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Why Holder Is Wrong

By David S. Broder
Thursday, September 3, 2009

My friend and fellow columnist Eugene Robinson has written a characteristically passionate and well-reasoned piece commending Attorney General Eric Holder's decision to name a special counsel to examine possible law-breaking by interrogators of terrorist subjects during the last administration.

But I think he is wrong.

First, let me stipulate that I agree on the importance of accountability for illegal acts and for serious breaches of trust by government officials -- even at the highest levels. I had no problem with the impeachment proceedings against Richard Nixon, and I called for Bill Clinton to resign when he lied to his Cabinet colleagues and to the country during the Monica Lewinsky scandal.

I understand why so many liberals who opposed the Bush administration are eager to see its operatives and officials forced publicly to explain their actions. The case that Robinson and many others make for seeking testimony is a strong one.

I am not persuaded by former vice president Dick Cheney's argument that this is simply political revenge by the now-dominant Democrats against their Republican predecessors. For all the previously stated reasons, there is ample justification for seeking answers apart from any partisan motive.

Nonetheless, I think it is a matter of regret that Holder asked prosecutor John H. Durham to review the cases of the agents accused of abusive tactics toward some captives.

I realize this is a preliminary investigation, not a decision to prosecute anyone. And if it were to stop at that point, no great harm would have been done. But it is the first step on a legal trail that could lead to trials -- and that is what gives me pause.

Cheney is not wrong when he asserts that it is a dangerous precedent when a change in power in Washington leads a successor government not just to change the policies of its predecessors but to invoke the criminal justice system against them.

Leon Panetta, the conscientious director of the Central Intelligence Agency who, earlier in his government career, resigned to protest the policies of the Nixon administration in which he was serving, has disagreed with Holder's decision. He says it will have a harmful effect on the morale and operations of his agency, which has already taken strong steps to correct the policies he inherited.

Panetta's judgment is supported by the reporting of The Post's David Ignatius and others with excellent sources inside the CIA.

Looming beyond the publicized cases of these relatively low-level operatives is the fundamental accountability question: What about those who approved of their actions? If accountability is the standard, then it should apply to the policymakers and not just to the underlings. Ultimately, do we want to see Cheney, who backed these actions and still does, standing in the dock?

I think it is that kind of prospect that led President Obama to state that he was opposed to invoking the criminal justice system, even as he gave Holder the authority to decide the question for himself. Obama's argument has been that he has made the decision to change policy and bring the practices clearly within constitutional bounds -- and that should be sufficient.

In times like these, the understandable desire to enforce individual accountability must be weighed against the consequences. This country is facing so many huge challenges at home and abroad that the president cannot afford to be drawn into what would undoubtedly be a major, bitter partisan battle over prosecution of Bush-era officials. The cost to the country would simply be too great.

When President Ford pardoned Nixon in 1974, I wrote one of the few columns endorsing his decision, which was made on the basis that it was more important for America to focus on the task of changing the way it would be governed and addressing the current problems. It took a full generation for the decision to be recognized by the John F. Kennedy Library Foundation and others as the act of courage that it had been.

I hope we can avoid another such lapse. The wheels are turning, but they can still be halted before irreparable damage is done.

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I made an egregious error when I wrote last week that Robert Kennedy had waited until President Lyndon Johnson left the race before declaring his candidacy in 1968. Kennedy announced on March 16 and Johnson withdrew 15 days later. I should have known better.

davidbroder@washpost.com

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