I’ve salivated over new David Frum posts for some time now. Few commentators are so well versed in American political history, how Washington DC works, or the intellectual foundations of the modern Republican Party. He and I have our differences, especially on foreign policy, but despite criticism that he lashed out against critics of the Bush Administration in the several years after 9/11, I’ve found his argumentative style reasoned and fair since I began reading him a few years back, after being impressed by his appearances on Bloggingheads. Whether he and I agree or disagree, he is almost always persuasive in his arguments, which bear careful consideration given the wisdom he’s accrued over a long career in politics. He has the courage to critique Rush Limbaugh’s prominence in the GOP, which is more than I can say for a lot of people on the right. And once when I went to his house for a social event, the refreshments included an enormous bowl of excellent guacamole, enough to prejudice me heavily in his favor.
The blogosphere being what it is, all this prefaces an instance in which I find one of his arguments wanting. On the question of whether interrogation techniques employed during the Bush Administration should be investigated, he writes:
And why not investigate? Are not answers better than questions?
Here’s why not: In Washington, there’s an old rule that the process is the punishment. You don’t have to convict people of any crime – you don’t even have to charge them with any wrongdoing – in order to wreck careers and ruin lives. You can do that through the declaredly and allegedly neutral method of investigating them. While the investigation continues, they are subject to legal risk. They must pay legal fees out of government salaries. They must suspend other work. All for an uncertain and likely prolonged period of time. Really it might be more compassionate just to shoot them out of hand.
I am sympathetic to that argument. It is true that legal investigations can burden folks who are entirely innocent of any wrongdoing. Abuse of investigative power is scurrilous indeed, and any inquiry should proceed in a manner that minimizes the harm to innocents.
But wait a minute. How is that a persuasive argument against any particular investigation? Every day in the United States, police investigate criminal wrongdoing, serving search warrants, questioning suspects and making arrests. Grand juries inquire, prosecutors file charges, and judges hear cases that decide guilt or innocence.
Are there not innocents unjustly burdened by this process? Criminal and civil courts routinely force blameless folks to incur steep legal fees, bear considerable stress, and spend countless hours defending their innocence. Those who triumph aren’t paid restitution. They don’t always get their reputations back. Their lifespan isn’t credited for the time they spent in a holding cell pending trial, nor are their attorney fees paid.
Any time someone is investigated for murder, rape or child molestation, it can be said that “the process is the punishment,” but the process is also the only way society has to find and punish lawbreakers — these investigations are indispensable to governing ourselves according to the rule of law.
Nor do we refrain from using the awesome power of the criminal justice system except in the most grave instances. No, the United States criminal justice system risks potential injustice even to prosecute crimes as petty as marijuana possession or trespassing. Even those living below the poverty line are expected to go along with this system, though a mistaken arrest often costs them their minimum wage job, and they can afford no better than an overworked public defender for representation at trial .
But we’re supposed to forgo investigating a matter as grave as torture because the burden on federal employees—people far wealthier and better connected than the average American—is too great? As I said, I sympathized with that very argument when I first read it, no doubt due to my own prejudices. Civil servants are people like me. They played by the informal rules that govern success in America. They aren’t the kind of people—I am not the kind of person—who goes to jail, or is even at risk of going to jail.
Upon a moment’s reflection, however, it is apparent how far astray my prejudices led me. Where better to investigate lawbreaking than the federal government? Is there any entity in America so powerful? Such power tends to corrupt, and its corruption is uniquely damaging due to the government’s status as an ultimate authority, awesome in its scope. So right there you’ve got ample reason to error on the side of getting answers rather than questions.
As for the people subject to investigation, I neither want to minimize the potential for wrecked careers and ruined lives, nor to be cowed by it. Investigators ought to tiptoe around the lives of those who are innocent of wrongdoing, but as Americans subject to investigations go, what percentage is savvier and better connected legally than the former officials of a presidential administration? If an investigation into wrongdoing is too burdensome for these folks, we’d better cease criminal investigations entirely.
David goes on:
It might be useful here to remember the career of Robert Baer, one of the finest CIA officers of the 1990s. Baer was sent to Iraq in the 1990s to organize a coup against Saddam Hussein. The coup fizzled – and Baer found himself on the receiving end of an FBI investigation on charges of attempted assassination. That’s a fine line to walk between dangerous duty and prosecutable offense! Baer was not charged with any crime. But his career at the CIA ended – and the agency collapsed again into the sluggish torpor that has characterized too much of its history in recent times.
Here’s what Robert Baer himself says about recent events:
Kiran Chetry: You support the move? You think the release of the Bush-era memos on interrogation tactics was the right move and that it did not compromise national security?
Robert Baer: Well, not at all. All of those techniques are in the military manuals, which are on the internet. Most of that information appeared in the New York Review of books in Mark Danner’s article, “The Prisoner’s Getting Out.” It talked about what they were subjected to. It’s not a secret. None of these techniques are a secret so why not release it? I think what we really need to do is clear the air on torture. My biggest objection is nobody, until now, has presented evidence that torture works and I just don’t see it.
Chetry: Not everybody sees it from your point of view. Even people within the agency, former Attorney General Michael Mukasey and former CIA chief Michael Hayden, have both said they think releasing the memos threatens national security. Do you think they have a point?
Baer: No. It’s an executive decision whether to use torture or not. That’s very clear for the eight years of the Bush administration and we can go way beyond those limits if we want. If we are attacked again this president is going to be faced with the same decision. Do we use abusive interrogation techniques? We don’t have to be confined to these military techniques. We can go way beyond it and change policy at any time. The question I have, does it compromise sources and methods? The answer is no.
Chetry: Your fellow “Time” magazine columnist Joe Klein talked about the concerns at the CIA and said it represents to them “a breach of faith – that the release of the information will cripple the clandestine service” and “represents a grant of too much information to our enemies.” He says it might make it harder for them to do their job. It’s something the president alluded to when he was well-received in his visit yesterday to the agency.
Baer: Well, you know, here is the thing. Yes, it is demoralizing to the CIA. Any time scandals appear in the press it demoralizes the CIA. But this should have been thought of seven years ago when this was started. That is not the CIA’s job, to do hostile interrogations. It’s classical espionage, which it was diverted from doing. And the CIA does best when it’s left alone. This was a very political decision and it was a mistake.
Here is Baer in a column he wrote for Time Magazine:
Despite the outcry it has prompted, the Administration was absolutely right to declassify the Department of Justice-CIA interrogation memos. The argument that the letters compromise national security does not hold water. As noted in the memos, the interrogations techniques are taken from the military’s escape and evasion training manuals, known as SERE (Survival, Evasion, Resistance and Escape) — which in turn were taken from Chinese abusive interrogations used on our troops during the Korean War. If there is any doubt the techniques were already in the public domain, released detainees have more than detailed the abuse interrogation techniques they were subjected to
But Obama should not stop there…
Not everything related to abusive interrogations can be declassified, but nonetheless should be looked at by a blue-ribbon presidential commission. For instance, in an Aug. 1, 2002 memo there is a passing reference to “chatter” that suggests there’s about to be another 9/11, the underlying message to Justice being that unless it approves the abusive interrogation techniques, the deaths of thousands of Americans will be on its head. Someone objective needs to take a close look at the exact wording of the “chatter”, and tell the President whether there really was an imminent threat. The complete raw interrogation reports should also be reviewed by the same commission to compare it to follow-up investigations, in particular leads generated inside the United States. We cannot take anyone’s word for it that the interrogations saved lives; someone objective needs to take a good hard look at the facts. (Watch TIME’s video on the risks of chatter.)
On a more public level, a thorough clearing of the air will go a long way toward discrediting the idea that we either torture terrorists or die. This false choice is played out week after week in the popular TV show 24, leaving people with the notion that had the FBI somehow caught one of the hijackers in the hours leading up to 9/11, torture would have led to the arrest of the other 18 before those planes took off. We need to put the last nail in the coffin of Harvard law professor Alan Dershowitz’s idea of torture warrants.
In the short run, CIA morale will be hurt by yet another investigation. But at the same time it will force the agency to take a much needed honest look at its reporting on al-Qaeda. One memo notes that in 2004 the CIA obtained half of its reporting on this organization from detainees, many of whom “confessed” under abusive interrogation. A complete investigation into the quality of that information, I suspect, will prove we are going through this national trauma and international humiliation for absolutely nothing. I hope I am wrong, but unless Washington takes the steps to open the historical record to more scrutiny, no one will be able to prove it.
Frum goes on:
Defenders of the Clinton record in intelligence often argued after 9/11: There is nothing in the rules that forbids targeted effective intelligence operations. But if a bureaucracy is threatened with prosecution if it crosses a line, the bureaucracy will respond by going nowhere near the line. That’s the story of US intelligence gathering in the 1990s. Nobody wanted to face Baer’s fate, so nobody took anything like Baer’s actions – which meant in turn that people with the courage and imagination of a Robert Baer looked for careers elsewhere than the CIA.
Nobody was fired for doing too little to prevent 9/11. But unknown numbers of CIA and Bush administration officials face financial and career destruction for doing too much to prevent the next 9/11.
One implication is that if only the CIA would’ve been freed to come “closer to the line” in its 1990s intelligence gathering, we could have prevented 9/11. Is there any evidence for that proposition? We’ve all read the various arguments about how we might have avoided those terrorist attacks. “If only the CIA and FBI would have done a better job sharing information.” “If only we had a better system in place for screening applicants for student visas.” “If only Bill Clinton would have taken custody of Osama bin Laden.” “If only the Bush Administration would have heeded the warnings of Richard Clarke.” Whether those “if only” scenarios would have changed anything I have no idea, but I’ve yet to hear a persuasive argument about how if only we’d have come closer to crossing the line in interrogations prior to 9/11 the attacks would have been averted.
Another implication in the excerpt above is that Bush Administration officials who face financial and career destruction “for doing too much to prevent the next 9/11” were making the country safer by “crossing the line.” But perhaps it is the case that torturing prisoners really does make us less safe — even if it produces usable intelligence in the short term — whether by producing too many false leads, or serving as a recruiting tool for Al Qaeda, or causing talented but squeamish interrogators to resign from their posts, or whatever. These are plausible scenarios. Perhaps preventing the next 9/11, or something worse, requires disincentivizing this behavior. Perhaps we need career destruction for overzealous former civil servants who endanger America even as they acted in good faith to save it. Again, I am not arguing that’s the case, only that it is plausible, and that David Frum’s argument assumes facts not in evidence.
A message is being sent: Take no risks. Watch your back. Look out for your career first, your country second.
Let us hope that America’s intelligence professionals have the patriotism and courage to disregard this signal. But if they do obey, when the next intelligence failure occurs, let us remember when we are tempted to blame them for returning to their pre-9/11 performance: They were just following our orders.
Again, this implies that America’s recent intelligence failures were due to a lack of risk-taking, excessive watching of backs, and careerism. Is there any evidence for that assertion? We know something about the intelligence failures prior to 9/11. Which among them are owed to the qualities that David laments?
And why this strange confidence that intelligence professionals in the field will act in a manner that best protects us… if only we signal that they aren’t subject to our laws? Is the judgment of every intelligence professional so impressive? Isn’t there great risk in sending the signal that David wants to send — that risk-taking is to be encouraged and rewarded, that lawbreaking will never be investigated, and that strategic questions about what techniques to use are best made individually by James Bond like rogue-heroes who just “do what it takes” out of patriotism? Is it really “looking out for your career first, your country second,” when you subordinate your personal beliefs about interrogation practices to laws duly passed by the Congress, treaties signed by past presidents and ratified by past Senates, etc?