Holder makes the right call

Reports late today that Attorney General Eric Holder is appointing career Justice Department prosecutor John Durham to investigate whether CIA interrogators may have tortured detainees in violation of the law have stirred the predictable outcries.  From Capitol Hill, a collection of Republican Senators produced a letter saying, “The intelligence community will be left to wonder ...

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WASHINGTON - AUGUST 24: U.S. Attorney General Eric Holder (R) delivers one of the keynote addresses during the White House National Conference on Gang Violence Prevention and Crime Control August 24, 2009 in Washington, DC. Holder outlined five points of crime prevention during the conference, which brought mayors, police chiefs and others to the White House. (Photo by Chip Somodevilla/Getty Images)

Reports late today that Attorney General Eric Holder is appointing career Justice Department prosecutor John Durham to investigate whether CIA interrogators may have tortured detainees in violation of the law have stirred the predictable outcries. 

From Capitol Hill, a collection of Republican Senators produced a letter saying, "The intelligence community will be left to wonder whether actions taken today in the interest of national security will be subject to legal recriminations when the political winds shift." Rumors even swirled that renewed scrutiny of the agency's activities had CIA Director Leon Panetta threatening to resign, though the White House rejected them as unfounded. 

Reports late today that Attorney General Eric Holder is appointing career Justice Department prosecutor John Durham to investigate whether CIA interrogators may have tortured detainees in violation of the law have stirred the predictable outcries. 

From Capitol Hill, a collection of Republican Senators produced a letter saying, “The intelligence community will be left to wonder whether actions taken today in the interest of national security will be subject to legal recriminations when the political winds shift.” Rumors even swirled that renewed scrutiny of the agency’s activities had CIA Director Leon Panetta threatening to resign, though the White House rejected them as unfounded. 

Here’s the reality: the Senators who sent up the protest letter have a point. The law should not be allowed to be tossed and twisted with every new breeze of public opinion. The law is the law. And if one administration misinterprets public outrage at a crime like a terror attack as license to overlook the law or to bend it to suit the mood of the moment, it is not an option for the next administration to question that action … it is an obligation. The whole point of having a legal system is to have objective standards by which to define acceptable parameters of behavior. 

No employee of the CIA has anything to fear if they acted within those objective standards. If the investigation demonstrates that anyone in the government misinterpreted the law for whatever reason and acted in violation of those laws, their actions should be evaluated within the context of the justice system. If they had good legal advice and acted within a reasonable interpretation of the law, then they have nothing to fear. 

Those who fear the investigation are revealing their lack of faith in our justice system … a trait that happens to have been shared by those who went beyond the boundaries of that system in the name of justice. With some luck the investigation will remind them that by suggesting justice may lie outside those boundaries or by suggesting that fundamental rights may be waived due to circumstances they do more damage to the system than those they were interrogating were capable of.

My only concern: that by defining the investigation too narrowly, the rank and file of the CIA will be sacrificed while those who insisted the laws be bent, broken and ignored will be free to walk away, perhaps even complaining from the sidelines about the process. If this investigation finds violations of the law, we can only hope that the well-respected Durham will follow the actions in question through to their origins and not prosecute foot-soldiers for the violations of their most senior leaders.

Chip Somodevilla/Getty Images

David Rothkopf is visiting professor at Columbia University's School of International and Public Affairs and visiting scholar at the Carnegie Endowment for International Peace. His latest book is The Great Questions of Tomorrow. He has been a longtime contributor to Foreign Policy and was CEO and editor of the FP Group from 2012 to May 2017. Twitter: @djrothkopf

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