Manuel Balce Ceneta / AP Photo The attorney general is leaning toward appointing a special prosecutor to investigate Bush-era torture policy, sources tell Scott Horton. Inside the logic driving Eric Holder’s possible conversion.

The Obama White House has deflected calls for appointment of a special prosecutor to investigate the formulation and implementation of Bush-era torture policies with an argument that they want to “look forward, not backward.”  But Justice Department lawyers took careful note of a different statement President Obama made yesterday in Ghana:  “You have the power to hold your leaders accountable.” Now two sources in the Justice Department confirm to me that Holder is preparing to appoint a special prosecutor to conduct a comprehensive investigation and, if necessary, bring charges.  They caution that the final call has not been made.  And senior Justice Department officials remain concerned that meddling by the White House’s political wing would undermine the appearance of the Justice Department’s independence.

Holder’s path to a decision was described as prolonged and surprising. Holder began his review mindful of the clear preference of President Obama’s two key political advisers—David Axelrod and Rahm Emanuel—that there be no investigation. Axelrod and Emanuel are described as uninterested in either the legal or policy merits of the issue of a criminal investigation. Their concerns turn entirely on their political analysis. They have advised Obama and other senior figures in the administration that the torture issue is a “distraction,” and that any attention on it would detract from Obama’s ability to push through his agenda—especially health-care reform.  Holder initially appeared prepared to satisfy their wishes. 

Holder began his review mindful of the clear preference of President Obama’s two key political advisers—David Axelrod and Rahm Emanuel—that there be no investigation. 

But, then, Holder decided to take a close, personal look at the issues, and his perspective began to change. Holder is said to have been closely engaged with three sets of documents—a group of memoranda from the Bush-era Office of Legal Counsel, since repudiated by the Justice Department; the report of the Office of Professional Responsibility on these memoranda, which has been on his desk, awaiting review and release for months; and the report of the CIA’s inspector general reviewing in great detail the actual techniques used, guidance given by the Justice Department, and results or lack of results obtained. 

Holder released the first set of memoranda and his Justice Department publicly suggested that it would release both the related report and the CIA inspector general’s report—often viewed as the Rosetta Stone of the torture controversy. As he read through the latter two documents, my sources said, Holder came to realize the focal and instrumental role that Department of Justice lawyers had played in constructing the torture regime and in pushing it through when career lawyers raised objection. He also took note of how the entire process was orchestrated from within the Bush White House—so that more-senior lawyers in Justice, sometimes even the attorney general, did not know what was being done. And he noted the fact that the United Nations Convention Against Torture, to which the United States is a party, requires that a criminal inquiry be undertaken whenever credible allegations of torture are presented.

It’s important to re-emphasize that no final decision has been taken. Moreover, with hearings set to commence on the nomination to the Supreme Court of Sonia Sotomayor on Monday, administration officials are eager to keep speculation about the appointment of a special prosecutor out of the press. “This is waving a red flag in front of the Republicans,” one notes. 

Holder had contemplated finalizing his decision in connection with the release of the Office of Professional Responsibility report. While The New York Times previously reported that the report recommended against criminal action against the lawyers involved in preparing the torture memoranda, a Justice Department official cautioned me that this was misleading: “No criminal investigation was conducted. OPR looked only at issues of legal ethics. A recommendation as to criminal charges would come only following an appropriate investigation, which has not yet occurred, and whether it occurs will be up to the attorney general.” 

The exact parameters of a special prosecutor’s potential authority remain unclear, as does the name of who might be chosen. Reports suggesting illegal conduct during the Bush years have proliferated and now include well-substantiated allegations of warrantless surveillance, which the Holder Justice Department has struggled to uphold as lawful in the face of increasingly incredulous courts. On Friday, a joint report by the inspectors general of the Defense Department, Justice Department, CIA, National Security Agency and intelligence community revealed that the Bush-era warrantless-surveillance programs were vastly greater in scope than previously disclosed. Director Leon Panetta is reported to have disclosed to Congress that his predecessors had operated a highly secretive program which was not briefed to Congress, in apparent violation of the National Security Act of 1947. The New York Times has also just reported that Congress was not briefed because of orders issued directly by Vice President Dick Cheney. Each of these matters could provide the basis for a special criminal investigation. 

For now, however, it appears that Holder’s current decision focuses only on the development of new interrogation techniques and their use at the direction of the Bush administration. Under these terms, the prosecutor would be tasked to look at the role played by Justice Department figures and other government lawyers at various stages of the process; but criminal investigations usually target specific crimes, not individuals, and this would be no exception. The regulations require a "specific factual statement” concerning the matter to be investigated, but drafting such a statement may be difficult. One major issue would be whether the ultimate policy-making echelons in the White House would be affected. One source told me that he would be surprised if Holder “set blinders” on the special prosecutor. Still, the scope of the investigation would clearly be limited to the authorization and use of Bush-era “enhanced interrogation techniques” such as waterboarding, longtime standing, stress positions, and prolonged sleep deprivation. Moreover, President Obama’s assurance to CIA officials who relied on the opinions of government lawyers in implementing these programs, an assurance that Holder himself repeated, would have to be worked in.  That suggests that the focus would likely be on the lawyers and policymakers who authorized use of the new techniques.

Department of Justice guidelines give the attorney general broad latitude in picking a special prosecutor. One option would be for Holder simply to expand the brief of John Durham, the existing special prosecutor appointed by former Attorney General Michael B. Mukasey, to investigate the destruction of torture tapes by the CIA. Durham, an assistant U.S. Attorney from Connecticut, is highly regarded, but also lacks the stature desired for a broader and more politically sensitive torture probe. That position would be more likely to go to a person comparable to the attorney general himself. In theory, Holder could assign the matter to a U.S. Attorney, or he could tap a government outsider with an established reputation for integrity and strong prosecutorial credentials (a former U.S. Attorney, retired judge, or former FBI director, for instance). In his appointment, he would be free to define the special prosecutor’s power to act independently of his office. In appointing Patrick Fitzgerald as special prosecutor for the Valerie Plame matter, for instance, Deputy Attorney General James Comey gave Fitzgerald full discretion to bring charges and proceed to prosecute cases without the need to secure the approval of the attorney general—a significant precedent, likely to be followed in this case.

A major consideration for Holder, my sources told me, was the Justice Department reputation for independence—badly tarnished during the Bush administration and perhaps set to face further embarrassments as the U.S. attorneys scandal probes—by Congress and by a special prosecutor—finish up.

In the days after Obama’s speech at the CIA, both Axelrod and Emanuel insisted that the White House had made the decision that there would be no prosecutions. According to reliable sources, that incensed Holder, who felt that the remarks had compromised the integrity both of the White House and Justice Department by suggesting that political advisers made the call on who would or would not be criminally investigated. After Axelrod and Emanuel made their statements, Holder realized, a source said, that the Justice Department might have to appoint a special prosecutor to uphold its reputation for independence.

Observers caution that even if a special prosecutor is appointed, actual indictments would still be far off. The Bush torture policy was implemented with the advice of lawyers well skilled in the ways of Washington bureaucracy. Any prosecutor would face considerable legal obstacles in bringing charges. A review of the torture memoranda themselves shows that a consuming concern was thwarting the possible bringing of charges by a future prosecutor. Now, perhaps, the defenses they devised may be put to the test. 

Scott Horton is a law professor and writer on legal and national-security affairs for Harper's Magazine and The American Lawyer, among other publications.