The more I think about it, the more I'm beginning to think that this weekend's revelation (that Attorney General Eric Holder was considering appointing a special prosecutor to investigate CIA interrogations during the Bush administration) was a triumph of Justice Department communication strategy. When you agree to give Newsweek an interview (which ostensibly would end up on the cover), you bring along some news. I don't doubt for a moment that AG Holder is honestly contemplating a special prosecutor, and I ascribe no ill motives to his staff, who are responsive to -- and responsible for -- the Attorney General's freedom to move in political spaces.
What is Holder actually going to investigate here? Not the
policy-makers who ordered the Justice Department to come up with a
legal rationale for torture. Not (necessarily) the Justice Department
lawyers, like John Yoo, who constructed the labyrinthinian legal
opinions that were supposed to guide the CIA interrogators in their
work? Not the CIA officials who monitored the interrogators (via
videotape, streaming or sent in). No, Holder seems ready to
investigate the field guys who were under the highest degree of
pressure and who had the least degree of responsibility for knowingly
writing and/or practicing a policy that turned out to be illegal? No
doubt that a dragnet will capture an Ivan-the-Terrible type
interrogator who willfully and repeatedly violated the DOJ's "norms"
when dealing with prisoners, but it is hard to imagine a more perverse
outcome: the people who were closest to the policy get off scot free,
and the people who carried out the policy (under unimaginably difficult
circumstances), get punished for actions that they are not entirely
responsible for.
One of the reasons why President Obama opposes
this type of prosecution is that it will target people imperfectly,
that it will not hold anyone meaningfully accountable, that it will
further complicate existence for CIA officers on the front lines, that
it is nothing more than a simulacrum of justice designed to be the
justice, the reckoning, that so many critics of the Bush administration
want. This is his reasoning. Why can't policy-makers be investigated?
Obama worries about the precedent and believes that immunity for even
illegal decisions is an established mechanism of our democratic
institutions (provided that the institutions, like elections and
oversight), work as intended.
Let's assume, for the moment, that
the CIA's National Clandestine Service is demoralized and choatic now.
No one ought to sanction conduct that violates the law. But the law
ought to be enforced in a way that encourages accountability and not in
a way that encourages scape-goating or vengeance. Interrogators who
broke the law -- how can anyone defend them? But the point is: how can
anyone defend or immunize their superiors while not defending or
immunizing them? Good luck to CIA case officers who try to recruit a
source in this environment. The source, reading CNN.com, will discover
that the case officer's promises to him or her are subject to intense
and immediate second-guessing; they'll discover that the CIA can't keep
a secret (thanks to Congress); they'll realize that the government's
official position is to leave field officers twisting in the wind while
superiors in comfy HQ jobs get million-dollar consulting contracts.
(The CIA officers being prosecuted in Italy right now would agree.
Don't underestimate how badly that case has hurt morale in the NCS.)
All
of this might be spilled milk in a democratic system. There may well be
times when the collateral damage of necessary investigations and valid
prosecutions might hurt intelligence collection. But selective
prosecutions and incomplete investigations will almost always hurt
without serving the interests of justice. I don't doubt that the NCS
would prefer not to revisit the past; six ongoing investigations
(various inspectors general inquiries, two Congressional inquiries,
policy review panels) are complicated enough. I don't doubt that good
people inside the NCS think that prosecutions of bad folks will
vindicate the vast majority of those officers who acted properly and
morally.
But I think the CIA -- and President Obama -- agree that incomplete and ad hoc justice might not be justice at all.
What do you think?
...immunity for even illegal decisions is an established mechanism of our democratic institutions (provided that the institutions, like elections and oversight), work as intended.
If this is true as a general principle, why did Yoo bother coming up with legal justifications in the first place? If you can make illegal policy and stonewall congress until you're term-limited out (at which point your successor declares you off-limits), then there is no accountability for the executive branch.
So Nixon was right - If the (administration) does it, it's not illegal??
jason,
You are completely right. In America we don't have a way to hold our representatives responsible for even violating international law or commiting war crimes. We also have proven that we don't have any way to hold executives and companies accountable for creating the economic collapse we are going through.
Just have to sit and enjoy the ride.
The question is not only the use of torture to obtain information illegally, but also the falsification of evidence leading to wars and thousands of deaths. Any society which, like Nazi Germany, cannot defend itself against the big lie, will end up destroying itself.
The requirements for an effective investigation, as distinct from a search for scapegoats, are:
1) Find out what really went on.
2) Find out if there is a continuing threat of the same problems in the future. After the New Orleans floods more than fifty years ago, the investigation did NOT uncover the problem well enough to prevent the recent deaths of several thousand.
3) Take realistic steps to prevent a recurrence.
4) Convince the world, particularly the various victims, that there will be no repetitions.
5) To the extent needed, punish the guilty. (Note that this is the last and least important of the requirements)
None of the investigations so far have addressed the real issues, or been public enough to satisfy those whose goodwill has been so badly damaged. An effective investigation must, by its nature, move beyond low level CIA officers, and will be politically difficult. At best, it will bring resignations & disgrace, (prison being politically impossible). The lack of investigations of this type after Vietnam & the savings & load scandals led in both cases to repeats soon after - preventing repeats is the first priority.
It seems to me that Holder has opened up a referendum on special prosecution itself, and on the issue of abuse of power generally. And it seems to me that "punishing those responsible" is just another form of denial. What we really want is to prevent such things from ever happening in the first place, and to understand why in this case checks and balances didn't check and/or balance.
I'm going to take a stab at that last one - it's because America needs a Constitutionally-guaranteed Bill of Rights for non-citizens. Our society hasn't collapsed due to our inability to waterboard the Timothy McVeighs of our own nation, and I for one feel more than ready to extend that particular protection to the entire world, without exception. If there's ambiguity on this point, let's clear it up once and for all.
The idea that you won't prosecute lower level people because you aren't prosecuting more senior people is illogical. as anyone knows, in conspiracy prosecutions, you start at the bottom and work your way up. The clearest indication of wrongdoing is at the level where the torture took place; even Bradbury in his May 2005 legal memos made that connection. He wrote then that the new memos were necessary because the May 2004 CIA IG report makes it clear that the people on the ground were not following the legal guidance they were given in the August 2002 Bybee memo, paticularly in the case of waterboarding and walling. So that's indication of Crime 1. Now why weren't they following that guidance? You won't know till you question them. Maybe that questioning leads you further. Maybe it doesn't. But unless we are willing to entertain the idea that the actions themselves were criminal, we'll never move up the ladder.