Republicans are calling it a witch hunt. Civil libertarians and human rights activists are calling it a whitewash or, at best, a first step. My best guess is that Attorney General Eric Holder probably acted quite reasonably.
I say best guess, because I don’t know — any more than do all of the people criticizing Holder’s decision — exactly what information led to his move. I am therefore far from sure that I agree that the specific cases he referred to prosecutor John Durham warrant further investigation. Nor is it clear that other incidents that he did not refer to Durham do not warrant inquiry. That said, the broad principles reflected by Holder’s action seem to me correct.
First, Holder is taking heat from the left for not authorizing a general criminal inquest into Bush administration interrogation policies and their development. He is right to refuse. As President Obama has made clear, nobody should face criminal prosecution for following in good faith the law as articulated by the Department of Justice. Nor should lawyers in the department face criminal investigation for interpreting the law, even wrongly, in the absence of evidence that they did not believe their interpretations were reasonable.
But this leaves the question of what should happen to those operatives who acted beyond the exceptionally permissive guidance that the lawyers gave them. Some of these incidents are very ugly. Some detainees even died in custody. And if people acted in violent fashions beyond what the Justice Department authorized and if there is some reason for Holder to be dissatisfied with the manner in which the career prosecutors in the Justice Department previously investigated their cases, it strikes me as appropriate for him to request another look.
The key, it seems to me, is that the investigation should focus only on the specific incidents in which people exceeded the legal guidance they were given. If it spreads beyond those incidents, it risks becoming the witch hunt conservatives are already decrying. By contrast, a failure to resolve those cases credibly risks becoming the whitewash the left has already proclaimed.
It is worth asking, if CIA workers violated human rights and claimed, as a defense, that their orders were legal under the prevailing laws and that they were following those orders, how is this any different from the Nuremburg trials? These workers should have known that what they were doing was wrong and they should have refused. If they did not know, they deserve punishment.
From a pragmatic standpoint, Wittes is absolutely right. Make no mistake, there are people out there who seek to do harm to the West, including the US. Their methods do not fit the conventional warfare for which the laws of war are designed. Nonetheless, they need to be stopped or innocent people will die. From that perspective, CIA officers who acted in good faith and were told they were acting in accordance with the law should not be punished.
The detainees at Guantanamo were being tortured, and their continued indefinite detention is a form of torture. Regardless of whether they were told it was legal, those who participate in torture will answer to a higher court.
The present administration is taking steps to engage with the Muslim world. This is necessary, although it isn't sufficient by itself, to bring us on a path to a more peaceful world. If we stop doing this, if a later, more belligerent administration takes over and undoes this someday, then there will be hell to pay, and the entire country will have to answer to that higher court.