What Would Kennedy Do?

Created: August 26, 2009 12:13 | Last updated: July 31, 2020 00:00

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 report that so many of us have been scrutinizing in 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 scrutinized in 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 told included 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.

There are all sorts of reports today about the “legal hurdles and complex political dynamics”, as Mark Mazzetti and David Johnston at The New York Times put it,  that will stand in the way of prosecuting these cases. Establishing criminal intent and digging up evidence in faraway places of crimes that occurred years ago is all very difficult, say the experts. In fact, those are the very reasons the Bush administration’s Justice Department gave Sen. Dick Durbin (D-Ill.) years ago when he pressed former attorneys general about why they hadn’t prosecuted the deaths of detainees in U.S. custody: “insufficient evidence of criminal conduct, insufficient evidence of the subject’s involvement, insufficient evidence of criminal intent, and low probability of conviction.”

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 clearly that “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.