There are not exactly throngs of Democratic Congressmembers beating down the doors of the Justice Department demanding that Attorney General Eric Holder appoint a special Independent Prosecutor to investigate torture and other crimes. And now it seems that whatever Congress does in the near term won't even be open to the public. Senate Majority Leader Harry Reid (D-NV) said this week that he prefers that the Senate Intelligence Committee hold private hearings. The chair of the committee, Sen. Dianne Feinstein, has asked the White House not to take any action until this private affair is concluded. She estimates that will take 6-8 months.
"I think it would be very unwise, from my perspective, to start having commissions, boards, tribunals, until we find out what the facts are," Reid said Wednesday. "I don't know a better way of getting the facts than through the intelligence committee." It is hard to imagine other Democrats bucking Reid on this and there is certainly no guarantee that the committee will release an unclassified report when it concludes its private inquiry. While Representative John Conyers says he will hold hearings, that is not the same as the independent criminal investigation this situation warrants.
Then there is the deeply flawed plan coming from the other influential camp in the Democratic leadership. The alternative being offered is not an independent special prosecutor, but rather a more politically palatable counter-proposal for creating a bi-partisan commission. This is a very problematic approach (as I have pointed out) for various reasons, including the possibility of immunity offers and a sidelining of actual prosecutions. Michael Ratner from the Center for Constitutional Rights has also advocated against this, saying this week it will lead to a "whitewash:"
We have reached a critical political moment on this issue. Obama has been forced or pushed to open the door to prosecutions, an opening I thought would take much longer to achieve. If there was ever a time to push that door open wider and demand a special prosecutor it is now. We have documented and open admissions of criminality. We have Cheney and Hayden admitting what they approved these techniques; and Cheney saying he would approve waterboarding again. We have the Senate Armed Services Report detailing how the torture program was authored and approved by our highest officials in the White House and employed in Guantanamo, Iraq and Afghanistan. And we have thousands of pages of proof. There is public outrage about the torture program and the media in the U.S. and the world are covered with the U.S. misdeeds.
So at this moment, instead of human rights groups getting together and calling for a special prosecutor what do they do? Call for a commission. What this call does and it must be said strongly is take the pressure off what is the growing public push for prosecutions and deflects it into a commission. Outrage that could actually lead to prosecutions is now focused away and into a commission. Think if this list of human rights groups had demanded prosecutions. We would be closer and not farther from the goal.
There are some powerful Democrats who certainly would not want an independent public investigation, particularly those who served on the House and Senate Intelligence Committees when Bush was in power and torture was being ordered and authorized. That's because in the aftermath of 9/11, some in Congress were briefed on the torture methods in real time and either were silent or, in some cases, supported these brutal tactics or, as some have suggested, possibly encouraged them to be expanded.
While Republicans are flailing to find ways of defending all of this torture and attempting to discredit or marginalize those who speak out against it, it is interesting to note the Op-ed Thursday in The Wall Street Journal by Reprentative Pete Hoekstra, the ranking Republican on the House Permanent Select Committee on Intelligence, called "Congress Knew About the Interrogations." In the piece where Hoekstra parrots the Dick Cheney blah-blah-blah about torture working, he manages to make an important point:
[M]embers of Congress from both parties have been fully aware of them since the program began in 2002. We believed it was something that had to be done in the aftermath of the 9/11 terrorist attacks to keep our nation safe. After many long and contentious debates, Congress repeatedly approved and funded this program on a bipartisan basis in both Republican and Democratic Congresses.
Hoekstra cites the internal memo written last week by Obama's Director of National Intelligence, Dennis Blair, to his staff in which Blair said "[h]igh value information came from interrogations in which those methods were used and provided a deeper understanding of the al Qa'ida organization that was attacking this country." (This was the memo that was originally released to the public with that sentence conveniently ommitted).
Members of Congress calling for an investigation of the enhanced interrogation program should remember that such an investigation can't be a selective review of information, or solely focus on the lawyers who wrote the memos, or the low-level employees who carried out this program. I have asked Mr. Blair to provide me with a list of the dates, locations and names of all members of Congress who attended briefings on enhanced interrogation techniques.
House Minority Leader John Boehner (R-OH) added to this mix by saying that he had seen a partial list of Congressmembers "who were briefed on these interrogation methods and not a word was raised at the time, not one word."
Among those on the House Intelligence Committee at the time was current House Speaker Nancy Pelosi. She has said, "we were not, I repeat, we were not told that waterboarding or other enhanced methods were used."
"What they did tell us is that they had some legislative counsel ... but not that they would. And that further, further the point was that if and when they would be used they would brief Congress at that time."
But contrary to Pelosi's assertion, The Washington Post reported that Pelosi and other Democrats were "given a virtual tour of the CIA's overseas detention sites and the harsh techniques interrogators had devised to try to make their prisoners talk:"
Among the techniques described, said two officials present, was waterboarding, a practice that years later would be condemned as torture by Democrats and some Republicans on Capitol Hill. But on that day, no objections were raised. Instead, at least two lawmakers in the room asked the CIA to push harder, two U.S. officials said.
"The briefer was specifically asked if the methods were tough enough," said a U.S. official who witnessed the exchange.
"Among those being briefed, there was a pretty full understanding of what the CIA was doing," said [Porter] Goss, who chaired the House intelligence committee from 1997 to 2004 and then served as CIA director from 2004 to 2006. "And the reaction in the room was not just approval, but encouragement."
Only a complete and independent investigation by a special prosecutor could get to the bottom of all of this with any credibility. In his Op-ed, Hoekstra wrote:
Any investigation must include this information as part of a review of those in Congress and the Bush administration who reviewed and supported this program. To get a complete picture of the enhanced interrogation program, a fair investigation will also require that the Obama administration release the memos requested by former Vice President Dick Cheney on the successes of this program.
While one must take anything Representative Hoekstra and his belligerent, torture-loving colleagues say with a grain of salt (to put it mildly), he has a point-even if he is making it in that Dick Cheney kind of way. All of the documents relating to this torture program should be released and the role of everyone involved should be brought out into the light of day to determine who is responsible for every aspect of these heinous crimes from top to bottom.