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An interesting side note to the debate about how to try roughed-up detainees: new research from psychologists and criminologists suggests that jurors tend not to discount evidence obtained from rough interrogations even though there's plenty of evidence to suggest that those claims aren't reliable. Writing in Psychology, Crime & Law, 2009, the authors conclude that jurors' expert bias -- their penchant to view expert testimony as more reliable -- overrides their perceptions and evaluations of the situation under which an interrogation was conducted. Indeed, even when given hints that confessions are false, jurors tend to put some weight in them.  This finding, which replicates others in the field, has some important implications for any federal trials of terrorist suspects. Jurors tend to put themselves in the shoes of people under duress and project upon them their own principles, such as -- if they were innocent, they'd never give in to torture. Assuming that some evidence some rougher interrogations makes it through the judge's gauntlet, jurors might not penalize the government. This finding also bodes well for prosecutors who want to try and find collateral information that confirms information obtained via torture, which is, itself, inadmissible.  Because "potential jurors do not appear to understand the link between psychologically coercive interrogation and false confessions," the authors suggest that expert testimony about the effects of coercive interrogations might trigger the jurors' expert bias in a salutary way.

Brennan's Role Formalized; Has Walk-In Privileges, No Longer His Own Staff

So far as breaking news goes, this ain't all that broken. But in government, structure often dictates function, which, in turn, heavily influences policy. Who reports directly to the president? Who reports to an assistant? Are staff in one bucket allowed to communicate with staff in another? Today, the Obama administration announced the consolidation of the Homeland Security staff and National Security Council staff at the White House, completing a process that began in the latter years of the Bush administration. A newly-named "national security staff" will serve the president as his principal staff coordinators for all homeland security, counterterorrism, transnational and international policy. The announcement today makes plain that Obama has come to value the services of his chief homeland security adviser, John Brennan, who has direct walk-in privileges. Obama writes that he will retain Brennan's position, which -- and this is important -- DOES NOT report to the national security adviser, but reports directly to the President. Brennan, "as my principal White House advisor on these issues, with direct and immediate access to me. The security of our homeland is of paramount importance to me,  and I will not allow organizational impediments to stand in the way of timely action that ensures the safety of our citizens."   

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Jack Goldsmith, the onetime head of the Office of Legal Counsel at the Department of Justice, calls it the "Cheney fallacy."  In his comprehensive article about Barack Obama's national security doctrine, Goldsmith writes that the main difference between the Obama and Bush administrations 

concern[s] not the substance of terrorism policy, but rather its packaging. The Bush administration shot itself in the foot time and time again, to the detriment of the legitimacy and efficacy of its policies, by indifference to process and presentation. The Obama administration, by contrast, is intensely focused on these issues.

I doubt that many White House officials disagree, although they point out that many of the institutionalized decisions that Goldsmith sees are works in progress, and that the executive is inherently limited in his ability to quickly reverse course on many aspects of national security policy.  The critique embedded in Goldsmith's essay, which is probably the best account to date on the subject, is that Dick Cheney's approach to policy and his mastery of the national security apparatus of the government led the administration to ignore avenues that would have led them to the same policies, albeit with fewer obstacles.

Indeed, it is hard to find a Bush administration official who disagrees with Goldsmith at this point, save for friends and allies of Mr. Cheney's.  That's because, from the middle of the President's second term until the end, the Bush administration began the process of legitimation. In some cases, their hands were forced, like when the New York Times revealed details of the National Security Agency's domestic collection program.  But in many cases, especially as regards detainee policy and diplomacy, key administration principles decided to change course. Donald Rumsfeld was belatedly fired; Condoleezza Rice aggressively worked to repair America's working relationship with its allies; enhanced interrogation techniques were abandoned; the U.S. government sat down with Iran, and so on .  Don't take my word for it.

"I think what's interesting is that, in some way, Dick Cheney actually lost these arguments inside the Bush administration. And so he may won early with Colin Powell and Condi Rice, but over the last two or three years....I think there was a recognition that these enhanced interrogation techniques that were being applied -- that they had applied early on -- were potentially counterproductive, that a posture of never talking to our enemies, of unilateral action, of framing national security only in terms of the application of force, often unilateral -- that that wasn't producing."

I quote here President Obama, speaking to Newsweek's Jon Meacham.  Obama continued: "I think a lot of these arguments were settled even before we took over the White House."

So why is Dick Cheney targeting President Obama?  It's hard to find a Republican who believes that Obama is fundamentally making the country less safe with his national security decisions, even as individual choices -- the vow to close Guantanamo, the decision to release memos about interrogation -- have come in for criticism. 

The disatisfaction with Obama by the broad civil libertarian left -- and it's not the hard left, but a broad cross-section of liberal elites -- is one indication of this. Obama spent an hour and a half yesterday trying to contextualize his actions for an audience of civil libertarians.  He was not successful.

Cheney seems to be arguing with himself; or, rather, with the decisions that his President, George W. Bush, made after the thumping of the 2006 elections.  He is arguing with Republican Party elites, most of whom are willing to criticize individual decisions Obama has made but who can't find fault with his general approach to terrorism.