Friday, April 17, 2009

Tying His Hands

Former Attorney General Michael Mukasey and former CIA Director Michael Hayden — both formerly in the former Bush administration — came out this morning in the Wall Street Journal with what John Cole at Balloon Juice calls the Republican talking points on the release of the torture memos.

The effect of this disclosure on the morale and effectiveness of many in the intelligence community is not hard to predict. Those charged with the responsibility of gathering potentially lifesaving information from unwilling captives are now told essentially that any legal opinion they get as to the lawfulness of their activity is only as durable as political fashion permits. Even with a seemingly binding opinion in hand, which future CIA operations personnel would take the risk? There would be no wink, no nod, no handshake that would convince them that legal guidance is durable. Any president who wants to apply such techniques without such a binding and durable legal opinion had better be prepared to apply them himself.

Beyond that, anyone in government who seeks an opinion from the OLC as to the propriety of any action, or who authors an opinion for the OLC, is on notice henceforth that such a request for advice, and the advice itself, is now more likely than before to be subject after the fact to public and partisan criticism. It is hard to see how that will promote candor either from those who should be encouraged to ask for advice before they act, or from those who must give it.

Aside from the fact that this sounds a lot like the opening argument of a defense lawyer in a criminal trial, Mr. Mukasey and Mr. Hayden are saying that the techniques that were employed by the Bush administration and the justifications they got from the Department of Justice won’t work any more, in effect tying the president’s hands.

They say that as if that is a bad thing. As President Obama said last night,

The United States is a nation of laws. My Administration will always act in accordance with those laws, and with an unshakeable commitment to our ideals. That is why we have released these memos, and that is why we have taken steps to ensure that the actions described within them never take place again.

Andrew Sullivan notes, “What Obama understands is that what is truly vital is that this dark and shameful period not become a workable precedent. It must be repudiated at the very heart of the American political system, and removed like the cancer it is.”

What’s especially ironic is that after ten days or so of right-wing tea-bag protests about how oppressive the federal government is and how — now — we shouldn’t blindly trust the president to do the right thing, the loyal Bushies and their Wormtongues like William Kristol (who, speaking of tea-bagging, is still pitching a tent for war) are saying that it was very important for the president — the previous one, that is — to be granted the full power and immunity to conduct war and interrogation the way he saw fit and without any oversight whatsoever, and that any restrictions on that power were a sign of weakness and cowardice.

What escapes their understanding is that power without discipline is a lot more dangerous and more terrifying than anything the jihadists can throw at us.