OBAMA WATCH - The Oath, the Duty, the Worry
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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 United States. Both inform the character of Barak H. Obama.
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 Hollywood style retake this president will get. From now on he will have to live with his decisions and their consequences.... Forever....
Defeating the Terror Network:
Guantanamo CLOSING, Prosecutions ON HOLD
Also on his first day at work, the new president signed an executive order that will close the Guantanamo detention facility for apprehended terrorists... sometime within a year.
I must note: None of the Guantanamo prisoners were US citizens or lawful residents and all were apprehended while during hostilities against US forces abroad. Catching them was one of the reasons we invaded Afghanistan. Guantanamo is not U. S. soil.
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.
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 Iraq war, almost caused the resignation of the Secretary of Defense. It was a colossal PR disaster, but – as “torture” - Abu Ghraib was not exactly in the same league with the sorts of grotesque and deadly abuses that had been carried out at the same location by the brutal henchmen of Saddam Hussein. Our Abu Ghraib miscreants were untrained, undisciplined troops, fooling around in a despicable way. ...And they weren’t even seeking actionable intelligence.
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.
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 US law, including the Detainee Treatment Act of 2005—is prohibited and all instances of such treatment will be reported immediately in accordance with paragraph 5-69 thru 5-72. Beyond being impermissible, these unlawful and unauthorized forms of treatment are unproductive because they may yield unreliable results, damage subsequent collection efforts, and result in extremely negative consequences at national and international levels. Review by the servicing SJA is required prior to using separation. Each interrogation plan must include specific safeguards to be followed: limits on duration, interval between applications, and termination criteria. Medical personnel will be available to respond in the event a medical emergency occurs."
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?
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 United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States so help me God.”
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 United States and our constitution, against all enemies, not to protect those who owe us no allegiance and who are bent on standing on our ashes.
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 America from harm...so help us God.