Prosecuting Bush: On Second Thought….

Some decisions lead to the discerning of the inner thoughts of the heart, and the separation of the bones and marrow. President Obama’s decision Tuesday to open the door to prosecute Bush administration officials who crafted legal opinions he believes led to torture is one of them. His judgment says much about the unsteady future of homeland security, whose voice is heeded in Washington, and the way the commander-in-chief views his own country’s most patriotic citizens.

The decision came after two days of head-fakes from administration officials who assured no charges would be filed against CIA interrogators or those who devised the legal policy. Rahm Emanuel told George Stephanopoulos on Sunday Obama believes “those who devised policy…should not be prosecuted, either.” On Monday, Press Secretary Robert Gibbs agreed, insisting, “The president is focused on looking forward.”

Yesterday, President Obama took one long glance backward. When questioned, in the presence of a Middle Eastern king, Obama propounded his new policy to the media: “with respect to those who formulated those legal decisions, I would say that is going to be more of a decision for the Attorney General within the parameters of various laws and I don’t want to prejudge that.”

AG Eric Holder tipped his hand last November, shortly after the election, when he blustered before the American Constitution Society: “Our government authorized the use of torture, approved of secret electronic surveillance against American citizens, secretly detained American citizens without due process of law, denied the writ of habeas corpus to hundreds of accused enemy combatants and authorized the use of procedures that violate both international law and the United States Constitution…We owe the American people a reckoning.”

The winds that will blow as a result of that reckoning may knock down another American skyscraper. The mere threat to prosecute lawyers for giving legal advice – a dubious and unprecedented action – will unleash the paralyzing fear into those tasked with providing American counterterrorism: nameless, unreasoning, unjustified terror which paralyzes needed efforts to convert retreat into advance. Who will craft a robust anti-terrorism interrogation program about a hatching terrorist plot, or trust his instincts to shoot the oncoming jihadists, if he fears prosecution in eight years for doing what is legal today?

We have seen this before, on the frontlines of the War on Terror and in its bureaucratic boardrooms. In Party of Defeat, David Horowitz and I recount the story of Navy SEAL Marc Luttrell, who with his fellow SEALS spared a group of “goat-herders” who spotted them on a covert mission in Afghanistan. The patriots considered shooting the spies but desisted, knowing the fire they would come under for “murdering” innocent civilians – including some teenagers. Within an hour of their hesitation, al-Qaeda terrorists killed 19 SEALs. Luttrell reflected he and his men were “tortured, shot, blown up, my best buddies all dead, and all because we were afraid of the liberals back home, afraid to do what was necessary to save our own lives.” (Emphasis added.) John Murtha and John Kerry’s hyperbolic rhetoric was paid for in American blood.

The Obama decision has impact for legal advisers, as well. On August 28, 2001, the FBI’s National Security Law Unit (NSLU) denied Minneapolis FBI agent Harry Samit the right to search the laptop of Zacarias Moussaoui, the 20th hijacker. Samit sent 70 e-mails requesting permission to search the computer, which he learned too late contained the plans for 9/11, pleading once he was “so desperate to get into Moussaoui’s computer I’ll take anything.” But the NSLU denied requests from Samit and his superior, Coleen Rowley, on grounds stricter than those required by the law. The caution about overstepping bureaucratic bounds engendered during the Clinton administration, the fear of professional retribution, caused them to build a fence around the law big enough to hide al-Qaeda’s sleeper cells.

This was the path to 9/11 – it is and the path back.

Obama’s move carries out the marching orders of his party’s far-Left base., which boasted it “bought” the Democratic Party in 2004, had just sent out a blast e-mail soliciting petition signatures to revive prosecutions. The Sunday New York Times opined Obama had “an obligation to pursue what is clear evidence of a government policy sanctioning the torture and abuse of prisoners—in violation of international law and the Constitution.”  Its most subservient U.S. senator, Russ Feingold, insisted “those who gave improper legal advice or those who authorized the program…should be held accountable.” Last week, MSNBC bully Keith Olbermann used his program to chide Obama to prosecute, ominously comparing Bush to Hitler (snore). He droned, to his three viewers:

Nobody even arrested the German Kaiser, let alone conducted war crimes trials then. And 19 years later, there was an indescribably more evil Germany and a more heart-rending Second World War…Sir, some day there will be another Republican president, or even a Democrat just as blind as Mr. Bush to ethics and this country’s moral force. And he will look back to what you did about Mr. Bush. Or what you did not do…Prosecute, Mr. President.

Not to be outdone, absolutely unbiased Newsweek reporters Michael Isikoff and Evan Thomas compared the treatment of Abu Zubaydah to Winston Smith’s torture by Big Brother in 1984. (But sympathy for jihadists is a recurring theme of Isikoff’s.)

Organizations calling for prosecutions of Bush lawyers include such stalwarts as the Center for Constitutional Rights, Amnesty International, and Human Rights Watch. And no less a human rights advocate than Khaled Almaeena, the “editor of the Saudi Arabia-based Arab News daily, said Obama’s decision not to prosecute ‘sends the wrong message.’”

Others have targeted specific lawyers. Progressive Democrats of America is urging Americans to contact Congress to impeach Jay Bybee, currently on the infamous Ninth Circuit Court of Appeals and a former Assistant Attorney General for the Bush administration. (PDA was founded by leftovers from the Dennis Kucinich presidential campaign. David Swanson, PSA’s Press and Media Team Coordinator, is a former ACORN employee.)

Some view the decision to open the door for prosecution as a chit to his leftist base, jilted by his relatively centrist war cabinet. However, the move betrays Obama’s own disposition. Unreported thus far, his decision comes virtually a year to the day Obama told the Philadelphia Daily News, if I found out that there were high officials who knowingly, consciously broke existing laws, engaged in cover-ups of those crimes with knowledge forefront, then I think a basic principle of our Constitution is nobody [is] above the law.” Similarly, Joe Biden echoed last September, “We will not be stopped from pursuing any criminal offence that’s occurred…no one is above the law.”

The president and vice president may find opposition within their own administration. Obama’s national intelligence director, Admiral Dennis Blair, wrote in a memo last Thursday, “I like to think I would not have approved those methods in the past, but I do not fault those who made the decisions at that time, and I will absolutely defend those who carried out the interrogations within the orders they were given.” (Emphasis added.) Blair rightly noted those supposedly harsh methods – which were only employed in the most circumscribed circumstances – yielded “high value information.” To cite but the most obvious example, Khalid Sheikh Mohammed revealed an intended 9/11-style attack on Los Angeles after being waterboarded.

Blair’s assistance may be needed, not merely for former Bush legal eagles, but for CIA interrogators still at Langley. The UN’s special rapporteur on torture, Manfred Nowak, said Obama’s decision to exempt those who conducted the investigations violates international law. Nowak told the AP, “The fact that you carried out an order doesn’t relieve you of your responsibility.” Obama has coupled a history of quickly abandoning those he recently promised to protect with the strength of a jellyfish in international affairs, and the interrogators may yet end up before a tribunal. Whatever occurs with prosecution, or non-prosecution, of former administration officials, future counterterrorists will now weigh the correct response against the likelihood of their own incarceration.

The real story behind this is what it confirms about President Obama. This decision, joined with his perpetual focus on the “faults” of the United States, his endless overseas apologies, his moral equivalence of America-hating racist ministers with pro-life Congressmen, all tell a similar story: Obama shares the worldview that invites aggression and punishes defense. Since the 1970s, the Left has excused our foes and obsessed over alleged American misdeeds, from John Kerry’s atrocity allegations in the 1970s to…John Kerry’s atrocity allegations in 2005; from My Lai to Abu Ghraib; from “the Evil Empire” to “the Axis of Evil”; from the Church Committee to the Leahy Truth Commission; and from winning the nuclear arms race to aggressively interrogating those who may be plotting the next 9/11.

Carterism is back.

This article originally appeared as the lead story on Wednesday, April 22, 2009, on FrontPage Magazine.