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.

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.

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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