The Problem with Holder's Partial Torture Prosecutor
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.
Follow Ari Melber on Twitter: www.twitter.com/AriMelber
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Mike Smith: Guantanamo Accountability
Common Cause recently sponsored a compelling session at the National Press Club on prisoner abuse, military commissions trying detainees, and who is responsible for torturous interrogations at Guantanamo Bay, Cuba.
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"specific instructions from the President for the press corps" is why journalism is a failed profession.
Good luck in trying to move forward with a shredded Constitution. A permanent get out of jail free to those with the supervisory responsibility. They also get paid to accept responsibility! When they screw up or purposely do wrong and suffer no consequences yet again, it becomes increasingly alarming for the future. Why wouldn't those in charge do just as they please? The message is that you can get away with anything. Justice is stuck on stupid because it is owned, obviously, by those who profit from its being ineffectual . Regular middle class people, who do get to feel the full weight of the law when they do wrong, should not stand for this...but they will...unt
Bush and Cheney haff vays of making you talk.
The idea of keeping this investigation at such a low level may be just the point, to diminish its importance and hope that it will go away and die a quiet death. IF they do convict one or two lower level employees perhaps it will keep the hungry for justice public happy. Unfortunately it is just another example to Americans of how justice in America is an illusion.
Another decision by the Obama Administration to deflect from the real issue, the Admin's clumsy attempt to take over 1/16 of the economy. President Obama is in doo doo and well aware, so signals against releasing documents reflecting on CIA conduct during al Qaeda interrogations, then y orders the Attorney General to do exactly that. Make no mistake, this is Obama's call, now typical to stir up memories of the past Admin to take the heat off himself.
Indeed, CIA interrogations pushed the envelope, yet, attention is limited to the acts and not reasoning behind them. In response we find the clamor spouting nonsense of this being a law abiding nation. Well what about defining law, which the ACLU avoids, in effect, where does the spirit of the law enter?
CIA interrogators were rough to obtain valuable intelligence in most case, while still under the real specter of 9/11's potential for mass casualties. The latter proved groundless, after the fact, but within mitigation standards. So, CIA questioners acted responsibly or irresponsibly during tense circumstances involving the real perception of mass casualties. No one stood to benefit financially or otherwise except this country's safety.
The Justice Department reviewed the questioned documents in 2004 and did not seek prosecution, probably based upon spirit of the law. Little did they foresee a president and attorney general in 2009 seeking political advantage.
The Geneva Accords were endorsed in an era not foreseeing immediacy of terrorism threats. The Accords need to be revised.
Torture does not "push the envelope" of the rule of law. It rips it apart. Our Constitution survived the Civil War, but you think it needs to be shredded because you're trembling at the thought of more Saudis armed with box cutters.
No, I'm arguing "spirit of the law." Try reading to comprehend instead of to nitpick.
It was just a few "bad apples"...
Cheney, Rumsfeld, a bunch of lawyers, Bush....
this is interroGATE . Holder will find it tough to prosecute due to his experience defending United Fruit for running assassination teams in Latin America . in which United Fruit payed out 25 million dollars in settlement , Holder being lead attorney. i know this hard to swallow HP ,but sometimes truth hurts.
So Obama supports the policy of some people being above the law and Holder accepts "I was following orders" as an excuse for war crimes.
This is another Abu Ghraib style goat hunt for a few low ranking sacrifices. American Justice is perverted by yet another American president.
Obama: Please take a seat
Holder: Coffee,Tea?
Will you detail your complicity
In the killing of 3000 Americans for me?
Terrorist: Sugar?
I certainly want to see the CIA get their due charges. However which of the 200 right wing judges that Bush manages to get past the Democrats (with their help) is Holder suppose to take his charges . The best that can happen is a little light shed on the actions of the CIA and their private counterparts. Then they will be exonerated and we will never be able to charge them again.No double jeopardy. I would rather see him prosecute Corporate media for advocating the violent over throw of the government. What a dreamer.
I'm chewing on all this. I know that if I were in charge - Queen of the Universe - that right now you'd be turning your tv to see live footage of Dick Cheney being led away from his home in handcuffs. Those pink ones the Arizona sheriff uses I think.
But somebody said something last night, I believe it was an attorney, and there was some credibility to it. He said that while it may be true that "an examination of a dozen cases will not bring the full scope of U.S. policies to light" the fact is it opens up the chain of command to inspection. If you begin to question a private first class, that leads to a sargeant, which leads to a commander which leads to ......
There was some sense in that I thought. Because one order came from another order and it all leads up. And once it follows it's logical course, upward, there may be things revealed that create the case against the people really responsible. Chain of evidence. It's like that old nursery rhyme:
"This is the man all tattered and torn,
That kissed the maiden all forlorn,
That milked the cow with the crumpled horn,
That tossed the dog,
That worried the cat,
That killed the rat,
That ate the malt
That lay in the house that Jack built.
Only it's the house that Cheney built.
And at the top , even though possibly unaware is GWB.
Yes. I believe that Cheney is the ultimate bad guy. I think we had something really wicked in the co-pilot seat. But ultimately Bush was the commander-in-chief. Though I have a feeling that there were things he didn't know, til they were done. Not that that excuses him.
I think Mr Melber and others who feel this doesn't go far enough are forgetting something.
This torture situation is like an elephant and "How do you eat an elephant?"
"One bite at a time."
Most folks want the Obama admin to try and eat the whole damn thing in one sitting. The end result would be frustration for all of those who would like to see jsutice done.
Watch now, as the neo-cons all run for cover out of fear. You know the little guy isn't gonna take the fall. So they will start naming names and such. The folks who are going to be the trying to cover their asses the loudest are the ones who will probably end up in jail in a few years.
SpoxLogic, I think you're using wishful thinking rather than logic.
Really!? As opposed to those who feel that bringing charges now against Cheney will somehow find him in jail?
You think the little guy won't take the fall, Think Oliver North and Admiral Armbuster ,Ambidexterous
or what the hell ever it was. They took the fall for Bush Sr. and Reagan. They did it because they claimed to be doing their Patriotic duty and were made Heros of the Right for it. Now look where North is today. Do the Right Wingers even care that he was in prison. NO because he wears it as a badge of honor. That is how they think because they are so ideologically ingrained, just as the Commies and the Nazis were. NO different. it takes that type to make repression work.
Actually, some may do what you say - take the fall. Others however, won't, and all you need is one or two. As for the ones who feel so "patriotic", they may think things over when faced with the prospect of doing some very hard time with some very hard felons.
If one person gets thrown in prison for the tourture, it will be worth it!
Why? Because the reason this worked is that everyone involved gave assurances that "This is ok," and "You won't be punished." Prove those statements to be lies, and you will have far more whistle blowers and objectors the next time the right wing goes nutzo on us.
The biggest reason the right wants to avoid any prosecution is that getting away with their crap requires everyone in the chain of command agreeing to the actions. If the folks on the bottom refuse to tourture because they don't want prison, no amount of Dick Cheney arm twisting at the top of the chain of command will get folks to risk prison. Then Cheney doesn't get his forced false confessions to start wars, and we save trillions of dollars (and Cheney's company doesn't make billions off the taxpayer and then move offshore).
If it doesn't get Rumsfeld and Cheney, there's really no reason to even open it up. As the only thing they are trying to do, is draw the attention from the Health Care. Start the investigation from the top down and we might become a proud nation once again.
The special prosecution seems designed to toss a few minor characters to the far left for devouring. And, really, who cares, right? They are just people whose lives and careers are about to be destroyed for doing what was asked.
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