Cliff May

Time’s Joe Klein, for example, giddily imagined “the Vice President pinched midstream on a fly-fishing trip to Norway — just as Augusto Pinochet, the Chilean dictator, was indicted in Spain and arrested in London for his crimes.” The New Yorker’s Jane Mayer wrote highly acclaimed book (which I reviewed for Commentary magazine), charging that the Bush administration had created “an American gulag,” made “torture the official law of the land in all but name,” used “KGB methods,” and subjected untold numbers of innocent Muslims to treatment “reminiscent of the Spanish Inquisition.” And does anyone remember the brouhaha that erupted in 2009 when it was revealed that the Bush administration had considered setting up “hit squads” to kill al-Qaeda operatives around the world?

President Bush tasked his Justice Department’s Office of Legal Counsel to study relevant domestic and international laws to determine which coercive interrogation techniques were permissible and which were not. The mainstream media derisively called these analyses “torture memos.”

It was on the basis of these legal opinions that, again, only about 100 detainees were subjected to sleep deprivation, stress positions, and similar techniques in an effort to elicit from them life-saving information about al-Qaeda’s plans and planning. “Waterboarding” was used on exactly three individuals: Khalid Sheikh Mohammad, the mastermind behind the 9/11 attacks, and two other senior al-Qaeda commanders. All had information vital to America’s national security. None was giving it up easily.

The Bush-administration memos were stamped secret. Here’s why: When you bring in someone like KSM, you don’t want him to know how far you can go. The more fearful he is of what awaits him, the more likely he’ll talk without the need for any harsh methods. By contrast, if he knows he faces only temporary discomfort, if he’s familiar with the interrogation techniques to be used and has been trained to resist them, the chances of getting him to cooperate are diminished. KSM was smart enough to figure out that the there was a time limit on waterboarding. “Pretty quickly, he recognized that within 10 seconds we would stop pouring water,” said Jose Rodriguez, who ran the CIA’s National Clandestine Service. “He started to count with his fingers, up to 10, just to let us know that the time was up.”

In 2009, President Obama declared the practices of the previous administration abhorrent, prohibited future coercive interrogations — not just waterboarding — and ordered the release of the Bush DOJ memos. Since then, Obama has used drones to kill terrorists with a frequency I doubt his predecessor ever imagined — more than 2,500 individuals eliminated in Pakistan and Yemen according to Bill Roggio, a senior fellow at the Foundation for Defense of Democracies who carefully tracks drone operations.

Obama, too, asked the Justice Department to provide legal opinions. Let’s call them the “targeted-killing memos.” These, too, were classified. The grounds for secrecy in this regard strike me as shaky: American citizens have a right to know their government’s legal reasoning on matters of life and death, so long as vital national-security interests are not compromised.

In response to a demand from senators of both parties, the White House last week announced that it will release the targeted-killing memos to the House and Senate Intelligence committees. Thanks to the leak of a Justice Department “white paper” to NBC News’s Michael Isikoff, however, we have some insight into their content. John Yoo, a Bush Justice Department official and one of the principle authors of the “torture memos,” argues that his successors err by attempting to impose a law-enforcement or criminal-justice template on what should be an exercise of war powers. “The administration has replaced the clarity of the rules of war with the vague legal balancing tests that govern policemen on the beat,” Yoo wrote in the Wall Street Journal.

According to the white paper, Obama’s lawyers believe that lethal force can be used only if a terrorist attack is “imminent” and if capture of the targeted individual is “infeasible.” The first term is defined with astonishing elastically. And has it really been infeasible to capture any of the terrorists Obama has used drones to kill? The president has made clear that he does not want to add to the detainee population at Guantanamo. Could that disinclination be playing a role in his kill-vs.-capture decisions? If so, would that mean that the administration, based on its own reading of the law, is killing people illegally — not to mention losing the opportunity for obtaining intelligence that could be used to defend American lives and property?

These are only some of the issues that would benefit from a more vigorous debate. For the Left and the Right to find common ground will not be easy. But maybe the two sides could agree on this: The conflicts of the 21st century are different from those of the past — they involve different enemies, different battlefields, and different technologies. As former terrorism prosecutor and legal expert Andrew C. McCarthy has long argued, “a new, hybrid legal framework for the modern realities of international terrorism” is needed if we are to fight effectively, lawfully, and morally. Creating such a structure is the responsibility of the White House and the Congress. Perhaps it’s time they got started.


Cliff May

Clifford D. May is the President of the Foundation for the Defense of Democracies.