Attorney General Eric Holder’s decision to put a federal prosecutor on the CIA interrogation case is a game-changing move that could upend President Barack Obama’s broader agenda.
Holder on Monday asked Assistant U.S. Attorney John Durham, who has been investigating the destruction of CIA interrogation tapes, to look into whether the agency’s methods for questioning detainees were illegal.
Approved by Obama, the new scope of the investigation threatens to enflame still-raw tensions on both sides of a long-unresolved national security debate.
“This could create a political problem for the president, who rightly understands that looking back will be politically explosive and has the potential to undermine progress on his top priorities,” said Clark Ervin, a national security expert at the Aspen Institute and a former Bush administration official.
Holder’s expanded probe appears destined to reawaken deep partisan divisions over the conduct of the war, and could alienate conservatives strenuously opposed to criminalizing interrogation methods.
The investigation could play havoc with Obama’s efforts on health care reform by creating a political maelstrom in Congress. It also creates a tricky calculus for the president’s war strategies — some of which, such as rendition, are continuations of former President George W. Bush’s policies.
“It has the potential to make it tougher to get funding for the war,” Ervin said. “There is evidence of cold feet on that already.”
White House press secretary Robert Gibbs said Obama still believes CIA inquisitors who acted “in good faith and within the scope of legal guidance” should not be prosecuted.
“Ultimately, determinations about whether someone broke the law are made independently by the attorney general,” Gibbs said.
Obama several times has held firm against calls from within the Democratic Party to investigate harsh interrogation methods, saying it’s best to look forward, and not back.
Holder’s move signals his determination to operate independently from the White House. Although a staunch ally of Obama, Holder is not a member of the president’s trusted inner circle.
During the Bush administration, then-Attorney General Alberto Gonzales’ role as loyal adviser is often cited by critics as a contributing factor to the lack of independent oversight that allowed alleged detainee abuse and other problems to occur.
Holder called Durham’s probe “preliminary,” aimed at determining whether an independent investigation, for example by a special prosecutor, is warranted.
Even with a full investigation, Holder said, it is not certain that criminal charges would result.
Even so, “special prosecutors are dangerous animals,” said Stephen Hess, a presidential scholar at the Brookings Institution. “Once you set them in motion, you never really know where they are going or how to stop them.”
David Dow, a constitutional law expert, said convictions from a special prosecutor’s probe would be highly unlikely.
“I think there will be pretty daunting legal defenses, unless there were people doing things they were explicitly told not to do by superiors that also violated criminal law,” Dow said.
