Daniel Klaidman Responds to Holder Story Questions

Earlier this week, NEWSWEEK's Daniel Klaidman broke the news that Attorney General Eric Holder is leaning toward appointing a special prosecutor to investigate Bush-era interrogations. We received a great deal of feedback and have sorted it into six key follow-up questions. Below are Dan's answers:

Is this the first time one administration has taken such a strong stance on the previous administration? What will the next administration scrutinize about this one?
There have been other instances in which a new administration has reached back and investigated its predecessor, but it has been a long time and rarely involving as sensitive a national-security issue as the Bush administration's interrogation practices. For those of you who may be wondering about the Watergate precedent, remember that both special prosecutors named to investigate that scandal were appointed by the Nixon administration. Still, the premise of the question is an important one; one of the controversial aspects of this development is the possibility that it could spawn a cycle of political investigations as new administrations come in and replace the old guard. Though he hasn't said it, that may be part of President Obama's thinking when he says he wants to look forward, not backward.

What kind of effect could this have on Obama's poll numbers or standing? How will Obama react?
It's hard to predict the impact that an investigation like this will have on President Obama's approval ratings. But every signal from the White House over the past few months strongly suggested that the president did not see much of a political upside to this kind of an investigation. There is great concern among the president's advisers that dredging up the torture issue could threaten President Obama's domestic agenda, particularly health-care reform. Having said that, Obama has always been careful to stress that a decision to investigate the previous administration's interrogation practices should be left in the hands of the attorney general. And some political observers have noted that there could be some benefit to how this development appears to be playing out.

What kind of blowback could Holder experience from his own party or from the opposition?
There already has been considerable blowback, particularly from the Republican opposition. National security is one area where the GOP feels it has a clean shot at the Obama administration—it can keep swinging without suffering any consequences. A principal line of attack is that this decision, if the attorney general goes through with it, will devastate the CIA, which is already suffering from low morale. Being in the middle of the political cross hairs is hardly a new position for the agency, but over the long haul it could contribute to a sense of risk aversion among CIA operatives that could represent national-security risks for the country. In my interviews with Holder he told me that this was an issue that will weigh heavily on him as he approaches the final decision. As for Democrats, I don't expect much political blowback unless it becomes clear that the GOP's national-security attacks really begin to stick.

What would be the long-term effects of not investigating? Alternately, what happens if the Bush administration is found to be out of bounds in its actions?
There's been a lot of focus on what the impact of an investigation might be, like damaging morale and recruitment in our intelligence services or harming the president's domestic agenda. Sen. John McCain suggested on Meet the Press last week that an investigation would harm America's reputation around the world by airing these controversial practices. But one could also argue that we will damage our reputation as a beacon of democracy and a country that is committed to the rule of law if we don't hold our government accountable when laws are broken in the name of the American people. What happens to members of the administration if they are found to be "out of bounds" in their actions depends on the nature of the criminal violations, if there were indeed any, and the strength of the evidence. There are numerous statutes that could come into play, chiefly the anti-torture statute. In these kinds of investigations there is also always the possibility that people will be prosecuted for covering up the underlying alleged criminal conduct. People could be prosecuted for obstruction of justice and perjury. All these offenses carry criminal penalties including imprisonment and fines.

How do you see any investigation playing out, politically and in the media?
I believe that if the attorney general goes ahead and launches a criminal investigation, it will continue to draw considerable media attention and political controversy. That's the nature of the beast.

Does this open the door to other investigations into the Bush administration?
In a funny way, I think that should this torture investigation go forward, it might actually minimize the likelihood that there will be criminal probes into other Bush-administration transgressions. But that, of course, will depend on the nature of whatever allegations may or may not surface.