Bruce Fein, a former associate deputy attorney general under President Reagan, made a couple of important points tonight on Hardball regarding the investigation authorized by Attorney General Eric Holder into the CIA interrogations of terrorist suspects. First, Fein said his "objection is that [the investigation] is much too narrow... I think it's unfair to saddle only the foot soldiers, so to speak, with the investigative liability and not going to the higher-ups, including Mr. Cheney himself."
Second, he reiterated that the point of the investigation is legal, not political. The U.S. needs to determine whether any of its CIA agents broke the law during these interrogation sessions, and if the answer is yes, then the law must be applied. However, the president retains his authority to issue a pardon. It may be determined that a CIA interrogator broke the law by engaging in actions classified as torture under U.S. law. But if those actions were carried out under extenuating circumstances then the president could pardon that officer. Such extenuating circumstances could be the fabled "ticking time-bomb scenario," and it's difficult to imagine that, if the CIA officer actually averted such an imminent threat through his actions, the officer wouldn't receive a pardon.
Well, there may be no new facts but that's what you could say about a lot of things in the South during the civil rights movement... I'm not trying to suggest they're identical, but this is not unheard of. You have a new assessment of what the situation is; the climate is different, and if they're showing violations of law there's always the pardon power if there is extenuating circumstances. My objection is really [the investigation] is much too narrow. It's a little bit like looking at the burglars of Daniel Ellsberg's psychiatrist without looking into who authorized it, and we did both. Or the case of Felton Miller who got pardons for doing break-ins against the Weathermen Underground when there's national security here. I think it's unfair to saddle only the foot soldiers, so to speak, with this investigative liability and not going to the higher-ups including Mr. Cheney himself. If there are extenuating circumstances, that's what the pardon is for.