Holder Might Appoint Prosecutor to Look Into "Torture"

Eric Holder, Attorney General, is stuck in the past. He's so fanatically convinced that Bush and Cheney approved torture by allowing waterboarding (with congressional approval), he just can't stand the thought that the Obama administration won't conduct a witchhunt (from Mark Ambinder):

A Justice Department official confirms Newsweek's report that Attorney General Eric Holder is leaning towards appointing a special prosecutor to investigate Bush administration-era torture and interrogation policies. Newsweek's Dan Klaidman cites four departmental sources, and Holder himself, as admitting that, after a review of the programs, Holder began to consider an investigation, even though President Obama and Obama's top aides oppose any sanctioned look back at the policies of his predecessor. When Obama asked Holder, a longtime friend, to become attorney general, Holder extracted a promise -- perhaps extracted is too tough of a term because Obama readily agreed -- that the White House would not interfere with the Department's decisions about whether to launch investigations, according to two people with knowledge of the encounter. When it comes to setting and refining judicial policy, the White House counsel's office plays the lead role. But Holder and his deputies get to decide whom to prosecute.

The Newsweek article flatteringly portrays Holder as a "renegade" whose decision-making process is influenced by his pursuit of justice, Obama's agenda be damned. It reveals some tension between the Justice Department and the White House, although my sense is that the tension is less acute than the article portrays and more institutional than personal (One sore point: the White House counsel's office was notified about the Obama administration's first assertion of the state secrets privilege, but somebody forgot to inform the president. Such confusion in the first few weeks of an administration would be news if evidence
for it were absent.)

Perhaps the article will ratchet up the tensions, since it creates a Holder v. Obama dynamic that White House press secretary Robert Gibbs will be forced to respond to on Monday, probably with a folksy quip. The White House doesn't like process
stories like this one, although, on one level, the portrayal of a Justice Department independent from White House political considerations is, on balance, positive for Obama's conception of the rule of law.

Appointing a special prosecutor to investigate Bush-era policies of any sort is fraught with risk, even exempting the public and political ramifications. Investigations like these have a way of snowballing. The intelligence community will strenuously reject and resist; there are very legitimate concerns about the integrity of classified information.

Holder better be careful what he wishes for, because if he's going to try and blame Cheney and others for "torture", he better plan to blame congressional leaders who approved it as well.