Holder Considers A Torture Prosecutor

A Justice Department official confirms Newsweek's report that Attorney General Eric Holder is leaning towards appointing a special prosecutor to investigate Bush administration-era torture and interrogation policies. Newsweek's Dan Klaidman cites four departmental sources, and Holder himself, as admitting that, after a review of the programs, Holder began to consider an investigation, even though President Obama and Obama's top aides oppose any sanctioned look back at the policies of his predecessor. When Obama asked Holder, a longtime friend, to become attorney general, Holder extracted a promise -- perhaps extracted is too tough of a term because Obama readily agreed -- that the White House would not interfere with the Department's decisions about whether to launch investigations, according to two people with knowledge of the encounter. When it comes to setting and refining judicial policy, the White House counsel's office plays the lead role. But Holder and his deputies get to decide whom to prosecute.

The Newsweek article flatteringly portrays Holder as a "renegade" whose decision-making process is influenced by his pursuit of justice, Obama's agenda be damned. It reveals some tension between the Justice Department and the White House, although my sense is that the tension is less acute than the article portrays and more institutional than personal (One sore point: the White House counsel's office was notified about the Obama administration's first assertion of the state secrets privilege, but somebody forgot to inform the president. Such confusion in the first few weeks of an administration would be news if evidence for it were absent.)

Perhaps the article will ratchet up the tensions, since it creates a Holder v. Obama dynamic that White House press secretary Robert Gibbs will be forced to respond to on Monday, probably with a folksy quip. The White House doesn't like process stories like this one, although, on one level, the portrayal of a Justice Department independent from White House political considerations is, on balance, positive for Obama's conception of the rule of law.

Appointing a special prosecutor to investigate Bush-era policies of any sort is fraught with risk, even exempting the public and political ramifications. Investigations like these have a way of snowballing. The intelligence community will strenuously reject and resist; there are very legitimate concerns about the integrity of classified information.

If Holder decides to go ahead, he may not entirely satisfy critics of the Bush-era policies; a special prosecutor might not be given a mandate to investigate more than a handful of compartmented programs.

On the one hand, it is tough to see a prosecutor being given a mandate to determine whether former Vice President Dick Cheney ordered CIA officials to not brief Congress on a highly sensitive, classified intelligence collection program given the very real chance that the national security damage resulting from the disclosure of information about the program might be significant.

Nonetheless, it's doubtful that Holder would lean into a decision in such a public way unless he was ready to consider an option that may well have significant ramifications for the country and lay a strong precedent for future administrations.

Since the beginning of his presidential transition, Obama has been counseled by his attorneys that any such investigation is likely to be incomplete, resulting in people being charged with sins they participated it but did not originate. Even senior Justice Department officials admit that the possibility of an elected White House decision-maker like the Vice President being charged with a crime is remote. Obama would rather not see middle managers prosecuted for decisions, or crimes, of elected officials or senior political appointees. And he is very concerned with precedent. But this will not be his decision to make.

Aside from this momentous decision Holder will soon reveal, and be forced to defend, the administration's position on the state secrets privilege. Additionally, the Justice Department will release a long-awaited report on Bush administration legal policy.