- The Washington Times - Tuesday, April 29, 2008

ANALYSIS/OPINION:

As one of the very few think tankers who has written in support of the Bush administration’s use of coercive interrogation techniques on terrorists — provided they were “non-U.S. persons,” located overseas and not entitled to POW status — I have also noted that, to be lawful, the activity had to be authorized by the “appropriate level of authority.” Furthermore, that this could mean the president himself had to personally approve the program.

Why this requirement? In a nutshell, the authority to authorize and direct such activities is uniquely the president’s, because it depends on his plenary authority in Article II of the Constitution — as commander in chief and chief executive. This becomes very important if the activity could violate a treaty or convention: While international lawyers sometimes disagree on whether the president has the inherent power to act contrary to international law in matters of national security (let alone whether he should) the view shared by past Democratic and Republican administrations is that he does.

However, these principles may not be relevant (or even helpful) in the case of the controversial coercive interrogations. Why? Because, it was reported recently by the Associated Press that the president may not have approved or authorized the practices; rather that they were approved by the vice president and perhaps at levels below him. This — according to the reporting — was done to “insulate the president” from the partisan politics of this controversial issue.

If the president was deliberately kept “out of the loop,” there is the distinct possibility the program was never properly authorized because the Article II authority was not/never properly exercised.

Another way to look at it is that the Article II authority necessary for the program was “severed” at the top. However it’s characterized, the consequences of this fundamental legal and political blunder are nothing short of dramatic: It could render the whole chain of command criminally and/or civilly liable for various offenses and/or actionable claims. It has already been suggested, for example, that a war crimes prosecution of a senior U.S. official in a European country could be a nasty “October surprise” for the November election.

In addition, it is yet another example of the poor counsel given the president by his inner circle on critically important matters in the prosecution of the war on terror.

How should it have been done to maximize the position of the president and the administration?

Once deciding he needed to do it, the president should have authorized the coercive interrogations via a carefully drafted directive — with his signature on it — authorizing the program and perhaps also appointing the vice president or CIA director to manage it. His directive should also have established an “oversight regime” and a “reporting regime” for the program, to be able to show the program was under constant review and evaluation, with periodic reports required for the president.

The program should have been authorized by the president for very short periods (30 to 60 days each) with a requirement to renew the authority upon specific request by a very few named senior officials (e.g., the CIA director), but only if the techniques were producing valuable intelligence — otherwise the authority would expire automatically.

The enabling directive should also have cited (but not depended on) the legislation since Sept. 11, 2001, that has authorized the president to prosecute the war on terror. While the directive would no doubt have to be classified, it should have been written in a way that would facilitate its later declassification or partial declassification.

The directive should also have been drafted in a way that would have allowed the program to be routinely briefed to Congress, at least to the so-called “Gang of Eight” — various “annexes” to the directive, each with a specific purpose, could have addressed this.

Whether done by formal Executive Order or not, the directive should have been accompanied by appropriate legal memoranda; in this case, a key legal opinion would/should have been signed by the State Department’s legal adviser, assessing the international legal aspects of the president’s directive.

In sum, there were a number of opportunities for “good lawyering” in the process to both authorize the activity and protect the president to the maximum extent possible. Just keeping him “insulated” from it, as it has been described, was not one of them, and appears more of a political or public affairs maneuver than anything else.

Because of the new revelations about how the coercive measures were approved, the “torture debate” is guaranteed to go on for years to come and may yet involve criminal and civil accountability for senior officials — let alone international and foreign claims for compensation.

One thing for sure: Regardless of one’s personal opinions on the matter, neither the president nor the nation was well served by the manner in which these controversial issues were handled — actually mishandled — by some of the president’s closest advisers. Once again, they just didn’t get it.

Daniel Gallington is a senior fellow at the Potomac Institute for Policy Studies in Arlington, Va. He served in senior intelligence and national security policy positions and as general counsel to the Senate Select Committee on Intelligence.

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