Attorney General Eric Holder today confirmed what has been suspected for many weeks: he has ordered what he calls "a preliminary review into whether federal laws were violated in connection with the interrogation of specific detainees at overseas locations." Holder's decision does not amount to the appointment of a Special Prosecutor, since a preliminary review is used, as he emphasized, "to gather information to determine whether there is sufficient predication to warrant a full investigation of a matter." More important, the scope of the "review" is limited at the outset to those who failed to "act in good faith and within the scope of legal guidance" -- meaning only those interrogators and other officials who exceeded the torture limits which John Yoo and Jay Bybee approved. Those who, with good faith, tortured within the limits of the OLC memos will "be protected from legal jeopardy" (the full Holder statement is here).
In theory, Holder's announcement does not foreclose the possibility that DOJ lawyers who authored the torture memos and/or those in the White House who authorized torture will, at some point, be investigated. Strictly speaking, Holder's announced "review" concerns only those in the intelligence community who conducted interrogations. And by extending immunity only to those who both (a) acted "within the scope of the [OLC] legal guidelines" and (b) "acted in good faith," it's theoretically possible that there is some class of persons who could fall outside the scope of immunity even though they technically complied with the OLC memos: i.e. high-level White House officials and/or DOJ lawyers who had reason to believe that the conduct authorized by the memos was illegal, meaning those who wrote or requested those memos with the deliberate intent to obtain cover for what they knew was criminal behavior. In other words, there are those who complied with the memos, but in bad faith, and are thus are outside the bounds of immunity Holder today defined and ineligible for this immunity. But that's just theory.
As a practical matter, Holder is consciously establishing as the legal baseline -- he's vesting with sterling legal authority -- those warped, torture-justifying DOJ memos. Worse, his pledge of immunity today for those who complied with those memos went beyond mere interrogators and includes everyone, policymakers and lawyers alike: "the Department of Justice will not prosecute anyone who acted in good faith and within the scope of the legal guidance given by the Office of Legal Counsel regarding the interrogation of detainees." Thus, as long as, say, a White House official shows that (a) the only torture methods they ordered were approved by the OLC and (b) they did not know those methods were criminal, then they would be entitled to full-scale immunity under the standard Holder announced today.
This quite likely sets up, at most, a process where a few low-level sacrificial lambs -- some extra-sadistic intelligence versions of Lynndie Englands -- might be investigated and prosecuted where they tortured people the wrong way. Those who tortured "the right way" -- meaning the way the OLC directed -- will receive full-scale immunity. My view of all of this hasn't changed since it was first reported that Holder would likely take this approach:
Balloon-Juice's Tim F. is absolutely right that such an approach -- targeting low-level interrogators while shielding high-level policy-makers from prosecution -- would be "something close to the worst of both worlds." That's true not only because it would replicate the disgraceful whitewashing of the Abu Ghraib prosecutions. It would do that, but even worse, it would bolster the principal instrument of executive lawlessness -- the Beltway orthodoxy that any time a President can find a low-level DOJ functionary to authorize what he wants to do, then it is, by definition, "legal" and he's immune from prosecution when he does it, no matter how blatantly criminal it is. As Tim put it:
Hard to believe as it may seem, Holder’s probe will take John Yoo’s work . . . and treat them as the settled law of the time. Already clear and public evidence that DOJ lawyers drafted those memos entirely in bad faith, on orders from Bush officials who literally dictated what they wanted the memos to say, will be similarly ignored.
But just as was true for the Abu Ghraib abuses, many of the worst instances of detainee abuse cannot be extricated from -- but rather are directly attributable to -- the torture policies authorized at the highest levels of the government. To target low-level interrogators while shielding high-level policy makers would further bolster America's two-tiered system of justice, in which ordinary Americans are subjected to merciless punishment while the most powerful elites are vested with virtual immunity from the consequences of their lawbreaking. . . .
Prosecuting only obscure "rogue" interrogators while immunizing powerful, high-level officials would not be an act of courage but of cowardice. It would not strengthen the rule of law but would pervert it further. And rather than deter future lawbreaking, it would signal -- yet again -- that our most powerful political officials are free to break the law with impunity. If Holder is too frightened to include the parties truly responsible for America's torture regime in the scope of the investigation he orders, then he ought simply to appoint a strong and independent prosecutor with the mandate to investigate anyone and everyone who might have broken our nation's torture laws, and leave it to the prosecutor to make all decisions without interference (and if a well-regarded prosecutor decided based on standard factors of prosecutorial discretion, rather than as a matter of pre-ordained DOJ "fairness" policy, that the DOJ memos made prosecution too difficult as a practical matter, then so be it). But whatever else is true, the tactics authorized by George Bush and Dick Cheney were patently criminal regardless of how many memos they directed John Yoo to write.
Sen. Ron Wyden of Oregon, reacting to Holder's decision today, made the same point:
I do, however, want to avoid a repeat of the Abu Ghraib experience in which lower-ranking troops who committed abuses were hung out to dry, while the senior officials who bore clear responsibility for the situation got off scot-free. In my mind, it would be wrong to focus solely on punishing individuals who went beyond the Bush Administration’s guidance and committed unauthorized abuses, without looking at the senior officials who created an environment in which torture was viewed as not only permissible but necessary. Those who deliberately created an environment in which "anything goes" have no right to be surprised if low level operators exceeded the guidance they were given, and I believe that it is important to hold these senior officials accountable.
A repeat of the Abu Ghraib experience is exactly what it seems Holder intends. Making matters worse still is a new story today from The New York Times that a still-unreleased report from The DOJ's Office of Professional Responsibility (OPR) recommended that Holder re-visit prior decisions of the Bush DOJ not to prosecute individual detainee abuse cases, including ones that resulted in the murder of the detainee. Why is that significant? Because the role of the OPR is to assess whether DOJ lawyers acted ethically, and their conclusion that those decisions not to prosecute should be re-visited means they believe there was some form of lawyer misconduct involved in those decisions. In other words, the Bush DOJ participated in a whitewash of torture -- including cases involving homicide -- that was so transparent that it rose to the level of attorney ethical misconduct. The Bush DOJ was rife at its core with corruption and an eagerness to justify criminal conduct by administration officials. Justifying criminal conduct by Bush officials was a core purpose of the Bush DOJ.
Yet that is the same Bush DOJ which Eric Holder will allow to distort our torture laws by granting their twisted reasoning the force of law. Worse still, Holder -- almost certainly in violation of our treaty obligations that compel prosecution for torturers and bar its legalization (obligations which the U.S. Constitution deems to be the "supreme law" of the U.S.) -- will establish the dangerous "principle" that high-level political officials are free to break the law, and are even free to torture, provided they first obtain a permission slip from a low-level DOJ functionary. If, as appears to be the case, this will be the full extent of Holder's torture investigations, then it is hard to argue with the statement of Human Rights Watch Director Tom Malinowski that "an investigation that focuses only on low-ranking operators would be, I think, worse than doing nothing at all."
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Today is a busy day for civil liberties and legal issues. In addition to Holder's announcement:
(1) the CIA today was compelled to release -- yet again compelled not by Congress or the media, but by the ACLU -- its 2004 Inspector General's Report (.pdf - link fixed) detailing some of the torture excesses that Holder today cited; I'll have commentary on that shortly;
(2) mild credit to the Obama administration for deciding to release and return to Afghanistan, rather than charge with a crime, Mohamed Jawad, whom a federal judge recently ruled must be released due to lack of evidence and was possibly as young as 12 years old when he was put in a cage at Guantanamo in 2002 and held there for the next 7 years with no trial;
(3) as was previously anticipated, the Obama administration will continue the Bush policy of "rendition" -- abducting people from around the world and shipping them off to third-party countries for interrogation -- but will allegedly increase efforts to ensure the abductees aren't tortured in the country to which they're rendered; I'll have more to say about that shortly as well; and,
(4) notably, Holder did not release today, but instead continues to conceal, the OPR Report which, it has long been reported, concluded that the DOJ lawyers who authored the torture memos (at least John Yoo and Jay Bybee) violated their ethical duties by producing legally fallacious conclusions -- i.e., they issued those memos in bad faith. Withholding that OPR Report today is critical because it focuses attention on the flamboyant sideshow of the more extreme cases of CIA abuse, while obscuring the fact that it was high-level DOJ lawyers who, in bad faith, authorized a knowingly criminal torture regime. Marcy Wheeler made this point perfectly yesterday:
If it is, indeed, DOJ's plan to release all the other torture documents save the OPR report, it will have the effect of distracting the media with horrible descriptions of threats with power drills and waterboarding, away from the equally horrible description of lawyers willfully twisting the law to "authorize" some of those actions. It will shift focus away from those that set up a regime of torture and towards those who free-lanced within that regime in spectacularly horrible ways. It will hide the degree to which torture was a conscious plan, and the degree to which the oral authorizations for torture may well have authorized some of what we'll see in the IG Report tomorrow.
If it is, indeed, DOJ's plan to release the IG Report and announce an investigation without, at the same time, releasing the OPR report, it will serve the goal of exposing the Lynndie England's of the torture regime while still protecting those who instituted that regime.
Precisely. The fact that those DOJ memos were created with everything except "good faith" guts the argument for using them as a shield of immunity for high-level Bush officials. To continue to conceal the OPR Report is to conceal how invalid were those memos and how warped it is to use them as guidance for who should and should not be prosecuted.
STATEMENT OF ATTORNEY GENERAL ERIC HOLDER REGARDING A PRELIMINARY REVIEW INTO THE INTERROGATION OF CERTAIN DETAINEES
“The Office of Professional Responsibility has now submitted to me its report regarding the Office of Legal Counsel memoranda related to so-called enhanced interrogation techniques. I hope to be able to make as much of that report available as possible after it undergoes a declassification review and other steps. Among other findings, the report recommends that the Department reexamine previous decisions to decline prosecution in several cases related to the interrogation of certain detainees.
“I have reviewed the OPR report in depth. Moreover, I have closely examined the full, still-classified version of the 2004 CIA Inspector General’s report, as well as other relevant information available to the Department. As a result of my analysis of all of this material, I have concluded that the information known to me warrants opening a preliminary review into whether federal laws were violated in connection with the interrogation of specific detainees at overseas locations. The Department regularly uses preliminary reviews to gather information to determine whether there is sufficient predication to warrant a full investigation of a matter. I want to emphasize that neither the opening of a preliminary review nor, if evidence warrants it, the commencement of a full investigation, means that charges will necessarily follow.
“Assistant United States Attorney John Durham was appointed in 2008 by then-Attorney General Michael Mukasey to investigate the destruction of CIA videotapes of detainee interrogations. During the course of that investigation, Mr. Durham has gained great familiarity with much of the information that is relevant to the matter at hand. Accordingly, I have decided to expand his mandate to encompass this related review. Mr. Durham, who is a career prosecutor with the Department of Justice and who has assembled a strong investigative team of experienced professionals, will recommend to me whether there is sufficient predication for a full investigation into whether the law was violated in connection with the interrogation of certain detainees.
“There are those who will use my decision to open a preliminary review as a means of broadly criticizing the work of our nation’s intelligence community. I could not disagree more with that view. The men and women in our intelligence community perform an incredibly important service to our nation, and they often do so under difficult and dangerous circumstances. They deserve our respect and gratitude for the work they do. Further, they need to be protected from legal jeopardy when they act in good faith and within the scope of legal guidance. That is why I have made it clear in the past that the Department of Justice will not prosecute anyone who acted in good faith and within the scope of the legal guidance given by the Office of Legal Counsel regarding the interrogation of detainees. I want to reiterate that point today, and to underscore the fact that this preliminary review will not focus on those individuals.
“I share the President’s conviction that as a nation, we must, to the extent possible, look forward and not backward when it comes to issues such as these. While this Department will follow its obligation to take this preliminary step to examine possible violations of law, we will not allow our important work of keeping the American people safe to be sidetracked.
“I fully realize that my decision to commence this preliminary review will be controversial. As Attorney General, my duty is to examine the facts and to follow the law. In this case, given all of the information currently available, it is clear to me that this review is the only responsible course of action for me to take.”
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