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Last year, in the heat of the presidential campaign, Eric Holder was a featured speaker at the American Constitution Society's annual convention where he told a packed crowd that the "American people are owe[d] a reckoning" as a result of the "abusive" and "unlawful" policies of the Bush administration.
"Our government authorized the use of torture, approved of secret electronic surveillance of American citizens, secretly detained American citizens without due process of law, denied the Writ of Habeus Corpus to hundreds of accused enemy combatants, and authorized the use of procedures that both violate international law and the United States Constitution," Holder said in June 2008. "We owe the American people a reckoning."
If recent news reports are accurate, some form of that day of reckoning may soon be upon us as now-Attorney General Holder weighs the possibility of appointing a federal prosecutor to probe the Bush administration's use of torture during the interrogation of detainees captured in the "war on terror."
But those same news reports, quoting unnamed sources, say that if Holder decides in the coming weeks to authorize a criminal investigation, it would be limited to the "few bad apples" at the CIA who exceeded interrogation limits set by Justice Department attorneys, in memos that authorized brutal acts of torture against suspected terrorists.
If that is the case, the Obama administration's approach would be virtually the same as the Bush administration's in the aftermath of the Abu Ghraib prisoner abuse scandal, in which low-level MPs were court-martialed and imprisoned for acts that supposedly had not been sanctioned by their superiors.
By targeting just CIA interrogators who exceeded the torture guidelines, the Obama administration also would be shutting the door on new internal investigations that might reach higher levels - the Justice Department lawyers who established the parameters and the White House officials who encouraged the brutal tactics - including the near-drowning of waterboarding.
In April, Holder declared that it "would be unfair to prosecute dedicated men and women working to protect America for conduct that was sanctioned in advance by the Justice Department." What that meant was that a possible criminal investigation would be limited to examining actions that went beyond what was sanctioned, such as repetitious use of waterboarding.
Critical Report
Still, Holder might face public pressure to expand the probe, if and when a CIA inspector general's report is released that reportedly calls into question the legality of the agency's torture of "high-value" detainees.
The secret findings of CIA Inspector General John Helgerson led to eight criminal referrals to the Justice Department for homicide and other misconduct, but those cases languished as Vice President Dick Cheney is said to have intervened to constrain Helgerson's inquiries.
Holder may reopen those cases, but if an investigation is narrowly focused on the CIA interrogators and outside contractors and does not include the Bush administration officials who implemented the policies, then the probe would likely amount to a whitewash, much like the Abu Ghraib case.
Of the 12 government investigations launched in the aftermath of the Abu Ghraib prison scandal, not one scrutinized the roles of Defense Secretary Donald Rumsfeld or any other senior Bush administration official. The inquiries concentrated instead on the military police identified in the photographs, like Private Lynndie England and Corporal Charles Graner Jr.
Back in 2004, even the neoconservative editorial page of The Washington Post found the Abu Ghraib "whitewashing" of the higher-ups' roles hard to take.
"[D]ecisions by Mr. Rumsfeld and the Justice Department to permit coercive interrogation techniques previously considered unacceptable for US personnel influenced practices at the prison at Guantánamo Bay, Cuba, and later spread to Afghanistan and Iraq," a Post editorial said. "Methods such as hooding, enforced nudity, sensory deprivation and the use of dogs to terrorize - all originally approved by the defense secretary - were widely employed, even though they violate the Geneva Conventions."
