As early as Monday, Attorney General Eric Holder is expected to announce the appointment of a special prosecutor to investigate acts of torture performed by the CIA as part of the Bush administration’s so-called “enhanced interrogation” program.
Holder, initially reluctant to investigate for fear of stoking a political brushfire, reportedly considered pursuing inquiry after reading through a grisly 2004 CIA inspector general report about detentions and interrogations that the agency is scheduled to release on Monday. Reports to date have indicated that Holder is considering restricting the inquiry to low-level CIA interrogators who went beyond acting in what President Barack Obama has called “good faith” toward Bush-era Justice Department legal guidance that the Obama administration has revoked.
Drumhelle — who was never an interrogator — said restricting an inquiry to CIA interrogators is unfair. “What happened is a reflection of policy” at the time, Drumheller said. “None of this stuff was done in a vacuum.”
It may be no surprise that a former senior CIA official doesn’t think CIA interrogators ought to fall on their swords for a torture policy concocted at the highest levels of the previous administration. Perhaps less intuitive is that Drumheller is aggressively seconded by the civil libertarian community. Civil libertarians are preparing the delicate message that Holder’s anticipated inquiry ought to go much further at a time when prominent Republican senators argue that any inquiry at all is going dangerously too far.
“Worse than doing nothing at all” was how Tom Malinowski, the Washington advocacy director of Human Rights Watch, described Holder’s possible decision to stop an inquiry at low-level interrogators in a recent Los Angeles Times interview. The pungent quote struck some in the human-rights community as too real — an authentic expression of how the community feels that but one that nevertheless left Holder, a necessary ally for any thorough torture investigation, exposed.
Indeed, on Wednesday, nine GOP senators wrote to Holder to oppose any inquiry at all. “[T]here is little doubt that further investigations and potential prosecutions of CIA officials would chill future intelligence activities,” the senators argued. “The intelligence community will be left to wonder whether actions taken today in the interest of national security will be subject to legal recriminations when the political winds shift.”
Malinowski said he stands by the remark, particularly as the Obama administration prepares to make a momentous choice. “There is a way [Holder] could do this in a way that could do harm, and it’s hard for me to say otherwise,” Malinowski explained. “I’ll take half a loaf on almost any issue, but if this ends with a few grunts getting prosecuted, I really believe that will be worse than not going down that road.”
Yet he and others in human-rights circles are prepared to give Holder room from the outset for the expected inquiry to germinate into something more systemic — provided that Holder doesn’t explicitly rule such a thing out from the outset. “The question for us is not where an investigation begins, but where it ends,” said Jameel Jaffer, the head of the ACLU’s national-security project. “If the attorney general were to grant immunity to senior officials, that’s something we’d react very negatively to. But if the attorney general announces a narrower investigation but not foreclose on a broader one, we’d probably say that’s an important first step, a crucial step, and now [a prosecutor] should be given prosecutorial authority to follow the facts.”
Several in the civil-liberties community argued that an investigation that didn’t explicitly rule out examining the role of senior administration officials and legal advisers would naturally examine their role in torture, since it would be impossible to establish that a low-level interrogator exceeded legal guidance without establishing what that guidance was and what legal legitimacy it enjoyed. “The boundaries are the boundaries of illegitimate memos,” said Jaffer’s colleague Melissa Goodman, a staff attorney with the ACLU.
Vince Warren, the executive director of the Center for Constitutional Rights, added that he saw a de facto convergence of interests with the CIA, an agency that the human rights community more often views adversarially. “If investigators are only looking at low-level people, low-level people necessarily have to say, ‘I was just following orders, you have to look at these folks [who gave the orders], without them I wouldn’t have done it,’” Warren said. “There’s an opportunity for people in CIA to agree with idea that looking at these issues just from the point of contact, if you will, is completely missing how this entire torture system operated.”
A spokeswoman for the Justice Department, Tracy Schmaler, said the department would not comment on the “decision [or] timing” about any prospective torture inquiry.
Even so, Monday is the deadline set by a federal judge in New York, Alvin Hellerstein, in a case brought by the ACLU for the Obama administration to disclose a 2004 report authored by John Helgerson, the former inspector general of the CIA, about the agency’s implementation of the Bush administration’s torture policies. Much of the contours of Helgerson’s report are now familiar, particularly after Holder declassified memoranda from the Justice Department’s Office of Legal Counsel that reference the report in its footnotes. The report was the source of the revelation, first reported by Marcy Wheeler, that CIA interrogators waterboarded 9/11 mastermind Khalid Shaikh Mohammed 183 times and his colleague Abu Zubaydah 83 times.
Civil libertarians object to the idea that those who decided waterboarding was legal and desirable ought to be exempt from prosecution while those who implemented it beyond the guidelines of legal memoranda ought to be targeted. Warren called that “torture by legal memo” and said such an inquiry would “parallel the way the Bush administration handled Abu Ghraib.”
Yet some fear the release of Helgerson’s report will create political pressures similar to those of the infamous Abu Ghraib photos: to focus on the lurid and gruesome incidents documented, rather than the policies that engendered them. “Some people disagree with me and say we should support anything that takes us down this road” to an investigation, Malinowski said. “I really hope on Monday I’ll be able to do that, depending on how Holder finesses it and how much space there is in the process he announces to explore the culpability of those who engaged in this behavior, regardless how explicit he is.”
In anticipation of the outcry on the right over an inquiry, the ACLU’s Goodman contended that exempting Bush administration officials from an investigation would be a politicization of justice. “What is political is when you give a free pass to politicians,” she said. “Enforcement is neutral, important thing.” When Goodman made a similar point at the progressive political convention, Netroots Nation, on Saturday in Pittsburgh, Fox’s Bill O’Reilly ran a clip of her after narrating that liberals like Goodman “don’t much like America” — a potential indication of the battles to come over prosecuting the architects of the Bush administration’s torture policies.
As for Drumheller, the former CIA official demurred on the prospect of a de facto alliance with the civil liberties community. But he made a point that many in the community endorse. “This was carried out as a policy at a time of great stress for the country, a tricky situation,” Drumheller said. “I fear there’s a temptation [that] the easiest course is to find low-level people who, in view of someone, exceeded their brief and concentrate on that. That will miss whole purpose of the issue.”
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