Newly appointed investigator may find it impossible -- or at least very difficult -- to conduct a thorough and ethical investigation that stays within those narrow bounds.
After months of leaks and speculation about its content, the Department of Justice yesterday produced a declassified version of the 2004 CIA inspector general report that provides details of the CIA’s investigations of certain detainees in the Bush administration’s “war on terror.” At almost the same time, Attorney General Eric Holder announced that he would conduct a “preliminary review” into those interrogations to determine “whether federal laws were violated in connection with the interrogation of specific detainees at overseas locations.”
But while the Holder probe is expected to be narrow, focusing only on about a dozen cases already investigated and not prosecuted by the Bush Justice Department, the content of the CIA inspector general report suggests that a far broader investigation is warranted. The report makes clear that virtually every step taken was approved by higher-level officials in the government, including lawyers in the Department of Justice. So the newly appointed Assistant U.S. Attorney John Durham, who’s already investigating the destruction of the videotapes of CIA interrogations, may find it impossible — or at least very difficult — to conduct a thorough and ethical investigation that stays within those narrow bounds.
Take, for example, the fact that the report explicitly acknowledges that the Department of Justice approved the use of certain so-called “enhanced interrogation techniques” in ways that were more extreme and more frequent than its written legal memos allowed.
“With respect to two detainees at those [secret CIA] sites,” says the report, referring to terror suspects Abu Zubaydah and Abd Al-Rahim al-Nashiri, “the use and frequency of one [enhanced interrogation techniques], the waterboard, went beyond the projected use of the technique as originally described to [Department of Justice].” But CIA interrogators did not decide to go beyond those guidelines on their own. In fact, the report continues, the “Agency, on 29 July 2003, secured oral [Department of Justice] concurrence that certain deviations are not significant for purposes of [Department of Justice’s] legal opinions.”
Justice Department officials appear to have approved the repeated waterboarding of these men. Other documents confirm that CIA interrogators used the technique on one suspect up to 183 times, and on Zubaydah up to 83 times. A prosecutor taking his job seriously would have to question Justice Department officials about who approved what and why, what instructions they were given and how those instructions were communicated.
But there’s more.
Although the inspector general’s report is heavily redacted, 33 out of 105 pages in all, it strongly suggests that all of the guidelines governing the detention and interrogation of detainees were approved by Justice Department lawyers. Yet the report also suggests that the way the guidelines were written and approved was so vague as to encourage their violation.
The report says that “[a]lthough the [Department of Central Intelligence] Guidelines are an improvement over the absence of such [Department of Central Intelligence] Guidelines in the past, they still leave substantial room for misinterpretation and do not cover all Agency detention and interrogation activities.”
Of course, vagueness isn’t a crime. It may be just bad lawyering. But if Justice Department lawyers deliberately wrote or approved the CIA’s guidelines in a way that was vague and left “substantial room for misinterpretation” so as to encourage their violation, then they were not acting in good faith. And if they knew that the guidelines, as written, were likely to lead to illegal conduct, then they could be liable for conspiracy to commit torture.
The lawyers’ intent in interpreting the law and approving legal guidelines is key. And for a prosecutor investigating how certain terror suspects came to be tortured and even killed during their interrogations, looking into how the techniques that led to the abuses were vetted and approved would seem to be an integral part of any “preliminary review” that Holder may be contemplating.
The vagueness of the guidelines isn’t the only evidence of bad faith on the part of the Justice Department’s lawyers. Just take a look at Footnote 26 of the IG report.
The footnote makes clear that the Justice Department lawyers at the Office of Legal Counsel accepted the CIA’s explanation that waterboarding would cause no lasting harm because the technique is used in a more limited way on U.S. soldiers in their Survival, Evasion, Resistance and Escape, or SERE, training, which teaches them to withstand an enemy interrogations.
Footnote 26 points out, however, that medical professionals told the inspector general that “the SERE waterboard experience is so different from the subsequent Agency usage as to make it almost irrelevant,” and “there was no* a priori* reason to believe that applying the waterboard with the frequency and intensity with which it was used by the psychologist/interrogators was either efficacious or medically safe.”
In fact, critics of the CIA program have been making the point for months now that repeated, persistent near-drowning, days at a time of sleep and food deprivation, painful stress positions and the range of other techniques used on terror suspects is different when used in the context of a real interrogation by hostile forces, than it is in military simulations by fellow troops.** **
Maybe it’s possible that the lawyers didn’t think of that themselves. Similarly, maybe it’s possible that, as they wrote in their legal memos, they believed that these techniques would not “shock the conscience” — the Supreme Court’s standard for determining when government officials have violated the Fifth Amendment’s requirement of due process. (The lawyers concluded in their memos that none of these techniques rose to that level.)
Maybe these lawyers were just taking the information they were given and doing what they were told. Still, it would seem that a serious prosecutor probing whether CIA interrogators broke the law would have to ask how and why the Justice Department’s lawyers advised the interrogators based on a factual scenario that seems patently implausible.
Holder’s announcement that he’ll open this preliminary review has provoked reactions ranging from praise to outrage. The Center for Constitutional Rights said Monday that “Responsibility for the torture program cannot be laid at the feet of a few low-level operatives.” While some CIA agents may have gone beyond the limits set out by the lawyers “who twisted the law to create legal cover for the program,” the group stated, “it is the lawyers and the officials who oversaw and approved the program who must be investigated.” The organization called on Holder to appoint an independent special prosecutor “with a full mandate to investigate those responsible for torture and war crimes, especially the high ranking officials who designed, justified and orchestrated the torture program.”
Others, such as former FBI and Defense Department interrogators, have praised the decision to investigate, but called for a broader probe by an independent commission as well. “A nonpartisan, independent commission with subpoena power should assess the deeply flawed policy making framework behind the decision to permit torture and cruelty,” wrote former FBI official Jack Cloonan, and Defense Department interrogators Steven Kleinman and Matthew Alexander to the chairmen of the House and Senate Judiciary and Intelligence Committees.
And Senate Judiciary Committee Chairman Patrick Leahy (D-Vt.) himself issued a statement on Monday saying that the CIA report “underscores why we need to move forward with a Commission of Inquiry, a nonpartisan review of exactly what happened in these areas, so that we can find out what happened and why. Who justified these policies? What was the role of the Bush White House? How can we make sure it never happens again? Information coming out in dribs and drabs will never paint the full picture.”
Whether as part of the criminal probe by Durham or as part of a broader investigation by an independent prosecutor or commission, a more thorough investigation may be unavoidable — at least, if the CIA inspector general report receives the careful reading it deserves.
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