Balloons All Over

The Washington Post picks up on Newsweek's story about Eric Holder's musing over appointing a special prosecutor and offers some caveats:

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. Some incidents that might go beyond interrogation techniques that were permitted involve detainees in Iraq and Afghanistan, and are described in the secret 2004 CIA inspector general report, set for release Aug. 31.

Among the unauthorized techniques allegedly used, as described in the report and Red Cross accounts, were shackling, punching and beating of suspects, as well as the waterboarding of at least two detainees using more liquid and for longer periods than the Justice Department had approved. That conduct could violate ordinary criminal laws, as well as the U.N. Convention Against Torture, which the United States signed more than a decade ago [...]

Other challenges an inquiry into alleged torture might face could include the difficulty of gathering evidence of improper conduct in war zones and questions about the reliability of witnesses who may have been held by the U.S. government for years, legal analysts said yesterday. The actions of higher-level Bush policymakers are not under consideration for possible investigation.

I would prefer to see those who authorized and directed the torture investigated than the functionaries carrying it out, and using the Yoo/Bybee memos as settled law raises all sorts of truly despicable outcomes. It teaches future Presidents that, as long as operatives stay within the lines of whatever extreme actions sought by Administration bigwigs and dutifully scribbled by lawyers, they can get away with it, regardless of whether the legal guidelines were authored in bad faith and the underlying actions broke the law.

However, let me split with some saying that this mirrors the Abu Ghraib investigation, which led to the "few bad apples" getting prosecuted but nobody else. Because I'm not convinced that "rogue" CIA officers exist, and a legitimate investigation by a special prosecutor would find tacit if not explicit directions to those officers to use unauthorized techniques. We already know that Alberto Gonzales was dictating techniques to use even before the Office of Legal Counsel memos were drafted. You can circumscribe an investigation before handing it off to the special prosecutor all you want, but if that prosecutor is diligent and honest, he or she will follow the evidence. And I don't think the evidence will show anything resembling a rogue element in the CIA. Just as it didn't in the Abu Ghraib case, by the way, but of course that investigation was handled inside the same Administration that authorized the techniques. I think this is somewhat different.

That said, I do agree with Greenwald on this point:

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.

Importantly, no decision has actually been made on this yet, and other reports show that an investigation would not be so carefully circumscribed.

The exact parameters of a special prosecutor’s potential authority remain unclear, as does the name of who might be chosen. Reports suggesting illegal conduct during the Bush years have proliferated and now include well-substantiated allegations of warrantless surveillance, which the Holder Justice Department has struggled to uphold as lawful in the face of increasingly incredulous courts. On Friday, a joint report by the inspectors general of the Defense Department, Justice Department, CIA, National Security Agency and intelligence community revealed that the Bush-era warrantless-surveillance programs were vastly greater in scope than previously disclosed. Director Leon Panetta is reported to have disclosed to Congress that his predecessors had operated a highly secretive program which was not briefed to Congress, in apparent violation of the National Security Act of 1947. The New York Times has also just reported that Congress was not briefed because of orders issued directly by Vice President Dick Cheney. Each of these matters could provide the basis for a special criminal investigation.

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.

If the Newsweek article is to be believed, Holder has wanted to kind of spark a grassroots movement to sound the call for investigations so loud that the political class fighting against his desire to appoint a prosecutor could not be ignored. I'm all for that, but Holder must know that he should not set parameters and allow the special proseuctor he appoints to follow the evidence.