My colleague Todd Gaziano and I have a new Web Memo up at Heritage discussing the numerous problems that would arise if Attorney General Holder decides to appoint a special prosecutor to investigate the CIA interrogators—a decision that is rumored to be announced any day now. Our conclusion: if a criminal investigation is warranted, then the President and the Attorney General should not pass the buck to a special prosecutor. There should always be adequate oversight and political accountability in prosecutions, but even more so in this case, given the sensitive national security information and the potential for partisanship. Accordingly, if a criminal investigation proves necessary, we conclude that:
The Attorney General must be the one who personally authorizes any criminal investigation and subsequent trial. He, with the President, must also bear the responsibility for any direct or collateral results of such an investigation. Additionally, the Attorney General should be directly responsible for any negative impact such an investigation and trial will have on the intelligence community and the willingness of that community to carry out all lawful acts in support of America’s defense.