The politics of terrorism and “torture memos”

By Peter Feaver

I am not a lawyer, not even a bad lawyer, so I am not competent to judge one way or the other on the legal reasoning in Philip Zelikow’s post. And, since, unlike Philip, I did not work on the issue inside, I am not privy to all that he knows about the matter. His legal reasoning strikes me as plausible, and I certainly agree with him that the legal issue is just one aspect of the matter.  Philip usefully embeds the legal framework within a larger ethical framework. We also need to recognize that the ethical framework is part of a political framework.

This political framework has been emphasized explicitly and repeatedly by President Obama’s own national security team. Dennis Blair and Leon Panetta argued strenuously against Obama’s decision to release the memos, in part on the grounds that it would fuel a politicized witch-hunt that would hurt national security. And, ironically, Obama’s political team has implicitly acknowledged this framework, but in a back-handed way: in the quintessentially political way they decided to release only portions of the "torture memo" corpus. Thus, the Obama team declassified the memos that documented what was done and the legal rationales offered, but not the memos that documented what information, if any, the interrogations produced. Even the memos from Obama’s own advisors were doctored so as to exclude information that might have been deemed exculpatory for President Bush.

Acknowledging the political framework does not preclude independent legal or ethical judgments. Philip’s post is proof that a reasonable lawyer, privy to all of the information, could decide that the Bush team’s legal reasoning was flawed. And it is likewise proof that an insider, privy to all of the information, could decide that the interrogation policy could fail the ethical test. But the political test is, in some ways, a harder one because it is a shifting one. 

Had the torture debate been fully engaged when the Bush team was making the decisions it made in 2001-02, I think it is plausible that the political process would have produced a consensus that would have been far more sympathetic to the Bush position than the present day consensus appears to be. At a minimum, it would have made it impossible for Congressional Democrats to claim, as they implausibly do now, that despite all the briefings they received they just can’t remember coming down one way or the other on the issue.

The Bush team erred by not grounding the policy more firmly in the bedrock of the political process that the Framers identified for contentious issues — namely, in involving Congress and the public — and, instead, by relying on the penumbra of the Commander-in-chief clause. We non-lawyers have learned one thing from the abortion debate: The penumbra is a lousy place to park contentious issues.

I predict that, for better or worse, the political framework will be the decisive one going forward. At this point, debates about the legal or ethical arguments are probably impossibly entangled with political questions. And, should the larger worm turn — should the terrorists succeed in launching another attack on the United States — then I would not be surprised to see the political debate shift dramatically again.