Does Holder's "waterboarding is torture" comment implicitly commit him to prosecuting Bush administration officials?

Ever-hopeful observers say yes, but Holder's statement that waterboarding is torture is hardly news; his soon-to-be boss has said the same thing. The chances of prosecution remain slim for diverse reasons.

1. Prosecutors have enormous discretion; this is a fixture of American law. Why didn't the Justice Department prosecute Eliot Spitzer for consorting with a call girl? Because it didn't feel like it, that's why. The DOJ has more pressing concerns; it cares more about public corruption and money-laundering than interstate prostitution. This is a purely political judgment; if the public's attitudes toward purchased sex changed today the way it did toward drugs in the 1970s and 1980s, we would see a similar reallocation of prosecutorial resources away from other things and toward prostitution. The Justice Department has no more obligation to prosecute waterboarders than the purchasers of sex.

2. But torture is a more serious crime than prostitution, isn't it? The practical question is one of political seriousness, not moral seriousness, and both Obama and Holder have stated that they do not want to start a war with outgoing Republicans. They have good political reasons to avoid such a battle: it would disrupt political cooperation in areas that Obama cares about. Although many people believe that Obama has his priorities wrong, or that Obama can prosecute former Bush administration officials without interfering with ongoing political cooperation, the tea leaves so far suggest that Obama and Holder have more-or-less made up their minds to the contrary, though, like all good politicians, they do not yet want to tie their hands, in case political circumstances change and become more auspicious for prosecution.

3. There are other more mundane reasons that will allow Justice Department officials to persuade themselves not to investigate and/or prosecute that are not connected to politics. Prosecutors prosecute when they believe that they will win. To do otherwise is to waste public resources that could be used to put people in jail. Any experienced prosecutor would engage in the following train of reasoning (even putting aside the immunity provisions in the Military Commissions Act). The waterboarders themselves will testify that they received assurances from superiors and lawyers that waterboarding is not illegal, and that they believed that waterboarding was necessary to protect the nation. The superiors, up to Bush himself, will testify that lawyers assured them that waterboarding is not illegal, and that they believed that waterboarding was necessary to protect the nation. The lawyers will testify that they honestly believed that waterboarding is not torture—it caused "pain" but not "severe pain," in the language of the statute—and that in any event statutes need to be interpreted narrowly to avoid a conflict with the president's commander-in-chief powers. The jury will believe all these people and it will refuse to convict or, at best, it will hang, prolonging everyone's agony. It might refuse to convict because it doesn't believe that anyone has the requisite mens rea; because it doesn't understand the law; or because (most likely) it just doesn't believe that people should go to jail when they are trying to protect the nation and the law in question is confusing or ambiguous.

4. Back to politics. One can easily imagine the defense strategy, which will start by calling to the stand various Democratic senators and representatives who had been informed of the interrogation tactics and did not publicly object to them at the time. The testimony would surely be entertaining, as the politicians would be put in the impossible position of either admitting their moral complicity, which would make the entire trial look like a political show trial designed to punish Republicans but not Democrats, or looking like cowards who knew that the government was breaking the law but despite their oath to the Constitution were unwilling to do anything about it. Do Obama and Holder really want to put leaders of their own party in Congress in this position?

5. Finally, just what is Holder's position on these issues? Has he really committed himself to anything? What about the all-important issue of executive power (I've added emphasis to certain sentences in the transcript excerpts below)?

LEAHY: Do you believe that the president of the United States has authority to exercise a commander-in-chief override and immunize acts of torture? I ask that because we did not get a satisfactory answer from Former Attorney General Gonzales on that.

HOLDER: Mr. Chairman, no one is above the law. The president has a constitutional obligation to faithfully execute the laws of the United States. There are obligations that we have as a result of treaties that we have signed — obligations, obviously, in the Constitution. Where Congress has passed a law, it is the obligation of the president, or the commander-in-chief, to follow those laws.

FEINGOLD: … First, what is your view of the president's constitutional authority to authorize violation of the criminal law, duly enact the statutes that may have been on the books for many years when acting as commander-in- chief?

HOLDER: The president, as I've said, is not above the law, has a constitutional obligation to follow the law and execute the laws that this Congress passes. If you look at the Steel Seizure concurrence of Justice Jackson that, I think, sets out in really wonderful form the power that the president has and where the president's power is strongest and where it is weakest.

It is weakest in Category 3 where Congress has indicated something contrary to what the president wants to do. That is where Justice Jackson says the president's power is at its lowest level. And I think — I'm not a constitutional scholar — but I think that there has never been a president who's been upheld when he's tried to act in Category 3. I think, but I'm not sure.

FEINGOLD: I believe that's right. And I want to follow that. Using the construct of Justice Jackson, more specifically, does the president, in your opinion, have the authority, acting as commander- in-chief, to authorize warrantless searches of Americans homes and wiretaps of their conversations in violation of the criminal and foreign intelligence statutes of this country?

HOLDER: I think you're then getting into Category 3 behavior by the president. Justice Jackson did not say that the president did not have any ability to act in Category 3. Although, as I said, I'm not sure there's ever been an instance where (inaudible) courts have said that the president did act appropriately in that category.

It seems to maybe it's difficult it imagine a set of circumstances given the hypothetical that you have used and given the statutes that you have referenced that the president would be acting in an appropriate way given the Jackson construct, when I think is a good one.

HATCH: … Now, do you believe that the president has — whoever is president of the United States — has inherent authority under Article 2 of the Constitution to engage in warrantless foreign intelligence surveillance? Or, in your opinion, does FISA trump Article 2?

HOLDER: Senator, no one is above the law. The president has the constitutional obligation to make sure that the laws are faithfully executed. In rare instances where Congress passes a law that is obviously unconstitutional — if, for instance, Congress were to pass a law that the secretary of defense should be the commander-in-chief, or that women would not have the right to vote — I think that the president in that instance would have the ability to act contrary to a congressional dictate.

OK. But back to our prior point, is the president's inherent authority under the Constitution — can that be limited by a statute?

HOLDER: The president's inherent authority. Well...

HATCH: Right.

HOLDER: ... it's...

HATCH: I mean, you're relying on the statute as though that's binding on Article 2 of the Constitution.

HOLDER: Well, the president obviously has powers under the Constitution that cannot be infringed by the legislative branch. That's what I was saying earlier.

There are powers that the president has, and that have been delegated to him that he has. And in the absence — Congress does not have the ability to say, with regard to those powers, you cannot exercise them. There's always the tension in trying to decide where that balance is struck. And I think we see the best result when we see Congress interacting with the president, the executive branch interacting with the legislative branch, and coming up with solutions...

HATCH: That still doesn't negate the fact that the president may have inherent powers under Article 2 that even a statute cannot vary.

HOLDER: Well, sure. The...

HATCH: Do you agree with that statement?

HOLDER: Yes, there are certain things that the president has the constitutional right, authority to do, that the legislative branch cannot impinge upon.


Holder himself can't dispute the central premise of the Bush DOJ's war-on-terror memos; at best, he can say that (in his words) "There's always the tension in trying to decide where that balance is struck" when the president's and Congress' constitutional powers conflict, and that he would have struck it differently. A jury will convict on that basis?

Obama has no reason to "rule out" ordering criminal investigations and prosecutions of Bush administration officials. After all, some people may well have gone beyond the authority given to them and would be prosecuted even by the Bush administration. And a long and inconclusive investigation might be the best way to make the issue go away. But Obama has no legal obligation to prosecute and has overwhelmingly strong political reasons to make this issue die: not just to avoid short-term disruption of his political agenda, but to avoid the long-term damage to his own power as president. Will Holder try to stand in his way? Nothing in the transcript indicates that this is likely.