Unsurprisingly, Mort Kondrake 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 Kondrake wrote such a column but the logic which he chose to make his argument. Kondrake 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.
Kondrake 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, Kondrake 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 Kondrake 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, Kondrake 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.
Kondrake 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 Kondrake 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.
