The Wingularity

Maybe I’m ungrateful, but this trial balloon spelling out Eric Holder’s maybe plans to prosecute torture strikes me as something close to the worst of both worlds. On the one hand Holder looks likely to appoint a federal prosecutor to find out why so many of our prisoners died of organ failure, blunt trauma or drowned in their own blood.

Attorney General Eric H. Holder Jr. is leaning toward appointing a criminal prosecutor to investigate whether CIA personnel tortured terrorism suspects after Sept. 11, 2001, setting the stage for a conflict with administration officials who would prefer the issues remain in the past, according to three sources familiar with his thinking.

We can probably agree that as far as Republicans are concerned it doesn’t matter how Holder finesses this. Any decision that brings accountability to the torture regime will explode the wingularity into a Congress-paralyzing Big Bang of hysteria, obstruction and exotic particles that the universe has not seen since Joe McCarthy held the floor. The decision is so nuclear that details will almost certainly get lost in the noise.

Given the inevitability of epic mayhem from the GOP, I fail to see what Holder gains by enacting his probe in the least useful manner imaginable.

[S]ources said an inquiry would apply only to activities by interrogators, working in bad faith, that fell outside the “four corners” of the legal memos.

Hard to believe as it may seem, Holder’s probe will take John Yoo’s work, the famous memos that would make your ass dumber if you wiped with them, and treat them as the settled law of the time. Already clear and public evidence that DOJ lawyers drafted those memos entirely in bad faith, on orders from Bush officials who literally dictated what they wanted the memos to say, will be similarly ignored.

The actions of higher-level Bush policymakers are not under consideration for possible investigation.

To put it bluntly, this strategy is a goddamn disgrace. We called it whitewashing when the Bush administration made a few grunts pay for the orders they followed at Abu Ghraib. We called it a disgrace because that’s what it was. What do you think we should call it now? I don’t feel much sympathy for the sadistic creeps who will pay for their superiors’ sins this time any more than than I feel for Chuck Graner and Lynndie Englund. Interrogators who took it on themselves to surpass even the sick boundaries of Yoo’s torture memos deserve to answer in court. Nonetheless, to stop there and call it justice makes me physically ill.

Holder’s likely decision makes no more sense from a purely utilitarian perspective. The kind of investigations that are worth a major prosecutor’s time start at the grunt level so they can build a case against bigger fish. Handling it like this looks almost exactly the same as asking a mafia prosecutor to focus exclusively on the goons who got a little too enthusiastic when they beat up card players behind on their debts. Ordinary citizens would have a hard time seeing that as a terribly serious effort to bring down organized crime.

I will close with props to the eerily psychic feature writers at The Onion. Read this from May 2009.

WASHINGTON—In its first major hearing on the use of abusive interrogation tactics at Guantánamo Bay, a blue-ribbon panel found detainee Omar Khadr mentally unfit to testify about his years of psychological torture. “Because of Mr. Khadr’s fragile state due to unknown hours spent under the most brutal, mentally straining conditions, he cannot be trusted to speak competently on his own behalf,” said Rep. Kit Bond (R-MO), the panel’s chairman. “It is unfortunate that someone with such intimate knowledge of the horrors of waterboarding, stress positions, and induced hypothermia is so emotionally unstable. He bursts into tears at even the mention of mock torture.” Bond added that Khadr’s confession of planning 9/11, the London train bombings, and the Iranian hostage crisis would be kept on the record.

Ha ha. The Washington Post, today.

Other challenges an inquiry into alleged torture might face could include the difficulty of gathering evidence of improper conduct in war zones and questions about the reliability of witnesses who may have been held by the U.S. government for years, legal analysts said yesterday.

It almost makes you want to step back and admire the Bush crowd. For a team who couldn’t policy their way out of a paper bag made of warm air, they had a remarkable knack for putting well-intentioned officials in an impossible bind.

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