Seven former directors of the CIA sent a letter to President Barack Obama Friday asking him to take the unprecedented step of personally blocking a Justice Department “review” of cases where agency officers and contractors allegedly exceeded legal guidelines during the interrogations of “war on terror” detainees.
The ex-directors claim the investigation authorized last month by Attorney General Eric Holder into will “only help Al Qaeda elude US intelligence and plan future operations” and “will continue to make it harder for intelligence officers to maintain the momentum of operations that have saved lives and helped protect America from further attacks.”
Those statements are nearly identical to warnings made by Republican lawmakers in recent weeks, which have been disputed by veteran interrogators and a former Bush administration official as a clear-cut attempt to shield top Bush officials who came up with the torture policies, in violation of anti-torture laws, from scrutiny.
Three of the former directors—George Tenet, Michael Hayden and Porter Goss—were personally involved in the policy discussions and decisions during George W. Bush’s tenure that lead to the implementation of “enhanced interrogation techniques.” According to recently released documents, CIA headquarters in Langley micromanaged the torture of at least one high-value detainee, Abu Zubaydah, in 2002 when Tenet was CIA director.
Another former director who signed the letter, James Schlesinger, conducted an investigation into the abuse and torture of prisoners at the infamous Abu Ghraib prison in Iraq.
The other three former directors are John Deutch, R. James Woolsey, both of who served in the Clinton administration and William Webster, a former federal judge who served as CIA director in the administration of George H.W. Bush and is currently chairman of the Homeland Security Advisory Council. Tenet also served as CIA director during the last three years of the Clinton administration.
Repeatedly invoking 9/11 in their letter, the former CIA directors asked Obama to exercise [his] authority to reverse Attorney General Holder’s August 24 decision to re-open the criminal investigation of CIA interrogations that took place following the attacks of September 11.”
Their request comes weeks after former Vice President Dick Cheney, during an interview with Fox News, said Obama, as the “chief law enforcement officer of the administration,” had the authority to thwart the Justice Department investigation.
“I think if you look at the Constitution, the President of the United States is the chief law enforcement officer in the land. The Attorney General’s a statutory officer. He’s a member of the cabinet. The President’s the one who bears this responsibility.
“And for him to say, ‘gee, I didn’t have anything to do with it,’ especially after he sat in the Oval Office and said this wouldn’t happen, then Holder decides he’s going to do it.”
But Cheney and the former CIA directors have taken an expansive view of the Constitution, specifically Article II, which says, “The executive Power shall be vested in a President of the United States.”
In common practice and understanding, however, the attorney general is the nation’s chief law enforcement officer. The attorney general “evolved over the years into chief law enforcement officer of the Federal Government,” according to the Department of Justice’s website.
During the Bush administration, the Department of Justice was politicized and former Attorney General Alberto Gonzales used the agency to advance the policies of the Bush administration, an episode noted by no less than four investigations conducted by Justice Department watchdogs.
Furthermore, contrary to what Cheney claims, Obama never said there wouldn’t be an investigation into torture. What he said, and what his political appointees have echoed to the dismay of civil liberties groups and some Democrats, is that he had hoped to “look forward” not “backwards” and that those CIA interrogators “who carried out their duties relying in good faith upon legal advice from the Department of Justice that they will not be subject to prosecution.” He also added that the decision was ultimately up to Holder.
Jameel Jaffer, director of the ACLU’s National Security Project, said if there is a problem with Holder’s investigation its “focus is too narrow.”
“There is abundant evidence that torture was authorized at the highest levels of the Bush administration, and the Justice Department’s investigation should be broad enough to encompass Bush administration lawyers and senior officials – including the CIA officials – who authorized torture,” he said.
But that is highly unlikely and in that sense, the probe is reminiscent of the investigations into Abu Ghraib, in which low-level MPs were court-martialed and imprisoned for acts that supposedly had not been sanctioned by their superiors, who included, among others, former Secretary of Defense Donald Rumsfeld.
Matthew Miller, a Justice Department spokesman, made it clear Friday that the investigation authorized by Holder is simply a “preliminary review” and “that review will be narrowly-focused.”
“The Attorney General’s decision to order a preliminary review into this matter was made in line with his duty to examine the facts and to follow the law,” Miller said. “As he has made clear, 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.”
Last month, Holder instructed Assistant U.S. Attorney John Durham to undertake a “preliminary” inquiry into whether some interrogators exceeded the parameters that the Bush administration placed on the treatment of “war on terror” detainees.
With Cheney’s strong support, interrogators were permitted to engage in a variety of torture techniques, including the drowning sensation of waterboarding, but some interrogators allegedly engaged in practices outside those guidelines.
Durham is also investigating crimes related to the destruction of CIA torture tapes, a dozen of which show two high-value detainees being subjected to “enhanced interrogation techniques.”
Holder’s decision came on the day the CIA released a declassified version of an inspector general’s report on the agency’s interrogation and detention program.
The May 2004 report prepared by CIA Inspector General John Helgerson said interrogators staged mock executions, revved a power drill and brandished a revolver during interrogations and threatened to kill the family of self-professed 9/11 mastermind Khalid Sheikh Mohammed and rape the wife of another high-value detainee, Abd Al-Rahim Al Nashiri.
Threatening prisoners in custody of the U.S. government with imminent death is a violation of the Convention Against Torture.
Helgerson also investigated the deaths of detainees in U.S. custody, but the details of those cases were redacted.
The ex-CIA directors claim, like other critics of the probe, that career federal prosecutors in the Eastern District of Virginia had already spent considerable time probing cases Helgerson referred to the Justice Department and “determined that one prosecution (of a CIA contractor) was warranted. A conviction was later obtained. They determined that prosecutions were not warranted in the other cases.”
“The CIA, at its own initiative, forwarded fewer than 20 instances where Agency officers appeared to have acted beyond their existing legal authorities…,” the CIA directors’ letter says. “In a number of these cases the CIA subsequently took administrative disciplinary steps against the individuals involved.”
Jane Mayer, in her book The Dark Side, said there was a mountain of evidence to support prosecutions and a belief by some “insiders that [Helgerson's investigation] would end with criminal charges for abusive interrogations.”
But top Justice Department officials, including former head of the criminal division Michael Chertoff, his deputy Alice Fisher and Deputy Attorney General Paul McNulty, allowed the cases to languish and may have even scuttled the probes to protect the Bush White House.
McNulty resigned in disgrace two years ago and is under scrutiny by a special prosecutor investigating the firings of nine US attorneys. McNulty faces obstruction of justice and perjury charges related to his February 2007 testimony to Congress about the ordeal.
The former CIA directors said the Holder’s “decision to re-open the criminal investigation creates an atmosphere of continuous jeopardy for those whose cases the Department of Justice had previously declined to prosecute.”
“Moreover, there is no reason to expect that the re-opened criminal investigation will remain narrowly focused,” they wrote.
But according to a report in Saturday’s Washington Post, that’s exactly what appears to be happening.
“The Justice Department’s review of detainee abuse by the CIA will focus on a very small number of cases, including at least one in which an Afghan prisoner died at a secret facility, according to two sources briefed on the matter,” the Post reported.
“Although earlier reports indicated that Durham would look into 10 cases, a source said recently the number is much smaller,” according to the Post. In all, 24 alleged abuse cases were earlier referred to federal prosecutors by the CIA inspector general, of which 22 were declined, according to a letter in February 2008 from a Justice Department legislative liaison.”
The Post, citing unnamed sources, also said that a report by the Justice Department’s Office of Professional Responsibility on legal advice related to interrogations attorneys in the agency’s Office of Legal Counsel gave to the Bush administration “does not point to problems with attorneys in the Eastern District of Virginia… but it does explore differences of opinion within the working group that examined the detainee allegations over how to proceed on the few cases that were ‘close calls.’
“In a small number of instances, career lawyers disagreed about whether the evidence was sufficient to seek indictment and ultimately win in court. Some of those issues were assessed — as is normally the case — by political appointees, including Paul J. McNulty, the U.S. Attorney in the Eastern District of Virginia who was nominated to serve as deputy attorney general in October 2005. There are no allegations that cases were rejected for improper political reasons.”
In an interview two weeks ago with the German magazine Der Spiegel, Helgerson said Holder “had no choice” but to authorize an investigation.
But, “at the end of the day, I think he will find it is not feasible to prosecute anyone who participated in the approved program,” Helgerson said. “I personally would not prosecute. There are a number of complex and mitigating circumstances in all these cases, including the passage of time, the nature of the evidence, and — importantly — the clear absence of any criminal intent.”