Truth and Consequences: Eric Holder's Torture Probe Paints Obama Into a Corner

Presidents since the dawn of the TV age have pretended to be masters of all they survey, with the White House portrayed as the white-hot center of American government. Barack Obama, like all his predecessors dating back to John Kennedy, reflects this hyperactive conception of the presidency. Tuesday morning, less than 48 hours into his Martha's Vineyard vacation, Obama felt compelled to make news by stepping before the cameras to re-nominate Ben Bernanke for a second term as chairman of the Federal Reserve, even though the long-planned announcement easily could have waited until the president returned to Washington.

But presidents, in truth, never fully control the inner workings of their own administrations, even though they are politically and historically responsible for all that occurs on their watch. Does anyone believe that George W. Bush ever thought that he would be judged based on the competence of the man he appointed to head the Federal Emergency Management Agency? But the "Brownie, you're doing a heck of a job" praise for FEMA Director Michael Brown in the midst of Hurricane Katrina is forever entwined with the Bush legacy.

Attorney General Eric Holder asserted his own independence Monday by appointing a special prosecutor to determine whether to launch a full criminal investigation into the Bush-era abuse of prisoners by CIA operatives and contractors. Holder, who himself called his decision "controversial," partly based his actions on a chilling 2004 report by the inspector general of the CIA that recounted a mock execution and threats to detainees with hand drills, along with the now well-known accounts of waterboarding. The Justice Department on Monday released a heavily blacked-out copy of the 2004 report.

While Holder's decision may have been legally inevitable, it probably did not prompt top White House aides to break out the champagne in celebration of the workings of justice. White House press secretary Robert Gibbs issued a torturously worded statement claiming that Holder agreed with Obama that CIA agents "who acted in good faith and within the scope of legal guidance should not be prosecuted." But it is logically difficult to avoid the conclusion that Holder's actions are diametrically opposed to the White House's oft-repeated mantra (used by both Gibbs and deputy press secretary Bill Burton on Monday) that the president "wants to look forward not back."

As everyone who can remember Kenneth Starr and Patrick Fitzgerald knows, special prosecutors take on a life of their own, immune to political pressures from the attorney general or the White House. Holder's choice of veteran Connecticut prosecutor John Durham was praised as someone who is careful to only bring provable cases to court. But with a nearly unlimited budget and no apparent time pressures, it is a safe bet that Durham will end up prosecuting some CIA agents for something. Fitzgerald's investigation into the outing of CIA operative Valerie Plame, for example, began as a leak-of-government-secrets case and ended with the perjury conviction of Scooter Libby.

The long-term political problem for Obama is obvious -- Durham's ongoing investigation will mean that the torture issue is apt to leap into the headlines when the president least expects it. Imagine the first CIA indictments on the eve of the 2010 congressional elections or during an already difficult month in the polls for Obama. There are few hot-button issues in American politics where opinions are more intense and more divided. An April 2009 national poll by the Pew Research Center for the People and the Press found that 49 percent of the electorate believes that torture is often or sometimes justified, while 47 percent contend that it should be seldom or never permitted. A protracted Justice Department investigation of the CIA also carries the risk of Obama being portrayed as a president who jeopardized internal morale at the spy agency.

These bitter divisions were reflected in the immediate responses to Holder's decision. Dick Cheney claimed in a searing statement that the appointment of a special prosecutor "serves as a reminder, if any were needed, of why so many Americans have doubts about this administration's ability to be responsible for our nation's security." Many human-rights activists expressed disappointment that Durham's initial mandate as special prosecutor was too narrow, focusing on the low-level interrogators rather than the Bush Justice Department officials who wrote memos legally justifying torture and the Cheney acolytes who pressed for brass-knuckle tactics.

This go-after-the-higher-ups view is buttressed by a little-noticed passage in the just-released 2004 CIA report. It recounts a July 29, 2003, CIA briefing for the principals of the Bush national security team (presumably including the president, vice president and Cabinet officials) in which they explicitly were told about the use of waterboarding and other euphemistically named "EITs," an acronym standing for Enhanced Interrogation Techniques. As the 2004 report states, "The [CIA] General Counsel said he believes everyone in attendance was aware of what the CIA was doing with respect to detention and interrogation, and approved of the effort."

Aside from Cheney and the 15 percent of the American public (in the Pew survey) who believe that torture should "often" be used, there is a broad consensus that the Bush administration and the CIA used morally repugnant and legally murky tactics in the questioning of al-Qaeda suspects. There are also major doubts (Cheney to the contrary) that these draconian interrogation tactics yielded better and more reliable information than traditional methods of protracted questioning.

The dilemma facing not only Obama and Holder but also America as a democracy is how to handle these shameful episodes from the recent past. The answer is not to join in the right-wing Waterboarding Caucus or to sign up with the Madame Defarges of the left who dream of seeing Cheney in shackles. Nor is it wallowing in the past or pursuing an anti-Bush vendetta to explore ways to deter future CIA operatives and Blackwater contractors from violating the Geneva Conventions and American laws governing torture.

For those looking for absolute certainty about these questions, try the food fights on cable television. What is worrisome is that the prosecution of minor-league CIA interrogators may inadvertently create political martyrs on the Oliver North model without answering the fundamental questions about who sanctioned torture. But to continue the Bush-era policy of permissive amnesia is a wink-and-a-nod message to the CIA that there are no lasting legal penalties for throwing the rulebook out the window.

Senate Judiciary Committee Chairman Pat Leahy has been long advocating a blue-ribbon commission of inquiry (analogous to the 9/11 Commission) that would investigate with subpoena power the treatment of detainees during the Bush years. The goal would not be prosecution but a moral reckoning about what was done by the government and its contractors during the most panicked months of the war on terror. The only way America can come to grips with the past is to squarely face it. And the biggest question hovering over Eric Holder's appointment of a special prosecutor is whether the long-term result will be a rendezvous with the truth or merely a handful of unsatisfying prosecutions.