This is a rush transcript from "Special Report," May 11, 2011. This copy may not be in its final form and may be updated.
(BEGIN VIDEO CLIP)
MICHAEL HAYDEN, FORMER CIA DIRECTOR: It's not a helpful thing to accuse people who did these kinds of things under clear policy guidance in the past that they were doing something wrong or illegal.
(END VIDEO CLIP)
CHRIS WALLACE, ANCHOR: Former CIA director Michael Hayden critici zing the Justice Department investigation of a half dozen CIA officers and whether they used undue force in questioning terror detainees.
Before the break, we asked you should CIA personnel be prosecuted for using enhanced interrogation techniques. We got a big response tonight, but it was very one-sided -- 99 percent said no, one percent of you said yes.
And we're back now with the panel. So Jonah, in the wake of the bin Laden take down, with disputed but some clear evidence that the enhanced interrogation was at least part of the jigsaw puzzle that led to finding that compound, does the Justice Department want to be in the place of investigating some of the CIA operatives who may have uncovered that information?
JONAH GOLDBERG, NATIONAL REVIEW ONLINE: I think politically it's somewhat problematic for them. But at the same time, I never thought that this investigation was intended to actually convict anybody or even prosecute anybody. It's the creative chilling effect, just let everyone in the business know that if you get into this interrogation business it's gonna ruin your career, it helps keep the CIA out of this business. And that's where we are right now, is we are out of the interrogation business when it comes to the CIA.
WALLACE: But what's to chill? Because they've already ended the enhanced interrogation and it's all under the army field manual.
GOLDBERG: Well there is a political aspect to it, which is that they want to be able to tell their base audiences, hey, look, we have this thing going. We are holding their feet to fire, we've got this investigation.
It's still a minor thing, a preliminary investigation, which means Holder can always also say to more mainstream audiences, "hey look, it's just -- we're just doing fact-finding and not prosecuting the guys." It's a very cynical move, and I think it's outrageous.
What I don't think that changes things is bin Laden. This is the one thing I don't think -- I disagree with both the left and right about, whether these interrogation techniques led to capturing bin Laden or not doesn't seem to me to change the basic argument. Are these techniques torture or are they not? If they are torture, they're bad. Even if they led to bin Laden we shouldn't be using them. If they're not torture and they're effective maybe we should be using them. The fact that we got to bin Laden, I don't see how it really changes the play.
WALLACE: Let me go through the chronology of this a little bit because I think it's important. These guys, these half dozen CIA operatives were investigated by the Bush Justice Department, they were all cleared, not by a political appointee, by an independent Justice Department lawyer in 2007. When the Obama administration came in, in 2009, Holder restarted the investigation, he said a year ago it's almost over. A year -- you know, here we are a year later it's still going on.
Is this like the Khalid Sheikh Mohammed thing where it's dragging on and on because Holder doesn't want to admit this was a mistake from the first place?
JUAN WILLIAMS, SENIOR EDITOR, THE HILL: Well I don't think that you fully disclosed to the viewers here exactly what happened. What they ended was an investigation to whether or not evidence was destroyed.
WALLACE: No, they also investigate - no, you're wrong.
WILLIAMS: They were looking into the weather -- and then secondly --
WALLACE: And also undue force.
WILLIAMS: No, undue force was -- the background was, is there evidence of use of undue force? They determined there is no basis in which to prosecute anyone for destruction of evidence that would have led to a cover-up of the use of undue force as you describe it. What Eric Holder, the attorney general, says they are doing now is looking to see if anybody has done anything wrong. They want to know exactly what happened.
I agree with Jonah. This is politically untenable. Nobody's going to bring charges and I don't think anybody ever thought they were gonna bring charges against the people involved. And by the way, I think it is totally duplicitous of people like Michael Hayden the former CIA director or Vice President Cheney to get involved in this conversation as if there is some witch hunt against these CIA agents because ultimately it comes back to the people who approve, gave authorization for the use of these techniques. And that would be people like the administration. And so I think they're just covering for themselves.
CHRIS STIREWALT, FOX NEWS POLITICS EDITOR DIGITAL: Look, I think it's telling that both of the fellows agree that this is politically untenable, because it sure is. And I think Eric Holder continues to be a political liability for the administration.
This is a great moment. The president's using killing Usama bin Laden to do everything from selling illegal immigration pathway to citizenship, all of these other issues he is selling in the victory lap. This is a great moment to close the book on this stuff and say that was pre-bin Laden. That was then. This is over. So he doesn't have to keep arguing in the public space with Dick Cheney and other people. This is fantastic opportunity for the administration to move on from this issue.
But because of Eric Holder they are not able to do that and he continues to be a thorn in the side of this administration.
WALLACE: I interviewed former vice president Cheney over the weekend for "FOX News Sunday." And here is what he said on this. Let's play it.
(BEGIN VIDEO CLIP)
DICK CHENEY, FORMER U.S. VICE PRESIDENT: It is an outrage that we would go after the people who deserve the credit for keeping us safe for seven and a half years.
(END VIDEO CLIP)
WALLACE: Jonah, as Juan suggests, is he covering for himself? Or is he legitimately outraged about a half dozen CIA operatives who have been under investigation for two years now?
GOLDBERG: I don't think Dick Cheney is worried one bit about being investigated about anything. I think he honestly thinks this is outrageous. And I think he is right.
Even if it doesn't go to a prosecution, to have it hang over these career people's head, ya know these people who did yeoman's service for the country, following the law, where even you basically, the gist of your argument is that they are scapegoats anyway, is all the more reason to lift this.
I mean I think that Cheney is basically right. They deserve a medal. They don't deserve to have this hanging over their heads and the careers have been terribly damaged by all of this. So just let it go.
WALLACE: All right, we're gonna have to leave it there. But I'm sure that the discussion will be continued.
That is it for the panel. But stay tuned to see the kiss of the century. And it's not what you think.
Content and Programming Copyright 2011 Fox News Network, LLC. ALL RIGHTS RESERVED. Copyright 2011 CQ-Roll Call, Inc. All materials herein are protected by United States copyright law and may not be reproduced, distributed, transmitted, displayed, published or broadcast without the prior written permission of CQ-Roll Call. You may not alter or remove any trademark, copyright or other notice from copies of the content.