Those who cherish the rule of law have cause to cheer Attorney General Eric Holder's decision to appoint a special prosecutor to probe instances of torture under the Bush administration. Initial reaction, though, has been mixed. Some advocates are especially disappointed that the investigation doesn't seem to go far enough, or more to the point, high enough. Such criticism is natural, but I'm not sure it's entirely warranted.  

The real culprits may yet be brought to justice. Special prosecutors frequently exceed their original mandates, often dramatically so. Even if Holder's intention is to keep a tight lid on things, he may be unable to prevent the investigation from expanding. There's ample reason to expect that the evidence will compel it.

Recall that early in his tenure, Holder unleashed a firestorm of controversy by advocating for the release of photos and records relating to prisoner abuse and CIA interrogation techniques. Opponents mobilized forcefully, and the effort was largely thwarted. Since then, the AG has been playing his cards very close to the vest. If he does have an end-game in mind, he's yet to reveal it. 

His caution is well advised. The President clearly doesn't want a broad investigation, and any attempt to go after the big fish, like Yoo, Bybee, Rumsfeld, Cheney, et. al, is sure to evoke the full fury of the Republican noise machine. Holder himself can expect to be dragged through the mud. The political costs should not be underestimated.
 
Complicating matters further, high-level prosecutions would necessarily involve difficult constitutional issues that could take years to litigate. Regardless of what evidence the Justice Department is able to amass, it's not at all clear that any such prosecutions would ultimately be successful. A bad result could be more damaging in the long run than leaving the matter unresolved.

In light of all this, I'm willing concede that it may still be too soon to target the architects of torture directly. When that day comes---and I believe it will---the Justice Department's reluctant, go-slow approach will serve as an effective rebuttal to the inevitable charge of political retribution.

   ---s