Release the Memos

Pablo Martinez Monsivais / AP Photo If he chooses not to release three secret torture memos Thursday, Barack Obama will not only let his down his allies but claim the Bush administration’s atrocities as his own.

It’s no state secret that President Obama has deeply disappointed those supporters who believed his pledges to reverse the Bush administration’s lawlessness when it came to national-security-related matters. As president, he’s sung quite a different tune. Salon’s Glenn Greenwald collects a number of issues from FISA to rendition to prisoner’s rights in Afghanistan in which, in some cases, it’s actually possible to use the phrase “worse than Bush” regarding Obama without apparent hyperbole. The critics: from Sen. Russ Feingold to legal commentator Jonathan Turley to Keith Olbermann to the American Civil Liberties Union to the Electronic Frontier Foundation, are all people, whom, it fair to say, expected to find themselves in Obama’s corner for the big fights of his administration, rather than siding with those who accuse the president of saying one thing to get elected and doing another as president. (The American Prospect issues an overall report card here.)

Obama and company are sure to make errors in calculating the trade-offs in this extremely difficult and sensitive area. But let them at least make their own mistakes, rather than suffer for those of Bush and company.

And yet to imply that this is just another predictable case of a president deciding that it’s fun, after all, to wield a whole set of powers he previously did not believe in—a tradition that goes back more than 200 years to President Thomas Jefferson's 1803 purchase of Louisiana (and much of what is now the Western United States)—would be to misread the situation. Obama is juggling many problems and constituencies simultaneously. On the one hand, he is bound by his oath of office to uphold the Constitution, and unlike George W. Bush, was supported for office by people who take that charge seriously. On the other hand, he is responsible for the nation’s defense and needs the active cooperation of its intelligence agencies to do so.

Faced with what Politico is calling an attack from the “legal left,” the president faces a court deadline, Thursday, imposed in a lawsuit by the ACLU requesting the release of three so-far secret 2005 memos issued by Steven Bradbury, who was the acting head of the Justice Department's Office of Legal Counsel under George Bush. When the department released an earlier set of memos, even hardened Bush-haters like yours truly found themselves shocked at the callous regard for decency, due process, and sound constitutional reasoning they exhibited. In those memos, some of which were co-authored by John Yoo, now a law professor at the University of California at Berkeley, the administration claimed the right to use the military to seize alleged terrorists in their homes without a warrant, thereby defenestrating the Fourth Amendment protection against unreasonable search and seizure and the Posse Comitatus Act, which prohibits the military from carrying out law-enforcement operations at home. The First Amendment right of free speech was also to be done away with, and the president was advised that he was free to ignore legal treaties with other nations, despite their status as the law of the land. (Just five days before leaving office, the Bush-appointed lawyers decided that these memos no longer reflected the views of the Justice Department; others had been previously withdrawn.)

And yet these may not have been not the worst of it. According to The Wall Street Journal’s reporting, the as-yet unreleased memos include the Bush administration’s “approval for a technique in which a prisoner's head could be struck against a wall as long as the head was being held and the force of the blow was controlled by the interrogator, according to people familiar with the memos. Another approved tactic was waterboarding, or simulated drowning.”

The debate within the administration has Director of National Intelligence Dennis Blair, together with of Attorney General Eric Holder and White House Counsel Greg Craig, arguing for the release. Deputy National Security Adviser John Brennan is fighting against disclosure on behalf of the CIA and was apparently joined by his boss, Leon Panetta, who is said to have switched sides. They argue that airing the agency’s dirty laundry would demoralize its employees, hurt its ability to get other intelligence agencies to work with it, would undermine the agency's credibility with foreign intelligence services, and give al Qaeda a propaganda victory.

The politics are obviously messy and difficult to predict. I was in a green room with Pat Buchanan not long ago when he was arguing against the closing of Gitmo. He promised the first time one of these guys attacked us, Obama would be held responsible for having gone soft when he needed to be tough. And there’s no question that the CIA has the ability to undermine a president’s foreign policy should they decide he’s not on their side. (In fact, if what Sy Hersh recently told NPR’s Terry Gross is correct, there are people in the intelligence apparatus who have been placed there by Dick Cheney for the express purpose of carrying out his foreign policy, rather than Barack Obama’s.)