Lawyers jailing lawyers over policy

During the 1990s, most of us thought we were living in a period of unprecedented peace and prosperity. We even spent the "peace dividend" -- cutting resources for intelligence and the military. The Cold War was over. We had no enemies worth worry...

During the 1990s, most of us thought we were living in a period of unprecedented peace and prosperity. We even spent the "peace dividend" -- cutting resources for intelligence and the military. The Cold War was over. We had no enemies worth worrying about. That was the accepted narrative of that giddy era.

The fact that Americans were being attacked with regularity by Islamist terrorists -- for example in New York City in 1993, at Khobar Towers in 1996, at two of our embassies in Africa in 1998, off the coast of Yemen in 2000 -- did not lead most politicians to conclude there was a crisis that needed to be addressed. As a result, the catastrophic attacks of Sept. 11, 2001, came as a shock and a surprise.

In the wake of 9/11, it was obvious that we faced a national security crisis -- that a war was being waged against America and the West. Extensive anti-terrorism policies were implemented in response. Terrorists were hunted down and killed. Others were captured and interrogated. In a few cases, "Enhanced Interrogation Techniques" were authorized to coerce them to reveal what they knew about terrorist attacks planned but not yet carried out.

Even so, most experts predicted that further assaults on Americans would not be long in coming. Curiously, the same people who are now quick to credit President Obama's stimulus spending with averting a second Great Depression say they doubt whether there is any correlation between the anti-terrorist policies of the Bush administration and the homeland security we've enjoyed over the eight years since their implementation.

Now, not only are some of those policies being abandoned, Attorney General Eric Holder also is making an effort to demonize and, possibly, place in the docket those who conceived or carried them out. It will be a watershed in American history if lawyers from the current administration prosecute lawyers from the previous administration because they disagree with their legal opinions. In America, it used to be sufficient for one party to defeat the other at the polls. Jailing political opponents was regarded as excessive.


In much of the media, the abuses that occurred at Abu Ghraib have been implicitly linked with the controversy over the use of limited but coercive techniques to get high-value terrorists talking. As a result, I'll bet there are people who now believe that Lynndie England was a trained CIA interrogator rather than a kid from a West Virginia trailer park who enlisted in the Army Reserves and got sent to a jail in Baghdad where she mistreated prisoners for her own entertainment. They may believe, too, that she read the Justice Department memos and acted on their instructions as part of a top-secret government intelligence-gathering operation.

By the way, it is inaccurate to refer to those memos -- as they have been in most press reports -- as "torture memos." They are anti-torture memos: They draw a line between torture, which is prohibited, and harsh but legal techniques designed to prod uncooperative terrorists to reveal information about ongoing operations. One can argue over where to draw the line -- precisely how many hours of sleep deprivation constitute torture? But one cannot seriously argue that no attempt was made to draw it. Nor can one argue, based on the evidence, that these methods did not prevent terrorist attacks and save American lives.

An attempt is being made to lead Americans back to a pre-2001 landscape. A message is being sent that we now face no crisis -- Americans need not be overly concerned about militant Islamists waging a war against us. Indeed, this White House and this Justice Department no longer speak of war, only of crimes committed by terrorists and -- with more vehemence -- by those who have attempted to thwart them.

It is likely to be a long time before a captured terrorist will again tell an American interrogator what he knows. It also may be a long time before another terrorist is captured. For now, at least, it is still permissible to use drones to kill terrorists in such remote corners of the world as Waziristan. Though how would you like to be the CIA operative pulling that trigger?

-- May is president of the Foundation for the Defense of Democracies, a policy institute focusing on terrorism. E-mail him at .

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