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.
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This is also part of Zelikow's point. Now a history professor at the University of Virginia, he stressed in his lecture that the high-level Bush administration approval of methods involving prolonged physical torment was unprecedented in American history, even during World War II, which took hundreds of thousands of American lives. Nor did World War II leaders such as Henry Stimson, George Marshall, and Winston Churchill "rely on lawyers to tell them what was right and wrong," Zelikow said.

The Bush administration's emphasis on legal justifications for extreme interrogation methods suited the purposes of a president and vice president who were determined to set aside the moral reservations that had restrained their predecessors. But legal arguments have also tended to predominate over moral and policy arguments in the rhetoric of human-rights groups and other administration critics.

This focus on competing legal absolutes—in an area of law so murky as to leave room for wildly divergent views—has also worked to polarize the debate over questioning captives. "Constitutional and civil-liberties lawyers eagerly stepped forward," Zelikow explained, "and they could do so without having to soil their hands by confronting the concrete policy necessities at hand. Thus the public debate was decisively framed—and deformed."

The central role of the lawyers in framing interrogation policy has been all the odder, given that law schools teach their students almost nothing about interrogation techniques, police work, moral reasoning, or military history. And John Yoo, the 30-something legal scholar who took the lead at the Justice Department in approving harsh methods in 2002 and 2003, had little relevant real-world experience of any kind.

Yoo's legal analysis has attracted caustic criticism from a wide range of experts. Federal appellate Judge Richard Posner —a prolific writer on terrorism who argues for substantial, hard-headed curbs on civil liberties—has said, for one, that Yoo's "extravagant interpretation of presidential authority" could justify "dictatorial control" in the mode of "a Hitler or a Stalin."

Zelikow leaves the legal arguments to others. But while calling Yoo "a brilliant scholar," he stresses that the White House did not ask Yoo and other administration lawyers either to make moral judgments or to assess the expert arguments and evidence that physical torment is rarely the best way to get captives to talk and that using it would forfeit the moral and diplomatic high ground in a war of ideas.

Indeed, it is unclear whether any White House official with a key role in authorizing harsh interrogation methods has ever made a careful study of the literature on what does and does not work in questioning captives or of the historical precedents.

A study to which the White House should pay close attention is well under way. A panel of experts commissioned by the advisory Intelligence Science Board suggested in "Educing Information," a 325-page initial public report completed in December, that the harsh methods Bush authorized after 9/11 are unreliable and that CIA interrogators are ill-trained in subtler techniques. Meanwhile, the military's successful use of such subtle techniques to crack the late Abu Musab al-Zarqawi's inner circle in Iraq is chronicled in riveting detail by Mark Bowden in the May issue of The Atlantic.

The administration has greatly revised its interrogation policies since 2004—especially in the military, in a new Army field manual barring use of physical torment in interrogations. The changes were forced by a combination of a December 2004 Justice Department opinion rejecting some of Yoo's conclusions, the outcry over the Abu Ghraib torture scandal, the December 2005 McCain amendment curbing abusive treatment of detainees, and recent Supreme Court decisions.

The CIA is also bound by the new Justice Department opinion and the McCain amendment. But these restrictions are so vague that they could still be interpreted to give the CIA latitude to use some, if not all, of the harshest methods it used in the wake of the 9/11 attacks.

Meanwhile, the most powerful advocates of harsh methods—Vice President Cheney, his chief of staff David Addington, and Attorney General Alberto Gonzales—remain in place. John Yoo, now teaching law at the University of California's Boalt Hall, has publicly dismissed the December 2004 Justice opinion as an "exercise in political image-making"; he points to a footnote asserting that all previously approved methods were still legal. And in a recent debate, Republican presidential candidates including Mitt Romney and Rudy Giuliani (but not John McCain) drew applause by vying to be tougher than the next guy in coercing information from captured terrorists.

So it remains to be seen whether the move away from use of physical torment will last. Indeed, in any future case of extreme danger, any president would probably want harsh methods used. But never again, as Zelikow says, should a legal green light be a trump card in the policy-making process.

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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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