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.