National Security Crisis and Presidents

Controversy in the actions taken by government during periods of an acknowledged threat to national security traditionally have been seen as a part of the political process when viewed by subsequent administrations and society. We are just now learning the facts about interrogation of terrorists captured by the United States. One thing is clear, there are some who are trying to gain political favor or demean political opponents by maliciously misrepresenting who was really involved and are quite wrongly questioning the motives of a former President to protect his country. There is a historical precedent of reflection and correction rather than criminalization that should apply. The attempt to criminalize the political process including the application of ex post facto selective prosecution of only political rivals is an unprecedented shock wave to the American tradition. Since the events of 2002 there have been elections, changes in federal law, and court rulings that cannot be considered relevant in application to judging the legal propriety of the decisions collectively made by the executive and legislative branches of the federal government and both political parties as regards interrogation of enemies of the United States in the year following the 9/11 attack. Following the 9/11/2001 attack on the United States as noted global intelligence expert, George Friedman, wrote recently, the lack of intelligence American officials had on the true terrorism threat lead to great fear among both the public and government officials. There was some evidence that a second round of attacks could occur including the use of some type of weapon of mass destruction. The success of the attack on New York and Washington demonstrated that a status quo reliance on the existing intelligence community was unacceptable. Again as Friedman writes the highest priority for the United States was to “collect intelligence information rapidly.” The United States has faced a similar situation before, following the attack on Pearl Harbor by Japan in 1941, the Democratic President so heralded today as the model for Obama, passed Executive Order 9066 which resulted in the dislocation of American citizens and legal residents without any due process and labeled them as enemies. The action was widely supported by Democrats including the California Attorney General, Earl Warren, who would later become the Chief Justice of the Supreme Court. Today, of course, it is widely accepted by all Americans that the actions Roosevelt took where unconstitutional and morally wrong. The injustices that occurred to American citizens who committed no crimes or any wrong doing were never prosecuted as a crime. Neither Roosevelt or anyone involved with this ugly part of American history has ever been substantially judged for this action. Historians look at this action as failure of the collective United States together and thus do not put the blame on the American leaders. Which was a greater wrong giving pain to terrorists or jailing American citizens? Compare this with the situation facing the Bush administration in 2001-2002. Just like Roosevelt, President Bush did not know what was coming next. There were minimal tools available for him to get information but in his custody was a known planner of the 9/11 attack. Was the pressure he felt any less severe or the responsibility any less than that faced by Roosevelt in 1942? Even assuming his actions were wrong should he be judged any differently than Roosevelt who history has given a unqualified pass? A Pew Research Study has continually looked at the attitude of Americans towards torture. During the period of 2004 to 2007 when many revelations were surfacing in the press about possible torture by the government of captured terrorists no more than 1/3 of those surveyed said that torture can never be justified to gain information to protect the United States. Certainly by 2007 most of the American public was aware that significant events that could be called torture had occurred to enemies of the U.S. in custody but still a majority of Americans, in fact, 2/3 of those polled still favored the practice. This was the reality in which the leaders of the American government were functioning. However, the release of a letter from the Attorney Generals’ Office to the Senate Intelligence Committee which declassifies some of the inner workings on the approach of the federal government to the torture issue reveals that knowledge of the actions clearly extended to Democratic leaders of Congress including Speaker Nancy Pelosi and Senator Diane Feinstein in 2002. One of the most emergent issues deals with the concept that leading Justice Department officials, John Yoo and Attorney General Gonzales, violated their legal responsibilities by supervising lawyers to write legal opinions which justified actions of torture. Those who making these charges cite as precedent the Nuremberg trials of Nazi Jurists following World War II. Of course these trials dealt with wrongful violations of life, liberty, and property of citizens by their own government. This is markedly different than the infliction of temporary pain without evidence of any lasting harm on a known enemy of the United States. Why was there no Nuremberg trial of American Democratic attorneys who supported Japanese internment? If the Justice Department attorneys were willfully breaking their sacred code of ethics than why is the American Bar Association not taking action against them. The clearly liberal and one would argue most expert authority on legal behavior of attorneys does not say anything until 2004 when they made a political statement asking for banning of torture. William H. Neukom, President, American Bar Association in an Op-Ed on the ABA website waited to call on Congress until August of 2007 to pass “new legislation”. This implies that they felt that the language of existing law regarding torture was inadequate and required new laws and very importantly does not imply that the incumbent justice department officials were wrongly interpreting or enforcing existing law outside the norm of accepted professional behavior. The American legal system has always held that an attorney who advocates for a particular opinion in good faith is implicitly doing so until a court opinion or change of law occurs. Once either of these events occur then the lawyer’s responsibility is to adapt his counsel to the new reality which is exactly what happened in the Justice Departments opinion. Those on the left would have the system of law in the United States go from one based on precedence and continual clarification by the legislative process to the archaic socialistic Napoleanic system of Europe. The reality is that the definitions of torture which currently exist were not established until the Military Commissions Act of 2006. In the course of American history there have been times when the American government and the public have been tested during a national crisis. We are not a perfect people or a perfect country and often times political figures have acted in a manner that reflects the will of the population. Transferring all the guilt of the injustice done to Japanese Americans during World War II to President Roosevelt would be wrong. He was acting in manner consistent with the majority of public opinion but gradually over time that opinion changed.This does not excuse or some may say forgive the grave injustice he created. Whether we like it or not the truth is that in times of national crisis more often than not our leaders have reacted in the way the public expected them. This is inherent in a democracy. The administration of President Bush just as Roosevelt was motivated to protect the United States and clearly acted in concert with the majority of public opinion. The gravity of the offense of President Roosevelt by any reasonable standard would be many times worse than that of President Bush if you believe Bush was wrong. I strongly suspect that evidence will be eventually released that indicates that at least one life, but more likely many more, was saved by the interrogations carried out. Now just as then the best course of action for America is to look ahead not back. Presidents are human beings who carry an immense responsibility most of us can never imagine. Leon Pannetta wrote in the Washington Monthly a year ago (this is probably the reason Senator Feinstein was unhappy with his appointment) that torture should never be used under any circumstances however now as CIA Director he has clouded his previous opinion and told the New York Times that in a “ticking bomb situation” he would seek “aggressive interrogation methods” approval from the President. This clearly tells us that now even Director Pannetta has a weight on his shoulders that citizen Pannetta could not have imagined. Panetta has said he would follow all laws in his duties (no doubt relying upon his legal counsel to determine those limits). As this is being written Taliban forces are creeping ever closer to taking control of the nuclear weapons arsenal of Pakistan. What will President Obama do if he captures a terrorist who “may” hold information that a former Pakistani nuclear weapon may be used against the United States? What would you do? What would the majority of Americans think the President’s duty will be? Should we sacrifice New York or Los Angeles for one terrorist?