In an important article for Newsweek, "Independent"s Day," Daniel Klaidman manages not only to present a convincingly intimate and sympathetic first-hand portrait of Eric Holder, the first African-American Attorney General in U.S. history, demonstrating how "[h]is first instinct is to shy away from confrontation, to search for common ground," and how he remains haunted by his role in the pardon of Marc Rich at the end of the Clinton administration, but also to explain how "[f]our knowledgeable sources" told him that Holder is "leaning toward appointing a prosecutor to investigate the Bush administration's brutal interrogation practices, something the president has been reluctant to do."
As Klaidman notes, "Such a decision would roil the country, would likely plunge Washington into a new round of partisan warfare, and could even imperil Obama's domestic priorities, including health care and energy reform. Holder knows all this, and he has been wrestling with the question for months. 'I hope that whatever decision I make would not have a negative impact on the president's agenda,' he says. 'But that can't be a part of my decision.'"
Although the independence of the Attorney General is supposed to be a given -- which made the abominable betrayal of that independence by Alberto Gonzales so wounding -- in reality, even the most principled Attorney General faces an unenviable task. "Alone among cabinet officers," they are, as Klaidman describes it, "partisan appointees expected to rise above partisanship."
Even so, there is an openness about the discussions of whether Eric Holder will indeed demonstrate his independence by appointing a prosecutor to investigate the Bush administration's interrogation policies, which suggests that it may indeed happen. Certainly, after the publication of this article -- which, I can only presume, had Holder's tacit authorization, as a way of testing responses -- it will be difficult for him to back-track without provoking an unprecedented storm of disapproval from the many critics of the Bush administration's descent into lawless brutality.
I urge you to read the whole article, but the key passages dealing with Holder's considerations of "whether to launch a probe into the Bush administration's interrogation policies" are as follows:
Holder began to review those policies in April. As he pored over reports and listened to briefings, he became increasingly troubled. There were startling indications that some interrogators had gone far beyond what had been authorized in the legal opinions issued by the Justice Department [the Office of Legal Counsel's "torture memos," issued in August 2002 and in May 2005], which were themselves controversial. He told one intimate that what he saw "turned my stomach."
It was soon clear to Holder that he might have to launch an investigation to determine whether crimes were committed under the Bush administration and prosecutions warranted. The obstacles were obvious. For a new administration to reach back and investigate its predecessor is rare, if not unprecedented. After having been deeply involved in the decision to authorize Ken Starr to investigate Bill Clinton's affair with Monica Lewinsky, Holder well knew how politicized things could get. He worried about the impact on the CIA, whose operatives would be at the center of any probe. And he could clearly read the signals coming out of the White House. President Obama had already deflected the left wing of his party and human-rights organizations by saying, "We should be looking forward and not backwards" when it came to Bush-era abuses.
Still, Holder couldn't shake what he had learned in reports about the treatment of prisoners at the CIA's "black sites." If the public knew the details, he and his aides figured, there would be a groundswell of support for an independent probe. He raised with his staff the possibility of appointing a prosecutor. According to three sources familiar with the process, they discussed several potential choices and the criteria for such a sensitive investigation. Holder was looking for someone with "gravitas and grit," according to one of these sources, all of whom declined to be named. At one point, an aide joked that Holder might need to clone Patrick Fitzgerald, the hard-charging, independent-minded U.S. attorney who had prosecuted Scooter Libby in the Plamegate affair. In the end, Holder asked for a list of 10 candidates, five from within the Justice Department and five from outside.
Klaidman described the negotiations over the April release of the torture memos as follows:
For weeks Holder had participated in a contentious internal debate over whether the Obama administration should release the Bush-era legal opinions that had authorized waterboarding and other harsh interrogation methods. He had argued to administration officials that "if you don't release the memos, you'll own the policy." CIA Director Leon Panetta, a shrewd political operator, countered that full disclosure would damage the government's ability to recruit spies and harm national security; he pushed to release only heavily redacted versions.
When President Obama decided to release the memos, "Holder and his team celebrated quietly," according to Klaidman. What surprised them was that there was no "national outrage." Klaidman suggested that the memos "had already received such public notoriety that the new details in them did not shock many people," although it may be that, unfortunately, evidence of torture that was authorized at the highest levels of the U.S. government is simply not a significant enough matter to a large number of Americans who seem to have forgotten that Richard Nixon was disgraced for what, essentially, was a less significant crime.
Nevertheless, both the President and his ferocious Chief of Staff, Rahm Emanuel, moved swiftly to head off dissent, with Emanuel appearing on This Week With George Stephanopoulos to declare that "there would be no prosecutions of CIA operatives who had acted in good faith with the guidance they were given," and Obama noting, in a statement on the release of the memos, "This is a time for reflection, not retribution."
Klaidman stresses that, throughout discussions of possible prosecutions regarding the torture memos, Obama "has been careful to say that the final decision is the attorney general's to make," which is as it should be, but it certainly made Holder's independent decision-making harder when the White House was obviously anxious not to provide Republican enemies with an opportunity to attack. As Klaidman also notes, in the first few months after the inauguration, the relationship between the Justice Department and the White House was "marred by surprising tension and acrimony. A certain amount of friction is inherent in the relationship, even healthy. But in the Obama administration the bad blood between the camps has at times been striking."
One particular source of tension was the Justice Department's apparently unilateral decision, in February, to contest a lawsuit brought by the ACLU against Jeppesen Dataplan, Inc., a Boeing subsidiary known in human rights circles as the CIA's "travel agent for torture," because of its role in the Bush administration's program of "extraordinary rendition" and torture. As Klaidman describes it, by "invoking the 'state secrets' privilege, the [DoJ] lawyer was reaffirming a position staked out by the Bush administration." It was not only liberals and human rights groups who were appalled, as Klaidman explains:
It also infuriated Obama, who learned about it from the front page of the New York Times. "This is not the way I like to make decisions," he icily told aides, according to two administration officials, who declined to be identified discussing the president's private reactions. White House officials were livid and accused the Justice Department of sandbagging the president. Justice officials countered that they'd notified the White House counsel's office about the position they had planned to take.
From my point of view -- and from the point of view of many others who have campaigned for the comprehensive repudiation of all the Bush administration's "War on Terror" policies -- the ongoing Jeppesen debacle is not the only occasion when the Justice Department has shown itself unwilling or unable to effectively turn its back on the policies of its predecessors. The DoJ's involvement in reviving the Military Commissions at Guantánamo (the "terror trials" introduced by former Vice President Dick Cheney in November 2001) is bitterly disappointing, as is its role in advocating a policy of "preventive detention" for some of those still held at Guantánamo, and its ongoing attempts to prevent foreign prisoners "rendered" to the U.S. prison at Bagram airbase in Afghanistan -- and held for up to seven years -- from having the same rights as those held at Guantánamo.
Moreover, on a day-to-day basis, Holder's integrity has repeatedly been called into question by his apparent refusal to look beyond the decisions about the prisoners that are being made by the administration's inter-departmental Guantánamo Task Force, and to prevent DoJ lawyers from pursuing worthless habeas corpus cases in the District Courts. In recent months, these have brought nothing but shame and humiliation on the Department -- as highlighted in the case of Alla Ali Bin Ali Ahmed, a Yemeni prisoner, and, in particular, Abdul Rahim al-Ginco, a Syrian whose case was pursued even though he had been tortured by al-Qaeda as a spy.
Sadly, the Attorney General has done nothing to assuage fears that, when it comes to the courts, he is in charge of a policy that, in effect, defends the most egregious errors made by the Bush administration while doing nothing to encourage the long-overdue release of prisoners who should never have been held in the first place, but on torture, at least, if Daniel Klaidman is to be believed, he may finally be on the verge of doing the right thing. As he explains:
After the prospect of torture investigations seemed to lose momentum in April, the attorney general and his aides turned to other pressing issues. They were preoccupied with Gitmo, developing a hugely complex new set of detention and prosecution policies, and putting out the daily fires that go along with running a 110,000-person department. The regular meetings Holder's team had been having on the torture question died down. Some aides began to wonder whether the idea of appointing a prosecutor was off the table.
But in late June Holder asked an aide for a copy of the CIA inspector general's thick classified report on interrogation abuses [the "Holy Grail" of torture reports, whose public release is being delayed by the CIA and the Defense Department]. He cleared his schedule and, over two days, holed up alone in his Justice Department office, immersed himself in what Dick Cheney once referred to as "the dark side." He read the report twice, the first time as a lawyer, looking for evidence and instances of transgressions that might call for prosecution. The second time, he started to absorb what he was reading at a more emotional level. He was "shocked and saddened," he told a friend, by what government servants were alleged to have done in America's name. When he was done he stood at his window for a long time, staring at Constitution Avenue.
Andy Worthington is the author of The Guantánamo Files: The Stories of the 774 Detainees in America's Illegal Prison (published by Pluto Press), and maintains a blog here.