Jul 22, 2009
Amazingly, reports that Eric Holder is considering commencing an
investigation into Bush-era torure crimes has created extreme
consternation in multiple Beltway circles despite how narrow and limited those investigations would be. As I wrote last week, numerous reports indicate that Holder wants to replicate the Abu Ghraib travesty by investigating only low-level interrogators who exceeded the torture limits approved by John Yoo and George Bush, and not investigate the high-level policy makers who instituted the criminal torture regime or the DOJ lawyers who authorized it.
Since then, the Newsweek reporter who first printed what DOJ officials told him about Holder's intentions, Daniel Klaidman, confirmed in an interview on The Young Turks
that Holder intends to confine any investigations only to
"rogue" interrogators who exceeded John Yoo's torture permission slips
while shielding high-level Bush officials who acted in accordance with
Yoo's decrees. Proving yet again that there is nothing more difficult
than satirizing our rotted political culture, here is what I wrote
about Holder's intentions last week:
plan, at least at the moment, is -- from the start -- to confine the
prosecutors' authority to investigate to CIA agents who went beyond
what John Yoo and George Bush decreed could be done ("he used
more water than Yoo said he could"; "he tied him up for longer than Yoo
authorized"; "the room was colder and the freezing water icier than Yoo
allowed"). At least if these reports are accurate (and, for
several reasons, that's unclear), anyone who "merely" did what John Yoo
said was legal -- meaning everyone who matters -- will be shielded and
Here is what TheNew York Times' David Johnston writes today about Holder's intentions:
Mr. Holder has told associates he is weighing a narrow
investigation, focusing only on C.I.A. interrogators and contract
employees who clearly crossed the line and violated the Bush
administration's guidelines and engaged in flagrantly abusive acts.
But in taking that route, Mr. Holder would run two risks. One is the political fallout if only a handful of low-level agents are prosecuted for what many critics see as a pattern of excess condoned at the top of the government. . . . .
limited inquiry, at least initially, would review more than 20 abuse
cases, including some involving prisoner deaths, which were referred to
federal prosecutors in Virginia but did not result in prosecutions.
addition, an inquiry would probably examine whether the C.I.A.
operatives who questioned high-level Qaeda detainees at secret prisons exceeded the Justice Department's legal guidance.
A footnote in a recently released 2005 Justice Department legal
memorandum said that the C.I.A. inspector general had found in the 2004
report that interrogators used waterboarding with greater frequency and
a larger volume of water than seemed to be approved by the Justice Department.
low-level CIA interrogators -- and only them -- end up as the targets
of investigations because they used m0re water than John Yoo allowed,
or turned the thermostat lower than the hypothermic levels which the
DOJ permitted, or waterboarded with more frequency than Jay Bybee
approved, I wouldn't blame the CIA for being furious. It was the
regime itself, implemented at the highest levels of our government,
that was criminal. Prosecuting only low-level interrogators who
followed the torturing spirit of those policies but transgressed some
bureaucratic guidelines would be a travesty on par with what happened
with the Abu Ghraib "investigations." Though there is the potential
benefit that a prosecutor could follow the trail to high-level
officials notwithstanding Holder's attempts to limit the
investigation (a result I think is quite unlikely), there is a strong
argument to make -- as I made here
-- that prosecuting only low-level "rogue" interrogators would be worse
than no prosecutions at all, as that would only serve to further
bolster our two-tiered system of justice.
Despite how limited the
investigation is to be -- despite the full-scale immunity from the law
which our highest political officials will continue to enjoy -- the
media consensus is still that any criminal investigations of Bush's
torture regime would be a horrible and distracting act of unfairness,
even if the intention is to prosecute acts of homicide by interrogation. Last night, Stephen Colbert built a segment around my interview on this topic with NBC's Chuck Todd
-- entitling his commentary "A Perfect World," after Todd's repeated
answers to me about when high-level political officials should be held
accountable under the law (only "in a Perfect World") -- in order to
mock the prevailing media sentiment in opposition to the rule of law:
|The Word - A Perfect World
are few instances where the establishment media reveals more
transparently what they are and what they do than when they demand that
high-level Bush officials be endowed with immunity from the
consequences of their crimes.
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