This Monday, the same day that Attorney General Eric Holder named a special prosecutor to investigate persons who conducted the CIA’s interrogations in the war on terror, Scotland’s Justice Minister Kenny MacAskill stood before his parliament and gave this defense for releasing convicted Lockerbie bomber Abdel Basset Ali Megrahi:

“It was not based on political, diplomatic or economic considerations. . . . My decision was made following due process, and according to the law of Scotland. I stand by the law and values of Scotland.”

Faced with a similarly fastidious assertion of the law’s triumphal self-regard in “Oliver Twist,” Mr. Bumble replied: “If the law supposed that, the law is a ass—a idiot.” Mr. Bumble added something acutely relevant to what is happening to the war on terror: “The worst I wish the law,” said Mr. Bumble, “is that his eye may be opened by experience—by experience.”

The experience of a world beset by terror eludes the eyes of a Kenny MacAskill, Eric Holder and others in the Obama administration. The rest of us may suffer for it.

In a May speech at the National Archives, President Obama, mirroring Kenny MacAskill’s remarks, said we had to “update our institutions” to deal with terrorism but “do so with an abiding confidence in the rule of law and due process.”

That “update” is upon us. The smothering pillows have arrived.

Attorney General Holder named Connecticut prosecutor John Durham to conduct an investigation into whether interrogations by CIA employees warrant a criminal inquiry. It has been shown repeatedly the past 25 years that an office of independent counsel or special prosecutor nearly always puts in motion an Inspector Javert-like hunt for an indictable defendant.

Mr. Holder’s justification, that his own reading of the “available facts” gave him no choice, is close to a preordained conclusion that Mr. Durham will cite one of these CIA guys for criminal prosecution.
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David Klein
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The day of Mr. Holder’s announcement, CIA Director Leon Panetta said his agency received “multiple written assurances its methods were lawful.” It’s now clear that even playing by the rules cannot stop erosion by legal challenge.

That day also brought the release of CIA Inspector General John Helgerson’s 2004 report on the agency’s detention and interrogation of terror suspects. Both sides to this argument say the report supports their view of the CIA. No matter. What the release of the Helgerson report mainly does is open the dams on detainee lawsuits.

This litigation nightmare, together with the chilling effect of the special prosecutor’s potential indictments, has as its goal making the price of aggressive interrogation too high under any circumstance, including a one-hour-bomb scenario.

To supervise future interrogations, the administration is creating something called a High Value Detainee Interrogation Group. Interrogation techniques will be limited to those in the Army Field Manual or that are “noncoercive,” which suggests more constrained than a big-city police department. Authority is being moved from the CIA to the FBI.

This means that the class of person who blows up skyscrapers, American embassies or the USS Cole would spend less time under a bare light bulb than a domestic robbery suspect. The Los Angeles Times reported in May that the goal of a proposed administration “global justice initiative” would be to get all terror suspects into a U.S. or foreign court.

Eric Holder cited the Justice Department’s Office of Legal Responsibility as influencing his decision to proceed with a CIA special prosecutor. This is the legal office that is expected to release its long-awaited report on whether former Bush Justice lawyers John Yoo, Jay Bybee and Steven Bradbury should be cited for misconduct for providing the CIA with legal opinions about these interrogations. If, as expected, the OPR cites the lawyers, legal groups will try to disbar them. After that, no lawyer will go near the war on terror.

Individually, some of this may be arguable. In toto, it’s a death sentence for an effective war on terror. It makes what’s left of the war—telephone wiretaps or monitoring money transfers—vulnerable to a steady stream of congressional and legal objection. That lets the Obama administration evade political responsibility by letting others wind down the war on terror.

The message of Scotland’s release and the Holder decision is that the will born in the wake of 9/11 is waning. The war on terror is being downgraded to not much more than tough talk. Al Qaeda, the Taliban and the Iranians, not yet converts to the West’s caricature of its own legal traditions, will take note. In time, they will be back. The second war on terror is in the future.
Write to henninger@wsj.com

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Tags: Basset, Cia Employees, Criminal Inquiry, Due Process, Economic Considerations, Eric Holder, Experience The Experience, Four Hundred Years, Inspector Javert, Interrogations, Justice Minister, Lockerbie, Macaskill, Office Of Independent Counsel, Oliver Twist, Oliver Twist Mr Bumble, Prosecutor John, Self Regard, Special Prosecutor, War On Terror

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