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Law, Not Torture, Protects National Security

A Commentary By Joe Conason

Friday, August 28, 2009

Predictably as always, the Republicans in Congress and in the conservative media are berating Attorney General Eric Holder for deciding to investigate the CIA's use of abusive interrogation methods on terror suspects.

They warn that probing this sensitive history will compromise intelligence operations and endanger the nation. They insist that these techniques have, in the words of former Vice President Dick Cheney, saved thousands and perhaps hundreds of thousands of lives. They suggest that the attorney general should simply ignore the evidence of illegal conduct and "investigate the terrorists instead," as if the Justice Department cannot do both.

But as those politicians and pundits ought to understand by now, the American system of justice was always meant to do both -- that is, to apprehend and prosecute criminals, and to ensure that those who apprehend them do not violate the law in doing so. That system routinely investigates law enforcement officials who use excessive force because we recognize that the credibility and authority of the law depends on universal accountability.

Voices on the right have often protested prosecutions of police officers and sheriffs because, they claim, such accountability will lead to higher crime. Yet in fact, the declining crime rates of the past three decades have coincided with stronger efforts to ensure that the police observe the rights of suspects and avoid the use of undue violence.

By the same principle, any nation that professes to live under constitutional governance must be able to ensure that its intelligence professionals observe relevant laws, including the international treaties that ban torture and abuse of prisoners. There is nothing in the U.S.

Constitution, even the president's wartime authority, that permits the chief executive and his minions to assume dictatorial power. So the attorney general must investigate abuses committed in their name.

According to Cheney, however, preserving the rule of law will expose the nation to devastating terror attacks. He has repeatedly claimed that waterboarding as well as other abusive methods are all that stand between us and a repetition of 9-11 or much worse. But during his years in office, and especially during the prelude to the invasion of Iraq, he became notorious for exaggerating and fabricating scary "intelligence" that was designed to ram through his political agenda.

Evidence that has emerged in recent days, through the release of the 2004 CIA inspector general's report on the agency's use of "enhanced interrogation," provides little support for the former vice president's bluster. As Spencer Ackerman notes in The Washington Independent, the uncensored portions of the IG report honestly concede that the effectiveness of those techniques is open to doubt.

The report does not conclude that Abu Zubaydah or Khalid Sheikh Muhammad, the two ranking al-Qaida operatives captured after 9-11, revealed critical intelligence information because they were waterboarded dozens of times. Instead, the report indicates that most if not all vital information about the jihadi terror network was obtained through normal investigative work and questioning.

What Cheney and his supporters have tried to do, by grabbing brief quotations out of context, is to confuse interrogation per se with the abusive techniques. And what they purposely omit is the inspector general's damning conclusions about the contradiction between official U.S. human rights policy, especially our condemnation of torture by other states, and the lawless brutality approved by the Bush-Cheney administration.

As for the argument that we cannot protect our security while upholding the law, that is an old canard that reappears -- usually, but not always, in the mouths of Republicans -- whenever intelligence abuses require investigation and possible prosecution. Many of the same people, including Cheney, uttered the same warnings back in the '70s and '80s, when Congress and federal prosecutors probed lawbreaking by the CIA.

But those landmark investigations were followed not by a diminishment of American security and power, but by the fall of the Soviet Union. It is the past eight years, when the Cheney outlook prevailed, that have seen a ruinous reduction in our prestige and influence -- and perhaps our future security, as well.

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