…in light of public statements by both you and the President, it is dismayingly clear that, under your leadership, the Justice Department takes the position that a lawyer who in good faith offers legal advice to government policy makers—like the government lawyers who offered good faith advice on interrogation policy—may be subject to investigation and prosecution for the content of that advice, in addition to empty but professionally damaging accusations of ethical misconduct. Given that stance, any prudent lawyer would have to hesitate before offering advice to the government.
Beyond that, as elucidated in my writing (including my proposal for a new national security court, which I understand the Task Force has perused), I believe alien enemy combatants should be detained at Guantanamo Bay (or a facility like it) until the conclusion of hostilities. This national defense measure is deeply rooted in the venerable laws of war and was reaffirmed by the Supreme Court in the 2004 Hamdi case. Yet, as recently as Wednesday, you asserted that, in your considered judgment, such notions violate America’s “commitment to the rule of law.” Indeed, you elaborated, “Nothing symbolizes our [adminstration’s] new course more than our decision to close the prison at Guantanamo Bay…. President Obama believes, and I strongly agree, that Guantanamo has come to represent a time and an approach that we want to put behind us: a disregard for our centuries-long respect for the rule of law[.]” (Emphasis added.)
Given your policy of conducting ruinous criminal and ethics investigations of lawyers over the advice they offer the government, and your specific position that the wartime detention I would endorse is tantamount to a violation of law, it makes little sense for me to attend the Task Force meeting. After all, my choice would be to remain silent or risk jeopardizing myself.
It’s depressing primarily because I never expected that an administration could so thoroughly muck up what I naively thought was a bedrock concept of our system of government: that there were limits to how hard the game was played. And, yes, this is a game that the White House is playing right now. Badly.
Mr. McCarthy had also noted that the government was interested in getting political cover by having a ‘bipartisan’ committee that would rubberstamp today’s round-table, but that’s nothing new or unexpected. Administrations always like to have their decisions appear to be backed by a broad consensus of views; however, this administration seems determined to make this impossible. For what it’s worth, I consider this mistake by the White House to be primarily organizational and administrative, not really ideological. President Obama seems to have defaulted back to what is essentially Bush-era policies regarding detention of illegal combatants, and Clinton-era ones regarding rendition. It is thus not in his best interests to engage in partisan witch hunts.
Unfortunately, he has lost firm control of his own executive branch on this matter, whether by passivity, inexperience, or incompetence; and there is no indication that he will be getting control back at any time in the near future. Under the circumstances, it is unwise for anybody to give the President advice in this matter. That includes people who might actually agree with Obama’s ostensible position on enhanced interrogations; after all, the man will be in office for a maximum of only seven and a half more years.
Yes, that’s why we have the tradition of not going down this road. It ends with proscription lists.
Crossposted to Moe Lane.