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The Interrogation Memos and the Law

Author: Richard N. Haass, President, Council on Foreign Relations
May 1, 2009
Wall Street Journal


Calls are mounting to establish some sort of inquiry--a special prosecutor, a congressional investigation, a truth commission--to determine if the Bush administration lawyers who argued that waterboarding and other harsh interrogation techniques could be employed in the aftermath of 9/11 should be prosecuted.

At the center of the frenzy are four detailed legal analyses. The memos, written by Justice Department lawyers in 2002 and 2005 and recently declassified and released, read as you would expect them to. The individuals writing them were reflecting their own interpretation of the law, their own policy views, and quite possibly the policy preferences of their bosses.

The subject matter lent itself to debate. Law tends to be more gray than black and white.

The memos make the case that what is not explicitly banned is permitted. What comes to mind is the difference between tax evasion and avoidance. The former is illegal whereas the latter is not. The lawyers were making an aggressive case for the terrorism equivalent of avoidance.

I served in the Bush administration for two and a half years, from January 2001 through June 2003, and knew nothing about these memos or the interrogation techniques they advocate. I harbor deep doubts about the use of such techniques because of the clear cost to America's reputation and the unclear benefits to U.S. intelligence gathering.

But these questions (as important as they are) are not at the heart of today's debate. The issue is whether those who argued that such techniques were not illegal--and therefore should be available--ought to be tried.

They should not. To begin with, prosecution of Justice Department officials would have a chilling effect on future U.S. government officials. Few would be brave or foolhardy enough to put forward daring proposals that one day could be judged illegal. Putting things down in writing is a useful intellectual exercise that is also central to good decision-making. With the threat of prosecution, serious memos on controversial matters will increasingly become the exception rather than the rule.

Prosecution would also set a terrible precedent. One would have thought today's politics sufficiently partisan and poisonous without adding legal threats to the mix. Even knowing this was a possibility would discourage people from entering government in the first place.

Last, investigation and prosecution would take time and focus away from what this country and its elected and appointed representatives need to focus on. Investigations and trials would constitute an enormous distraction for the Obama administration and the Congress at a time when this country faces a daunting array of international problems (Afghanistan, Pakistan, Iran, Iraq, North Korea, climate change, swine flu) and is limited by the effects of a recession that is sure to be both deep and enduring.

If there is a fault here that requires attention, it is with the policy and political process. Mid-level officials do not make policy; they seek to influence it through their analysis and recommendations. What is required is a process inside the executive branch in which competing assessments and alternative prescriptions are subject to rigorous scrutiny. And Congress is responsible for effective oversight. Both the previous administration and the Congress failed to meet these tests.

I have had to deal with questions that relate to the current debate twice in my career. One example was Northern Ireland, where for three years (from 2001-2003) I was the U.S. envoy to the peace process. Major progress was made in bridging the divide between mostly Protestant Unionists and mostly Catholic Republicans and in restoring the institutions of local self-government in Northern Ireland.

A good many people were not content with these gains, and sought to reopen the past by creating some sort of truth and reconciliation process. I argued against going down this path: Doing so would reopen more wounds than it would heal, and the "justice" produced would be too much for some and not enough for others. Rather than contributing to Northern Ireland's continuing normalization, it could slow or even reverse it.

My concern over a truth and reconciliation process today to examine alleged torture is similar - it would likely produce little in the way of truth and even less in the way of reconciliation.

A second experience was more personal. During the Iran-Iraq war of the 1980s and its aftermath, the U.S. provided limited assistance to Iraq. The administrations of Ronald Reagan and George H.W. Bush initially did this to help prevent a military victory by revolutionary Iran, an outcome they feared would destabilize the entire region. After the war ended in mid-1988, the two administrations continued the practice of providing support (mostly economic) to Iraq in an attempt to integrate it into the region and persuade it to adopt a more responsible foreign policy.

The attempt failed.

Years later, following the Iraqi invasion of Kuwait, allegations regarding the improper administration of economic assistance programs were cited as "proof" of a scandal dubbed "Iraqgate." The charge was levied that the administration of George H.W. Bush had secretly armed the Iraqis through these programs and had in part created the threat that the war had to combat. More than four years of hearings and investigations by various executive branch, congressional, and judicial bodies during the Bush and Clinton administrations made clear that these charges were false. No economic assistance funds were ever provided to Iraq, no U.S. arms were exported, and the amount and significance of U.S. dual-use exports were minimal. If there was a scandal, it was in the behavior of the Congress.

What made all this serious was the congressional investigations that absorbed hundreds of hours. I was the senior Middle East hand on the National Security Council staff at the time, and I remember putting in full 12-hour days and then, along with my staff, having to spend several more hours responding to various congressional requests for documents. I was concerned not over anything we had done but over the possibility we might miss locating and handing over some document in a file drawer and be charged with obstruction of justice.

Policy differences over how best to modify the behavior of rogue regimes are legitimate and unavoidable, but this was something else. For those in the executive branch, it was demoralizing and exhausting and, in some cases, costly. People who complain about why it is so difficult to attract talented people to public service could get some of their answers from this episode and others like it.

Government service already asks a lot of individuals. It entails sacrifice, pays little, and often violates privacy. Adding risk of prosecution to the mix will make recruiting the best and brightest that much more difficult. If we are not careful, we will get the government we deserve, but not the government we need.

Mr. Haass is president of the Council on Foreign Relations and the author of "War of Necessity, War of Choice: A Memoir of Two Iraq Wars," published this month by Simon & Schuster.

This article appears in full on CFR.org by permission of its original publisher. It was originally available here.

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