Attorney General Eric Holder appointed a special prosecutor Monday to conduct a “preliminary review” of about a dozen cases of torture involving “war on terror” detainees carried out during the Bush administration’s tenure in office. Those cases had been previously closed by Justice Department attorneys for unknown reasons.
His announcement was made shortly before the CIA released a declassified version of a 2004 inspector general’s report that was sharply critical of the agency’s detention and torture program. The long-awaited report contains shocking details about the treatment of detainees and says in no uncertain terms that high-level CIA officials in Langley micromanaged the torture of detainees.
The report said CIA interrogators and contractors used “unauthorized, improvised, inhumane and undocumented detention and interrogation techniques” that exceeded the legal guidelines for interrogation cited in Justice Department memoranda.
But the investigation Holder authorized will be limited in scope and will focus on whether CIA contractors and agency interrogators violated anti-torture laws and not on the Bush administration officials who created and implemented the policies.
Holder named John Durham, a federal prosecutor from Connecticut who was appointed in early 2008 to investigate whether crimes were committed related to the destruction of more than 90 interrogation tapes, to lead the inquiry.
“Mr. Durham has gained great familiarity with much of the information that is relevant to the matter at hand,” Holder said. “Accordingly, I have decided to expand his mandate to encompass this related review. Mr. Durham, who is a career prosecutor with the Department of Justice and who has assembled a strong investigative team of experienced professionals, will recommend to me whether there is sufficient predication for a full investigation into whether the law was violated in connection with the interrogation of certain detainees.”
In a statement, Holder said he “closely” reviewed a report prepared by the Justice Department’s Office of Professional Responsibility related to legal memoranda prepared by agency attorneys John Yoo, Jay Bybee and Steven Bradbury that authorized the torture of high-level detainees before deciding to move forward in naming a special counsel.
He said the report recommended that the Justice Department “reexamine previous decisions to decline prosecution in several cases related to the interrogation of certain detainees.”
“I have reviewed the OPR report in depth,” Holder said. “Moreover, I have closely examined the full, still-classified version of the 2004 CIA Inspector General’s report, as well as other relevant information available to the Department. 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.
“The Department regularly uses preliminary reviews to gather information to determine whether there is sufficient predication to warrant a full investigation of a matter. I want to emphasize that neither the opening of a preliminary review nor, if evidence warrants it, the commencement of a full investigation, means that charges will necessarily follow.”
Holder said he is well aware that his decision will likely be seen as “criticizing the work of our nation’s intelligence community.”
“I could not disagree more with that view,” Holder said. “The men and women in our intelligence community perform an incredibly important service to our nation, and they often do so under difficult and dangerous circumstances. They deserve our respect and gratitude for the work they do. Further, they need to be protected from legal jeopardy when they act in good faith and within the scope of legal guidance.
“That is why I have made it clear in the past that 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. I want to reiterate that point today, and to underscore the fact that this preliminary review will not focus on those individuals.”
Earlier Monday, CIA Director Leon Panetta issued a statement saying the contents of a CIA inspector general’s report on the systematic torture of “war on terror” detainees is an “old story.”
“The outlines of prior interrogation practices, and many of the details, are public already,” Panetta said. “The use of enhanced interrogation techniques, begun when our country was responding to the horrors of September 11th, ended in January.”
Panetta’s statement was disseminated to reporters hours after ABCNews.com reported that he got into a “profanity-laced screaming match” with a senior White House staff member over reports that Holder was considering the appointment of a special counsel to probe the CIA’s use of torture against “war on terror detainees.”
According to intelligence officials, Panetta erupted in a tirade last month during a meeting with a senior White House staff member. Panetta was reportedly upset over plans by Attorney General Eric Holder to open a criminal investigation of allegations that CIA officers broke the law in carrying out certain interrogation techniques that President Obama has termed “torture.”
Holder added that he also realizes that his decision to authorize an inquiry “will be controversial.” But he said his “duty” as the nation’s chief law enforcement officials “is to examine the facts and to follow the law.”
“In this case, given all of the information currently available, it is clear to me that this review is the only responsible course of action for me to take,” he said.
The White House said in a statement Monday that President Obama “has said repeatedly that he wants to look forward, not back, and the President agrees with the Attorney General that those who acted in good faith and within the scope of legal guidance should not be prosecuted. Ultimately, determinations about whether someone broke the law are made independently by the Attorney General.”
The Center for Constitutional Rights said in a statement that an investigation sharply limited in scope is unacceptable
“Responsibility for the torture program cannot be laid at the feet of a few low-level operatives. Some agents in the field may have gone further than the limits so ghoulishly laid out by the lawyers who twisted the law to create legal cover for the program, but it is the lawyers and the officials who oversaw and approved the program who must be investigated.
“The Attorney General must appoint an independent special prosecutor with a full mandate to investigate those responsible for torture and war crimes, especially the high ranking officials who designed, justified and orchestrated the torture program. We call on the Obama administration not to tie a prosecutor’s hands but to let the investigation go as far up the chain of command as the facts lead. We must send a clear message to the rest of the world, to future officials, and to the victims of torture that justice will be served and that the rule of law has been restored.”
House Judiciary Committee Chairman John Conyers and Rep. Jerrold Nadler, chair of the panel’s Constitution and Civil Rights subcommittee, applauded Holder’s decision. Both Democratic lawmakers have lobbied the Justice Department for more than a year to appoint a special counsel to probe the CIA’s use of torture. They also renewed their calls for a truth commission to probe the Bush administration policies that lead to the abuses.
They said the details of the CIA inspector general’s report were “truly disturbing.” The report concluded that the interrogation program used “‘unauthorized, improvised, inhumane, and undocumented detention and interrogation techniques” against detainees and that interrogators staged mock executions and threatened to kill the children of self-professed 9/11 mastermind Khalid Sheikh Mohammed’s children if further attacks were carried out against the United States.
Conyers and Nadler said with that in mind it would be unfair if an investigation focused on rogue interrogators as opposed to the high-level Bush administration officials who implemented the policies and micromanaged the torture of detainees.
“The gruesome acts described in today’s report did not happen in a vacuum,” Conyers and Nadler said in a statement. “It would not be fair or just for frontline personnel to be held accountable while the policymakers and lawyers escape scrutiny after creating and approving conditions where such abuses were all but inevitable to occur…an independent and bipartisan commission should also be convened to evaluate the broader issues raised by the Bush Administration’s brutal torture program.”
They also called for Durham to be given a broad mandate to probe Bush administration officials and to prosecute those individuals who broke the law.
“This must be a robust mission to gather any and all evidence without predetermination of where it may lead. Seeking out only the low-level actors in a conspiracy to torture detainees will bring neither justice nor restored standing to our nation.”