Attorney General Eric Holder
The public now knows even more graphic details about the extent of America's torture program, but it appears that won't be making any difference in the Justice Department decision
to charge no one in the government with a crime.
The Justice Department review considered "all potentially applicable substantive criminal statutes as well as the statutes of limitations and jurisdictional provisions that govern prosecutions under those statutes," according to department documents. At the time, Durham also made clear that nobody would be prosecuted who had "acted in good faith and within the scope of the legal guidance given by the Office of Legal Counsel regarding the interrogation of detainees."
"This inquiry was extraordinarily thorough and we stand by our previously announced decision not to initiate criminal charges," the Justice Department spokesman said. [...]
[T]he Obama administration has essentially shielded CIA officers involved in the program with its “look forward, not backward” focus. While determined to examine the agency's past actions overall, the White House has been equally insistent that the CIA officers not be scapegoated for the legal tap dance the George W. Bush administration used to approve the program.
Both the translation of this policy and its future implications are clear. While a systemic program of torturing high-value, or low-value, or unknown-value prisoners in order to extract information via physical injury is clearly against international law, so long as an administration can construct a system of "legal guidance" claiming it to be legal, it will be considered as such, and all government officials who acted "in good faith" to set up, administer, and cover up the program will be forgiven.
There is no ambiguity here. The decision not to prosecute for torture is a conscious decision to allow any future American administration to restart the program at will. Perhaps it will be again considered illegal after-the-fact; so long as a memo is written claiming to be in good faith, the torture can still take place. Perhaps future whistleblowers will expose those programs again; no doubt they will face the full wrath of the Department of Justice while those that ordered the actual torture again walk free. By declaring that the the torture of prisoners by the American government is not a prosecutable crime, the Justice Department has validated the torture of prisoners as a policy that will remain available to future government officials that wish to take up the practice.
The ACLU, among others, continue to demand prosecutions take place; there is no statute of limitations on torture. Other reforms might be considered; we have to date seriously "considered" none of them. The most substantive response of the CIA seems to have been espionage actions against the Senate itself as the Senate contemplated how and when to release information about the torture programs.
There has not been a shred of accountability for any of it, only begrudging acknowledgements that it happened, and to a greater extent than had been authorized or claimed, and even those announcements have been met with outrage by the perpetrators and advocates of the programs. But with the declaration that a mere written supposition of legality from any past or future White House is indeed sufficient to shield the program and all involved from future prosecution, the Justice Department has given a green light to restarting the program in any future administration. Only a single memo is required.
