Perhaps Sen. Joseph I. Lieberman didn't read Attorney General Eric Holder's statement about his decision to review CIA interrogations today for possible future prosecution. Lieberman allowed that while CIA officers "must of course live within the law" they must also be free to "do their dangerous and critical jobs without worrying that years from now, a future Attorney General will authorize a criminal investigation of them for behavior that a previous Attorney General concluded was legal and authorized."
Notwithstanding the logical leap in the latter clause, Lieberman apparently doesn't quite appreciate Holder's dilemma: the CIA admitted that laws were broken, and behavior that wasn't authorized by a previous attorney general appears to have been an operational norm. The CIA's inspector general report, on page 255, concludes that the "Agency faces potentially serious long-term political and legal challenges as a result of the CTC Detention and Interrogation program, and the inability of the U.S. government to decide what it will ultimately do with terrorists detained by the Agency." The IG specifically found that agency officials were aware "of interrogation activities that were outside or beyond the scope of written DOJ opinion." That is, even if you think the DOJ's legal options were transparent tarps to cover for illegal behavior, agency operations often exceeded those limits, as well. Laws were broken, in other words.
The irony for Lieberman and for other Republicans, like Rep. Peter Hoekstra, the former House Intelligence Committee chairman, is that the Obama administration quietly agreed that terrorism prosecutions would distract and potentially disrupt current CIA operations. The administration took a "see no evil, hear no evil" approach: it worked hard to give CIA and former administration officials as much of a protective cover as possible.
But there was so much information in the public domain -- and so much information that would eventually be released -- that the attorney general could no longer argue that no specific instances of lawbreaking had been brought to his attention. When an OLC memo says "Don't ever do X," and a Red Cross report, backed up by independent witnesses and government cables, is explicit that "X" happened, Holder really had no choice. Some on the left have argued that President Obama risked the legitimacy of American judicial institutions by forgoing a broader investigation and by urging his attorney general not to look more deeply at past practices. If the Attorney General didn't at least review past cases in the light of all available information, the administration could fairly be accused of refusing to accept the obvious. Lieberman should be satisfied that Holder has decided to limit the investigation to twelve documented instances of abuse, and that the White House's first reaction here was to worry about morale at the CIA.