A consensus seems to be forming that what Eric Holder, the Attorney General, has in mind, as far as torture investigations are concerned, is to go after lower level CIA operatives and contractor interrogators who exceeded the Yoo-Bybee-et alia guidelines for permissible torture; that is, those who tortured too much, sometimes to the point of killing their victims. I guess this tendency has become ineradicable in our political culture: the instinct to elevate image over substance. So Holder will investigate whether waterboarders used too much water, hypothermia techs lowered the thermostat too low, wall slammers induced concussion and cerebral hemorrhage instead of just knocking someone silly, etc.
This is a replay of the Bad Apple Theory of Prosecution used in the Abu Ghraib detainee abuse matter. You pick out some low level schlub who didn't read the fine print in the Torture Manual put together by esteemed law professor John Yoo or the Honorable Judge Jay Bybee of the United States Federal Court, who wrote what they did at the instigation of Dick Cheney and his Torquemada, Esq., David Addington, and you wreck the functionary's life by embroiling him in a federal prosecution he can't afford and from which he lacks the political cover of the power elite. This is supposed to show the American people and the world that we just won't stand for torture, that we go after those who commit it hammer and tongs, et cetera ad absurdum ad nauseum.
We've seen this movie and there's no need to produce Bad Apples, the Sequel. We all know what really happened. Bush & Cheney wanted to rough Muslim detainees up, as much as they thought they could possibly get away with; then they commissioned lawyers in the Office of Legal Counsel (that "Little Shop of Legal Horrors," as Sen. Sheldon Whitehouse called it) to write memos justifying torture; then they told the White House-compliant, Republican-controlled House and Senate to include retroactive exonerations for torture in the Detainee Treatment Act of 2005 and the Military Commissions Act of 2006, once the Supreme Court pulled a fast one on them and ruled that Arabs were, after all, human beings for purposes of the Geneva Conventions. The key feature of such exonerations, which tellingly included "all U.S. officials," was that reasonable reliance on the advice of counsel in ordering or committing torture was a defense to criminal prosecution under the War Crimes Act.
Thus, the circle was complete. Write me a memo, John, that tells me I can waterboard Khalid Sheikh, because I want to; if anyone ever bothers me about it, then I'll point to the memo I told you to write so I could "rely" on it.
This is not, of course, absolutely morally satisfying for anyone whose corpus callosum has not been completely cleaved in twain. It's kinda sickening, actually. Here's what I wish President Barack Obama would simply say in answer to a question at a press conference:
Helen Thomas: Are we going to prosecute anyone for torture?
Pres. Obama: No, we're not.
Thomas: Aren't we required to by the Convention Against Torture, the Treaty we signed?
Obama: Yes, we are, but we're going to breach the Treaty.
Thomas: Why are we going to breach the Treaty?
Obama: Because that's the way we do things in this town now.
This approach has the huge advantage of complete honesty, which the Bad Apple Theory lacks. The Bad Apple Theory creates a confused picture; it makes people think we're coming down hard on torture, which we're not doing at all. We're pretending to give a shit when we don't. We're going to lock some CIA field agent up for getting carried way, by being more illegal than the illegal instructions he was given told him he could be. There's no point in that; if anything, it tends to give the official parameters of permissible torture the patina of legitimacy, which they don't deserve. "See? If the field hand had just stuck to the illegal rules, instead of showing off and killing Abu, he wouldn't have these problems."
If Holder doesn't want to to go the origin of the problem, to the top level decision makers (Deciders) who ushered in the Dark Side in the first place, then just forget the whole thing and accept the inevitable consequences. Let the Bad Apples rot and spoil the whole barrel. Torture without consequences: isn't that what we're really saying anyway?
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