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Will Attorney General Eric Holder's Torture Probe Let Senior Bush Officials Off the Hook?

Anti-torture lawyers argue that any investigation must target the whole torture system, including its legal architects and those who gave the orders.

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Jaffer adds: “We want to make sure that the prosecutor’s mandate is broad enough to cover not just the actions of rogue interrogators, but also the actions of senior Bush administration officials who authorized or endorsed or facilitated torture.”

As Constitutional law expert/Salon columnist Glenn Greenwald pointed out:

It’s worth emphasizing here that all of these reports are preliminary and from anonymous DOJ sources, so it’s a bit premature to get too worked up over a prosecution approach which Holder hasn’t even announced yet.  Still, given how many DOJ sources went to multiple newspapers at the same time to disclose Holder’s plans, it seems clear that this was a coordinated, approved effort to disseminate Holder’s intentions as a “trial balloon” to gauge public reaction.  If this is the approach Holder takes -- one that, yet again, shields high-level Bush officials while targeting low-level “rogue” agents -- one can make a strong argument that it is worse than doing nothing, that this will actually further subvert the rule of law rather than strengthen it.

Ratner has consistently criticized President Obama’s position that the U.S. should “look forward and not backwards” and Obama’s offer of preemptive immunity for CIA torturers with Obama in April assuring those torturers who were “relying in good faith upon legal advice from the Department of Justice that they will not be subject to prosecution.” Ratner says that if Holder only allows a narrowly-focused investigation based on adherence to the torture memos, the Obama Administration is “essentially saying that the entire torture program was OK and people have a legal defense to it:”

It is in essence accepting the legal defense that was engineered for exactly that purpose to give people a golden shield and only go after people who go beyond it. It’s like saying, ‘You can torture someone by bending their arm behind their back until it breaks only one bone, but not if it breaks two bones. If it breaks two bones, I’m gonna go after you. If you cut off one testicle, I’m not going to go after you, but if you cut off two, I will. If you waterboard someone 150 times, I’m going to go after you, but not if you do it 83 times.’ It’s a line in the sand, it’s ridiculous. It’s malleable, it’s terrible.

It’s not that I think going after these guys for going beyond the legal memos is so bad, but if its leaving intact the structure of the torture program, then it’s basically not worth much.

Jaffer echoed Ratner’s comments:

We have no problem obviously with investigating and prosecuting interrogators that use torture whether they exceeded guidance or not. But, you have to look at the guidance itself. The memos themselves came from the most senior attorneys in the Justice Department and the authorization for the torture program came from the most senior officials in the Bush administration. To pretend that this is a problem that began and ended with the interrogators who exceeded authority, I think, is indefensible given the evidence that’s already in the public domain.

Much of the coverage following the original Newsweek report of the possible appointment of a prosecutor by Holder has focused on partisan political questions. On Monday, The New York Times devoted substantial space to this aspect of the story:

It is just the kind of distraction from Mr. Obama’s domestic priorities -- repairing the economy, revamping the health care system, and addressing the long-term problems of energy and climate -- that the White House wanted to avoid.

A series of investigations could exacerbate partisan divisions in Congress, just as the Obama administration is trying to push through the president’s ambitious domestic plans and needs all the support it can muster.

“He wants to dominate the discussion, and he wants the discussion to be about his domestic agenda -- health care, energy and education,” said Martha Joynt Kumar, a professor of political science at Towson University who studies the presidency.

The Bush national security controversies “are certainly a diversion from what he wants to do,” Professor Kumar said. “He wants to talk about the present and not the past.”

While the Newsweek article asserted that “White House officials have complained that Holder and his staff are not sufficiently attuned to their political needs,” it is hard to imagine Obama simply standing by while his Attorney General conducts investigations directly opposed by the president. Ratner criticized the recent coverage, saying that it “only discusses the so-called ‘political costs.’ It doesn’t cover one positive thing that could come out of prosecutions. It’s really off the wall.”