From Fox's Wall Street Journal Editorial Report, the panel recites the latest GOP talking point that any abuse of prisoners has already been investiga
August 31, 2009

From Fox's Wall Street Journal Editorial Report, the panel recites the latest GOP talking point that any abuse of prisoners has already been investigated. Scott Horton does a nice job of debunking this in his article at Harpers Magazine, Seven Points on the CIA Report:

The “prior investigation” canard. It looks like the favorite talking point emerging for torture apologists (like David Ignatius) is that the CIA cases were already examined by career prosecutors who decided not to take any action. But this claim is false. Although these cases were enshrouded in extraordinary secrecy from the outset, I closely studied their management and conducted a number of interviews with Justice personnel who were involved; I also worked with the House Judiciary Committee in its review of the matter. The cases were referred by Helgerson to the Justice Department, which in turn passed them to the U.S. Attorney for the Eastern District of Virginia, Paul J. McNulty. (This U.S. attorney’s office was the most highly politicized in the entire U.S. attorneys system, and McNulty was ultimately promoted to the office of deputy attorney general and then resigned amidst accusations of misconduct involving the politicization of the Justice Department.)

McNulty’s office acted as a sort of “dead letter office” for troublesome torture allegations. The suggestion that there was an active investigation is laughable. No grand jury was impaneled or testimony taken, and contrary to Ignatius’s claims no decision was taken not to prosecute. What happened instead was inaction. Why? If the cases had been pressed, the CIA personnel involved would have immediately implicated high-level Bush Administration officials. The Justice Department’s Office of Professional Responsibility has examined the handling of these cases and has confirmed that no serious investigation ever occurred. So the suggestion that Holder is now somehow undermining or second-guessing the decision of career prosecutors is preposterous.

Transcript below the fold.

Gigot: Welcome to "The Journal Editorial Report." I'm Paul Gigot.

Attorney General Eric Holder named a special prosecutor this week to investigate allegations of CIA abuse against high-level terror detainees. The appointment of federal prosecutor John Durha, came the same day as the release of a 2004 internal CIA report detailing that agency's interrogation program. So just what is in that once-classified report, and could Holder be starting a political war that President Obama will live to regret?

Joining the panel this week, Wall Street Journal columnist and deputy editor Bret Stephens, columnist Mary Anastasia O'Grady, Washington columnist Kim Strassel and Brian Carney, who joins us from London as the editorial page editor of The Wall Street Journal Europe.

All right, Kim, you've read these documents. What's the lesson you take away from it?

Strassel: You know, the press has jumped all over this, I think with some prodding from the administration, suggesting this is yet more proof of abuse at the hands of an unleashed CIA. When you read these things, what actually jumps out at you is that this program was actually carefully developed, it was carefully controlled, it was widely briefed to Congress, and it yielded invaluable results.

Gigot: Bret?

Stephens: Well, I think that's the key point. I mean, there is this sort of obsessive focus with a handful of instances where investigators potentially went over the line, although it's important to note that when career Justice Department prosecutors looked at these cases four years ago, they ruled that they did not merit--

Gigot: Yeah, that's interesting. This is an internal CIA report that has only been released now, but was started--begun in 2004.

Stephens: And was shared with Congress.

Gigot: Shared with Congress and turned over to Justice, and career prosecutors did not prosecute except in one case of abuse, where a detainee was killed by being hit on the head, apparently with a flashlight. And that detainee was--that interrogator was prosecuted for assault and convicted.

Stephens: I think--and it's a key point to note the people who looked into this were career prosecutors. This wasn't the Bush administration or its appointees ruling against the bureaucracy of the Justice Department.

O'Grady: You know, Paul, the other thing about this that jumps out, besides the fact that the report says that the Counterterrorism Center did a commendable job in staying within the rule of law and interrogating these detainees, is that the interrogators reported that they were quite concerned that they were going to be, at a later date, prosecuted in some ways. They suspected that the U.S. government was not going to stand behind him even though they were following the rules. And that's precisely what's about to happen to them.

Gigot: Yeah, they said that--one of the quotes was very telling. It said, 10 years from now, we will regret this, but it must be done.

One of the other things that's really interesting here, Brian, is the results that were relayed about how--the very useful information that they ended up exposing, including plots to attack the U.S. Consulate in Karachi, hijack aircraft and fly them into Heathrow, using track spikes to derail U.S. trains, and several others. Had any of those happened, of course, it would've meant the death of innocent Americans.

Carney: Right. and one of the lines that we hear over and over again is torture doesn't work, torture is ineffective. Now, nothing detailed in this report obviously, except for the one case that was prosecuted, really looks like what most people would think of as torture. I think people get treated worse every day in the police stations in major cities around America.

But the fact is, these enhanced interrogation techniques do seem to have saved American lives, exposed plots that could have been extremely deadly and that probably would have led to a lot worse things being done to even the detainees that we had to try to stop the next thing.

Gigot: This is a critical point, because a lot of critics of what happened would say that there's no evidence here that enhanced interrogations made the difference--that the detainees would've given this information anyway. Is there something in the report that shows, in fact, that the enhanced interrogation techniques made a difference?

Strassel: Yeah, Paul--

Carney: Well, the report is very clear that people like Khalid Sheik Mohammed were extremely resistant to questioning and gave up unreliable or very little information before the enhanced interrogation techniques were introduced. I think there's no question that they made a difference in the material that was produced here.

Gigot: All right, Kim, why would--given all this, why would Eric Holder, the attorney general, do this now? Because in the past he had said, Look, we don't want to go after low-level CIA interrogators. And the president himself has said often, I want to look forward, not back. And I know people in the White House--there are people in the White House who think, You know, we really don't want to pick this political fight. So what changed?

Strassel: I don't know what changed. There seems to be two modes of thought here. Either Eric Holder seems to really be of the ideological bent that this is something that needs to go back, despite the fact, as we mentioned, that former--other career prosecutors said that there was nothing here. Either he's of the belief there actually something is, a sort of purist view, or it could be that this is a political move by the White House to try to appease their left wing. They've been unhappy by the fact that the administration retained some Bush-era counterterrorism policies. They're unhappy by the way health care is going right now, the fact that the public option may not make it into a final bill. So this might've been sent out to them as a way to kind of pacify the troops.

But it's interesting. It doesn't really work. They haven't been happy. I mean, they actually got a lot of criticism from their left that they hadn't gone further. And in the meanwhile, what they've done is really made Republicans even less likely to want to work with them on some of this stuff in Washington.

Gigot: But is it possible that in naming a prosecutor like this, the administration would like just--you appease the left by naming a prosecutor. But then he comes back and says, "Look, there's nothing to prosecute," and it goes away?

Stephens: Yeah, we have a 30- or almost 40-year history of special prosecutors who always turn out to be--always turn out to surprise the administrations, if that's in fact the strategy here. It seems to me the Obama administration's strategy is pure Yogi Berra. You get to the fork in the road, you take it. They're trying to appease their left flank while the president is saying, I want us to look forward, not back.

Gigot: And there's been a lot of reports about how upset Leon Panetta is, the CIA director, with this. He didn't want to do this. He's been--time and time again, when he had a face-off with Eric Holder, Eric Holder has won.

O'Grady: Yeah, well, again, I think Leon Panetta understands that we need some of these interrogation techniques if we're going to take on this enemy. And I don't think he wants to be associated with a decision by the president that could have very long-term costs in terms of the way we fight the war.

You know, there's another thing going on here, which is that the Democrats have always thought we should fight the war as a--sort of a law-enforcement problem.

Gigot: Right.

O'Grady: And that's kind of the path that they're going down. Now we're going to litigate all of these problems rather than fight the war on terror.

Gigot: How far we've come from a post-2011 world.

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