Unsurprisingly, Mort Kondracke penned a column today calling on Obama to blow off any attempt to prosecute or even investigate war crimes carried out by the Bush administration. What’s odd is not that a suck-up apologist like Kondracke wrote such a column but the logic which he chose to make his argument. Kondracke explicitly rejects the concepts of national unity and letting bygones be bygones.
The main reason has less to do with “turning the page,” uniting the country and letting bygones be bygones — all good Obama impulses — than with preserving the morale of intelligence professionals in wartime.
Kondracke goes on to bemoan the possibility that people that engaged in torture should have to pay for lawyers, even if they need have no fear of prosecution.
If a special prosecutor were to be appointed to investigate possible criminality involved in detainee interrogations, “extraordinary renditions” or terrorist surveillance, it’s not only Bush-era top officials who’d have to hire lawyers to defend themselves, but lower-down intelligence operatives as well.
The same would be true if Congress created a “truth commission” with subpoena power to report on Bush-era policies. The operatives wouldn’t have to fear prosecution, but they’d still have to worry about their reputations.
At root, Kondracke is making a pragmatic argument. Obama should avoid taking an action that will ‘demoralize’ the intelligence agencies by pointing out that they, as an organization, committed war crimes. Additionally, the inevitable result of such a finding would be to make intelligence officers more tentative in violating the law in the future. And that would be bad for national security. As Kondracke puts it:
The fact is, Obama does have “many problems to solve.” Among them is the possibility raised by a Congressionally mandated commission — that terrorists will use a nuclear or biological weapon somewhere in the world by 2013.
To prevent that catastrophe, Obama might well want to order an “enhanced interrogation,” wiretap a terrorist or even kill one. If he issues the order, he will want someone to carry it out.
This is a rehash of dishonest arguments. First, Kondracke raises the specter of the ‘ticking time bomb’ where a terrorist in custody knows the location of an armed nuclear bomb and we don’t have time to build rapport or break him down with established, effective, and legal interrogation techniques. Instead, we must torture him to get the information fast. Even if such a scenario were to present itself, we should not build the law around such a scenario. It is the exception to normal interrogation situations. The proper way to deal with the ‘ticking time bomb’ is to use prosecutorial discretion and/or the presidential pardon (or even jury nullification) to adjust for extraordinary circumstances. Torture should remain illegal under all circumstances, with no exceptions.
Kondracke next raises the prospect that we might want to wiretap or even kill a terrorist. We wiretap terrorists all the time and no one has raised any objection to doing so. We have complained about wiretapping U.S. citizens without obtaining, even retroactively, a warrant from a judge. As for killing terrorists, we are already doing that, and no one has seriously suggested that killing terrorists is a war crime. I admit that there are some legal and moral considerations surrounding using drone aircraft to target individuals in Yemen or Pakistan, but Kondracke is conflating issues in order to muddy the waters.
We need to be clear about a few things. Our goal should be to prevent the intelligence agencies from committing war crimes. We need to stop making disingenuous arguments that only war crimes can keep our country safe. There is simply no compelling evidence that war crimes do keep us safe or that they are necessary to keep us safe. Additionally, there is good evidence that when we commit war crimes it provides motivation, success in recruitment, propaganda, and the moral high ground to our enemies.
Intelligence officers are demoralized when they don’t know what the law is, and they’re even more demoralized when they find out that the Justice Department is lying to them about what is permissible under the law. The best way to shore up the morale of the Intelligence Community is to be explicit about the law, and to make it clear that Congress and the Courts concur in the legal reasoning behind the law so that there is confidence it won’t change. If there are good arguments that legally dubious techniques and tactics are necessary to keep American safe, the best place to make those arguments is in the defense of those who used them.
Kondracke ostensibly believes that those of us that want investigations (and possible prosecutions) of the Bush administration for violations of the law, are only interested in payback.
For the sake of national security and national unity, President-elect Barack Obama should put a stop to efforts to investigate or prosecute Bush administration officials for anti-terror “war crimes.”
The motive behind such efforts is not — as claimed — “truth” or “justice,” but political vengeance.
First of all, I don’t consider illegal domestic wiretapping to be a war crime, but I still want it investigated. It isn’t just war crimes that concern me. But, secondly, there are important American interests that can only be served by an honest accounting of the history of the Bush years. It’s important that a truer narrative is told about the lies behind the War on Terror as it was developed (mainly in 2002) through phony arrests, trumped up terror plots, color-coded terror charts, invented intelligence about uranium in Niger, etc. All of this was used to create a political culture of extreme fear that acquiesced to everything from an illegal invasion of Iraq to the moral stain of Guantanamo Bay.
We want justice for crimes that were committed, that’s true, but our main concern isn’t justice (or even atonement) but getting to the truth so that we may make certain that we can prevent these mistakes and abuses in the future. The biggest enemy of the truth is the sentiment that we should sweep this all under the rug in the interests of saving low-level intelligence officers the expense and embarrassment of an investigation into their crimes.
We can get to the truth without imperiling our national security. In fact, if we do it right, the truth will enhance our national security by demonstrating to the world that we really do, in the end, have a self-correcting system of government that deserves respect and is worthy of emulation and support.
If we follow Kondracke’s advice, we’ll convince no one but a minority of ourselves that our system is what it claims to be.
