The National Journal's Stuart Taylor has a typically excellent column up this week on the CIA prosecutor, Obama, and Holder. ("Why Holder May Enrage the Left," Opening Argument, National Journal, September 5, 2009.) The column speculates - Stuart's term; he doesn't suggest he is doing otherwise - that hard-boiled political calculations drive Obama and Holder:
I doubt that Holder or Obama has any intention of prosecuting such underlings as the CIA agent who strayed beyond Justice Department legal guidance by threatening terrorist mastermind Khalid Shaikh Mohammed with the murder of his children.
I also see no reason to disbelieve Holder's and Obama's promises not to go after interrogators who acted "in good faith and within the scope of legal guidance," or to suspect them of targeting the high-level Bush administration officials who approved brutal methods such as waterboarding.
Although Holder was reportedly horrified when he read detailed accounts of brutal interrogations, he must understand that horror cannot justify explosive prosecutions -- with little chance of convictions -- of honorably motivated public servants.
That's not to deny the possibility that John Durham, the career Justice Department prosecutor from Connecticut to whom Holder assigned the inquiry, may bring more cases like the one in which a CIA contractor, David Passaro, has already been imprisoned for torturing a detainee to death. But Passaro's actions were so outrageous that his prosecution was relatively uncontroversial.
The column then offers a series of more specific reasons why Holder would take the step of naming a prosecutor, even though the result, in the article's view, is likely to be anticlimactic. I myself am not so sanguine....
I think that, described as Stuart suggests - i.e., purely as a strategic political assessment - it amounts to believing one can throw a few scraps to the Jacobins without igniting the Terror. My own speculation, for whatever it is worth, is that the weird bubble that surrounds the senior elites of the Obama administration permits them to think they can light a controlled fire on the Left and that it won't turn into a forest fire, because, in virtue of being the Obama administration, they have the unique ability to x and ~x all at the same time, call virtuously for heads to roll and then not have them roll.
Moreover, I do not think that Obama's senior advisors believe what the column takes as an assumption, that moving to actual prosecutions would "tear the country apart." I think they think, rather, that the country has indeed gone into post-9-11 mode, and that national security is rapidly dropping off the radar screen, akin to America's in-turning narcissism of post-Vietnam in the 1970s. And that lack of interest will include a lack of deep interest, in an electoral sense, in what a prosecutor might do about some hazy but presumably questionable events of the past. The electorate wouldn't go after the possible wrong-doers, but they won't care if some prosecutor does, and particularly they won't care because the consequence is supposedly to make the electorate less safe. Considerations that national security types like me might care about - the incentives/disincentives for the CIA, etc., etc., and the long series of concerns that Jennifer Rubin raises in her new piece in the Weekly Standard, let alone Dick Cheney's stern warnings - don't raise temperatures with the general public, or won't within another couple of years.
The prosecutor, for his part, whether called a special prosecutor or independent prosecutor, or whatever, will likely feel the usual obligation to justify his existence and expenditures, and we will relive, once again, Walsh and Iran-gate and Starr-Clinton. My guess, for what it's worth, and quite contrary to Stuart's, is that the naming of a prosecutor is actually a move to create an option for the administration to make its real calculation a couple of years from now - whether to quash legal moves (that take on a life of their own, even in an Obama administration) or allow them to go forward to shore up a disappointed left wing and continuing to feed it, even at the end of the first term, carrion from the Bush years. I don't think the administration is making Stuart's 'hard' (in the sense of hardball, not difficult) political calculation - its even more hardball calculation is that it can take this step now and ride it out to see what's politically best for it in a year or two or three.
So I'd suggest that, far from a reluctant step, it's one embraced by the administration as creating an option for keeping the anti-Bush coalition of the Left active and alive, if it turns out to be politically useful, at the end of the first term. What are the chances, come the next presidential election campaign, that speeches will be delivered earnestly telling the Left that a Republican in office would end the necessary and just prosecution of torturers?
Underlying this (let me rather grandiloquently suggest) is not a calculation that the country would be torn apart by prosecuting CIA officers who acted in good faith. It's instead a calculation that the country is truly post-9-11 and that the fundamental reason it elected President Obama was because the electorate understood, however inchoately, that this administration was attuned to feed the narcissism that envelops the country after every strenuous exertion, successful or not, abroad. Time of course will tell. (Stuart, I'm flattered to report, quotes a paper of mine in passing, on the subject of drones, Predator strikes, and international law.)