If the reports are true and attorney general Eric Holder really is going to launch criminal investigations only for those who went beyond the torture authorized by Bush, then the Obama administration, however well-intentioned it may be, risks essentially legitimizing the torture it does not prosecute. This strikes me as the very very worst of all possible worlds - the kind of split-the-difference pragmatism that will end up alienating everyone. It is vital that the Obama administration does nothing to imply that what was authorized within the rules under the Cheney torture program is in any way legal, defensible or moral.
Obama has ended the torture - and in ths subsequent six months, we have seen real progress against al Qaeda.
But if the Obama administration does not investigate those really responsible for war crimes, and scapegoats a few sadists down the line instead, then they risk retroactively justifying the crimes they ran against.
Is this what Frank Rich calls being "punked" by Obama? By parsing this thing so finely, he will provoke the rage of his enemies merely by doing; but he will also fail to address the real issue of accountability and the rule of law. Perhaps Holder thinks that if he pulls at this string, others will follow. Better to have a truth commission to nail down in real detail all the prisoner abuse and torture of the Cheney years - and then decide whom to prosecute.