Is Impending Holder Torture Probe a Bad Idea?

Created: August 10, 2009 10:28 | Last updated: July 31, 2020 00:00

Andrew Sullivan calls the reported impending torture probe by Attorney General Eric Holder “the worst of both worlds,” arguing that investigating only those who exceeded the overly-broad bounds set by the Bush administration “risks essentially legitimizing the torture it does not prosecute.”

On one hand, Sullivan’s right that prosecuting only the individual interrogators who went beyond the torture that was actually authorized by the Bush administration — such as waterboarding, which Holder himself has admitted is torture — might suggest that what the Bush lawyers approved was legal, despite the egregiously flawed legal reasoning that backed it up.

On the other, at this point, it’s important that the attorney general start somewhere, particularly since Congress so far doesn’t seem to have the stomach to follow through with its earlier ideas of investigatory commissions that would reveal exactly how the torture policies were developed and why.

A criminal investigation of even low-level CIA interrogators who exceeded the guidelines they were given should, if done thoroughly and honestly, inevitably lead to questions about how those guidelines were communicated down the chain of command, and whether higher-ups approved the more extreme conduct. And that may be the best hope for raising the ultimate questions of how the rules were developed and whether their authors knew they were stretching the limits of the law even as they crafted them.