Impending Torture Probe: Worse Than Nothing?

Isaac-Davy Aronson
Faster Times
August 12, 2009

Responding to reports that Attorney General Eric Holder is on the verge of appointing a special prosecutor to conduct a torture investigation, the Center for Constitutional Rights is organizing a letter-writing campaign, urging Holder not to limit the scope of that investigation.

It’s been long-rumored that Holder was leaning toward a narrow investigation, and this weekend insiders told the Los Angeles Times that the appointment of a prosecutor is imminent…but that prosecutor’s mandate will be severely circumscribed. Holder is expected to task him or her only with determining whether CIA employees or contractors went beyond the techniques authorized by the infamous Bush administration torture memos.

While CCR and others are pushing for a broader investigation, some, including Andrew Sullivan, think a narrow investigation might be worse than no investigation at all, because it “risks essentially legitimizing the torture it does not prosecute.” On the other hand, Holder’s gotta start somewhere, and this may be the least politically incendiary place to do so. Says the Washington Independent’s Daphne Eviatar:

A criminal investigation of even low-level CIA interrogators who exceeded the guidelines they were given should, if done thoroughly and honestly, inevitably lead to questions about how those guidelines were communicated down the chain of command, and whether higher-ups approved the more extreme conduct.

It’s possible that low-level interrogators charged with torture would, in their defense, kick the responsibility up the chain of command, opening the door to further investigation. But they might also just be able to claim ignorance, as one source told the LA Times:

Officials said it wasn’t clear that any CIA interrogators were ever informed of the limits laid out in the Justice Department memo.

“A number of people could say honestly, correctly, ‘I didn’t know what was in it,’ ” said a former senior U.S. intelligence official familiar with the inner workings of the interrogation program.

Of course, in the grand scheme of things, the memos are a red herring. The real questions are 1) whether people should be prosecuted for sanctioning the techniques contained in those memos in the first place; and 2) if interrogators did go beyond those techniques, regardless of whether they were familiar with the memos or not, can their actions be reasonably traced to a Bush administration system and environment that encouraged them?

By refusing to address those questions, one wonders if Holder is setting up a prosecutor to fail. Given the pressure interrogators were under, from the highest levels of the Bush administration, to produce results, it seems like a daunting legal threshold to convict someone of going beyond the specifications of a legalistic memo from the Justice Department. How do you prosecute the guy who waterboarded a detainee more times than he was technically authorized to, without prosecuting the people in the Vice President’s office who were calling every day, insisting that detainee be waterboarded again?

The LA Times editorial board writes today, “the criminal justice system is an imperfect remedy for a pervasive policy of subordinating human rights to an unrelenting war on terror.” That’s would seem to be especially true if the criminal justice system is applied selectively.

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