I’ve just finished reading The Dark Side, by Jane Mayer, which I’ve blogged about in the past, and none too soon. Just as the Obama Administration released so many of the “torture” memos from the Justice Department’s Office of Legal Counsel (OLC) and on the back of an interesting article in the New York Times about the trouble being had by some of the lawyers associated with the memos.
My initial reaction to those who wrote the memos was as a historian: do these guys really think they were going to get away with this? Did John Yoo and David Addington not think that one day they were going to face repercussions for breaking the law? Now Addington can’t find a job, Yoo is being sued and is under fire, Alberto Gonzales has faced similar employment problems — not to mention that a significant portion of Americans (and people all over the world!) think they broke the law and sullied our justice system. Did they really not understand that when the Bush Administration ended so too would their immunity?
I’m of a divided mindset in answering those questions. First of all, it is extremely clear that David Addington believes in the unitary power of the executive; his opinion about international law, about treaties, even about Congress, is extreme. I don’t think Yoo, and a handful of others, necessarily disagree. Mayer goes to great lengths to seek out their background and their influences, and concludes that the men who helped to draft the early OLC memos believe, like Cheney, very strongly in the president having absolute authority to do as he sees fit, particularly in a time of national crisis (like in the wake of September 11th). From that perspective it is possible to believe that Addington and Yoo don’t care what namby-pamby liberals think about their opinions — they will be vindicated in the long run, whatever form that might eventually take.
This correlates nicely I think with a question Cheney was asked during one of his exit interviews. It was about executive power and he said something like, “I think Obama will thank us for some of the power we helped to bring to the office of the President.” Which is to say that Cheney believes in the power of the president in the most Machiavellian way; who cares who happens to be president at any particular time (because he couldn’t possibly have believed a Republican would be president for ever more). In the same way he (and Addington, Yoo, and others) believe that the Geneva Conventions are irrelevant, and the like, no matter who or what the situation is.
I suppose the other argument could be that Yoo was doing what he was told in a scary time of crisis for the country. That he was an eager young fellow who wanted to please the President and the Vice President. Sure. But that can only go so far. A great many other lawyers resigned from the Bush Administration in protest. Jack Goldsmith and others were literally forced out of the Justice Department for not agreeing with Addington on these matters. If you don”t believe in what you were doing, grow a pair and get out. I really don’t believe for one second that Yoo didn’t know what he was doing. They guy deserves the fate handed to him.
I also think it’s ridiculous to let the Bush administration off because it was a moment of crisis. We’ve no way of knowing how Clinton or Obama would have acted in the wake of September 11th, but I think we can safely assume that they would not have authorized the use of torture on detainees, if, torture was found to not have been effective — that to me is the most damning indictment of the Bush policies. Torture did not produce effective results. Bush and Cheney kept saying they were getting good intelligence out of detainees who were tortured, but they weren’t! They were getting intelligence from other sources, they were in fact getting false confessions. I could excuse some of the missteps on national security in the wake of a terrorist attack if the tactics were shown to have been producing results. But they weren’t. And that ultimately is the rub. They undermined our authority in the world, they gave countries that do torture, like Egypt and Syria, a reason to think they were on the right track, they encouraged our enemies, the produced bad intelligence, and they were illegal! How does it get worse than that?
They were bad policies that were implemented because Dick Cheney wanted them implemented. Case closed.
At the end of the day, the legal advice to which Bush and Cheney (who were not lawyers) listened, came from lawyers who came from the extreme right wing of the Republican Party. People with equally crazy views on the Democratic side simply do not get jobs in Democratic administrations. David Addington’s position on presidential power is only comparable to a left-leaning lawyer that believes there should be no president. That Congress can make all of the decisions. People who feel we should abolish the American presidency lest it become TOO powerful aren’t given the time of day within respectable liberal legal establishments; or at the very least they don’t become counsel to the Vice President or top lawyers in the OLC. Not to mention that the VP’s counsel or OLC lawyers shouldn’t be making national security policy. They were calling all of the shots at a time when people with years of experience in anti-terrorism and interrogation should have been in charge. Not only were Addington and company acting unconstitutionally, they were superceding channels of authority. Addington literally red-penned anything he didn’t like, whether it was within his authority to change a document or not. That’s ludicrous!
These guys deserve any repercussions they face. As far as I’m concerned they should all go to jail.