Last
week’s report by the Justice Department’s Inspector General reveals that
working in the Bush administration really does mean never having to say you’re
sorry--or, indeed, anything else you don’t want to for that matter. And this
applies even when it’s your executive branch colleagues who are trying to get
you to talk.
The
Justice Department’s inspector general Glenn A. Fine has issued a thorough and
unblinking report about the concerns FBI agents had about the harsh
interrogation tactics, possibly rising to the level of torture, that were being
used on detainees in Afghanistan, Iraq, and Guantanamo. These were concerns,
Fine discovered, that were systematically ignored and discounted by cabinet
members and other political appointees. Conspicuously absent from Fine’s
437-page opus, however, is any input from one of the most important of those
political appointees: former Justice Department leader John Ashcroft. The
phrase “Attorney General Ashcroft declined to be interviewed for this review”
or its equivalent appears repeatedly throughout the report--often followed by
an indication that the report is necessarily incomplete because of it. For
instance, due to Ashcroft’s absence, we don’t know which agency or individual
made the decisions regarding what interrogation tactics would be used on
specific detainees; whether Ashcroft himself objected to the use of any particular
tactics; when he first became aware of his subordinates’ concerns; or whether
he conveyed those concerns to high-level officials outside the Justice
Department and, if so, how those officials responded.
A
spokesman for Ashcroft justified his non-cooperation by asserting that that
“his conversations with the White House and with staff on national security
matters are privileged.” It’s a refrain we should all be familiar with by now.
White House aides haven’t
told Congress why the Justice Department fired U.S. attorneys who were
unwilling to conduct politically motivated investigations and prosecutions; the
telecommunications companies haven’t
told the courts what sort of surveillance the White House pressured them to
conduct in the years after 9/11; and the Office of Legal Counsel hasn’t
explained the legal arguments supporting that surveillance or U.S.
interrogation policies. Why? Because, in this administration, information about
allegedly unlawful or unethical executive branch action has a tendency to be
filed under “privileged.”
Privileges
serve an important role in American law. We’re all familiar with the privilege
against self-incrimination being a fundamental tenet of the criminal justice
system. Doctor-patient, attorney-client, priest-penitent, and spousal privilege
all protect relationships that we value. And there is a growing consensus that
a reporter’s source privilege is indispensable to an effective free press. But
what species of privilege possibly justifies John Ashcroft’s refusal to be
interviewed for an internal Justice Department investigation? As it turns out,
there are numerous species of confidentiality that fall under the broad rubric
of “executive privilege.” Problem is, none of them fits the bill here.
First
of all, it can’t be the state secrets privilege, which is designed to protect
classified information from being leaked. This was an investigation being
conducted inside the executive branch--it could not have resulted in
improper dissemination of national-security-related material outside the
confines of the executive. Investigators involved in such a sensitive project
surely had security clearance, and the Inspector General’s report has redacted
classified information in multiple places; there was thus no risk of public
disclosure of state secrets justifying a privilege assertion on that basis. Moreover,
if the former attorney general was justified in declining to be interviewed on
this basis, anyone who did cooperate improperly revealed privileged
information.
Or
maybe Ashcroft invoked the privilege that protects the confidentiality of
interactions between the president and his close advisors? But this privilege
applies only to information involving communications with the president
(or, arguably, one of his very close aides). Plus, the report lists multiple
occasions of conversations alleged to have taken place within the Justice Department, or between the attorney general
and other executive-branch agencies, such as the Department of Defense.
Perhaps
he meant the privilege that shields deliberations that take place in the course
of generating executive branch policies? But that’s not applicable either,
because many of the gaps that could be filled by the attorney general concerned
an interrogation policy that was already being implemented.
Even
if any of these categories of privilege applied to some things the inspector general might ask the former attorney general about, they couldn’t possibly
apply to all things that he knows on the subject. It’s one thing to
assert privilege in response to a particular question, as witnesses do in
interviews, hearings, trials, grand jury investigations, and similar
proceedings every day. It’s entirely another to refuse to talk to the
investigators at all.
Maybe,
then, Ashcroft is claiming another species of executive privilege--the “when
someone has done something wrong and we don’t want to talk about it” privilege.
Former President Nixon and his aides made similar claims of absolute immunity
in an effort to hide the evidence of their gross misconduct during the
Watergate crisis. They asserted these claims against Congress, against the
courts, and against the American people. Fortunately, the Supreme Court and the
rest of the country rejected this theory as inconsistent with the principles of
democratic governance: Privilege exists to protect information whose
dissemination would cause harm to important relationships or institutions. It
cannot be permitted to shield misconduct.
The
Bush Administration’s fetish for secrecy--worse than Nixon’s--and the
accompanying aggrandizement of presidential power has done enough harm. The
public deserves to know what John Ashcroft, as head of the Justice Department,
knew about his employees’ concerns that war crimes were being committed by
American interrogators. It deserves to know if he investigated these complaints
or passed them along to fellow cabinet members, White House advisors, or the president himself. And no claim of privilege should be permitted to hide, once
again, the shameful way in which this president’s “war on terror” has been
waged.
Emily
Berman is Counsel and Katz Fellow in the
By Emily Berman