Commentaar op vrijgeven juridische memo's door Obama

[Cees Binkhorst]

REPLY TO: D66 at nic.surfnet.nl

De laatste mening van de spinmasters ;)

Groet / Cees

PS. Vraag me af of iemand ooit eens onderzoek zal doen naar wie er
financieel &of politiek geprofiteerd heeft van de aanslagen 9/11

http://online.wsj.com/article/SB123993446103128041.html

APRIL 17, 2009

The President Ties His Own Hands on Terror
The point of interrogation is intelligence, not confession.

By MICHAEL HAYDEN and MICHAEL B. MUKASEY

The Obama administration has declassified and released opinions of the
Justice Department's Office of Legal Counsel (OLC) given in 2005 and
earlier that analyze the legality of interrogation techniques authorized
for use by the CIA. Those techniques were applied only when expressly
permitted by the director, and are described in these opinions in detail,
along with their limits and the safeguards applied to them.
[Commentary] AP

9/11 mastermind Khalid Sheikh Mohammed.

The release of these opinions was unnecessary as a legal matter, and is
unsound as a matter of policy. Its effect will be to invite the kind of
institutional timidity and fear of recrimination that weakened
intelligence gathering in the past, and that we came sorely to regret on
Sept. 11, 2001.

Proponents of the release have argued that the techniques have been
abandoned and thus there is no point in keeping them secret any longer;
that they were in any event ineffective; that their disclosure was somehow
legally compelled; and that they cost us more in the coin of world opinion
than they were worth. None of these claims survives scrutiny.

Soon after he was sworn in, President Barack Obama signed an executive
order that suspended use of these techniques and confined not only the
military but all U.S. agencies -- including the CIA -- to the
interrogation limits set in the Army Field Manual. This suspension was
accompanied by a commitment to further study the interrogation program,
and government personnel were cautioned that they could no longer rely on
earlier opinions of the OLC.

Although evidence shows that the Army Field Manual, which is available
online, is already used by al Qaeda for training purposes, it was
certainly the president's right to suspend use of any technique. However,
public disclosure of the OLC opinions, and thus of the techniques
themselves, assures that terrorists are now aware of the absolute limit of
what the U.S. government could do to extract information from them, and
can supplement their training accordingly and thus diminish the
effectiveness of these techniques as they have the ones in the Army Field
Manual.

Moreover, disclosure of the details of the program pre-empts the study of
the president's task force and assures that the suspension imposed by the
president's executive order is effectively permanent. There would be
little point in the president authorizing measures whose nature and
precise limits have already been disclosed in detail to those whose
resolve we hope to overcome. This conflicts with the sworn promise of the
current director of the CIA, Leon Panetta, who testified in aid of
securing Senate confirmation that if he thought he needed additional
authority to conduct interrogation to get necessary information, he would
seek it from the president. By allowing this disclosure, President Obama
has tied not only his own hands but also the hands of any future
administration faced with the prospect of attack.

Disclosure of the techniques is likely to be met by faux outrage, and is
perfectly packaged for media consumption. It will also incur the utter
contempt of our enemies. Somehow, it seems unlikely that the people who
beheaded Nicholas Berg and Daniel Pearl, and have tortured and slain other
American captives, are likely to be shamed into giving up violence by the
news that the U.S. will no longer interrupt the sleep cycle of captured
terrorists even to help elicit intelligence that could save the lives of
its citizens.

Which brings us to the next of the justifications for disclosing and thus
abandoning these measures: that they don't work anyway, and that those who
are subjected to them will simply make up information in order to end
their ordeal. This ignorant view of how interrogations are conducted is
belied by both experience and common sense. If coercive interrogation had
been administered to obtain confessions, one might understand the
argument. Khalid Sheikh Mohammed (KSM), who organized the Sept. 11, 2001
attacks, among others, and who has boasted of having beheaded Daniel
Pearl, could eventually have felt pressed to provide a false confession.
But confessions aren't the point. Intelligence is. Interrogation is
conducted by using such obvious approaches as asking questions whose
correct answers are already known and only when truthful information is
provided proceeding to what may not be known. Moreover, intelligence can
be verified, correlated and used to get information from other detainees,
and has been; none of this information is used in isolation.

The terrorist Abu Zubaydah (sometimes derided as a low-level operative of
questionable reliability, but who was in fact close to KSM and other
senior al Qaeda leaders) disclosed some information voluntarily. But he
was coerced into disclosing information that led to the capture of Ramzi
bin al Shibh, another of the planners of Sept. 11, who in turn disclosed
information which -- when combined with what was learned from Abu Zubaydah
-- helped lead to the capture of KSM and other senior terrorists, and the
disruption of follow-on plots aimed at both Europe and the U.S. Details of
these successes, and the methods used to obtain them, were disclosed
repeatedly in more than 30 congressional briefings and hearings beginning
in 2002, and open to all members of the Intelligence Committees of both
Houses of Congress beginning in September 2006. Any protestation of
ignorance of those details, particularly by members of those committees,
is pretense.

The techniques themselves were used selectively against only a small
number of hard-core prisoners who successfully resisted other forms of
interrogation, and then only with the explicit authorization of the
director of the CIA. Of the thousands of unlawful combatants captured by
the U.S., fewer than 100 were detained and questioned in the CIA program.
Of those, fewer than one-third were subjected to any of the techniques
discussed in these opinions. As already disclosed by Director Hayden, as
late as 2006, even with the growing success of other intelligence tools,
fully half of the government's knowledge about the structure and
activities of al Qaeda came from those interrogations.

Nor was there any legal reason compelling such disclosure. To be sure, the
American Civil Liberties Union has sued under the Freedom of Information
Act to obtain copies of these and other memoranda, but the government
until now has successfully resisted such lawsuits. Even when the
government disclosed that three members of al Qaeda had been subjected to
waterboarding but that the technique was no longer part of the CIA
interrogation program, the court sustained the government's argument that
the precise details of how it was done, including limits and safeguards,
could remain classified against the possibility that some future president
may authorize its use. Therefore, notwithstanding the suggestion that
disclosure was somehow legally compelled, there was no legal impediment to
the Justice Department making the same argument even with respect to any
techniques that remained in the CIA program until last January.

There is something of the self-fulfilling prophecy in the claim that our
interrogation of some unlawful combatants beyond the limits set in the
Army Field Manual has disgraced us before the world. Such a claim often
conflates interrogation with the sadism engaged in by some soldiers at Abu
Ghraib, an incident that had nothing whatever to do with intelligence
gathering. The limits of the Army Field Manual are entirely appropriate
for young soldiers, for the conditions in which they operate, for the
detainees they routinely question, and for the kinds of tactically
relevant information they pursue. Those limits are not appropriate,
however, for more experienced people in controlled circumstances with
high-value detainees. Indeed, the Army Field Manual was created with
awareness that there was an alternative protocol for high-value detainees.

In addition, there were those who believed that the U.S. deserved what it
got on Sept. 11, 2001. Such people, and many who purport to speak for
world opinion, were resourceful both before and after the Sept. 11 attacks
in crafting reasons to resent America's role as a superpower. Recall also
that the first World Trade Center bombing in 1993, the attacks on our
embassies in Kenya and Tanzania, the punctiliously correct trials of
defendants in connection with those incidents, and the bombing of the USS
Cole took place long before the advent of CIA interrogations, the invasion
of Saddam Hussein's Iraq, or the many other purported grievances asserted
over the past eight years.

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.

In his book "The Terror Presidency," Jack Goldsmith describes the
phenomenon we are now experiencing, and its inevitable effect, referring
to what he calls "cycles of timidity and aggression" that have weakened
intelligence gathering in the past. Politicians pressure the intelligence
community to push to the legal limit, and then cast accusations when
aggressiveness goes out of style, thereby encouraging risk aversion, and
then, as occurred in the wake of 9/11, criticizing the intelligence
community for feckless timidity. He calls these cycles "a terrible problem
for our national security." Indeed they are, and the precipitous release
of these OLC opinions simply makes the problem worse.

Gen. Hayden was director of the Central Intelligence Agency from 2006 to
2009. Mr. Mukasey was attorney general of the United States from 2007 to
2009.

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