Along with the release today of extremely damaging CIA documents related to the Bush torture regime, attorney general Holder has announced appointment of a special prosecutor to narrowly investigate torture.
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.
The attorney general selected Durham in part because the longtime prosecutor is familiar with the CIA and its past interrogation regime. For nearly two years, Durham has been probing whether laws against obstruction or false statements were violated in connection with the 2005 destruction of CIA videotapes. The tapes allegedly depicted brutal scenes including waterboarding of some of the agency's high value detainees. That inquiry is proceeding before a grand jury in Alexandria, although lawyers following the investigation have cast doubt on whether it will result in any criminal charges.
Word of Holder's decision comes on the same day that the Obama administration will issue a 2004 report by the then-CIA Inspector General. Among other things, the IG questioned the effectiveness of harsh interrogation tactics that included simulated drowning and wall slamming. A federal judge in New York forced the administration to release the secret report after a lawsuit from the American Civil Liberties Union.
This move is problematic on a number of fronts. Former chief of CIA operations in Europe Tyler Drumheller told Spencer Ackerman last week that restricting the investigation would be unfair. He's not alone.
Drumheller, a retired chief of CIA operations in Europe — who was never an interrogator — said restricting an inquiry to CIA interrogators is unfair. "What happened is a reflection of policy" at the time, Drumheller said. "None of this stuff was done in a vacuum."
It may be no surprise that a former senior CIA official doesn’t think CIA interrogators ought to fall on their swords for a torture policy concocted at the highest levels of the previous administration. Perhaps less intuitive is that Drumheller is aggressively seconded by the civil libertarian community. Civil libertarians are preparing the delicate message that Holder’s anticipated inquiry ought to go much further at a time when prominent Republican senators argue that any inquiry at all is going dangerously too far.
"Worse than doing nothing at all" was how Tom Malinowski, the Washington advocacy director of Human Rights Watch, described Holder’s possible decision to stop an inquiry at low-level interrogators in a recent Los Angeles Times interview. The pungent quote struck some in the human-rights community as too real — an authentic expression of how the community feels that but one that nevertheless left Holder, a necessary ally for any thorough torture investigation, exposed....
Malinowski said he stands by the remark, particularly as the Obama administration prepares to make a momentous choice. "There is a way [Holder] could do this in a way that could do harm, and it’s hard for me to say otherwise," Malinowski explained. "I’ll take half a loaf on almost any issue, but if this ends with a few grunts getting prosecuted, I really believe that will be worse than not going down that road."
Yet he and others in human-rights circles are prepared to give Holder room from the outset for the expected inquiry to germinate into something more systemic — provided that Holder doesn’t explicitly rule such a thing out from the outset. "The question for us is not where an investigation begins, but where it ends," said Jameel Jaffer, the head of the ACLU’s national-security project. "If the attorney general were to grant immunity to senior officials, that’s something we’d react very negatively to. But if the attorney general announces a narrower investigation but not foreclose on a broader one, we’d probably say that’s an important first step, a crucial step, and now [a prosecutor] should be given prosecutorial authority to follow the facts."
Reports out thus far don't tell us whether Holder is leaving enough room for a more systemic investigation. We don't know how much of "looking backward" he's willing to do right now.
If it remains as narrow as this initial report indicates, we'd in the long run probably be better of with a truth commission. Exposing how the torture regime was conceived, constructed, and implemented--from Cheney's office down--is in the long term more important than the prosecutions of a few personnel who ended up carrying out those policies.
Holder's statement is included below the fold.
"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."