Tuesday, August 25, 2009

Another President Odubya Moment

Naturally, when looking for analysis of yesterday's Department of Justice bombshells, we check in on the Double G to see what he has to say about it all.

In theory, Holder's announcement does not foreclose the possibility that DOJ lawyers who authored the torture memos and/or those in the White House who authorized torture will, at some point, be investigated. Strictly speaking, Holder's announced "review" concerns only those in the intelligence community who conducted interrogations. And by extending immunity only to those who both (a) acted "within the scope of the [OLC] legal guidelines" and (b) "acted in good faith," it's theoretically possible that there is some class of persons who could fall outside the scope of immunity even though they technically complied with the OLC memos: i.e. high-level White House officials and/or DOJ lawyers who had reason to believe that the conduct authorized by the memos was illegal, meaning those who wrote or requested those memos with the deliberate intent to obtain cover for what they knew was criminal behavior. In other words, there are those who complied with the memos, but in bad faith, and are thus are outside the bounds of immunity Holder today defined and ineligible for this immunity. But that's just theory.

As a practical matter, Holder is consciously establishing as the legal baseline -- he's vesting with sterling legal authority -- those warped, torture-justifying DOJ memos. Worse, his pledge of immunity today for those who complied with those memos went beyond mere interrogators and includes everyone, policymakers and lawyers alike: "the Department of Justice will not prosecute anyone who acted in good faith and within the scope of the legal guidance given by the Office of Legal Counsel regarding the interrogation of detainees." Thus, as long as, say, a White House official shows that (a) the only torture methods they ordered were approved by the OLC and (b) they did not know those methods were criminal, then they would be entitled to full-scale immunity under the standard Holder announced today.

In other words, Greenwald expects the entire exercise to be nothing more than a dog and pony show where only those who went beyond the scope of the John Yoo memos will be prosecuted, the vast majority of the CIA is safe from any efforts to seek justice.

This also means those in the Bush DoJ and the Bush White House get away scot-free.

In other words, what's the point? Conservatives will object to any investigation whatsoever, and nobody on the Left is going to put up with such an obvious sham. But in the end, Obama and Holder get to sweep all this under the rug and declare Mission Accomplished.

Nice. Yet another President Odubya moment.

1 comment:

Paul W. said...

I understand that Obama's public mantra of not looking back affects the potential actions of the DOJ, but predicting how far this is going to go right now is not likely to be based on much other than one's preformed opinions. There is nothing in the statements released yesterday that would stop Holder from continuing from the violations themselves to the policy makers themselves should he choose to do so. And last I checked the DOJ is an independent office that get's to do what it wants regardless of Obama's own timidness on the subject.

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