09/13/2009 05:12 am ET Updated May 25, 2011

Holding Holder's Feet to the Fire

Will the Lawyers who wrote the Torture Memos be brought to justice?

Attorney General Eric Holder is a man on a seat that is hot and getting ever hotter. As the official with primary responsibility for cleaning up after George W. Bush's War on the Constitution, Holder faces challenges that require him to deal with 1) a White House that simply wants to put the whole mess behind it, 2) a Bush administration in exile, led by Dick Cheney, that is conducting a campaign to fend off any accountability for its lawless conduct, 3) a fearful intelligence community, 4) scores of aggrieved victims, and 5) a large and engaged community of patriotic Americans who believe that restoration of the rule of law requires investigation and accountability.

President Obama repeatedly stated that he does not support a special commission or other mechanism for exploring the sins of the Bush administration. The President's position rests on an uncharacteristic, but serious, miscalculation that the nation can move on without knowing the full extent of the damage to our Constitution and laws and without holding lawbreakers to account. Investigation and accountability are essential if we are to ensure that these practices are not repeated and if we are to restore our adherence to the rule of law and our standing and effectiveness in the world. While an investigation will stir up passions on both sides, it is our only hope for reaching some national consensus on the torture issue. Fortunately, the President has recognized that whether there should be a criminal investigation is not his call. His predecessor undermined the rule of law by importing politics into law enforcement decisions, but President Obama, after a false start, has explicitly stated that enforcement of the law is the responsibility of the Attorney General.

Word has recently leaked that Attorney General Holder is considering authorizing a criminal investigation into the mistreatment of detainees by CIA interrogators. Unfortunately, the leaks suggest that the Attorney General is contemplating an investigation that is too narrowly focused on only the conduct of CIA interrogators who used torture techniques that went beyond those approved by the Department of Justice's Office of Legal Counsel ("OLC") in its infamous torture opinions. The narrow focus is a result, in part, of statements by the President and Attorney General that interrogators who relied in good faith on legal guidance from the Department of Justice would not be prosecuted.

Scope of the Investigation

Whether OLC can in effect grant immunity to interrogators to engage in torture may be an interesting legal issue, but there is no justification for a failure to investigate up the torture chain to individuals who formulated the policy and those who appear to have distorted the law to legitimize the use of torture. While the hands-on interrogators should be investigated, the investigation must also follow the evidence up through the decisional hierarchy to 1) the immediate supervisors who ordered the torture, 2) through the bureaucracy to the high-ranking officials who decided to "take the gloves off" to create a torture regime, and 3) the lawyers who enabled the entire undertaking.

We cannot tolerate another Abu Ghraib-style investigation in which we ignore the lawbreaking of high government officials and write off the entire episode as the rogue conduct of a few low-level bad apples who get prosecuted. We now know that the horrors of Abu Ghraib were the direct result of decisions at the highest level of our government to authorize torture of detainees. Secretary Rumsfeld signed off on techniques that were approved by the administration's lawyers for use at Guantanamo. From there, they migrated to Abu Ghraib. Yet, the only people punished for the outrages committed at Abu Ghraib have been enlisted personnel who served as guards and one reserve officer who was nominally in charge of the prison but apparently not in the torture loop. The failure to investigate and hold individual policymakers accountable has allowed former Bush administration officials and their surrogates to continue to peddle the false story that the abuses at Abu Ghraib came as a shock to them.

Attorney General Holder, therefore, must authorize a full scale investigation. It may start with the hands-on interrogators, but it should encompass all Bush administration officials who played a role in turning the United States into a torturing nation. Even at this preliminary stage, based on investigative reporting and congressional inquiries, we know there is sufficient evidence to investigate the involvement of, at minimum, Dick Cheney and his lawyer, David Addington, Donald Rumsfeld, Alberto Gonzales, George Tenet, John Ashcroft, and Condoleeza Rice, all of whom are reported to have been involved in discussions that led directly to the use of torture. In addition, there must be an investigation of the administration's lawyers who made it possible for the torturers to proceed in the belief their actions were protected by a legal shield, including former Office of Legal Counsel attorneys John Yoo, Jay Bybee, and Stephen Bradbury, as well as former Department of Defense General Counsel William J. Haynes. While some argue that it is inappropriate to prosecute lawyers for giving good faith legal advice, the abysmal quality of the advice these lawyers provided and the circumstances under which it was given warrant investigation into whether they were acting as lawyers in good faith or conspirators in facilitating torture.

Indeed, once a serious investigation of interrogators begins, it will be impossible for the Attorney General to do anything other than let the investigation run its course. Holder is a professional prosecutor and understands the importance of allowing investigations to follow the evidence wherever it leads. The evidence in this investigation will necessarily lead to the individuals who formulated and ordered implementation of the torture policy.

Structuring the Investigation

How should the investigation be structured? In January 2008, Attorney General Mukasey appointed John Durham, a career Assistant United States Attorney from Connecticut, to investigate the destruction of the CIA's videotapes of torture sessions. Mukasey acted only after the destruction of the tapes was leaked to the press and members of Congress reacted with outrage. To protect higher-ranking officials and line interrogators, however, he ordered Durham to limit his investigation to crimes that may have been committed in destroying the tapes, and he explicitly refused requests to allow investigation of the torture that was depicted on the tapes. Durham's investigation continues. It has been reported that he has presented evidence to a grand jury, but little else is known about the progress of the investigation. One option available to Holder is to authorize Durham to expand his investigation to examine the conduct of those who committed the videotaped torture and the officials who authorized it. Durham has presumably gathered substantial relevant evidence, so this course could be the most efficient. Alternatively, the Attorney General could appoint another prosecutor currently serving in the Department of Justice to lead the investigation.

Compelling reasons, however, militate against either of these routes and in favor of the appointment of an independent counsel from outside the Department of Justice. The Department - and the American people - need a fresh and independent start to this investigation. Mukasey openly opposed a thorough investigation, and hand-picked Durham to conduct a narrow investigation of the CIA videotapes. Although the manner of his selection could give added credibility to any decision by Durham to prosecute, it also raises troubling questions of appearance about the independence of his investigation. Given the sensitivity of any prosecution in this matter, there is no room for any suggestion that the investigation was less than full or the decisionmaking less than completely independent.

In addition, the need is strong to reach outside the Department of Justice. Attorneys General, Ashcroft and Gonzales, and a succession of OLC attorneys, including Yoo, Bybee, and Bradbury, were key actors in establishing the torture regime. In addition, the Criminal Division and, subsequently, the National Security Division of the Department were consulted on interrogation practices, and issues have arisen regarding production of interrogation materials in prosecutions conducted by U.S. Attorney offices. While there is new political leadership at the Department, many career employees who may have worked on these issues remain, and the residual institutional interest in self-protection is strong. Appointment of an independent counsel would ensure against both the strong appearance and the possible reality of a conflict of interest if the Department were to conduct the investigation.

Attorney General Holder, therefore, should authorize an investigation of the use of torture by the United States government. In order to avoid any appearance of conflict, he should appoint an independent counsel and authorize her to conduct a thorough investigation of crimes committed by interrogators and the officials who authorized or conspired in the authorization of unlawful conduct. Any other decision will sell America and its values short.

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