Glenn Thrush at Politico notes what he thought was an interesting moment in a recent Senate Judiciary Committee hearing:
During a scantly noticed exchange in a Thursday Judiciary Committee hearing, Sen. Lamar Alexander (R-Tenn.) asked Attorney General Eric Holder a potentially explosive question -- given the furor over Nancy Pelosi's 2002 interrogation briefing.
Alexander wanted to know if the AG would consider investigating what House and Senate members knew about torture and when they knew it. And Holder didn't exactly reject the idea.
I agree that it is a potentially explosive question, but perhaps for different reasons. Here's the part of Alexander's first question that caught Thrush's attention, with his bolding:
ALEXANDER: Should you follow these facts and continue in an investigation if you’re investigating lawyers at the Department of Justice who wrote legal opinions authorizing certain interrogations, wouldn’t it also be appropriate to investigate the CIA employees or contractors or other people from intelligence agencies who asked or created the interrogation techniques or officials in the Bush Administration who approved them or
what about members of Congress who were informed of them or know about them or approved them or encouraged them?
Wouldn’t they also be appropriate parts of such an investigation?
This is an interesting question in terms of the pursuit of the truth of the broader picture behind the torture scandal, I think everyone will agree.
But it's interesting to me that in what I read as Alexander's attempt to spread the blame around so that there's some taint on Democrats for the Republican torture program, he's jumping across an important line in the hopes of relieving his party of some of the burden. Alexander leaps seamlessly from proposing that the Department of Justice investigate itself and/or the executive branch to proposing that the executive branch begin investigating the legislative branch, and Members of Congress individually.
That's not by itself out of the question. The DOJ can and does investigate Members of Congress all the time, when corruption or like accusations are suspected. But how fascinating that Republicans, who have all along insisted that the torture scandal was merely a matter of "policy differences" should now propose an executive branch probe into the particulars of how that policy was debated in the legislative branch. Particularly that a Member of Congress should propose it. It seems to me that if you truly believe that torture was just a routine matter of policy, then an executive branch probe into the Congressional debate (such as it was) over the policy would be as bold a frontal assault on the speech and debate clause of the Constitution as might be imagined.
On the other hand, if you believe as I do that the program and how it was handled was likely criminal in nature, then by all means you should let your investigation go wherever the facts lead.
What interest could Senator Alexander have in seeing the deliberative process withing the legislative branch criminally probed by the executive, if he really believes the Republican line that torture was just a matter of "policy differences?"
If he really believes that, then his proposal for widening the investigation is a shocking surrender of Article I constitutional prerogatives.
And that's without mentioning that I think that there are pretty obvious differences between how to approach the investigating the roles of those who ordered, formulated and executed the policies and an investigation of those who were briefed in the abstract, told it was all on the up-and-up, and then forbidden from talking about it or inquiring further.
But now that I've mentioned that, it also strikes me as curious that Alexander seems to think there's some serious liability among Members of Congress because of their alleged "knowledge" of the program, even as he and his fellow Republicans fought tooth and nail for the past eight years for the proposition that "national security" issues like this torture program were the exclusive purview of the "unitary executive" and an inherent part of the President's "commander in chief powers."
If there was one thing the Bush/Cheney "administration" was crystal clear about, it was their assertion that these issues were their exclusive prerogative, and they would brook no intrusions into it. They would reject Congressional subpoenas and go so far as to order the US Attorneys not to prosecute their contempt, they would unilaterally nullify provisions of law adopted in Acts of Congress using signing statements, and would otherwise defy any attempt by Congress to impose its will on the conduct of the war and other "national security" fucntions.
For Lamar Alexander to have sat through that intentional diminution of Congressional powers, and indeed to have participated in it for eight years, and then suggest that any investigation into executive wrongdoing had to include a probe of Congressional complicity is patently absurd.
But not surprising.