David Broder, who has long argued against accountability for torture, makes his case against Eric Holder's very limited probe into CIA interrogations:
Cheney is not wrong when he asserts that it is a dangerous precedent when a change in power in Washington leads a successor government not just to change the policies of its predecessors but to invoke the criminal justice system against them.
Looming beyond the publicized cases of these relatively low-level operatives is the fundamental accountability question: What about those who approved of their actions? If accountability is the standard, then it should apply to the policymakers and not just to the underlings. Ultimately, do we want to see Cheney, who backed these actions and still does, standing in the dock?
There is, naturally, no concern for the rule of law here, a complete indifference to those who died in CIA custody, or the fact that the IG report itself states that torture was used on people "without justification."
I've already said I don't think those interrogators who stayed within the OLC's guidelines should be prosecuted -- I hold the policymakers ultimately responsible for the implementation of torture as policy. But for Broder, it doesn't matter that what the Bush administration did was illegal -- the powerful deserve immunity, because in holding them accountable, the "cost to the country would simply be too great." What, I wonder, will be the cost for becoming a society in which torture, torture, is not a crime but simply a policy preference?
Broder isn't so much saying that the powerful deserve to ignore the law so much as he is saying that the statute of limitations is up once they leave office. He cops without reservation or qualification to the idea that Cheney did something illegal -- he just doesn't think it should matter. This idea is completely antithetical to Thomas Paine's ideal that "in free countries the law ought to be king." If this is to be the new standard, if the executive branch is to be king, then we should enshrine it in the law -- because right now our laws say otherwise.
Make no mistake though, by not making a distinction between those CIA interrogators who, in Eric Holder's words, acted "in good faith and within the scope of legal guidance," and those who didn't, Broder is endorsing Cheney's view that when the intelligence service does it, it is not illegal, even if it means the death of individuals in American custody.
I wonder what we call a country where both the intelligence service and former executive branch employees are "king" rather than the law. Maybe David Broder can come up with the term.
-- A. Serwer