Prosecuting the CIA - link
Eric Holder unleashes a special counsel on U.S. war fighters.
'It would be unfair to prosecute dedicated men and women working to protect America for conduct that was sanctioned in advance by the Justice Department." –Attorney General Eric Holder, April 2009
"Justice Department Names Prosecutor to Reopen CIA Abuse Cases" –Wall Street Journal, yesterday
Mr. Holder had it right the first time. His about-face yesterday, compounded by his release of a 2004 internal CIA report on that agency's handling of terrorists, opens a political war that President Obama, the CIA and above all the country will live to regret.
This is a trap the Administration set for itself. Mr. Obama and his team have attempted to appease their political left by publicly denouncing the Bush Administration's national security policies, even as they claimed to want to forget the past. Their disparagement has only fed the liberal demand for Bush prosecutions and increased the pressure on Mr. Holder to appoint a prosecutor.
Justice threw kerosene on those politics yesterday with its release of findings compiled by the CIA's inspector general in 2004 about the agency's detention and interrogation of terrorists. The ACLU had won a court order for their release. We were still reading its hundreds of pages at deadline, but most of the supposedly damning details had already been leaked. The new bits include the fact that interrogators threatened terrorists with a gun shot in a nearby room, with a power drill and cigarette smoke, and against Khalid Sheikh Mohammed's family. We suspect millions of Americans will be shocked to learn that these unshocking details are all that the uproar over "torture" is about.
The CIA itself commissioned the IG review early in the first Bush term, the agency sent an unredacted copy to the Senate and House Intelligence Committees in 2004, and the entire membership of both those committees was given access to the report in 2006. The CIA also sent the report to the Department of Justice in 2004, referring allegations of abuse for potential prosecution. Current CIA Director Leon Panetta, in a note yesterday to agency employees, pointed out that "career" prosecutors (not Bush appointees) evaluated each of those claims "carefully and thoroughly, sometimes taking years to decide if prosecution was warranted or not."
The DOJ brought only one case, convicting a CIA contractor who beat a detainee who subsequently died. In no other case did Justice attorneys decide that a prosecution was warranted. This is no surprise, given that most of the techniques outlined in the CIA report had been approved by superiors and declared to be legal in official legal opinions.
Yet none of this counted for much yesterday, as Mr. Holder used the report's release as an occasion to appoint federal prosecutor John Durham as a special counsel to re-open the cases for potential criminal prosecutions. His decision was supported by a recommendation from Justice's Office of Professional Responsibility, which has been complaining about CIA practices for five years and now finally has a willing ear in the new Attorney General.
By naming Mr. Durham, who is already investigating destroyed CIA videotapes, Mr. Holder suggested this was merely an expansion of an existing probe and would be limited in scope. He described Mr. Durham's task as a mere "preliminary review" of overseas interrogations, which may not result in any charges.
We hope he's right, but special prosecutions, once unleashed, have often been impossible to control. Mr. Durham may well begin by examining isolated case where CIA interrogators are accused of breaking the law, such as the CIA employee who supposedly fired a gun in a room close to a detainee, in an attempt to make the detainee believe a colleague had been executed. This threat of potential imminent death may have violated some statute, though it was used against men who were thought to have information that could save innocent American lives. But Mr. Durham will be under enormous pressure to investigate everyone up and down the CIA chain of command, starting with those who merely followed the legal opinions, and going all the way to senior CIA officials such as former Director George Tenet and other Bush Administration officials.
Mr. Holder's decision has already re-energized demands to prosecute the Bush lawyers who wrote the legal opinions that authorized enhanced interrogations. As New York liberal Representative Jerry Nadler declared recently, going after the CIA interrogators who "waterboarded" a detainee with "eight ounces" of water rather than the Bush lawyers who decreed they could only use three ounces, would be "terrible."
All of this will further demoralize a CIA that has already been stigmatized by House Speaker Nancy Pelosi and other Democrats as an agency populated by rogues who lied to Congress. This is the same agency that Mr. Obama and all Americans are counting on wage a war against al Qaeda and deter future terrorist attacks. The message that Mr. Holder's criminal probe will send to thousands of men and women is that they had better not do anything remotely controversial on behalf of American safety, even with a lawyer's permission. This war against our own war fighters comes just as President Obama's counterterror escalation in Afghanistan is getting more difficult.
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By threatening to prosecute CIA officials, the Obama Administration is taking ownership of future troubles in a way that will only do itself harm. Like the Church and Pike probes of the 1970s, Americans will once again see that the Democratic Party cares as much or more about settling scores against fellow Americans as it does about fighting the war on terror. Mr. Holder yesterday acknowledged that his decision to reopen the old CIA wounds would be "controversial." He will soon learn how much.