Now Is the Time for the Senate Judiciary Committee to Investigate

The latest batch of torture memos written by the Office of Legal Counsel under the Bush administration, which Spencer and I wrote about yesterday, divulged in even more gruesome detail than we’d seen before just how far the previous administration was willing to go to justify the torture and abuse of detainees in its “war on terror.”

President Obama’s decision yesterday to grant immunity to the CIA officers who carried out the plan has now laid the responsibility for the entire program of “extreme interrogations” squarely in the lap of the government’s lawyers.  That means former Attorney General Alberto Gonzales and the Justice Department’s Office of Legal Counsel — the legal brain trust for the White House and the Bush administration’s senior policymakers. How exactly those lawyers came to write the memos that granted legal authority to torture prisoners, in violation of well-established domestic and international law, is now the missing piece of the puzzle.

Were they instructed by the White House to reach particular conclusions? Or were they engaged in a good-faith legal analysis? These questions are critical to determining whether their conduct — or anyone else’s — was criminal.

So far, President Obama and Attorney General Eric Holder, however, have shown no inclination to open a criminal investigation of the matter, despite the many calls from human rights and civil liberties groups to appoint an independent prosecutor. Both have said repeatedly that they want to look forward rather than backward. As President Obama said in his letter to the CIA employees yesterday:  “This is a time for reflection, not retribution. We have been through a dark and painful chapter in our history. But at a time of great challenges and disturbing disunity, nothing will be gained by spending our time and energy laying blame for the past.”

That cannot be the end of the inquiry, however; Congress has an important oversight role to play.  Yesterday, Sen. Patrick Leahy (D-Vt.) acknowledged that when he  reiterated his call for a “Commission of Inquiry” to “take a thorough accounting of what happened . . . to own up to what was done in the name of national security, and to learn from it.”

As Leahy put it:

The Office of Legal Counsel issues legal opinions that are binding on the executive branch.  With this awesome power comes the responsibility to provide objective unbiased advice – and to get it right.  We cannot continue to look the other way; we need to understand how these policies were formed if we are to ensure that this can never happen again.

Unfortunately, Leahy knows — and has admitted — that he does not have bipartisan support he needs to convene a broad “Commission of Inquiry,” and the Republican objections to such a plan have been voiced loud and clear. But Leahy also knows, as I’ve written before, that he does not have to wait to try to overcome those objections, while the clock is ticking on the statute of limitations for many of these shocking crimes — including torture.

As the chairman of the Senate Judiciary Committee, Leahy could announce today that the committee will convene its own investigation into how these legal memos came to be drafted, who ordered them, exactly what directions were given, and how and why the law was interpreted and manipulated to justify actions that even many Republicans now look back at with disgust and horror.

Although the Justice Department’s Office of Professional Responsibility has completed an inquiry into the OLC lawyers’ conduct, the attorney general has so far refused to release the results, and they’ve reportedly been sent to the former OLC lawyers for comments and amendments. That doesn’t exactly inspire confidence that the final product will provide an objective account of what happened, even if it is finally released.

There is no reason to wait any longer to learn what really happened.  The time for the Senate Judiciary Committee to investigate is now.

If warranted, prosecutions could follow.