Way back in April of last year I wrote that there are some things that are above political loyalty and that the Constitution is one of them. In July I wrote in a post titled “The Constitution Doesn’t Poll Very Well” that noted how busily the Obama Admin and Congressional Blue Dogs were gutting the Bill of Rights. This past February I listed a number of Bush’s illegal powers that Obama was protecting despite his promises for “transparency, accountability and openness”. Now I have to report that Obama has decided to protect the people who retroactively wrote legal justifications for this illegal and immoral policy, defend the policy itself, and worst of all, accept torture as legitimate behaviour once he puts a Yoo-style legal framework around it so we can all pretend it isn’t inhuman.
As the attorney general, Eric H. Holder Jr., debates whether to appoint a criminal prosecutor to investigate the interrogations of terrorism suspects after the attacks of Sept. 11, 2001, he is at the brink of a career-defining decision that risks the anger of the White House and the Central Intelligence Agency, one of the Justice Department’s main partners in combating terrorism.
There is no surprise then that Mr. Holder is said by officials to have been resistant at first to the idea of appointing a prosecutor, particularly since the Obama administration has made it clear that it wants to put the issue of interrogation practices during the Bush administration behind it.
Mr. Holder has told associates he is weighing a narrow investigation, focusing only on C.I.A. interrogators and contract employees who clearly crossed the line and violated the Bush administration’s guidelines and engaged in flagrantly abusive acts.
But in taking that route, Mr. Holder would run two risks. One is the political fallout if only a handful of low-level agents are prosecuted for what many critics see as a pattern of excess condoned at the top of the government. The other is that an aggressive prosecutor would not stop at the bottom, but would work up the chain of command, and end up with a full-blown criminal inquiry into the intelligence agencies — just the kind of broad, open-ended criminal investigation the Obama administration says it wants to avoid.
AG Holder is caught between a rock and a hard place. He’s under pressure both ethically and legally to prosecute torturers yet his boss doesn’t want him to prosecute any of the people who devised and ordered the torture to occur. Glenn Greenwald put what this means succinctly.
[T]he Newsweek reporter who first printed what DOJ officials told him about Holder’s intentions, Daniel Klaidman, confirmed in an interview on The Young Turks that Holder intends to confine any investigations only to “rogue” interrogators who exceeded John Yoo’s torture permission slips while shielding high-level Bush officials who acted in accordance with Yoo’s decrees. Proving yet again that there is nothing more difficult than satirizing our rotted political culture, here is what I wrote about Holder’s intentions last week:
Holder’s plan, at least at the moment, is — from the start — to confine the prosecutors’ authority to investigate to CIA agents who went beyond what John Yoo and George Bush decreed could be done (“he used more water than Yoo said he could”; “he tied him up for longer than Yoo authorized”; “the room was colder and the freezing water icier than Yoo allowed”). At least if these reports are accurate (and, for several reasons, that’s unclear), anyone who “merely” did what John Yoo said was legal — meaning everyone who matters — will be shielded and immunized.
If low-level CIA interrogators — and only them — end up as the targets of investigations because they used m0re water than John Yoo allowed, or turned the thermostat lower than the hypothermic levels which the DOJ permitted, or waterboarded with more frequency than Jay Bybee approved, I wouldn’t blame the CIA for being furious. It was the regime itself, implemented at the highest levels of our government, that was criminal. Prosecuting only low-level interrogators who followed the torturing spirit of those policies but transgressed some bureaucratic guidelines would be a travesty on par with what happened with the Abu Ghraib “investigations.”
(emphasis in original)
Worse, by putting the legal emphasis on whether or not the interrogators had exceeded the authority given them by Yoo and Bybee and the other apologists, Obama is tacitly accepting the Yoo/Bybee/Addington/Cheney assertion that a) torture is legal in the US and b) the president can legally order an illegal procedure as long as it is kept within whatever bounds are set by the president. Which in turn means that torture is now legal and that US presidents have the power to ignore treaty law, international law, and domestic law – the Constitution – just as Bush/Cheney claimed they did. It is a de facto rather than de jure assumption of power, quiet, even stealthy. Without facing the issue squarely, discussing it openly, or explaining it clearly, the Obama Admin is simply going to act as if it’s true, thus creating precedent and making it true.