Is Our Legal System Only a Pretense?

It was entirely predictable. When news came out that Attorney General Eric Holder was considering appointing a special prosecutor to investigate crimes of torture, the GOP dusted off the old terrorist bugaboo. If we investigate torture, somehow that means the terrorists win and we'll die. All of us. Guaranteed.

[Raw Story:]

CIA SealNine Republican Senators are urging Attorney General Eric Holder to drop the idea of appointing a special prosecutor to investigate Bush-era torture practices, news reports indicated Wednesday.

The appointment of a special prosecutor would “have serious consequences, not just for the honorable members of the intelligence community, but also for the security of all Americans,” nine GOP senators told Holder in a letter, as reported at
The Hill.

Among the nine are Kit Bond (R-MO), who is the ranking GOP member of the Senate Intelligence Committee. The others are Christopher Bond (R-MO), Richard Burr (R-NC), Saxby Chambliss (R-GA), Tom Coburn (R-OK), John Cornyn (R-TX), Chuck Grassley (R-IA), Orrin Hatch (R-UT), John Kyl (R-AZ), and Jeff Sessions (R-AL).

"The country would be better served if the Justice Department refocuses its priorities and allocates its resources to pressing matters -- such as prosecuting the terrorists responsible for the September 11 attacks -- instead of contemplating legal action against the men and women who have dedicated their lives to protecting this country," the senators wrote to Holder last week. Because, you know, it's only possible for an entire federal agency to investigate one crime at a time. Why is it that GOP arguments so often seem to hinge on a belief that everyone's an idiot?

Yesterday, journalist Jason Leopold published a piece where he took the extraordinary step of asking some experts what they thought of the Republican senators' letter.

"What this is really about is cover your ass," former FBI security and counterterrorism expert Jack Cloonan, a veteran of the agency's bin Laden unit, told Leopold. "To suggest [intelligence gathering] will come to a screeching halt if there were an investigation is not accurate." He called the letter a "false alarm" meant to keep serious crimes from seeing the light of day.

"I’ve had the honor of testifying before four committees of Congress and I am always astounded at the profound political partisan politics that surround this issue," said Col. Steve Kleinman, a former intelligence officer. "I’m a professional interrogator I have 25 years of experience in this and I don’t have any concern whatsoever that an investigation into how we conducted ourselves since 9/11 would in any way undermine our ability to continue gathering intelligence."

"The people who are true professionals don’t see anything wrong with an investigation," Kleinman said. "I conducted interrogations in three separate military campaigns. I can look back if they called me in tomorrow and I would not even be thinking about getting liability insurance."

In fact, Kleinman and Cloonan feel so secure in their own actions and the actions of those they worked with that they've written a letter to counter the senators. They ask for a bipartisan commission to "assess policy making that led to use of torture and cruelty in interrogations" and the appointment of a special prosecutor, which they say would be a "important step forward" by reaffirming "the enduring power of our system of checks and balances."

Those measures may take a step toward inevitability today as a new report on abusive interrogation techniques is released, as the result of an ACLU action. Speaking to MSNBC's Rachel Maddow, Newsweek reporter Michael Isikoff -- who broke the story -- calls the report, from the CIA's inspector general, "pretty explosive."

"About half of the report, I’m told, will still be redacted," he said. "But, what’s in the half that’s going to be publicly released is going to be pretty explosive." What we already know of the report, to be released early this afternoon, is that it includes mock executions and at least one detainee being threatened with an electric drill.

Not only would this be clearly illegal -- under both US and international law -- but it's astoundingly stupid. If someone comes at you with an electric drill, you're going to say whatever the hell you think they want you to -- yeah, sure, I shot Abe Lincoln. I'll swear to it in writing!" There is no way to get any information this way, since no matter what they say, there's a damned good chance it's all a lie. Use this sort of psychological torture on people and they may say a lot of things, but the fact is that you're just as ignorant of the facts as you were before. It's not just illegal, it's a useless and pointless waste of time and resources.

It's not a coincidence that Cloonan and Kleinman want investigations not only into the actions of interrogators, but into the policy. A real investigation would extend to policy-makers -- likely inside the Bush White House. But Holder's idea is an investigation that's narrow in scope, focused on "whether people went beyond the techniques that were authorized." But what if these techniques were authorized and what if others authorized were just as illegal? "I was just following orders" was established as no defense at all long ago; but Holder seems to be setting that precedent aside. Worse, he seems to be accepting "I was just giving orders" as just as legitimate.

I know that the Obama administration's philosophy here is to "look forward," but the real consequence of that is looking the other way. We're not pretending this never happened, we're doing something much, much worse -- we're pretending there's nothing wrong with being a torturer or with ordering people be tortured. We may move forward from this, but it'll never go away. It'll always be there, rotting in the corner, a big pile of crap that everyone's supposed to pretend doesn't reek. An unresolved problem never really goes away.

Holder should ignore the GOP senators. That goes without saying. And he should listen to Kleinman and Cloonan and appoint a special prosecutor -- without a leash. We should investigate any crimes, no matter who's responsible for them, because that's what the law is for. It applies to everyone, no matter how powerful and no matter what the motive.

It's been said that this is a nation of laws, not men. That's only true so long as we make it true and only so long as we mean it. If investigations are kept from extending into the White House, we don't mean it anymore. The law is a lie.


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