In 2002, a U.S. Department of Justice memo said CIA interrogators could use waterboarding to obtain information from suspected terrorists, and that they could employ it more than once on a given detainee. But the memo also advised that “repetition will not be substantial” because such methods “generally lose their effectiveness after several repetitions.”
Someone didn’t get, or read, the memo: When the agency questioned Khalid Sheikh Mohammed, reputedly the master planner of the Sept. 11, 2001, attacks, he was waterboarded 183 times in one month.
Did his questioners break the law? Maybe so — and maybe not. If they did, does the blame lie with them or with their superiors? Another question with no clear answers. Figuring out if laws were broken, if someone should be prosecuted for the violations, and, if so, whom, is the job of federal prosecutors and their boss, Atty. Gen. Eric Holder.
But Holder reportedly is ready to turn these decisions over to a special prosecutor. That would be a serious mistake.
The conduct of the war on terrorism over the last eight years does deserve close legal scrutiny. Given the urgency of the threat and the zeal of executive branch officials and their subordinates to prevent more attacks, it’s entirely possible that they knowingly flouted the law. Such violations, if serious, may warrant indictments. Holder wisely prefers to focus on agents who went beyond what the Bush administration authorized, rather than hold lower-level people responsible for the overall policy on the use of harsh techniques.
But a special prosecutor is almost always a bad idea. Unlike normal prosecutors, who have many cases to consider and limited resources, a special prosecutor has strong incentives to indict someone no matter how much time or money it would take.
In this instance, that choice would probably be not only expensive and protracted, but futile. Most of the possible cases involve events that happened several years ago — and they have already been rejected by career prosecutors who regard them as hopeless. One former high-ranking Justice Department official told the Los Angeles Times that “if they appoint a special prosecutor, it would ultimately be unsuccessful, and it would go on forever and cause enormous collateral damage on the way to getting that unsuccessful result.”
A better answer is for the House and Senate intelligence committees to carry out their own investigations, to establish what happened in the interrogation program and who was responsible. If they find evidence of criminal conduct, they can turn it over to the Justice Department, whose career prosecutors are perfectly capable of deciding whether to convene a grand jury.
In our system of government, we have people and bodies equipped to handle difficult, controversial matters. Holder should step back and let them do their jobs.
