Wednesday, August 26, 2009

The U.S. Torture Prosecutions

U.S. Attorney General's Eric Holder announced Monday that he has appointed an independent prosecutor to investigate allegations of torture against some CIA interrogators who questioned detainees captured in the previous administration's "war on terror." Law.com reports:

Career federal prosecutor John Durham, who is overseeing the investigation of the destruction of CIA interrogation tapes, was tapped Monday to explore potential violations of anti-torture laws rooted in the interrogation of certain detainees, Attorney General Eric Holder Jr. said in a statement Monday afternoon.

The Department of Justice internal watchdog, the Office of Professional Responsibility, submitted to Holder a report Monday that recommended the department re-examine earlier decisions, made under the Bush administration, to decline to prosecute apparent violations of anti-torture laws.

In reaching his decision to appoint a prosecutor, Holder also reviewed a 2004 report compiled by the CIA inspector general's office. "As a result of my analysis of all of this material, I have concluded that the information known to me warrants opening a preliminary review into whether federal laws were violated in connection with the interrogation of specific detainees at overseas locations," Holder said in a statement Monday.

The New York Times has posted the complete Justice Department report relied upon by the Attorney General. The Times has also published a number of related documents. Included are two reports that former Vice President Dick Cheney has previously demanded be released, which he claims demonstrate the "success" of the "harsh" interrogation methods that were implemented:
  • Khalid Shaykh Muhammad: Preeminent Source On Al-Qa’ida

  • Detainee Reporting Pivotal for the War Against Al-Qa’ida
  • The remaining documents released and posted by the Times were:
    • A 2006 letter from Steven G. Bradbury, then acting assistant attorney general, to John A. Rizzo, acting general counsel at the C.I.A., advising that the “conditions of confinement” in the agency’s overseas prisons were permitted by the Geneva Conventions (pdf).

    • A 2004 letter to Dan Levin, acting assistant attorney general, describing the C.I.A.’s use of interrogation tactics in combination (pdf).

    Constitutional attorney Glen Greenwald is highly critical of the limited scope of the Holder announcement:

    Holder's decision does not amount to the appointment of a Special Prosecutor, since a preliminary review is used, as he emphasized, "to gather information to determine whether there is sufficient predication to warrant a full investigation of a matter." More important, the scope of the "review" is limited at the outsetto those who failed to "act in good faith and within the scope of legal guidance" -- meaning only those interrogators and other officials who exceeded the torture limits which John Yoo and Jay Bybee approved. Those who, with good faith, tortured within the limits of the OLC memos will "be protected from legal jeopardy" (the full Holder statement is here).

    In theory, Holder's announcement does not foreclose the possibility that DOJ lawyers who authored the torture memos and/or those in the White House who authorized torture will, at some point, be investigated.

    ...As a practical matter, Holder is consciously establishing as the legal baseline -- he's vesting with sterling legal authority -- those warped, torture-justifying DOJ memos. Worse, his pledge of immunity today for those who complied with those memos went beyond mere interrogators and includes everyone, policymakers and lawyers alike: "the Department of Justice will not prosecute anyone who acted in good faith and within the scope of the legal guidance given by the Office of Legal Counsel regarding the interrogation of detainees." Thus, as long as, say, a White House official shows that (a) the only torture methods they ordered were approved by the OLC and (b) they did not know those methods were criminal, then they would be entitled to full-scale immunity under the standard Holder announced today.

    This quite likely sets up, at most, a process where a few low-level sacrificial lambs -- some extra-sadistic intelligence versions of Lynndie Englands -- might be investigated and prosecuted where they tortured people the wrong way. Those who tortured "the right way" -- meaning the way the OLC directed -- will receive full-scale immunity.

    This decision to investigate, and possibly prosecute, only low-level operatives - while shielding the actual architects of the Bush-Cheney torture policies - is unforgivable, a position also well- advocated in this comment from BNP.

    Whether or not torture is effective is not actually the issue. The real issue is that torture is just as illegal as bank robbery [see 18 U.S. Code 2340(a) and2340]. Until bank robbery is made legal, people who get caught helping themselves to a bank's money end up in rison. That's justice.

    If government officials want to commit torture without going to prison, then they need to pressure Congress to make torture legal.

    Until they do that, torture is a violation of law -- which means, at least in a nation that values equal justice under the law, that those who commit torture (or order underlings to do it) should be held accountable.

    Andrew Sullivan makes the broader point. With the inevitable, next Republican political ascendancy, pro-torture advocates will simply return to "business as usual." History will repeat itself unless the previous administration's torture practices are thoroughly discredited and legally repudiated:
    One political party in this country is now explicitly pro-torture, and wants to restore a torture regime if it regains power. Decent conservatives for the most part simply looked the other way. Unless these cultural forces in defense of violence and torture are defeated - not appeased or excused, but defeated - America will never return the way it once was. Electing a new president was the start and not the end of this. He is flawed, as every president is, but in my view, the scale of the mess he inherited demands some slack. Any new criminal investigation which scapegoats those at the bottom while protecting the guilty men and women who made it happen is a travesty of justice. If it is the end and not the beginning of accountability, it will be worse than nothing.

    Worse than nothing, indeed.

    - Garry J. Wise, Toronto

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