THE BLOG
10/19/2009 05:12 am ET Updated May 25, 2011

Why David Broder Is Wrong

In today's Washington Post, David Broder argues that the Attorney General should not have authorized special US Attorney John Durham to investigate the Bush interrogation program. While Mr. Broder apparently believes that public officials should generally be held to account for violations of law or breaches of the public trust, in this case he thinks the cost would be too great.

Mr. Broder argues that the Attorney General should have weighed the various political and practical consequences of an investigation against the abstract principle of accountability and decided to stand down. I reject this idea completely.

I understand the Washington habit of reducing all difficult questions to political calculations -- I am a politician myself, after all. But the decision whether to investigate possible crimes connected to our interrogation programs is simply not a political one.

Our nation is obligated by treaty to investigate credible allegations of torture and similar breaches of law. The materials available to the Attorney General manifestly state such credible allegations of such violations -- he really had no choice to go forward, unless we were to breach our legal commitments. Does Mr. Broder have so little respect for the rule of law that he cannot simply commend the strength and dignity of a public servant like Mr. Holder carrying out an unpleasant duty?

Beyond that basic point, Mr. Broder's column remains deeply flawed. As I read the piece, there are two asserted reasons we should shirk our duty to investigate. First, investigations will harm CIA morale, and second, if trials ensue, a "major, bitter partisan battle" would erupt and "the cost to the country would simply be too great."

On the issue of CIA morale, even the limited public record makes clear that, within the CIA itself, there were individuals who resisted the interrogation program or particular applications of it. So it is simply not fair to ascribe a single view to the vast CIA community that serves our nation so bravely.

Furthermore, if it is correct that CIA morale will be harmed by investigations, we must ask why that is so. In my view, the most likely source of morale problems is the rumored scope of the investigation. The record makes plain that this program was concocted, approved, and directed from the highest levels of our government. If reports that only frontline officers will be investigated are true, I can understand why agency personnel would feel hung out to dry.

Artificially limiting the investigation to interrogators working in extremely difficult circumstances while immunizing the officials who directed and approved these acts could quite reasonably be viewed as unfair and unjust. (I note that such a limitation has been suggested in press reports but never confirmed by the Justice Department, and I urge the Attorney General to simply let the prosecution team investigate the matter and follow the facts where they lead.)

Mr. Broder seems to agree when he argues that "if accountability is the standard, then it should apply to the policymakers and not just to the underlings." Yet, he rejects the logical implications of his point, asking "do we want to see Cheney, who backed these actions and still does, standing in the dock?"

Without knowing all the facts, that question is impossible to answer. But for Mr. Broder the idea seems to be unthinkable. Why does he believe that? Is it not a basic principle of this country that no person is above the law? I do not know if Mr. Cheney broke the law, but I do know that, in my America, the law applies to him as it does to everyone else.

Remarkably, Mr. Broder reports with pride that he called for Bill Clinton to resign after lies to his cabinet and the country about the Lewinsky affair. But where was his call for George Bush to resign after telling the country "We do not torture"? I have a difficult time understanding why Bill Clinton's misdeeds were more worthy of accountability than those of Mr. Cheney or Mr. Bush.

Mr. Broder's second point is that torture trials would cause a partisan maelstrom and impede our ability to meet the challenges of the day. I do not dispute that the right would treat such trials as partisan, political fodder best used to paint Democrats as weak on national security (indeed, this is why I have proposed an independent bipartisan commission to investigate these matters).

But in a world where "conservatives" argue that the President's speech to schoolchildren amounts to brainwashing and that government reimbursement for voluntary end-of-life consultations are "death panels," I question whether it is realistically possible to avoid such partisan conflagrations regardless of the steps we take. It is not as if the right was working shoulder to shoulder with the Administration or Democrats in Congress on the great policy issues confronting us before Attorney General Holder announced the expanded Durham probe.

Finally, there is another, far more insidious aspect to Mr. Broder's argument on this point. David Broder is a moderate, non-partisan journalist of enormous reach and authority in this country. As such, he has a very prominent voice in whether any prosecutions are seen as partisan.

If Mr. Broder stood up for the principle that no person is above the law and acknowledged that our laws obligate investigation of torture, the right's effort to make this issue seem purely political would be less likely to take hold of the national conversation.

On the other hand, when he argues that the decision to investigate is essentially political and presses the Attorney General to reconsider because the costs might be "too great," he validates the partisan voices that would breach our legal duties and sacrifice our national honor because they see torture as little more than a useful wedge issue.

As the acknowledged "dean" of the Washington Press corps, David Broder is no mere observer of these events. He is an actor in the national debate, whose pronouncements help define what views are considered "reasonable." If he believes, as he claims, that accountability "should apply to the policymakers and not just to the underlings," he should reject those who would turn a fundamental issue of law into a "major, bitter partisan battle," not validate them as a fixed and appropriate part of the political landscape.