Investigating the Bush administration

David Kaye says it’s impossible to put the past behind us when a president may have violated the law. James Jay Carafano says accusations of torture should be examined in court, not politicized commissions.

Point: David Kaye

James, you’ve said the debate over the memos is about a policy difference. I say it’s about law — about redefining and then violating a criminal statute and treaties ratified by the United States.

Counterpoint: James Jay Carafano

You think it would be unwise to "just allow these memos to speak for themselves and move on." I couldn’t agree more. We can’t let matters rest because this administration hasn’t given us all the relevant data.

In short, the Bush administration made a policy decision to break the laws of the United States. If we were talking about another country, we would be discussing accountability for that decision. Instead, we hear accusations of "criminalizing policy differences." I think that’s backward; torture apologists are politicizing the rule of law.

It’s obvious why this is so. We’re talking about criminal behavior that quite possibly was authorized or even ordered by the president and vice president of the United States and their most senior national security officials. Further, there is ample evidence that lawyers knowingly participated in an enterprise to evade our anti-torture laws. And all along, Congress failed in its oversight responsibility. I don’t say all this as a "political" remark, nor do I intend it to be needlessly provocative. It’s a conclusion that flows from the facts we know, or think we know, today.

Two goals should guide our way forward: prevention and accountability. We need a process that results in a clear narrative of the program so that systematic inhumane treatment does not recur. And we need one that demonstrates to would-be lawbreakers that consequences follow from lawbreaking. President Obama’s desire to keep his legislative agenda intact during this time of grave economic crisis should be taken into serious account, but not at the cost of our traditional commitment to the rule of law — which is, as you’ve suggested already, the thing that holds us together as a nation.

We could just allow these memos to speak for themselves and move on. But I’m not sure the memos really do speak for themselves; they are jargony and dense, and the sheer volume of material makes it hard for any of us to keep the narrative straight. Simply moving on — asserting that "some things in life need to be mysterious," as Peggy Noonan cynically put it — undermines the goals of prevention and accountability.

Counterpoint: James Jay Carafano

Again, David, we seem to agree more than we disagree.

You think it would be unwise to "just allow these memos to speak for themselves and move on." I couldn’t agree more. We can’t let matters rest because this administration hasn’t given us all the relevant data.

I think, in fact, that administration officials have made matters worse by issuing only limited information. If their desire was to end "political rancor," as the president claimed, they failed.

We disagree over whether this is about politics or law. If these are legal issues, as you assert, then a public commission is wholly inappropriate. If the Department of Justice believes people broke the law, it should start indicting folks. We don’t need a national commission or a truth commission or any other kind of commission to do that. After all, no one has more access to the relevant evidence than the government does. Calls for a commission are politics, plain and simple.

If Americans want to engage in a national debate on what the last administration did, fine — release all the relevant information, as Dick Cheney has suggested, and let the public have at it. There are plenty of lawyers, pundits, academics and advocacy groups to give people all the sides and slices of the debate they can stand.
One path forward is criminal justice. U.S. Atty. Gen. Eric Holder has sufficient documents, victims, witnesses and alleged perpetrators to authorize an investigation or to seek a special counsel. Criminal prosecutions, risky and politically charged as they might be, would be a sure way to vindicate that we remain a nation of laws, even if some result in acquittals.

A second path, a nonpartisan commission of inquiry — as described by Harpers Magazine legal affairs writer Scott Horton or proposed by Sen. Patrick Leahy — could advance both goals while also doing two critical things: minimizing the threat of politicization while more clearly giving the American public a narrative of the Bush program. A kind of 9/11 Commission on torture, made up of eminent persons from a variety of backgrounds, could provide Americans with an objective assessment of the Bush interrogation program and identify just what went wrong and who bears responsibility, even if it lacks criminal sanction.

However we proceed, investigation shouldn’t be about the CIA or military interrogators unless there is evidence that, in bad faith, their actions exceeded the program described by the White House Office of Legal Counsel memos. It should be about those most responsible: those who developed, authorized or ordered the torture policy.

David Kaye, a former State Department lawyer, is executive director of the International Human Rights Program at the UCLA School of Law.
What the debate in Washington ought to focus on is what should be the way forward. And let’s be honest: The past may be prologue, but it can’t tell us what to do in the future. We can go back and forth about how effective the interrogations were, whether we could have obtained the information by other means and what impact the interrogations had on America’s reputation. That’s great news for historians (it will likely mean full-time employment for decades, a whole new form of stimulus spending).

The rest of us, however, are going to have re-engage the same debate that politicians faced after 9/11 — namely, what’s the best way to keep the nation safe, free and prosperous in the face of an enemy who wants to kill us? That debate can’t be advanced by fighting the last administration’s war. It has to start with measuring the merits of what this administration plans to do in the future.

James Jay Carafano is assistant director of the Kathryn and Shelby Cullom Davis Institute for International Studies and a senior research fellow at the Douglas and Sarah Allison Center for Foreign Policy Studies at the Heritage Foundation.