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A NATION OF LAWS BECOMES A NATION THAT COVERS-UP:
Holder's Torture-Probe Plan FaultedAugust 10, 2009
Civil liberties advocates are criticizing an expected decision by Attorney General Eric Holder to limit a criminal probe of the Bush administration’s torture practices to CIA interrogators who exceeded Justice Department guidelines.
“There simply is no legal, moral or principled reason to insulate those who authorized the torture of detainees, either through legal reasoning or other policy directive, from investigation,” Rep. Jerrold Nadler, a New York Democrat and chairman of the House Judiciary subcommittee on the Constitution, Civil Rights and Civil Liberties, said in a letter to Holder.
Nadler’s letter of Aug. 4 was followed on Sunday by a report in the Los Angeles Times that Holder was likely to sign off on a criminal probe, but would limit its scope to CIA interrogators who exceeded interrogation limits set in 2002 by Justice Department attorneys John Yoo and Jay Bybee in memos that authorized waterboarding and other brutal acts against suspected terrorists.
Nadler’s letter reiterated his previous calls for a special prosecutor with broad authority to investigate violations of federal laws that prohibit torture. He also objected to any investigation limited to “activities by interrogators, working in bad faith, that fell outside the ‘four corners’ of the legal memos” provided by lawyers of the Justice Department’s Office of Legal Counsel, where Yoo and Bybee worked.
Nadler’s letter Nadler was prompted by several news reports published over the past month indicating that Holder was leaning toward a limited criminal probe after reviewing a classified CIA inspector general’s report that reportedly called into question the legality of the Bush administration’s torture program.
The secret findings of CIA Inspector General John Helgerson led to eight criminal referrals to the Justice Department for homicide and other misconduct, but those cases languished as Vice President Dick Cheney is said to have intervened to constrain Helgerson’s inquiries.
Holder may reopen those cases, but if an investigation is narrowly focused on the CIA interrogators and outside contractors and does not include the Bush administration officials who authorized the policies then the probe would likely amount to a whitewash, much like the Abu Ghraib case.
Of the 12 investigations launched in the aftermath of the Abu Ghraib prison scandal, not one scrutinized the roles of Defense Secretary Donald Rumsfeld or any other senior Bush administration official. The inquiries concentrated instead on the military police identified in the photographs, like Private Lynndie England and Corporal Charles Graner Jr.
Such a limited approach would also ignore evidence that senior Bush administration officials and high-level officials at CIA headquarters in Langley micromanaged the torture of at least one high-level detainee.
Documents released earlier this year in a Freedom of Information Act lawsuit between the American Civil Liberties Union and the CIA showed that CIA interrogators provided top agency officials at Langley with daily “torture” updates of Abu Zubaydah, an alleged “high-level” terrorist detainee who was held at a secret “black site” prison and waterboarded 83 times in August 2002.
Additionally, alleged 9/11 mastermind Khalid Sheikh Mohammed was waterboarded 183 times in the span of a single month. CIA Inspector General Helgerson also “had serious questions about the agency’s mistreatment of dozens more,” according to Jane Mayer, a reporter for The New Yorker and author of the book The Dark Side.
Senior Bush administration officials were known to be closely following these developments and pressed the CIA for more and more results.
Last year, in several interviews prior to exiting the White House, Cheney admitted that he personally authorized the waterboarding of three so-called “high-value” prisoners.
In waterboarding, interrogators strap a person down to a board with a cloth covering his face and then pour water over the cloth, causing the victim to feel as if he is drowning. It is a torture technique dating back at least to the Spanish Inquisition.
In his letter to Holder, Nadler suggested statements, like those uttered publicly by Cheney, needed a closer look to determine whether war crimes were committed.
In April, Holder declared that it “would be unfair to prosecute dedicated men and women working to protect America for conduct that was sanctioned in advance by the Justice Department.” That meant any possible criminal investigation would be limited to examining actions that went beyond what was sanctioned, such as repetitious use of waterboarding.
Last year, in the heat of the presidential campaign, Holder, who was a featured speaker at the American Constitution Society’s annual convention, told a packed crowd that the “American people are owe[d] a reckoning” as a result of the “abusive” and “unlawful” policies of the Bush administration.
Obama, however, has been resistant to any investigation that would “look backward” and divert attention away from his domestic agenda.
Yet, Nadler said that can’t happen without a wide-ranging investigation.
Jason Leopold has launched his own Web site, The Public Record, at www.pubrecord.org.
This article is republished in the Baltimore Chronicle with permission of the author.
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This story was published on July 22, 2009.