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Spring 2009UVA Lawyer - Home
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Policy, Morality, Politics . . . and the Rule of Law


Barbara Armacost

John Norton Moore


Fred Schauer


Paul Stephan
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Four years ago, we conducted a faculty panel on the role of international law in the war on terror. The prevailing view then was that the Bush administration went too far to distinguish and dismiss the Geneva Conventions. It is now 2009 and the beginning of a new administration. In his first 100 days, President Obama has signed executive orders that amend or revoke prior detention and interrogation policies. Some Democratic members of Congress are also pressing to investigate allegations of war crimes, illegal wiretapping, destruction of evidence, and executive overreach by the Bush administration. Whether this is constructive for the nation or simply partisan recrimination, these issues will persist.

Asymmetrical warfare and terrorism are still with us, making the rule of law more important than ever. We reconvened two faculty members from our original panel and invited David and Mary Harrison Distinguished Professor Fred Schauer and Horace W. Goldsmith Research Professor Barbara Armacost ’89 to join them in a discussion of the law of sovereign defense and military action in the modern age of terror.

The panel:
Barbara E. Armacost ’89
Professor of Law
Horace W. Goldsmith Research Professor

John Norton Moore
Walter L. Brown Professor of Law
Director, Center for National Security Law
Director, Center for Oceans Law and Policy

Frederick Schauer
David and Mary Harrison Distinguished Professor of Law

Paul B. Stephan ’77
Lewis F. Powell, Jr., Professor of Law
Elizabeth and Richard Merrill Research Professor


UVA Lawyer: Late last year, the Bush administration’s chief prosecutor at Guantanamo, Susan Crawford, conceded that torture did indeed take place there. The Obama administration has vowed to end torture and extraordinary renditions, and is closing Guantanamo, but it is moving more slowly when it comes to state secrets doctrine. What, at a minimum, does the rule of law require here? Where are we at this moment?

Paul Stephan: You said, “end torture,” which assumes that was the policy of the United States. Susan Crawford’s assertion was that some torture had taken place but not that it was authorized. The Obama administration has not ordered the end of extraordinary renditions. They want to limit it but they haven’t said they want to end it.

They want to use renditions as a convenient tool when it is necessary to go outside the judicial process. So, I think what we’re seeing is a lot more continuity than breaking with the past. Now that the party of opposition is in power, things look different. I think they’re being much smarter about how they’re handling these problems than their predecessors were, but I don’t think the fundamental policies have changed very much at all.

John Moore: There were serious mistakes made, particularly among some of the civilian lawyers in the Bush administration. I think some of the legal opinions which came out of the White House and Justice Department were seriously flawed. They did seek to authorize activities that are widely regarded around the world as torture, are clearly in violation of the Torture Convention, and are not in the national security interests of the United States.

An important tenet of national security law is that for effective war fighting it’s extremely important for democracies to comply fully with fundamental principles of human rights. When democracies fail to do so, the cost in alienating political allies and giving additional arguments to those whom we are trying to defeat are very high.

I’ve been pleased at the early actions of the Obama administration in trying to set aside those mistaken policies. On January 22, President Obama issued an executive order to stop torture. Water boarding is torture, and I was pleased to see that they were going to stop it.

Yes, there is going to be continuity in other areas of national security law where there has been some exaggeration about problems. I think the Obama administration is correct in saying that they will continue certain kinds of rendition actions. The problem with the extraordinary renditions was their violation of a number of fundamental principles, particularly lack of clarity in relation to the Torture Convention which clearly obligates the United States to avoid rendition to countries in which individuals are likely to be tortured. There’s nothing innately wrong in sending people back to countries where there are criminal warrants for their arrest; but we do not want to send people to be tortured or to disappear.

Fred Schauer: Everybody talks about the rule of law but very few people appear to believe in it, at least in the sense of believing they should follow the law just because it is the law and thus even when there is no sanction, and even when what the law requires differs from their otherwise best judgment about what to do. Thus we should distinguish between those things that are wrong as a moral matter or as a policy matter and those things that are illegal. Many things that are wrong morally and as policy are of course also illegal, and we can and should condemn them for being morally wrong, and wrong as a matter of policy.

The bite of the rule of law, however, comes when an administration or an individual thinks that something is morally right and policy right, but is nevertheless unwilling to do it because it violates the law. In that sense of the law as an independent constraint, it turns out that historically there is far less respect than we might think for the law as law when it constrains what would otherwise be to the administration desirable moral or policy judgments. Over and over again, we see administrations and public officials not respecting the law as an independent constraint if their moral and policy and political views would lead them otherwise. I think that’s unfortunate, highly unfortunate, but often we talk about the rule of law and it’s just sort of a debater’s point when what we really want to say is, ‘This was awful.’

I think what tends to happen empirically is that when officials do what the policy and moral and political environments think is the right thing, we rarely, if ever, punish the officials for breaking the law. On the other hand, if it turns out that the moral and political and policy environment has, after the fact, come to the conclusion that this was a policy or moral disaster, the fact that it is illegal adds to the political and social and historical penalty. It is a way of increasing the stakes for an administration if they predict wrong about the moral and policy environments. But most administrations recognize that if the moral and policy and political environment enforces what they do as a matter of substance, and it turns out well as a matter of substance, the fact that it’s illegal is not going to be any more of a problem than it was for Abraham Lincoln and habeas corpus, or Franklin Roosevelt and some of his actions.

P. Stephan: My critique of the Bush administration, which to some extent echoes John’s, is that they were obtuse about Fred’s point. They believed that if something could be rendered legal in the sense that a legal opinion could be provided to support it, that solved the moral and political issues and therefore suspended the moral and political judgment. Philip Zelikow [formerly director of the 9/11 Commission, counselor of the Department of State, and director of UVA’s Miller Center; currently professor of history at UVA] made that point since he was out of office. I think that captures 95% of the truly atrocious things that were done.

Barb Armacost: For the Bush administration, the question became almost entirely a legal one. It wasn’t only a matter of ‘if we can solve the legal problems, the moral objections will go away,’ but there was a conflation of legal with moral. I’m not sure the moral questions were entirely being surfaced.

I think the other thing, adding to your point, Fred, is that if there was direct evidence that some of the questionable things the Bush administration did immediately after 9/11 definitely and clearly avoided another big attack, it might look somewhat different to us. Many of the legal opinions that we now look back at with horror were written either in 2001 or in 2002 right after 9/11 happened. The Bush administration was trying to figure out what to do in order to protect the country from possible additional attacks. I disagree with much of their legal analysis and with some of the methods they used, but I think some amount of humility needs to extend toward their efforts to keep the country safe in the period immediately after 9/11.

F. Schauer: There is a lot more talk about international law in light of the largely unsuccessful efforts in Iraq than there was in the context of the largely successful efforts in Kosovo, even though the international law issues may not be as dramatically different as some might think. Indeed, Dawn Johnsen, incoming Director of the Office of Legal Counsel (OLC), has very recently written that most of the problems of the Bush Administration, in her judgment, were not with the powers that were claimed; the problems were with specific abuses. She is largely sympathetic with the idea of signing statements, sympathetic with the view that presidents can act on their own constitutional interpretations even if they disagree with Supreme Court interpretations, and sympathetic with the view that at times laws should not be enforced for a range of reasons. There is at least a question for some of us that if you’re just going to criticize the abuses and not criticize the nature of the authority that allowed the abuse, are you really getting at the core of the problem? I’m somewhat of an unreconstructed judicial supremacist on some of these constitutional issues. I would like my presidents to defer to Supreme Court interpretations of the Constitution, but that’s a highly contested issue at the moment.

UVAL: So, if rule of law and national security are in absolute opposition, what happens?

B. Armacost: Well, I don’t think I would even frame it as rule of law and national security being in opposition. I actually found some of Dawn Johnsen’s arguments in the Boston University Law Review article to which Fred was referring quite persuasive. I am thinking back to times during my tenure at the Office of Legal Counsel [1990–92], when a legal question would come in and there simply wasn’t any law on it. In particular, the kinds of questions that come up in emergency circumstances may not have a clear answer under existing precedent. In such cases, you’re trying to figure out what to do based on very little authority. In these kinds of situations, there will inevitably be a significant amount of discretion.

F. Schauer: That’s clearly right.

B. Armacost: Unfortunately, discretion can always be abused and so the question then becomes, ‘What do you do after discretion has been abused?’ Do you take away the discretion? Do you try to figure out additional ways to constrain it? As a number of critics have pointed out, there were at least two problems with the Bush administration’s use of executive power. One was that the substantive legal arguments were flawed and therefore the actions that followed from them were also wrong. But the second problem was the secrecy under which the administration operated. One way to constrain executive discretion is to make it more transparent and so more amenable to outside critique. While executive analyses and actions will at times require secrecy, it strikes me that if positions are being taken that strain against legal and constitutional boundaries, they probably need to be more public. I think some of OLC’s legal determinations could have been more transparent, especially the ones justifying policies that remained in effect well after the events of 9/11.

J. Moore: There’s an additional problem I think that fits very much with what you’re saying. The National Security Council system, including the legal part of the NSC, normally brings into the process all of the concerned and expert parts of the government. But it was bypassed in the Bush administration; indeed it was not really meaningfully used. I think one of the problems that led to the flawed decision to engage in the Iraq War in the first place was a collapse of the NSC system. There is nowhere that it collapsed more thoroughly than when you look at the process behind the scenes elevating a lawyer on the vice president’s staff above that, for example, of the lawyers to the Joint Chiefs of Staff or to the State Department legal advisor’s office. We saw a failure of an appropriately functioning NSC process under Bush, including its legal dimensions.

But I’d like to come back if I could and point to one of the issues Fred has raised in relation to law and morality in foreign policy issues. I think Fred is right. It’s sad that in most foreign policy issues we don’t see our national officials thinking a great deal about the moral dimensions. But despite that, I’m inclined to think that to some extent law itself and the rule of law is in many cases something that embodies human experience and thinking about effective policy and moral choices.

Indeed, I think the torture prohibitions in the treaties that the Bush administration set aside embodied precisely that level of human experience and moral choice that we had made earlier. I’m a considerably stronger proponent for the rule of law because for me, it is in its broadest sense a check on power. A democratic system typically has lots of those checks. We are blessed to live in a Madisonian system with a genius for checks and balances. For that reason, I think law was one of the checks that was quite important in ultimately overturning some of the failures in the Bush administration.

P. Stephan: I’d like to surface a paradox here. I think that lawyers are peculiarly aware of the limits of what lawyers and law can do. They understand that we’re talking about classical structures and soft constraints rather than hard rules. But non-lawyers tend to be terrified of lawyers and think that they’re always bringing hard constraints. If you look at the composition of the two administrations, one of the things that’s unusual for Washington about the Bush administration itself was how few lawyers there were in the top positions; not the president, not the vice president, not the director of national intelligence, not the secretary of state, not the secretary of defense. Compare that to the new administration where most, although not all, of the people in those positions have a law degree. I do think it is the terror of lawyers by non-lawyers that explains at least some of the displaced decision-making that took place in the prior administration.

F. Schauer: Although one reason that people are afraid of lawyers at times is that good lawyers will often, or should often, tell people, ‘You are absolutely convinced that this is morally, politically the right thing to do. But even if you are right, you can’t do it.’ I’m not sure that even in some of the expansive statements in the new administration, that there’s going to be as much of that as I’d like. I’m more sympathetic with a more constraining or harder-edged view of law.

A president or a governmental official of any kind who thinks that national security is at risk believes with ultimate sincerity that there is a moral compulsion to do something. They are not saying that morality is irrelevant. They are saying the future of the nation depends on it. And to them, that is a moral calling of the highest order that trumps everything. But one of the reasons that we have law is that people often disagree about morality. Law is a way of settling moral disagreements or of making choices in the face of moral disagreement. As a result, there are at least some of us who would like to see an administration that with some frequency is willing to say, ‘We really, really, really, think this is the right thing to do, but it’s illegal.’ Administrations tend not to do that. It’s very much an open question whether we’ll see it from the new one.

P. Stephan: Well, I think that the good government lawyer, like any lawyer, who wants to impede foolish as well as illegal decisions has limited opportunities to say, ‘You can’t do that,’ because you can be replaced. A good lawyer should describe all the reasons why the officials’ idea isn’t a good one but, if the officials still want to do it, show them how they can legally while warning that it will be a lot more expensive and more public than the officials thought. If the officials really think great interests are at stake, they can do it fully aware of the consequences. I think that kind of effective counseling is available to lawyers.

B. Armacost: What’s interesting about Paul’s observation that there were few lawyers in top positions during the Bush administration is that it was actually a small group of lawyers at the Department of Justice who were given a tremendous amount of power to shape policy. I think this raises an additional irony about the Bush administration. Paul and Fred suggested that people are afraid of lawyers because lawyers tell them they can’t do things they find expedient because to do so would be illegal. The irony is that in this case it was the lawyers who were saying, “Here’s a way you can do what you want to do,” rather than the other way around.

UVAL: Can a sitting president and vice president rely in good faith on an OLC memo that justified water boarding even though it has been universally recognized as torture?

P. Stephan: I just want to be technical here: water boarding is a war crime. Cruel, inhumane, and degrading treatment is a war crime. It doesn’t mean it’s covered by the Torture Convention. It’s not necessarily covered by the felony prohibition of torture. I think these legal distinctions matter because different people are covered by war crime legislation than by the torture statute.

B. Armacost: To answer your question about reliance on OLC opinions, I think as a practical matter officials who act on OLC’s determination that particular actions are lawful are not likely to be prosecuted for having taken those actions. For one thing, OLC speaks for the Justice Department and DOJ lawyers would be the ones doing the prosecuting. According to Jack Goldsmith, who headed OLC at the end of the Bush administration, CIA agents certainly viewed OLC opinions that way, calling the so-called torture memorandum a “golden shield” against criminal prosecution.

The other thing I wanted to say goes back to Fred’s distinction between what’s legal and what’s moral. A lawyer could take the following position: “My job is not to tell you whether what you propose to do is a good idea, or whether it is good policy, or whether it will look good to the media or the public. My job is to tell you whether it is legal. What you decide to do with the legal analysis is not my problem.” This is essentially the position that John Yoo took in defending the torture memorandum, which he authored. He said “What the law forbids and what policymakers choose to do are entirely different things.” While it is sometimes useful to make a distinction between law and policy, there is no neutral legal analysis. Legal reasoning is always in the service of some concrete legal problem or question and lawyers choose what arguments to make. Choices about legal arguments, in turn, make some policy choices more or less possible.

Lawyers cannot, in my view, disclaim all responsibility for the policy options that are facilitated or even encouraged by their legal arguments. At the very least, I think, lawyers, particularly government lawyers, have some responsibility to say, ‘I understand what actions you want to take. Here’s a plausible legal argument that could support these actions. But I must tell you that the legal argument would really be a stretch and you should recognize that.’ I believe that the rule of law requires a lawyer, especially a government lawyer, to be not only an interpreter of law but also a person who recognizes that law is closely related to policy and morality. You can’t entirely separate the two.

J. Moore: This very much fits with the point that Paul has made of the difference between good lawyering and bad lawyering. You want to try to provide other lawful alternatives for the policymaker to try to figure what might be done, but you must also deal with the policy implications. I had an experience with the Bush administration along these lines that I thought you might find of interest.

I was asked at one point to write a memorandum for an intelligence service in the United States. I sent in a memorandum on the torture issue describing how it was completely illegal and that they were getting poor legal advice. I also made a series of policy arguments as to why what they were doing was completely wrong. I was not surprised when I quickly got a call from the lawyer for this particular office who was very upset. The lawyer did not complain about the fact that I had written that his principals were getting poor legal advice, but rather he complained that I was dealing with policy issues, specifically that, ‘Didn’t I know that lawyers aren’t to give policy judgments?’ I asked myself, ‘Where did this person go to law school? What view does he have of law?’ He then went on to respond to one of my arguments in which I had said that the traditional intelligence manual for the Army is far better than everything that’s being done. If you had to use one standard, use the traditional or slightly revised Army Interrogation Manual that does not authorize torture as broadly understood.

His answer to me was that the manual is for people in the Army who are really kids and have poor education. ‘In the “___” intelligence service,’ he said, ‘we do our interrogations with Ph.Ds.’ Did he just not get it that torture is torture whether administered by an Army private or a Ph.D.?

The great tradition in law, the right tradition in law, in fact, perhaps the only serious tradition in law, should be to understand that law and policy fundamentally go together. Now, of course, that is not to suggest that there aren’t a variety of policy issues that are not those for the lawyer to make. But the idea of trying to separate law and policy is an enormous mistake, which leads to this kind of seriously wrong thinking.

F. Schauer: Although one way in which it might not be a mistake, or at least one thing we might have to worry about, is if we conflate the legal with the moral with the policy too much, we are likely to find surfacing the ‘if it is moral’ and ‘if it is good policy,’ then therefore ‘it is legal.’ Given wide disagreements about policy and morality, I worry a great deal about the view that that which is moral and good policy is for that reason legal. When we have an administration or lawyers in the administration that believe that something is profoundly morally necessary and profoundly good policy, I want to preserve some logical space for the people who will say, ‘Yes, it’s profoundly morally necessary, yes, it’s good policy — but it violates the law.’

J. Moore: But surely you’re not making an argument to say that when it is both illegal and bad policy, you should not as a lawyer make both arguments to the policy maker?

F. Schauer: No. I’ll stay away from the question of what lawyers ought to do, which is different. Lawyers, after all, are human beings. That’s a contested view, but let’s assume for the sake of argument that lawyers are human beings. Then somebody given the opportunity to talk to somebody in power ought to be a human being and speak not only to legal issues, but also to policy and moral considerations.

UVAL: But isn’t that exactly what happened in the Bush administration? They did conflate morality and policy saying these are obviously the smart things to do, so they’ve got to be legal.

F. Schauer: I think there was some of that in the Bush administration. There was some of that in the Lincoln administration. There was some of that in the Roosevelt administration. There was some of that in the Clinton administration.

UVAL: That’s your point, then. If it’s right, then it’s okay?

F. Schauer: If the judgment of history comes out on your side on the policy and the morality, people will sort of chuckle at Lincoln in habeas corpus, or Lincoln and the freedom of the press, or Roosevelt and some of these things.

J. Moore: And there’s the famous Thomas Jefferson example where he personally believed that accepting the acquisition of the territory from the Louisiana Purchase without consent of Congress was unconstitutional, but he believed that it was so strongly in the interest of the United States that he did it anyway.

F. Schauer: Interestingly, in this regard, one of the historically very important counterexamples — and I wish there were more — was Eisenhower and Little Rock. Eisenhower sent federal troops to Little Rock to aid in the desegregation of the schools even though he believed that Brown v. Board of Education was a mistaken judicial decision. The willingness to support the Supreme Court, even when he disagreed with it, is a wonderful, but unfortunately rare, example of obligations to the law even when they differ from a president or official’s own political and moral judgment.

P. Stephan: Well, I’ll add one more that’s quite contemporaneous: Eisenhower and Suez. I mean, Eisenhower felt that the actions of the British, French, and the Israelis were hostile to the U.N. system, that the U.N. system was critical, and so he insisted that the Israelis surrender the territory that they’d acquired in violation of the U.N. Charter.

UVAL: The Bush administration took some very aggressive positions about the scope of executive authority in dealing with threats to the U.S. and its citizens. Critics charge that the result was a sharp and lasting reduction in civil liberties. Is that a valid concern?

J. Moore: I don’t think so. I think the serious detainee abuse was an aberration and there have been a wide variety of different allegations about civil liberties problems in the Bush administration which are to some extent overblown. We’ve discussed some of those from past presidents in past wars. The Alien and Sedition Laws were clearly anathema to appropriate First Amendment freedoms. Jefferson was surely right in opposing that.

One can talk in World War I about the restrictions on the First Amendment. We did not have any real First Amendment restrictions in this setting under George W. Bush. We had a series of problems focused on detainee abuse, which includes but also goes beyond the torture issue. Still, they did not engage in the kind of torture that the Vietnamese did against our POWs or the Iraqis did against American POWs. In my judgment, what we did was something we might call torture-lite. It was wrong. It was a mistake, and it was in violation of at least the Torture Convention which was binding on the United States of America, but I don’t see this as something that has fundamentally changed our constitutional structure. I see it rather as a situation in which the checks and balances and our strengths in a democracy are bouncing back. They’re correcting the Bush administration detainee treatment failures which will go down in history as the principal “war on terror” abuses.

P. Stephan: I would say that the gifts from the Bush administration to our law are Hamdan and Boumediene. I mean, if the administration hadn’t taken such extreme positions, it wouldn’t have backed the Supreme Court into a place that it really hasn’t been before. We wouldn’t have gotten those corrective checks in Europe, anywhere in Europe — with all due respect to the House of Lords or the European Court of Justice and the European Court of Human Rights. So, whatever the blunders of the administration, and they were legion, I’m still reasonably comfortable that this system as a structure is strong.

F. Schauer: And I think John’s right. It’s interesting that so few of those blunders related to speech and press. The cynic says that there is a political reason for that, and it is the old journalists’ adage — or old politicians’ adage — that you should never argue with the fellow who buys ink by the barrel. Thus it is much more dangerous in terms of press coverage to restrict freedom of the press than it is to restrict a whole bunch of other things, and that may explain part of why we have seen so little restriction of dissent, criticism, or anything of that sort.

B. Armacost: I think there are two reasons for what happened during the Bush administration. First, it seems clear that officials in the White House and the vice president’s office had an explicit agenda to strengthen the presidency. There was a perception by members of the Bush administration that presidential power had shrunk in previous administrations and their goal was to reassert that power. As Paul has pointed out, to the extent that there was such an agenda, it was largely, though not entirely, quashed by the Supreme Court.

But the second factor that explains why the Bush administration took such aggressive measures is again, the events of 9/11. We had an unprecedented attack on the country and, like the internment of Japanese-American citizens during World War II, when we have a national emergency there is pressure to expand governmental power — especially executive power — to address the emergency. Fortunately, when the dust settles we question whether the actions we took were justified. The positive thing is that there has been a huge amount of disclosure of what went on behind the scenes. This disclosure has led to some corrective actions. There has been correction by military leaders, who rewrite the field manual on interrogation. There has been some political correction by Congress and the judiciary. There has also been a debate of these issues in the public square. So, it does seem to me that we are re-stabilizing.

On the question of presidential power, it has generally been understood that presidents have some responsibility to determine the lawful extent of their own power. This undertaking should be both humble and deferential to the other branches. But to my mind, the president has a co-equal responsibility to make judgments about the constitutionality of executive action.

F. Schauer: That’s where I disagree.

B. Armacost: Here’s the argument. First of all, the president is the primary representative of one of the three co-equal branches of government. It seems to me that each branch has some responsibility for thinking about the lawfulness of its own action. Second, the president often acts in contexts in which there isn’t a lot of precedent, so even if we thought the president should defer to the other branches, there are a lot of cases in which there isn’t clear law governing the actions at issue. The third thing, though, is how a president exercises this interpretive responsibility. The president is not, of course, above the law. Thus a president ought to be most cautious in contexts in which presidential action could conflict with the views of the other branches.

F. Schauer: I think we have to distinguish the other branches here. For those of us who believe that the Supreme Court has a supreme role in constitutional interpretation, where the Supreme Court has spoken — not where there is no law but where the Supreme Court has spoken — I would like to see administrations saying, at least if it is a recent decision very unlikely to be reversed, ‘That settles it.’ The last administration didn’t say it. This administration is not willing to say it. I wish this administration were willing to say it. I don’t see this administration being nearly as expansionist about presidential power as the last, but I see them as more expansionist than even some people highly sympathetic to the administration would like them to be. That remains to be played out.

B. Armacost: But that assumes that the law on the many difficult issues that confront a president is clear.

F. Schauer: But sometimes it is clear. The question is when it is clear, does the administration have to defer to a clear and recent Supreme Court decision. The current administration is not willing to say, ‘Yes, we do.’ I wish they were.

J. Moore: I think that Fred’s and Barbara’s views here are very similar and I’m not sure there’s any real space between the two. The starting point is, the system does work. The system works well and the system may take some time, but the system does work and we’ve seen the system, I think, work here. Surely Barbara is also correct that every single one of the branches has a constitutional obligation to adhere to the Constitution of the United States, which means inevitably also some level of judgment has to be made. I’m inclined also to agree completely with Fred that if you do have a Supreme Court decision, that is a recent Supreme Court decision, one you have every reason to believe in fact is the constitutional law as announced by the Supreme Court of the United States, it is incumbent upon the President of the United States and the Congress of the United States to support the decision and be consistent with it.

I do think also that we might be a little more sympathetic to the starting value choice of the Bush administration in relation to protecting presidential power because they were aware that we had had a variety of periods in U.S. foreign policy history in which presidential power had received short shrift. In my judgment, they were correct in putting that issue on the agenda. I think they simply did a terrible job in seeking to protect presidential power and overreached in ways that in the long run probably have done enormous harm to presidential power.

UVAL: How should the Obama administration handle the growing calls for investigations and trials, and do you think that some of the Bush administration officials have created or committed war crimes?

J. Moore: Well, a couple of general observations. First, it seems to me clear that when you’re talking about the general officers of the United States, the lower level officials within the CIA, within other services of the United States that rely on opinions, legal opinions from the Office of Legal Counsel, for example, it is inappropriate to be talking about trying those people or putting them in some kind of criminal setting. We should be very careful in applying criminal law to those who believed in good faith that they were complying with the law.

I think on a second general principle that the failures here were at a very high level. I would welcome a neutral, non-partisan review of the behavior of those high level officials who were responsible. Such a review would have to be narrowly circumscribed and should look seriously at how we avoid this error in the future. An independent ad hoc panel might be more neutral than a Congressional committee to do such a review.

B. Armacost: I’m not sure that criminal prosecutions of high level officials would be helpful at this point. Our focus ought to be forward, not backward. I’m glad that a lot of the questionable things that were done have come out. But I think we have to go back to the point that I keep making, which is that these actions were taken while we were in the throes of a national emergency. I think our leaders made serious mistakes but I think the focus needs to be on how we handle these kinds of situations in the future. In particular, we need to anticipate what kinds of precommitments are necessary to guard against bad decisions when we face the next emergency situation. And, in this regard, there is just as much need for review of what happened on the ground as there is to question what went on at the highest level of government.

For example, a big reason why the interrogation abuses occurred was that military officials were told that the war on terror had ushered in a new paradigm but field level interrogators were given no guidance for how to operationalize the new paradigm. Interrogators were told that the old rules no longer applied but they weren’t sure what the new rules were. They were also told that the detainees they were interrogating were really dangerous and that these detainees were withholding vital intelligence information, essential for preventing future attacks. This message created enormous pressure for aggressive interrogation. On top of all this, the military interrogators and the military police, many of them reservists, were very poorly trained. The military police that were running the prison in Abu Ghraib had never run a prison before and many of the military intelligence officers had never interrogated a “real” detainee.

So what steps need to be taken to prevent similar abuses in the future? Well, you don’t fix the problem if the only thing you do is to rescind high-level legal arguments and policy statements. Don’t get me wrong. It is really important that executive and military officials indicate their commitment to a different set of policy judgments and that they set a different legal culture from the top. But you also have to pay attention to operations on the ground. We need to make sure that in an emergency like this one we’re not turning loose untrained, undisciplined, lower level folks who are going to be more aggressive than they should be. Interrogators were misled and they were undirected. We need to be at least as concerned about the operational level pathologies as we are about prosecuting high-level officials.

J. Moore: Abu Ghraib is hard to put together. It’s hard to know how much is the combination of simple failure of leadership and untrained individuals and how much is abuse that had been quasi-directed at Guantanamo and that then seeped over to Abu Ghraib. I have some good friends who have strong opinions on both sides of that question. They make strong arguments that, on the one hand, it’s nothing more than a series of untrained people at the low level, and others who believe strongly that this abuse resulted from a failure at the top.

For me, it comes back again to the notion that we’re blessed to live in a marvelous democratic country that does have a rule of law, a very serious and meaningful set of checks and balances. Errors of policy have a way of getting corrected. Sadly, however, in the meantime, bad policies can do enormous harm and I think there is no doubt that great harm was done to the foreign policy of the United States by the mistaken detainee abuse policies of the Bush administration.

UVAL: Thank you all for your time.