It was 2006, and Congress was debating waterboarding again. That should tell you everything you need to know. Our lawmakers do not debate murder or robbery or terrorism, even though there are those who portray such acts as mere “retaliation” or “redistribution” or “resistance.” We know real crimes when we see them, just as we used to know real torture when we saw it.
The debate was politically charged. The 2006 elections were less than two months away. Iraq was going badly, and President Bush’s unpopularity was a drag on Republican hopes. The September 11 attacks were five years in the rearview mirror, and the war-weary American middle was unusually receptive to absurd, counterhistorical claims that threats against the U.S. were largely self-induced (or shall we say, “Bush-induced”?). With a key assist from Sen. John McCain’s two years of torture demagoguery, the Left was in an opportune position to discredit the Bush anti-terror legacy.
So Sen. Ted Kennedy proposed an amendment to the Military Commissions Act (MCA) then under consideration. His measure would, finally, have brought clarity to the legal status of waterboarding. It would have expressly defined the procedure as a violation of Common Article 3 (CA3) of the Geneva Conventions, putting it on a par with “torture” — which is specified in CA3 — and making it punishable as a war crime.
The amendment lost, 46-53. All Democrats except one (Sen. Ben Nelson of Nebraska) voted in favor. One Republican still in the Senate, Arlen Specter of Pennsylvania, voted with the Democrats. As a result, while the MCA substantially overhauled the war-crimes statute (Section 2441 of the federal penal code), it did not criminalize waterboarding (to say nothing of less harsh tactics). Nor did Congress touch the torture statutes (Sections 2340 and 2340A, which define and punish torture), much less enact a clarification that waterboarding is torture. The legal status of waterboarding remained exactly what it had been: ambiguous, at best.
This history is significant because Republicans no longer run Congress, like they did back then. Since January 2007, Democrats have been in charge of both houses. At any time they wished, they could have revived the Kennedy Amendment, and passed it. Since January 2009, moreover, Democrats have run not only Congress but the White House. At any time they wished, they could have ended what they call the “false choice between our security and our values” (translation: their considered choice of no security and their values). At any time they wished, they could have settled the debate and passed a law: No more waterboarding.
They haven’t done that. For all the high dudgeon, they won’t do it. And the reason for their reticence is shameful: To clarify the law would be to admit that the law has been unclear. Clarifying law is not the objective, settling political scores is.
To enact laws against coercive interrogation today would demonstrate that Democratic witch-hunts based on the coercive interrogation of yesterday — against the intelligence officers who carried it out and the legal experts who arrived at the inconvenient truth that our law did not prohibit it — are grotesque. These investigations violate the constitutional bar against ex post facto prosecutions. They run afoul of the constitutionally derived “rule of lenity,” which bars prosecutions based on vague statutes that fail to provide adequate notice of what the law forbids. And they flout the doctrine of qualified immunity, which protects government officials from liability unless their conduct transgresses, as the Supreme Court has put it, “clearly established statutory or constitutional rights.”
What is going on beneath President Obama’s theatrics about “our values” (again, meaning his values) is a cynical farce. If our values were really at stake, if there were a consensus among us (i.e., Americans) that harsh interrogation tactics could never be justified, the Democrat-controlled Congress would outlaw them today and bask in the resulting adulation. But there is no such legislation, because the goal here has nothing to do with improving American policy.
The goal is vengeance, pure and simple.
What the Left wants is the previous administration in handcuffs. Their fantasy is to put President Bush, Vice President Cheney, Defense Secretary Rumsfeld, and Attorney General Gonzales on trial. (The CIA director should be in there, too, but George Tenet is inconvenient: a Democrat, a Clinton holdover, and an architect of extraordinary rendition, the Clinton-era policy under which alien terrorists were kidnapped and transferred to torture countries.) Leftists sense that the whole enchilada, at least for now, is beyond their reach. For present purposes, there are proxies aplenty: Bush Justice Department, Pentagon, and White House lawyers.
The Left would turn the ruinous, career-destroying machinery of criminal investigation against former government officials who, acting under an obligation to protect the United States, labored day and night over the vexing legal challenges of modern international terrorism. These lawyers never employed a single coercive tactic themselves; they professionally evaluated the legal viability of such tactics. Democrats would place these public servants in legal jeopardy, and send a paralyzing message to current and future national-security officials, for the offense of concluding that U.S. interrogation tactics were not against the law. That was, it should be reiterated, precisely the same conclusion that led Ted Kennedy to propose a change in the law, and the same conclusion that enabled Nancy Pelosi and other top Democrats to encourage the CIA when congressional leaders were exhaustively briefed about the interrogation program in 2002 and 2003.
The Left likes to depict itself as the last bastion of due process. It decries federal conspiracy and racketeering statutes because, in the hands of unscrupulous prosecutors, they can be stretched to cover innocent conduct. They condemn the Patriot Act’s investigative powers as traps for the unwary. They reject military commissions because the governing procedures purportedly create new, ex post facto war crimes. They challenge Congress’s laws against material support to terrorism as vague and overbroad, criminalizing activities they claim are protected by the First Amendment.
And that leaves us with the strange and reprehensible paradox: If Democrats get their way, patriotic public servants acting in the interest of national security, during a time of national emergency, will be railroaded with less due-process protection than the same Democrats demand for mafia dons, drug kingpins, or al-Qaeda terrorists.