Egos Drive Everything

After reading through both the OLC legal memos as well as Jane Mayer’s Dark Side, I couldn’t help but feel that it was overactive egos and extreme self-serving rationalizations that brought the U.S. into the legal controversies it is in today. The decisions that were made and the justifications behind them were the products of a battle among personal egos at all levels and agencies of government. The extreme desire for results produced an arms race of sorts where the harsher, more dedicated anti-terrorist thinker got the recognition and thus the attention of the Bush Administration. Everyone basically wanted the same things: protection from terrorist threats, actionable intelligence regarding terrorist activities, and justice for the attacks that were committed on the U.S. I saw the battle of individual egos, however, as turning this goal into the sacrifice of individual liberties and the use of tactics that previously would have been thought unimaginable.

It’s Right Because I Said It’s Right [The OLC Memos]:

I saw the influence of egos in the OLC Memos most strongly when the rationales were based on their own prior statements of the law. The OLC repeatedly emphasized past OLC memos, past Attorney General opinions, and random White House memos as evidence that the use of these post-9/11 tactics were permissible under our Constitution. Specifically, the OLC felt that it was at least somewhat persuasive that past OLC memos argued that the President had the inherent constitutional authority to unilaterally deploy troops to respond to the national emergency of international terrorism. I don’t see how a previous argument that something is constitutional is evidence that is now constitutional.

Not only did these memos use their own arguments as evidence of constitutional authority, they also relied on purely self-serving past precedence and experience in defining the scope of presidential power. For example, unilateral action to deploy troops in the Balkans and Panama (to name just a couple) were provided as evidence that the President had the constitutional power to unilaterally deploy troops to fight terrorism across the globe after 9/11. The problem with citing past precedence like this is that it is entirely self-serving and one can cite past precedence for nearly any point you are trying to make. There are certainly plenty of examples where Congress has in fact authorized the President to deploy troops abroad. This would be a valid example of past precedence showing that the President does not have this inherent authority. Likewise, the OLC conveniently does not cite past practice in its rationale for excepting Al Qaeda and the Taliban from the protection of the Geneva Convention and other treaties. It does not do so presumably for the reason that past practice would show that in situations where the U.S. could have claimed that the opposing forces were “unlawful combatants,” the U.S. did in fact still provide them with the protections of the Geneva Conventions. Thus the OLC’s citing past practice is not only un-persuasive, it is merely a self-serving, narrow view that only considers one’s own argument. If past practice were to be an acceptable rationale it would have to explore the wide range of past practice on both sides of the question. None of the OLC memos appear to do this.

On another level, I saw it as particularly self-serving that the OLC argued that Congress had impliedly given the President authorization to deploy military force to attack terrorism across the world through the War Powers Resolution and the Joint Resolution of September 18, 2001. According to the OLC memo, this Congressional authorization meant that the President was acting at the apex of his power since, as Justice Jackson explained in Steel Seizures, the President was acting under the explicit authorization of Congress. I read this in a completely different light. I see this as closer to Jackson’s category #3—Congress has spoken and the President is acting contrary to Congress. Congress said that the President had power to respond against terrorists with a connection to the 9/11 attacks. This memo is saying that the President has the power to respond to all terrorists regardless of their connection. Thus, this interpretation is going beyond congressional authorization. It can be presumed that Congress intended to specifically limit the President’s actions to this connection—otherwise it could have expanded the authorization. This reading is actually more consistent with Steel Seizures where the court had said that that Taft Hartley Act had spoken and thus that the President was acting contrary to Congress by going beyond the Act.

This complete single-mindedness of the Administration’s legal arguments underscores its utter refusal to see the more realistic interpretations that did not require as much of a strained reading. Their desire to achieve their goals at any possible cost led to this abandonment of the American ideals. This is extremely dangerous in The War on Terror where the battle for international respect and cooperation is far more important than is recently thought. If the U.S. fails to uphold its own ideals and Constitution, it has lost the moral high ground.

I am Positive That This Will Maybe Work – I think [Dark Side]

While the OLC memos show the extreme self-serving arguments of the Bush Administration’s lawyers, Jane Mayer’s book shows the prevalence of competing egos that led to the adoption of these tactics in the first place. I saw many of the different groups involved in the post-9/11 detainee programs as more focused more on themselves, and their influence over counterterrorism, than on the importance of protecting U.S. interests while still upholding its ideals.

The “War Council” was one of the most obvious examples of pure egotism shaping post-9/11 policy. These men were entirely obsessed with their own self-worth and the value that they could provide to the President. These feelings led them to engage in a conspiracy to exclude all others from many of the most important decisions of the Administration. Rather than seek peer review and/or criticism, this elite group of insiders made nearly all decisions for themselves. The result was a paradigmatic case of “group think.” All these men reinforced each other’s views in a closed circuit that bred more and more unrealistic legal interpretations. Without any outside criticism, there was nobody to challenge the views of these few men who could implement their idiosyncratic views without challenge. Mayer also seems to make clear that these were not simply the views that these men developed because of 9/11, but rather views that they had harbored for some time. For example, Addington had believed since Vietnam and Watergate that the Presidency had become too weakened and needed to be expanded. They utilized their elite position to implement their own agendas.

The Bush Administration itself was hardly any less egotistical. Even in the face of countless warnings and evidence that the harsh interrogation measures may backfire or prove counterproductive, the Administration continued to claim that the program was a complete success. Mayer goes as far as to claim that the Administration had become so invested that they may even have fooled themselves into believing their program was a success. The hiring of psychologists to justify the potential of the SERE program was another sign of seeking to reinforce their views that this program was a success. Finally, rather than seeing the obtained intelligence as a product of some of the softer interrogation methods, the Administration continued to view it is a result of the “enhanced interrogation” methods even though the evidence showed that much of the intelligence was gained prior to those efforts.

One of the most blatant examples of egotism in the Mayer’s narrative, however, was the decisions by the CIA and the Pentagon to use the more harsh SERE-like interrogation methods. The CIA, while allowing certain detainees like al-Libi to be rendered to other countries to be interrogated, felt that it had to interrogate the prize detainees such as Abu Zubayda itself. Similarly, even after the FBI was succeeding in obtaining information using a soft interrogation approach, the CIA frequently threw out the experienced and knowledgeable FBI interrogators and implemented brutal tactics. Their rationale was merely that the CIA had been given the lead by the President and thus they should get the glory, not the FBI. Their refusal to be shown up by the FBI sacrificed the potential to obtain intelligence in a quicker and more humane way.

The boasting by the CIA of its success in these brutal tactics similarly spurred the Pentagon to implement those same tactics at Guantanamo. Just as the CIA was afraid of being replaced by the FBI, the Pentagon was afraid of losing “their” detainees to the CIA. They already felt shunned for not getting the lead in Afghanistan and thus they felt an absolute necessity to use any means possible to get information—including torture. As if this were not egotistical enough, Rumsfeld actually refused to attend any more meetings regarding Guantanamo detainees because the criticism of who was being held there was annoying him too much. Legal and/or moral arguments could not be entertained when the Pentagon was attempting to compete with the CIA.

This is the framework in which I read the OLC memos and Jane Mayer’s description. It appeared to be an inevitable arms race to this stage where torture would be used. It reminded me quite a bit of the era of McCarthyism. American values were sacrificed because each group wanted to show the Administration and the world that it was the most anti-terrorist in the same sense that McCarthy showed the world that he was the most anti-communist by accusing innocent people without solid evidence. This trend is truly a danger. The good news is that as new administrations come to power, cooler heads and fresh eyes have the opportunity to look back at what was done and hopefully rein in the egos. I cannot help but see that the problem may stem partially from books like Blind Spot and the 9/11 Commission Report which seem to say that the agencies did not do enough prior to 9/11. Now maybe one can step back and say that, in regards to torture, maybe we did too much.