- The Washington Times - Monday, April 27, 2009


I was planning to write today’s column assessing President Obama’s first 100 days. But in the middle of writing that column on a quiet Saturday afternoon (I was going to give him an A-minus - surprise), my phone rang and it was former President Bill Clinton, whom I first met in fall 1970, a few months after I graduated from Yale Law School.

The purpose of the call was actually to thank me for sending him a copy of son Seth’s recently published book, “When March Went Mad,” on the 1979 NCAA championship game between Magic Johnson’s Michigan State and Larry Bird’s Indiana State. He wanted me to tell my son that he was at the regional final game where his own beloved Arkansas team had lost to Indiana State in the closing seconds, thanks, the president remembered, to a left-handed shot by a right-handed point guard. He also told me Arkansas lost thanks to a “bum call” - a referee had called “traveling” on an Arkansas player with a minute left and the score tied, even though he was tripped by an Indiana State defender. (Having seen a film of the entire game just recently, I must agree.)

We then talked about the issue of Mr. Obama’s decision to release the Justice Department’s torture memos and whether to prosecute the interrogators, the lawyers or the policymakers who approved these techniques. What is most interesting is the way a former president analyzes presidential decision-making - and how he appreciated, from recent detailed news reports, how Mr. Obama made these difficult decisions.

He was pretty sure that Mr. Obama started with the assumption that these intelligence community interrogators were patriots doing their jobs, that it must have been difficult for them, but they did what they did because they were told it was legal and needed to be done.

This isn’t Nuremberg, he said - it isn’t about orders to kill people, and people who make that comparison to Nazi Germany and the Holocaust are wrong. This is also a completely different context - post-9/11 - he continued, but that doesn’t justify torture. Of course not.

Then we talked about the other side of the equation - the decision to release the memos publicly, which angered many on the conservative side of the spectrum and, news reports say, some in the intelligence community. I made the point that Defense Secretary Robert M. Gates got it right - these memos were going to come out anyway, so from a practical standpoint the Justice Department might just as well put them out itself.

On the issue of what to do about criminally prosecuting the lawyers and the higher-up policymakers, Mr. Clinton reminded me about a lesson we both learned in our first day’s class in criminal law. We both had the same professor.

The professor began with the following hypothetical: Four people are stranded at sea in a boat, but there’s food and water for only three to get to safety. A vote is taken to draw straws to see who is going to jump overboard and thus save the other three. But then, the one who draws the short straw changes his mind and refuses to go overboard. The other three, after much debate, throw him overboard and he drowns. Have they committed murder? According to law, of course they have. But morally and practically, it’s not that clear.

Since all four had agreed on a fair procedure for deciding who has to die, do the other three have a moral case that the fourth one who reneged should be forced to abide by the deal? But how can premeditated murder ever be justified?

On the other hand, would the death of all four be better than the death of one? On the other hand … and so on.

The president reminded me of the punch line by the professor at the end of the class: “Bad facts make bad law.”

I have admired Mr. Clinton for nearly four decades, and among the many things I have admired most is his ability to discern gray areas on complicated issues that many people, especially political ideologues, sometimes don’t see, or what they see are all sharp lines, all black-and-white choices.

I have no doubt Mr. Clinton abhors the decision to authorize torture and approves Mr. Obama’s immediate decision when he became president to ban these techniques. But as to criminal prosecution, he understood Mr. Obama’s reluctance, despite intense criticism from many liberal Democrats.

Mr. Clinton seemed to admire Mr. Obama’s ability see the nuances, to try to think through all ramifications of all possible answers: Criminal prosecution to uphold the law against torture strictly would set a good precedent that administrations will be held accountable for lawbreaking, no matter what. On the other hand, it might set a bad precedent, a slippery slope from a valid criminal prosecution morphing into misuse of the criminal justice system against a prior administration for partisan purposes. This has occurred, with bad consequences, in other nations in the world after a change of government.

Somehow, Mr. Obama had to sort out these nuances and figure out the right solution to the prosecution issue. He seems to have not quite gotten there 100 percent yet, since on one day he seemed to say “no” to prosecutions, and on the next, he seemed to leave the door open by leaving it to Attorney General Eric H. Holder Jr. to decide.

But that ambiguity probably accurately reflects the conflicts he faced. In other words, “bad facts make bad law,” and it will be an imperfect outcome regardless. And Mr. Obama probably ended in the best place by placing the final decision in the good hands of Mr. Holder, who has already proved that he understands that “Justice” is the name of the department that he heads.

Only a former president can truly appreciate how tough a decision Mr. Obama faced in balancing these cross-pressures. And clearly Mr. Clinton is very impressed with the job Mr. Obama has done and with the personal and intellectual capabilities he has shown in his first 100 days. The most important such quality, it seems, has been Mr. Obama’s ability to listen, sort out all perspectives, and then make a decision that feels right to him, fully prepared to take the political heat from the right or the left, or both.

It’s a good feeling to hear a former president whom I admire so much - whom I truly believe history will judge as a great president, and who left office after two terms with a 65 percent approval rating - telling me that we’re in good hands with our new president in such perilous times.

And certainly a nice way to spend a quiet Saturday afternoon.

Lanny Davis, a Washington lawyer and former special counsel to President Clinton, served as a member of President Bush’s Privacy and Civil Liberties Oversight Board. He is the author of “Scandal: How ‘Gotcha’ Politics Is Destroying America.”

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