We don’t need the pain of torture indictments


Eric H. Holder Jr. is an attorney general of great integrity and deep experience, but he did neither President Obama nor the country a service Monday when he appointed a longtime federal prosecutor to investigate whether CIA interrogators should be criminally prosecuted for abusive interrogation of Al Qaeda prisoners.

The president himself -- with the unqualified support of Leon Panetta, the new director of Central Intelligence -- has already ordered an end to the use of torture against suspected terrorists. There is no reason to believe that has not occurred. Many, however, continue to believe that those who abused prisoners during the previous administration -- as well as those who provided the color of authority under which they acted -- must be held legally accountable.

Holder seems to believe that the applicable federal statutes leave him no choice but to plunge into the morass. This, however, is one of those situations in which -- as the Scriptures have it -- “the letter of the law kills, but the spirit gives life.”


The place where national security, public policy, practical necessity and political common sense meet obviously cannot be a territory without laws, but neither can it be a place where an absolutist, narrow reading of the law leaves no place for other important civic virtues -- like discernment, proportionality and a regard for civil politics.

The adoption of torture as state policy by President George W. Bush and Vice President Dick Cheney was a moral disgrace and a blot on our national honor that will not easily be expiated. Holder reportedly was influenced to make Monday’s appointment by the release of the CIA’s own internal 2004 report on the interrogations, which was compelled by an ACLU lawsuit.

Though heavily redacted, the version of the report made public this week documents stomach-turning practices, apart from the hundreds of waterboardings, which we already knew had occurred. There was emotional torture: One detainee was told that if another attack occurred, his children would be killed, and another was told that, if he didn’t cooperate, the interrogators would “get your mother in here.” There were near-strangulations, mock executions and threats to maim prisoners with power drills.

We also know, however, that the CIA employees who behaved in this abhorrent and -- for Americans -- aberrant way were acting in many cases under the direction of sinister private contractors whose services had been retained by the Bush/Cheney White House.

Similarly, the administration had, at the highest levels, manipulated the Department of Justice’s Office of Legal Counsel into rendering opinions legally sanctioning all this. Not only did the president, vice president and their most powerful aides create a climate in which torture was permitted, they actively -- indeed, relentlessly -- pressured intelligence professionals to produce information they believed prisoners were concealing.

Given that background, let’s suppose the investigation Holder has ordered results in indictments of intelligence professionals who participated in these gruesome torture sessions. It would be a travesty to prosecute low-level CIA officers or even contractors without going after the Justice Department lawyers whose legal opinions they acted on -- and even Bush and Cheney, who pressed for those opinions. Moreover, prosecutors are ethically obliged to weigh the likelihood of conviction before bringing a prosecution and getting a jury to send a CIA agent to jail for threatening an Al Qaeda terrorist. Well, good luck with that one.


Let Sen. Russ Feingold (D-Wis.) and spokesmen for the activist group keep demanding that Bush and Cheney be “held accountable” if they wish. But let’s hope Obama and his attorney general understand that prosecuting a president and vice president for policies they believed were crucial to national security -- however wrongheaded, vicious and destructive -- would be a divisive political disaster.

We’ve already had a foretaste of what’s coming with Cheney charging that this week’s events show the Obama administration is unfit to protect the country’s security. Rep. Peter King (R-N.Y.), the ranking minority member on the Homeland Security Committee and an Intelligence Committee member, called Holder’s decision “disgraceful.

Comments like these provide the merest hint of the kind of rancor that will split this country if CIA interrogators or Bush administration officials start being dragged into criminal courts. The country needs to compile a complete record of what occurred during the eight years of misgovernment under Bush and Cheney. We need to get all the facts on torture through a thorough, bipartisan inquiry.

And then we need to move on, resolved never to repeat such reprehensible conduct.