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THE OBAMA WATCH – WHEN TO BEGIN
WORRYING...
The Dual Nature of
the Obama Public Persona
Two important personas inhabit one man, the 44th
President of the
There is the Obama of
the Grand Gesture and the Obama the Cautious and Thoughtful.
Here is the key: Behind every Grand Gesture, look
carefully. There almost always is a
measure of reservation and room to maneuver.
Where national security issues are involved we can hope and pray that
this is – and will remain – the case. I’ll return to this theme in a moment...
The Oath of Office -
Again
Justice Roberts and President Obama met Wednesday in the White House and redid the presidential oath of office. If you were paying attention Tuesday, you might have noted some hesitation during the exchange between SCOTUS Chief and POTUS-Elect. Neither Harvard Law graduate brought a cue card to the party. And the oath of office was not recited exactly as the constitution provides. Although the effective meaning of the presidential oath was the same, Mr. Barak’s and his advisors concluded that a second take was appropriate and prudent.
Here is the Oath as it was given by most prior presidents:
I do solemnly swear
that I will faithfully execute the Office of the President of the United
States, and will to the best of my Ability, preserve, protect and defend the
Constitution of the United States, so help me God.
Tuesday, the word “faithfully” showed up a little later in the sentence, hence the redo.
That is pretty much
the last
Defeating the Terror
Network:
Also on his first day at work, the new president signed an
executive order that will close the
I must note: None of the
In a separate presidential order, a large set of active federal terrorist prosecutions were stayed, including that against September 11’s architect, Khalid Sheikh Mohammed, and three of his co-defendants – the same group who recently stated they wanted to plead guilty. These and the other Guantanamo cases had been proceeding in special tribunals established by congress after a divided supreme court had invalidated the Bush administration’s decision to proceed with military court proceedings, relying on the World War II practice of the FDR administration.
The current congressionally-authorized prosecution scheme
will be reviewed by the new administration over the next 120 days or so, during
which delay one hopes that the terrorist will not be free to go. ...And then?
I don’t have a clue what Mr. Obama intends to do next.
I wonder– for example – whether yesterday’s steps were intended to be politically symbolic, a Grand Gesture to the anti-Bush left (“See- I promised change. Here it is on Day One.”). If so, they will be followed later by a ‘new” but functionally equivalent system of incarceration and prosecution.
Maybe.
But we are also entitled to worry whether we now are going to suffer through a substantial weakening of the war against the terrorist forces.
The naïve introduction
of lawyers and elaborate procedural rules can swiftly cripple the defense
against terror.
I am an expert criminal defense attorney, but I am also a concerned patriot. I can promise you that the last thing Americans want to see is the specter of a legal defense team for someone like Khalid Sheikh Mohammed showing up in a traditional courtroom armed all of the same tools, protections and legal maneuvering room that the generous American courts would give, say, a contemporary O. J. Simpson.
Minimal due process is sufficient for terror cases against foreign combatants. Under battlefield conditions and in terror enclaves overseas, there should no exclusionary rule for excessive force; no throwing out a case because the soldiers did not get a warrant; and no technical objections to reasonably reliable incriminating evidence. We are entitled to expect good faith efforts in the prosecution and adjudication, but not perfection. The proceedings need to be – and currently are - aimed at getting expeditiously at the truth of the matter, using common sense rules appropriate to battlefield conditions abroad where many witnesses are no longer available and reliable hearsay must be admitted when necessary.
FIRING JACK BAUER
I am disappointed to report that our new president appears to have ruled out tough interrogation techniques for terrorists who have information that could save lives. What do I mean by tough? Ask Jack Bauer, the fictional hero of 24 hours, the iconic series that legitimized in the fictional President Palmer, the notion of a strong and wise black president.
Seriously, we don’t have to descend to the horrors of a Torquemada (of Spanish Inquisition infamy) to prevent an American Hiroshima. But there are occasional extreme cases where thousands of American lives are at stake and a single interrogation of a key terrorist might actually stop the carnage.
One thing lies at the heart of the national security / homeland security effort to keep us safe from another 911 horror: timely actionable intelligence leading to timely intelligent action.
At the heart of intelligence, sound analysis is founded on high tech. surveillance, old fashioned spy-craft and interrogation.
Interrogation is critically important in the war against terror, and – make no mistake here – we’re talking about involuntary interrogation. In all this, the key word in timely.
Want an example of untimely intelligence? Sift through the ashes of the WTC while reading the 911 Report.
Tardy intelligence is a failure assessment.
At the moment we are suffering from PAGDS
(Post Abu Ghraib Distress Syndrome). That scandal, coming
at the height of the
Among fallout of this shameful episode: (1) We learned that torture and prisoner abuse can be a
propaganda disaster of such magnitude as to impair the overall mission. (2) We
re-learned that amateurs should never be trusted with serious interrogation.
(3) We produced a new version of the Army Field Manual for Interrogation, now the
most politically correct “guide” to interrogation (including that of
terrorists) ever released by any major power in world history.
[LINK: http://www4.army.mil/ocpa/read.php?story_id_key=9525 .]
"HUMANE TREATMENT
M-15. All captured or detained personnel shall be treated humanely at
all times and in accordance with DOD Directive 3115.09, "DOD Intelligence
Interrogations, Detainee Debriefings, and Tactical Questioning"; DOD
Directive 2310.1E, “Department of Defense Detainee Program,” and no person in
the custody or under the control of the DOD, regardless of nationality or
physical location, shall be subject to cruel, inhuman, or degrading treatment
or punishment as defined in US law, including the Detainee Treatment Act of
2005. All intelligence interrogations, debriefings, or tactical questioning to
gain intelligence from captured or detained personnel shall be conducted in
accordance with applicable law and policy."
"M-16. Any inhumane treatment—including abusive
practices, torture, or cruel, inhuman, or degrading treatment or punishment as
defined in
Torture is a buzz word. All involuntary interrogation is psychologically painful. When can we call pain torture? When we say it is...
Sleep deprivation, noise, humiliation, denial of coffee and cigarettes occupy one end of the spectrum, while cutting off body parts and electroshock occupy the other. While “torture” is not a comfortable subject, the term itself is highly ambiguous. After all, one man’s torture is another’s basic training exercise. Some U.S. Marines have been subject to so called “water-boarding” during training exercises to demonstrate that they can, indeed, withstand the psychological pressure it induces.
The attorney, Alan Dershowitz, a certified, card carrying democrat, has seriously proposed that courts be authorized to issue “torture” warrants, allowing non-lethal, but rough interrogation in terrorist cases. I cite Mr. Dershowitz’s position to make a point: Reasonable minds can and do differ on this troubling subject.
Experts that I trust assert that the limitations contained in the Army’s latest field interrogation manual implicitly forbid legitimate and useful interrogation techniques that themselves fall short of a reasonable definition of torture. Moreover, the deviation from strict adherence to the manual would subject trained interrogators to such a risk of second guessing and punishment that the effectiveness of interrogations will be impaired.
But our new president has reportedly ordered that the same field interrogation manual be adopted as an overarching authority on the subject, even applying it to emergency actions by US anti-terror field agents working overseas.
Perspective and Duty
All of the “strong measures” questions tend to look strikingly different, depending on one’s perspective. Here is a thought experiment:
Assume that your entire circle of family and loved ones inhabit a terror target area such that, if the attack plan is carried out, you will lose all of them, down to the last child, with a 99% probability. Now assume that our agents have captured Mr. X, a malevolent technical wizard who – the experts believe – is very probably in possession of information that could stop the attack. The clock is running out. Mr. X is smug in the knowledge that he can and will withstand anything permitted by the U.S. Army’s Field Interrogation Manual – the text of which has been widely available on the internet. You get the picture.
This is why an arch civil libertarian like Alan Dershowitz wants the option of getting a torture warrant. But, in the field, things are never that pat. Find a judge and get a warrant in time?
Forgetaboutit!
Wise, humane leaders who are also realists have suggested
that POTUS himself should be the “safety valve”, the
go-ahead of last resort. But this
implies a bureaucratic chain of communication, unreliable filters, even denied
access or indecision and always.... potentially fatal delay.
The Shrinking
Honeymoon Time Window
I promised to return to something. Behind every Grand Gesture, look
carefully. There almost always is a
measure of reservation and room to maneuver.
Where national security issues are involved we can hope and pray that
this is – and will remain – the case.
We can still hope that behind the scenes, under the radar
where grand gestures are trumped by careful reflection, that POTUS 44 is – or very soon will be - taking remedial
measures to ensure the continuing safety of the United States.
Let me also return to his Oath.
“I do solemnly swear that I will faithfully execute the
Office of the President of the
Every prior occupant of the White House has understood with
bright line clarity that the oath of office is particular in its geographical
and jurisdictional reach. The “protect and defend” part of the oath applies to us, not to those who have taken
up arms against us. It means, above all, the solemn promise to
protect and defend the people of these
So my prayer is that our new president will not allow his
strong sense of propriety and wish always to be loved to get in the way of the
prime directive, to protect
JBG