Bush National Security Leaders Silent While Junior Spies Could Face Torture Charges

The Los Angeles Times reported last Sunday that Attorney General Holder will soon appoint a special prosecutor to investigate individuals alleged to have participated in the worst excesses of CIA torture, but not the policy makers and senior intelligence officials responsible for torture and detention policies. Holder's strategy appears to have little support, either from torture apologists or opponents. Meanwhile, the architects of Bush-era torture and detention policy are not rushing to defend low-level intelligence officers who could be facing costly legal jeopardy.

When this story first surfaced in mid-July, sources varied as to whether such a special prosecutor would undertake a wide-ranging investigation that could call the architects of torture policy into account, or would focus on a few individuals--bad apples--who violated the Bush administration's torture rules.

According to the LA Times story, Holder is now all but certain to appoint a special prosecutor who will focus the investigation on low-level intelligence officers and contractors who exceeded the Department of Justice and internal CIA policy guidelines on acceptable torture techniques. Presumably, he special prosecutor would not delve into the legality of overall torture and extrajudicial detention policy, or the secret legal rulings and authorizations behind the policy.

The story goes on to report that serving CIA officials are digging in, with a few putting off retirement in order to put themselves in the best position to mount a legal defense.

Bracing for the worst, a small number of CIA officials have put off plans to retire or leave the agency so that they can maintain their access to classified files and be in a better position to defend against a Justice investigation.

"Once you're out, it gets a lot harder," said a retired CIA official who said he had spoken recently with former colleagues. The inquiry would probably also target private contractors who worked for the CIA during the interrogations.

From the prosecution and investigatory perspective, torture prosecutions appear fraught from the beginning. A former Department of Justice official told the Times, "I don't blame them for wanting to look into it . . . But if they appoint a special prosecutor, it would ultimately be unsuccessful, and it would go on forever and cause enormous collateral damage on the way to getting that unsuccessful result."

Some observers, such as Daphne Eviatar, legal correspondent at The Washington Independent, hold out hope that Holder's special prosecutor can and will go beyond low-level intelligence operatives who may have been involved in torture. "It's not clear where such an inquiry would logically end," writes Eviatar. "Investigating CIA functionaries low on the totem pole -- which would involve re-opening cases previously dismissed by the Bush administration -- would ultimately require looking into the orders they received from their superiors."

Others in the know don't share Eviatar's hope for justice. Tom Malinowski of Human Rights Watch told the Times, "An investigation that focuses only on low-ranking operators would be, I think, worse than doing nothing at all."

Indeed, the prosecution of low-level intelligence officers and contractors for torture has been called "the worst of both worlds" by the Balloon Juice blog. Taking off on this theme, civil liberties blogger Glenn Greenwald termed Holder's 'bad apples' strategy "Abu Ghraib redux," a reference to the infamous Abu Ghraib court martial that singled out extremely junior National Guard troops for atrocities against Iraqi prisoners, while letting the officers and policy makers who enabled their crimes completely off the hook.

Atlantic Online's Andrew Sullivan warned that the Obama administration would lose moral authority with Holder's anticipated move: "The Obama administration, however well-intentioned it may be, risks essentially legitimizing the torture it does not prosecute."

Already, Congress has taken note of the problems in Holder's 'bad apples' strategy. Jerrold Nadler (D-NV), the chairman of the House Judiciary Committee's Constitution, Civil Rights, and Civil Liberties subcommittee, told Holder last week, "There simply is no legal, moral or principled reason to insulate those who authorized the torture of detainees, either through legal reasoning or other policy directive, from investigation," according to The Public Record.

Tellingly, those torture authorizers have not taken up the cause of lowly intelligence officers who might get caught up in the justice system.

John Yoo, the loudest and most prolific apologist for torture policy, did not rush to comment on the plight of CIA officers and contractors who might face prosecution for carrying out illegal policies that he helped formulate. Former Vice President Dick Cheney, who earlier had been vociferously critical of Obama national security policy and then suddenly became quiet in the past month or so, hasn't used his good offices to defend low-level intelligence officers or even raise money for their legal defenses. George Tenet, David Addington, Alberto Gonzales, Steven Bradbury, and others who presumably were micromanaging torture from Washington also have been conspicuously silent.

Maybe they are lobbying behind the scenes for the Obama administration to look to the future, instead back at the past.

Cross-posted from Examiner.com

Follow Frank Naif on Twitter: www.twitter.com/frank_naif

Comments

[S1m0n]

The probable guilt of Rumsfeld, Cheney, Tenet & Bush is immaterial to the guilt or innocence of those farther down that chain.

It might not be 'fair' that it's CIA operatives who are getting convicted, but it is entirely just. They're still guilty.

[SamEllison]

Typo-Jerry Nadler is from NY, not NV.

Hearings? We don't need no hearings,
Cheney is writing a book!
And proud of it too!
Be kind of hard to talk your way out of the dock,
in the Hague......

[realpolitic]

Any system of jurisprudence that does not prosecute a rogue lawyer like Yoo who defined the standard of torture down to "major organ failure" is laughable. If we do not prosecute Yoo for his flaunting of legal boundaries and some of the other top Bushies who were instrumental in the policy, why bother?

[lungfish]

Ok, Eric Holder, whats it going to be? Are some people above the law or not?

[ChaSim]

In my opinion, those who don't investigate and prosecute torture are just as bad as those who committed the torture in the first place.

[jericho4119]

I am just going to assume, that an article which focused on the Artorney General and the Justice Department from its very first sentence, switched over to the much less meaningful phrase, "the Obama administration" in its last sentence, because it wanted to acknowledge the basic foolhardyness of a Justice Department that focuses on the future.

Special prosecutors must look back; justice demands that. And if these low-level torturors don't want to face jail time for their actions, they can do what other low-level criminals do: they can cop a plea.

Hey, wouldn't it be great if Cheney shut up, because he didn't know which of his former accomplices was wearing a wire?

[CosmicChaos]

All the criminals involved need to be held accountable. I don't care what their "label" was or who signed off on their actions.

[NeoconGal]

Gutless is a word that comes readily to mind. People who torture or oversee torture are probably not very brave.

[DemocraticVoter]

Holder should lose his job if he takes this path -- it is morally reprehensible to NOT hold those responsible who made the policies legal in the first place.

[centaurus1]

This issue can't remain a ceremony of sacrificial goats to satisfy the masses. These actions had world-historical impact and need to be fully addressed and those who ordered it and approved it need to be prosecuted.

[MaDmOnKy]

Obama should pardon them all..

[rich misty]

If Conservatism is allowed to go unchecked, it will eventually torture Americans.

[realpolitic]

Holder should have some guts and go after the deisgners of the policy like Woo, Cheney, and Bush or just forget the whole investigation. Going after the lowest hanging fruit as become our standard operating procedure and really serves to cover up more than it illuminates.

[nolabels]

Trickle down sociopolitics. The American standard.

[unitron]

Yeah, letting the big fish swim free really stinks, but if enough "bad apples" get screwed over, maybe next time the bottom of the totem pole types will think twice before letting themselves get suckered into doing someone else's dirty work.

[ThinkCreeps]

An investigation has to start somewhere. Conspiracy investigations tend to start in the extremities, and then penetrate deeper into the core of the criminality by a series of plea deals in exchange for information. If nothing else, perjury convictions against the more senior conspirators are relatively easy.

The Abu Ghraib minions' cases were clear cut because of the photographic evidence, but I suspect all players in forthcoming systematic torture investigation will be more serious and capable defendants.

Universal jurisdiction also helps to ensure a proper investigation in the US. Without one others are free to take action to enforce international standards.

[NeoconGal]

That's why they don't want to release the next lot of photos because this time it's not just the minions'
clearly visible.