The Holder Trial Balloon: Abu Ghraib Redux

Yesterday, I treated this new Newsweek report that Eric Holder is "leaning toward appointing a prosecutor to investigate the Bush administration's brutal interrogation practices" as something to celebrate. But new facts about what that investigation would entail and, more importantly, would exclude -- facts added by today's Washington Post -- strongly suggest it's the opposite. At least if that article is to be believed -- and it seems clear that Holder dispatched his allies to leak his plans in order to gauge reaction -- the investigation will only target "rogue" CIA interrogators who exceeded the limits of what John Yoo authorized, and would not include high-level policy makers who authorized the torture tactics and implemented America's torture regime:

Any criminal inquiry could face challenges, including potent legal defenses by CIA employees who could argue that attorneys in the Bush Justice Department authorized a wide range of harsh conduct. But the sources said an inquiry would apply only to activities by interrogators, working in bad faith, that fell outside the "four corners" of the legal memos. . . . The actions of higher-level Bush policymakers are not under consideration for possible investigation.

Balloon-Juice's Tim F. is absolutely right that such an approach -- targeting low-level interrogators while shielding high-level policy-makers from prosecution -- would be "something close to the worst of both worlds." That's true not only because it would replicate the disgraceful whitewashing of the Abu Ghraib prosecutions. It would do that, but even worse, it would bolster the principal instrument of executive lawlessness -- the Beltway orthodoxy that any time a President can find a low-level DOJ functionary to authorize what he wants to do, then it is, by definition, "legal" and he's immune from prosecution when he does it, no matter how blatantly criminal it is. As Tim put it:

Hard to believe as it may seem, Holder's probe will take John Yoo's work . . . and treat them as the settled law of the time. Already clear and public evidence that DOJ lawyers drafted those memos entirely in bad faith, on orders from Bush officials who literally dictated what they wanted the memos to say, will be similarly ignored.

It's worth emphasizing here that all of these reports are preliminary and from anonymous DOJ sources, so it's a bit premature to get too worked up over a prosecution approach which Holder hasn't even announced yet. Still, given how many DOJ sources went to multiple newspapers at the same time to disclose Holder's plans, it seems clear that this was a coordinated, approved effort to disseminate Holder's intentions as a "trial balloon" to gauge public reaction. If this is the approach Holder takes -- one that, yet again, shields high-level Bush officials while targeting low-level "rogue" agents -- one can make a strong argument that it is worse than doing nothing, that this will actually further subvert the rule of law rather than strengthen it.

Yesterday, in the context of discussing John Yoo's painfully frivolous justifications for Bush's illegal surveillance programs, I wrote at length of the dangers of this prevailing view that a President is free to do whatever he wants as long he finds some DOJ employee somewhere willing to say it's legal (see point 4). Digby elaborated yesterday on that point:

If it is the case that the president can designate an Office of Legal Counsel functionary to immunize government officials and employees against criminal behavior, then it is true, to all intents and purposes, that "if the president does it it's not illegal."

One could make the argument that the political fallout would be so huge if it were ever revealed that no president would ever attempt it, but we are proving right now that this is a very remote possibility. Ever since Nixon, the political class has reaffirmed the idea that anything the president does as a political leader or in his official capacity is unpunishable. And more recently we've seen that anyone who carries out his orders is also immune, which wasn't always the case. Nixon's people did do time.

If that was the intention of the revolutionaries who broke away from despotic monarchical rule, they could have saved themselves a lot of trouble. At this point, both political parties agree that if the president has a low level lawyer in the Justice Department write a secret memo authorizing him to break the law then all those who broke those laws are legally immunized from any punishment . . . .

All other things being equal, individual CIA agents who brutalized detainees, using unapproved methods, ought to be prosecuted. If nothing else, our treaty obligations compel that. Even for a country that has rejected the idea of accountability as resoundingly as we have, it seems inconceivable to decide to prosecute nobody in the face of scores of detainee deaths. How can we know that we tortured to death numerous detainees and do nothing? If you were Eric Holder, would you want that decision attached to your name by history?

But just as was true for the Abu Ghraib abuses, many of the worst instances of detainee abuse cannot be extricated from -- but rather are directly attributable to -- the torture policies authorized at the highest levels of the government. To target low-level interrogators while shielding high-level policy makers would further bolster America's two-tiered system of justice, in which ordinary Americans are subjected to merciless punishment while the most powerful elites are vested with virtual immunity from the consequences of their lawbreaking. As Hilzoy put it:

I'd give up all hope of any prosecutions of CIA officials for prosecution of the people who set policy -- people like Cheney and Addington. They created the Bush administration's interrogation policy. They decided to set aside law, morality, and basic humanity. They should bear the consequences.

Prosecuting only obscure "rogue" interrogators while immunizing powerful, high-level officials would not be an act of courage but of cowardice. It would not strengthen the rule of law but would pervert it further. And rather than deter future lawbreaking, it would signal -- yet again -- that our most powerful political officials are free to break the law with impunity. If Holder is too frightened to include the parties truly responsible for America's torture regime in the scope of the investigation he orders, then he ought simply to appoint a strong and independent prosecutor with the mandate to investigate anyone and everyone who might have broken our nation's torture laws, and leave it to the prosecutor to make all decisions without interference (and if a well-regarded prosecutor decided based on standard factors of prosecutorial discretion, rather than as a matter of pre-ordained DOJ "fairness" policy, that the DOJ memos made prosecution too difficult as a practical matter, then so be it). But whatever else is true, the tactics authorized by George Bush and Dick Cheney were patently criminal regardless of how many memos they directed John Yoo to write.

UPDATE: Harper's Scott Horton, who has been working on this story for a couple of weeks using DOJ sources of his, now reports at The Daily Beast that Holder's investigation would be broader than suggested by other reports today:

As he read through the latter two documents, my sources said, Holder came to realize the focal and instrumental role that Department of Justice lawyers had played in constructing the torture regime and in pushing it through when career lawyers raised objection. He also took note of how the entire process was orchestrated from within the Bush White House--so that more-senior lawyers in Justice, sometimes even the attorney general, did not know what was being done. And he noted the fact that the United Nations Convention Against Torture, to which the United States is a party, requires that a criminal inquiry be undertaken whenever credible allegations of torture are presented. . . .

For now, however, it appears that Holder's current decision focuses only on the development of new interrogation techniques and their use at the direction of the Bush administration. Under these terms, the prosecutor would be tasked to look at the role played by Justice Department figures and other government lawyers at various stages of the process; but criminal investigations usually target specific crimes, not individuals, and this would be no exception. The regulations require a "specific factual statement" concerning the matter to be investigated, but drafting such a statement may be difficult. One major issue would be whether the ultimate policy-making echelons in the White House would be affected. One source told me that he would be surprised if Holder "set blinders" on the special prosecutor. Still, the scope of the investigation would clearly be limited to the authorization and use of Bush-era "enhanced interrogation techniques" such as waterboarding, longtime standing, stress positions, and prolonged sleep deprivation. Moreover, President Obama's assurance to CIA officials who relied on the opinions of government lawyers in implementing these programs, an assurance that Holder himself repeated, would have to be worked in. That suggests that the focus would likely be on the lawyers and policymakers who authorized use of the new techniques.

That is virtually the opposite of the reports today suggesting that the DOJ lawyers and policymakers would be excluded from the investigation, which would focus only on rogue interrogators. That's why I cautioned that these preliminary, anonymous reports not be assumed to be the final truth (and the conflicting reports could reflect that the scope of the investigation is still unclear and could be shaped by public reaction). Still, given our political culture, I'll believe that there is a real criminal investigation underway that includes high-level, lawbreaking political leaders only when I see it.