Defining Moment

Our View: A Justice Dept. Probe Of Cia Torture Would Show No One Is Above The Law

August 13, 2009

If, as appears likely, Attorney General Eric Holder goes ahead with the appointment of a special prosecutor to investigate CIA abuses in the interrogation of terrorist suspects, the move could prove a defining moment for the administration of President Barack Obama. Mr. Obama came into office promising to focus on the future, not the past, and he has repeatedly indicated his desire to avoid bitter partisan recriminations over the policies of his predecessor that might distract from his agenda.

Yet having named the independent-minded Mr. Holder as the nation's top law enforcement officer, Mr. Obama may now find he has less than complete control over how events play out. Mr. Holder seems little inclined to run the Justice Department as a satellite office of the White House, a big change from the previous administration, given recently released e-mails showing the depth of former Bush political adviser Karl Rove's involvement in the firing of U.S. attorneys who failed to toe the partisan line.

Mr. Holder is said to have been deeply disturbed by a 2004 CIA inspector general's report that suggested agency operatives in some cases went well beyond even the extremely permissive legal limits on prisoner treatment drafted by Bush administration lawyers. At the same time, he has insisted that any investigation be narrowly focused only on those those who clearly broke the law, a position Mr. Obama himself has endorsed.

Even so, the consequences of initiating such a probe are unpredictable. For one thing, the difficulties of obtaining convictions could be formidable. According to former government lawyers with knowledge of the cases, evidence had been lost or mishandled, witnesses have disappeared and records are in disarray.

Moreover, last month a panel of six former U.S. attorneys general warned the whole effort could be counterproductive if it served merely to stoke partisan resentments by singling out a few low-level operatives for punishment while leaving their superiors unscathed. On the other hand, an open-ended investigation that went after top officials would likely create exactly the sort of political firestorm that both Mr. Holder and Mr. Obama say they wish to avoid.

Whatever Mr. Holder ultimately decides will set the tone not only for his Justice Department but for the Obama administration as a whole. Having started down this path, there's no easy way for him to turn back. At minimum, appointing a special prosecutor would send a clear signal that no one - including the CIA - is above the law. And in choosing to uphold the law, rather than follow the political winds blowing from the White House, Mr. Holder would also demonstrate a laudable intent to keep his own counsel on a matter of supreme national importance.

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