For these reasons, even staunch advocates of legal accountability for the Bush administration’s interrogation policy don’t believe that a straight war-crimes approach has a high chance of success. Thanks to politicians from Richard Nixon to Bill Clinton, it’s now a Washington truism that officials are more likely to be caught by the cover-up than the crime, and Scott Horton, a contributing editor at Harper’s, suggests that there are plenty of places where special prosecutors might look for false statements to Congress or other investigative bodies that could lead to felony indictments. “People screaming for war-crimes prosecutions will be disappointed, but obstruction-of-justice prosecutions are probably a reasonable outcome,” says Horton.
Indeed, the Bush administration had itself already begun an investigation along these lines. Last year, Bush’s attorney general, Michael Mukasey, appointed John Durham, a veteran federal prosecutor, to investigate the destruction of 92 CIA interrogation videos in 2005. Durham hasn’t yet completed his investigation, and the ACLU has called on Holder to expand Durham’s mandate to investigate the legality of the CIA interrogations themselves. “In a practical sense, it would be the easiest thing to do,” says Christopher Anders, senior legislative counsel of the ACLU, “since any good prosecutor would think that whoever ordered the interrogations may have had an interest in destroying the videotapes as well.”
But the legal niceties may end up being someone else’s problem. The central question for Holder is likely to be whether to appoint a special prosecutor. But there are many reasons he may be reluctant to do so. For one thing, in an issue such as this, involving national security, the possibilities for clashes between the Justice Department and a special prosecutor are endlessly multiplied. Just this week, for instance, the federal appeals court in California rejected the Obama administration’s attempt to halt a lawsuit involving extraordinary rendition on the grounds that it threatened national security and “state secrets.”
And Holder has another reason to fear the special-prosecutor process. In 1998, as deputy attorney general for President Clinton, Holder and then–Attorney General Janet Reno agreed to independent counsel Ken Starr’s request to expand his jurisdiction from investigating Whitewater to investigating the president’s trysts with Monica Lewinsky. The decision ultimately precipitated Clinton’s impeachment. Nevertheless, external events may force Holder’s hand. For example, a European court might indict the Bush torture lawyers and officials for war crimes under principles of “universal jurisdiction.” Although the Obama administration pressured the Spanish attorney general to resist these indictments, a court in Spain or elsewhere might well bring them anyway. “I got a detailed description of the face-to-face briefing between U.S. diplomats and Spanish prosecutors, who said, ‘This case will terminate if the U.S. Department of Justice opens an investigation on their own,’ ” says Horton.
There will also be pressure from within the Justice Department itself. The Office of Professional Responsibility will at some point release a report on whether the Bush lawyers acted unethically in justifying torture. If the report is as damning as some insiders expect, local bar associations might open investigations about whether to deprive Yoo, Bybee, or Bradbury of their licenses to practice law. Although a judge does not have to be a member of the bar, if a disciplinary authority went so far as to disbar Bybee, for example, Congress might consider impeachment proceedings. In the past, judicial impeachments have been limited to cases involving perjury or corruption, but it’s possible that Congress could conclude that a lawyer could corrupt himself by giving reckless and unreasonable legal advice. If Bybee were actually impeached by the House of Representatives, let alone convicted by the Senate, the pressure on Holder will rise.
As Holder decides whether to appoint a special prosecutor, he’ll have to weigh the difficulty of securing convictions and Obama’s stated desire to “look forward as opposed to looking backward” against the clamor for public accountability. But at some point, the forces calling for a special prosecutor may become too strong to resist. And if that happens, as Holder well knows, all bets are off.