The pendulum appears to have swung back in the other direction on the issue of criminal investigations into Bush-era torture. It had looked for a while like President Obama’s stated desire to look forward not back had carried the day. But now it appears that Attorney General Eric Holder — independent of his boss’s political concerns, which is how things should work — is leaning back towards initiating a probe. The news was first reported over the weekend by Newsweek, then picked up today by the New York Times and Washington Post.
But whatever Holder ultimately decides, there are already several ongoing government efforts to investigate torture, which figure to substantially fill out our still patchwork understanding of the issue. So as we wait for official word from the Justice Department on a criminal inquiry, it’s worth being clear about what those efforts are, and how they relate to each other.
• Perhaps most prominently, there’s a CIA inspector general’s report on the program. A heavily redacted version of the report was released in 2004. Some Democrats who have seen the report have cited it as offering a key rebuttal to Dick Cheney’s high-profile claims that torture is effective. Holder’s recent shift toward a criminal investigation reportedly came after reading the full report. The agency has four times delayed the date for the releasing the report — it’s now scheduled to come out at the end of next month.
• There’s also a report being compiled by the Justice Department’s Office of Professional Responsibility — the department’s internal ethics monitor — focusing on former DOJ lawyers like John Yoo, Jay Bybee, and Steven Bradbury, who wrote opinions justifying the use of harsh techniques including water-boarding and sleep deprivation. The Obama administration has already released several of those opinions, whose contents prompted renewed calls for a criminal probe. Like the CIA IG report, the OPR report is expected “by summer’s end”, according to the Times.
• And there’s also a criminal investigation at the CIA, underway for 18 months, into the agency’s destruction of videotapes that show torture. Several former CIA officials have testified before a grand jury. The probe is being led by a special prosecutor, John Durham, who has been mentioned as a possible candidate to head up the broader DOJ torture probe that Holder is weighing. It’s unclear when, if ever, the investigation’s findings will be made public.
Given that the results of two of these probes will — barring further delays, which are always possible — be released by the end of August, it’s easy to see Holder making a political decision to hold off on making a final decision about a criminal investigation until those missing pieces of the puzzle are filled in.
But he’ll have to make the call eventually — and the fact remains that only a criminal investigation can accomplish the twin goals of forcing us to fully confront what was done in our name, and of holding accountable those who did it.
Late Update: We missed one more investigation: a Senate intelligence committee probe that appears to be primarily focused on whether CIA officers who carried out the torture program even complied with the Justice Department’s (already very forgiving) guidelines on which techniques were legal.