GWEN IFILL: First up, we continue our coverage of the question of whether Bush administration officials who devised or carried out harsh interrogations should be investigated.
For differing views on the answer to that question, we turn to two members of the Senate, South Carolina Republican Lindsey Graham and Democrat Sheldon Whitehouse of Rhode Island. Both lawmakers sit on the Senate Judiciary Committee.
Welcome to you both.
Senator Whitehouse, we’ve heard the president say this repeatedly on different subjects, but I wonder what you think: Should the administration be looking forward on this matter or backward?
SEN. SHELDON WHITEHOUSE, D-R.I.: I think it’s a little bit more complex than that. I think clearly the president wants to send a signal to the country that the focus of his administration is forward-looking.
We have an economy that is still in the ditch. We have two wars going on. We have a health care system that is falling apart. There are serious issues that grieve Americans every day. And I think for the president to insist that his focus will be forward-looking is important, and valuable, and correct.
That said, there are many folks, including those of us who sit on the Senate Judiciary Committee or, in my case, the Senate Intelligence Committee, who have different responsibilities and who need to make sure that misconduct that was done under the Bush administration is investigated, is revealed, and is not repeated.
And to the extent that that investigation or other investigation ends up leading to criminal prosecutions, I think it’s far too early to be trying to prejudge those one way or the other.
GWEN IFILL: Senator Graham, the same question to you. Should we be looking forward or backward?
SEN. LINDSEY GRAHAM, R-S.C.: Well, I think you look backward to make sure you go forward in the right way. And I, as you know, Gwen, have been a pretty vocal critic of some of the legal theories that were offered by the Bush administration when it came to detention and interrogation.
The Armed Services Committee under Senator Levin has issued a very extensive report about interrogation techniques, how they came about, who was involved. The Intelligence Committee that Senator Whitehouse is on is looking at this issue, and that’s fine.
But the issue that brought us here tonight is, how far do you go? And what do you do? And what’s best for the country?
I don’t believe it’s best for the country to look back with a view of prosecuting anyone who implemented these techniques. If you’re a CIA agent and you’ve been instructed by your superiors to interrogate a suspect a certain way, I don’t think you should be held criminally liable. That doesn’t do the country any good.
What happened after 9/11 is that the president and the vice president asked their legal advisers in the Department of Defense and Department of Justice, “Tell me what is available to me to make sure we don’t get attacked again.”
And those lawyers got in a room and, in my opinion, gave a very strained view of the law, interpreted the law in a way that I would not have, but I never doubted one moment that they were trying to protect the country from another attack.
It wasn’t a criminal conspiracy to hurt a particular individual. It was to create tools to give to the president and the agencies involved to protect the country.
I disagree with their analysis, but I don’t think they should be criminally responsible for giving that analysis.
Interpreting Obama's comments
GWEN IFILL: Well, Senator Graham, then, let me just follow up on that. Whose responsibility is it to ensure there is accountability for advice like that, which you now say was probably -- and have been saying was pretty bad advice?
SEN. LINDSEY GRAHAM: Well, the accountability is to find out what happened and fix the problem. Our nation is not going to be well served by holding somebody accountable that were following instructions from their superiors, the CIA agents. The president has said that.
Our country would not be well served to take a lawyer who gave a legal interpretation of a statute to a president and say, "A-ha, you committed a crime."
Should we hold Nancy Pelosi accountable if she was briefed on these techniques or any other member of Congress that was told about the interrogation techniques in a criminal way?
Accountability in the political system and accountability under the law are two different things. I don't want to politicize the law. I don't want to try somebody for a political difference. There's a big difference between prosecuting somebody for violating the law and a political difference.
GWEN IFILL: Senator Whitehouse, did you interpret President Obama's comments yesterday as opening the door to prosecuting activity by lawyers, by saying that he would allow the Justice Department to pursue whatever he needed to pursue or another commission perhaps? And does he have the political room to pursue an investigation, if he wanted to?
SEN. SHELDON WHITEHOUSE: I think the important point here is that, you know, we've just been through a very challenging episode with the Department of Justice in which it was very heavily politicized.
And there's been a great deal of talk about who should and who should not be prosecuted criminally by people who, frankly, are not in a position to make that decision.
The attorney general of the United States is the person who's in the position to make that decision, and he should make it based on the facts, he should make it based on the law, he should make it based on the evidence that is available to him.
And if there are criminal cases to be made, even potentially unlikely ones, such as ones against lawyers or people who followed orders, the law protects those people and creates defenses for them that are real and that are there.
GWEN IFILL: But, Senator...
SEN. SHELDON WHITEHOUSE: I think that the president has done nothing more than to clarify that that is the responsibility of the Department of Justice and that there's nothing that he has said that is intended to interfere with that, but that the law is that, if you acted in reasonable reliance on orders and authorities that you are given, if did you so in good faith, and if you stayed within those orders and authorities, you are not to be prosecuted.
That's a matter of law. That's not a matter of presidential policy.
Effect on Obama's agenda
GWEN IFILL: Senator, as purely a political calculation, does this hurt the president's ability to get the rest -- would these investigations, Senator Whitehouse, end up dwarfing the president's ability to get the rest of his agenda through?
SEN. SHELDON WHITEHOUSE: It's hard to tell. It depends on where the evidence leads. If there is a case of some kind against contractors, for instance, who were involved, I doubt that would, you know, provoke the sympathy and outrage of Americans in a way that would interfere with President Obama's ability to accomplish his agenda.
If the conduct was so bad, and so nefarious, and so clearly outside the boundaries and the predicates of these authorities that these people were amenable to a criminal prosecution, that a cold look at this by a hard-headed prosecutor, saying, "This is a case that can and should be made," if it gets to that point, I think that the public will understand that, "Gosh, that was worse than I thought. That's a case that can and should be made. All right. Let's go ahead with it."
I think that the political discussion about who and who should not be prosecuted, frankly, is a mistake, and we should all kind of take a deep breath and let the professional prosecutors look at the evidence and see where it leads.
GWEN IFILL: Senator Graham, President Obama and others have suggested that perhaps there is room for a 9/11-type commission, what Senator Clinton on the Hill called a nonpartisan commission, to investigate this. Is that something you would support?
SEN. LINDSEY GRAHAM: Well, I think the Armed Services Committee did a very good job. Senator Levin, we spent hours and -- I think I know what happened. Quite frankly, you got a bunch of lawyers in a room that were very much afraid that the country was going to be attacked the next day.
And we've got to remember: This was all taking place before the Supreme Court ruled the Geneva Convention applied to terror detainees. We had just been hit. The country was on its knees.
And I don't -- I think they cut corners, and it came back to bite us. It always does. I mean, we don't need to go to inquisition techniques to defend this country. We don't need to waterboard people or gouge out their eyes to be a safe nation. Quite frankly, I think if you do those things, you undermine our safety in the long run.
But having said that, you've got to remember what was going on. They were asked to advise the president. "What can we do, if we catch a member of al-Qaida, to make sure we know what's going to happen next and get ahead of the enemy before they hit us?"
And, quite frankly, some of the information probably did help that came from extreme techniques. But you have to balance that against the harm done to the country.
And I want to start over. I know what happened. I don't want to go down that road again. I want to start over, and that's what I'm asking for.
GWEN IFILL: So you think a 9/11 Commission would be redundant?
SEN. LINDSEY GRAHAM: Yes, I think it will, but I think what they'll do in the Intelligence Committee will be helpful, what we've done in Armed Services will be helpful.
The one thing I want to say is that, if you start suggesting that people who give legal advice in a national crisis could be potentially prosecuted, if you start talking about that, then you're going to have a hard time recruiting people in the future.
And the president had it right originally: Let's learn from our mistakes. Let's don't repeat them, but let's move on.
And I think what we have today in the law is really good. I'll work with Senator Whitehouse to pass a new law called the War Crimes Act that clearly outlaws waterboarding and that we've got a set of interrogation techniques going forward that will protect us, but we also can be proud of. That's what I'm focused on.
GWEN IFILL: One of these people who drafted these laws, Senator Whitehouse, is now a judge. Do you think that person should be impeached?
SEN. SHELDON WHITEHOUSE: I think it's too early to tell if Judge Bybee should be impeached for his conduct. For I think the first time in the history of the Office of Legal Counsel of the Department of Justice, it is now the subject of an investigation by the Department of Justice's own Office of Professional Responsibility, which for a Department of Justice veteran is sort of a sickening thought just all by itself.
But that will be a very well-done and thorough report, I believe. Marshall Jarrett, who led it through most of his time, is a very capable investigator. I think what that report discloses will tell us a lot more about whether the impeachment of Judge Bybee is appropriate or not.
Certainly, it's a real enough concern that it merits looking at. And I think the lens to look at it through, the best lens, is the OPR report, which should be out in a matter of -- I would say probably a couple of weeks. I don't know how long. But it's been out there a long time, so it's due. It should be any time.
GWEN IFILL: It sounds like it's fair to say that the investigations are just beginning.
SEN. SHELDON WHITEHOUSE: I think that's true.
GWEN IFILL: Senator Lindsey Graham, Senator Sheldon Whitehouse, thank you both very much.
SEN. LINDSEY GRAHAM: Thank you.
SEN. SHELDON WHITEHOUSE: Thank you, Gwen.