Perhaps more than anyone in Washington today, Theodore Olson knows the dangers of the path the Obama administration is traveling on the question of Bush-era terrorist interrogations.
It's not just that Olson is one of the nation's top lawyers and a former high-ranking Justice Department official. It's not even that his wife Barbara was among those killed by terrorists on September 11, 2001. The thing that makes Olson's perspective so valuable is that his life includes not only those experiences but also a keen perspective on the way Washington investigations can run amok.
In the 1980s, Olson was the subject of controversy over advice he had given, as the head of the Justice Department's Office of Legal Counsel, to President Reagan on a question of constitutional privileges. His position angered Democrats in Congress, and for his troubles, Olson became the target not only of Capitol Hill investigations but a long independent counsel probe. A politically charged issue that should never have been investigated in the first place turned into a years-long nightmare.
Does that sound familiar? It's happened many times, at the instigation of both Democrats and Republicans. (By the way, Olson was ultimately found to have done nothing wrong.)
Now, the president's decision to release confidential Justice Department memos on the "enhanced interrogation techniques" used on a small number of al-Qaeda operatives has again set the Washington investigation machine in motion.
"It seems irrational and incomprehensible to me," Olson told me this week. "They have started something they can't stop, now that it's out. And what conceivable good can it do?"
Olson, who served as Solicitor General in the Bush Justice Department but was not involved in War on Terror policy decisions, knows all the figures involved. "What they were doing was endeavoring in every legal, conceivable way to protect people from being slaughtered," Olson said. "I'm not going to comment on whether it's good or bad to do things like this, but from what I understand, there was a very high level of concern regarding credible threats of imminent terrorist attacks that justified efforts to seek additional methods of interrogation."
As we talked, Olson ticked off what might lie ahead. If there is a 9/11-style commission, prospective members will have to be found, appointed, vetted, cleared of conflicts of interest, given security clearances — and that's just for the eminences on the panel. Full-time staff will have to be recruited, and they will go through the same sort of scouring. Then commission will have to find office space and a SCIF. (For those unfamiliar with Washington security culture, that's a Sensitive Compartmented Information Facility — a totally sealed room for the handling of the most highly classified information.) There will be hearings, and subpoenas, and witnesses, and draft reports and final reports.
"And then," Olson added, "if they do that, many people are going to say you can't stop with John Yoo or Alberto Gonzales. You're going to have to investigate every member of Congress who was briefed on this, what their notes were, what records they kept, who they talked to. You're going to have to investigate leaks that implicate the press, who told what to whom. There's no foreseeable limit to how far they're going to have to go."
And that's before we get to potential prosecutions, separate investigations by various congressional committees, lawsuits in civil courts, bar association probes, and possible legal tribunals around the world.
And then — well, why stop at the memos? "If it's prosecutable because we waterboarded somebody or deprived him of sleep, what about sending a drone to blow him up without a trial or a hearing?" Olson asked. "What if the person we blew up was carrying a three-year old child? We know things like that have happened. We know innocent people have been killed. We know this administration has done it. Are they going to be prosecuted for that?"
And finally, when everyone is finished investigating, what's to stop the next president from holding Obama administration officials "accountable" for some "controversial" action?
It might sound extreme, but the investigation machine has revved out of control before. And it will happen this time — unless the president puts a stop to it. Olson told me he hopes there will be no replay of past probes, and then added: "But I'm too cynical to think it can be avoided."
