The more I think about it, the more I'm beginning to think that this weekend's revelation (that Attorney General Eric Holder was considering appointing a special prosecutor to investigate CIA interrogations during the Bush administration) was a triumph of Justice Department communication strategy. When you agree to give Newsweek an interview (which ostensibly would end up on the cover), you bring along some news. I don't doubt for a moment that AG Holder is honestly contemplating a special prosecutor, and I ascribe no ill motives to his staff, who are responsive to -- and responsible for -- the Attorney General's freedom to move in political spaces.
What is Holder actually going to investigate here? Not the policy-makers who ordered the Justice Department to come up with a legal rationale for torture. Not (necessarily) the Justice Department lawyers, like John Yoo, who constructed the labyrinthinian legal opinions that were supposed to guide the CIA interrogators in their work? Not the CIA officials who monitored the interrogators (via videotape, streaming or sent in). No, Holder seems ready to investigate the field guys who were under the highest degree of pressure and who had the least degree of responsibility for knowingly writing and/or practicing a policy that turned out to be illegal? No doubt that a dragnet will capture an Ivan-the-Terrible type interrogator who willfully and repeatedly violated the DOJ's "norms" when dealing with prisoners, but it is hard to imagine a more perverse outcome: the people who were closest to the policy get off scot free, and the people who carried out the policy (under unimaginably difficult circumstances), get punished for actions that they are not entirely responsible for.
One of the reasons why President Obama opposes this type of prosecution is that it will target people imperfectly, that it will not hold anyone meaningfully accountable, that it will further complicate existence for CIA officers on the front lines, that it is nothing more than a simulacrum of justice designed to be the justice, the reckoning, that so many critics of the Bush administration want. This is his reasoning. Why can't policy-makers be investigated? Obama worries about the precedent and believes that immunity for even illegal decisions is an established mechanism of our democratic institutions (provided that the institutions, like elections and oversight), work as intended.
Let's assume, for the moment, that the CIA's National Clandestine Service is demoralized and choatic now. No one ought to sanction conduct that violates the law. But the law ought to be enforced in a way that encourages accountability and not in a way that encourages scape-goating or vengeance. Interrogators who broke the law -- how can anyone defend them? But the point is: how can anyone defend or immunize their superiors while not defending or immunizing them? Good luck to CIA case officers who try to recruit a source in this environment. The source, reading CNN.com, will discover that the case officer's promises to him or her are subject to intense and immediate second-guessing; they'll discover that the CIA can't keep a secret (thanks to Congress); they'll realize that the government's official position is to leave field officers twisting in the wind while superiors in comfy HQ jobs get million-dollar consulting contracts. (The CIA officers being prosecuted in Italy right now would agree. Don't underestimate how badly that case has hurt morale in the NCS.)
All of this might be spilled milk in a democratic system. There may well be times when the collateral damage of necessary investigations and valid prosecutions might hurt intelligence collection. But selective prosecutions and incomplete investigations will almost always hurt without serving the interests of justice. I don't doubt that the NCS would prefer not to revisit the past; six ongoing investigations (various inspectors general inquiries, two Congressional inquiries, policy review panels) are complicated enough. I don't doubt that good people inside the NCS think that prosecutions of bad folks will vindicate the vast majority of those officers who acted properly and morally.
But I think the CIA -- and President Obama -- agree that incomplete and ad hoc justice might not be justice at all.
What do you think?