Holder Whiplash

Glenn Greenwald needs a neck brace, and I can't say I blame him. First the news seems to be that the attorney general really is going to appoint a special prosecutor to investigate the illegal Bush-Cheney torture program; then it appears that it's going to be restricted solely to abuses on top of the baseline torture techniques approved by Yoo and Cheney. I agree with Glenn and Tim F. that the latter would be worse than nothing at all. A further round of scapegoating in order to protect the real architects of the program would be deeply damaging to the rule of law and the line of command. It would implicitly bless the torture that it did not prosecute. And as Cheney conceded, these were presidential-level decisions on presidential policy grounds. You don't take the United States into the ranks of countries that torture prisoners at the behest of a low-level functionary or an excessively aggressive torturer. Someone higher up ordered these barbaric practices that were found systematically in identical fashion across every theater of combat. The investigation into legal responsibility for the commission of these crimes as defined in international and domestic law should go wherever the evidence leads - as far up the line of command as it goes. That's what the Department of Justice means. And justice is not subject to Rahm Emanuel's politicking.

Scott's scoop is here; Glenn's reaction - updated thrice - is here. The resistance to bringing the torture architects to justice seems to be coming from political sources, but they may have over-played their hand:

In the days after Obama’s speech at the CIA, both Axelrod and Emanuel insisted that the White House had made the decision that there would be no prosecutions. According to reliable sources, that incensed Holder, who felt that the remarks had compromised the integrity both of the White House and Justice Department by suggesting that political advisers made the call on who would or would not be criminally investigated.

After Axelrod and Emanuel made their statements, Holder realized, a source said, that the Justice Department might have to appoint a special prosecutor to uphold its reputation for independence. Observers caution that even if a special prosecutor is appointed, actual indictments would still be far off. The Bush torture policy was implemented with the advice of lawyers well skilled in the ways of Washington bureaucracy. Any prosecutor would face considerable legal obstacles in bringing charges. A review of the torture memoranda themselves shows that a consuming concern was thwarting the possible bringing of charges by a future prosecutor. Now, perhaps, the defenses they devised may be put to the test.