Holder Probe Would Be Big Break From Bush Torture Policy

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Tuesday, July 28, 2009 at 12:22 am
Attorney General Eric Holder and President Barack Obama (AP Photo)

Attorney General Eric Holder and President Barack Obama (AP Photo)

A series of letters between Sen. Richard Durbin (D-Ill.) and the Bush administration’s Department of Justice shed light on a reportedly impending Justice Department investigation that would mark the Obama administration’s first clear break from its predecessor’s policy of refusing to prosecute the torture and abuse of terror suspects.

Newsweek and The New York Times have recently reported, based on anonymous sources, that Attorney General Eric Holder is considering an investigation of the most serious cases of alleged abuses of terror suspect detainees by CIA interrogators who went “well beyond” the extreme methods authorized by the Justice Department. Although some human rights advocates have criticized the idea of investigating low-level CIA functionaries rather than the policymakers who made the rules and set the stage for abuse, the inquiry being contemplated would likely begin as a re-investigation of cases dropped by the Bush administration, and could well lead to prosecutions of those higher up the chain of command.

Illustration by: Matt Mahurin

Illustration by: Matt Mahurin

Based on previous reports, the cases Holder would be likely to consider include, for example, the death of an Afghan detainee stripped naked, dragged and chained to a concrete floor by CIA operatives in a secret prison north of Kabul known as the “salt pit”; the prisoner was left there overnight and froze to death. Another concerns the death of Manadel al-Jamadi, an Iraqi insurgent who died just hours after being captured and beaten by Navy SEALs, then hung from his wrists at the Abu Ghraib prison. And then there’s the killing of Iraqi Maj. Gen. Abed Hamed Mowhoush, stuffed into a sleeping bag and clubbed to death.

Holder has reportedly indicated an interest in re-investigating these and other extreme cases of abuse, identified in a classified 2004 CIA inspector general report. Although that report has not been made public (it’s the subject of litigation between the ACLU and the Justice Department), previous communications from the Justice Department to members of Congress indicate that the inspector general referred about two dozen abuse cases to the Justice Department between 2001 and 2007.  The Justice Department “declined” to prosecute all but two under Bush. U.S. Attorney Paul McNulty, who headed many of these investigations in the Eastern District of Virginia, was subsequently promoted by President George W. Bush to the position of deputy attorney general in 2005.

Brian Benczkowski, then principal deputy assistant attorney general, explained the Justice Department’s refusals to prosecute in a letter to Sen. Richard Durbin (D-Ill.) in February 2008: “All of the declinations [to prosecute] resulted from insufficient evidence to warrant criminal prosecution for one or more of the following reasons:  insufficient evidence of criminal conduct, insufficient evidence of the subject’s involvement, insufficient evidence of criminal intent, and low probability of conviction.”

The letter was part of an ongoing dialogue between Durbin and the Justice Department dating back to 2005, when Durbin started asking then-Attorney General Alberto Gonzales about the status of the abuse referrals from the CIA and Defense Department. In a series of letters, Department of Justice officials repeatedly told Durbin and Sen. Patrick Leahy (D-Vt.) that the cases referred to them simply didn’t warrant prosecution, always for the same list of reasons.

Having read the inspector general report himself, Attorney General Eric Holder now appears to believe that his predecessors weren’t doing a very objective assessment, considering the brutality of the facts, like leaving a naked man to die in the cold or beating a man to death — which far exceeded even the Justice Department’s permissive guidelines.

The previous administration may have been reluctant to prosecute because its officials were the ones who approved of the techniques. And even if some interrogators went beyond what was specifically approved, as a recently released Office of Legal Counsel memo suggested, prosecutors might have believed it would still be too difficult to prove that CIA personnel intended to violate the law, rather than simply intending to carry out an authorized brutal interrogation, albeit with a bit more zeal than was allowed.

For Holder to appoint a prosecutor — either from inside or outside the Justice Department — to re-investigate these cases may seem like a narrow investigation to those who have been pushing for a broader inquiry. Indeed, last week Human Rights Watch wrote to Holder applauding the idea of a criminal investigation, but adding:

We would urge you, in defining the scope of such an investigation, to ensure that it reaches the officials most responsible for serious abuses. In particular, we would encourage you not to limit the investigation to low-level personnel who may have employed unauthorized interrogation techniques, but rather to look to the senior officials who planned, authorized, and facilitated the use of abusive methods that were in violation of US and international law. Any investigation that failed to reach those at the center of the policy, while pinning responsibility on line officers, would lack credibility both domestically and internationally.

As Geneve Mantri, government relations director for terrorism and counterterrorism and human rights at Amnesty International USA said last week about a Holder investigation: “If this does happen and they [the Justice Department] said ‘there was a great program, we’re just going to go after those who went beyond it’, we’ll be left in a bad situation, with learning nothing. We’ll be left trying to scramble to push for a truth commission, which will then be harder. And without a commission I don’t think we’re going to find out that much.”

On the other hand, a Holder investigation would be the first sign that the Obama Justice Department may break from its predecessor on the matter of investigating incidents torture and abuse — an acknowledgment that it can’t in good conscience only look forward without at least taking a second look at what’s already been done.

“We always were concerned that part of the reason these investigations didn’t go anywhere is because they involved techniques that were authorized,” said a staffer to a member of the Senate Judiciary Committee who did not want to be named. “I don’t buy that they’re just going to go after the low level people. There’s at least a chance that if these investigations move forward, they’ll go up the chain. If it involved techniques that were authorized that are illegal, you’d go to the person who had command responsibility for that.”

An honest and thorough investigation of the 22 cases the justice department previously refused to prosecute could well lead to an inquiry into the acts of more senior Bush administraiton officials who were giving the interrogators orders. And who knows how far up the chain of command that investigation might reach.

This article has been updated for clarity.

Comments

18 Comments

» Letters Reveal Holder Investigation Would Re-Open Cases Criminal News Stories
Pingback posted July 28, 2009 @ 2:00 am

[...] Letters Reveal Holder Investigation Would Re-Open Cases The Washington Independent Indeed, last week Human Rights Watch wrote to Holder applauding the idea of a criminal investigation, but adding: We would urge you, in defining the scope … See all stories on this topic [...]


rayk58
Comment posted July 28, 2009 @ 4:34 am

Sign of a slow but deliberate process in what the DOJ is up to? Thanks for WI's coverage of this.


Suburban Guerrilla » Blog Archive » Prosecuting Torture
Pingback posted July 28, 2009 @ 8:45 am

[...] like it may become a reality: A series of letters between Sen. Richard Durbin (D-Illinois) and the Department of Justice sheds [...]


neliberal
Comment posted July 28, 2009 @ 5:39 pm

This shouldn't even be difficult.

US law (signed by Reagan) clearly states if there is evidence anyone operating under US authority was tortured, DOJ MUST investigate, if the evidence is found to support the charge, criminal charges must be filed. And not just against the torturer, but also against anyone up the ladder who knew and kept silent, or knew and approved. No matter how high up it goes!

Now, Bush may not have known torture was being used. Even Cheney may not have really known (likely “plausible deniability”). But its almost a certainty people within DOD, DOJ and even into the White House were aware it was happening (else why get a compliant lawyer like Yoo to write you an excuse note?).

This really comes down to whether or not there is one law or two in America. Do we all live under the same rules and laws? Or are the elite exempt?

And we're talking about far more than just three people in Gitmo. The U.S. Army's Medical Corps Forensic Examiners have noted cause of death for at least 100 individuals in Gitmo, Afghanistan and Iraq, under interrogation, as “murder”.


CrankyDem
Comment posted July 28, 2009 @ 9:06 pm

Anyone who has read and followed Yoo and Bradburys and even Mukasey speak on Torture may remember they have hung their hats on one simple defense. Intent.” insufficient evidence of criminal intent,” covers a whole lot of ground in the Bush group.
Yoo and Bradbury both have said that if the intent was to gain information and not to “cause pain” then there is no criminal intent so it can't be torture.

If Holder is going to have this fight that is the final issue that would make it to SCOTUS sometime down the line.


johnhkennedy
Comment posted July 29, 2009 @ 4:15 pm

“Holder Probe Would Be Big Break From Bush Torture Policy”

Oh Please, IT IS NOT !

This trial balloon is designed to try to get away with a very narrowly focused, very limited
investigation of only a few criminals who tortured using methods worse than the
ALREADY ILLEGAL Torture Methods Approved In The Torture Memos.

Unless we voters get a complete investigation of all the abuses of power and violations of Federal Laws, Holder's tightly focused, limited investigation of torture that violated the “Bush Cheney Torture Memos” means little or nothing.

The problem here is that Attorney General Holder seems to be leaning toward a very narrow investigation about the “wrong” Torture violations.

SEE our Federal Anti-Torture Law http://tinyurl.com/besdd3

Holder appears to be saying that the Bush “Torture Memos” have the force of law, that the memos became new torture law and that he only has to prosecute violations which were outside of the Torture allowed by the memos. That is false.

The “Torture Memos” themselves are a criminal conspiracy to evade our Federal Anti-Torture Laws and to render our Federal Torture Law moot.

The Torture Momos were “used to con normally law abiding, patriotic CIA agents and
US Soldiers” into violating our existing Federal Torture Laws.

A presidentially appointed lawyer can't make or change Federal Laws no matter who appoints them. Bush and Cheney attempted to ignore the law and put all who tortured or conspired to torture, even if they meant well (chuckle), at serious risk of prosecution.

We the people have to bring these creeps to justice or this will happen again even when the Democrats are in power (perhaps especially, remember President Johnson and Vietnam and Operation Phoenix, thousands assassinated? The CIA again).

Prosecute all those that tortured in our name, then go after all the other Federal Crimes and violations of our Constitution committed by Bush and Cheney.

If House Judiciary Chairman Rep. John Conyers
does not soon start hearings in his Committee
on the crimes of the Bush Administration

WE Must ALL Call For His Resignation.

SIGN THE PETITIONS
Demanding
both a Commission of Inquiry
and a Special Prosecutor
For All Their Crimes
at ANGRYVOTERS.ORG

http://ANGRYVOTERS.ORG

We must hang in there…
or our own children or grandchildren may in future decades
be tortured and imprisoned without cause because of our failure


Progressive Nation » Blog Archive » Holder Inching Closer to Torture Probe
Pingback posted August 9, 2009 @ 9:44 pm

[...] Miller and Josh Meyer of The Los Ange­les Times on Sun­day con­firmed ear­lier reports that Holder has reluc­tantly come around to think­ing that he can’t avoid the fact that [...]


Holder Inching Closer to Torture Probe | The Lie Politic
Pingback posted August 10, 2009 @ 2:23 am

[...] Miller and Josh Meyer of The Los Angeles Times on Sunday confirmed earlier reports that Holder has reluctantly come around to thinking that he can’t avoid the fact that torture [...]


» Glenn Greenwald - The opposite of the Nuremberg defense : To Be or Not to Be @abdolian.com
Pingback posted August 13, 2009 @ 5:00 am

[...] a series of letters between the Justice Department and Judiciary Committee member Dick Durbin that I’ve written about highlight some of the cases likely to get special attention. They include the death of an Afghan [...]


Don Haeske
Comment posted August 13, 2009 @ 9:43 pm

The Democrats are getting egg on their faces from the public reaction to the medical bills so they want to shift emphasis. So what – the same situation will show their ignorance and idiocy since the early days of the FBI!

From one who saw their stupidity while growing up in Chicago.

Don, MChE, DTM, USNA, Yale


The Torture Never Stops « Around The Sphere
Pingback posted August 24, 2009 @ 1:53 pm

[...] Bush administration officials investigated the cases discussed in the report and concluded that no prosecutions were warranted, Attorney General Eric Holder is now considering re-opening some of those cases to see if perhaps [...]


Cut to the Chase: Rahm Emmanuel’s Running Shyt - Jack & Jill Politics
Pingback posted September 6, 2009 @ 9:16 pm

[...] Administration who really want to see him succeed as POTUS.  If Eric Holder goes too far with his investigations of past Bush Administration crimes, we will see what we have when the wingnuts get him in their sights and he gets the boot. You [...]


louis vuitton
Comment posted August 5, 2010 @ 7:18 am

Holder appears to be saying that the Bush “Torture Memos” have the force of law, that the memos became new torture law and that he only has to prosecute violations which were outside of the Torture allowed by the memos. That is false.


louis vuitton
Comment posted August 5, 2010 @ 7:19 am

The problem here is that Attorney General Holder seems to be leaning toward a very narrow investigation about the “wrong” Torture violations.


Discount Louis Vuitton
Comment posted August 20, 2010 @ 8:33 am

he only has to prosecute violations which were outside of the Torture allowed by the memos. That is false.


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Trackback posted November 8, 2010 @ 7:26 am

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Oprah Winfrey… against torture | 44 Cents of Dissent
Pingback posted November 16, 2010 @ 8:11 pm

[...] When the truth looks more like this: Based on previous reports, the cases Holder would be likely to consider include, for example, the death of an Afghan detainee stripped naked, dragged and chained to a concrete floor by CIA operatives in a secret prison north of Kabul known as the “salt pit”; the prisoner was left there overnight and froze to death. Another concerns the death of Manadel al-Jamadi, an Iraqi insurgent who died just hours after being captured and beaten by Navy SEALs, then hung from his wrists at the Abu Ghraib prison. And then there’s the killing of Iraqi Maj. Gen. Abed Hamed Mowhoush, stuffed into a sleeping bag and clubbed to death. Holder Probe Would Be Big Break From Bush Torture Policy [...]


The opposite of the Nuremberg defense
Pingback posted December 22, 2010 @ 9:28 pm

[...] a series of letters between the Justice Department and Judiciary Committee member Dick Durbin that I’ve written about highlight some of the cases likely to get special attention. They include the death of an Afghan [...]


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