America gets a refresher in the lingo of labels every time senators launch an advise-and-consent ritual over a president’s judicial nominee.
We learn conservatives are "strict constructionists" — they believe the Constitution and laws should be strictly interpreted and followed. We learn liberals are "lenient activists" — they believe sometimes it is best to interpret broadly the constitution and laws. But once the Senate approves or rejects judicial nominees, we quickly forget what we learned.
Now we need to rewind and rethink — for those old lessons must be applied anew to today’s controversy about Attorney General Eric Holder’s naming (over CIA Director Leon Panetta’s strong objections) of a special prosecutor to probe CIA interrogations of detainees in what we once called the War on Terror. Specifically, whether the interrogations in those tense post-9/11 times, violated the Constitution, Geneva Conventions, federal laws or agency rules.
We are about to discover this is one controversy where the old labels don’t fit the way they used to.
Consider the twist that Sen. Orin Hatch, R-Utah, got himself into Sunday on CNN’s State of the Union with John King. The conservative Republican (who was booked to discuss his famous friendship with Ted Kennedy) was asked about the probe of those CIA interrogations that were conducted under opinions written by the Bush-Cheney Justice Department.
"Legal opinions differ," Hatch said. "Sometimes, you know, conservatives will give stronger legal opinions than the most liberals." (He paused, then tried for a belated dollop of bipartisan balance.) "Liberals sometimes give stronger ones from the liberal standpoint than most conservatives. (That would figure.) … But you also don’t want to say, well, these people were rotten in writing this opinion just because they were conservative or it was a conservative opinion. And frankly, it’s gone way too far."
Frankly, we need to drag it back to the basics. After 9/11, Bush Justice officials issued memos that analysts agree went beyond Geneva Conventions in approving interrogation methods of prisoners believed tied to al Qaeda. In 2004, a CIA inspector general’s report said some CIA interrogators exceeded those expanded Bush administration rules — by using prolonged water-boarding (a technique simulating drowning), firing of a gun and running an electric drill near detainees’ heads.
Former Vice President Dick Cheney has famously defended these and other interrogation techniques, saying they provided information that kept America safer. He has led Bush’s team in making the case that old conventions, laws and rules needed to be interpreted broadly to take account of threats America faced after 9/11.
The former veep and his former boss clearly weren’t strict constructionists in that controversy. No way they were going to be hamstrung by narrow interpretations in those perilous days.
That’s why only one label fits their post-9/11 philosophy: Dick Cheney was a flaming — er, make that fiery — liberal. When it came to stretching the laws, conventions and the Constitution to keep America safe, Cheney and Bush were the Lions of Liberal Activism.
Not everyone was. Others argued their approved interrogation techniques violated the Geneva Conventions, produced little useful information and shouldn’t have been permitted. Those who argued that were this debate’s true conservative strict constructionists. Including two of the Senate’s most famous Vietnam War veterans — John McCain and John Kerrey.
Attorney General Holder has previously said he wasn’t interested in pursuing top officials of the last administration. But it would be wrong to indict lowest level interrogators for violations approved and ordered by those neo-lib Bush-Cheney activists at the top.
It will be a national service if the special prosecutor performs not as a prosecutor but as an independent counsel — and produces an independent legal opinion that tells the world which, if any constitutional provisions, international conventions, federal laws or rules were violated.
Nothing more can be helpful now. Anything more could be hurtful to the CIA’s field agents in the future.
America is indeed a nation of laws. What we need to figure out now is, when it comes to keeping us safe, whether we want to be a nation of strict constructionists or broad-interpretation activists.
(Martin Schram writes political analysis for Scripps Howard News Service. E-mail him at martin.schram(at)gmail.com.)
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