When United States Attorney General Eric Holder last month appointed a special prosecutor to investigate allegations of CIA prisoner abuse, he must have known that he was opening a political can of worms. But, as US journalist Mark Danner argues, by choosing to investigate only those agents who operated outside the guidelines laid down in the notorious Bush administration “torture memos”, Holder also risks setting some unwelcome legal precedents.

Danner's books include Torture & Truth: America, Abu Ghraib, and the War on Terror and Stripping Bare the Body: Politics Violence War. He spoke to the IJT from Berkeley, California where he also teaches.

Listen to Hermione Gee's interview with Mark Danner:

“Obama has declared from the beginning that he wants to look forward not back and this is a way to say that we’re not looking at the decisions of the Bush administration, we’re just looking at the actions of interrogators that went beyond the law, at that time.

The irony of it is that the decision has the back-handed effect of focusing on what was “illegal” and sort of agreeing with the Bush administration of what they had made “legal”. It seems to suggest that the present administration will accept the definition of the Bush administration, that water-boarding is actually legal. That strikes me as [...] rather contradictory since the present Attorney General, the man who has now decided to appoint the special counsel, actually said explicitly in his confirmation hearings that water-boarding was illegal.

[That] won’t get us out of this problem. It’s not going to exorcise torture, people in the CIA will be angry, and people who made these decisions will get away scot-free. That’s essentially what happened at Abu Ghraib. You had a few lower level soldiers who went to prison and they should have gone to prison, I’m not quarreling with that. What I’m quarreling with is the notion that they alone should have gone to prison, and we’re starting down the same path with respect to CIA torture.”

What do you think Obama should have done?
“It’s a fact that [he] inherited a terrible mess. What should have happened was at the beginning, the administration [...] should have appointed a prestigious high level commission [...] to investigate the general issue of interrogation under the Bush administration. And I think that such a commission should have been given subpoena power and the highest security clearances, and it should have taken its time [...] to go into these issues in depth.

To look at the supposedly secret information that the former Vice-President Dick Cheney says justifies what they did and proves that it was worthwhile, and to look at everything and then to come out with a pronouncement on what was done, why it was done, whether it helped or hurt the country, on balance; and I think that any question of prosecutions would have followed such an inquiry.

The reason I believe this, is not because I don’t think people should be prosecuted, I think they should, but because I think there’s a major matter of politics to be settled first. First and foremost these questions are political problems not legal ones. They are legal problems - the law was broken - but first of all they are political problems.”

Part of your concern seems to be that the US hasn't addressed the issue of whether, as a society, it approves of torture or not. Where would you say the country stands right now regarding that question?
“If you ask the question in the following terms, “Would you agree that torture is necessary and should be performed if it can protect the country from a terrorist attack?” In those terms you will get a very substantial majority saying yes. It's very much a minority view that there should be a commission and that there should be prosecutions.”

(Additional editing: Karl Dowling)

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