{"id":53781,"date":"2016-09-30T11:27:00","date_gmt":"2016-09-30T16:27:00","guid":{"rendered":"https:\/\/content.findlaw-admin.com\/ability-legal\/supreme\/legal-commentary\/the-politics-of-excusing-torture-in-the-name-of-national-security.html"},"modified":"2016-09-30T11:27:00","modified_gmt":"2016-09-30T16:27:00","slug":"the-politics-of-excusing-torture-in-the-name-of-national-security","status":"publish","type":"supreme","link":"https:\/\/supreme.findlaw.com\/legal-commentary\/the-politics-of-excusing-torture-in-the-name-of-national-security.html","title":{"rendered":"The Politics of Excusing Torture In The Name of National Security"},"content":{"rendered":"\n
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\"John<\/a><\/td>\n\n

The Politics of Excusing Torture In The Name of National Security<\/h1><\/td>\n <\/tr>\n\n

By JOHN W. DEAN <\/h2>
<\/a><\/td>\n <\/tr>\n

Friday, May 15, 2009<\/td>\n\n <\/tr>\n <\/table>\n\n

Allow me to share some analysis about the way things work in Washington. President Obama’s flip-flop on his agreement to turn over photographs of detainees being tortured by American soldiers is a message with broad and clear implications. Those who believe that the Obama Administration should expose and prosecute persons who committed war crimes should understand that it is not going to happen the way they would like, or as quickly, because Obama is having internal battles as well. His pullback is not occurring because he fears that Republicans will attack him (he knows they will); rather it is occurring because he needs the national security community behind him, and they fear they will be further embarrassed and humiliated if more information is revealed. <\/p>\n

According to The Washington Post<\/a>, President Obama told White House lawyers he does not “feel comfortable” releasing the photos because of the reaction they could cause against U.S. troops, and because “he believes that the national security implications<\/em> of such a release have not been fully presented to the court,” in responding to the ACLU’s Freedom of Information Act lawsuit. [Emphasis added.] <\/p>\n\n\n\n\n

Even before looking closely at Obama’s change of mind, I understood immediately what had taken place, as soon as I heard the report on the radio. President Obama was, in fact, speaking for the national security bureaucracy in announcing his change of mind. I knew it would happen at some point. Although his first instinct had been to release the pictures, as he had released the new Justice Department torture memos, it was clear he had been turned around, and I was certain it was the work of the national security bureaucracy. <\/p>\n

My hunch was confirmed by the AP report, which explained, “American commanders in the war zones expressed deep concern about fresh damage the photos might do, especially as the U.S. tries to wind down the Iraq war and step up operations against the Taliban and al-Qaida in Afghanistan.” How do the commanders know this to be the case? How do they know that it is the not the case that, to the contrary, more people around the world might admire us for openly correcting past mistakes? In fact, you can be certain “the commanders” do not truly know that the photos will harm America’s image, but they do know how to protect the national security bureaucracy, after having risen to its top ranks. This is exactly what is going on here, and the explanation was pure bureaucratic excuse-making.<\/p>\n

The National Security Bureaucracy<\/strong><\/p>\n

On average, it takes about 100 days for the great Executive Branch bureaucracy to begin to work its way and will on the new officials, and that threshold has now been crossed. If anyone believes a rookie president and his new team can take over the executive branch, and actually run it without the cooperation of the permanent people, those who remain in place as presidents and their appointees come and go, he or she does not understand how Washington really works. Political appointees come and go, but the folks who actually run the government have an ongoing agenda of trying not to let these part-time political people screw it up too badly. Nowhere are there more of these permanent career professionals than in the departments and agencies that constitute the national security community. <\/p>\n

Few presidents have true national security experience before arriving at the White House. For example, of the last twelve presidents \u2013 Truman, Eisenhower, JFK, LBJ, Nixon, Ford, Carter, Reagan, Bush I, Clinton, Bush II and Obama \u2013 only Eisenhower, Nixon, and Poppy Bush truly understood national security operations when they arrived in the Oval Office. President Obama, like all the others, is getting on-the-job training. Who is doing that training? While his appointees with national security experience are playing a role, they themselves were all trained by the national security bureaucracy, and since the Democrats have been out of power for eight years, Obama’s national security team is still relying heavily on the career people. It takes about 18 to 24 months for a new presidential team to get control of the national security behemoth. <\/p>\n

I have never tried to catalogue the parts of this dominant segment of our national government, but any off-the-top-of-one’s-head list would have to include the Cabinet departments with the largest budgets, like the Department of Defense (with the Army, Navy, and Air Force), Department of State (with its Foreign Service and Embassies throughout the world), Department of Homeland Security (which united some 22 agencies including the Federal Emergency Management Agency, the U.S. Coast Guard, the U.S. Customs Service, the U.S. Secret Service, and the Transportation Security Administration.) In addition, virtually every Cabinet department has national security responsibilities — from the Department of Commerce to the Department of the Treasury to the Department of Justice, with its Federal Bureau of Investigation (FBI). And, of course, there are the Central Intelligence Agency (CIA), the National Security Agency (NSA), and the Defense Intelligence Agency (DIA) \u2013 all are involved in national security. <\/p>\n

In fact, since the passage of the National Security Act of 1947, the president has had a National Security Council, which fills much of the Executive Office Building beside the White House, and sits atop this huge apparatus with its reach throughout the federal structure, and the entire world. Suffice it to say that the national security bureaucracy is massive. David Halberstam, in his classic chronicle of the Kennedy era’s national security establishment, The Best and the Brightest<\/em>, viewed it as a great and powerful elephant, which meant that it is not easily troubled by others in the government jungle. Were David with us today, he might describe this Goliath as being very angry, which is a problem for President Obama. But he would also explain that the influence of the bureaucrats ebbs and flows.<\/p>\n

Anger in the National Security Ranks, Stemming from the Bush Years<\/strong>
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\n From generals and admirals at the Pentagon to Foreign Service officers in Foggy Bottom, along with untold thousands of the nameless and unknown career civil servants who soldier on to protect our national security, there is anger and resentment. Most of these people are not political in the partisan sense; rather, they work in and for our government to keep the nation safe, and take pride in their work. <\/p>\n

For the past eight years, the Bush Administration has marginalized them, manipulated them, and beaten them down. Dick Cheney, in particular, worked to keep the national security professionals submissive, and to ignore their good advice. In a move that was unheard of for a Vice President, Cheney created his own National Security Council, which initially was better staffed and more knowledgeable than the statutory NSC. Cheney placed personal emissaries throughout the national security structure, not only to control it but to be certain that he was always aware of what it was doing, so he could operate accordingly. Dick Cheney had his own agenda, and it proved a disaster. Cheney cost the nation blood and treasure with his preemptive Iraq war. He embarrassed the United States the world over by demanding (and continuing to demand) that we use torture. <\/p>\n

Our national security professionals have been humiliated. President Obama is a president who listens, and he has been told that airing the dirty linen that the Bush folks left behind will cause more harm than good. No doubt his top national security advisers \u2013 all products of the national security bureaucracy \u2013 started giving him serious heads-up talks when it appeared he was going to win the election, for that is when he began saying that he was more interested in looking forward than looking back, and that to investigate torture would only be looking back.<\/p>\n

When President Obama hinted that he might prosecute those engaged in torture, he was forced to run out to the CIA for a stroking session to placate these national security professionals, assuring them that he was not going to prosecute any of them for following orders of the Bush\/Cheney White House. The national security bureaucracy is testing its influence with the new president \u2013 and like all presidents, he will take some of its advice and reject other advice it gives. Right now, he is trying to figure out what to do.<\/p>\n

Obama’s Being Tested From the Inside And Outside<\/strong><\/p>\n

<\/strong>It is not likely that Barack Obama had widespread political support in the national security community, which would have had a natural affinity for one of their own like John McCain. But Obama needs to win their hearts and minds. He cannot effectively lead and protect the country without their support, and since so many are recovering from battered-by-the-White-House syndrome stemming from the Bush\/Cheney years, he is dealing with their very bad mood. Rather than risk alienation, Obama has given in to them, at the expense of his natural constituency, the political progressives who find it appalling that the Bush\/Cheney torture is not being fully exposed (and prosecuted) to prevent it from happening again — and sooner, rather than later.<\/p>\n

I would encourage those who are demanding exposure and prosecution to keep pounding their drums. Clearly, they are on the right side of this issue, and Obama knows it. While he is going to placate the national security bureaucrats from time to time in order to lead them effectively, hopefully the pressure for him to deal with the atrocious behavior of Bush and Cheney is only just getting started. <\/p>\n

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\n<\/a>John W. Dean, a FindLaw columnist, is a former counsel to the president.<\/p>\n\n\n\n\n\n <\/div>\n

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