Eyes on Holder

TNR's Jeffrey Rosen:

Barack Obama is trying to split the difference on torture. He wants to move forward–no messy dwelling on the Bush-Cheney era–except that he’ll look backward if forced. There will be no independent commission to hold top-ranking officials politically accountable. But, if Attorney General Eric Holder wants to prosecute the Bush lawyers who defended the legality of waterboarding–John Yoo, Jay Bybee, and Steven Bradbury–well, the president won’t stand in the way.

TMV nods:

What does Obama gain by this approach? For starters, he has delegated the hard choice to his subordinate–and has left himself room to maneuver once more if the political winds shift further.

As a bonus, it's pretty darn close to the right thing to do. I would prefer Obama be more optimistic about an independent truth commission to give us a full report, but enacting that would be up to Congress, and the Democratic leadership is against this because they are implicated. (Speaker Pelosi, for instance, knew all about the techniques before they were used in 2002.)

So in terms of what the executive branch can do on its own, that's the Justice Department's turf. And decisions like this aren't supposed to be politically motivated, so it's entirely appropriate that Obama delegate the decision to the AG and his staff. This is certainly a step up from the Bush administration's shenanigans during the Plame affair et. al.

However, Obama did promise no prosecutions for CIA interrogators, which was disappointing. It's within his power to promise pardons for anyone who's convicted for following the bogus legal advice, certainly, but ignorantia legis neminem excusat—nor is 'I was just following orders' a valid defense. We prosecuted the Nazis, remember?

That said, I can see how Obama's promise may have been helpful to keep the dolchtoss right from going absolutely berserk—but more importantly to placate the agency itself, which was somewhat pissed over the release of the shaming memos. Fmr. CIA director Michael Hayeden and others argued that revealing the techniques has made us less safe, of course, but this remains a bogus claim because Obama banned their usage on day one.  In reality, Bush officials and partisans on the right objected to the memo release because of the shame and more definitive accountability it has wrung.

Somewhat tangentially, I'm reminded of how UNRR absurdly said of the release that "Terrorist Rights Supporters Win Minor Victory", which would be laughable if the situation weren't so grave. He likes to scoff about the "bad ideas" of justice, "legalism", and moans there of "crippling legal restrictions"—I don't, because torture is indisputably illegal and will remain that way; if you wish to advocate torture interrogations it's clear that the only cogent position is that they be done extralegally and kept ultra secret.  But talking about such a thing is rather pointless, because we'd definitionally know nothing about whether it's happening or not.