Judging by the reaction on Capitol Hill, you'd think that Attorney General Eric H. Holder Jr. sides with terrorists and favors punishing CIA agents whose only crime was wanting to protect the United States from another Sept. 11-like attack. As is often the case, the critics don't let facts get in the way of a good sound bite.
Sen. Kit Bond (R., Mo.), ranking member of the Senate Intelligence Committee, called the appointment of a special prosecutor a "witch hunt targeting the terror fighters who have kept us safe since 9/11."
Holder appointed John Durham, a highly respected career prosecutor, to investigate whether CIA interrogators tortured detainees in violation of U.S. law. The probe follows the release of a declassified CIA inspector general's report that found harsh interrogation techniques were used on detainees suspected of being terrorists. The report deplored what was called "unauthorized, improvised, inhumane" practices.
Besides holding mock executions, the report said, interrogators told suspected Sept. 11 mastermind Khalid Sheikh Mohammed that if the United States were subjected to another terrorist attack, "We're going to kill your children." Abd al-Rahim al-Nashiri, the alleged architect of the 2000 USS Cole bombing, was threatened by interrogators who held a power drill and a loaded handgun to his head, the report stated.
In a statement, Holder said: "As a result of my analysis of all of this material, I have concluded that the information known to me warrants opening a preliminary review into whether federal laws were violated in connection with the interrogation of specific detainees overseas."
Some critics of Holder have taken the position that as a country, we do not torture people in custody while, on the other hand, contending that we should not even examine whether federal laws were violated. That's the same kind of head-in-the-sand posture that got us into trouble before. Either we support torture or we don't.
At a news conference Nov. 29, 2005, then-President George W. Bush said: "The United States of America does not torture. And that's important for people around the world to understand."
For years, however, former Vice President Dick Cheney had conveyed a darker message.
Appearing on NBC's Meet the Press on Sept. 16, 2001, Cheney told Tim Russert: "We also have to work, though, sort of the dark side, if you will. We've got to spend time in the shadows in the intelligence world. A lot of what needs to be done here will have to be done quietly, without any discussion, using sources and methods that are available to our intelligence agencies, if we're going to be successful. That's the world these folks operate in, and so it's going to be vital for us to use any means at our disposal, basically, to achieve our objective."
But we are a nation of laws that prohibits using "any means at our disposal" to accomplish a stated goal. The Geneva Convention prohibits torture, which it defines as "any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person."
Sen. John McCain (R., Ariz.), a former prisoner of war, adamantly opposes torture. He introduced a successful amendment, initially opposed by the Bush administration, that not only bans torture of anyone in U.S. military custody, but "cruel, unusual, and inhumane treatment or punishment" as well.
It's not just a matter of how we treat prisoners in our custody, but how U.S. citizens are treated by other countries when imprisoned.
And how we treat prisoners reflects on our own national values. Abu Ghraib was a perfect example of how betraying our values tarnished our reputation. The prison in Iraq was under U.S. command in 2004 when a series of incriminating photos were released, including those that showed sexual and physical abuse, and using dogs to scare prisoners.
Even Secretary of Defense Donald Rumsfeld admitted, "It was un-American. And it was inconsistent with the values of our nation."
Torture is inconsistent with our national values. And it would be equally wrong to follow the advice of ACLU officials who want the attorney general to skip the review process.
"While this is a welcome first step, we are disappointed that Attorney General Holder still appears unwilling to conduct a full investigation and to prosecute any crimes that are uncovered," said Anthony D. Romero, executive director of the ACLU. "A preliminary investigation absent a commitment to prosecute violations of the law is simply anemic. How much evidence of wrongdoing and violations of law is necessary before the attorney general commits to launching a full investigation?"
Holder has done the right thing by appointing a special prosecutor. Once that inquiry is completed, we'll know whether federal prosecution is warranted. And that's exactly the way our democracy is supposed to work.