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By Root 3954 0

or in America who would say that torture should never, ever be used, particularly if thousands of lives are at stake. Take the hypothetical: If we knew that there was a nuclear bomb hidden in an American city, and we believed that some kind of torture, fairly severe maybe, would give us a chance of finding that bomb before it went off, my guess is most Americans and most senators, maybe all, would say, Do what you have to do. So it is easy to sit back in the armchair and say that torture can never be used. But when you are in the foxhole, it is a very different deal. And I respect—I think we all respect—the fact that the president is in the foxhole every day.”

* I was not told precisely about the intelligence gained through the CIA program, but I believe General Michael Hayden, a four-star Air Force general who had been director of the National Security Agency, and in 2006 led the CIA. Hayden was not a partisan or a bomb thrower. He did not have to defend boldly and publicly a program that he had inherited. After a careful review, Hayden concluded, “I was convinced enough that I believed that we needed to keep this tool available.” Hayden, along with former federal judge and U.S. Attorney General Michael Mukasey, wrote that: “[F]ully half of the government’s knowledge about the structure and activities of al Qaeda came from those interrogations.” 35

* The court proceedings against the so-called Blind Sheikh, Omar Abdel Rahman, who conspired to destroy the World Trade Center in 1993, revealed almost all the U.S. government knew about al-Qaida at the time. To comply with standard criminal procedures in U.S. courts, Andrew McCarthy, the chief prosecutor on that case, was required to turn over to defense attorneys a list of two hundred possible coconspirators. This told al-Qaida which of its members had been compromised and indicated where U.S. intelligence had gleaned its information. Bin Laden reportedly was reading the list several weeks later in Sudan. He must have been shaking his head in contemptuous wonder at how effectively the United States was assisting him in his deadly jihad.1

* In 1780, George Washington tried a spy linked to Benedict Arnold before a board of inquiry that was essentially a military commission. The use of military commissions by the United States government continued through the Indian Wars and the Mexican-American War. During the Civil War, military commissions tried more than two thousand cases. During World War II and the months After, thousands of prisoners were tried before commissions in Germany and Japan for “terrorism, subversive activity, and violation of the laws of war.”3

* One of the dubious privileges of serving in government in the information age is the increasing number of lawsuits in which public officials are named. Many are from folks looking to make a name or some money for themselves. One lawsuit alleged that the 9/11 attacks were a carefully orchestrated plot hatched at the highest levels of the U.S. government. It claimed that because I supposedly had foreknowledge that a plane was going to hit the Pentagon, I was legally liable for not ordering the evacuation of the building earlier. The many dozens of lawsuits are as ludicrous as they are time consuming and expensive.

† Future Chief Justice John Roberts was on the U.S. Court of Appeals for the District of Columbia Circuit when Hamdan’s case came to the appellate level in July 2005. He and the two other judges on a three-judge panel (one a Clinton appointee) unanimously had held that military commissions were legitimate forums to try enemy combatants, because they were authorized by Congress as part of the Articles of War, which are now part of the Uniform Code of Military Justice. Moreover, the court also noted that al-Qaida and its members were not covered under the terms of the Geneva Conventions, and that even if they were, Hamdan could not as an individual enforce the treaty in U.S. courts. Roberts had to recuse himself in the Supreme Court decision because of his earlier involvement in the case.