By JOANNNE MARINER
Last week, as part of a long article on the challenges facing Attorney General Eric Holder, Newsweek broke a new and potentially dramatic story. Relying on four "knowledgeable sources," the magazine reported that Holder is leaning toward appointing a prosecutor to look into the Bush administration's abusive interrogation practices.
According to these sources, Holder began reviewing the prior administration's detainee policies not long after he took office. What he learned was supremely discomfiting. Indeed, Newsweek said, it did not take long for Holder to realize that he might have to launch an investigation to assess whether criminal prosecutions of former officials were warranted.
While the article indicated that Holder had yet to make a final decision about whether to name a prosecutor, it emphasized that he had read and re-read classified reports on Bush-era interrogation practices, and had discussed possible prosecutorial appointments with his staff.
The possibility that the Justice Department might investigate the Bush administration's systematic reliance on torture, "disappearance," and secret CIA detention is important and encouraging. The United States cannot pretend to have repudiated these egregious human rights abuses unless it treats them as crimes rather than legitimate policy options. A criminal investigation would send the strongest possible signal that the U.S. government no longer employs, endorses, or condones torture.
"Good" and "Bad" Torturers?
Yet some aspects of the proposed investigation raise concerns. As sketched out in Newsweek, and in subsequent articles in the Washington Post and the New York Times, the investigation would focus only on practices that went beyond what was allowed under legal advice provided by the Justice Department at the time.
The problem is that the legal advice in question—contained in memoranda drafted by right-wing ideologues like John Yoo—already authorized brutal forms of torture. Reading these memos provides a frighteningly detailed picture of the CIA's dungeons. They describe practices like "waterboarding," in which prisoners are put through the agony of near-drowning, as well as long-term sleep deprivation, violent slamming of prisoners into walls, forced nudity, and confinement of prisoners into small, dark boxes.
Not only do the memos try to redefine torture out of existence, and thus render the prohibition on torture meaningless, they also assert that the president has the legal power, as commander in chief, to order that torture be carried out.
The point of these memos was, in short, not to protect prisoners from abuse; their point was to facilitate abuse. Any decision to rely on these memos as delineating a threshold for possible prosecutions would risk making spurious distinctions between "good" CIA torturers—those who followed illegitimate guidance from above—and "bad" torturers, those who improvised. It would also risk validating the Bush administration's cynical decision to obtain bureaucratic sign-off for abuses.
More importantly, such an approach would reflect an inaccurate understanding of the events at issue. The CIA's detention and interrogation program was a purposeful, systematic, and coordinated effort to employ illegitimate and illegal methods against prisoners in U.S. custody. It was abusive from top to bottom. The problem was not simply a few "bad apples," or rogue officers on the night shift.
While there may indeed have been CIA operatives who broke the rules, to focus solely on these operatives would be to miss the point.
The Bad Apples Are at the Top of the Tree
It is understandable that Attorney General Holder wants the Justice Department to home in on the worst offenders. Those who truly deserving of punishment, however, are not the low-level operatives who carried out the CIA's abuses, but rather the senior officials who made torture official U.S. policy.
Joanne Mariner is a human rights lawyer living in Paris.