Friday, April 17, 2009

Certainly Not Courageous....

And if you want to stop it from happening again, probably not all that wise. But it's good politics.
The Obama administration acted courageously and wisely yesterday with its dual actions on interrogation policy. The pair of decisions -- one essentially forgiving government agents who may have committed heinous acts they were told were legal, the other signaling that such acts must never again be condoned by the United States -- struck exactly the right balance.
If you expected the Washington Post to run an (unsigned) editorial drawing any other conclusion, you've paid no attention to that page for the past decade, or Fred Hiatt's various inane rambles on war and torture.
The administration announced that it would not seek to press criminal charges against CIA operatives who participated in enhanced interrogations of terrorism suspects during the Bush administration. "It would be unfair to prosecute dedicated men and women working to protect America for conduct that was sanctioned in advance by the Justice Department," Attorney General Eric H. Holder Jr. said in a statement.
Nonsense. I find Holder's tactic of wrapping torture and criminality in the flag to be offensive. But more to the point, it's a sleight of hand - you don't have to prosecute the "dedicated men and women" at issue - you can focus on any crimes detected by those within the Justice Department or the upper levels of the Bush Administration in laying the path for torture, and contriving this thin legal cover for acts of torture.
Yet the decision to forgo prosecutions should not prevent -- and perhaps should even encourage - further investigation about the circumstances that gave rise to torture.
My position remains removed from this. I recognize the impediments to conducting a broad criminal investigation - it would be ugly, protracted, would involve most witnesses taking "the Fifth" (with their lawyers objecting vociferously if we offered to treat them by the standards they previously deemed constitutional), and would likely end up with a round of low-level scapegoating in the manner of the Abu Ghraib investigation. (Not that the low-level scapegoats don't deserve punishment, but do you believe the problems at Abu Ghraib began and ended with the few who were prosecuted?) Not to mention, who among those spearheading the investigation truly have clean hands? The details may have been secret, but the gist of what was going on was not - and some high level Dems were briefed on at least some of the details.

If you're going to do a Washington Post-style investigation, let's at least do this: Offer amnesty or immunity only within the context of the witness agreeing to give full, unlimited, cooperation with the investigation, and making as many statements as the investigators request both under oath and subject to the penalty of perjury. If somebody refuses that deal and is inculpated in crimes, prosecute away.


  1. "I find Holder's tactic of wrapping torture and criminality in the flag to be offensive. But more to the point, it's a sleight of hand . . . " - You expected honesty; maybe an honorable and principled decision based on the rule of law rather than on the politics of expediency . . . and you expected it from Holder? I don't know if I should laugh or cry.


  2. I don't think I've stated any particular expectation for Holder. But a better punch line may have been, "That's rich".


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