Michael Isikoff and Evan Thomas, report in Newsweek:
Though administration officials declared that CIA interrogators who followed Justice’s legal guidance on torture would not be prosecuted, that does not mean the inquiries are over. Senior Justice Department lawyers and other advisers, who declined to be identified discussing a sensitive subject, say Attorney General Eric Holder Jr. is seriously considering appointing an outside counsel to investigate whether CIA interrogators exceeded legal boundaries—and whether Bush administration officials broke the law by giving the CIA permission to torture in the first place. Even if Holder takes a pass, Sen. Patrick Leahy, chairman of the Senate Judiciary Committee, is still pushing for a “truth commission.” In a democracy, the wheels of justice grind on—and the president, for good reason under the rule of law, does not have the power to stop them.
This is one of the most challenging problems facing the administration, and that is saying something considering the state of the economy and the situations on the ground in Iraq and Afghanistan. One of the reasons the problem is so difficult is precisely because the administration doesn’t have the power to impose one simple course of action. Regardless of what Obama wants, his Attorney General has the ultimate authority to make these decisions. And regardless of what Eric Holder does, there are still the Congressional oversight committees. And regardless what Congress does, there are still the civil courts. And regardless of what our Supreme Court decides, there are still International courts. After that, the historians get involved.
The problem cannot be quarantined and there is no mechanism to just make it go away. The best the administration can do is to come up with a plan that allows them to deal with the issue is concrete steps that prevent it from becoming all-consuming. I have real concerns about their approach because it is very hard to stomach the idea that no one who conducted torture (waterboarding, slamming people into walls) will be prosecuted as long as they didn’t go beyond what the OLC authorized. But, by making this distinction, the Obama administration at least creates a narrower and more manageable field of action. They do not, for example, have to investigate who was present at every interrogation, what was done at every interrogation, who authorized each and every method of interrogation, and so on. If they were to attempt to do that, it would become all-consuming.
If they keep their eyes on the two main things that Isikoff and Thomas mentioned (officals that exceeded ‘legal’ boundaries and whether Bush administration officials broke the law by giving the CIA permission to torture in the first place) then they can be very focused in their approach. It also has the advantage of avoiding a situation where underlings are punished while bigwigs get off scot-free. There could be some wisdom in the Obama administration’s approach, even if I find it dubious on moral grounds and questionable as a matter of International Law. Here is what I would like to see (within the context of what Obama and Holder have already announced).
1. That they determine that the OLC violated the law when they authorized torture. They should recommend that Judge Bybee be impeached, and they should move to disbar Yoo, Bradbury, and any other lawyers intimately involved in the process. Grand juries can determine whether prosecution is appropriate.
2. All interrogators, medical personnel, and psychological staff that engaged in acts of torture should be quietly terminated from government jobs or their contracts should be terminated.
3. High-ranking CIA officers that pressed for torture authorization should be quietly terminated. Grand juries should decide if they should be prosecuted.
4. An independent prosecutor should be introduced to unravel the decision making at the top, and their grand juries should make the ultimate decisions on who should be prosecuted and for what.
At the end of this process, Obama will still have the option to use his pardon power if he deems it in the national interest. But that’s a decision that is far down the line. If Obama and Holder follow these basic outlines, they will have done enough, in my opinion, to satisfy the requirements of our obligations. But I will still see it as overly lenient.
