Forget Torture, This Debate is about Who Sets Policy

The release of the torture memos has raised many issues and a lot of speculation. It appears that, at a minimum, that President Obama is taking steps to appease the far left of the Democratic Party, and at the extreme, he may be laying the ground work for criminal prosecution of career Federal employees and former Bush Administration officials.

The debate to date has focused mainly on two issues: what constitutes torture and was gathering intelligence that saved American lives justification for the actions taken. On the latter, I say absolutely, but the question of what is torture is much too subjective. For me, it is torture to watch the evening news; others clearly have the stomach for it and even enjoy it.

The real debate here is who sets policy and what is the difference between policy making, the Code of Federal Regulations, legislation, and case law.

I am a recovering policy wonk. When I served as a Deputy Assistant Secretary at the Department of the Interior, I took an oath to uphold the Constitution and comply with all laws and rules thereunder and I swore to fulfill the duties of the office. One of the principal duties was to help formulate and set policy. In other words, President Bush was elected President and accordingly he was to govern and my job was to help the Administration achieve its policy goals with respect to the Department of the Interior.

Here is how it works under the three branches of government established in the Constitution. Congress, the Legislative Branch, drafts ands passes legislation which becomes the law of the land. In so doing, Congress sets the direction and establishes the overarching policy direction of the United States. However, in nearly all circumstances, Congress does not provide enough detail for the law to be implemented, complied with, or enforced. Because the Executive Branch is responsible for implementing and enforcing the law, the appropriate agency promulgates regulations or rules for the implementation and enforcement of the law thus providing additional detail deemed necessary for the proper implementation and enforcement of the law enacted by Congress. Even though reading the detailed rules and regulations in the Federal Register is a guaranteed cure for any form of insomnia, these rules quite often leave a lot of discretion to Federal employees to interpret the rule under certain circumstances or facts and apply it differently. This wiggle room, if you will—this latitude left to the Executive Branch employee—is intentional. This is the realm of policy making. All rule making must be within the legal framework established by Congress, and subsequently, policy making must be consistent and the finer filter of the regulatory framework. If there are questions about whether a rule or regulation is consistent with the law, or whether a policy goes outside the legal or regulatory framework, then the Judicial Branch weighs in to make that judgment. Often times in the course of determining if a regulation or policy is legal, a Federal Judge will in their decision clarify or interpret what Congress intended when they passed the law. This results in what is called case law and it is yet another filter the Federal employee of the Executive Branch must apply when implementing or enforcing the law.

So applying all that to the question of torture, what we have here is a case of Federal employees acting under the appropriate direction of the elected President and his appointed policy makers. The experts in the field and the lawyers reviewed the law, the regulations, the case law, past practices (policies) during four previous wars, and they developed a policy that was in the end determined to be consistent with all the available frameworks. Then that policy was briefed the Chairs of the Congressional Committees of jurisdiction and received their approval.

It is the prerogative of any Administration to disagree with and change any policy; it is called governing. The spoils go to the victors, and in our case, the victors get to and should govern. The job of career Federal employees is to inform policy makers about the law, regulations, the successes and failures of past practices, and to assist the current Administration achieve their lawful policy goals. I have often said that bureaucracy is the keel that keeps the ship of state moving forward. Policy makers are a small rudder and are considered highly successful if the can alter the course of the ship of state by 10 degrees to the right or the left.

Theodore Roosevelt, before he became President, helped to establish the current system of civil service in order to protect Federal employees from whims of elected or appointed leaders and provide that important keel to the ship of state. It appears that it is the goal of the Obama Administration is to make career Federal employees or elected and appointed officials subject to prosecution because disagrees with the previously established policy. If successful in this endeavor, then the ship of state will become a ship without either a keel or a rudder, the Obama Administration will have consigned the United States to an inevitable ship wreck in the rough and turbulent seas of the world today.