The dominant news story of the past week has been the release of the Senate Intelligence Committee’s “torture report,” which documents the so-called enhanced interrogation techniques that the Bush/Cheney Administration carried out (mostly via the Central Intelligence Agency), supposedly to reduce the risk of future terrorist attacks. That report, however, makes clear that torturing prisoners did not make Americans safer, and that the torture apologists’ attempts to connect torture with successful covert operations (in particular the killing of Osama bin Laden) are simply not supported by the evidence.
Instead, the report shows that agents acting in the name of the American people systematically violated domestic and international law, inflicting grotesque physical and mental abuses on guilty and innocent suspects alike. Moreover, our agents apparently did not even seriously attempt to use non-torturous measures to gain useful information, and—perhaps most troubling of all—they continued to hold and torture even the prisoners who were clearly guilty of nothing but being in the wrong place at the wrong time.
By any measure, this is a scandal. That our government paid for and sanctioned “rectal feeding” of prisoners, for example, is a stain on our national honor that might never fade. The question now is how we will respond to this scandal.
Thus far, unfortunately, indications are that virtually nothing will be done, because any efforts at addressing these crimes are already being opposed by the Obama Administration, the majority of the Republican Party, and large numbers of Democrats. As my colleague John Dean concluded in his most recent column here on Verdict, we should “expect little other than talk.”
But perhaps this is not unusual. After all, it is possible that the norm in this country is to “look forward” in the aftermath of a scandal, perhaps learning from our mistakes, but not looking for scapegoats or retribution. Maybe we always respond to scandals simply by reforming our agencies that have gone astray without vilifying or punishing them.
Or perhaps not. In fact, definitely not. There are plenty of examples of possible scandals large and small that have been sufficiently newsworthy to gain public attention over the years, but the CIA torture scandal stands out for the blasé attitude that so many of our leaders and former leaders have taken, and for the lack of consequences for the people and institutions involved.
Among those other newsworthy candidates for the term “scandal” is the 2013 admission by officials at the Internal Revenue Service that some groups’ applications for a particular category of nonprofit status had been screened using political criteria. The political response to that supposed scandal provides an interesting counterpoint to the response thus far to the CIA torture scandal. In the case of the IRS, it is all about punishing people and the agency as a whole. In the case of the CIA, the order of the day is a bit of hand-wringing and then back to business as usual.
The IRS Non-Scandal, and the Relief That There Is No There There
When the news of the wrongdoing at the IRS emerged last year, I was one of the people who was most concerned about the possible abuse of power by the agency. Knowing that the IRS had been used in decades past as a political weapon, in particular by the rogue Nixon Administration, it would have been truly horrible if our worst fears had turned out to be true. If there had been a political operation that was using the IRS for partisan purposes, that would have been a scandal.
No one ever said that it was a bad idea to gather evidence, and no one even once suggested that the correct response to any wrongdoing at the IRS would be to “look forward, not backward,” as an excuse to allow guilty parties to walk free. Instead, we all wanted to know whether there was sufficient evidence to suggest that any wrongdoing was directed by political operatives (answering to the White House or others), or instead that this was a matter of isolated bad decisions.
We were fortunate that the scandal became public news because of the release of an inspector general’s report about the IRS employees’ improper screening techniques. Therefore, rather than starting from a blank slate, with everyone in the dark about even the most basic facts, we were presented up front with an independent report that laid bare what had happened.
And once people digested that report, it was obvious that this was not a scandal. Correct procedures had not been developed or followed within the IRS, but internal measures had already corrected the behavior. In fact, we later found out that the inspector general’s report had underreported facts that would have made the situation look even less suspicious, because the “targeting” of political groups actually covered the political spectrum from right to left, whereas the report had initially made it appear that only extreme conservative groups had been subjected to additional scrutiny.
Therefore, as the dust settled in the immediate aftermath of the release of the report, I wrote two columns on Verdict (here and here), as well as some posts on the Dorf on Law blog (for example, here), in which I concluded that this was a “non-scandal scandal.” John Dean (who knows something about the Nixon Administration’s abuse of power) reached the same conclusion in a Verdict column in May 2013, describing the IRS situation (as well as two other candidates for “scandal” status) as “all smoke and no fire.”
Even so, Republicans in the House of Representatives refused to let go of the IRS story, spending thousands of hours and millions of taxpayer dollars trying to gather more evidence of possible wrongdoing. They have failed spectacularly. This must mean either that there is no evidence, or that the evidence is being skillfully hidden.
For those who believe that there might yet be evidence out there regarding this still-not-a-scandal, the question has been what to do next. My colleague Ronald Rotunda, for example, suggested in a recent Verdict column that a special prosecutor should be appointed, with special powers to pry loose evidence that might exist to prove a political connection between the Obama Administration and the IRS’s misdeeds.
Although I strongly disagree with Professor Rotunda’s reading of the evidence and his conclusions, I can at least respect his fundamental concern. If there were sufficient reason to believe that there is hidden evidence, then certainly we would want to pursue such evidence through appropriate means. My take on the current situation is that there is not even much smoke, much less fire, and that any further inquiries are based on little more than the hope among Republicans that such inquiries might turn up something to suggest a real scandal. Those who disagree with that assessment can (and do) argue for further efforts to investigate.
There is, therefore, nothing particularly unusual about the IRS non-scandal, at least categorically. Some government actors did something that they should not have done. We have tried to figure out what happened, and why. The available evidence cannot support any prosecutions. Now, we are arguing about a judgment call regarding when to say that enough is enough.
The Worst Case in the IRS Non-Scandal
We need to remember, however, what is at stake. The worst-case scenario, insisted upon by right-wing critics, is that the Obama Administration ordered its minions to harass extreme conservative groups by delaying their applications to qualify as “501(c)(4) organizations.” This involved, at worst, requiring those groups to fill out and submit time-consuming and intrusive questionnaires.
In some of the columns to which I provided links above, I have argued that this would be one of the least effective uses of the IRS that one could imagine. If the goal is to unleash that agency’s supposedly awesome powers on one’s political opponents, why would any politician think that this was a brilliant plan? Some small-town groups were prevented from being recognized as “social welfare organizations,” and thus to be exempt from income taxes. None of those groups, however, exist to earn income (which is why they believe that they are nonprofit organizations), so the worst that could happen is that they were temporarily denied the “status” of being formally tax-exempt, as opposed to merely owing no taxes for lack of having any profits that would be subject to taxation.
Still, at a broader level, the stakes are higher. It is definitely worth sniffing out the small stuff, in order to prevent a small tumor from metastasizing into full-blown cancer. Again, however, we have corrected what the IRS was doing wrong—in fact, the IRS did so itself, before the non-scandal even came to light—and no one ever argued that what they were doing was right. We have certainly looked backward, to see whether anyone should be subject to criminal sanctions—and no one has ever said that it is a bad idea to punish bad actors, even if those actions were taken in good faith.
The Consequences of Bad Actions: A Tale of Two Agencies
Now consider the worst-case scenario in the CIA torture scandal. Notwithstanding attempts by former Vice President Dick Cheney to redefine torture—or to say that everything we did was justified by the horrific nature of the 9/11 attacks—the facts as presented in the Senate Intelligence Committee’s report are beyond shocking.
Senator John McCain, appropriately relying on his credibility as a victim of torture, has passionately argued that what the CIA did in the name of the people of the United States was both disgusting and self-defeating. The United States broke the law at every level, and the man who was President of the United States was deliberately kept out of the loop.
Consider, then, the comparison between what is at stake in the two situations at hand. The IRS did something wrong, which had a minimal effect on a politically mixed group of organizations that were applying for nonprofit status. In theory, that might have been the first step on a slippery slope toward an IRS that could one day become a political tool of the party in power, and we appropriately tried to make sure that this could not happen. By contrast, the CIA did something very big and very wrong, which destroyed innocent lives, broke our treaty obligations, and confirmed the worst fears of people who have long worried that the CIA is a rogue organization.
What are the consequences of these bad actions? The IRS, even though every dollar that it spends enforcing the law pays off ten times over, has again seen its budget cut. The agency is thus being punished, even though it caught its own wrongdoers, and even though it is ultimately honest taxpayers who will pay the price when dishonest taxpayers are not caught and prosecuted. In addition, the Obama Administration, in the immediate aftermath of the revelations of IRS wrongdoing, ran for cover and demanded the resignation of the acting IRS director.
Former Supreme Court Justice Oliver Wendell Holmes famously noted that “taxes are the price we pay for a civilized society.” Notably, no one has suggested that it would be a bad idea to expose and investigate the IRS’s misdeeds, even though doing so surely has a negative effect on public perceptions of the IRS and the tax system more generally. Exposing the truth was paramount, no matter that the underpinnings of civilized society might be threatened. And that was the right call.
Meanwhile, the CIA did not simply take a step down a slippery slope that might one day find us dealing with an agency that has lost its moorings, but rather it roller-skated down that slope and now does little more than assure us that it will not do those bad things again (even though those things supposedly made us safer).
The political response to the CIA torture scandal has been all about obfuscation, forgiveness, and forgetting. There is no serious support in either party for cutting the funding of the agency, as a punishment for its gross violation of American values. There are even people suggesting that the airing of the report is what will really make America less safe, not the bad acts themselves. The lesson: Do whatever you want, and if it will make this country look bad, we’ll cover it up for you, and even the President who shut down your program will call you a hero.
Government agencies should never become a law unto themselves. When they do something wrong, the wrongdoing needs to be stopped, crimes punished, and the agencies reformed. The diametrically opposite ways in which the IRS non-scandal and the CIA torture scandal have been treated provide a lesson in how politicians too often overreact to non-news yet refuse to respond to truly horrifying news. The American people deserve better.