THE BLOG
09/09/2009 05:12 am ET | Updated May 25, 2011

Eric Holder and PR 101

It looks like Attorney General Eric Holder is on the verge of appointing a criminal prosecutor to investigate waterboarding, and other illegal acts that were part of the interrogation policies put in place under the Bush administration. We've heard this for awhile now, but Holder appears to have decided on a criminal probe According to today's Los Angeles Times, members of the attorney-general's staff have even shortlisted possible prosecutors.

The heaviest focus of the probe appears to be on the interrogators, and others, who have carried out orders, and who may have crossed the line. Justice appears to be principally concerned with detainee deaths, and the "waterboarding of prisoners in excess of Justice Department guidelines."

But, the very notion that Justice would establish new guidelines which would legitimize practices traditionally abjured by most industrialized countries, including our own, is enough to make one's blood boil as is the evidence that guidelines for what is permissible, as set forth in the infamous Bybee memo of August, 2002, tweaked long standing constitutional, and international, prohibitions against cruel and unusual punishment. Where did we go wrong when any waterboarding at all would fall within the parameters of "Justice Department guidelines?"

While the President has made his own feelings about criminalizing the program by which the government acquires information from alleged terrorists known, he has left just enough wiggle room to go after the fall guys like, for instance, the interrogators, CIA officials, and private contractors who carried out then Vice President Dick Cheney's iron fisted commands for performance-based interrogation. But, thanks to the Military Commissions Act of 2006, which easily passed Congress, the architects of the war on terror are immunized from prosecution for their misdeeds.

And, one thing remains perfectly clear. If Mr. Holder goes through with a criminal probe, and indictments that extend only as far as the guys (and gals) who acted under command so that the President can save face, protect his predecessor, and secure support from his base, not only will we be the laughing stock of the civilized world but, more importantly, we may be opening the door to international outrage, and extradition by Spain, Belgium, and the United Kingdom where there is no immunity for war criminals.

Yes, one can't very well prosecute those who gave commands to torture as long as they have been granted a shield of immunity from war crime charges by the Military Commissions Act of 2006.

Congress passed, and then President George W. Bush signed, the Military Commissions Act casting aside habeas corpus, constitutional protections against unlawful and indefinite detention, allowing the unitary executive to exercise complete control over who to designate enemy combatant, as well as what the definition of torture is.

There can be no serious inquiry into egregious, arguably criminal, misconduct unless there are consequences, and there can be no consequences unless, and until, the Military Commission Act is overturned.

The anti-torture statute states that an interrogator must "specifically intended to inflict severe physical or mental pain or suffering" in order to be accused of torture. While it may generally be difficult to prove that it is someone's intention to hurt someone else, a recently declassified CIA report reveals two detainees, in U.S. custody, Abu Zubaydah and Khalid Shaikh Mohammed, were each waterboarded, in the space of one month, at least 83 times; no one can argue holding someone's head under water to simulate drowning 83 times is anything less than the intentional infliction of severe physical, and mental, suffering.

But, what were the intentions of those who strove for legislation that nullifies the War Crimes Act of 1994, thereby giving themselves immunity from being prosecuted for any potentially criminal military misadventure. Clearly, this was what the Military Commission Act was intended to do.

To add insult to injury, there is now liability insurance for interrogators, and high ranking CIA officials. This is part of the terror infrastructure Dick Cheney's administration left in place. It is up to the Obama administration to ensure that future presidencies don't get to redefine torture such that it becomes "enhanced" interrogation..

We agree with Human Rights Watch advocacy director, Tom Malinowski, when he says that "an investigation that focuses only on low-ranking operators would be worse than doing nothing at all."

Worse still, it sends a message to future generations, future presidents, and to the world that Justice can get away with mocking justice by immunizing those whose liability is greatest.

The only way to ensure accountability for practices that are widely acknowledged to be tantamount to torture, acts that even the President himself calls torture, is to restore liability, and clear the path for unfettered prosecution of those who orchestrated, and engineered, these heinous acts.

Unless, and until, the Military Commissions Act is revoked, President Obama, and Congress, any action undertaken by the attorney-general amounts to little more than rearranging the furniture on the Titanic, and a thinly veiled effort at public relations.

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