Cenk Uygur: Alright, back on The Young Turks. Now we're going to talk to Daniel Klaidman. He wrote "Independent's Day" about Eric Holder and what he might or might not do in prosecuting what was considered by many to be torture under the Bush Administration. Daniel, welcome to The Young Turks.

Dan Klaidman: Thanks for having me.

Cenk Uygur: We appreciate you coming on. First I want to talk a little bit about the substance of the article here. What is the sense that you got out of the Justice Department as to whether they might pursue some claims of whether this enhanced interrogations was legal or illegal?

Dan Klaidman: Oh, I think that there is a very strong likelihood that they will do this. I think there's no final decision yet. But I think it's pointing in that direction, and it's a strong inclination of the Attorney General to pursue this. You have to remember that what they're looking at is...conduct that went beyond what was authorized in those Justice Department memos. So it's not...the conduct that most people are familiar with, most likely water boarding, some of the other things that were done that were controversial...but those were all methods that were permitted under the Justice Department's legal opinions. And the Attorney General and the President specifically said that they would not prosecute anybody for conduct that was authorized. And so that, at least implicitly suggests that what they're looking at is conduct that went beyond that, and the things that we might not even know about, and has not been publicly disclosed.

Cenk Uygur: But that's very important though, because I mean, if they're going after people who went outside of the memos, that doesn't seem very controversial at all. Presumably, they should have been doing that all along, right? I mean, on the other hand, they're going to go after the people who wrote the memos for the...I got the impression that they're going to consider "hey were these memos legal and if they weren't, what should be done about it?"

Dan Klaidman: No, that's not...there's a separate investigation by the Justice Department's internal watchdog unit, "The Office of Professional Responsibility," that's looking at the conduct of Justice Department lawyers who issued those legal opinions and whether they violated professional responsibility as lawyers by authorizing some of that behavior. But that is not a criminal investigation. It's a separate investigation, and it is not what Attorney General Holder is talking about. He's talking about conduct that was not authorized by those memos. And, you know, much of this conduct was, I suspect, I don't know this for sure, was reviewed by the previous administration and they made determinations not to investigate it further or to prosecute. And now, this Justice Department is looking at all of that behavior and putting it under legal scrutiny again, and I think we'll come to a very different conclusion.

Cenk Uygur: But Dan....

Dan Klaidman: I'm sorry, go ahead.

Cenk Uygur: Dan I gotta ask: Then I don't understand what the big deal is. Because, you know, if they go after lower level guys, why is that a political issue? Because the context...

Dan Klaidman: Well, who said it would lower...I mean, I didn't say it was entirely lower level guys. You begin an investigation, and you don't know for sure where it takes you. It is possible that CIA interrogators did some pretty bad things that violate the torture statute. But they were approved, it's possible, because I don't know this, but they were approved by people way up the chain of command.

Cenk Uygur: So that's the issue at hand?

Dan Klaidman: In which case those people would be exposed, potentially, to criminal prosecution.

Cenk Uygur: See, I don't see this being a large issue, and it getting the coverage that it did if Holder's plan is only to go after low level guys. He must then think that this is going to lead higher and higher. Otherwise there wouldn't be any conflict about this at all. It would be the easiest thing in the world.

Dan Klaidman: I don't know if he thinks it's going to lead higher and higher. I think he thinks that's a possibility, and they will pursue this and, you know, wherever the facts lead them. You can't...it's a fairly well established legal doctrine, that if lower level people in the government are acting on the bases of legal opinions they are being given by the Justice Department, you just can't prosecute them. You know, the Justice Department is telling them "this is legal," and if they did it based on those opinions, you know, you can try to make a case, but it would be a very difficult case to bring. It's almost an absolute defense.

Cenk Uygur: Yeah, I don't think so. But I hear what you're saying. Don't get me wrong.

Dan Klaidman: That is true.

Cenk Uygur: No, no, no. Look. It's much harder. No question about that. That's the part I absolutely agree with you on. But obviously you could. And why do I say it's obvious? Because what if John Yoo wrote a memo saying "take their head off," literally. Well, obviously, you follow that order, you're following an illegal order and we could prosecute you for that. Now, so taking their head off is illegal...I'm just using an extreme example here so that we're clear that obviously you can go after them for something. If he says, "take their fingernails out," well, that seems pretty clear too. But if he says, "dunk their head in water and drown them until they're nearly dead. But if they don't have organ failure then it's okay."  Well, that doesn't seem so unclear either. You see my point?

Dan Klaidman: Yeah.

Cenk Uygur: So, I think there's a case to be made there. And the reason why you're story is so interesting is because are they going to make that case? So let's get to how you got this story a little bit, because it's relevant to this story. You a have four sources from the Justice Department that looks to me like a coordinated leak. It looks like they're doing a trial balloon here to see if there is popular support behind it. Can you see how I would draw that conclusion?

Dan Klaidman: Yeah. Is it free to draw that conclusion? I don't believe that's the case though.

Cenk Uygur: That's interesting. Why not?

Dan Klaidman: Because I've spent three months reporting this story, and if you read the story carefully you see the evolution of the Attorney General and his staff thinking about this and it's not like, you know, at the last second they sort of whimsically said "well lets see how this flies. We'll leak it to a reporter, and on the basis of that, you know, we'll make a decision." They spent a long time looking at the record, studying the statutes, there relevant statutes, and drawing some conclusions. You know, there's no final decision here as to whether to go ahead because they just don't...the process is just not finished.

Cenk Uygur: Yeah, don't get me wrong. I would never say that it was whimsical. But it seems to me that there was something curious about them saying "we really think we're going to go in this direction but we quite haven't made up our mind yet."

Dan Klaidman: Ay, you know I had a deadline, right? You know, I had to write my story. It would have been great if I could have, you know, if I could have written the story when the decision was completely made. But, you ever work in government?

Cenk Uygur: No. Well, briefly during a summer but I wouldn't really count that.

Dan Klaidman: Well, you know, particularly a place like the Justice Department, you know they're cautious; they take a long time to make tough, tough decisions.

Cenk Uygur: So Dan, let me go to that then. Because you mentioned in the article too... it's a really interesting article. You know you can find it on Newsweek.com and we got a link of it up at theyoungturks.com. You mention that they are at least aware of politics, and that Rham Emanuel doesn't seem that thrilled about this idea. How real is that? Because some people will say, oh look they're playing a game here where Rham Emanuel and Barrack Obama appear to be against it, and they go, "oh what can we do? Holder had to do what he had to do." You know, that's one theory. The other theory is, no really, Obama doesn't want any of these prosecutions, and he's going to get pissed at Holder if he does it.

Dan Klaidman: Yeah. Well, that's a good point because you could reasonably think that the way this has emerged is actually worth plank for the White House. Because on one hand, they are widely believed to not be enthusiastic about this investigation, and that covers them on their right plank. On the other hand, their administration is likely going to do this, because there's an independent Attorney General who has made his decision, and that covers them on their left plank. And so that's not an unreasonable theory. On the other hand, you know, this President has been so consistent about his stated views anyway, that he doesn't want to look backwards. He wants to move forward. And it is also the case that an investigation like this, you know, would very quickly, I think, become contentious and politicized. And I think it's also sort of beyond doubt that the President's real priority right now is his domestic agenda...particularly the healthcare and also energy. And so I tend to think that they would rather that this not happen. On the other hand, you know, the last think they're going to do is interfere with their Attorney General and be accused of politicizing the Justice Department, because that's not going to get them anywhere.

Cenk Uygur: We're talking to Daniel Klaidman from Newsweek. He wrote "Independent's Day," this major story on Eric Holder and what he might pursue. Finally, Dan, in talking to them did you get the sense of "hey if we don't do anything here, that we might be establishing precedent?" That you can do all these things, whether it's things that are outside the memo or even the terrible things that were inside the memo, and if we don't prosecute, then we have a case that you just call a political dispute and you do anything you'd like next time you have a different president.

Dan Klaidman: Right. It's a good point. No one explicitly said that to me. But it does go to the previous thing we were talking about...the suggestion that this could be a trial balloon. They put themselves in a very tough spot. If, you know, this is out there that they're, you know, seriously thinking about seriously leaning toward doing this, and they don't. Imagine, you know, not that this is necessarily a paramount consideration for them, but once you strongly suggest that you're going to do this, and then you don't, it raises all sorts of questions. And then over time, the specific things that they were looking at leak. And then the question is, "well why didn't you investigate it?" And people start raising questions about cover-ups, and you know whatever else. So I think that you would not put this information out lightly given, you know, what the reaction would be. If they don't either investigate or lay out a very strong case for why they didn't investigate.

Cenk Uygur: Alright, Dan Klaidman from Newsweek, a really interesting piece and we really appreciate you joining us on The Young Turks.

Dan Klaidman: Sure. Any time.