The Torture Week That Was

It's been a frenetic week filled with relentless, jaw-dropping news about the Bush Administration's torture policies and the way the current White House, Justice Department and Congress are dealing with them. We are right this very moment on the precipice of the biggest legal story of the decade, the most important test of our constitutional principles since the Florida Recount or the Clinton impeachment.

But don't worry. It'll pass. You can go back to watching American Idol or worrying about who has more followers on Twitter. You can keep watching for Levi Johnston or relax with happy thoughts of Bo, the presidential dog, barking awake his owners the other night. Our current leaders, including Bo's master, seem committed in an old-school bipartisan sort of way to ensuring that the American people never really get candid answers about how our government's "end-run" around laws against torture was conceived and executed.

There was no shortage of feckless characters in the torture story this week. Let's start at the top. President Barack Obama on Tuesday started the cascading wave of blather when he appeared to leave open the possibility of indictments against the architects of Bush's torture policies, the men who drafted the so-called "torture memos" and the even more powerful men who authorized them. Did he say this to appease his supporters on the left, angry at his "reflection not retribution" talk? Was the former law professor forgetting how hard such prosecution would be to win? We'll never know-- but so much for the man's famous curiosity.

We'll never know because, by week's end, the White House had backed off, flipped the matter over to Attorney General Eric Holder, and very clearly declared that it won't create or be responsible for any sort of "Torture Commission." Holder, meanwhile, seemed willing only to confirm that his Department is investigating whether the memo drafters may have violated their "professional responsibilities," which is not the same as an investigation into their potential criminal conduct. Holder knows, probably more than most, just how hard it would be to establish beyond a reasonable doubt that the memo's drafters broke the law instead of just purposely misinterpreting it.

There was plenty of barely-concealed cowardice on Capitol Hill, too. Senate Judiciary Committee Chairman Patrick Leahy (D-Vt.) announced that he preferred a torture commission but hasn't been able to gain many Democratic supporters to that cause. Sen. Russ Feingold (D-Wis.) urged the White House to wait until the Senate Intelligence Committee completes its own investigation into Bush-era torture practices. And when House Leader Nancy Pelosi (D-Ca.) expressed her support for a "truth and reconciliation" commission on torture her Democratic colleagues in the Senate quickly said forget it.

And that's just the Democrats. The Republicans were even more cynical. Senate Judiciary Committee Ranking Member Arlen Specter (R-Pa.) quickly denounced the idea of a commission or indictments while comparing the investigation with "a witch hunt." This from a man who in the current edition of the New York Review of Books has a long article entitled "The Need to Roll Back Presidential Power Grabs." What was the Bush Administration's approach to torture if not such a grab? Sen Specter didn't say. His folks were too busy "tweeting" negative things about his primary opponent.

"You just have to walk in and ask where the file cabinets are," Sen. Specter said about the prospects of getting to the truth behind the policy. What rubbish. The senator has time to send out negative "tweets" about his primary opponent but not to explain to us how access to those "file cabinets" is going to help get Dick Cheney, Alberto Gonzales, Jay Bybee, John Yoo, Steven Bradbury, David Addington and others to tell their stories, privately or publicly, under oath so that we know what happened.

Meanwhile, Sen. John McCain (R-Ariz.) sheepishly warned that an investigation into torture policies would have a "chilling effect" on the Office of Legal Counsel. Only he meant it as though it were a bad thing. I am for anything that has a chilling effect on government lawyers ginning up faulty legal precedents to justify extralegal conduct. Aren't you? This isn't about executive privilege. It's about whether the highest-ranking members of an administration ordered government lawyers to circumvent established law so that we could torture terror detainees. But virtually all of the same politicians who went to legal war over oral sex in the Oval Office are now shying away from battle over our brutalization of terror suspects under the color of law.

Here's where we stand at week's end. The idea of a bipartisan, blue-ribbon Torture Commission is all but gone, the victim of a failing economy, political gamesmanship, and our sadly self-destructive penchant as Americans for willfully ignoring the worst excesses of our history. The possibility of prosecuting Bush officials remains only technically alive because existing law favors immunity for those officials and because the Justice Department isn't likely to push to be the tip of the spear. And so long as the President talks about avoiding "retribution" (aka "the rule of law") there will be no meaningful investigation out of the White House, no special prosecutor.

Congress is up to its partisan tricks as it moves forward with its own willy-nilly investigations into the history of our descent into torture tactics. The House of Representatives, being more liberal, is not in synch with the Senate, which does not currently hold a filibuster-proof majority for the Democrats. No one wants to say publicly what everyone is thinking privately: that without immunity for the torture architects they aren't going to talk and that, without them talking, the truth will never, ever come out.

Someone is going to have to rise up and exercise some political courage to make any of this happen. But the week certainly didn't reveal in Washington (or anywhere else) anyone capable of this attribute.
  • Andrew Cohen

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