Interrogation probe is bad precedent

September 3, 2009


My friend and fellow columnist Eugene Robinson has written a characteristically passionate and well-reasoned piece commending Attorney General Eric Holder’s decision to name a special counsel to examine possible law-breaking by interrogators of terrorist subjects during the last administration.

But I think he is wrong.

First, let me stipulate that I agree on the importance of accountability for illegal acts and for serious breaches of trust by government officials — even at the highest levels. I had no problem with the impeachment proceedings against Richard Nixon, and I called for Bill Clinton to resign when he lied to his Cabinet colleagues and to the country during the Monica Lewinsky scandal.

I understand why so many liberals who opposed the Bush administration are eager to see its operatives and officials forced publicly to explain their actions. The case that Robinson and many others make for seeking testimony is a strong one.

I am not persuaded by former Vice President Cheney’s argument that this is simply political revenge by the now-dominant Democrats against their Republican predecessors. For all the previously stated reasons, there is ample justification for seeking answers apart from any partisan motive.

Nonetheless, I think it is a matter of regret that Holder asked prosecutor John H. Durham to review the cases of the agents accused of abusive tactics toward some captives.

I realize this is a preliminary investigation, not a decision to prosecute anyone. And if it were to stop at that point, no great harm would have been done. But it is the first step on a legal trail that could lead to trials — and that is what gives me pause.

Cheney is not wrong when he asserts that it is a dangerous precedent when a change in power in Washington leads a successor government not just to change the policies of its predecessors but to invoke the criminal justice system against them.

Leon Panetta, the conscientious director of the Central Intelligence Agency who, earlier in his own government career, resigned to protest the policies of the Nixon administration in which he was serving, has disagreed with Holder’s decision. He says it will have a harmful effect on the morale and operations of his agency, which has already taken strong steps to correct the policies he inherited.

Panetta’s judgment is supported by the reporting of The Washington Post’s David Ignatius and others with excellent sources inside the CIA.

Looming beyond the publicized cases of these relatively low-level operatives is the fundamental accountability question: What about those who approved of their actions? If accountability is the standard, then it should apply to the policymakers and not just to the underlings. Ultimately, do we want to see Cheney, who backed these actions and still does, standing in the dock?

I think it is that kind of prospect that led President Obama to state that he was opposed to invoking the criminal justice system, even as he gave Holder the authority to decide the question for himself. Obama’s argument has been that he has made the decision to change policy and bring the practices clearly within constitutional bounds — and that should be sufficient.

In times like these, the understandable desire to enforce individual accountability must be weighed against the consequences. This country is facing so many huge challenges at home and abroad that the president cannot afford to be drawn into what would undoubtedly be a major, bitter partisan battle over prosecution of Bush-era officials. The cost to the country would simply be too great.

When President Ford pardoned Nixon in 1974, I wrote one of the few columns endorsing his decision, which was made on the basis that it was more important for America to focus on the task of changing the way it would be governed and addressing the current problems. It took a full generation for the decision to be recognized by the John F. Kennedy Library Foundation and others as the act of courage that it had been.

I hope we can avoid another such lapse. The wheels are turning, but they can still be halted before irreparable damage is done.

• I made an egregious error when I wrote last week that Robert Kennedy had waited until President Johnson had left the race before declaring his own candidacy in 1968. Kennedy announced on March 16 and Johnson withdrew 15 days later. I should have known better.


Cait McKnelly 8 years, 7 months ago

Although Mr. Broder makes an impassioned plea I, as a citizen of this country, must reject it. For two hundred and thirty years this country has been built and run on the precept that not one of it's citizens, from the lowest to the highest, is above the law. A change in presidency is not a regime change, as much as people on both sides of the political fence would like to see it that way. Political power is a pendulum that has swung back and forth throughout the history of this country. But the stability of the country has always rested on the immutability of the law. There is no concept of "justice" in the law and I don't necessarily see that as a bad thing. The immutability of culpability, be it the local dog catcher or the President, is built in to this system and must stand. If an action by a member of government is against the law then that action must be brought to light and dealt with within the law. There is an inherent concept within the Constitution that the law is a shield, not a sword. The law protects and shields this country and is the very foundation of it's stability and existence. There is no threat in investigating possible legal wrongdoing of a presidential administration if that administration has done nothing to fear. Far from being a "bad precedent" it's one that has stood since the very foundation of this country. It would be a bad precedent not to do it.

Cooky_the_Cook 8 years, 7 months ago

From Merriam-Webster
* Main Entry: jus·tice * Pronunciation: ˈjəs-təs * Function: noun * Etymology: Middle English, from Anglo-French justise, from Latin justitia, from justus * Date: 12th century

1 a : the maintenance or administration of what is just especially by the impartial adjustment of conflicting claims or the assignment of merited rewards or punishments b : judge c : the administration of law; especially : the establishment or determination of rights according to the rules of law or equity 2 a : the quality of being just, impartial, or fair b (1) : the principle or ideal of just dealing or right action (2) : conformity to this principle or ideal : righteousness c : the quality of conforming to law 3 : conformity to truth, fact, or reason : correctness

Cooky says...

The concept of "law" is definitely in justice. Does that matter? What is your point with that "no justice in the law" thing? I don't think that means anything. I say there are no eggs in a yolk, no songs in lyrics, no computers in hard drives....it's all the same drivel.

Cait McKnelly 8 years, 7 months ago

The concept of "law" may be in justice but the concept of "justice" is not in the law. And what we have in this country IS law. it goes back to the whole "shield/sword" thing I talked about in my first post. Under the concept of "justice" the law can be used as a sword, something I think the designers of this country wanted to avoid. Seriously, if you doubt me, ask one of the law profs at KU. I don't think they will disagree with what I've said.

Paul R Getto 8 years, 7 months ago

This is a difficult situation, but one that needs to be worked on. I for one am not proud we grabbed a middle school boy and tortured him in the name of the world's greatest democracy. Investigate and uphold our values and principles.

Phil Wilke 8 years, 7 months ago

the only problem with the DOJ investigation is that it's looking at the grunts not the policymakers.

Cait McKnelly 8 years, 7 months ago

"And the far-left need to stop perpetually incorporating American legal statutes with military/wartime actions. That's what court martials are for."

Tom, the CIA is not part of the military and are subject to civilian law. If the CIA were NOT subject to civil law they would be the equivalent of the SS.

jonas_opines 8 years, 7 months ago

Trouble him not with facts, he cares not.

/unless they condemn democrats

Scott Drummond 8 years, 7 months ago

"Ultimately, do we want to see Cheney, who backed these actions and still does, standing in the dock?"

What reason(s) have been given such a person who directed illegal activities should not answer for his crimes?

That some CIA employees are morale is low? What care have we, the citizens of this country, that the morale of some employees of an angency that has been engaged in illegal activities is low. I suspect the morale is low for two reasons: 1. some are concerned about their own legal liability, 2. many others are disgusted by what the leadership of the agency and former President and Vice President had them doing. Low morale does not seem a compelling reason to sweep illegality under the rug.

Broder's crowing about being right on the Nixon pardon is ludicrous. You can draw a direct line from the unpunished illegality of Nixon to the malfeasance of bush, cheney, et al. Prosecution of illegal acts protects future generations from leaders with similar improper intent. Investigate what has happened, follow the facts and then have the moral courage to take the steps that need to be taken to address any crimes and prevent the unsavory and unworthy likes of Richard Nixon, george bush and dick cheney from ever again occupying the trusted role of President of our nation.

kugrad 8 years, 7 months ago

  1. Yes, we want to see Cheney standing in the "dock" assuming the "dock" means prison.

  2. Broder has been wrong on this issue every time it has come up. My memory is that he did NOT support the impeachment of Nixon at that time. He always opposes our system of checks and balances when it involves the executive branch.

  3. Broder opposed investigation of Iran Contra.

  4. Impeachment, congressional investigations, and the Justice Dept. investigations ARE our checks and balances, particularly for abuses of power in the investigative branch.

The dean of washington has been wrong on this issue over and over again, and here he is on the wrong side once again. We only got the FISA laws due to the Church commission, which I would bet Broder opposed. We need congressional oversight of our CIA and other spy agencies.

Jimo 8 years, 7 months ago

"First, let me stipulate that I agree on the importance of accountability for illegal acts"

Or, first, let me say that some of my best friends are black.

Ronald Reagan's international Convention against Torture MANDATES investigation of all credible reports of torture. There are no exceptions to this.

"...leads a successor government not just to change the policies of its predecessors but to invoke the criminal justice system against them."

No, what it leads to is the ending of a Culture of Impunity that government officials (of both parties) have long operated under. We don't need hypocritical officials like S.State Hillary Clinton going to third world countries and lecturing THEM on the need to enforce the rule of law by prosecuting the powerful and connected officials of previous regimes.

I suppose we could just rendition Cheney to The Hague and remove the issue entirely from partisan politics?

Cait McKnelly 8 years, 7 months ago

Actually, taking it to the Hague isn't a bad idea. Finding out that there is a World Court that actually prosecutes war crimes would certainly rock some people back on their heels. I doubt very seriously that the World Court would accept Bush's excuse that they didn't have to follow the Geneva Convention because they weren't prisoners of war. Mainly because if they aren't prisoners of war that would make them....tada!....POLITICAL PRISONERS! Which in some ways would be even worse. Before the righty tighty set go all wingnut on me, understand something; I am not a supporter/defender of Al Qaeda nor am I a supporter/defender of the Taliban. I am, however, a supporter/defender of basic human decency and feel that torture is anti-civilization and anti-humanity. Not only that bin Laden set a trap and Bush walked (or more accurately, stumbled) right into it. What was that trap? Making the US look like thugs, not just on the world stage but to the Sunnis who were his real targets in his efforts to get them to reject Westernism and embrace Shi'a. Well guess what? bin Laden hit the jackpot and we handed it right to him like a Powerball check.

just_another_bozo_on_this_bus 8 years, 7 months ago

"When President Ford pardoned Nixon in 1974, I wrote one of the few columns endorsing his decision, which was made on the basis that it was more important for America to focus on the task of changing the way it would be governed and addressing the current problems."

As scott3460 pointed out, failure to hold administrations accountable for clearly illegal activity only encourages future administrations to act with a similar sense of impunity.

The failure to hold Nixon accountable almost surely allowed the neo-imperialists surrounding Reagan/Bush I to feel that they could get away with whatever they wanted, and we got Iran-Contra from it. Bush's pardons of several of his senior staff perpetuated that culture of impunity, in both the Clinton and Bush II administrations, particularly the latter.

There's really no option but to investigate fully, and prosecute where appropriate. If there are convictions, Obama can use his power of pardon at that point if he thinks it helps us all "look forward." But sweeping it under the rug would be truly idiotic.

KansasVoter 8 years, 7 months ago

David Broder is an ignorant old a$$hole who should have been fired years ago. If we don't investigate the war crimes of the bush/cheney administration the savages responsible for those war crimes will be working in the next republican presidential administration.

Richard Heckler 8 years, 7 months ago

Absolutely investigate and let the chips fall where they may!

Stop protecting the RINO party from prosecution. They are crooks.

"(Greenspan, whose view was ideologically driven, got support in his bubble denial from the academic work of the man who was to be his successor, Ben Bernanke.)"

Fraud certainly was very important in the housing bubble of recent years. But the housing bubble—like bubbles generally—did not depend on fraud, and most of its development was there for everyone to see. With the principal problems out in the open and with the authorities not only ignoring those problems but contributing to their development, one might say that the situation with the housing bubble was worse than a Ponzi scheme. And Madoff bilked his marks out of only $50 billion, while trillions were lost in the housing bubble.

Bubbles involve actual investments in real or financial assets—housing in the years since 2000, high-tech stocks in the 1990s, and Dutch tulips in the 17th century. People invest believing that the price of the assets will continue to rise; as long as people keep investing, the price does rise. While some early speculators can make out very well, this speculation will not last indefinitely. Once prices start to fall, panic sets in and the later investors lose.

A bubble is similar to a Ponzi scheme: early participants can do well while later ones incur losses; it is based on false expectations; and it ultimately falls apart. But there need be no fraudulent operator at the center of a bubble. Also, while a Ponzi scheme depends on people giving their money to someone else to invest (e.g., Madoff), people made their own housing investments—though mortgage companies and banks made large fees for handling these investments.

Often, government plays a role in bubbles. The housing bubble was in part generated by the Federal Reserve maintaining low interest rates. Easy money meant readily obtainable loans and, at least in the short run, low monthly payments. Also, Fed Chairman Alan Greenspan denied the housing bubble’s existence—not fraud exactly, but deception that kept the bubble going. (Greenspan, whose view was ideologically driven, got support in his bubble denial from the academic work of the man who was to be his successor, Ben Bernanke.)

In addition, government regulatory agencies turned a blind eye to...


Richard Heckler 8 years, 7 months ago

The RINO repub/neoconservative/PNAC party is largest law breaker in our nations history:

Isn't it odd each time our nations financial institutions crumble there are Bush family near by and a McCain still in office?

Who has history with financial institutions going south such as the savings and loan scandal? Republicans! http://rationalrevolution0.tripod.com/war/bush_family_and_the_s.htm



McCain: The Most Reprehensible of the Keating Five. The story of "the Keating Five" has become a scandal rivaling Teapot Dome and Watergate ... http://www.phoenixnewtimes.com/1989-11-29/news/mccain-the-most-reprehensible-of-the-keating-five/1

CRIME: Who hosted the Iran Contra secret illegal sale of weapons? Republicans! http://www.gwu.edu/~nsarchiv/nsa/publications/irancontra/irancon.html http://www.pbs.org/wgbh/amex/reagan/peopleevents/pande08.html

CRIME: Who brought the nation Iran Contra number 2? Republicans! http://www.democracynow.org/2008/3/5/iran_contra_20_how_the_bush

CRIME: Which party illegally spied on the democrats to win an election? Republicans! Watergate! http://www.washingtonpost.com/wp-srv/politics/special/watergate/index.html

CRIME: Which party held secret energy meetings and refused our elected officials its' content and who attended? GW Bush and the republicans!

CRIME: Which party lied to congress and the world,went against military advice and created the worst strategic blunder in the history of the USA aka Iraq War? Republican Party! http://www.msnbc.msn.com/id/10348418/

Which party has held secret oil deals with Saudi Arabia? Republicans! http://www.democracynow.org/2004/4/20/did_bush_cut_secret_oil_deal

CRIME: Secret Oil deals for Iraq Oil- Republicans! http://www.pubrecord.org/nationworld/262.html?task=view

CRIME AGAINST DEMOCRACY : PNAC's policy document, "Rebuilding America's Defences," openly advocates for total global military domination. Many PNAC members held highest-level positions in the George W. Bush administration. http://www.sourcewatch.org/index.php?title=Project_for_the_New_American_Century

The USA has fewer jobs for taxpayers today as a result of a Texas republican governor exercising his executive decision making powers as president of the USA

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