If not Yoo, then who?

Progressives have long called for a criminal investigation of the Bush-era torture regime...but despite all the fear and loathing from the right over today's naming of a special prosecutor by Attorney General Eric Holder, this may not be the investigation that I and many others had been seeking. Spencer Ackerman had a good analysis of this dilemma a few days ago:

Drumheller, a retired chief of CIA operations in Europe — who was never an interrogator — said restricting an inquiry to CIA interrogators is unfair. "What happened is a reflection of policy" at the time, Drumheller said. "None of this stuff was done in a vacuum."

It may be no surprise that a former senior CIA official doesn't think CIA interrogators ought to fall on their swords for a torture policy concocted at the highest levels of the previous administration. Perhaps less intuitive is that Drumheller is aggressively seconded by the civil libertarian community. Civil libertarians are preparing the delicate message that Holder's anticipated inquiry ought to go much further at a time when prominent Republican senators argue that any inquiry at all is going dangerously too far.

"Worse than doing nothing at all" was how Tom Malinowski, the Washington advocacy director of Human Rights Watch, described Holder's possible decision to stop an inquiry at low-level interrogators in a recent Los Angeles Times interview. The pungent quote struck some in the human-rights community as too real — an authentic expression of how the community feels that but one that nevertheless left Holder, a necessary ally for any thorough torture investigation, exposed.

When today's official announcement came from Holder, it was still vague -- and probablty deliberately so -- on where this is all heading. But there's still a suggestion that the main focus is indeed on the actions of the actual interrogators either from the CIA or private contractors, and I don't think that's right. I want to be clear: I don't think interrogators should be completely above the law, either. In other words, if an agent went way off the reservation in his actions, there could be just cause for prosecution.

But for the most part, the interrogators were following the path set out for them by their leaders, a path that was horribly wrong from Day One. The real conspiracy here (as I've written in the past) is top officials including Vice President Dick Cheney and his high-level cohorts seeking out a plaint lawyer -- yes, Yoo...Inquirer op-ed columnist John Yoo -- to write what Justice Department internal investigators now believe were unethical memos to justify torture and other law breaking.

That means Yoo should be in the legal line of fire, and so should his bosses, the real people who should be brought to account. The CIA and private interrogators should be in the witness stand, not in the docket. Even more so than Watergate, the next couple of years will determine whether some Americans are truly above the law.

I do have a good feeling about the man who's been picked for the special prosecutor job, John Durham. Here's what Durham said a few years ago said when prosecuting government misconduct in its investigations of organized crime in Boston:

"Nobody in this country is above the law, an FBI agent or otherwise, and ultimately the ends do not justify the means."