Published on Wednesday, July 22, 2009 by Salon.com
Stephen Colbert on Chuck Todd and Torture Investigations
Amazingly, reports that Eric Holder is considering commencing an investigation into Bush-era torure crimes has created extreme consternation in multiple Beltway circles despite how narrow and limited those investigations would be. As I wrote last week , numerous reports indicate that Holder wants to replicate the Abu Ghraib travesty by investigating only low-level interrogators who exceeded the torture limits approved by John Yoo and George Bush, and not investigate the high-level policy makers who instituted the criminal torture regime or the DOJ lawyers who authorized it.
Since then, the 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.
Here is what The New York Times' David Johnston writes today  about Holder's intentions:
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 limited inquiry, at least initially, would review more than 20 abuse cases, including some involving prisoner deaths, which were referred to federal prosecutors in
In addition, an inquiry would probably examine whether the C.I.A. operatives who questioned high-level Qaeda detainees at secret prisons exceeded the Justice Department's legal guidance. A footnote in a recently released 2005 Justice Department legal memorandum said that the C.I.A. inspector general had found in the 2004 report that interrogators used waterboarding with greater frequency and a larger volume of water than seemed to be approved by the Justice Department.
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." Though there is the potential benefit that a prosecutor could follow the trail to high-level officials notwithstanding Holder's attempts to limit the investigation (a result I think is quite unlikely), there is a strong argument to make -- as I made here  -- that prosecuting only low-level "rogue" interrogators would be worse than no prosecutions at all, as that would only serve to further bolster our two-tiered system of justice.
Despite how limited the investigation is to be -- despite the full-scale immunity from the law which our highest political officials will continue to enjoy -- the media consensus is still that any criminal investigations of Bush's torture regime would be a horrible and distracting act of unfairness, even if the intention is to prosecute acts of homicide by interrogation. Last night, Stephen Colbert built a segment around my interview on this topic with NBC's Chuck Todd  -- entitling his commentary "A Perfect World," after Todd's repeated answers to me about when high-level political officials should be held accountable under the law (only "in a Perfect World") -- in order to mock the prevailing media sentiment in opposition to the rule of law:
There are few instances where the establishment media reveals more transparently what they are and what they do than when they demand that high-level Bush officials be endowed with immunity from the consequences of their crimes.
© 2009 Salon.com
Glenn Greenwald was previously a constitutional law and civil rights litigator in
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"The master class has always declared the wars; the subject class has always fought the battles. The master class has had all to gain and nothing to lose, while the subject class has had nothing to gain and everything to lose--especially their lives." Eugene Victor Debs