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.
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 detainees.
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 course.”
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 matters.
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 secrets doctrine.
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 international affairs.
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.
Robert Alt is senior legal fellow and the deputy director of the Heritage Foundation’s Center for Legal and Judicial Studies (www.heritage.org).