bottom up change

“I will not permit the criminalization of policy differences, but it is my duty to uphold the law” said Attorney General Eric Holder Thursday at the House Appropriations Subcommittee hearing, which I was fortunate to attend.  It was a fascinating hearing.  Along with Obama, Holder is now the major player in what is unfolding as one of the most significant political scandals in recent history.  This hearing presented Holder’s first public comments since Tuesday, when President Obama stated that prosecutions of those who authorized torture “is going to be more of a decision for the attorney general within the parameters of various laws and I don’t want to prejudge that.”  Obama has stated clearly that he does not believe that CIA officers who participated in “enhanced interrogation methods” should be subject to prosecution.  But Obama has left the door open to prosecutions of the Justice Department lawyers from the Bush administration who devised the interrogation methods.

Holder was consistently asked whether he would seek the prosecution of Office of Legal Council (OLC) attorneys, and he consistently evaded answering.  The statement above was the closest thing to an answer he gave, and it reveals the dilemma facing Holder and the President.  The Attorney General is not ruling out prosecutions, but he also seems to recognize the fine line between upholding the law and prosecuting lawyers who do their best to interpret the law but err.

During the hearing, Rep. Wolf (R-VA) pressed Holder as to whether or not the DOJ would release more memos relating to the alleged effectiveness of “enhanced interrogation.”  Dick Cheney, who has been appearing increasingly nervous and defensive about the torture memos, has claimed that there are other memos that show that these interrogation methods resulted in valuable information.  Holder answered, “There are other OLC memos that have not been released, and it is my hope that they will be released in the future.”  When Rep. Wolf asked specifically whether memos existed which showed the results of the interrogation methods, Holder said, “I am not familiar with those memos.  I cannot say that they exist.”

The hearing Thursday was high drama.  The stakes are huge.  We are still facing a potential economic meltdown.  At the same time, we are trying to clean up a moral meltdown during the Bush administration.  President Obama faced a very stark choice in whether to release the torture memos.  By doing so, he recognized that he may be setting the stage for an ugly showdown with Bush-era loyalists.  But whether or not America tortures is a very serious moral issue that we are now finally facing head-on.  Today the Washington Post reported on President Obama’s dramatic and tense meetings over whether to release the torture memos.  The piece reveals how difficult the issue was for Obama and how he made his decision:

Seated in Chief of Staff Rahm Emanuel’s West Wing office with about a dozen of his political, legal and security appointees, Obama requested a mini-debate in which one official was chosen to argue for releasing the memos and another was assigned to argue against doing so. When it ended, Obama dictated on the spot a draft of his announcement that the documents would be released, while most of the officials watched, according to an official who was present. The disclosure happened the next day.

Whatever one thinks of Obama’s decision to release the memos, this is a significant demonstration of leadership.  He decided on the spot after hearing a debate among his senior staff that the public had a right to know about the torture memos.  With this decision, Obama may be gambling his agenda.