Will Eric Holder do the right thing?

Newsweek says he's leaning toward probing Bush-Cheney torture policies, but lack of public outrage weakens his hand

Published July 11, 2009 8:12PM (EDT)

Newsweek has a must-read profile of Attorney General Eric Holder this week, headlined provocatively: "Holder May Probe Bush-era Torture." But it's more than a scoop about Holder's plans to investigate and possibly prosecute those who authorized illegal detention and interrogation practices during the Bush-Cheney years. In fact, the piece gives almost as many reasons Holder may not probe Bush-era torture as reasons he may.

But it's still well worth reading. It's a fascinating if slightly adoring profile of Holder, and his political development and education. Writer Daniel Klaidman depicts the attorney general as someone with a strong sense of justice, who was sickened by what he read in the torture memos released in April. He also describes him as someone who likes to go along to get along, a good friend to Rahm Emanuel and not immune to "the wrath of Rahm" when the demands of doing justice in the Justice Department conflict with the president's political agenda or popular support.

There is clearly such a conflict when it comes to investigating torture. The story gives a fascinating window onto Obama's decision to release the torture memos. Holder was an advocate of that choice, arguing "if you don't release the memos, you'll own the policy." (I would go further, and say if the Obama administration doesn't investigate the entire array of Bush-era detention decisions, it will own the entire policy.) As the administration familiarized itself with the content of the disturbing memos, Holder and his team even began the process of thinking about who should handle a torture investigation, asking for five candidates inside the Justice Department and five candidates outside of it.

Then Holder won the disclosure debate, Obama released the memos, and something troubling occurred: The lack of any real public outrage over the torture disclosures emboldened Republicans to challenge Obama's national security bona fides, and discouraged Democrats and the White House from further disclosures as well as investigation and, heaven forbid, prosecution. Holder expected the memos to raise the clamor for more action, but when no clamor arose, his position was in fact weakened. Newsweek reports:

Holder and his team celebrated quietly, and waited for national outrage to build. But they'd miscalculated. The memos had already received such public notoriety that the new details in them did not shock many people. (Even the revelation, a few days later, that 9/11 mastermind Khalid Sheikh Mohammed and another detainee had been waterboarded hundreds of times did not drastically alter the contours of the story.) And the White House certainly did its part to head off further controversy. On the Sunday after the memos were revealed, Emanuel appeared on This Week With George Stephanopoulos and declared that there would be no prosecutions of CIA operatives who had acted in good faith with the guidance they were given. In his statement announcing the release of the memos, Obama said, "This is a time for reflection, not retribution." (Throughout, however, he has been careful to say that the final decision is the attorney general's to make.)

Everyone should read the whole article, but I want to dwell particularly on one point. The notion that there was no public outrage after the memos is hard to swallow: Certainly in the pages of Salon, and throughout the entire liberal blogosphere, there was plenty of clamor and  outrage. I personally wasted my breath multiple times on MSNBC and CNN, debating torture with the likes of G. Gordon Liddy, David Frum and Liz Cheney.

But it will take a lot more clamor to move public opinion on this issue. One thing is particularly clear: any pro-Obama partisan who lectures others on the need to be patient with Obama, or to believe Obama knows best when it comes to whether and when to act on the issues of torture and detention – well, anyone who argues that position should now know that they own responsibility for Bush-era lawless cruelty, along with the Obama administration. Now more than ever, let's not be sheeple.

Newsweek says Holder will make his decision about an investigation in the next few weeks. The recent revelations that the CIA lied to Congress about a top-secret spying program, and that the warrantless wiretapping scandal is bigger than most in government ever dreamed, should strengthen his hand. But even without a political outcry for action, Holder knows what is right. It's time to look back at that list of 10 possible people to head a torture investigation, and pick one.


By Joan Walsh

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