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The Election—II

David Cole

The one thing this election is not likely to turn on is national security and human rights. Other concerns have dominated the campaign, including the economy, the increasing divide between the wealthy one percent and everyone else, and the responsibilities of government to provide for basic needs such as health care and Social Security. The facts that there has not been a major terrorist attack in the United States since 2001, Osama bin Laden is dead, and many of al-Qaeda’s leaders have been killed or captured have both reduced the salience of terrorism and buttressed President Obama’s credibility. Polls report that more Americans trust President Obama to keep us safe than Mitt Romney.

But while the election is unlikely to turn on national security and human rights, the corollary is not true; national security and human rights almost certainly would be deeply affected by the election results. A Romney administration would risk a return to the immoral, illegal, and counterproductive policies of President George W. Bush. We were painfully reminded of this prospect on September 27, when The New York Times reported on a leaked memo, written by Romney’s national security advisers, urging him to advocate restoration of the CIA’s “enhanced interrogation techniques,” i.e., to return us to the “dark side” of professionally administered torture and physical cruelty.

Romney did not write the memo himself, of course, and we do not know precisely how he reacted to it. But it is consistent with his public statements, in which he has criticized President Obama for ending the “enhanced interrogation techniques,” and has maintained, against precedent and common sense, that waterboarding is not torture.

The Romney torture memo is unsigned, but was written by members of a committee of Romney national security advisers that included Steven Bradbury, Cully Stimson, David Rivkin, and Lee Casey. These may not be household names, but they should cause alarm among those who care about the United States’ commitment to the rule of law. Bradbury, as head of the Office of Legal Counsel under Bush, wrote several secret memos in 2005 and 2007 arguing that the CIA’s abusive interrogation practices were not only not torture, but were not cruel, inhuman, or degrading, and did not violate the Geneva Conventions ban on humiliating treatment of detainees. Under these strained arguments, the tactics—which included forced nudity, prolonged sleep deprivation, slamming suspects into walls, painful stress positions, and waterboarding—would be entirely legal if employed against our troops by foreign nations, and would be constitutional even if used against suspects arrested here at home.

John Yoo and Jay Bybee, who wrote the first memos authorizing the CIA program in August 2002, have taken the brunt of public criticism for giving legal cover to patently illegal conduct, but in many ways Bradbury’s memos are even more disturbing. They came years after the fear of the initial 2001 attacks had subsided, and after Congress and the Supreme Court had explicitly rejected administration efforts to avoid the prohibitions on detainee mistreatment. Moreover, Bradbury’s memos ignored an internal CIA investigation that found that the tactics had been regularly abused, had resulted in no information that disrupted any ongoing attacks or “ticking time bombs,” and could not be shown to have obtained any information that could not have been gained through lawful interrogation measures. President Obama rescinded the secret Bradbury memos, and made them public, saying he did so “to ensure that the actions described within them never take place again.” But apparently Bradbury has not given up, and Romney appears to have accepted the gist of his deeply flawed advice.

Romney’s other advisers are just as bad. Cully Stimson is the former Pentagon detainee chief who infamously urged corporate clients to boycott the large law firms that had dared to represent, pro bono, Guantánamo detainees. And Rivkin and Casey, former Reagan administration officials, served throughout the Bush administration as reflexive defenders in Op-Ed pages of every human rights violation the Bush administration committed, including torture, extraordinary rendition, disappearances, and warrantless wiretapping. If these are the people to whom Romney is listening, his election would in all likelihood portend a repetition of the government’s worst post–September 11 mistakes.

Of course, President Obama has not exactly been a beacon of light on such critical rule-of-law issues as transparency and accountability. He has opposed all attempts to assign responsibility for the war crimes committed in the name of the US, including even apologies to the victims, and a public commission that might draw lessons for future policy. He has regularly exercised a secret power to kill suspected terrorists, including US citizens, with remote-controlled drones far from any battlefield, and has refused to disclose all but the most vague parameters of that awesome power. He has sought to block judicial review of many of the government’s most dubious tactics, including the drone program, the sweeping wiretapping of Americans’ international phone calls, and renditions to torture.

Still, as the latest “torture memo” illustrates, President Romney would be far worse. And President Obama deserves credit for closing the CIA’s secret prisons, ending torture, abandoning President Bush’s assertions of unchecked presidential power, and insisting that the struggle against terrorism must be fought within the confines of the rule of law—including both constitutional and international law. Those reforms have made us, from all evidence, more safe, not less, while denying al-Qaeda the anti-US recruitment propaganda that President Bush delivered as if on orders from his adversary.

Will President Obama in a second term make progress on some of the issues on which he has been stymied by congressional opposition, such as the closure of Guantánamo and the trial of terrorists in civilian criminal court? A president concerned less about reelection and more about his historical legacy might well do more to restore the rule of law, and certainly more needs to be done. But one thing should be clear—that’s the question we want to be asking come November, and not what torture tactics Steven Bradbury will be advising President Mitt Romney to authorize behind closed doors.

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