the American Revolution saw plenty of indefinite detentions and “due-process free executions.” Indeed, half of my Basic Training was about “targeted killing” with an M-16. These phrases are weak attempts at the sort of linguistic torture Republicans regularly perform: “death tax,” “Medicare reform,” etc. What they really mean is war. They are complaining about the president’s constitutional wartime powers.
Americans have good reason to want to see this war end. Conflict warps a society as surely as military service shapes a person. Wartime powers must only be invoked when it is the best choice, or the only choice — because once engaged, war doesn’t offer many good choices. Commanders often have only choices that are less bad than other choices.
Consider the attempted arrest of Mohamed Farah Aidid in a lawless tribal zone — the subject of the book and film Black Hawk Down. Nineteen Americans and hundreds of Somalis died in a 17-hour firefight. How was that better than a drone strike? I have used this example before, but now consider what happened after that incident.
Almost lost to our collective memory, the eight years between Mogadishu and 9/11 were a time when the United States “cannot be the global police force” or “the world’s 9-1-1.” President Clinton, who said those words, suffered from the currency of the meme. When he struck al-Qaeda bases with cruise missiles (drones were not yet ready for such missions), Republicans derided it as “wagging the dog.”
American service personnel were already taking fire from al-Qaeda. Yet the Pentagon also eschewed antiterrorism operations, insisting terrorism was a law enforcement matter and therefore not in its portfolio because of posse comitatus. Instead, we practiced “force protection,” meaning that we didn’t find or kill the people who were trying to kill us. We simply avoided them. Remember how that worked out?
After the 9/11 attacks, Bush and Cheney insisted that terrorism could not be treated as a law enforcement matter anymore and was now a domain exclusive to the military. This was preposterous — most successes in the war on al-Qaeda have actually been the result of good law enforcement — but the notion defined their lunatic doctrine.
As a result, American troops spent eight years conducting nighttime house raids all over Iraq, taking tens of thousands of prisoners, investigating leads, and acting exactly like the “global cop” of Clinton-era demagoguery. The Battles of Fallujah began in almost the same way as the Battle of Mogadishu — and they weren’t better than a drone strike, either.
The Bush team said we faced a whole new kind of war that needed new rules. It wasn’t true: al-Qaeda is not the first non-state actor to invite the wrath of America’s armed forces. Furthermore, there was never anything so special about al-Qaeda that the normal rules should not apply. American military history — especially the success of interrogation programs that did not involve torture — argued otherwise.
Unfortunately, facts have no innate power to make policy. Bush State Department counselor Philip Zelikow nailed it in his memorandum, yet it made no difference:
We are unaware of any precedent in World War II, the Korean War, the Vietnam War, or any subsequent conflict for authorized, systematic interrogation practices similar to those in question here.
Wartime powers were misused, the conflict was unjustly enlarged, and the results have been apocalyptic. This president has not continued that insane policy; quite the opposite. Obama’s first crisis — Somali pirates taking the Maersk Alabama‘s captain hostage — was resolved with sniper’s bullets (“targeted killing”) rather than a pornographic display of firepower (“shock and awe”). It set the standard he has followed ever since.
But the pacifist-libertarian dialectic does not allow any discrimination between wars or war doctrines: they are all the same, even when they are not, just as Bush compounded all potential enemies into one. This point of view holds that terrorism must again become a matter only for law enforcement, which is equally as preposterous and damaging as denying law enforcement any role.
The first principles of warfare are that when you receive incoming fire you aim and return fire. We forgot that to our cost, and forget it again at our peril. The “first principles” being espoused here are that war is awful — which we already knew — and that war is a lie, which is ridiculous. War ends lies; politicians inaugurate them. That much can be said of Zeliko’s memo with certainty: the war did not lie. Bush did.