In a truly shocking development being treated as major news, seven former CIA Directors -- including all three who served under George W. Bush -- jointly concluded that the CIA should not be criminally investigated for torture deaths, and they have written a letter to President Obama (.pdf) expressing that view. Do leaders of organizations in general ever believe that their organizations and its members should be criminally investigated and possibly prosecuted for acts carried out on behalf of that organization, and do CIA Directors specifically ever believe that about the CIA? Has a CIA Director ever advocated that CIA agents be criminally investigated for illegal intelligence activities?
But what's most notable about this letter is that it is not addressed to the individual charged with making decisions about whether an individual should be prosecuted: namely, the Attorney General of the U.S. Instead, it is addressed to the President himself, and they "urge [him] to exercise [his] authority to reverse Attorney General's August 24 decision to re-open the criminal investigation of CIA interrogations." What so-called "authority" are they talking about?
The way our criminal justice system works is that the President has the authority to set generalized policy priorities for the DOJ (e.g., spend more resources on drug and terrorism offenses but less on pornography and gambling), but decisions about whether specific individuals will or will not be prosecuted are supposed to be immunized entirely from White House influence, and are the province of independent Justice Department prosecutors (led by the Attorney General). That's what it means to have an apoliticized justice system: the President doesn't order specific people to be prosecuted or shielded from prosecution. Only Justice Department officials, assessing purely legal factors, make those determinations.
In fact, the entire U.S. Attorneys scandal was grounded in exactly this concern: that Karl Rove and the Bush White House were directing that certain prosecutors be fired either for criminally investigating specific Republicans or refusing to prosecute specific Democrats. Decisions about specific prosecutions aren't for the White House to make. No DOJ official with the most minimal integrity would allow the President to block specific criminal investigations as these CIA Directors urge.
Richard Nixon tried that and it led to the Saturday Night Massacre, when he ordered his Attorney General and (when the AG refused) Deputy Attorney General to fire Archibald Cox, the Watergate Special Prosector, after Cox had refused to accept White House limitations on his investigation. Both the Attorney General and Deputy Attorney General resigned rather than let Nixon interfere with their independence in making decisions about prosecutions. Similarly, it has been reported that public decrees earlier this year from White House political advisers (led by Rahm Emanuel) that there would be no CIA torture investigations infuriated DOJ officials because that's not the White House's decision to make. It was the DOJ's anger over this Emanuel-led usurpation of its responsibilities that led Obama to make publicly clear that decisions about prosecutions are the DOJ's to make, not his.
What these CIA Directors are urging would be completely improper. In fact, one could plausibly argue that where (as here) the DOJ determines that serious crimes might have been committed and an investigation needed, it would constitute obstruction of justice for the President to intervene by quashing any possibility of prosecution. As former aide to Condoleezza Rice, Philip Zelikow, put it in April of this year: "I really don't think the President should have opinions on who should or should not be prosecuted -- full stop."
But we have a political culture which believes, literally, that the CIA must operate above and beyond the law (recall Joe Klein's argument against torture prosecutions: CIA agents "behave extra-legally for the greater good of the nation"). Even though the American people have enacted numerous laws through their Congress which explicitly criminalize certain behavior on the part of the intelligence community (torture, warrantless eavesdropping, failing to brief Congress), there is a widespread belief that we can and must allow the CIA to commit crimes with impunity. The CIA's personal spokesman at The Washington Post, David Ignatius, argues outright that the CIA should not be prosecuted for crimes because we want to ensure they are willing to act illegally in the future.
The CIA is one of the leading weapons the political establishment uses to disregard the law -- to commit crimes -- when they want to, and that's the elite prerogative at stake here, one of the prime powers they are fighting to preserve by arguing against prosecutions (that, and a desperation that nobody "look backwards" at what they did). So if improper presidential interference in the prosecutorial process is how that gets accomplished, so be it. By definition, opponents of torture prosecutions are not people concerned with adhering to what the Beltway calls legal niceties (i.e., the rule of law), and so it shouldn't be surprising that they want the President to obstruct specific prosecutions that he opposes for political reasons.
What makes all of this sturm und drang over Holder's decision so remarkable is how severely limited the DOJ's investigation is. I've written before about how it is designed to ensure nothing more than Abu Ghraib justice -- at most, some isolated CIA interrogators might be investigated, but not the White House and DOJ architects of the torture regime itself. But -- apparently in response to the CIA Directors' letter -- DOJ officials ran (anonymously, of course) to The Washington Post yesterday to assure everyone that the scope of the DOJ investigation is even far more limited than previously thought:
The Justice Department's review of detainee abuse by the CIA will focus on a very small number of cases, including at least one in which an Afghan prisoner died at a secret facility, according to two sources briefed on the matter. . . .
Among the cases under review will be the death seven years ago of a young Afghan man, who was beaten and chained to a concrete floor without blankets, according to the sources. The man died in the cold night at a secret CIA facility north of Kabul, known as the Salt Pit. . . .
Although earlier reports indicated that [prosecutor John] Durham would look into 10 cases, a source said recently the number is much smaller. . . . A senior official who took part in the review confirmed that of two dozen referrals, the Salt Pit episode was one of two or three cases close to being considered for criminal indictment. . . .
Two other detainee cases were among those that drew significant law enforcement attention: the death by suffocation of Iraqi Gen. Abed Hamed Mowhoush in November 2003, after which an Army officer was convicted; and the death the same month of Manadel al-Jamadi at Abu Ghraib prison, in the custody of the CIA, where he was placed after being beaten by Navy SEALs.
The only thing Holder wants investigated -- what has provoked all of this intense Beltway uproar -- is "two or three cases" where detainees were killed. Contrary to how this has been debated, what Holder has ordered is not a "torture investigation." To the contrary, he said explicitly that those who tortured in good faith compliance with Yoo's torture memos will be immunized. It isn't torture techniques which are being considered for prosecution. All Holder has ordered are basically just garden-variety murder investigations, where two or three helpless detainees were sadistically beaten to death or suffocated while in American custody. At least according to the DOJ sources who ran to the Post yesterday in light of the CIA Directors' letter: that's all that's being investigated.
But even that is too much for our political class. Apparently, not only should executive branch officials and their agencies be allowed to institute a torture regime, spy on Americans illegally, and commit war crimes , but they should also be allowed literally to get away with murder. After all, if they aren't allowed to do that, they'll be deterred from doing it again in the future -- if they're investigated, they might feel compelled to think about "the law" as a limit on what they can do -- and we wouldn't want that.
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An email problem yesterday entirely of my own making resulted in my not receiving any emails sent to me over the last 24 hours, so if you sent one to me during that period, please re-send it if you want me to see it.
UPDATE: In other breaking news, Erik Prince announces that he believes criminal prosecutions of Blackwater are unwarranted; Wall Street CEOs -- past and present -- conclude that an investigation of fraud and abuse among investment banks would serve no real purpose; Alberto Gonzales reveals his opposition to any proceedings against DOJ lawyers who acted in bad faith; police unions announce that the problem of brutality is overstated and there's no need for added oversight; medical doctors agree that malpractice lawsuits need to be limited; and a poll of felons currently in prison reveal that 99% of them believe that the country would have been better off if it had just let bygones be bygones and decided not to proceed with prosecutions in their particular case.