By Dick Morris on January 12, 2009

President-elect Barack Obama’s new head of the Office of Legal Counsel in the Justice Department, Dawn Johnsen, called the legal reasoning which gave the president broad powers to authorize “rough” interrogation of terrorists “shockingly flawed…bogus…outlandish.” She said it allowed “horrific acts” and demanded to know “Where is the outrage? The public outcry?” This is the person who will decide how to interrogate terrorists. If she errs on the side of weakening methods of questioning, there’s no chance her boss, Eric Holder the new Attorney General, will reverse her. He approved of the Clinton/Reno “wall” preventing intelligence from finding out what criminal investigators had found out and took the lead in pardoning the FALN terrorists.

What is Obama thinking? How could he weaken so dramatically our protections against terrorism? Doesn’t he realize that without warrantless FISA wiretaps we could never have uncovered the plot to destroy the Brooklyn Bridge (how could we have gotten a warrant for conversations about the bridge when we didn’t yet know that al Qaeda had it in its sights?) Has he forgotten that we only found the name of the operative who was tasked with destroying the bridge because we subjected Kahlid Mohammed, the mastermind of 9-11, to “rough” interrogation techniques? Does he really mean to leave us vulnerable to terrorist attacks?

Yes he does. Not because he is callous or fiendish, but because the new president seems to carry the thinking that animated the decisions of the Warren Court on defendant’s rights over into the battle against terror. When the Warren Court first ruled that all defendants deserved free lawyers, that they had to be explicitly told of their right to remain silent, that evidence not obtained through warrants was inadmissible as were any “fruits of the poisonous tree” it occasioned great controversy (enough to help Nixon get elected president). Law and order types said that these decisions would lead to the release of thousands of criminals who would otherwise be in prison and would cause tens or hundreds of thousands more innocent people to become victims of serious crime. And they were right. The decisions of the Warren Court had exactly this effect.

But we have come to feel that these new procedural safeguards established by the Court are fair and reasonable, even if it does result in more homicide victims and unsolved rapes. Unquestionably, the Warren Court decisions put American lives in danger. But we accepted that as the price for honoring our constitution.

I don’t agree with Obama, but all he is doing is applying the same rationale to the war on terror. Will his appointments and new procedures leave us more vulnerable to terrorist attack? Yes. Do they make another 9-11 or worse more likely? Yes. Is the president putting his strict view of constitutional requirements ahead of the safety of his constituents? Yes, again.

He won’t tell the truth, anymore than the Warren Court admitted that its new rules would increase crime. But that is precisely what he is doing and doing consciously with full knowledge of the likely consequences. In the mind of this constitutional law professor we have elected president, a strict interpretation of what the constitution permits the government to do in dealing with foreign terrorists who would attack us is more important than stopping the attacks.

Of course, I think he is wrong. I think that Bush got it right that constitutional protections are only there to stop evidence obtained without a lawyer or a warrant or proper warning to the defendant from being used in court to deny a person his liberty. I think Bush was correct in saying that they did not apply where only intelligence gathering was involved and that if the evidence was not used in a criminal trial, it was OK to use rough interrogation and to deny the accused access to an attorney.

But Obama doesn’t see it that way. We can only hope that once he comes to grips with the truly horrific consequences that will inevitably flow from his neutering of our intelligence gathering abilities that he will have a change of heart (or that we will have a change of presidents four years hence).

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