August 10, 2009 - The Los Angeles Times reported on Sunday that Attorney General Holder will soon appoint a special prosecutor to investigate individuals alleged to have participated in the worst excesses of CIA torture, but not the policy makers and senior intelligence officials responsible for torture and detention policies. Holder's strategy appears to have little support, either from torture apologists or opponents. Meanwhile, the architects of Bush-era torture and detention policy are not rushing to defend low-level intelligence officers who could be facing costly legal jeopardy.

When this story first surfaced in mid-July , sources varied as to whether such a special prosecutor would undertake a wide-ranging investigation that could call the architects of torture policy into account, or would focus on a few individuals--bad apples--who violated the Bush administration's torture rules.

According to the LA Times story, Holder is now all but certain to appoint a special prosecutor who will focus the investigation on low-level intelligence officers and contractors who exceeded the Department of Justice and internal CIA policy guidelines on acceptable torture techniques. Presumably, he special prosecutor would not delve into the legality of overall torture and extrajudicial detention policy, or the secret legal rulings and authorizations behind the policy.

The story goes on to report that serving CIA officials are digging in, with a few putting off retirement in order to put themselves in the best position to mount a legal defense.

Bracing for the worst, a small number of CIA officials have put off plans to retire or leave the agency so that they can maintain their access to classified files and be in a better position to defend against a Justice investigation.

"Once you're out, it gets a lot harder," said a retired CIA official who said he had spoken recently with former colleagues. The inquiry would probably also target private contractors who worked for the CIA during the interrogations.

From the prosecution and investigatory perspective, torture prosecutions appear fraught from the beginning. A former Department of Justice official told the Times, "I don't blame them for wanting to look into it . . . But if they appoint a special prosecutor, it would ultimately be unsuccessful, and it would go on forever and cause enormous collateral damage on the way to getting that unsuccessful result."

Some observers, such as Daphne Eviatar, legal correspondent at The Washington Independent, hold out hope that Holder's special prosecutor can and will go beyond low-level intelligence operatives who may have been involved in torture. "It's not clear where such an inquiry would logically end," writes Eviatar. "Investigating CIA functionaries low on the totem pole - which would involve re-opening cases previously dismissed by the Bush administration - would ultimately require looking into the orders they received from their superiors."

Others in the know don't share Eviatar's hope for justice. Tom Malinowski of Human Rights Watch told the Times, "An investigation that focuses only on low-ranking operators would be, I think, worse than doing nothing at all."

Indeed, the prosecution of low-level intelligence officers and contractors for torture has been called "the worst of both worlds" by the Balloon Juice blog. Taking off on this theme, civil liberties blogger Glenn Greenwald termed Holder's 'bad apples' strategy "Abu Ghraib redux," a reference to the infamous Abu Ghraib court martial that singled out extremely junior National Guard troops for atrocities against Iraqi prisoners, while letting the officers and policy makers who enabled their crimes completely off the hook.

Atlantic Online's Andrew Sullivan warned that the Obama administration would lose moral authority with Holder's anticipated move: "The Obama administration, however well-intentioned it may be, risks essentially legitimizing the torture it does not prosecute."

Already, Congress has taken note of the problems in Holder's ‘bad apples' strategy. Jerrold Nadler (D-NV), the chairman of the House Judiciary Committee's Constitution, Civil Rights, and Civil Liberties subcommittee, told Holder last week, "There simply is no legal, moral or principled reason to insulate those who authorized the torture of detainees, either through legal reasoning or other policy directive, from investigation," according to The Public Record.

Tellingly, those torture authorizers have not taken up the cause of lowly intelligence officers who might get caught up in the justice system.

John Yoo, the loudest and most prolific apologist for torture policy, did not rush to comment on the plight of CIA officers and contractors who might face prosecution for carrying out illegal policies that he helped formulate. Former Vice President Dick Cheney, who earlier had been vociferously critical of Obama national security policy and then suddenly became quiet in the past month or so, hasn't used his good offices to defend low-level intelligence officers or even raise money for their legal defenses. George Tenet, David Addington, Alberto Gonzales, Steven Bradbury, and others who presumably were micromanaging torture from Washington also have been conspicuously silent.

Maybe they are lobbying behind the scenes for the Obama administration to look to the future, instead back at the past.

CIA Examiner