(updated below - Update II)
The Washington Post Editorial Page -- keeper of all establishment Washington wisdom -- today advocates that low-level CIA interrogators who went beyond John Yoo's torture guidelines, and only them, be criminally investigated and prosecuted by the Justice Department:
We reject the distorted interpretations that underpin the OLC memos and that serve as legal justification for harsh interrogation techniques that either border on or constitute torture. But those who relied on the memos and shaped their behavior in the good-faith belief that they were following the law should not be subject to prosecution. It is an entirely different story for those who went well beyond the often-extreme measures authorized by the memos.
In 2004, the Pentagon reported that 34 deaths had occurred in detention facilities in Iraq and Afghanistan; at that time, nine deaths were classified by military medical examiners as homicides. . . .
We continue to believe that an independent commission would best be able to shed light on a wide range of questions regarding detainee detention and treatment policy. It would help to ensure that such mistakes are never repeated. But some acts, including the violent deaths of detainees at the hands of U.S. personnel, must be investigated and addressed by law enforcement.
That, in a nutshell, is the twisted Washington mentality when it comes to lawbreaking: when political crimes become so blatant and extreme that they can no longer be safely excused (Watergate, Iran-contra, Abu Ghraib), then it's necessary to sacrifice some underlings who carried out the crimes by prosecuting them, but -- no matter what else happens -- the high-level political officials responsible for the crimes must be shielded from all accountability. In ordinary criminal justice, what typically guides prosecutions is the opposite mindset: namely, a willingness to immunize low-level soldiers in order to ensure that the higher-level criminals suffer the consequences of their crimes. But when it comes to crimes committed by political officials in America's Versailles culture, only the pawns are subjected to the rule of law while the monarchs and their highest royal court aides are immunized.
Note the distortions on which the Post Editors rely in order to justify their two-tiered justice system. DOJ torture-authorizing memos should shield those who acted in accordance with them because they were created and followed in "good faith." That assertion is groundless and false. The Post itself this morning reports what has long been known: that a DOJ ethics reports due in the next several weeks will not only "renounce Yoo's approval of harsh CIA interrogation practices [but also] recommend that he and Jay S. Bybee, a former colleague, be referred to their state bar associations for discipline." The necessary conclusion of that DOJ recommendation is that the torture-authorizing memos were written in bad faith (i.e., not merely wrong, but entirely groundless and produced with bad intent), since only a finding of "bad faith" (not mere error) could justify ethics proceedings against these lawyers.
A recently released report from five Inspectors General makes clear that Dick Cheney and David Addington selected Yoo to write these memos because they knew in advance that he'd approve of whatever they wanted to do. This process was the opposite of "good faith": what happened was that the highest-level political officials wanted to break the law, and so they found a hardened ideologue at the DOJ willing to write memos to classify those crimes as legal. To describe that process as "good faith" is to twist that phrase beyond recognition. It was blatant criminality accompanied by advanced bureaucratic cover from John Yoo -- the same person who wrote memos advising the President that not even the Bill of Rights could constrain his actions.
For all the talk about how Bush/Cheney executive power theories created a lawless presidency, the "principle" about to be institutionalized -- and that the Post Editorial Page today expressly endorses -- will do more to spawn presidential lawlessness than all of those DOJ memos combined. We now apparently believe that Presidents are free to break the law as long as they can find a low-level DOJ functionary to write a memo justifying that conduct in advance. It's impossible to imagine any President -- occupying the most powerful political office in the country and commanding blind loyalty from all sorts of operatives -- who would be unable to find a lawyer-underling willing to endorse whatever he wants to do. Richard Nixon had lawyers defending what he did in Watergate. Ronald Reagan had lawyers defending what he did in arming Iran in order to fund the Nicaraguan contras in violation of the law. George Bush had lawyers justifying his spying on Americans without warrants even though FISA criminalized exactly that. And Dick Cheney had lawyers justifying his torture regime. That's always going to be true.
If, as appears to be the case, this is the principle by which we're now governed -- presidential acts in blatant violation of clear statutes are no longer crimes if a DOJ lawyer justifies it in advance, even using legal reasoning found to be in bad faith -- then, by definition, Presidents are literally no longer bound by the rule of law. If the crimes are embarrassing enough, we'll find a Lynndie England -- or some obscure, easily demonizable, extra-sadistic CIA interrogator -- to scapegoat and punish in order to pacify the citizenry and create the illusion that the rule of law still prevails. But the one thing that remains off-limits in Washington culture above all else is subjecting high-level political officials to the rule of law when they commit crimes. The low-level scapegoating which the Post today endorses is the approach which, by all accounts, Eric Holder is likely to pursue.
The most ironic aspect of the Post's Editorial is its oh-so-solemn plea that we do what's necessary "to ensure that such mistakes are never repeated." Leaving aside the perversity of referring to a formal torture regime as a "mistake," what the Post advocates -- enabling Presidents to break the law as long as they have a low-level DOJ permission slip -- is to ensure that these sorts of things will happen over and over. We have rampant lawlessness in our political class precisely because the consequences for high-level lawbreaking no longer exist.
UPDATE: In comments, BriGuy301 writes:
Apparently the Washington Post believes the Oath goes like this:
"I do solemnly swear that I will faithfully execute the office of President of the United States, and will to the best of my Ability, preserve, protect and defend the Memos of John Yoo."
It isn't just The Washington Post that believes that, but most of official Washington. It was once the case that "the law" meant "the Constitution, treaties, and laws approved by Congress and signed by the President." Now, in Washington, "the law" means: "what John Yoo wrote."
UPDATE II: Andrew Sullivan has more on the significance of The Post's desire to see only low-level "rogue interrogators," but not high-level policy-makers, prosecuted for torture crimes.
And for those who doubt that the Post is making this argument, see here.