Glenn Greenwald on what the appointment of a prosecutor to investigate torture by Attorney General really means:
As a practical matter, Holder is consciously establishing as the legal baseline — he’s vesting with sterling legal authority — those warped, torture-justifying DOJ memos. Worse, his pledge of immunity today for those who complied with those memos went beyond mere interrogators and includes everyone, policymakers and lawyers alike: “the Department of Justice will not prosecute anyone who acted in good faith and within the scope of the legal guidance given by the Office of Legal Counsel regarding the interrogation of detainees.” Thus, as long as, say, a White House official shows that (a) the only torture methods they ordered were approved by the OLC and (b) they did not know those methods were criminal, then they would be entitled to full-scale immunity under the standard Holder announced today.
This quite likely sets up, at most, a process where a few low-level sacrificial lambs — some extra-sadistic intelligence versions of Lynndie Englands — might be investigated and prosecuted where they tortured people the wrong way. Those who tortured “the right way” — meaning the way the OLC directed — will receive full-scale immunity.
Fig leafs are all the fashion in DC this summer. Rule of law-shredding, global standing-sinking fig leafs.
Holder’s announcement almost certainly means that the senior level administration officials who thought up, legalized, authorized, and then ordered torture will be immune from investigation and punishment. The people who effectively followed their orders to torture detainees but got slap-happy along the way will shoulder all the blame. As Greenwald notes, this will effectively create a two-tiered system of justice in the United States and make the Bush administration’s torture policies the accepted law of the US government. Marcy Wheeler describes what is happening as a move to “shift focus away from those that set up a regime of torture and towards those who free-lanced within that regime in spectacularly horrible ways.”
There’s no doubt in my mind that people who exceeded the illegal and immoral guidelines set by John Yoo and other Bush administration lawyers should be punished for what the did. But to limit the Obama administration’s pursuit of justice to these people is to miss the entire point of the need to investigate and prosecute the perpetrators of the torture regime under the Bush administration. It’s not about the operators who did too much, it’s about the top officials who told them to walk down this path at all.
As of now, it looks like Attorney General Holder and likely by extension President Obama simply do not get how damaging this course of action is to the country and the rule of law.