Hamilton, Madison, and Jay

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Location: Mesa, Arizona, United States

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Wednesday, February 24, 2010

Giving gifts, and getting no thanks for the effort

See that image above? Look familiar? That's Uncle Sam fighting our enemies under Barry's "leadership." We're figthing with one hand tied behind our back, with true justice out of sight, and in some cases we're fighting one another as we continue this war. John Yoo pens an editorial today explaining the gift he handed the current administration when it comes to prosecuting this war:

Barack Obama may not realize it, but I may have just helped save his presidency. How? By winning a drawn-out fight to protect his powers as commander in chief to wage war and keep Americans safe.

He sure didn't make it easy. When Mr. Obama took office a year ago, receiving help from one of the lawyers involved in the development of George W. Bush's counterterrorism policies was the furthest thing from his mind. Having won a great electoral victory, the new president promised a quick about-face. He rejected "as false the choice between our safety and our ideals" and moved to restore the law-enforcement system as the first line of defense against a hardened enemy devoted to killing Americans.

In office only one day, Mr. Obama ordered the shuttering of the detention facility at Guantanamo Bay, followed later by the announcement that he would bring terrorists to an Illinois prison. He terminated the Central Intelligence Agency's ability to use "enhanced interrogations techniques" to question al Qaeda operatives. He stayed the military trial, approved by Congress, of al Qaeda leaders. He ultimately decided to transfer Khalid Sheikh Mohammed, the planner of the 9/11 attacks, to a civilian court in New York City, and automatically treated Umar Farouk Abdulmutallab, who tried to blow up a Detroit-bound airliner on Christmas Day, as a criminal suspect (not an illegal enemy combatant). Nothing better could have symbolized the new president's determination to take us back to a Sept. 10, 2001, approach to terrorism.

Part of Mr. Obama's plan included hounding those who developed, approved or carried out Bush policies, despite the enormous pressures of time and circumstance in the months immediately after the September 11 attacks. Although career prosecutors had previously reviewed the evidence and determined that no charges are warranted, last year Attorney General Eric Holder appointed a new prosecutor to re-investigate the CIA's detention and interrogation of al Qaeda leaders.

In my case, he let loose the ethics investigators of the Justice Department's Office of Professional Responsibility (OPR) to smear my reputation and that of Jay Bybee, who now sits as a federal judge on the court of appeals in San Francisco. Our crime? While serving in the Justice Department's Office of Legal Counsel in the weeks and months after 9/11, we answered in the form of memoranda extremely difficult questions from the leaders of the CIA, the National Security Council and the White House on when interrogation methods crossed the line into prohibited acts of torture.

Rank bias and sheer incompetence infused OPR's investigation. OPR attorneys, for example, omitted a number of precedents that squarely supported the approach in the memoranda and undermined OPR's preferred outcome. They declared that no Americans have a right of self-defense against a criminal prosecution, not even when they or their government agents attempt to stop terrorist attacks on the United States. OPR claimed that Congress enjoyed full authority over wartime strategy and tactics, despite decades of Justice Department opinions and practice defending the president's commander-in-chief power. They accused us of violating ethical standards without ever defining them. They concocted bizarre conspiracy theories about which they never asked us, and for which they had no evidence, even though we both patiently—and with no legal obligation to do so—sat through days of questioning.

OPR's investigation was so biased, so flawed, and so beneath the Justice Department's own standards that last week the department's ranking civil servant and senior ethicist, David Margolis, completely rejected its recommendations.

Attorney General Holder could have stopped this sorry mess earlier, just as his predecessor had tried to do. OPR slow-rolled Attorney General Michael Mukasey by refusing to deliver a draft of its report until the 2008 Christmas and New Year holidays. OPR informed Mr. Mukasey of its intention to release the report on Jan. 12, 2009, without giving me or Judge Bybee the chance to see it—as was our right and as we'd been promised.

Mr. Mukasey and Deputy Attorney General Mark Filip found so many errors in the report that they told OPR that the entire enterprise should be abandoned. OPR decided to run out the clock and push the investigation into the lap of the Obama administration. It would have been easy for Mr. Holder to concur with his predecessors—in fact, it was critical that he do so to preserve the Justice Department's impartiality. Instead the new attorney general let OPR's investigators run wild. Only Mr. Margolis's rejection of the OPR report last week forced the Obama administration to drop its ethics charges against Bush legal advisers.

Why bother fighting off an administration hell-bent on finding scapegoats for its policy disagreements with the last president? I could have easily decided to hide out, as others have. Instead, I wrote numerous articles (several published in this newspaper) and three books explaining and defending presidential control of national security policy. I gave dozens of speeches and media appearances, where I confronted critics of the administration's terrorism policies. And, most importantly, I was lucky to receive the outstanding legal counsel of Miguel Estrada, one of the nation's finest defense attorneys, to attack head-on and without reservation, each and every one of OPR's mistakes, misdeeds and acts of malfeasance.

I did not do this to win any popularity contests, least of all those held in the faculty lounge. I did it to help our president—President Obama, not Bush. Mr. Obama is fighting three wars simultaneously in Iraq, Afghanistan, and against al Qaeda. He will call upon the men and women serving under his command to make choices as hard as the ones we faced. They cannot meet those challenges with clear minds if they believe that a bevy of prosecutors, congressional committees and media critics await them when they return from the battlefield.

This is no idle worry. In 2005, a Navy Seal team dropped into Afghanistan encountered goat herders who clearly intended to inform the Taliban of their whereabouts. The team leader ordered them released, against his better military judgment, because of his worries about the media and political attacks that would follow.

In less than an hour, more than 80 Taliban fighters attacked and killed all but one member of the Seal team and 16 Americans on a helicopter rescue mission. If a president cannot, or will not, protect the men and women who fight our nation's wars, they will follow the same risk-averse attitudes that invited the 9/11 attacks in the first place. [Publius II -- The story of Marcus Luttrell, and the men of SEAL Team Ten is recounted in Mr. Luttrell's excellent book "Lone Survivor: The Eyewitness Account of Operation Redwing and the Lost Heroes of SEAL Team 10." This is the incident Mr. Yoo is referencing.]

Without a vigorous commander-in-chief power at his disposal, Mr. Obama will struggle to win any of these victories. But that is where OPR, playing a junior varsity CIA, wanted to lead us. Ending the Justice Department's ethics witch hunt not only brought an unjust persecution to an end, but it protects the president's constitutional ability to fight the enemies that threaten our nation today.

This is a problem we've been harping on for weeks. Since the release of Marc Thiessen's outstanding book "Courting Disaster" my wife and I done three columns on this subject at Common Conservative. Readers have wondered why we are focusing so much time, effort, and energy into this argument. Forgive us, but we take this issue seriously, and we're not too fond of the Left attacking the Bush administration for the efforts they put forward to protect this nation that were legal. As Mr. Thiessen and Mr. Yoo point out, these methods were thoroughly vetted, and approved by numerous attorneys in the Justice Department. Justice signed off that what the CIA interrogators did wasn't torture. Barry's Justice Department has concurred with that in clearing Mr. Yoo and Mr. Bybee of any wrongdoing or breach of legal ethics.

Barry was given a great deal of tools to use in this war. Anyone seen the movie "Armageddon" with Bruce Willis? Remember the scene where he and his crew are pouring over the Armadillo vehicle that they'll use on the asteroid, tearing pieces from it, and wondering why there's so much junk on the thing? That's how Barry treated these tools. He's stripping them off the policies, and tossing them aside like unneeded crap. In fact, these tools are absolutely necessary in this war.

We're not dealing with bank robbers or petty crooks. We're dealing with men who have murderous intent, and a lust to destroy this nation. They're not going to cooperate, willingly, in many cases, and in the case of high-ranking al Qaeda people, the chances of them cooperating at all are slim and none. These methods were established to break those particular terrorists. Not everyone undergoes enhanced interrogation techniques, and to date only three people -- Khalid Sheikh Mohammed, Abu Zubaydah, and Abd al-Rahim al-Nashiri -- have ever endured waterboarding, which is the most extreme application of these techniques. (Again, I remind readers that Zubaydah gave the CIA the golden revelation that al Qaeda members placed under interrogation, be it enhanced or lesser methods, will break eventually, and it lifts a moral burden from them. In fact, he thanked his interrogators and told them "You must do this for all the brothers." [Page 90 of "Courting Disaster."])

The simple fact is that these techniques worked, and did so effectively. Mr. Yoo, Mr. Bybee, and others at Justice did their jobs in vetting these methods. They had numerous questions and raised eyebrows about what was being posited, and they didn't pull any punches with the CIA or the DoD. Their job was to ensure that what was being offered in terms of interrogation techniques wasn't torture. They examined the methods thoroughly, and signed off that none of them constituted torture. For the Obama administration to order and pursue this witch-hunt was not only wrong, but it showed just how petty its thinking was on this issue. They were given tools to best prosecute this war, and they decided to grind a political ax to appease their liberal base.

That isn't how any president should act. If there was a real crime committed (a la Abu Ghraib) then those responsible should be held accountable (and in the case of Abu Ghraib, those soldiers were.) But there are repercussions in witch-hunts, and it comes in the form of professionals that won't do their job to the best of their ability out of concern that they'll become the target of a political lynch mob.

Publius II


Blogger Cynthia P. said...

Yoo is a traitor to the rule of law. He should be indicted and prosecuted as a war criminal for disgracing the United States and endangering the nation.

February 25, 2010 at 12:10 AM  
Blogger Syd And Vaughn said...


Nice to see that you and your ilk still think this despite the facft that Obama's Justice Dept. has cleared him and James Bybee of any wrongdoing. I'm guessing you also think President Bush, Vice President Cheney, and the rest of his administration are all war criminals, too?

Do the world a favor -- READ more, and SPEAK less. Those that share your opinion continue to show this nation that you guys really don't have a clue.

Publius II

March 2, 2010 at 10:33 AM  

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