The Torture Gambit

Wall Street Journal
Tuesday, June 17, 2008

Nearly seven years after 9/11, the U.S. homeland hasn't been struck again and American civil liberties remain intact. So how does Congress say "thank you"? By trying to ruin the men who in good faith set the legal rules that have kept us safe.

That's the political story unfolding in Washington, as Democrats fire up their latest round of "torture" hearings. Prevented from trying to impeach President Bush by cooler heads, House Judiciary Chairman John Conyers has resorted to issuing subpoenas to assail current and former officials for allowing aggressive interrogations of Khalid Sheikh Mohammed and other murderers. About 60 Democrats, including Mr. Conyers, are demanding that Attorney General Michael Mukasey appoint a "special prosecutor" to investigate.

Meanwhile, the Senate's Captain Ahab -- Michigan's Carl Levin -- will rage at a hearing today against former Pentagon General Counsel William Haynes. Mr. Haynes has felt obliged to retain an attorney, though on the evidence his only offense was following President Bush's directive to prevent another terror attack. Democrats are spinning darkly that Mr. Haynes, former Justice official John Yoo (who has an op-ed nearby), Vice Presidential aide David Addington and others could be legally liable for "waterboarding" and other interrogation techniques.

Mr. Conyers recently went so far as to showcase Philippe Sands, a British professor who suggested that U.S. officials are guilty of "war crimes" and should be subject to international arrest. Mr. Conyers applauded Mr. Sands's assertions -- which amounts to a Member of Congress goading foreigners to arrest American officials if they dare to set foot on foreign soil.

The political motive here is transparent, if deeply cynical. Having failed to force a withdrawal from Iraq and with Iraq now turning into a success, Democrats need a different line of attack to please their antiwar supporters. The "torture narrative" has become a left-wing favorite, playing into the MoveOn.org-New York Times fantasies that Dick Cheney has been running a conspiracy to hijack the Constitution.

Impeaching President Bush is too politically risky, so the next best thing is to attack his aides by throwing around loose and unsubstantiated charges of criminal behavior. Even better, if Europeans can be encouraged to file charges against Republican officials, Democrats don't have to take any overt responsibility for whatever might happen. Call it political outsourcing.

The interrogations were lawful in any case, undertaken on the basis of legal memos produced by the Justice Department in the aftermath of 9/11. The intelligence committees in both the House and Senate have been briefed on the specific contents of those memos, including the legal rationale for using harsh interrogation techniques in certain circumstances, as well as the techniques that were in fact used.

Seven years later, Democrats claim to be especially offended by "waterboarding," which the CIA says was done to only three of the worst al Qaeda suspects. But both Speaker Nancy Pelosi and Senate Intelligence Chairman Jay Rockefeller knew all about waterboarding at the time, and didn't object. Democrats have every right to outlaw specific interrogation methods, but they continue to refuse to do so lest they be held accountable after a future terrorist attack. It's so much easier to denounce "torture" in general.

In a message to CIA employees earlier this year, CIA Director Michael Hayden wrote that "The agency's decision to employ waterboarding in the wake of 9/11 was not only lawful, it reflected the circumstances of the time. In reply to a question at the [February 2008] Senate hearing, I said: 'Very critical to those circumstances was the belief that additional catastrophic attacks against the homeland were imminent. In addition to that, my agency and our community writ large had limited knowledge about al Qaeda and its workings. Those two realities have changed.'"

On other occasions, General Hayden has said that information gathered from aggressive interrogations has saved American lives. His two immediate CIA predecessors have said the same thing. Mr. Levin, who used to sit on the Intelligence Committee, hasn't leaked any of that secret testimony.

Instead, in an election year and with political hindsight, anti-antiterror Democrats want to criminalize these policies. Their goal is to so tar anyone associated with those policies that no American official would dare to do anything similar ever again. In addition to smearing these loyal public servants, Democrats want to change U.S. interrogation policy without having to take responsibility for passing a law to do it.

When the threat seemed imminent after 9/11, Democrats were only too happy to keep quiet and let the Bush Administration and CIA do whatever it took to prevent another attack. But in the seemingly safer present, they want to subject every one of those decisions to the political retribution of MoveOn.org. If this is how Democrats intend to govern if they run the entire government next year, we are in for a very rough ride.