A possible opening, via Holder, for Bush-Cheney prosecutions

"The law is a ass -- a idiot," said the Dickensian Mr. Bumble in the first half of the nineteenth century, and it seems little has changed.

For instance as clearly specified in the National Security Act of 1947, the president must see to it that House and Senate intelligence committees "are kept fully and currently informed of the intelligence activities of the United States, including any significant anticipated intelligence activity."

Well, you sure can't argue with that -- that being either the statute's wording or intent; it's a veritable model of legal comprehensiveness, polished, just so there's no misunderstanding, with qualifiers such as fully, currently, and any.

But, however, nevertheless, regardless, and on the other hand, or so the statute continues, intelligence briefings are to be given to Congress only "to the extent consistent with due regard for the protection from unauthorized disclosure of classified information relating to sensitive intelligence sources and methods or other exceptionally sensitive matters."

And there, just as clearly, is a legal loophole through which you could fly Air Force Two.

So once again Dick Cheney & Co. will walk from justice, or fly, as it were, despite what at first seemed like a momentous revelation of criminal "gotcha," at long last.

For years, Cheney had kept a disclosure lid on a CIA counterterrorism program -- possibly, scuttlebutt has it, the formation of an assassination squad -- and, reported the Washington Post yesterday, "an intelligence official said," seemingly with an air of casualness, that not only was it "generally known" that it was Cheney, personally, who had ordered the non-disclosure, but that "it was unclear whether the agency was obligated to brief Congress."

What's more, throughout the Bush junta's second reich, "We never briefed the vice president, the president or the Cabinet," said a former senior superspook. "He said the program remained in the planning stages and never crossed the agency's threshold for reporting to the administration and congressional overseers."

But wait, doesn't the law require "full" and "current" disclosure of "any significant anticipated intelligence activity"? Well, it's kind of dealer's choice. It does, but it doesn't; it absolutely requires disclosure, except when "due regard" for non-disclosure seems nifty.

So if you sat and watched the Sunday chat shows with any sense of overdue justice finally arriving for the likes of Dick Cheney -- on Fox News Sunday Dianne Feinstein, chairwoman of the Senate Intelligence Committee, said all the brouhaha indicated a "big problem" for all concerned, while Senator Dick Durbin, on "This Week," spoke ominously as well of its possibly "illegal" nature -- just know that any Congressional investigation will go ... nowhere. Not only because Congressional investigations rarely go anywhere, but mainly, and especially in this instance, because the law is a ass -- a idiot -- unless you're a high-ranking official looking to skirt it.

Yet, hope survives, initially in the personage of Attorney General Eric Holder.

As was also reported -- first by Newsweek -- this weekend, he is now inclined, say aides, to appoint a criminal prosecutor on the matter of torture. That's the upside. The downside, however, is that, as the Post reported, "sources said an inquiry would apply only to activities by interrogators, working in bad faith, that fell outside the 'four corners' " of the Bush Justice Department's "legal memos," which authorized torture.

Here, as defined only to that extent, the law would prove itself not merely a ass, but ass-backward. Forget the goonish interrogators; it was the "legal memos" themselves -- wrenched out of the Justice Department at the insistence of George W. Bush and Richard B. Cheney -- that were blatantly illegal, contrary to the U.S. criminal code and international treaties.

To prosecute the marionettes of overzealous interrogators while neglecting their ultimate puppeteers would be historically tantamount to having prosecuted SS concentration-camp guards while overlooking their Hitlers and Himmlers.

Still, that is A.G. Holder's inclination. So why do I say there is yet hope? Because it depends on what kind of prosecutor Holder appoints. As the NY Times reports: "The attorney general would prefer to keep such an inquiry narrowly focused and assign it to a line prosecutor, if possible, rather than appoint a special prosecutor" (my emphases). I like those subjunctives.

Special prosecutors can roam, dig, investigate, and prosecute at will; a career prosecutor cannot. And on the matter of torture, authorized by illegal legal memos -- here, inarguably illegal, as opposed to the fuzzy-wuzzy wording of the National Security Act -- a special prosecutor could climb, link by link, straight up the criminal chain of command.

It all depends on Eric Holder. And "as the attorney general has stated on numerous occasions," said one of his spokesman, "the Department of Justice will follow the facts and the law with respect to any matter." Let's hope he does just that, and doesn't, instead, make a ass of himself.