August 28, 2009
By Robert Alt
When questioned about the possibility of prosecuting Bush
administration officials, President Obama has repeatedly claimed
that he wants to look forward, not backward. Yet his spokesman said
Monday's decision by Attorney General Eric H. Holder Jr. to reopen
the investigation of CIA interrogators was made solely by the
If the White House is attempting to disclaim responsibility,
this is plainly wrong. The president, to borrow a phrase from his
predecessor, is the decider. He must ultimately choose whether his
subordinates will look forward, or whether they will look back at
claims already examined.
There is no legal question that the attorney general and the
attorneys handling this investigation are subject to the president.
Mr. Holder directed U.S. Attorney John Durham - who was already
investigating the destruction of CIA interrogation tapes - to
perform a preliminary investigation into whether CIA agents or
contractors violated federal laws while interrogating
But Mr. Holder's expanding Mr. Durham's mandate did not remove
Mr. Durham from the chain of command. Mr. Durham is not an
independent counsel - that statute has blissfully expired. And he
is not a "special counsel" like Peter Fitzgerald, whose appointment
letter expressly stated that he was "independent of the supervision
or control of any officer of the Department." Rather, as his
original designation to act as U.S. Attorney in the tapes case
makes clear, "Mr. Durham will report to the Deputy Attorney
General, as do all United States Attorneys in the ordinary
To complete the chain of authority: the deputy attorney general
reports to the attorney general, and - contrary to some suggestions
of the White House concerning Mr. Holder's "independence" - the
attorney general in turn reports to the president.
While there are prudential questions about whether a president
should manage day-to-day investigations or prosecutions - notably,
he should ensure that his White House political operatives do not
meddle with criminal investigations for political purposes - he
cannot relinquish the final constitutional authority in these
Furthermore, the prudential concerns melt away in significant
national security cases, where the president operates with the
constitutional authority of commander in chief. The current case is
a perfect example of why this is not only the law, but it is also
the right policy.
The decision to prosecute CIA agents accused of having acted
illegally necessarily implicates highly sensitive national security
issues. Prosecuting could reveal a great deal about the means,
methods and people used in intelligence gathering - including who
conducts interrogation and lawful interrogation techniques - which
would be studied by those still at war with us.
While some of the information could be shielded in court
proceedings, some will necessarily be released or leaked. Indeed,
one need only look to the current investigation of defense
attorneys accused of showing pictures of covert CIA operatives to
detainees to understand the risks associated with exposing the
intelligence community to litigation.
These risks are heightened by the nature of the claims. Mr.
Holder has stated that he would not investigate those who acted in
good faith based upon legal guidance given by the Justice
Department. It is very likely that those accused of wrongdoing will
attempt to show that they did exactly that, and in doing so, may
seek to introduce other highly classified materials and testimony.
Given the sensitivity of this information, the White House will
likely be forced to consider whether the materials or testimony are
or should be covered by executive privilege, or by the state
Perhaps most significantly, reopening investigations where the
Justice Department previously declined to prosecute creates legal
uncertainty for individuals in the intelligence community. It also
is likely to have a devastating effect on morale, not only at the
CIA, but across the intelligence and defense communities.
These concerns require the perspective of an individual
responsible not only for overseeing prosecutions, but for the
continued operation of intelligence gathering and its effect on our
As luck would have it, our Constitution vests that ultimate
executive authority in the president. For both policy and
constitutional reasons, it is right for him to make the call. There
are good reasons why a president should follow his own counsel -
and look forward, not backward.
Alt is a senior legal fellow and deputy director of the Center
for Legal and Judicial Studies at the Heritage Foundation.
First Appeared on the Washington Times
When questioned about the possibility of prosecuting Bush administration officials, President Obama has repeatedly claimed that he wants to look forward, not backward. Yet his spokesman said Monday's decision by Attorney General Eric H. Holder Jr. to reopen the investigation of CIA interrogators was made solely by the attorney general.
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