Legal Affairs June 2007

How Not to Make Terrorism Policy

Former State Department official Philip Zelikow has opened a window into how the Bush administration's antiterrorism policy-making process went wrong.

The years of revelations about White House pressure on the Justice Department to concoct far-fetched legal rationales for physically tormenting terrorism suspects, for wiretapping without warrants, and for implementing other Bush policies has obscured a still more fundamental flaw in the Bush policy-making process.

That flaw was the almost exclusive focus on what could be done to captives as a matter of law—as interpreted by aggressive advocates of virtually unlimited presidential war powers—rather than on what should be done as a matter of morality and policy, taking account of careful cost-benefit analysis and past experience.

The result was that while approving in 2002 and 2003 the use of "extreme physical pressure on captives" during interrogations, the CIA and the White House not only disregarded the lessons of history but also engaged in "little substantive policy analysis or interagency consideration."

So said Philip Zelikow, a lawyer who was a senior adviser to Secretary of State Condoleezza Rice from February 2005 until December, in a probing lecture for the Houston Journal of International Law on April 26.

Instead of grappling with the large body of evidence about what has worked best in the past, including the experience of such terror-torn U.S. allies as Israel and the United Kingdom, the administration, Zelikow asserted, pushed interrogators simply to "do everything you can [to break captives], so long as it is not punishable as a crime under American law."

These interrogation policies have been and still are being softened, in a partly secret process. But it is unclear whether President Bush and other top officials have learned that wise policy-making involves more than pushing interrogators to use every harsh method permitted by the Justice Department's view of the law.

As The New York Times reported on May 30, Zelikow's lecture made clear the brutality of the still-classified methods that were approved by the White House, the CIA, and the Defense Department—and his own disapproval of those policies:

"My own view is that the cool, carefully considered, methodical, prolonged, and repeated subjection of captives to physical torment, and the accompanying psychological terror, is immoral. I offer no opinion as to whether such conduct is a federal crime; merely that it is immoral."

The point, Zelikow continued, was "not that others should adopt my morality" but that the "substitution of detailed legal formulations for detailed moral ones is a deflection of responsibility." He added, "It is not evident that those who developed such [harsh] methods, mainly at the CIA, drew on the available evidence and applied adequate professional analysis to consider it." Though former CIA officials dispute this, the CIA had little experience in questioning captives before 9/11, and the White House brushed aside the reservations of many officials at the FBI and in the military, which had far more experience.

Zelikow, who was the executive director of the 9/11 commission, is hardly the first to point out that the administration approved extremely harsh methods even as Bush purported to renounce torture. But he has opened a window into how the Bush policy-making process went wrong—and how it could go wrong again if it is still driven by expansive legal claims about war powers rather than by morality and policy analysis.

As Andrew Sullivan showed in a May 29 post on his Atlantic Online blog, the post-9/11 interrogation policies approved by the White House were strikingly similar to the "sharpened interrogations" officially approved by the Nazi Gestapo.

Like the Gestapo's harshest tactics, the Bush methods were to be used only if necessary to extract information unobtainable by gentler inquiries. Like the Gestapo's policy, the Bush policy included darkened cells, sleep deprivation, and stress positions. And the Bush policy included some methods—such as "waterboarding" (simulated drowning) and hypothermia—that the Gestapo initially banned.

My point is not to liken Bush to Adolf Hitler. It is that the Bush White House should not have approved Gestapo-like interrogation techniques with no better justification than a legal opinion from Justice Department political appointees.

Presented by

Stuart Taylor Jr., a contributing editor for National Journal, is teaching a course on the news media and the law at Stanford Law School.

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