Posted by Kenneth Anderson:
Stuart Taylor on CIA Prosecutions:
http://volokh.com/archives/archive_2009_08_30-2009_09_05.shtml#1252092883
The National Journal's Stuart Taylor has a typically excellent column
up this week on the CIA prosecutor, Obama, and Holder. ([1]"Why Holder
May Enrage the Left," Opening Argument, National Journal, September 5,
2009.) The column speculates - Stuart's term; he doesn't suggest he is
doing otherwise - that hard-boiled political calculations drive Obama
and Holder:
I doubt that Holder or Obama has any intention of prosecuting such
underlings as the CIA agent who strayed beyond Justice Department
legal guidance by threatening terrorist mastermind Khalid Shaikh
Mohammed with the murder of his children.
I also see no reason to disbelieve Holder's and Obama's promises
not to go after interrogators who acted "in good faith and within
the scope of legal guidance," or to suspect them of targeting the
high-level Bush administration officials who approved brutal
methods such as waterboarding.
Although Holder was reportedly horrified when he read detailed
accounts of brutal interrogations, he must understand that horror
cannot justify explosive prosecutions -- with little chance of
convictions -- of honorably motivated public servants.
That's not to deny the possibility that John Durham, the career
Justice Department prosecutor from Connecticut to whom Holder
assigned the inquiry, may bring more cases like the one in which a
CIA contractor, David Passaro, has already been imprisoned for
torturing a detainee to death. But Passaro's actions were so
outrageous that his prosecution was relatively uncontroversial.
The column then offers a series of more specific reasons why Holder
would take the step of naming a prosecutor, even though the result, in
the article's view, is likely to be anticlimactic. I myself am not so
sanguine....
([2]show)
I think that, described as Stuart suggests - i.e., purely as a
strategic political assessment - it amounts to believing one can throw
a few scraps to the Jacobins without igniting the Terror. My own
speculation, for whatever it is worth, is that the weird bubble that
surrounds the senior elites of the Obama administration permits them
to think they can light a controlled fire on the Left and that it
won't turn into a forest fire, because, in virtue of being the Obama
administration, they have the unique ability to x and ~x all at the
same time, call virtuously for heads to roll and then not have them
roll.
Moreover, I do not think that Obama's senior advisors believe what the
column takes as an assumption, that moving to actual prosecutions
would "tear the country apart." I think they think, rather, that the
country has indeed gone into post-9-11 mode, and that national
security is rapidly dropping off the radar screen, akin to America's
in-turning narcissism of post-Vietnam in the 1970s. And that lack of
interest will include a lack of deep interest, in an electoral sense,
in what a prosecutor might do about some hazy but presumably
questionable events of the past. The electorate wouldn't go after the
possible wrong-doers, but they won't care if some prosecutor does, and
particularly they won't care because the consequence is supposedly to
make the electorate less safe. Considerations that national security
types like me might care about - the incentives/disincentives for the
CIA, etc., etc., and the long series of concerns that Jennifer Rubin
raises in her [3]new piece in the Weekly Standard, let alone Dick
Cheney's stern warnings - don't raise temperatures with the general
public, or won't within another couple of years.
The prosecutor, for his part, whether called a special prosecutor or
independent prosecutor, or whatever, will likely feel the usual
obligation to justify his existence and expenditures, and we will
relive, once again, Walsh and Iran-gate and Starr-Clinton. My guess,
for what it's worth, and quite contrary to Stuart's, is that the
naming of a prosecutor is actually a move to create an option for the
administration to make its real calculation a couple of years from now
- whether to quash legal moves (that take on a life of their own, even
in an Obama administration) or allow them to go forward to shore up a
disappointed left wing and continuing to feed it, even at the end of
the first term, carrion from the Bush years. I don't think the
administration is making Stuart's 'hard' (in the sense of hardball,
not difficult) political calculation - its even more hardball
calculation is that it can take this step now and ride it out to see
what's politically best for it in a year or two or three.
So I'd suggest that, far from a reluctant step, it's one embraced by
the administration as creating an option for keeping the anti-Bush
coalition of the Left active and alive, if it turns out to be
politically useful, at the end of the first term. What are the
chances, come the next presidential election campaign, that speeches
will be delivered earnestly telling the Left that a Republican in
office would end the necessary and just prosecution of torturers?
Underlying this (let me rather grandiloquently suggest) is not a
calculation that the country would be torn apart by prosecuting CIA
officers who acted in good faith. It's instead a calculation that the
country is truly post-9-11 and that the fundamental reason it elected
President Obama was because the electorate understood, however
inchoately, that this administration was attuned to feed the
narcissism that envelops the country after every strenuous exertion,
successful or not, abroad. Time of course will tell. (Stuart, I'm
flattered to report, quotes a [4]paper of mine in passing, on the
subject of drones, Predator strikes, and international law.)
([5]hide)
References
1. http://www.nationaljournal.com/njmagazine/openingargument.php
2. file://localhost/var/www/powerblogs/volokh/posts/1252092883.html
3.
http://www.weeklystandard.com/Content/Public/Articles/000%5C000%5C016%5C881vlnwr.asp
4. http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1415070
5. file://localhost/var/www/powerblogs/volokh/posts/1252092883.html
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