Monday, August 24, 2009

Holder Appoints Special Prosecutor to Invesigate Torture...Sort Of

Attorney General Eric Holder has announced that he is going to appoint a special prosecutor to investigate whether members of the CIA went too far while interrogating detainees in U.S. custody. Holder is going to name John Durham to lead this investigation, the scope of which will be quite narrow. From the Washington Post article that I linked to above (emphasis mine):

Durham's mandate, the sources added, will be relatively narrow: to look at whether there is enough evidence to launch a full-scale criminal investigation of current and former CIA personnel who may have broken the law in their dealings with detainees. Many of the harshest CIA interrogation techniques have not been employed against terrorism suspects for four years or more.

The attorney general selected Durham in part because the longtime prosecutor is familiar with the CIA and its past interrogation regime. For nearly two years, Durham has been probing whether laws against obstruction or false statements were violated in connection with the 2005 destruction of CIA videotapes. The tapes allegedly depicted brutal scenes including waterboarding of some of the agency's high value detainees. That inquiry is proceeding before a grand jury in Alexandria, although lawyers following the investigation have cast doubt on whether it will result in any criminal charges.


With Monday's looming public announcement, however, the attorney general and his national security team appear to be staking out a middle ground -- rejecting a broad inquiry that could result in possible prosecutions of Justice Department lawyers in the Bush years as well as cabinet officers who developed counterterrorism policy; but giving civil liberties advocates at least part of what they wanted without supporting a full, independent truth commission to examine a host of Bush national security practices.

In other words, this is a sham. Holder is opting to appoint a prosecutor (who is already involved in another investigation) to see if anyone in the CIA acted outside of the "legal" framework that was set up by the Bush Administration (and the OLC lawyers like John Yoo) but the investigation will not have a broad enough scope to examine the legality of the interrogation program itself. Remember when U.S. soldiers at Abu Ghraib prison were prosecuted and labeled a "few bad apples"? This may turn out similarly. The argument for prosecutions is not that officials went beyond what the Bush Administration claimed was legal, but that the Bush Administration's (in this case) interrogation policies need to be examined for criminal wrong-doing. The Attorney General apparently has no interest in doing the latter.

Also, take note of the final paragraph of the Washington Post piece that I quoted above. Notice the framing of the issue, that Eric Holder is "staking out a middle ground" on this issue as if the rule of law is some kind of political debate. While there very well could be potential political implications for appointing a special prosecutor with a broader mandate, this is not the same thing as taking a middle ground on whether to investigate potential violations of the law. After all, how does one take a centrist role and compromise on enforcing the rule of law?

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