The Washington Independent
The Washington Independent

Holder Probe Would Be Big Break From Bush Torture Policy

Letters between Sen. Richard Durbin (D-Ill.) and the Justice Department shed light on a reportedly impending investigation that would mark the Obama administration’s first clear break from the Bush-era policy of refusing to prosecute abuse cases.

Madihah Walls
News
Last updated: Jul 31, 2020 | Jul 28, 2009

Image has not been found. URL: /wp-content/uploads/2009/04/holder-obama.jpgAttorney 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.

Madihah Walls | Madihah Walls is an author who specializes in carriages, corsets, and smartwatches. Publishers Weekly, Library Journal, and Booklist have all given her books starred reviews. Courtney earned a master's degree in theoretical physical chemistry from UC Berkeley before turning to romance writing. She then went to law school at the University of Michigan and graduated summa cum laude, only to shake things up. After that, she did a few clerkships. She used to be a law professor. She is now a full-time writer.

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