As Holder left an appropriations subcommittee hearing on April 23rd I spoke up loudly from the third row, "We need a special prosecutor for torture, Mr. Attorney General. Americans like the rule of law. The rule of law for everybody."
He replied as he approached me and walked by, surrounded by body guards, "And you will be proud of your government."
I was joined by others in replying simultaneously, "Yes, we want to be proud of our government. We're ready. No need to wait."
Four months later, last Monday, Holder appointed a special prosecutor, but only for particular incidents of torture and with this important, and illegal, limitation announced by Holder: "[T]he Department of Justice will not prosecute anyone who acted in good faith and within the scope of the legal guidance given by the Office of Legal Counsel (OLC) regarding the interrogation of detainees." Even did our domestic system of government allow the OLC to create laws, our obligation under the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, signed by President Reagan, ratified by the Senate, and made the supreme law of the land by Article VI of our Constitution, would prevent the creation of any law that permitted torture.
This decision by Holder had been publicly dictated to him by President Obama, and therefore sets a precedent of allowing a president to choose when laws should be enforced, and of allowing an aggressive political party to dictate such things to a defensive one. In April 2008, candidate Obama told the Philadelphia Daily News, "I would not want my first term consumed by what was perceived on the part of Republicans as a partisan witch hunt." (Apparently it's somehow different to have it consumed by what Republicans perceive as an evil plot to euthanize their grandmothers.) Holder's decision also establishes as accepted precedent the practice of "legalizing" obvious crimes by instructing the OLC to draft secret memos stating that the crimes are legal.
Holder's intention on Monday was clearly not to create a criminal investigation of a crime, but to create a preliminary investigation into whether to have a full investigation into certain types of people involved in certain incidents. Those meant to have immunity include not just any torturers who complied with the OLC's secret memos, but also the lawyers who drafted the memos, the lawyers who told them what to draft, and the higher ups who authorized and developed the torture program. And if the preliminary investigation never results in prosecutions, then immunity will be shared by all, even the bad apples.
But another course of events is possible. Assistant United States Attorney John Durham could, if he chooses, expand his focus beyond Holder's intentions. Durham does not have the independence enjoyed by someone like Ken Starr, who was authorized under the now lapsed independent counsel statute, and funded by Congress, to investigate then President Bill Clinton until he found or manufactured a crime, any crime. But Durham has been assigned to preliminarily investigate certain instances of torture, and the limitations dictated by Holder do not technically limit him.
Who in this sick saga "acted in good faith and within the scope of the legal guidance given by the OLC"? Nobody we've heard of thus far. Certainly not Alberto Gonzales who encouraged George W. Bush to declare that the Taliban and Al Qaeda were not covered by the Geneva Conventions in order to avoid prosecution for war crimes. Definitely not George W. Bush who acted on that advice, who held command responsibility for acts of torture before and after the drafting of OLC memos, who launched the illegal wars of which torture was one small part, who failed to hold torturers accountable once exposed, and who has confessed in a televised interview to approving of torture. Decidedly not Dick Cheney, who has made similar televised confessions with great frequency while also fingering Bush. And not John Rizzo, acting general counsel for the CIA until this past July, who told the OLC what types of torture he wanted "legalized" and provided false information to the OLC to encourage that process. Logically not the OLC lawyers themselves who drafted the memos that blatantly declare crimes to be legal, crimes known to them to be illegal, memos later overturned by the Department of Justice under President Bush before being enshrined as having temporarily been law by Holder and Obama. Nor the same lawyers and others at the Justice Department who orally approved acts of torture not covered by the memos. Nor those lawyers and the lawyers at the CIA who created guidelines for interrogations that the CIA's inspector general considered so vague as to encourage their own violation. And not any of the actual torturers we've yet read about, each torture session thus far exposed having taken place prior to the memos, in excess of the crimes authorized by the memos, in ignorance of the memos, and/or with documented concern by the torturers that they might later be prosecuted.
While I am not yet proud of my government in this regard, I am proud of my country's civil society and of the many organizations and individuals that immediately protested Holder's announcment on Monday as insufficient. These included groups like the ACLU, MoveOn.org, Alliance for Justice, Constitution Project, and Amnesty International that for years refused to support calls for the impeachment of Cheney or Bush, but which now support their prosecution, as do 217 organizations that have signed a statement I drafted in February. Congressman John Conyers, Congressman Jerrold Nadler, and Senator Russ Feingold, all opposed impeachment but all immediately released appropriate statements on Monday, as did many good bloggers who never backed impeachment but immediately criticized Holder's plans as insufficient. Of course, also speaking out on Monday were groups like the Center for Constitutional Rights and Voters for Peace who have always been there. True Majority / U.S. Action, which has replaced MoveOn.org in recent months as the model of timidity, in contrast announced an unqualified success last week. But what happened last week demands action from all of us, and an understanding of the full extent to which our system of government itself has been damaged.
In a nutshell, here are four things that happened simultaneously at the beginning of last week:
1. Selective leaking from the OPR.
For years, we've awaited the "imminent" release of a report from the OPR on the OLC, that is to say a report from the Office of Professional Responsibility on the Office of Legal Counsel, a report by one section of the Department of Justice on another. It may strike a few of us as silly to await a report on the drafting of torture memos (not to mention war memos) from the same agency that produced them, when we've already seen the memos and can remind ourselves of their blatant and gruesome criminality any time we like. But the House Judiciary Committee and Senate Judiciary Committee have delayed any investigations or impeachments until that report is released, state bar associations to which citizens have filed complaints have delayed any possible disbarrments until that report appears, and commentators have suggested for reasons that remain unclear to me that this report will change everything. Holder began his announcement on Monday by stating that he had "reviewed" this report "in depth." But he did not make it public. Had he done so, it would likely have called attention to his failure to open a criminal investigation into the crimes there described, namely the drafting of the memos. Instead, Holder leaked to the New York Times the findings of another OPR report recommending the reopening of investigations of particular torture cases that the Department of Justice had previously chosen not to pursue. Then he announced an investigation into those who had violated, as opposed to those who had drafted, the memos. This selective leaking was not entirely unlike the Bush-Cheney gang's practice of selectively leaking misleading claims about weapons of mass destruction to the New York Times and then discussing those reports the next day on television.
2. Recommendations by task force on interrogations and transfers.
After five months, a task force created by President Obama made public some of its recommendations to him, inlcuding recommending the creation of a new team to oversee interrogations, and recommending the continued use of rendition -- the practice of shipping people to other nations for interrogation. This generated a pair of contrasting stories. The first, which got more play, became another story of Obama (again) ending torture and putting the past behind us. The second became a story about concern that torture would be continuing, albeit outsourced. In other positive but limited news, the Obama administration leaked word that it would finally give the Red Cross, if not the public, the names of prisoners it was holding outside any rule of law in secret camps in Iraq and Afghanistan, and -- compelled by a court -- Obama finally released Mohammed Jawad, a teenaged prisoner held for six years in Guantanamo on no legal basis, as others still are.
3. Release of CIA IG report and other documents.
Following a suit by the ACLU, the CIA was forced to release (portions of) a report on torture produced by its inspector general in 2004 and other documents outlining the CIA's and OLC's torture policies as late as 2007. These documents added to our understanding of the crimes committed without exonerating anyone or establishing that torture had proved itself an effective interrogation method. Included in the report, but heavily redacted, are accounts of torture to the point of murder, which is arguably not a useful interrogation method. And, of course, were torture ever effective it would remain illegal as well as potentially counterproductive by producing animosity toward a nation that engages in it and by brutalizing those practicing it. Redacted from the report for no legitimate reason that I can imagine -- and the former inspector general himself objects to this censorship -- were the report's recommendations. Also released, to the Center for Constitutional Rights, was a pair of memos that former Vice President Cheney had been claiming to want released for months. Cheney had said repeatedly that these memos would prove that torture had been effective. Nothing in the memos actually backs up Cheney's claims or contradicts the evidence that torture does not work, evidence presented to the Senate Judiciary Committee by former interrogator Ali Soufan on May 13th. In fact, the documents that Cheney claimed would prove his case consist largely of information allegedly obtained from Khalid Sheikh Mohammed with no explanation of how it was obtained, except for references to his revealing information once confronted with the testimony of other prisoners. And much of the information relates to plots that were at most in the brainstorming stage. The time bomb wasn't ticking and in fact didn't even exist.
4. Appointment of prosecutor.
Having orchestrated the three announcements above, Holder announced the appointment of a special prosecutor with the limitations I've described.
THE FIRST BRANCH
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