Could There Be a Policy Rationale for Prosecuting Underlings But Not Policymakers?

The criticism of the decision by AG Holder to open an investigation into possible criminal wrongdoing by CIA agents (and contractors) who went beyond the advice of the Justice Dep't in their use of allegedly illegal methods of interrogation has thus far come in two main forms: 1) There has already been a thorough investigation that led to discipline, and so this further investigation is akin to double jeopardy; 2) Distracting the CIA from its mission by "looking back" rather than forward will undermine national security and is, in any event, inconsistent with the Obama Administration's stated desire to turn the page on these matters. This second point is typically accompanied by the claim that Holder cannot be acting truly on his own.

Here I'll raise another point that has gotten some play, but not nearly as much as it probably deserves: The possibly illegal acts--mock executions, threatening detainees families, running a power drill next to a detainee's head, blowing smoke in the face of a detainee--are not clearly worse infringements on human dignity than the acts that were authorized by Justice, including waterboarding, "walling" (i.e., slamming a detainee against the wall), and stress positions. In fact, some of the acts that have newly come to light are pretty clearly not as bad as the ones that were authorized.

That comparison could be used to let the power driller or the smoke blower off the hook. He might have reasoned: "I'd like to threaten to kill this terrorism suspect. Can I do it? I don't know, but it says here I can waterboard him, and merely threatening to kill is not as bad as waterboarding, so it's probably okay." At least it would be probably be open to a jury to consider this sort of argument in a trial.

But for now I'm not primarily interested in the effect of the authorization of worse treatment on the prosecution of the people who engaged in the not-as-bad activities. I'm interested instead in the route by which the Administration came to decide that policy-makers and high-ranking attorneys who decided to authorize waterboarding, walling, and the like should be left alone, while front-line officers who exceeded their authorization in scope but not severity should be subject to possible prosecution. That decision, after all, was made by the President, rather than AG Holder, when the former announced that he would not pursue line officers who conducted their interrogations within the letter of the Justice Dep't authorization.

There is, of course, a political explanation for investigating unknown CIA officers and contractors while leaving the high-ranking Bush Administration architects and legal authorizers of the interrogation policy unmolested. An investigation of former VP Cheney, former Defense Sec'y Rumsfeld, Judge Bybee, et al would be widely perceived as "looking back," and could derail the President's domestic agenda. Or, even more cynically, just as only the likes of Lynndie England and Charles Graner were made to pay for Abu Ghraib, so we might be tempted to view the Obama/Holder policy as continuous with a Bush policy of scapegoating. I'm inclined to the former, political explanation, but the latter could have an element of truth as well.

Might there nonetheless be a principled policy (as opposed to nakedly political) basis for possibly prosecuting the smoke-blower but not the guys that ordered waterboarding? Maybe. One could take the view, I suppose, that all of the nation's legal obligations are merely presumptive obligations, defeasible by a sufficiently compelling justification. If so, one would only want the decision to violate a legal obligation to be made at the very highest level, by policy makers who have access to a wide range of information and at least a bit of time to think through the consequences of their decisions. Front-line officers would then be permitted to carry out the instructions of such policy makers--even if those instructions appear to authorize illegal activity (such as waterboarding)--but would otherwise be held to obey the letter of the law.

The chief difficulty with this Nixonian view (if the President does it, it's not illegal) is that it would entail that Cheney, Rumsfeld, Addington, Bybee, Yoo, Bradbury, et al were actually acting within their authority when they concluded that waterboarding etc was permissible. The Obama Administration has not said that, and I doubt it will. However, absent such an account (or a substitute one) we are left with ONLY the political explanation for the disparity. That likely explains why the Holder decision has not been especially well-received. The right thinks it's unfair to the CIA agents and contractors, as well as possibly contrary to national security interests; the left thinks it's a peculiar decision to go after the small fish while the big fish are at large, and indeed heckling on Fox News.

Posted by Mike Dorf