For anyone hoping the Justice Department would commit to further investigation of the latest evidence that White House officials instructed their lawyers to find legal justifications for torture in the aftermath of Sept. 11, today was a disappointment.
Testifying to the Senate Judiciary Committee, Acting Deputy Attorney General Gary Grindler told Senators that the department's legal ethics report issued last Friday, and its decision not to recommend disciplinary sanctions for Office of Legal Counsel lawyers John Yoo and Jay Bybee, constitute "this department's final action."
Under strong questioning from Senator Patrick Leahy (D-Vt.), Grindler did promise to look into the mysterious disappearance of John Yoo's and Patrick Philbin's e-mails, which Office of Professional Responsibility investigators noted "hampered" their investigation. After all, government officials are legally required by law to maintain their official e-mails, as Leahy reminded Grindler, picking up a copy of the U.S. Code.
But what about all the other evidence that wasn't available to the OPR investigators? No one mentioned that almost all of the White House witnesses refused to speak to the Justice Department investigators, as did former Attorney General John Ashcroft.
Leahy opened the hearing with a reminder that a year ago he'd recommended creation of a nonpartisan "Commission of Inquiry" along the lines of the 9-11 commission, which would thoroughly investigate how torture became part of official U.S. policy. But that proposal never really won much support, and we heard no indication today that Senators plan to insist it happen.
Senator Richard Durbin (D-Ill.) made an eloquent statement acknowledging that the Yoo and Bybee memos defining torture as so extreme that it must be equivalent to the pain accompanying organ failure or death "provided legal cover for the Bush administration to authorize waterboarding," which he called "a torture technique that our country has historically repudiated as torture and even prosecuted as a war crime."
"We have learned that even when America is fearful and concerned about terrorism we should never forget our basic values," concluded Durbin, who's been pressing for release of the OPR report for over a year. "The time will come when those who do will have to answer for it."
Really, they will? How?
That's the big question left open after this hearing. Will anyone be held accountable for the unlawful torture and abuse of detainees in the never-ending "war on terror"? And if they're not, what's to stop such "enhanced" measures from being taken again?
Indeed, some Senators are already urging just that, and using the decision of career Associate Deputy Attorney General David Margolis not to recommend that the lawyers be disciplined by their state bar associations as evidence that Yoo and Bybee were right all along.
"The Department's decision confirms that John Yoo and Jay Bybee deserve nothing but thanks from a grateful American public" for saving us from the next terrorist attack, declared Sen. John Cornyn (R-Tx), adding that the department's preliminary inquiry into whether any CIA interrogators went beyond the memos' authorizations should be dropped as well.
Sen. Jeff Sessions (R-Ala.) similarly criticized the current administration for repealing "tough and effective interrogation techniques that are lawful," at the same time as he said the investigation was an embarrassment that "has created the impression worldwide that there's been consistent torture, that the president had a policy to violate the law." He then called on the Justice Department to investigate who had embarrassed Yoo and Bybee by leaking earlier versions of the report, before hammering away at the Obama administration for giving Umar Farouk Abdulmutallab, the would-be Christmas Day bomber, the right to a lawyer.
In other words, a hearing on the outcome of a 5-year investigation into how the United States came to authorize torture and cruel, inhuman and degrading treatment of detainees in its custody, in violation of longstanding U.S. laws, values and policies, devolved into partisan politics. Maybe it's what we should have expected. But it was still a disappointment.