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WaPo: Holder To Name Torture Prosecutor
The Washington Post is reporting that Eric Holder has decided to name a special prosecutor to probe -- though only up to a point -- instances of torture under the Bush administration.
According to the paper's sources, Holder will name John Durham, a career prosecutor with a reputation for independence and impartiality, who led the investigation into the destruction of CIA interrogation tapes. Read more about Durham here.
It looks like the probe will be somewhat limited in scope. The Post says that "fewer than a dozen cases will be examined, most from Iraq and Afghanistan." Perhaps more important, it adds:
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.
And further down it adds:
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.
That approach, which previous reports had hinted at, would leave out the DOJ lawyers like John Yoo and Jay Bybee who approved the harsh techniques in the first place, as well as top Bush administration officials like Dick Cheney who set the policy. And since both Holder and President Obama have said they don't believe that CIA personnel who stayed within what was approved by DOJ lawyers should be prosecuted, that would seem to leave only those CIA officers who exceeded the DOJ guidelines.
| TOPICS: CIA, CIA Tapes, Eric Holder, John Durham, Justice Department, Torture
Josh
Zachary
"though only up to a point"
If that is so, why bother!
August 24, 2009 3:05 PM | Reply | Permalink
Because the new paradigm is "I was just issuing orders" not "I was just following orders". This way, the little people get held to account.
August 24, 2009 3:08 PM | Reply | Permalink
In what planet do special prosecutors probe only up to a certain point?
August 24, 2009 3:09 PM | Reply | Permalink
This is worse than no prosecution at all.
If all they are going to do is lock up a few more Lynndie Englands', why bother?
If the investigation neglects the people who came up for the rationale, justification, and approval of torture, the whole thing will be a sham.
August 24, 2009 3:13 PM | Reply | Permalink
This seems like an exercise in futility to me. They don't intend to prosecute the authors of the torture policies or the people carrying out these policies? Who does that leave? Who exactly are these CIA officers who exceeded DOJ guidelines? The guidelines allowed for all the torture carried out, so no one exceeded guidelines.
It seems to me they are looking for scapegoats to say they took action without going after the real war criminals behind this travesty. It would be like prosecuting people for war crimes after WWII who would be the equivalent of Schultz and Klink instead of going after people like Goering and Hess.
August 24, 2009 3:28 PM | Reply | Permalink
Oy. I soooo agree with everyone who points out that this is nearly worthless. WHY in God's name aren't we going after Yoo et al who started this mess to begin with?
I must say - this has been my biggest Obama disappointment so far. [Sigh]
August 24, 2009 3:31 PM | Reply | Permalink
This is beginning to sound like "lets appease the left with something" week.
Is the Obama administration now trying to sell the "few bad apples" narrative on us?
Accountability, unlike the public option, can not be compromised. You either do it full on, 100%, all inclusive, or you are complicit in covering up war crimes.
It's taken them this long to appoint a special prosecutor for limited investigations. Starting from the bottom and working there way all the way up to the....bottom.
War crimes start at the top and work there way to the bottom.
August 24, 2009 3:33 PM | Reply | Permalink
Easy everybody....lets take a minute to consider things and speak to the reality of the situation
"up to a point" as a matter of law, is not a reality, this assumes that new facts do not come to light, an unlikely scenario in most criminal cases, especially a case w/ classified information.
This is the appropriate political cover to not appear as though there is a witch-hunt going on.
Think of it this way...
Does a DA in a case involving drug dealing or extortion stop investigating the Money Laundering portion of the operation just because the original scope of the investigation stemmed from a drug deal or extortion payoff? Clearly not. In this case instead of following the $$$,we follow the chain-of-command. (I would say we know where that leads, agreed?)
The more that comes to light the deeper the Sp. Prosecutor is required to dig.
Besides- Ken Starr's mandate had to do w/ Land Deals and such, but clearly not Bl*w J*bs, yet that where his focus was.
This is a good thing.
August 24, 2009 3:40 PM | Reply | Permalink
You are completely mistaken.
Ken Starr was given such free rein to investigate blow jobs because he was appointed under a very specific law, the Ethics in Government Act, passed in the wake of Watergate on the assumption that an out-of-control President would abuse his powers, and not merely his marital vows, through such crimes (well, they used to be crimes) as warrantless wiretapping, authorizing assassination squads, etc.
As wikipedia tells us:
"The prosecutor, who was appointed by a special panel of the United States Court of Appeals for the District of Columbia Circuit, could investigate allegations of any misconduct, with an unlimited budget and no deadline, and could be dismissed only by the Attorney General for "good cause" or by the special panel of the court when the independent counsel's task was completed."
Compare that with Durham's anemic mandate, and you'll lose your optimism.
http://en.wikipedia.org/wiki/United_States_Office_of_the_Independent_Counsel
August 24, 2009 3:53 PM | Reply | Permalink
I believe you are being too pessimistic here. While the mandate does seem anemic, I must say that the likelyhood of the mandate expanding is creeping 100%.
This is, as Mr.E states below, the "foot in the door" approach. Sure it is political posturing to set the mandate so low. But clearly there is low-hanging-fruit that will be picked to adjust the mandate. This is the Bush administration we are talking about here. This should be quite simple.
The imperative is that it not look as though the Obama Admin. is just trying to score Political points. The expanded scope needs to originate from a request from the Spec Prosecutor or clear reason for the Att. Gen. to expand the scope based on information gained from this initial investigation.
I know we are all getting a little worked up w/ all the attention the non-sensical arguments from the GOP are getting in the MSM regarding the health care efforts but lets have little more patience and reflection before we get too worked up.
August 24, 2009 4:19 PM | Reply | Permalink
Correct me if I'm wrong, but I'm thinking that because the USOIC was disbanded/expired in 1999 then appointing someone with the same wide-ranging powers as mr. starr enjoyed was never an option.
Whoever was appointed had to have a mandate that defined the scope of his investigation; in this case to be conservative in that scope while leaving open the possibility of it increasing if it bears fruit seems to be about right imho.
August 24, 2009 4:39 PM | Reply | Permalink
yes, it was disbanded (sunsetted) in 1999, and coincidentally, we were immediately saddled with the greatest series of intelligence FAILURES and intelligence ABUSES that this nation, and probably the world, has ever seen.
I think that we, as a culture, are a true evangelical backwater, a nation that cannot resist using an Independent Counsel to satisfy its hypocritical desire for details regarding a President's sex life.
OTOH, without an Independent Counsel, we have a Government that becomes a clear and present danger to its own citizens and to the rest of the world.
That is the true dilemma facing the United States as a nation.
August 24, 2009 7:02 PM | Reply | Permalink
Gotta agree with johnny_5. If the quote is correct, the mandate is to "look at whether there is enough evidence to launch a full-scale criminal investigation. . ."
This is the proverbial "foot in the door." If they find sufficient evidence then they are required, under federal and possibly under international treaty, to investigate further. The evidence is clearly there. If there wasn't any evidence then Obama wouldn't have resisted an investigation. Instead he would have said, "Sure, go ahead and investigate." And then he could have just put the matter behind him.
When cops see someone driving with a taillight out, they can stop the driver. If the driver appears intoxicated they can investigate further. If the driver resists, or gives a false name, or the cops see further evidence of a crime, they can arrest the driver and search the car. If they then find a dead body in the back seat, they will call in additional investigators and officers. You can pretty much bet they aren't going to bother going back and issuing a citation for the busted taillight.
August 24, 2009 3:54 PM | Reply | Permalink
Darn it! I was going to call" foot-in door"!
(Shaking my tiny fist)
Follow the evidence where it leads, please.
August 24, 2009 4:28 PM | Reply | Permalink
Agreed. This is a classic "political cover for inserting the camel's nose under the tent," to fracture the metaphors. The Bushies desperatetly resist the simple act of asking the right questions because they rightly fear that, once asked, and once the loose thread is tugged, the entire story will methodically unravel over time (absent affirmative coverup efforts, which will also eventually unravel as we all have seen many times).
The "outrage" expressed by Holder arises from a 5-year old investigatory report. We may need another five years (I hope not) but it's now inevitable. A seminal moment indeed.
August 24, 2009 4:08 PM | Reply | Permalink
It feels very much like the DOJ is trying to find some 'scapegoats' because there is so much for us to be outraged by and so much to investigate. This feels like it is merely being done for appearances sake.
I think something really weird is going on behind the scenes regarding corporations, money, and power and it is affecting how the democrats are running their majority. Something seems completely odd.
And if this is all the DOJ investigates... that's just insane.
August 24, 2009 3:49 PM | Reply | Permalink
Doesn't seem so odd to me.
Obama is pushing his insane war in Afghanistan. Do you think he wants to make it widely known (in this country, at least- we are as a nation probably the parochial that ever had a a global Empire) that Bagram is as infamous, or far more so, than Guantanomo?
Do you think he wants to publicize the fact that our wars are being fought on fraudulent grounds, that the U.S. is an exporter of torture, and cannot be counted on to obey international law as a matter of policy?
Find a low-ranking set of scapegoats, and wash your hands. That's the MO here, as was (and is) customary in nations that suffered under such dictators as Pinochet.
August 24, 2009 4:04 PM | Reply | Permalink
I don't think "low-Ranking scapegoats" will do in this case. I'm sure that the adiminstration knows this, but to gun for the previous President(and VP) at the outset is a non starter politically. Even to go after the Yoo's and Bybee's at the outset stinks of politics, this is a process.
That said, I hear your frustration, but if we push the pendullum to hard it will swing back w/ a vengeance. Our(U.S. as a whole) partisanship is allready at an unsustainanle level, I don't think pushing this too fast is helpful in the long term.
August 24, 2009 4:33 PM | Reply | Permalink
See below on the closest parallel to this in U.S. history, the investigation led by Archibald Cox.
Cox did not worry about things like "stinking politics." It got him fired by Robert Bork, which is an honor if you think about it, but his behavior was very impolitic.
And the Republicans of his day were shocked by Bork's action, despite the fact that Bork was doing it to protect a Republican President. Does that sound possible in this era?
Holder looks like he's in pain in the photo. I have no idea if he's saddened by the abuses he can't very well ignore, or overwhelmed by the impossible task of getting out of this without reigniting the Second Civil War.
August 24, 2009 5:01 PM | Reply | Permalink
"overwhelmed by the impossible task of getting out of this without reigniting the Second Civil War."
This, IMHO, is why this process is starting out in the precise measured way that it is.
I hope we get a full airing of the details even if it takes several years.
August 24, 2009 5:28 PM | Reply | Permalink
Synch, I'm not a lawyer, perhaps you aren't either, but our instincts are good I think.
Seems like a conspicuously concerted effort is being put forth into slimming the scope of the investigations to the lowest conspirators on the war crime food chain.
The excuse I hear from Johnny and others is that Obama has to appear not to be on a witch hunt.
Republicans demonize his every move regardless. I don't know what feigning appearances will get him at this point.
Seems like whenever the left starts percolating too much, like it is now with the health reform bill, whenever they see Obama wavering, it's as if they throw them a small bone.
It's so transparent it's insulting, personally.
Accountability should not be typecast as left wing ideology.
August 24, 2009 4:59 PM | Reply | Permalink
"Republicans demonize his every move regardless. I don't know what feigning appearances will get him at this point."
Repubs are a lost cause, Independants are the consideration. IMHO anyway...
"Accountability should not be typecast as left wing ideology"
Sorry, Ship sailed on that in what... 2004? The die has been cast. However, accountability should be a desirable attribute and it clearly can in no way be associated w/ Right-wing idealogy(read:hate & disinformation).
August 24, 2009 5:35 PM | Reply | Permalink
August 24, 2009 4:06 PM | Reply | Permalink
So Obama is putting a State Department imprimatur on the rendition policy, with the implication that this is somehow progress.
To paraphrase Henry Wotton: "A diplomat is an honest man sent abroad to lie for the good of his country."
August 24, 2009 4:18 PM | Reply | Permalink
I have a tendency to think that it is mainly because of this Catch-22 problem:
from "Rendition to Continue, but With Better Oversight, U.S. Says" @
http://www.nytimes.com/2009/08/25/us/politics/25rendition.html
It is interesting to also see the description of the "High Value Interrogation Group" in that piece; it may actually be that the F.B.I. and C.I.A. are finally going to work together, as we were promised post 9/11 with the creation of Homeland Security. (Cheney through Bush along with CIA enablers basically went in the opposite directions of all lessons learned by the 9/11 Commission et. al., FBI tended more often to resist the more egregious failings as their work involves not just intelligence but dealing with follow up through a justice system. Of course, they all acted as they did partly because they had a CYA problem with how they handled 9/11 warnings.)
August 25, 2009 6:25 AM | Reply | Permalink
One win and one loss for Obama regarding the CIA. How can he do the right thing on one issue and be so wrong on another. there is a related post at http://iamsoannoyed.com/?page_id=588
August 24, 2009 4:06 PM | Reply | Permalink
The important question to me is, will Yoo/Bush's memos be treated by the investigators as carte blanche to do whatever? If the investigations proceed as if CIA officers were bound by the written law at the time of their actions, then I'm not too worried, an investigation could potentially expand. If they're treating Yoo/Bush's dictates as law all they're doing is investigating whether any officers went beyond the permission the executive gave them, then this is worse than useless.
August 24, 2009 4:06 PM | Reply | Permalink
I keep waiting for some sign of credibility from our constitutional law professor president. It's like waiting for Godot.
August 24, 2009 4:12 PM | Reply | Permalink
Archibald Cox's mission was originally narrow in scope and then a President resigned and all, so this may work out just fine.
August 24, 2009 4:17 PM | Reply | Permalink
Archibald Cox set in motion a sequence of events I don't think many in Government are capable of, most certainly including those who work for our risk-averse President:
"In October 1973, Cox precipitated what would become known as the "Saturday night massacre." He did this by insisting on unrestricted access to tape recordings of presidential conversations in the Oval Office during the period immediately after five men with links to Nixon's Committee to Re-elect the President had been arrested in the June 1972 break-in at the Watergate headquarters of the Democratic National Committee.
An angry Nixon demanded Cox's firing. But Attorney General Elliot Richardson, who had recruited Cox as the Watergate special prosecutor, refused to carry out the president's order. He resigned, as did his deputy, William D. Ruckelshaus. Robert H. Bork, who as solicitor general was the third-ranking officer of the Justice Department, dismissed Cox."
Look at that chain of events- Prosecutor demands unlimited access (ie, Starr-like powers that no longer exist); then a series of DOJ hierarchs resign rather than follow the President's order to shut down this upstart (little chance of Durham getting out of hand, or of Holder risking his President's reputation by letting anything happen that could be embarrassing to himself, or to his President's hard-won reputation as a Panglossian optimist, who is 'bipartisan' etc. etc.)
Seriously, we are not the same culture as that in which Cox got out of hand (sorry, did not intend the pun, but it has its relevance, in that the Democrats basically forfeited the Independent- Counsel- post-Watergate over a blow job).
His behavior is to be understood from an anthropologist's perspective, but no other.
(Btw I would dearly love to proved wrong.)
http://www.washingtonpost.com/wp-dyn/articles/A1755-2004May29.html
August 24, 2009 4:43 PM | Reply | Permalink
Of course it isn't the same as it was during Watergate, however, and independent prosecutor is supposed to be independent. Sometimes one thing just leads to another. I am keeping my fingers crossed that this is the small loose string that unravels the entire game.
But you could be right too!
August 24, 2009 5:41 PM | Reply | Permalink
I hope I'm not!
August 24, 2009 6:25 PM | Reply | Permalink
This is the standard Obama approach: start halfway and work backwards to zero.
August 24, 2009 4:20 PM | Reply | Permalink
One only needs to imagine how our government might respond if we saw that some other country did exactly what Mr. Holder has proposed:
"Saddam Hussein and his closest advisors will not be held accountable for any of the torture, extraordinary rendition, or poison gas attacks. Mr. Hussein's legal advisors----who presented a strong case that Mr. Hussein had the authority to act in any way he felt was appropriate, as long as such actions were taken to defend the sovereign rights of Iraq's government against internal or external enemies---were also considered to be acting within Iraq's appropriate and legal interests and will not be held accountable. This investigation will be limited to a few middle-ranking soldiers and security forces who obviously and clearly exceeded the limits of good judgement and/or government-approved torture procedures."
August 24, 2009 4:26 PM | Reply | Permalink
I'm on the fence about this one, but overall, think it's a good thing. And that's because I'm of the opinion that this simply CAN'T just stop with underlings who went beyond the Bush rules, and think this will be a backdoor for getting the big guys; without outright looking like Obama was gunning for them.
It's obvious the Village is of the opinion that Obama simply shouldn't prosecute high-ups for what they view as a different set of rules than Obama has, and unfortunately, our seat of government resides in their town and they don't want him trashing the place. So he'll play by the rules and appoint a special prosecutor that will push the boundaries of his mandate, which will call attention to how illegal the official policy was. And if we can't push up from there, we never were going to be able to.
So sure, this might turn out to be an exercise in futility, but I'm of the opinion that they're hoping to open up the full can of worms. I really can't see Bush or Cheney being hauled away in cuffs, but a boy can dream...
August 24, 2009 4:26 PM | Reply | Permalink
I suppose the investigations of these policies have to be limited in nature because the Obama administration has seen fit to continue (and in some instances, enlarge) many of them. In the event they are found to be illegal or criminal that would put Obama in the unfortunate position of engaging in the same acts. That's not a happy place to be, the Republicans would pounce immediately and call for his impeachment.
As we've seen over and over again Republicans are the masters of turning a strength into a weakness.
August 24, 2009 4:32 PM | Reply | Permalink
Ahh yes... I suspect that the Administration wants these policies investigated and is keeping a skeleton of them in place precisly for them to be challenged legally.
The way to do that is for the gov't to "defend" them at the Scotus and for the justices to rightly shoot them down.
If the admin. was to stop doing some of these things there would be no standing to challenge them in court and therefore put on the back-burner for another admin. to take them up.
August 24, 2009 4:43 PM | Reply | Permalink
WaPo is utter bullshit. Do they ever report news as it actually happens and not through the filter of an unnamed source whose sole function seems to be shaping our interpretation of the factual content and blunting or redirecting our reactions in ways that seem politically calculated? And why don't we ever learn? There's no good, truth-serving reason whatsoever for a news outlet to publish a story about a forthcoming official announcement that derives most of its claims about the content and meaning of that announcement not from the announcement itself, but from unnamed sources it gives free reign to spin the announcement ahead of time.
"Getting out ahead of the story" is one of the oldest and most widely practiced tactics of political spin and opinion manipulation known to man, and for a news outlet to let unnamed sources pre-filter and color their reporting on the official actions of the Obama administration as often as WaPo does should raise alarm flags all around.
Did they always run their initial reporting on major Bush policy actions through the coloring filter of unnamed sources? No. They towed the official line, even when there were plenty of credible sources to be found within and without the administration challenging the official line.
WaPo has had no credibility as a serious news outlet since its failures during the run-up to the Iraq War.
August 25, 2009 11:59 AM | Reply | Permalink