Glenn Greenwald needs a neck brace, and I can't say I blame him. First the news seems to be that the attorney general really is going to appoint a special prosecutor to investigate the illegal Bush-Cheney torture program; then it appears that it's going to be restricted solely to abuses on top of the baseline torture techniques approved by Yoo and Cheney. I agree with Glenn and Tim F. that the latter would be worse than nothing at all. A further round of scapegoating in order to protect the real architects of the program would be deeply damaging to the rule of law and the line of command. It would implicitly bless the torture that it did not prosecute. And as Cheney conceded, these were presidential-level decisions on presidential policy grounds. You don't take the United States into the ranks of countries that torture prisoners at the behest of a low-level functionary or an excessively aggressive torturer. Someone higher up ordered these barbaric practices that were found systematically in identical fashion across every theater of combat. The investigation into legal responsibility for the commission of these crimes as defined in international and domestic law should go wherever the evidence leads - as far up the line of command as it goes. That's what the Department of Justice means. And justice is not subject to Rahm Emanuel's politicking.
In the days after Obama’s speech at the CIA, both Axelrod and Emanuel insisted that the White House had made the decision that there would be no prosecutions. According to reliable sources, that incensed Holder, who felt that the remarks had compromised the integrity both of the White House and Justice Department by suggesting that political advisers made the call on who would or would not be criminally investigated. After Axelrod and Emanuel made their statements, Holder realized, a source said, that the Justice Department might have to appoint a special prosecutor to uphold its reputation for independence.
Observers caution that even if a special prosecutor is appointed, actual indictments would still be far off. The Bush torture policy was implemented with the advice of lawyers well skilled in the ways of Washington bureaucracy. Any prosecutor would face considerable legal obstacles in bringing charges. A review of the torture memoranda themselves shows that a consuming concern was thwarting the possible bringing of charges by a future prosecutor. Now, perhaps, the defenses they devised may be put to the test.
The attorney general is leaning toward appointing a special prosecutor to investigate Bush-era torture policy, sources tell Scott Horton. Inside the logic driving Eric Holder’s possible conversion.
by Scott Horton Back to TopJuly 12, 2009 | 9:22am
The Obama White House has deflected calls for appointment of a special prosecutor to investigate the formulation and implementation of Bush-era torture policies with an argument that they want to “look forward, not backward.” But Justice Department lawyers took careful note of a different statement President Obama made yesterday in Ghana: “You have the power to hold your leaders accountable.” Now two sources in the Justice Department confirm to me that Holder is preparing to appoint a special prosecutor to conduct a comprehensive investigation and, if necessary, bring charges. They caution that the final call has not been made. And senior Justice Department officials remain concerned that meddling by the White House’s political wing would undermine the appearance of the Justice Department’s independence.
Holder’s path to a decision was described as prolonged and surprising. Holder began his review mindful of the clear preference of President Obama’s two key political advisers—David Axelrod and Rahm Emanuel—that there be no investigation. Axelrod and Emanuel are described as uninterested in either the legal or policy merits of the issue of a criminal investigation. Their concerns turn entirely on their political analysis. They have advised Obama and other senior figures in the administration that the torture issue is a “distraction,” and that any attention on it would detract from Obama’s ability to push through his agenda—especially health-care reform. Holder initially appeared prepared to satisfy their wishes.
But, then, Holder decided to take a close, personal look at the issues, and his perspective began to change. Holder is said to have been closely engaged with three sets of documents—a group of memoranda from the Bush-era Office of Legal Counsel, since repudiated by the Justice Department; the report of the Office of Professional Responsibility on these memoranda, which has been on his desk, awaiting review and release for months; and the report of the CIA’s inspector general reviewing in great detail the actual techniques used, guidance given by the Justice Department, and results or lack of results obtained.
Holder released the first set of memoranda and his Justice Department publicly suggested that it would release both the related report and the CIA inspector general’s report—often viewed as the Rosetta Stone of the torture controversy. As he read through the latter two documents, my sources said, Holder came to realize the focal and instrumental role that Department of Justice lawyers had played in constructing the torture regime and in pushing it through when career lawyers raised objection. He also took note of how the entire process was orchestrated from within the Bush White House—so that more-senior lawyers in Justice, sometimes even the attorney general, did not know what was being done. And he noted the fact that the United Nations Convention Against Torture, to which the United States is a party, requires that a criminal inquiry be undertaken whenever credible allegations of torture are presented.
It’s important to re-emphasize that no final decision has been taken. Moreover, with hearings set to commence on the nomination to the Supreme Court of Sonia Sotomayor on Monday, administration officials are eager to keep speculation about the appointment of a special prosecutor out of the press. “This is waving a red flag in front of the Republicans,” one notes.
Holder had contemplated finalizing his decision in connection with the release of the Office of Professional Responsibility report. While The New York Times previously reported that the report recommended against criminal action against the lawyers involved in preparing the torture memoranda, a Justice Department official cautioned me that this was misleading: “No criminal investigation was conducted. OPR looked only at issues of legal ethics. A recommendation as to criminal charges would come only following an appropriate investigation, which has not yet occurred, and whether it occurs will be up to the attorney general.”
The exact parameters of a special prosecutor’s potential authority remain unclear, as does the name of who might be chosen. Reports suggesting illegal conduct during the Bush years have proliferated and now include well-substantiated allegations of warrantless surveillance, which the Holder Justice Department has struggled to uphold as lawful in the face of increasingly incredulous courts. On Friday, a joint report by the inspectors general of the Defense Department, Justice Department, CIA, National Security Agency and intelligence community revealed that the Bush-era warrantless-surveillance programs were vastly greater in scope than previously disclosed. Director Leon Panetta is reported to have disclosed to Congress that his predecessors had operated a highly secretive program which was not briefed to Congress, in apparent violation of the National Security Act of 1947. The New York Times has also just reported that Congress was not briefed because of orders issued directly by Vice President Dick Cheney. Each of these matters could provide the basis for a special criminal investigation.
For now, however, it appears that Holder’s current decision focuses only on the development of new interrogation techniques and their use at the direction of the Bush administration. Under these terms, the prosecutor would be tasked to look at the role played by Justice Department figures and other government lawyers at various stages of the process; but criminal investigations usually target specific crimes, not individuals, and this would be no exception. The regulations require a "specific factual statement” concerning the matter to be investigated, but drafting such a statement may be difficult. One major issue would be whether the ultimate policy-making echelons in the White House would be affected. One source told me that he would be surprised if Holder “set blinders” on the special prosecutor. Still, the scope of the investigation would clearly be limited to the authorization and use of Bush-era “enhanced interrogation techniques” such as waterboarding, longtime standing, stress positions, and prolonged sleep deprivation. Moreover, President Obama’s assurance to CIA officials who relied on the opinions of government lawyers in implementing these programs, an assurance that Holder himself repeated, would have to be worked in. That suggests that the focus would likely be on the lawyers and policymakers who authorized use of the new techniques.
Department of Justice guidelines give the attorney general broad latitude in picking a special prosecutor. One option would be for Holder simply to expand the brief of John Durham, the existing special prosecutor appointed by former Attorney General Michael B. Mukasey, to investigate the destruction of torture tapes by the CIA. Durham, an assistant U.S. Attorney from Connecticut, is highly regarded, but also lacks the stature desired for a broader and more politically sensitive torture probe. That position would be more likely to go to a person comparable to the attorney general himself. In theory, Holder could assign the matter to a U.S. Attorney, or he could tap a government outsider with an established reputation for integrity and strong prosecutorial credentials (a former U.S. Attorney, retired judge, or former FBI director, for instance). In his appointment, he would be free to define the special prosecutor’s power to act independently of his office. In appointing Patrick Fitzgerald as special prosecutor for the Valerie Plame matter, for instance, Deputy Attorney General James Comey gave Fitzgerald full discretion to bring charges and proceed to prosecute cases without the need to secure the approval of the attorney general—a significant precedent, likely to be followed in this case.
A major consideration for Holder, my sources told me, was the Justice Department reputation for independence—badly tarnished during the Bush administration and perhaps set to face further embarrassments as the U.S. attorneys scandal probes—by Congress and by a special prosecutor—finish up.
In the days after Obama’s speech at the CIA, both Axelrod and Emanuel insisted that the White House had made the decision that there would be no prosecutions. According to reliable sources, that incensed Holder, who felt that the remarks had compromised the integrity both of the White House and Justice Department by suggesting that political advisers made the call on who would or would not be criminally investigated. After Axelrod and Emanuel made their statements, Holder realized, a source said, that the Justice Department might have to appoint a special prosecutor to uphold its reputation for independence.
Observers caution that even if a special prosecutor is appointed, actual indictments would still be far off. The Bush torture policy was implemented with the advice of lawyers well skilled in the ways of Washington bureaucracy. Any prosecutor would face considerable legal obstacles in bringing charges. A review of the torture memoranda themselves shows that a consuming concern was thwarting the possible bringing of charges by a future prosecutor. Now, perhaps, the defenses they devised may be put to the test.
Scott Horton is a law professor and writer on legal and national-security affairs for Harper's Magazine and The American Lawyer, among other publications.
The Holder trial balloon: Abu Ghraib redux (updated below - Update II - Update III)
Glenn Greenwald Sunday July 12, 2009 08:13 EDT
Yesterday, I treated this new Newsweek report [ http://www.newsweek.com/id/206300/ (2 posts back at http://investorshub.advfn.com/boards/read_msg.aspx?message_id=39472819 )] that Eric Holder is "leaning toward appointing a prosecutor to investigate the Bush administration's brutal interrogation practices" as something to celebrate. But new facts about what that investigation would entail and, more importantly, would exclude -- facts added by today's Washington Post [ http://www.washingtonpost.com/wp-dyn/content/article/2009/07/11/AR2009071102787.html ] -- strongly suggest it's the opposite. At least if that article is to be believed -- and it seems clear that Holder dispatched his allies to leak his plans in order to gauge reaction -- the investigation will only target "rogue" CIA interrogators who exceeded the limits of what John Yoo authorized, and would not include high-level policy makers who authorized the torture tactics and implemented America's torture regime:
Any criminal inquiry could face challenges, including potent legal defenses by CIA employees who could argue that attorneys in the Bush Justice Department authorized a wide range of harsh conduct. But the sources said an inquiry would apply only to activities by interrogators, working in bad faith, that fell outside the "four corners" of the legal memos. . . . The actions of higher-level Bush policymakers are not under consideration for possible investigation.
Balloon-Juice's Tim F. is absolutely right [ http://www.balloon-juice.com/?p=23949 ] 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.
It's worth emphasizing here that all of these reports are preliminary and from anonymous DOJ sources, so it's a bit premature to get too worked up over a prosecution approach which Holder hasn't even announced yet. Still, given how many DOJ sources went to multiple newspapers at the same time to disclose Holder's plans, it seems clear that this was a coordinated, approved effort to disseminate Holder's intentions as a "trial balloon" to gauge public reaction. If this is the approach Holder takes -- one that, yet again, shields high-level Bush officials while targeting low-level "rogue" agents -- one can make a strong argument that it is worse than doing nothing, that this will actually further subvert the rule of law rather than strengthen it.
If it is the case that the president can designate an Office of Legal Counsel functionary to immunize government officials and employees against criminal behavior, then it is true, to all intents and purposes, that "if the president does it it's not illegal."
One could make the argument that the political fallout would be so huge if it were ever revealed that no president would ever attempt it, but we are proving right now that this is a very remote possibility. Ever since Nixon, the political class has reaffirmed the idea that anything the president does as a political leader or in his official capacity is unpunishable. And more recently we've seen that anyone who carries out his orders is also immune, which wasn't always the case. Nixon's people did do time.
If that was the intention of the revolutionaries who broke away from despotic monarchical rule, they could have saved themselves a lot of trouble. At this point, both political parties agree that if the president has a low level lawyer in the Justice Department write a secret memo authorizing him to break the law then all those who broke those laws are legally immunized from any punishment . . . .
All other things being equal, individual CIA agents who brutalized detainees, using unapproved methods, ought to be prosecuted. If nothing else, our treaty obligations compel that [ http://www.salon.com/opinion/greenwald/2009/01/18/prosecutions/ ]. Even for a country that has rejected the idea of accountability as resoundingly as we have, it seems inconceivable to decide to prosecute nobody in the face of scores of detainee deaths [ http://www.salon.com/opinion/greenwald/2009/06/30/accountability/index.html ]. How can we know that we tortured to death numerous detainees and do nothing? If you were Eric Holder, would you want that decision attached to your name by history?
I'd give up all hope of any prosecutions of CIA officials for prosecution of the people who set policy -- people like Cheney and Addington. They created the Bush administration's interrogation policy. They decided to set aside law, morality, and basic humanity. They should bear the consequences.
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.
As he read through the latter two documents, my sources said, Holder came to realize the focal and instrumental role that Department of Justice lawyers had played in constructing the torture regime and in pushing it through when career lawyers raised objection. He also took note of how the entire process was orchestrated from within the Bush White House—so that more-senior lawyers in Justice, sometimes even the attorney general, did not know what was being done. And he noted the fact that the United Nations Convention Against Torture, to which the United States is a party, requires that a criminal inquiry be undertaken whenever credible allegations of torture are presented. . . .
For now, however, it appears that Holder’s current decision focuses only on the development of new interrogation techniques and their use at the direction of the Bush administration. Under these terms, the prosecutor would be tasked to look at the role played by Justice Department figures and other government lawyers at various stages of the process; but criminal investigations usually target specific crimes, not individuals, and this would be no exception. The regulations require a "specific factual statement” concerning the matter to be investigated, but drafting such a statement may be difficult. One major issue would be whether the ultimate policy-making echelons in the White House would be affected. One source told me that he would be surprised if Holder “set blinders” on the special prosecutor. Still, the scope of the investigation would clearly be limited to the authorization and use of Bush-era “enhanced interrogation techniques” such as waterboarding, longtime standing, stress positions, and prolonged sleep deprivation. Moreover, President Obama’s assurance to CIA officials who relied on the opinions of government lawyers in implementing these programs, an assurance that Holder himself repeated, would have to be worked in. That suggests that the focus would likely be on the lawyers and policymakers who authorized use of the new techniques.
That is virtually the opposite of the reports today suggesting that the DOJ lawyers and policymakers would be excluded from the investigation, which would focus only on rogue interrogators. That's why I cautioned that these preliminary, anonymous reports not be assumed to be the final truth (and the conflicting reports could reflect that the scope of the investigation is still unclear and could be shaped by public reaction). Still, given our political culture, I'll believe that there is a real criminal investigation underway that includes high-level, lawbreaking political leaders only when I see it.
*
UPDATE II: The New York Times article [ http://www.nytimes.com/2009/07/12/us/politics/12justice.html ] on this topic is in line with the Post that the investigation Holder is contemplating would be confined to "rogue" interrogators, and would not extend to policy-makers or DOJ lawyers:
The Justice Department official who confirmed the likelihood of an inquiry said it was not likely to focus on those legal opinions, the lawyers who wrote them or anyone who acted within the boundaries they set, even though the ground rules for interrogations have shifted.
If an inquiry moves forward, it will attempt mainly to determine whether any interrogators acted outside the rules that were in place, and if so, whether they should be prosecuted. Some such excesses are thought to have occurred.
It should go without saying that I have no sympathy for CIA agents who tortured detainees, but prosecutions aimed at them, while immunizing the high-level officials who implemented the torture regime, would be -- in addition to the harms described above -- grotesquely unfair.
Stephanopoulos reported on This Week that the possible Holder investigation is going to be very narrow and will not pursue policy makers or anyone who took orders directly from the policymakers. He's going after "rogue interrogators" who inflicted more torture than was strictly allowed.
So it seems to be a consensus (i.e., most everyone reporting it other than Scott Horton) that Holder's plan, at least at the moment, is -- from the start -- to confine the prosecutors' authority to investigate to CIA agents who went beyond what John Yoo and George Bush decreed could be done ("he used more water than Yoo said he could"; "he tied him up for longer than Yoo authorized"; "the room was colder and the freezing water icier than Yoo allowed"). At least if these reports are accurate (and, for several reasons, that's unclear), anyone who "merely" did what John Yoo said was legal -- meaning everyone who matters -- will be shielded and immunized.
Digby's description of how Stephanopoulos' fresh and vibrant panel -- Cokie Roberts, Sam Donaldson, Bob Woodward, George Will and Donna Brazile -- discussed the Holder report is well worth reading [ http://digbysblog.blogspot.com/2009/07/mites-of-roundtable-by-digby.html ], as it reflects how establishment media figures view accountability for lawbreaking by political elites. That's a major reason why we have such a depraved and lawless political class.
Along those lines, CNN's Ed Henry today twittered [ http://twitter.com/edhenrycnn/status/2602311191 ] this piece of banal Beltway conventional wisdom on the topic: "If Attorney General Holder launches criminal probe of Bush torture allegations, it seems likely to complicate Obama agenda big time." Aside from the irrelevance of this observation -- partisan advantage is obviously not a legitimate basis for making prosecutorial decisions in an apoliticized justice system (that was supposedly the whole lesson of the Gonzales era) -- I'd really like to know the mechanism by which this is supposed to happen. How -- exactly -- would Holder's decision to prosecute torture "complicate Obama's agenda big time"? With a filibuster-proof Senate majority, a huge Democratic House majority, and a GOP that is always angry and obstructionist anyway, what -- specifically -- will happen in the event of those prosecutions that won't happen in their absence that will "complicate Obama's agenda big time"?
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