Wednesday, May 30, 2007

Exec. Director of 9/11 Commission takes aim at Bush Administration war on terror policy, and finds lawyers to blame

This just in from History News Network:

Philip Zelikow, the executive director of the 9/11 Commission and former aide to Condoleezza Rice, argues in an important article just posted on the History News Network that enhanced interrogation methods are immoral. He contends that the Bush administration took a legalistic approach to the war on terrorism that led policy makers to ask the wrong question: "In other words, instead of asking: What can we do?, [policy makers should have started] by asking: What should we do? Just this difference, changing "can or cannot" to "should or should not" changes the framework of debate, changes the evidence and reasoning you use, and changes the role that lawyers should play in the policy process."

Mr. Zelikow, White Burkett Miller Professor of History, University of Virginia, served as executive director of the 9/11 Commission and later as a counselor to Secretary of State Condoleezza Rice. The article was delivered as the Annual Lecture, Houston Journal of International Law, on April 26, 2007.

He argues, in part, that after initial decisions were made about how to react to the 9/11 attacks,
Operating under broad legal parameters set shortly after the 9/11 attacks, a series of policy choices were made, especially in 2002 and 2003, about how to conduct the armed conflict. Especially in the case of CIA, it appears from publicly available sources that, responding to some informal guidance from the White House, the Agency designed, developed, and implemented various techniques and capabilities with little substantive policy analysis or interagenency consideration.

Lawyers from other agencies and departments, as well as the White House, were apparently assembled to consider and approve the legality of the proposed methods as, or after, the critical policy choices were being or had already been made. The legal defense then became the public face of the policies. The debate became framed as a legal debate. Legal opinions became policy guides. Opinions to sustain the CIA program had an indirect effect on the guidelines developed for DOD activities as well, since DOD did not wish to develop positions inconsistent with those already in place.

Able bureaucratic players in the Bush administration were able to use legal opinions to provide formal policy cover for Agency operations and deal with internal dissent and unease (‘the Attorney General has said it is legal’). Above all, using the legal defenses as the public face of the issue moved the terrain of debate to the President’s legal powers in wartime – strong ground indeed. Also interesting is that opponents of the policies found this battleground congenial too. Habits of thinking in legal terms were reinforced. Constitutional and civil liberties lawyers eagerly stepped forward, 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.

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