Editore"s Note
Tilting at Windmills

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August 24, 2009

HOLDER TO APPOINT PROSECUTOR ON BUSH-ERA TORTURE.... We learned in July that Attorney General Eric Holder was leaning towards appointing a special prosecutor to investigate "brutal interrogation practices" from the Bush-era. Today, Holder did exactly that.

Attorney General Eric H. Holder Jr. has decided to appoint a prosecutor to examine nearly a dozen cases in which CIA interrogators and contractors may have violated anti-torture laws and other statutes when they allegedly threatened terrorism suspects, according to two sources familiar with the move.

Holder is poised to name John Durham, a career Justice Department prosecutor from Connecticut, to lead the inquiry, according to the sources, who spoke on condition of anonymity because the process is not complete.

Durham's mandate, the sources added, will be relatively narrow: to look at whether there is enough evidence to launch a full-scale criminal investigation of current and former CIA personnel who may have broken the law in their dealings with detainees. Many of the harshest CIA interrogation techniques have not been employed against terrorism suspects for four years or more.

"Narrow" mandate continues to be the key here. Based on this afternoon's reports, the probe will exclude those who wrote and followed the Bush administration's torture memos. The focus, in other words, will not be on people like Rumsfeld, Cheney, Addington, and Yoo, but rather, lower-level officials. This isn't about whether Bush-era torture memos were legal; this is about whether those who went beyond Bush-era torture memos committed crimes.

Interrogators who worked within the "four corners" of the torture memos will apparently face no scrutiny; those who worked outside of the memos have some explaining to do.

As for Durham, if his name sounds familiar, there's a good reason -- in January 2008, then-Attorney General Michael Mukasey appointed him to investigate whether CIA officials broke the law when interrogation videos of two al Qaeda suspects were destroyed. Based on his c.v., Holder seems like a credible, veteran prosecutor.

Holder's office issued a statement on today's announcement, which appears in full below.

"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."

Steve Benen 4:15 PM Permalink | Trackbacks | Comments (18)
 
Comments

In other words this investigation is guaranteed to piss off everybody and to solve nothing. The big boys skate while little guys sweat.

Posted by: Ron Byers on August 24, 2009 at 4:25 PM | PERMALINK

"Bull" Durham put a client of mine in prison 20-plus years ago. I didn't know he was still out there.

Posted by: CJColucci on August 24, 2009 at 4:26 PM | PERMALINK

Well, they CLAIM "Many of the harshest CIA interrogation techniques have not been employed against terrorism suspects for four years or more."

Who says? We don't know, because the "journalist" doesn't say.

Well, excuse me if I assume whoever is making the claim is blowing smoke out their ass.

Posted by: karen marie on August 24, 2009 at 4:29 PM | PERMALINK

"Based on his c.v., Holder seems like a credible, veteran prosecutor." I think you mean Durham, not Holder. Great, so more little fish get netted while the sharks go free. Nation of laws indeed.

Posted by: Neil Andrew on August 24, 2009 at 4:32 PM | PERMALINK

"Based on his c.v., Holder seems like a credible, veteran prosecutor." Steve, you mean Durham.

Posted by: gradysu on August 24, 2009 at 4:32 PM | PERMALINK

Until a full airing of what the special prosecutor finds regarding the illegal torture policies that monopolized the Bush/Cheney Era, our moral and political high ground will be moribund!

We are no better or worse than any third-rate polity when we choose to become what it is we contend is repugnant to our already firmly established culural identity. Originators, sanctioners, practitioners and complicit parties need to stand in the docket and take their sentences because they have crossed a line too firm to cross - they took the democratic and made it authoritarian. They took decency and turned it on its head. They took international and national law and shit on it!

For these transgressions, full and unconditional prosecution is in order. Anything short of such an outcome is dangerous folly! -Kevo

Posted by: kevo on August 24, 2009 at 4:37 PM | PERMALINK

OK, so Durham will be investigating the small fry. Fine with me, as long as we rendition the big sharks to, say, Syria, *without* any nonsense about due process. Live by the sword (or torture), etc. And I'm only half joking...

Posted by: exlibra on August 24, 2009 at 4:44 PM | PERMALINK

In case anyone is wondering, equivocation on crap like this is exactly why Obama is loosing support on the left. It's not political jujitsu. It's hypocrisy. You want to be on the moral high-ground, then you have to take the moral high-ground. Don't tell us that it's immoral to have 47 million uninsured Americans, but you won't provide a public option. Don't tell us that it's immoral to torture, but you don't want to prosecute torturers.

Molly Ivan's once said "All anyone needs to enjoy the state legislature is a strong stomach and a complete insensitivity to the needs of the people. As long as you dont think about what that peculiar body should be doing and what it actually is doing to the quality of life in Texas, then its all marvelous fun." It's disappointing that the same can now be said of the federal government with a democratic president, 60 senators in the democratic caucus, and an overwhelming number of democrats in the congress.

Posted by: Sisyphus on August 24, 2009 at 4:49 PM | PERMALINK

The Obama administration should spare us the charade and simply announce it was all Lynndie England's fault. Justice has already been served, and would the last person to leave the room please turn out the lights?

Obama has betrayed his oath to preserve and protect the Constitution no less than George W. Bush.

The law is dead. Long live presidential dictate.

Posted by: JW on August 24, 2009 at 5:07 PM | PERMALINK

As for Durham, if his name sounds familiar, there's a good reason -- in January 2008, then-Attorney General Michael Mukasey appointed him to investigate whether CIA officials broke the law when interrogation videos of two al Qaeda suspects were destroyed.

And my, that was a credible, veteran whitewash, wasn't it.

Posted by: melior on August 24, 2009 at 5:08 PM | PERMALINK

I can never remember; was it Huck Finn or Tom Sawyer who tricked people into painting the fence for him?

Posted by: doubtful on August 24, 2009 at 5:24 PM | PERMALINK

So let me get this straight.

If one of these little guys has evidence directly implicating one or more of the big guys, Holder doesn't want to know about it. No plea deals. Just prosecuting guys at the bottom, while the white collar guys collect fees as comsultants and Fucksnews media personalities. Forgive me if I don't swoon with gratitude.

Posted by: Winkandanod on August 24, 2009 at 6:20 PM | PERMALINK

Investigating CIA interrogators is going to open up a big can of worms.

Posted by: Tech on August 24, 2009 at 11:15 PM | PERMALINK

Holder is trying to criminalize mistorture.

Posted by: Ross Best on August 24, 2009 at 11:22 PM | PERMALINK

"Investigating CIA interrogators is going to open up a big can of worms".

"Worms" sounds about right. Meanwhile, the vipers will slither free.

Obama is a utter disgrace.

Posted by: ML on August 24, 2009 at 11:29 PM | PERMALINK

Hmmm, I wonder if there are any prosecutors from the Nuremberg Trials still alive and kicking who could be appointed to investigate the eight years of the Bush/Cheney administration and prosecute anyone found to have committed war crimes?

And would they fall for this Nuremberg Trials-reversal?

What I mean is, at Nuremberg top Nazi officials were held accountable and any of their underlings who carried out war crimes on orders of top Nazi officials couldn't use the defense that they were "just following orders. All were held accountable, top to bottom.

On the other hand and sixty-five years later,under this Nuremberg Trials-reversal being pushed by the Washington D.C. establishment, all Bush/Cheney officials will face absolutely no consequences or punishment for their having authorized war crimes committed by those either ordered or paid to commit these war crimes in the name of the United States of America, and the low-low-low-level underlings who were "just following orders" (in the name of the Bush/Cheney administration and weaselly legal eagles like David Addington, John Yoo and other Bush/Cheney administration criminal lawyers, and presumably all branches of our federal government), will be prosecuted to the fullest extent of the law.

Unfortunately, there probably aren't any Nuremberg Trial prosecutors still alive to make sure that justice is done and the Bush/Cheney administration war criminals are prosecuted and punished, and based on what we've seen so far from the Obama administration, President Obama (the Constitutional Scholar President) wouldn't appoint one anyway. Sigh.

Posted by: The Oracle on August 25, 2009 at 12:04 AM | PERMALINK

The closest thing you have is Senator Chris Dodd, son of Thomas J Dodd.

Go look it up...

Posted by: The Boreacle on August 25, 2009 at 6:05 AM | PERMALINK

an article about Dodd and his father from 2007. It contains some revelatory passages.

In the book's opening pages, which puts Nuremberg in the context of today, the Connecticut senator recalls how the patriotism of former Georgia Sen. Max Cleland was questioned by the White House because the Democratic lawmaker opposed a provision in the bill creating the Homeland Security Department in 2002.

Cleland, a triple amputee Vietnam War veteran, lost his Senate seat that year.

``I had no doubt that if we, as a group, had the audacity to take a firm stance against the commander in chief on the interrogation issue we'd get the same treatment,'' Dodd writes.

Chastened Democrats backed a GOP compromise that ``seemed to favor a reasonable plan for treatment of prisoners and retain elements of habeus corpus,'' Dodd writes.

But the compromise didn't withstand Bush's review, and the final legislation allowed the president to define U.S. commitments under the Geneva conventions.

`` ... We had been played,'' Dodd writes. ``In agreeing to all this, Congress has shirked its oversight responsibilities.''

Dodd's conscience took another blow when he agreed to drop plans to block the bill via filibuster.

``The filibuster might have worked,'' Dodd writes, ``Dropping it, I decided, would be my last compromise on the issue.''

With the bill poised to pass into law, Dodd voted against it after delivering a floor speech in which he quoted Justice Robert Jackson at Nuremberg: ``We must never forget that the record on which we judge these defendants today is the record on which history will judge us tomorrow. To pass these defendants a poisoned chalice is to put it to our lips as well.''

Dodd now seems to wonder whether he dampened his lips on a poisoned chalice by not fighting harder against the Bush administration in the face of fears raised by Cleland's demise.

``That element (fear) was part of the rational why people were so gun-shy in '06,'' Dodd told The Associated Press in an interview about the book. The Supreme Court will hear challenges to the new law this term.

I wrote at the time:

"It's rather sad that Dodd admits the Democratic leadership are more concerned with losing their sinecure seats than with upholding the standards and principles that made America the home of liberty - but it isn't new news. As for the GOP, they sold their freedom-loving souls in return for political power built on fearmongering a long time ago. It would be nice if the next U.S. president would be someone we could trust to roll back all this unjust trampling on the rule of law - especially from the point of view of the rest of us on this planet who must live with the biggest kid on the block no matter how he throws his weight around - but I won't be holding my breath."

I'm still not.

Regards, Steve @ Newshoggers

Posted by: Steve Hynd on August 25, 2009 at 12:15 PM | PERMALINK
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