Rising to the occasion, Part Two

Today, the Washington Post renders the second installment in its series on Vice President Cheney. This one covers Cheney’s alleged role in determining policy regarding the interrogation of terrorist detainees.
In the print edition, the piece is called “The Unseen Path To Cruelty.” Perhaps the original title was “The Unseen Path To Torture,” with “cruelty” being an editorial “tone down.”
The internet title — “Pushing The Envelope On Power” — is a better choice, since there is little doubt that Cheney and his staff did push the envelope on issues of executive power in this area. In a few cases, the result was positions that strike me as indefensible, such as the decision to detain Hamdi (an American) for more than two years without a hearing or a lawyer. In other cases, though, “pushing the envelope” consisted of refusing to change a policy based on well-founded predictions that Justice Kennedy, the Court’s swing vote, would reject the administration’s position. This seems justifiable. The system may be set up to confer Kennedy with ultimate decision-making power on terrorism-related legal issues. But until Kennedy actually speaks, it’s appropriate for the administration to take whatever reasonable positions it thinks will best protect the country. A position is not unreasonable merely because Justice Kennedy might well disagree with it.
The Post’s piece also suffers from the fact that its main sources almost surely are Cheney’s enemies — the people who kept losing bureaucratic battles to him. For example, Alberto Mora continues his MSM-enabled “profile in courage” routine at the expense of those who disagreed with him in good faith on difficult and largely novel legal issues.
As a result, the Post’s story is distorted, at least in places. One such instance is the Post’s account of the debate over whether the Defense Department should issue a directive incorporating the language of Geneva’s Common Article 3. As the Post notes, the argument against this was that Common Article 3 — which prohibits cruel, violent, humiliating and degrading treatment — is hopelessly vague. However, the Post gives the last word to Cheney’s opponents who claim that “White House policy was even more opaque.” As I understand it, though, at the time in question the opponents of incorporating Common Article 3 wanted to set out a list of specific practices that were and were not allowed. Surely, that would have provided Defense Department personnel with better guidance than mere articulation of the bromides of Common Article 3.
But it’s important not to get too lost in the forest here. The bottom line is that when CIA personnel said “we’re going to have some real difficulties getting actionable intelligence from detainees if interrogators confine themselves to treatment allowed by the Geneva Conventions,” we had a vice president for whom “a dunk in the water” for terrorists was “a no-brainer.” And a vice president who, during the key moments, made this stick. For me, on balance, we’re fortunate that we had such a vice president.
JOHN adds: This is too big a topic for a single post, but I think it’s worth mentioning that there were several areas where the administration acted in compliance with existing federal court authorities, but where it was foreseeable that today’s more liberal federal courts might rule differently. But neither the administration nor anyone else is obliged to anticipate, and act in accordance with, a possible change in the law. The administration was entitled to rely on the case law as it found it, and apply existing precedents to the novel circumstances with which it was confronted.
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