The media have been in a frenzy over whether the administration has been consistent since last Thursday on whether Bush administration lawyers and policy-makers may be prosecuted for their role in torture. I find no inconsistencies. The administration has been clear that it does not support prosecution of CIA personnel who relied in good faith on legal advice from the justice department, and stayed within the “four corners” of those official opinions.
(It seems likely that there will be a lot of fact-finding required to determine whether interrogations fell within the policy, and, given the tight control of procedures from Washington, senior officials could find themselves in jeopardy for violations of the policy as well as for the policy itself.)
By saying that the president is focused on the future rather than the past, and that now is the time for “reflection” not “retribution,” the administration has tried to distance itself from any hint of politically divisive vendetta. The president made clear that he is not interfering in the normal processes of fact-finding and legal reasoning that are the province of justice department prosecutors. The administration has avoided taking a detailed position on possible Congressional investigations or truth commissions, except to say that any such activities should avoid partisanship.
With Dick Cheney and other representatives of the “dark side” appearing constantly on TV claiming that the Obama administration is putting the country in danger, it’s clear that Congress needs to sponsor a truly independent review of what information was gleaned from torture as well as the overall damage to the US position from the sanctioned practices and other activities at Guantanamo and Abu Ghraib and Bagram, which stemmed directly from the Bush administration’s policies beyond the black sites. DNI Blair has confused the issue by issuing multiple statements, but his bottom line seems to be:
“The information gained from these techniques was valuable in some instances, but there is no way of knowing whether the same information could have been obtained through other means. The bottom line is these techniques have hurt our image around the world, the damage they have done to our interests far outweighed whatever benefit they gave us and they are not essential to our national security.”
The administration is inherently conflicted on the issue of investigation and prosecution — it’s trying to earn the trust of CIA operatives and to avoid the appearance of political vendettas, while not condoning previous bad acts. It’s gone far to provide legal indemnification of operatives — farther than I like at first blush. All the more reason why the rest of the administration should leave decisions on prosecution to the Justice Department. It’s possible to quibble with the tone of particular statements, but the dilemmas underlying them are serious, and staying as much as possible out of direct involvement with producing accountability for Bush administration actions is a good way of dealing with these dilemmas.
The effect of the release of the OLC memos will be to broaden the debate and the historical record (for example Philip Zelikow’s appearance on Rachel Maddow’s MSNBC show last night, which made vivid the Orwellian atmosphere that prevailed within the Bush administration), and to set the table for further Congressional review. There is no need for the administration to take the lead or even a position on such issues of whether Judge Bybee should be impeached, whether those conducting “enhanced” interrogations before the publication of the OLC memos should prosecuted, or what legal process and sanctions if any should be applied to senior Bush administration policy makers. It is all to the good if these individuals feel some potential jeopardy.
Secretary Clinton this morning has agreed in Congressional testimony that it is important that all the facts come out. These additional facts will not support the reputation of the Bush administration.
We have already learned that previous reports inspired by Bush administration sources to suggest how effective waterboarding was were lies. Abu Zubaidah was waterboarded 83 times — a far cry from having a revelation and spouting information after 30-35 seconds. Either the earlier report was a lie or the 82 additional applications of the waterboard were outside the “four corners” of the administration’s policy, because they would then have not been needed to elicit information. (According to Ron Suskind’s reporting in The One Percent Solution, Zubaidah was unstable before being detained and a much smaller fish than the Bush administration claimed he was in their public statements.)
Moreover, there is now some suggestion that waterboarding was pursued to elicit additional reports of Iraq’s supposed (but non-existent) cooperation with Al Qaeda. (We already knew that one of the few reports of such cooperation had come from Al Qaeda operative Al-Libi — a false statement under torture by another country after rendition.
The result of Obama’s actions will be a cascading demand for the truth (as evidenced in Dick Cheney’s (!) demand that additional documents be released) and ultimately a process to arrive at it. As with the declassified report by the Senate Armed Services Committee reported in today’s newspapers, this record will further degrade the reputation of the Bush Administration and its policies, and build consensus for better policies in the future.
We should be content for decisions on consequences for individuals to be postponed until after the record is filled in.