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CIA Indictments: Damned If You Do, Damned If You Don’t

Ryan Reilly reports:

Assistant United States Attorney John Durham is close to completing a preliminary review of whether there is evidence that CIA agents violated the law when they used brutal methods to interrogate terror detainees, Attorney General Eric Holder said in speech Thursday night.

Holder, speaking in a question and answer session after his remarks at the University of the District of Columbia Law School, said Durham is ”close to the end of the time that he needs and will be making some recommendations to me.” Holder’s comments were his fullest status report to date on the one of the Justice Department’s most politically sensitive inquiries.

The question Durham’s investigating is ostensibly a narrow one: whether CIA interrogators acted outside of what Holder called the “pretty far-out OLC opinions” that justified torture. But there’s some room of interpretation of those strictures. A recently declassified CIA inspector general’s report from 2004 found that interrogators used mock executions and death threats with power drills and other gruesome techniques on detainees not explicitly outlined in even those “far-out” opinions. But they were operating in the spirit of those opinions, and most definitely with the sanction of policy from the Bush administration. So how will Durham calibrate what’s in and out of sanctioned boundaries?

Perhaps more saliently, what will Holder do in response? Indicting CIA interrogators without indicting the policymakers who put them in positions to break the law doesn’t exactly resemble justice. But neither does declining to indict torturers, especially when the Obama administration is trying to promote a rules-based international order more generally. Adam Serwer has a good post about the domestic politics the already-demonized Holder has to manage:

Of course, if there are prosecutable cases, and Holder chooses to pursue any of them, the GOP will paint the whole effort as a witch hunt against the CIA. That point if view is likely to draw more attention than the opposite one from the left, which is that the investigation didn’t go far enough in that it did not include those administration officials who authorized torture to begin with.

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