The decision by Attorney General Eric Holder to appoint a prosecutor who'll decide whether CIA interrogators broke the law fell immediately into the political vortex. The loudest reactions were on the two edges of the national security debate: conservatives who believe that Obama is eviscerating the CIA and jeopardizing our safety, and progressives who insist that the Holder decision amounts to nothing more than a fig leaf that won't come close to holding the Bush administration accountable for its decisions. Many conservatives suspect that Holder yielded to the political imperatives of the left, while some on the left are convinced that Holder, in narrowing the set of cases subject to review, succumbed to pressure from his boss, the president, who doesn't want any look-backs whatsoever, or that Holder became a victim of the CIA's institutional spin, which posits that agency morale suffers mightily when accountability becomes the coin of the realm.
In point of fact, if this decision was in any way political, it could not be more damaging for Obama's national security agenda. The last thing the White House wants is polarization about national security on the eve of a debate about where to house Guantanamo detainees, how to reauthorize the Patriot Act, and what to do about the State Secrets doctrine.
Actually, what happened was simple. The attorney general was presented with incontrovertible evidence that crimes had occurred. And importantly, because of a decision made by the Obama administration, all that evidence was public. Think of a police brutality case where an officer is captured, on camera, beating the tar out of a suspect for ten minutes. Holder had no choice.
The Obama administration did have a choice, at least initially. But the moment the president decided to release the Bush-era Justice department memos spelling out what was legal and what wasn't, the die was cast. The International Committee of the Red Cross's report, which is given international weight and credence, described treatment of detainees that clearly violated the guidelines -- now made public. And then Holder reviewed the unredacted report of the CIA's own inspector general's investigation, which made it clear that not only did specific CIA officers violate the OLC guidelines, they knew they were violating those guidelines. An attorney general with a conscience cannot ignore what is right in front of his nose.
This is not to say that the American Civil Liberties Union and Mark Danner don't deserve credit for their investigation and doggedness. But so does, if you're inclined to this position, the White House counsel, Gregory Craig. He was the staunchest internal advocate of releasing the OLC memos, even though he knew that the release might pave the way for prosecutions that the political hands around the president did not want. Who knows what might have happened had the OLC memos never seen the light of day...or had Danner never obtained the ICRC report...or had the ACLU decided to give up the fight? Who knows?
So here is the situation. From the standpoint of politics, the White House doesn't want to re-open the national security debates of the Bush era. From the standpoint of the law, from the standpoint of the president's lawyers and their own principals, due in no small part to continuous pressure exerted from the outside -- the administration's chief law enforcement officer changed his mind.
That's not to say that the decision aligns the president or the administration with progressive politics. Far from it. The AG is doing the least that he can do. And he's doing it because, as noted above, he was forced to by the facts. There are many more avenues to explore, if the administration were so inclined, but the attorney general has made the conscious decision to stay on the side streets. Prosecuting CIA officers for this conduct will be tough -- that is conventional wisdom -- and we will see whether it holds. Regardless, the intense opposition from the right will not abate, and neither will the pressure from the suddenly bolstered left.