Former George W. Bush speechwriter Marc Thiessen today commends the Bush administration’s“well-run, highly disciplined CIA interrogation program, where clear guidelines were established and abuses or deviations from approved techniques were stopped, reported and addressed.” I guess Thiessen didn’t read the same CIA inspector general reportthat so many of us have been scrutinizingin the last few days. That report repeatedly made the point that the CIA guidelines governing what was permissible or impermissible interrogation conduct were so unclear that, while “an improvement over the absence of such [Department of Central Intelligence] Guidelines in the past, they still leave substantial room for misinterpretation and do not cover all Agency detention and interrogation activities.” Sure, lawyers and senior officials were involved in interrogations every step of the way, which is why their actions ought to be scrutinizedin any criminal investigation. But unfortunately, that did not lead CIA interrogators to abide by the law. Take, for example, the fact that the redacted information in the reports we now have been toldincluded information about detainees who were brutally killed in custody. The supposedly “safe” techniques approved by CIA officials and Justice Department lawyers weren’t supposed to lead to that, but they did. And then there’s the problem that of 100 supposedly high-level al-Qaeda suspects in CIA custody, a bunch of them — we don’t know how many — were simply “lost.”That’s right, this “well-run, highly disciplined” program that had custody of 100 people now can’t account for what happened to some untold number of them. Did they escape? Were they killed and buried to hide the evidence? We have no idea — and apparently the CIA Inspector General wasn’t able to find out, either. That didn’t ring true to current Attorney General Eric Holder when he read the CIA report, though, and it didn’t sound ethical to the Office of Professional Responsibility inside the Justice Department that has recommended re-opening these cases for investigation. The OPR’s analysis, in fact, suggests that it was the Eastern District of Virginia, then under the direction U.S. Attorney Paul McNulty, who appeared to be playing politics with what should have been a straightforward prosecution. McNulty, you may recall, is the U.S. attorney who was elevated to deputy attorney general and went on to lie to Congress when he said the White House played almost no role in the controversial firing of nine U.S. attorneys on what appears to have been largely political grounds. That was later contradicted by subsequent testimony and documents.
Thiessen, in the Wall Street Journal, meanwhile, writes that it was “career prosecutors” who decided not to pursue the cases in the Virginia office. Or, it was the U.S. attorney whose career was elevated for making that politically astute decision and then resigned in disgrace a few years later.
The concern about opening this investigation is the politics. Is it unseemly for one attorney general to re-visit the work of a previous one? And will it be politically embarrassing to the Department of Justice and the CIA if it turns out that prosecutors refused to prosecute violations of the federal anti-torture statute by CIA officials? And, as so many commentators are asking this week, won’t this all be a big unwelcome distraction for President Obama from passing national health care legislation?
The late Sen. Edward Kennedy (D-Mass.), one of the great champions of universal health care who is being mourned today, surely would not have seen it that way. Two years ago, he stood up to say clearlythat “waterboarding is torture” and opposed the nomination of Attorney General Michael Mukasey because Mukasey refused to admit that. Kennedy also urged the Senate to pass legislation explicitly stating that waterboarding is a war crime. Politics prevailed, and his colleagues rejected the idea. But Kennedy would probably not suggest that we ought to sacrifice justice to achieve his dream of universal health care. One has nothing to do with the other, except in the sense that, as Kennedy believed, both ought to be basic rights in a civilized society.