Video and Analysis: The Obama Speech on National Security, 48 Hours Later

Much of the immediate comment in the US media was insipid or misleading or silly. On occasions, it was all three. The initial battle amongst observers to out-do each other for a Barack Obama v. Dick Cheney image --- "Mr Spock v. Jack Bauer", "Grandpa Vigilant Vs. Kid Nuance" --- was followed by attempts to set up Obama between "Right" and "Left" and, even worse, gleeful pronouncements by Bush Administration supporters that Obama was now just like Dubya.

Amongst the reactions, however, one set of commentaries stood out. Reinforcing our concern that Obama, while well-meaning, had put forth proposals which would not close Guantanamo but compound the legal difficulties of the detention regime, Peter Finn offered a penetrating analysis in The Washington Post "on indefinite detention without trial". This was accompanied by the excellent video critique of MSNBC's Rachel Maddow and, reprinted below that video, a thorough critique by Glenn Greenwald:

[youtube]http://www.youtube.com/watch?v=1uuWVHT1WUY[/youtube]

Facts and myths about Obama's preventive detention proposal

In the wake of Obama's speech yesterday, there are vast numbers of new converts who now support indefinite "preventive detention."  It thus seems constructive to have as dispassionate and fact-based discussion as possible of the implications of "preventive detention" and Obama's related detention proposals (military commissions).  I'll have a podcast discussion on this topic a little bit later today with the ACLU's Ben Wizner, which I'll add below, but until then, here are some facts and other points worth noting:

(1) What does "preventive detention" allow?

It's important to be clear about what "preventive detention" authorizes.  It does not merely allow the U.S. Government to imprison people alleged to have committed Terrorist acts yet who are unable to be convicted in a civilian court proceeding.  That class is merely a subset, perhaps a small subset, of who the Government can detain.  Far more significant, "preventive detention" allows indefinite imprisonment not based on proven crimes or past violations of law, but of those deemed generally "dangerous" by the Government for various reasons (such as, as Obama put it yesterday, they "expressed their allegiance to Osama bin Laden" or "otherwise made it clear that they want to kill Americans").  That's what "preventive" means:  imprisoning people because the Government claims they are likely to engage in violent acts in the future because they are alleged to be "combatants."

Once known, the details of the proposal could -- and likely will -- make this even more extreme by extending the "preventive detention" power beyond a handful of Guantanamo detainees to anyone, anywhere in the world, alleged to be a "combatant."  After all, once you accept the rationale on which this proposal is based -- namely, that the U.S. Government must, in order to keep us safe, preventively detain "dangerous" people even when they can't prove they violated any laws -- there's no coherent reason whatsoever to limit that power to people already at Guantanamo, as opposed to indefinitely imprisoning with no trials all allegedly "dangerous" combatants, whether located in Pakistan, Thailand, Indonesia, Western countries and even the U.S.


(2) Are defenders of Obama's proposals being consistent?

During the Bush years, it was common for Democrats to try to convince conservatives to oppose Bush's executive power expansions by asking them:  "Do you really want these powers to be exercised by Hillary Clinton or some liberal President?"

Following that logic, for any Democrat/progressive/liberal/Obama supporter who wants to defend Obama's proposal of "preventive detention," shouldn't you first ask yourself three simple questions:

(a) what would I have said if George Bush and Dick Cheney advocated a law vesting them with the power to preventively imprison people indefinitely and with no charges?;

(b) when Bush and Cheney did preventively imprison large numbers of people, was I in favor of that or did I oppose it, and when right-wing groups such as Heritage Foundation were alone in urging a preventive detention law in 2004, did I support them?; and

(c) even if I'm comfortable with Obama having this new power because I trust him not to abuse it, am I comfortable with future Presidents -- including Republicans -- having the power of indefinite "preventive detention"?

(3) Questions for defenders of Obama's proposal:

There are many claims being made by defenders of Obama's proposals which seem quite contradictory and/or without any apparent basis, and I've been searching for a defender of those proposals to address these questions:

Bush supporters have long claimed -- and many Obama supporters are now insisting as well -- that there are hard-core terrorists who cannot be convicted in our civilian courts.  For anyone making that claim, what is the basis for believing that? In the Bush era, the Government has repeatedly been able to convict alleged Al Qaeda and Taliban members in civilian courts, including several (Ali al-Marri, Jose Padilla, John Walker Lindh) who were tortured and others (Zacharais Moussaoui, Padilla) where evidence against them was obtained by extreme coercion.  What convinced you to believe that genuine terrorists can't be convicted in our justice system?

For those asserting that there are dangerous people who have not yet been given any trial and who Obama can't possibly release, how do you know they are "dangerous" if they haven't been tried? Is the Government's accusation enough for you to assume it's true?

Above all:  for those justifying Obama's use of military commissions by arguing that some terrorists can't be convicted in civilian courts because the evidence against them is "tainted" because it was obtained by Bush's torture, Obama himself claimed just yesterday that his military commissions also won't allow such evidence ("We will no longer permit the use of evidence -- as evidence statements that have been obtained using cruel, inhuman, or degrading interrogation methods").  How does our civilian court's refusal to consider evidence obtained by torture demonstrate the need for Obama's military commissions if, as Obama himself claims, Obama's military commissions also won't consider evidence obtained by torture?

Finally, don't virtually all progressives and Democrats argue that torture produces unreliable evidence?  If it's really true (as Obama defenders claim) that the evidence we have against these detainees was obtained by torture and is therefore inadmissible in real courts, do you really think such unreliable evidence -- evidence we obtained by torture -- should be the basis for concluding that someone is so "dangerous" that they belong in prison indefinitely with no trial?  If you don't trust evidence obtained by torture, why do you trust it to justify holding someone forever, with no trial, as "dangerous"?

(4) Do other countries have indefinite preventive detention?

Obama yesterday suggested that other countries have turned to "preventive detention" and that his proposal therefore isn't radical ("other countries have grappled with this question; now, so must we").  Is that true?

In June of last year, there was a tumultuous political debate in Britain that sheds ample light on this question.  In the era of IRA bombings, the British Parliament passed a law allowing the Government to preventively detain terrorist suspects for 14 days -- and then either have to charge them or release them.  In 2006, Prime Minister Tony Blair -- citing the London subway attacks and the need to "intervene early before a terrorist cell has the opportunity to achieve its goals" -- wanted to increase the preventive detention period to 90 days, but MPs from his own party and across the political spectrum overwhelmingly opposed this, and ultimately increased it only to 28 days.

In June of last year, Prime Minister Gordon Brown sought an expansion of this preventive detention authority to 42 days -- a mere two weeks more. Reacting to that extremely modest increase, a major political rebellion erupted, with large numbers of Brown's own Labour Party joining with Tories to vehemently oppose it as a major threat to liberty.  Ultimately, Brown's 42-day scheme barely passed the House of Commons. As former Prime Minister John Major put it in opposing the expansion to 42 days:

It is hard to justify: pre-charge detention in Canada is 24 hours; South Africa, Germany, New Zealand and America 48 hours; Russia 5 days; and Turkey 7½ days.

By rather stark and extreme contrast, Obama is seeking preventive detention powers that are indefinite -- meaning without any end, potentially permanent.  There's no time limit on the "preventive detention."  Compare that power to the proposal that caused such a political storm in Britain and what these other governments are empowered to do.  The suggestion that indefinite preventive detention without charges is some sort of common or traditional scheme is clearly false.

(5) Is this comparable to traditional POW detentions?

When Bush supporters used to justify Bush/Cheney detention policies by arguing that it's normal for "Prisoners of War" to be held without trials, that argument was deeply misleading.  And it's no less misleading when made now by Obama supporters.  That comparison is patently inappropriate for two reasons:  (a) the circumstances of the apprehension, and (b) the fact that, by all accounts, this "war" will not be over for decades, if ever, which means -- unlike for traditional POWs, who are released once the war is over -- these prisoners are going to be in a cage not for a few years, but for decades, if not life.

Traditional "POWs" are ones picked up during an actual military battle, on a real battlefield, wearing a uniform, while engaged in fighting.  The potential for error and abuse in deciding who was a "combatant" was thus minimal.  By contrast, many of the people we accuse in the "war on terror" of being "combatants" aren't anywhere near a "battlefield," aren't part of any army, aren't wearing any uniforms, etc.  Instead, many of them are picked up from their homes, at work, off the streets. In most cases, then, we thus have little more than the say-so of the U.S. Government that they are guilty, which is why actual judicial proceedings before imprisoning them is so much more vital than in the standard POW situation.

Anyone who doubts that should just look at how many Guantanamo detainees were accused of being "the worst of the worst" yet ended up being released because they did absolutely nothing wrong.  Can anyone point to any traditional POW situation where so many people were falsely accused and where the risk of false accusations was so high?  For obvious reasons, this is not and has never been a traditional POW detention scheme.

During the Bush era, that was a standard argument among Democrats, so why should that change now?  Here is what Anne-Marie Slaughter -- now Obama's Director of Policy Planning for the State Department -- said about Bush's "POW" comparison on Fox News in, November 21, 2001:

Military commissions have been around since the Revolutionary War. But they've always been used to try spies that we find behind enemy lines. It's normally a situation, you're on the battlefield, you find an enemy spy behind your lines. You can't ship them to national court, so you provide a kind of rough battlefield justice in a commission. You give them the best process you can, and then you execute the sentence on the spot, which generally means executing the defendant.

That's not this situation. It's not remotely like it.

As for duration, the U.S. government has repeatedly said that this "war" is so different from standard wars because it will last for decades, if not generations. Obama himself yesterday said that "unlike the Civil War or World War II, we can't count on a surrender ceremony to bring this journey to an end" and that we'll still be fighting this "war" "a year from now, five years from now, and -- in all probability -- 10 years from now."  No rational person can compare POW detentions of a finite and usually short (2-5 years) duration to decades or life in a cage.  That's why, yesterday, Law Professor Diane Marie Amann, in The New York Times, said this:

[Obama] signaled a plan by which [Guantanamo detainees] — and perhaps other detainees yet to be arrested? — could remain in custody forever without charge. There is no precedent in the American legal tradition for this kind of preventive detention. That is not quite right: precedents do exist, among them the Alien and Sedition Acts of 1798 and the Japanese internment of the 1940s, but they are widely seen as low points in America’s history under the Constitution.

There are many things that can be said about indefinitely imprisoning people with no charges who were not captured on any battlefield, but the claim that this is some sort of standard or well-established practice in American history is patently false.

(6) Is it "due process" when the Government can guarantee it always wins?

If you really think about the argument Obama made yesterday -- when he described the five categories of detainees and the procedures to which each will be subjected -- it becomes manifest just how profound a violation of Western conceptions of justice this is.  What Obama is saying is this:  we'll give real trials only to those detainees we know in advance we will convict. For those we don't think we can convict in a real court, we'll get convictions in the military commissions I'm creating.  For those we can't convict even in my military commissions, we'll just imprison them anyway with no charges ("preventively detain" them).

Giving trials to people only when you know for sure, in advance, that you'll get convictions is not due process.  Those are called "show trials."  In a healthy system of justice, the Government gives everyone it wants to imprison a trial and then imprisons only those whom it can convict.  The process is constant (trials), and the outcome varies (convictions or acquittals).

Obama is saying the opposite:  in his scheme, it is the outcome that is constant (everyone ends up imprisoned), while the process varies and is determined by the Government (trials for some; military commissions for others; indefinite detention for the rest).  The Government picks and chooses which process you get in order to ensure that it always wins. A more warped "system of justice" is hard to imagine.

(7) Can we "be safe" by locking up all the Terrorists with no charges?

Obama stressed yesterday that the "preventive detention" system should be created only through an act of Congress with "a process of periodic review, so that any prolonged detention is carefully evaluated and justified." That's certainly better than what Bush did:  namely, preventively detain people with no oversight and no Congressional authorization -- in violation of the law.  But as we learned with the Military Commissions Act of 2006 and the Protect America Act of 2007, the mere fact that Congress approves of a radical policy may mean that it is no longer lawless but it doesn't make it justified.  As Professor Amann put it:  "no amount of procedures can justify deprivations that, because of their very nature violate the Constitution’s core guarantee of liberty."  Dan Froomkin said that no matter how many procedures are created, that's "a dangerously extreme policy proposal."

Regarding Obama's "process" justification -- and regarding Obama's primary argument that we need to preventively detain allegedly dangerous people in order to keep us safe -- Digby said it best:

We are still in a "war" against a method of violence, which means there is no possible end and which means that the government can capture and imprison anyone they determine to be "the enemy" forever.  The only thing that will change is where the prisoners are held and few little procedural tweaks to make it less capricious. (It's nice that some sort of official committee will meet once in a while to decide if the war is over or if the prisoner is finally too old to still be a "danger to Americans.")

There seems to be some misunderstanding about Guantanamo. Somehow people have gotten it into their heads is that it is nothing more than a symbol, which can be dealt with simply by closing the prison. That's just not true. Guantanamo is a symbol, true, but it's a symbol of a lawless, unconstitutional detention and interrogation system. Changing the venue doesn't solve the problem.

I know it's a mess, but the fact is that this isn't really that difficult, except in the usual beltway kabuki political sense. There are literally tens of thousands of potential terrorists all over the world who could theoretically harm America. We cannot protect ourselves from that possibility by keeping the handful we have in custody locked up forever, whether in Guantanamo or some Super Max prison in the US. It's patently absurd to obsess over these guys like it makes us even the slightest bit safer to have them under indefinite lock and key so they "can't kill Americans."

The mere fact that we are doing this makes us less safe because the complete lack of faith we show in our constitution and our justice systems is what fuels the idea that this country is weak and easily terrified. There is no such thing as a terrorist suspect who is too dangerous to be set free. They are a dime a dozen, they are all over the world and for every one we lock up there will be three to take his place. There is not some finite number of terrorists we can kill or capture and then the "war" will be over and the babies will always be safe. This whole concept is nonsensical.

As I said yesterday, there were some positive aspects to Obama's speech.  His resolve to close Guantanamo in the face of all the fear-mongering, like his release of the OLC memos, is commendable.  But the fact that a Democratic President who ran on a platform of restoring America's standing and returning to our core principles is now advocating the creation of a new system of indefinite preventive detention -- something that is now sure to become a standard view of Democratic politicians and hordes of Obama supporters -- is by far the most consequential event yet in the formation of Obama's civil liberties policies.

UPDATE: Here's what White House Counsel Greg Craig told The New Yorker's Jane Mayer in February:

"It’s possible but hard to imagine Barack Obama as the first President of the United States to introduce a preventive-detention law," Craig said.  "Our presumption is that there is no need to create a whole new system. Our system is very capable."

"The first President of the United States to introduce a preventive-detention law" is how Obama's own White House Counsel described him.  Technically speaking, that is a form of change, but probably not the type that many Obama voters expected.

UPDATE II: Ben Wizner of the ACLU's National Security Project is the lead lawyer in the Jeppesen case, which resulted in the recent rejection by the 9th Circuit Court of Appeals of the Bush/Obama state secrets argument, and also co-wrote (along with the ACLU's Jameel Jaffer) a superb article in Salon in December making the case against preventive detention.  I spoke with him this morning for roughly 20 minutes regarding the detention policies proposed by Obama in yesterday's speech.  It can be heard by clicking PLAY on the recorder below.  A transcript will be posted shortly.

UPDATE III: Rachel Maddow was superb last night -- truly superb -- on the topic of Obama's preventive detention proposal:

UPDATE IV:  The New Yorker's Amy Davidson compares Obama's detention proposal to the internment of Japanese-Americans during World War II (as did Professor Amann, quoted above).  Johns Hopkins Professor Hilary Bok (aka Hilzoy) of The Washington Monthly writes:  "If we don't have enough evidence to charge someone with a crime, we don't have enough evidence to hold them. Period" and "the power to detain people without filing criminal charges against them is a dictatorial power."  Salon's Joan Walsh quotes the Center for Constitutional Rights' Vincent Warren as saying:  "They’re creating, essentially, an American Gulag."  The Philadelphia Inquirer's Will Bunch says of Obama's proposal:  "What he's proposing is against one of this country's core principles" and "this is why people need to keep the pressure on Obama -- even those inclined to view his presidency favorably."

UPDATE V:  The Atlantic's Marc Ambinder -- who is as close to the Obama White House as any journalist around -- makes an important point about Obama that I really wish more of his supporters would appreciate:

[Obama] was blunt [in his meeting with civil libertiarians]; the [military commissions] are a fait accompli, so the civil libertarians can either help Congress and the White House figure out the best way to protect the rights of the accused within the framework of that decision, or they can remain on the outside, as agitators. That's not meant to be pejorative; whereas the White House does not give a scintilla of attention to its right-wing critics, it does read, and will read, everything Glenn Greenwald writes. Obama, according to an administration official, finds this outside pressure healthy and useful.

Ambinder doesn't mean me personally or exclusively; he means people who are criticizing Obama not in order to harm him politically, but in order to pressure him to do better.  It's not just the right, but the duty, of citizens to pressure and criticize political leaders when they adopt policies that one finds objectionable or destructive.  Criticism of this sort is a vital check on political leaders -- a key way to impose accountability -- and Obama himself has said as much many times before.

It has nothing to do with personalities or allegiances.  It doesn't matter if one "likes" or "trusts" Obama or thinks he's a good or bad person.  That's all irrelevant.  The only thing that matters is whether one thinks that the actions he's undertaking are helpful or harmful.  If they're harmful, one should criticize them.  Where, as here, they're very harmful and dangerous, one should criticize them loudly.  Obama himself, according to Ambinder, "finds this outside pressure healthy and useful."  And it is.  It's not only healthy and useful but absolutely vital.

Video and Transcript: Bush Official Zelikow Condemns Torture Programmes

Related Post: Revealed - Zelikow Memorandum Says Torture is not OK (Unless It's Effective)
Related Post: FBI Agent Ali Soufan Testifies on Torture

Ironically, as President Obama was trying to tuck away any more photographs revealing the US Government's torture of detainees, former Bush Administration official Philip Zelikow was dissecting the legal and political cover for "enhanced interrogations" in testimony to a Senate committee. He reiterated that the techniques was approved at the highest levels of the Bush White House, including by his immediate boss, Condoleezza Rice, and that his memorandum objecting to the torture  (still classified by the US Government) was blocked by other Bush officials. And he offered this pertinent point: if the torture methods were considered legal in their application against "foreign" detainees, then they would also be legal in application against US citizens.

C-SPAN has decided to charge $60 for the videos of the hearings before the Senate committee, which also included testimony by Ali Soufan (posted in a separate entry), the FBI agent who questioned 9-11 planner Khalid Sheikh Mohammed. So we offer two videos --- a summary of the Soufan and Zelikow testimonies and Zelikow's interview with Rachel Maddow --- and the transcript of Zelkow's statement:

VIDEO (Part 1 of 2)

[youtube]http://www.youtube.com/watch?v=LU2BlALKZjM[/youtube]



VIDEO (Part 2 of 2)

[youtube]http://www.youtube.com/watch?v=ANOIHvQ5RNE[/youtube]

ZELIKOW: Mr. Chairman, Senator Sessions, thank you for giving me the opportunity to appear before you today. The declassification of Justice Department legal opinions on the legality of an interrogation program operated by the CIA has reopened an important public debate. The debate is on how the United States should get intelligence from captives taken in the global armed conflict against the violent Islamist extremist organization, al Qaeda, its allies, and its affiliates, as these organizations wage war against our country, and our people.

The Committee has my c.v. so I won’t detail my experience or scholarship. I will concentrate in this statement on my involvement in debates on the treatment of enemy captives in order to discuss the effectiveness of such methods and the legal reasoning employed to judge this and future intelligence programs.

At the outset, I will address a few frequently asked questions:

-- I have no view on whether former officials should be prosecuted. We have institutions to make those judgments. The factual and legal story is complicated, more complicated than is generally recognized. We should let our institutions do their job.

-- There should be a thorough inquiry, yielding a public report, to: comprehend how the United States came to operate such an unprecedented program so that we can learn from that; and evaluate whether the more constrained intelligence program we have been operating against al Qaeda in Iraq for at least four and a half years and against al Qaeda worldwide for at least three and a half years is adequate to protect the country. I think it is. But important people have challenged that view. Since the issue is so important, our current approach should be validated, or it should be changed. -- I have no view on whether Justice Department lawyers acted unethically or improperly. I believed at least some of their legal opinions on this subject were unsound, even unreasonable. But I don’t know how they did their work. Others should judge.

In 2003, while serving as executive director of the 9/11 Commission, some of my staff colleagues and I were concerned because the CIA was unwilling to disclose information about the conduct of the interrogations of key detainees and would not allow access to the detainees or the interrogators.1 The Commission’s concerns deepened as press reports in 2004 indicated that detainees might have been abused. Therefore, in its July 2004 report, the Commission formally recommended that the United States “engage its friends to develop a common coalition approach toward the detention and humane treatment of captured terrorists” drawing “upon Article 3 of the Geneva Conventions on the law of armed conflict,” an article “specifically designed for those cases in which the usual laws of war did not apply.”

This article, common to all four of the Geneva Conventions on armed conflict, was meant to provide a ‘floor’ to handle situations where usual POW status does not apply. It prohibits “cruel treatment” under any circumstances and bans “outrages upon personal dignity, in particular humiliating and degrading treatment.” In its recommendation, the 9/11 Commission noted that these “minimum standards are generally accepted throughout the world as customary international law.”

Although the Bush administration accepted most of the Commission’s recommendations, this was one of the few it did not accept. That refusal plainly signaled that the administration was reserving the right to inflict treatment that might violate the so-called “CID” standard. “CID” stands for “cruel, inhuman, or degrading” – a standard expressed, in slightly varying terms, in Common Article 3 of the Geneva Conventions that I just mentioned, in the Convention Against Torture, another signed and ratified treaty obligation, and is a standard also found in a Protocol to the Geneva Conventions that had been accepted by most countries and by the United States during the Reagan administration. The administration’s initial rejection of the 9/11 Commission recommendation on this point was therefore both revealing and troubling.

As 2004 turned to 2005, the controversy about the treatment of captives intensified. There were the revelations of detainee abuse in military facilities in Iraq, and reports of alleged murders. There were reports of past abuses at the Guantanamo facility. There were growing rumors and reports about other sites run by the CIA. I later learned that, in 2004, the CIA Inspector General, John Helgerson, had prepared a secret report that was plainly skeptical and worried about the Agency’s treatment of captives. I was acquainted with Helgerson and respected his judgment; I also later talked to CIA officials who worked on this study. An important critique, the IG report was also another reminder about the outstanding professionalism that can always be found in the Agency’s ranks.

In 2005, I became Counselor of the Department of State. This should not be confused with the duties of the State Department’s Legal Adviser. The “Counselor” is an old office at State, a place where the Secretary puts someone who serves as a kind of deputy on miscellaneous issues. Among my duties, I was to be the subcabinet “deputy” for the Department on issues of intelligence policy or counterterrorism.

By June 2005, President Bush wanted to reconsider the current approach. He asked his advisers to develop real options for the future of the Guantanamo facility, for the eventual disposition of detainees held by CIA, and to look at the standards governing the treatment of enemy captives.

Secretary of State Condoleezza Rice was in favor of change. Also supporting change was her Legal Adviser, John Bellinger, who had held the same job for her on the NSC staff. Bellinger was already deeply concerned about detainee policies and carried scars from earlier bureaucratic battles on the topic.

Subcabinet deputies began meeting regularly in highly sensitive meetings to consider these issues. I represented the Department at these meetings, along with Mr. Bellinger. I was thus ‘read in’ to the details of this particular CIA program for the first time.

Why was such a program adopted? I do not yet adequately understand how and why this happened. But four points stand out:

First, the atmosphere after 9/11. The country had suffered the most devastating single attack in its history. Attitudes toward those behind this mass murder were understandably merciless. The feeling of being at war was real, at least in the White House. Almost every morning, President Bush himself received nerve-jangling briefings just on the latest threats. Almost every afternoon, usually at 5 p.m., George Tenet would review the latest engagements as a de facto Combatant Commander in a global war. Some of the threat reports were apocalyptic, some scares have never become public. I saw many such reports when serving on the President’s Foreign Intelligence Advisory Board.

One result was that the tough, gritty world of ‘the field’ worked its way into the consciousness of the nation’s leaders to a degree rarely seen before, or since. A large cultural divide shadowed these judgments, a divide between the world of secretive, bearded operators in the field coming from their 3 a.m. meetings at safe houses, and the world of Washington policymakers in their wood-paneled suites. As the policymakers sense this divide, they often and naturally become more deferential – especially in a time of seemingly endless alarms. What policymakers can sometimes miss, though, is that the world of the field has many countries and cultures of its own. Seasoned operators often disagree about what the government should do, and did in this case, but policymakers were rarely aware of these arguments.

Second, the CIA – an agency that had no significant institutional capability to question enemy captives – improvised an unprecedented, elaborate, systematic program of medically monitored physical torment to break prisoners and make them talk. This program was apparently based on the SERE program familiar to civilian and military intelligence officials from their training. The program was reportedly reverse-engineered and then sold to policymakers as being no more than “what we do to our own trainees.” Much about this policy development process is still unclear, though press reports have already discussed some of the fallacies and omissions in the reverse-engineering approach.

There have also been conflicting accounts about the role of “supply” and “demand”: CIA policy entrepreneurs and officials in the White House or in the Office of the Vice President who were pushing for better intelligence. Nor is it clear just how the program evolved. It would be important to grasp how the program was understood and sold at each stage in this evolution. But the program would not have come into being unless an executive department or agency of the government was willing to develop it and defend it.

Third, the leaders of the CIA evidently believed, and told the government’s leaders, that their program would be uniquely effective in getting information from high-value captives. “Uniquely” is the key word. After all, other kinds of interrogation programs were well known to experts in law enforcement and the U.S. armed forces. The Director of the CIA, the de facto combatant commander in an ongoing fight, apparently emphasized that there were no good alternatives to adoption of this proposal.

Fourth, Attorney General John Ashcroft and his Department of Justice, along with the White House Counsel, Alberto Gonzales, assured the government’s leaders that the proposed program was lawful. Those assurances were renewed by Ashcroft’s successor, Mr. Gonzales, and by Gonzales’ successor as White House Counsel, Harriet Miers.

I will discuss the legal issues in more detail in a moment. For now, I wish to return to the issue of unique “effectiveness” and the supposed absence of alternatives.

There is quite a bit of empirical and historical information available about interrogation experience in this country, in its past wars, and in the experiences of other democracies facing terrifying threats. I have done some work on the British, French, and Israeli experiences. These experiences and others are highly instructive. They show the damage that these programs can do to the counterterror effort, the process of trial and error as alternatives emerged, and the proven effectiveness of some of these alternatives. America has had extensive experience with interrogation of high-value detainees, especially in World War II when special facilities were created for this purpose. The national policy then was to treat the detainees humanely, even though thousands of lives were potentially at stake in the midst of a brutal, total war. It is not clear how much, if any, of this knowledge was canvassed and analyzed when the critical arguments over adoption of this unprecedented program were occurring in 2002 and 2003.

By the time I began engaging in these arguments, in the spring and summer of 2005, another important source of data had emerged. This was the American intelligence and interrogation effort against al Qaeda in Iraq. This was an interagency effort, including CIA and FBI experts, organized by the military’s Joint Special Operations Command. By 2005, if not earlier, this program was complying with basic international standards in its interrogation of captives. The program was high-tempo and time-urgent. The officers running the interrogation program considered it effective and, at least by mid-2005, the government’s leaders were aware of their positive assessment.

Nonetheless, the intelligence community’s position in 2005, and later, was that a substantial program of intense physical coercion was uniquely necessary to protect the nation. The arguments that have appeared recently in the press are the same arguments, even using some of the same examples, used to defend the program against its internal critics four years ago.

Examples of success cite plots thwarted or terrorists captured. Some of these examples may not be accurate. Others may be exaggerated, or they may mask murky, internal arguments among operatives and analysts about whose source proved out, or which lead was key. Rival claims of credit that often accompany successful cases. But getting into a debate about whether the CIA program produced useful intelligence misses the point.

The point is not whether the CIA program produced useful intelligence. Of course it did. Quite a lot. The CIA had exclusive custody of a number of the most important al Qaeda captives in the world, for years. Any good interrogation effort would produce an important flow of information from these captives.

Complicating the story, the CIA did not just rely on physical coercion. A long-term interrogation program was also being employed, mustering a number of experts using growing skill in patiently mining for more information and assimilating it. Indeed, one of the tragedies of this program is that the association with physical coercion detracts attention away from some of the very high quality work the CIA did do for the country, quality work that has continued in recent years even after this program was substantially dismantled.

So the issue is not whether the CIA program of extreme physical coercion produced useful intelligence; it is about its net value when compared to the alternatives. And, even though the program may have some value against some prisoners, it has serious drawbacks just in the intelligence calculus, such as:

-- constraints in getting the optimal team of interrogators, since law enforcement and military experts could not take part;

-- whether the program actually produces much of the time- sensitive current intelligence that is one of its unique justifications;

-- loss of intelligence from allies who fear becoming complicit in a program they abhor and a whole set of fresh problems with coalition cooperation on intelligence operations;

-- poorer reliability of information obtained through torment;

-- possible loss of opportunities to turn some captives into more effective and even cooperative informants; and

-- problems in devising an end-game for the eventual trial or long- term disposition of the captives.

This skepticism about effectiveness links to wider concerns about how the United States should treat captured terrorists or terrorist suspects. By 2005, the raging controversy over “Abu Ghraib” or “Guantanamo” or “torture” was hurting the United States position in the world more than any other problem in our foreign policy.

As Secretary of State, Dr. Rice placed a high priority on changing the national approach to the treatment of detainees. Therefore, once the President indicated his readiness to hear alternatives, we first attempted to develop a ‘big bang’ approach, a presidential initiative that might take on the whole cluster of issues in a single announcement.

To show what such an initiative might look like and how it could be presented, and with help from Mr. Bellinger, I worked with the deputy secretary of defense, Gordon England, on a joint paper, a notional draft of the building blocks of such an initiative. Deputy Secretary England was aided by DOD’s Deputy Assistant Secretary for detainee affairs, Matt Waxman, and other staff. Our (unclassified) joint paper outlining the elements of a presidential initiative was distributed in June 2005.

However the Secretary of Defense, Donald Rumsfeld, indicated that this paper did not represent his Department’s views. He designated a different official as his deputy for these issues. The NSC staff then felt it was more appropriate for the interagency process to address the specific issues incrementally, rather than take up discussion of this broad paper.

At State we then focused much of our effort on recommending a different legal framework for evaluating the treatment of enemy captives. We felt it was very important to focus on the “CID” – cruel, inhuman, and degrading -- standard.

The administration had always conceded the applicability of the federal anti-torture statute and had repeatedly held that the CIA program did not violate it. The Justice Department’s view was authoritative for the executive branch and was immovable. The anti-torture language, as interpreted by Justice, also turned on medical assessments by CIA doctors, assessments we could not challenge. Taking these facts into account, plus the fact that “CID” was actually a stronger standard codified in three relevant treaties, we concentrated our advocacy on adoption of the “CID” guideline.

The “CID” standard was critical for two other reasons.

-- It was the standard that had been proposed by Senator John McCain and his allies, including Senator Lindsey Graham, in the “McCain Amendment.”

-- The “CID” standard, as codified in Article 3 of the Geneva Conventions, is also the relevant standard in the federal war crimes law (18 U.S.C. section 2441) which then stated (it was later amended) that any conduct constituting a violation of Article 3 was a war crime, a felony punishable by up to life imprisonment.

The administration position on all these “CID” arguments had been this: We do not have to measure our conduct against this standard because none of these treaties apply. If the standard did apply, the CIA program did not violate it. The outer defenses, a series of technical, jurisdictional arguments, had received the most attention. Samples can be seen in the OLC opinion of May 30, 2005.

Also, OLC’s view was that Geneva Common Article 3 did not apply because it was meant for civil conflict, not an international war (Article 3 was written that way because its drafters thought international wars would be covered by fuller Geneva protections; they thought civil war was the loophole they were closing with the minimum standard of Article 3.) And, although the federal war crimes statute’s reference to “conduct constituting” could be construed as stating a substantive compliance standard, the OLC did not share that view.

In 2005 State worked to persuade the rest of the government to join in developing an option that would abandon these technical defenses and accept the “CID” standard. An illustration of these arguments, as made at the time, is in an unclassified paper prepared with Mr. Bellinger’s help and circulated in July 2005.

Both deputies and principals battled over these topics on into the fall of 2005, including the issue of how the administration should deal with Senator McCain’s proposed amendment. New press reports, by Dana Priest in the Washington Post, fueled further controversy – especially in Europe.

By the end of 2005 these debates in both the executive and legislative branches did lead to real change. On December 5, as Secretary Rice left on a European trip, she formally announced on behalf of the President that the “CID” standard would govern U.S. conduct by any agency, anywhere in the world.4 On December 30 the McCain amendment (to a defense appropriations bill) was signed into law as well, as the Detainee Treatment Act of 2005.

Thus by early 2006 there was no way for the administration to avoid the need to reevaluate the CIA program against a “CID” standard. The work of the NSC deputies intensified, working to develop a comprehensive set of proposals for presidential decision about the future of the CIA program and the future of Guantanamo.

The OLC had guarded against the contingency of a substantive “CID” review in its May 30, 2005 opinion. OLC had held that, even if the standard did apply, the full CIA program -- including waterboarding – complied with it. This OLC view also meant, in effect, that the McCain amendment was a nullity; it would not prohibit the very program and procedures Senator McCain and his supporters thought they had targeted.

So, with the battle to apply the standard having been won, State then had to fight another battle over how to define its meaning. That meant coming to grips with OLC’s substantive analysis.

OLC contended that these subjective terms – like “cruel” or “humane” -- should be interpreted in light of the well developed and analogous restrictions found in American constitutional law, specifically through the interaction of the 5th, 8th, and 14th amendments to the U.S. Constitution. As OLC observed in its May 30 opinion, the Congress had conditioned its ratification of one of the “CID”-type standards, the one found in the Convention Against Torture, on its being interpreted in just this way.

Therefore, to challenge OLC’s interpretation, it was necessary to challenge the Justice Department’s interpretation of U.S. constitutional law. This was not easy, since OLC is the authoritative interpreter of such law for the executive branch of the government. Many years earlier I had worked in this area of American constitutional law. The OLC interpretation of U.S. constitutional law in this area seemed strained and indefensible. It relied on a “shocks the conscience” standard in judging interrogations but did not seem to present a fair reading of the caselaw under that standard. The OLC analysis also neglected another important line of caselaw, on conditions of confinement.

While OLC’s interpretations of other areas of law were well known to be controversial, I did not believe my colleagues had heard arguments challenging the way OLC had analyzed these constitutional rights. With the issue of “CID” definition now raised so squarely, and so important to the options being developed for the President, it seemed necessary to put that legal challenge in front of my government colleagues, citing relevant caselaw.

Further, the OLC position had implications beyond the interpretation of international treaties. If the CIA program passed muster under an American constitutional compliance analysis, then – at least in principle -- a program of this kind would pass American constitutional muster even if employed anywhere in the United States, on American citizens. Reflect on that for a moment.

I distributed my memo analyzing these legal issues to other deputies at one of our meetings, probably in February 2006. I later heard the memo was not considered appropriate for further discussion and that copies of my memo should be collected and destroyed. That particular request, passed along informally, did not seem proper and I ignored it. This particular legal memo has evidently been located in State’s files. It is currently being reviewed for possible declassification.

The broader arguments over the future of the CIA program went on for months, even though the old program had effectively been discontinued. There were continuing issues over whether or how to maintain a different kind of CIA program. Both principals and deputies examined proposals to bring the high-value detainees out of the ‘black sites’ and to Guantanamo where they could be brought to justice (and would give accounts of their treatment to lawyers and the Red Cross); seek legislation that would close Guantanamo; accept fully the application of Common Article 3; and find some way of maintaining a standby CIA program that would comply with legal standards. A new OLC opinion was also being developed in the spring of 2006 to deal with the different circumstances, including the McCain amendment. We at State were concerned about this development, unless OLC had reconsidered how to interpret the “CID” standard.

We nonetheless believed these issues were moving in an encouraging direction, though the administration certainly remained divided. Options for action on all the major issues had been developed for possible presidential decision and had already been discussed repeatedly by the principal officers of the government.

Then, on June 29, the U.S. Supreme Court decided Hamdan v. Rumsfeld. That decision held that Geneva Common Article 3 applied to the U.S. government’s treatment of these captives as a matter of law. Immediately, the potential exposure to criminal liability in the federal war crimes act became real.

Internal debate continued into July, culminating in several decisions by President Bush. Accepting positions that Secretary Rice had urged again and again, the President set the goal of closing the Guantanamo facility, decided to bring all the high-value detainees out of the ‘black sites’ and move them toward trial, sought legislation from the Congress that would address these developments (which became the Military Commissions Act) and defended the need for some continuing CIA program that would comply with relevant law. President Bush announced these decisions on September 6.

I left the government at the end of 2006 and returned to the University of Virginia. Both Secretary Rice and Mr. Bellinger remained deeply involved in these issues for the following two years, working for constructive change. Mr. Bellinger, in particular, also deserves credit for exhausting, patient diplomacy to carry forward the idea of working with our key allies to build common, coalition approaches on these tough problems. He has conducted several international conferences that have successfully advanced this effort.

The U.S. government adopted an unprecedented program of coolly calculated dehumanizing abuse and physical torment to extract information. This was a mistake, perhaps a disastrous one. It was a collective failure, in which a number of officials and members of Congress (and staffers) of both parties played a part, endorsing a CIA program of physical coercion even after the McCain amendment was passed and after the Hamdan decision . Precisely because this was a collective failure it is all the more important to comprehend it, and learn from it.

For several years our government has been fighting terrorism without using these extreme methods. We face some serious obstacles in defeating al Qaeda and its allies. We could be hit again, hit hard. But our decision to respect basic international standards does not appear to be a big hindrance in the fight. In fact, if the U.S. regains some higher ground in the wider struggle of ideas, our prospects in a long conflict will be better.

Others may disagree. They may believe that recent history, even since 2005, shows that America needs an elaborate program of indefinite secret detention and physical coercion in order to protect the nation. The government, and the country, needs to decide whether they are right. If they are right, our laws must change and our country must change. I think they are wrong.