From the Washington Post:
“Attorney General Eric H. Holder Jr. is leaning toward appointing a criminal prosecutor to investigate whether CIA personnel tortured terrorism suspects after Sept. 11, 2001, setting the stage for a conflict with administration officials who would prefer the issues remain in the past, according to three sources familiar with his thinking.
Naming a prosecutor to probe alleged abuses during the darkest period in the Bush era would run counter to President Obama’s oft-repeated desire to be “looking forward and not backwards.” Top political aides have expressed concern that such an investigation might spawn partisan debates that could overtake Obama’s ambitious legislative agenda. (…)
Holder’s decision could come within weeks, around the same time the Justice Department releases an ethics report about Bush lawyers who drafted memos supporting harsh interrogation practices, the sources said. The legal documents spell out in sometimes painstaking detail how interrogators were allowed to subject detainees to simulated drowning, sleep deprivation, wall slamming and confinement in small, dark spaces.
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.”
This is good. CIA officials who exceeded the unbelievably expansive rules laid down in the torture memos should be prosecuted. That said, I’d give up all hope of any prosecutions of CIA officials for prosecution of the people who set policy — people like Cheney and Addington. They created the Bush administration’s interrogation policy. They decided to set aside law, morality, and basic humanity. They should bear the consequences.
Moreover, the idea of prosecuting lower-level people while the people with real power get off scot-free sticks in my craw. The laws should apply to everyone, and people like Cheney and Addington, who did not have to worry about losing their jobs if they stood up for basic human decency, have less excuse than anyone for violating it.
This will, undoubtedly, set off another round of wailing from the CIA, about being asked to do the dirty work that keeps us free and then being prosecuted for their troubles. I have very little sympathy for this, especially in the present case: by all accounts, if Holder does appoint a prosecutor, that prosecutor will be looking into the possibility that some interrogators exceeded the rules that the DoJ laid down. Those rules were — how to put it? — hardly confining. Moreover, much as I dislike the actual interpretation of the law given in the DoJ memos, it was quite specific. CIA interrogators knew the rules. If they broke them, that’s too bad.
It’s especially hard to feel too sorry for CIA officials when we’ve just learned that they kept Leon Panetta in the dark about one of their programs until June 23. Keeping the director of an organization in the dark about one of its programs for nearly six months is unconscionable. The people who had that clever idea should be fired, since they apparently do not believe in accountable government. The rest of the CIA ought to ask itself serious questions about its relation to the rest of the government and its responsibilities, and fix what’s wrong with its culture before complaining about being held accountable for violating the law.
(They might also try getting something right for a change. Those teensy little mistakes like failing to predict the collapse of the USSR or the fall of the Shah, or, well, any major event I can think of offhand, not to mention saying that the case that Saddam had weapons of mass destruction was a slam dunk, make me much less sympathetic to the idea that if I only knew of all their great successes, I’d realize how much it matters to let them go on working outside the law. And that’s without even getting into all those covert actions that worked out so well, like toppling Mossadegh, or the exploding conch shells.
I’m sure some great people work there, and do genuine good. But if they want more sympathy from the rest of us, they need to confront their own shortcomings and change their organization.)