Institutional ethics drawing lines for militant democracies

Joint Force Quarterly, July, 2009 by Harvey Rishikof

Congress and Interrogation-Prosecution Issues

How do the previous two case studies help inform our current debate over the issue of interrogation techniques and the appropriate role of the institutional parties? President Obama's executive orders to close Guantanamo, stay detainee proceedings, and end "torture" interrogations through the use of the Army Field Manual have prominently signaled a new approach to the most controversial national security policies of the Bush administration. (10) This proposed executive review has deservedly been greeted with general approval. The Special Interagency Task Force on Interrogation and Transfer Policies established by the executive orders is an excellent start to what should be a bipartisan assessment of the current situation and where we should go from here.

The Attorney General and Director of National Intelligence stated under oath in their confirmation hearings that, in their opinions, "waterboarding" is torture. This assessment on waterboarding comports with international law and the Geneva Conventions since we once prosecuted those in World War II for employing such an interrogation technique. (11) As is well known, the Bush administration and the past Attorney General would not concede that the coercive methods employed for interrogations constituted torture under the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. Moreover, as has been made public, waterboarding has been used in military survival, evasion, resistance, and escape training for our own pilots for decades, based on the assumption that our military would experience such treatment when captured by enemies.

Despite this long-needed new policy assessment by the Obama administration, demands have been made on Congress to hold hearings on the process by which these unlawful techniques were approved and on the Department of Justice to launch investigations to determine if criminal charges should be made against members of the previous administration. Some have even called for investigations by state officials of the attorneys involved in the approval process to strip them of their state bar memberships. This congressional hearing approach would be a version of the Iran-Contra hearings, the same hearings that generated the minority report for then-Congressman Richard Cheney and then-minority staff counsel David Addington. This report contended that the findings of the hearings were an unconstitutional restraint on the Office of the Presidency and a criminalization of political disagreements.

Although we all are sympathetic to this call for justice, as a policy matter and as a guide to executive behavior for future Presidents, this purely executive response may not be the most constitutionally strategic approach to take. To have a full and open discussion, congressional immunity should be granted to all who participated in the process pursuant to a specific Presidential order or finding under the National Security Act of 1947. To prosecute low-level officials who believed they were acting under the color of law and not those who gave the orders would be a miscarriage of justice. These were Presidential decisions invoking reasons of necessity and reasons of state for preservation. We may vigorously disagree with the approach, but under one current understanding of Presidential power, such reasons accord the chief executive and Commander in Chief great flexibility to exercise the prerogatives of his office in the aftermath of an attack on the homeland.