By William Fisher
For me, David Cole has long been the gold standard for his exquisite knowledge of our Constitution and his relentless dedication to its values.
So, when I read that the Georgetown University law school prof had a new book out, I quickly got my copy. I wasn’t disappointed, and you won’t be either.
Cole’s new book is two things: First, a collection of six of the previously-published “torture memos” written between 2002 and 2006 by lawyers at the Bush-era Office of Legal Counsel. Yes, the ones that used law to justify the “enhanced interrogation techniques” now so well known. And, second, Cole’s commentary on this distortion of the law and its implications for our society.
This book is a must-read for the latter alone. In chillingly uncomplicated prose, Cole argues that these memos are the real “smoking gun” in the torture controversy because they demonstrate that the culpability lies not merely with the CIA interrogators who may have exceeded Justice Department legal guidance, but with the legal guidance itself – the “incredible arguments advanced to give them a green light.”
As we all now know, that sloppy and craven legal analysis contorted the law to authorize clearly illegal CIA tactics. And it continued to do so in secret even after the Bush Administration sought to assure the public that it was abiding by the very laws it was breaking.
Yet, at about the same time as the torture memos were being published – and the nation prepared to mark the eighth anniversary of the 9/11 attacks –those who ordered and wrote these memos were busily defending themselves.
Or, more accurately perhaps, using the straw-man of an investigation of the CIA to deflect attention away from their conduct.
Exhibit A is John Yoo, now a law professor at the University of California's law school, who was the Bush Administration’s go-to guy for legal justifications. In a recent op-ed, Yoo warns us about the dire consequences that await the nation as the Justice Department pursues its investigation of CIA operatives.
Yoo invokes Jimmy Carter, who he describes as “a young fresh face” campaigning for the presidency by attacking the CIA: "Our government should justify the character and moral principles of the American people, and our foreign policy should not short-circuit that for temporary advantage," Carter says. He promises to never "do anything as president that would be a contravention of the moral and ethical standards that I would exemplify in my own life as an individual."
“He wins the election and begins to decimate the intelligence agencies,” Yoo writes, and then recalls, “The Carter administration's national-security record should not serve as a model for any president. But unless Obama changes course, he risks duplicating the intelligence disasters of the '70s, and endangering the nation.”
Yoo reminds us that several of the detainees the CIA tortured “were directly involved with the planning and execution of the attacks on Sept. 11, 2001. They were captured at a time when our government feared a second wave of attacks.”
“Our nation's leaders made the difficult decision to use coercive interrogation methods to learn as quickly as possible what these hardened al-Qaida operatives knew,” he writes, adding:
“As one of many government lawyers who worked on these counterterrorism programs, I can attest to the terrible pressure of time and events in the months after the Sept. 11 attacks. Knowledgeable officials expected that al-Qaida would try again — soon — and in a more devastating fashion.”
And, then, in true Dick Cheney mode, he admonishes: “As we pause to remember the Sept. 11 attacks eight years later, fair-minded people should take heart that there has been no follow-up attack in the United States. To the contrary, several plots have been foiled and the terrorists are on the run. This was not the result of luck —it is because of the hard work of members of the military and our intelligence agencies.”
“Their reward,” he laments, “is an open-ended investigation, and in some instances the disturbing reopening of cases closed by career prosecutors.”
“Even the most fervent antiwar activists should welcome an effective intelligence service. If the CIA had accurately judged Iraq's lack of WMD in 2003, the war might not have occurred. If the CIA had decapitated al-Qaida's leadership in the 1990s (the plans were vetoed by President Bill Clinton), the 9/11 attacks may have been headed off and the invasion of Afghanistan rendered unnecessary,” he writes.
“Persecuting the CIA risks another (Pearl Harbor) or major intelligence failure,” Yoo concludes.
But, hold on now, this is not about an investigation of the CIA. That’s John Yoo’s smoke-screen. This is about a bunch of highly-educated but ideologically-challenged lawyers who exploited our post-9/11 hysteria to try to rewrite the Constitution.
Paradoxically, it is precisely during times of such hysteria that we most urgently need the Constitution and its principles of fairness and equity. Resisting – not caving to -- the temptation to compromise those principles would have been the benchmark for discovering those who truly believe.
I first came across David Cole several years ago, when he was doing a lot of advocating on behalf of donors to Muslim-oriented charities whose organizations were shut down by our Treasury Department with virtually no legal due process on vaguely-defined suspicions that they were supporting terrorist causes.
Cole likened that situation to the guilt-by-association tactics of the McCarthy era. He never weighed in on the guilt or innocence of those charities. But he was downright bulldoggish in his insistence that this was precisely the time we should apply the rule of law – not the law of the Wild, Wild, West soundbite. A position the Obama Administration has now also embraced.
For me, that defines a lawyer’s lawyer. For our country, it defines the future of our Constitution and the sacred legal structures that keep us from flying apart.
John Yoo is far from any lawyer’s lawyer.
(“The Torture Memos: Rationalizing the Unthinkable”, by David Cole, Published by The New Press, September 8, 2009.)