But the possibility of prosecution quickly moved front and center in a line of questioning from Sen. Carl Levin (D, Michigan). Here Panetta did some squirming in trying to square a circle. In an obvious effort to avoid fouling the nest he is about to occupy at CIA, he tried mightily to argue that individuals who were told that torture techniques like waterboarding were legal "ought not to be prosecuted or investigated" for following the guidelines from the attorney general and department of justice.
Pursued by Sen. Bond like a junkyard dog at Friday's session, Panetta went further, disavowing any intention to "go into the past." Bond tacked on a gratuitous warning to the effect that, were Panetta to delve into the past, he (Bond) could "not imagine anything more detrimental to morale at the CIA."
But Sen. Levin would not let Panetta off the hook. "Can torture be made legal by a legal opinion?" he asked. Panetta replied that, as a lawyer, his view was that those guidelines were "a stretch."
Levin extracted a commitment from Panetta to cooperate with the committee in looking into past practice. (It remains unclear which promise Panetta intends to keep—the Thursday one to Levin, or the Friday one to Bond.)
The nominee eventually conceded under Levin's questioning that, as both Obama and newly confirmed Attorney General Eric Holder have emphasized, "no one is above the law." Panetta added that, for those eventually shown to have deliberately violated the law, "obviously in those cases there should be prosecutions." But that was Thursday.
Horton and Ratner: Shedding Some Light
Thursday turned out to be a full day of pondering what happens when Mafia-style lawyers are cited by the actual "deciders" on issues like torture. On Amy Goodman's Democracy Now, human rights lawyer Scott Horton noted that both Bush and Cheney have acknowledged on TV their involvement in decisions on torture, justifying their decisions (on waterboarding, for example) thusly: "We talked to the lawyers, and the lawyers told us it was okay."
Horton noted that the most senior Bush administration official responsible for dealing with the Guantanamo tribunals, Susan Crawford, had concluded that detainee al-Kahtani had in fact been tortured. Since his treatment had been approved by Cheney and Bush, "Both are linked to a case that their own principal agent considers to have been torture," said Horton.
He and Michael Ratner, president of the Center for Constitutional Rights, stressed that Attorney General Holder thus has "an absolute obligation to begin a criminal investigation," under Articles 4 and 5 of the Convention Against Torture.
Ratner offered the following as "the best argument as to why you need criminal prosecutions." Referring to the prominent photo showing Obama signing the executive orders prohibiting torture, Ratner said all he could think of was that the next president might sign executive orders going the other way. Ratner:
"Our fundamental rights, the right to be free from torture, should not be dependent on the length of the president's arm. The only real deterrent is prosecution."
"Looking Forward." Not Back
Michael Ratner added that he found it difficult to listen to the president suggesting we have to look forward and not backward, because to him (Ratner) prosecutions are precisely the things needed to look forward. "They tell you why we are not going to have torture in the future." He and Horton called for the immediate appointment of a special prosecutor who can begin to open investigations; Ratner also noted "the Obama administration is in violation of the Convention Against Torture if it does not commence an investigation."
Now this is the last thing the James and Kit Bonds of this world wish to see, for then their efforts to muzzle potential whistleblowers would founder on the rocks of subpoena and oath. Meanwhile, though, we can expect the Bush-Cheney apologists to do all they can to intimidate those in the ranks who may be prompted to come forward voluntarily.
On the Hunt for Whistleblowers
Sen. Bond has done all he can to put a price on the head of whistleblowers in the intelligence community. On Aug. 2, 2006, for example, he actually suggested that leakers be Guantanamo-ized: "There is nothing like an orange jumpsuit on a deliberate leaker to discourage others from going down that path," said Bond.
