At the Daily Beast, I report that Eric Holder is now on the verge of appointing a special prosecutor to look into allegations of criminal conduct associated with the implementation of the Bush Administration’s torture program. This follows on a substantial and persuasive story in the current issue of Newsweek that is close to my own account and possibly draws from some of the same sources inside Justice. As I note, there is still no final decision to appoint the prosecutor, and senior figures in the Justice Department are wary that David Axelrod and Rahm Emanuel, the president’s two senior political advisors, will intervene behind the scenes to shut the process down. Axelrod and Emanuel strongly oppose the investigation for political reasons: they call the torture issue a “distraction” and are convinced it will get in the way of Obama’s attempts to get his health care reform agenda through Congress.
Carrie Johnson reports in the Washington Post:
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. . . . The actions of higher-level Bush policymakers are not under consideration for possible investigation.
Glenn Greenwald and others point to a strong difference in the reporting presented in my piece and Johnson’s. For what it’s worth, I share Greenwald’s view that a criminal investigation that focuses entirely on CIA agents who failed to “toe the line” in applying techniques would be an utter travesty. It would in effect be “Scapegoat the Grunts, Round II.” I also think it is clear that Holder will not charge a special prosecutor to go after senior political figures. That would be both politically destructive and inconsistent with legal and ethical guidelines. He will charge the special prosecutor to investigate the underlying allegations of crime.
In that sense, Johnson’s statement is correct. But it’s also misleading. As soon as the special prosecutor gets into the facts relating to the use of the Bush-approved techniques, he will deal with the claims of interrogators and deeply implicated contractors like James Mitchell and Bruce Jessen that they were acting under instructions from higher up the chain and in accordance with guidance delivered by senior CIA officials and political appointees, both oral and written. The special prosecutor will have to examine the bona fides of these claims and investigate the guidance that was given and whether it comported with law. In other words, the conduct of Bush Administration officials may well not be implicated in the specific tasking document issued by Holder, but it would be raised by way of affirmative defense by the interrogators and contractors. The special prosecutor will not be able ultimately to avoid looking at these questions if he or she pursues the job credibly. And if Holder were to direct that certain individuals are immune from review by the special prosecutor, he would make the entire exercise into a travesty. The inference that higher-ups won’t be caught up in the investigation is, in my view, unwarranted.
A further word of caution: the fact that a prosecutor is appointed doesn’t mean that indictments will follow. To the contrary, it reflects the well-reasoned judgment of the attorney general that, given the focal and highly conflicting role Justice played in the whole affair, the decision about whether to bring charges needs to be exercised by a person who was divorced from all these facts. I also think Holder should select someone with gravity who would enjoy the respect of prominent Republicans, and that such a person is highly unlikely to rush to bring charges against senior political figures. Indeed, as I note, the path to bringing charges is extremely complicated, and it is far from clear that the process, fairly followed, will produce charges.