(updated below - Update II - Update III)
Amazingly, reports that Eric Holder is considering commencing an investigation into Bush-era torture 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:
Holder's 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 immunized.
Here is what The New 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. . . . .
The 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.
In 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.
If 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|
There 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.
UPDATE: In comments, LBoogie makes an important point about the purported Holder approach of only investigating those who exceeded what John Yoo permitted:
The huge problem here is precedent. In specifically directing an investigation of those who exceeded Bush's torture authorization, our Justice Department is actually giving legal credence to Yoo, Bybee, and the Bush gang who sought to legalize these clearly illegal methods. Investigating only those who went beyond Yoo's memos affirms, as legal basis, Bush's detention and torture policies as the backdrop to be measured against; in effect establishing those practices listed in the memo as the legal standard.
It is less damaging to investigate no one at all than to use the Bush standard to measure those few who exceeded even those most grotesque of practices against. All we'll end up with is a few more Charles Graners in prison, everyone above middle management getting away without so much as public acknowledgment of having done something wrong, and a de facto Justice Department affirmation that not only will Bush's team not be investigated for having done something wrong, but that they never did anything wrong at all as those same standards become accepted baseline to measure future prosecutions against.
This is far worse than Obama's previous "look forward, not backward" stance. This is looking backward and establishing crimes and indignities against humanity as solid legal footing.
Exactly. It's one thing for a prosecutor to decide, as a matter of standard prosecutorial discretion, that those memos would make it too difficult to obtain a conviction, but to declare ahead of time that they constitute immunity as a matter of DOJ policy is another thing entirely. An investigation grounded in this premise would be to institutionalize the incomparably dangerous notion that anything the President does is legal provided he finds some low-level DOJ functionary to write a memo saying it is. The torture tactics Bush ordered are criminal no matter how many memos John Yoo wrote saying they weren't.
UPDATE II: On an unrelated note: last month, the Obama White House adopted the Bush/Cheney view of White House secrecy to insist on its right to conceal the identity of coal executives visiting the White House to discuss clean air policies. The Washington Post's Greg Sargent today notes that the Obama White House is now doing something similar but worse: namely, refusing to disclose the list of health care industry executives with whom White House officials have been meeting to discuss health care policy -- even as Obama's vows of "White House transparency" remain on the White House website.
I believe, literally, that I never heard a single Democrat or progressive defend Dick Cheney's refusal to disclose the names of the energy executives with whom he met in the White House to formulate energy policy. Given that both the rationale and actions of the Obama White House here are identical, is there any possible justification for what Obama is doing?
UPDATE III: Regarding Obama's refusal to disclose the identity of health care executives meeting in the White House, TPM's David Kurtz notes: "It's an especially painful continuation of Bush policies since candidate Obama promised to let CSPAN in to cover the creation of a health care bill and his campaign website still promises transparency in meetings between White House staff and outside interests."
There are certain times when Obama betrays the spirit of his promises and other times when he betrays both the spirit and letter. This seems quite clearly to be an example of the latter.