By Lanny Davis - 09/23/09 08:41 PM EDT
In fact, the appearance of their being adversaries on the issue of the Justice Department’s new investigation of CIA interrogators (a recent New York Times headline stated, “Abuse Issue Puts the Justice Dept. and CIA at Odds”) is far less than meets the eye. As the politically savvy and effective chief of staff to President Barack Obama, Rahm Emanuel, aptly put it: “Leon’s representing this institutional building. Eric’s representing his institutional responsibilities.” Moreover, I believe that the final outcome will likely end up being satisfactory to both the CIA and DOJ.
We now know that certain lawyers at the Office of Legal Counsel (OLC) of the Bush Justice Department — such as Deputy OLC attorney John Yoo — at the very least stretched ethical responsibilities by rendering opinions that waterboarding and other harsh interrogation techniques did not violate the plain language of the 1994 Anti-Torture Act defining torture. These opinions were so stretched that within a few years, subsequent leadership of Justice’s OLC in effect repudiated Mr. Yoo’s memoranda.
(There are many people who believe Yoo’s work was heavily influenced, if not driven, by pressures from then-Vice President Dick Cheney and his powerful and domineering counsel and chief of staff, David Addington.)
Panetta, however, has pointed out that the CIA and its interrogators had a right to rely in good faith on these opinions when they conducted their interrogations. Obama and Holder agree with him on this. But Panetta also questions whether it is fair to re-investigate the very same cases that career DOJ prosecutors had looked at carefully and declined to proceed on, including those from the respected Northern District of Virginia U.S. Attorney’s office. That argument is a closer call.
Look at the issue from Holder’s perspective. Thanks to Yoo and others, the Justice Department carried a serious ethical cloud when Holder and his team arrived to take over in January 2009. Therefore, he and his team have a right to second-guess some of the judgments that were made, especially decisions not to prosecute apparent instances of torture that were split or questionable or where new evidence has been uncovered.
Take, for example, one of the cases recently reported in The Washington Post where the non-prosecution decision could well have troubled Holder and his team. It involved the death of a detainee in a CIA facility north of Kabul, Afghanistan, known as the “Salt Pit.”
The man allegedly was beaten and chained to a concrete floor overnight without blankets. He died during the night. The cause of death was never determined. But the Post reported that the decision not to prosecute the interrogators was, at least in part, based on the legalistic interpretation that the Afghan prison was outside the reach of U.S. law, even though the CIA funded it and vetted its home-country guards; and that the actual “cause” of death couldn’t be clearly proven (i.e., did he die from injuries before he was interrogated and left overnight to freeze?).
It is valid for Holder to second-guess such a discretionary decision not to prosecute. In fact, many of these non-prosecution cases were not unanimous; reportedly, individual prosecutors wrote memos justifying their recommendations pro and con.
But the significance of Holder’s decision to appoint a special prosecutor reporting to the DOJ, John H. Durham, can easily be overplayed. In fact, the decision is actually nothing more than a “preliminary” investigation as to whether to investigate. As the attorney general explained when he announced his decision, “neither the opening of a preliminary review nor, if evidence warrants it, the commencement of a full investigation means that charges necessarily will follow.”
In the final analysis, if there is sufficient evidence to show that a CIA interrogator knowingly violated the legal parameters he was given in conducting interrogations, both Panetta and Holder agree he or she should be prosecuted. But if he or she did rely in good faith and acted within the parameters, there should be no prosecution. Both of them and President Obama agree on that — and so should everyone else.
Now we all need to be patient to see what the facts and the law dictate and to trust Eric Holder to do the right thing — which I am certain he will.
Davis, a Washington lawyer and former special counsel to President Clinton from 1996-98, served as a member of President George W. Bush’s Privacy and Civil Liberties Oversight Board in 2005-06. He is the author of Scandal: How ‘Gotcha’ Politics is Destroying America.