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The Problem with Holder's Partial Torture Prosecutor

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President Obama wanted this to be a quiet news week. "I have specific instructions from the President for the press corps -- he wants you to relax and have a good time," spokesman Bill Burton told reporters on Sunday. "Nobody is looking to make any news," he added, referencing the slow vacation schedule at Martha's Vineyard. Back in Washington, however, Attorney General Eric Holder was poised to appoint a prosecutor to investigate alleged torture during the Bush administration.

The Washington Post reports that Holder will appoint prosecutor John Durham to "examine nearly a dozen cases in which CIA interrogators and contractors may have violated anti-torture laws," a possibility that Newsweek first discussed in July. Accounts from both publications, however, predict a very narrow inquiry. The mandate, according to the new Post article, is only "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."

In his official statement, Holder said he felt compelled to respond to a newly completed, internal Justice Department report on "so-called enhanced interrogation techniques" by ordering the review:

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.

Several human rights groups immediately said Holder's approach falls fatally short, since it does not address the range of alleged counter-terror abuse and seems to foreclose accountability up the chain of command.

"An examination of a dozen cases will not bring the full scope of U.S. policies to light," said Virginia Sloan, president of the Constitution Project, in response to Monday's news. "A bipartisan commission is still needed to provide a comprehensive understanding of past deviations from the rule of law."

The Center for Constitutional Rights (CCR), which filed the first habeas cases for Guantanamo detainees, criticized the new inquiry's presumed targets. "Responsibility for the torture program cannot be laid at the feet of a few low-level operatives," read the Center's official statement on Monday. "Some agents in the field may have gone further than the limits so ghoulishly laid out by the lawyers who twisted the law to create legal cover for the program, but it is the lawyers and the officials who oversaw and approved the program who must be investigated." (Disclosure: I once worked at CCR.)

The ACLU, which successfully sued for the release of several torture-related documents, also offered a mixed assessment of the decision. "While this is a welcome first step, we are disappointed that Attorney General Holder still appears unwilling to conduct a full investigation and to prosecute any crimes that are uncovered," said executive director Anthony D. Romero. "A preliminary investigation absent a commitment to prosecute violations of the law is simply anemic. How much evidence of wrongdoing and violations of law is necessary before the attorney general commits to launching a full investigation?," he added.

MoveOn.org, which had joined efforts by netroots activists and progressive bloggers calling on Obama to appoint a special prosecutor with a wide latitude to investigate torture, said on Monday that while it "applaud[ed]" Holder's move, it was not enough. "The Department of Justice must not only investigate the CIA, but also those who ordered, approved and sanctioned the torture," said Justin Ruben, the group's Executive Director. "We need to make sure those all the way up the chain of command are held responsible for their actions."

It is hard to reach any concrete conclusions based on Holder's short statement. It is possible, for example, that a narrow "preliminary review" could still open the door to confronting the possibility of holding lawyers and policymakers accountable for knowingly constructing an illegal torture regime. However, if this inquiry is limited to a few contractors and junior personnel, it runs the risk of repeating the mistakes of Abu Ghraib, when the U.S. government blamed its policies on a few "bad apples" and further undermined the rule of law with selective prosecution.

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Ari Melber writes for The Nation, where this piece first appeared.

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