Dahlia Lithwick skewers the tortured logic, so to speak, in U.S. Attorney General Eric Holder’s decision to investigate only those low-level CIA operatives who exceeded the limits of the Office of the Legal Counsel torture memos, not the memos’ authors:
That isn’t just wrong, it’s outrageous. It ratifies the most toxic aspect of the whole legal war on terror: that anything becomes permissible if it’s served up with a side of memo. Paper your misconduct with footnotes and justifications—even after the fact—and you can do as you please. Prosecution of those who strayed beyond the new rules, without considering the culpability of those who strayed in creating the new rules, would mean that in America, a law degree amounts to a defense. Rep Jerry Nadler, D-N.Y., put it this way earlier this month when he warned that it makes no sense to prosecute the guy who used 8 ounces of water to water-board but not the lawyer who said it was OK to water-board someone with 3 ounces of water.
The New York Times editorial board agrees. So do I. If a new president determined that his predecessor’s Office of the Legal Counsel had been busy writing flimsy faux-legal justifications for a state-run money-laundering scheme, a drug ring or a loan-sharking operation, he would be duty-bound to investigate, not only anyone who exceeded the legalistic cover story, but those who constructed it. The same is true if the crime in question is widespread and systematic torture. Holder has lifted the cover on this squalid business, and Obama’s reluctance to see him go even this far does the President no honour. But the mandate Holder has given his investigator doesn’t go nearly far enough.