David Johnston in NYT:
The Justice Department’s ethics office has recommended reversing the Bush administration and reopening nearly a dozen prisoner-abuse cases, potentially exposing Central Intelligence Agency employees and contractors to prosecution for brutal treatment of terrorism suspects, according to a person officially briefed on the matter.
The recommendation by the Office of Professional Responsibility, presented to Attorney General Eric H. Holder Jr. in recent weeks, comes as the Justice Department is about to disclose on Monday voluminous details on prisoner abuse that were gathered in 2004 by the C.I.A.’s inspector general but have never been released.
When the C.I.A. first referred its inspector general’s findings to prosecutors, they decided that none of the cases merited prosecution. But Mr. Holder’s associates say that when he took office and saw the allegations, which included the deaths of people in custody and other cases of physical or mental torment, he began to reconsider.
With the release of the details on Monday and the formal advice that at least some cases be reopened, it now seems all but certain that the appointment of a prosecutor or other concrete steps will follow, posing significant new problems for the C.I.A. It is politically awkward, too, for Mr. Holder because President Obama has said that he would rather move forward than get bogged down in the issue at the expense of his own agenda.
Daphne Eviatar at Washington Independent:
As Newsweek reported Friday evening, the CIA inspector general report expected to be released on Monday reveals that the CIA staged mock executions to terrify terror suspects into talking. Regardless of whether interrogators got the information they were looking for, these actions were clearly against the law. It is a violation of both the federal anti-torture statute, and of international law, to threaten a suspect with imminent death. Yet there was no other possible purpose for staging a mock execution in a room next to a detainee — complete with gunfire to suggest a prisoner had been killed — other than to terrify the detainee into believing that he would be next.
The IG report also apparently reveals that at least one detainee was threatened with a gun and a power drill during the course of CIA interrogation.
Although Bush administration officials investigated the cases discussed in the report and concluded that no prosecutions were warranted, Attorney General Eric Holder is now considering re-opening some of those cases to see if perhaps some CIA officials, despite the wide latitude they were given by the Bush administration, went even farther than Bush-era legal memoranda said was allowed.
Jennifer Rubin at Commentary:
Let’s unpack some of this. For starters, this is not “politically awkward” for Holder. He will be greeted by cheers from the Left. The media will write glowing editorials. There is nothing like going after the intelligence community for getting the liberal elite’s juices flowing. But he is actually doing one of two things: he is either a rogue attorney general, defying the wishes of the administration and determined to drag the administration and country through a quagmire of investigations and problematic prosecutions, or he is carrying out the president’s wishes while insulating Obama from the wrath of anyone thinking it is the president’s job to defend those who defended us and to avoid further damage to the already crumbling morale at Langley.
Second, Leon Panetta needs to quit. His agency is being attacked and prosecuted and stripped of a key responsibility. The White House, either egged on or enabled by the Justice Department, is systematically destroying the morale and role of CIA. If Panetta takes his responsibility seriously and believes the agents who work under him deserve some measure of support, the least he can do is quit and explain why. Or was this the game plan all along—for Panetta to preside over the dismantling of the CIA?
Third, we now are seeing the full results of the “criminalization” of the war on terror, in two senses. First, at least according to the Washington Post report, the new elite forces interrogating high-value detainees will be limited to the Army Field Manual—essentially permitted only to ask, pretty please, for name, rank, and serial number. Good luck getting that or any information. (Since terrorists don’t have the latter and aren’t necessarily inclined to give their names, the elite force need not be very big, one suspects.) We are essentially throwing in the towel on any meaningful efforts to glean intelligence from suspects.
Second, the civilian courts are now front and center—to be used against those who had been charged with keeping us safe in the months and years after 9/11. Certainly no one concerned with one’s own career and future would now choose to go into the business of extracting intelligence, and those already there should be lawyering up.
Well, we’ve come a long way. The war on terror has become the war on the CIA. And the terrorists no longer need fear anything more harsh than polite questions posed to them on a good night’s sleep and in quiet, comfy surroundings. And the timing is perfect. Obama is on vacation in Martha’s Vineyard, and not bold enough to announce and defend these developments from the White House. America, apparently, is on holiday from the war on terror, too. Unfortunately, our enemies are not.
Emptywheel at Firedoglake:
Besides the inspector general’s report, other documents expected to be released Monday are a 2007 Justice Department memo reauthorizing the C.I.A.’s “enhanced” interrogation techniques, documents that former Vice President Dick Cheney has said provide evidence that the interrogation methods produced valuable information about Al Qaeda; and Justice Department memos from 2006 concerning conditions of confinement in C.I.A. jails.
Okay, it looks like a busy week for us here.
But notice what is not on this list?
The Office of Public Responsibility report, which has been due out all summer, and last we heard was at the CIA being reviewed to protect (presumably) John Rizzo’s role in crafting OLC memos that claimed to authorize torture.
Which is all very convenient for Eric Holder’s reported plan to name a prosecutor to investigate torture (I’m guessing this will happen this week, if not tomorrow itself), but not to investigate the process that went into “authorizing” torture.
If it is, indeed, DOJ’s plan to release all the other torture documents save the OPR report, it will have the effect of distracting the media with horrible descriptions of threats with power drills and waterboarding, away from the equally horrible description of lawyers willfully twisting the law to “authorize” some of those actions. It will shift focus away from those that set up a regime of torture and towards those who free-lanced within that regime in spectacularly horrible ways. It will hide the degree to which torture was a conscious plan, and the degree to which the oral authorizations for torture may well have authorized some of what we’ll see in the IG Report tomorrow.
If it is, indeed, DOJ’s plan to release the IG Report and announce an investigation without, at the same time, releasing the OPR report, it will serve the goal of exposing the Lynndie England’s of the torture regime while still protecting those who instituted that regime.
Moe Lane at Redstate
My reading of the article suggests that the focus of this is not Bush administration policies, but is instead on how the CIA carried those policies out. This should prove interesting: the CIA is already dealing with new Director Leon Panetta’s epic-level bungling of the ‘assassination program’ nonsense, and this is going to do nothing to persuade the career bureaucrats in the Agency that the current administration isn’t planning to hang them all out to dry. Having lived through one Church Committee, I suspect that the CIA is not inclined to endure another.
I don’t exactly have ‘a pox on both their houses’ attitude towards this, but I do consider this to be a bit of a karmic balancing for both the White House and the CIA.
When reporting my story from Friday about civil libertarian reaction to the anticipated Holder torture probe, a recurring fear came up in my interviews. What if the baroque and horrifying examples from the CIA inspector general’s report, scheduled for release on Monday, have the same effect on the public discourse as the Abu Ghraib photos? That is, what if the lurid tales of Black and Decker drills placed menacingly at al-Nashiri’s temple cause a media reaction that distracts from the series of policy decisions that led an interrogator to think such a thing was acceptable?
I don’t really know if this will actually happen and CIA Interrogator Jim will be the new Lynddie England — condemned as a monster (I think Tina Fey called her a “retarded redneck Peppermint Patty”), culpable for his/her actions, certainly, but with condemnation coming at the expense of recognizing, as Bruce once told us about Johnny 99, that it was moren’ all this that put that power drill in his hand.
For one thing — and for better or for worse — troops get all kinds of sympathy that CIA operatives never do, and therefore there’s an expectation of moral virtue that England, in the eyes of many, tacitly violated; by contrast, CIA operatives are expected to do bad things in our name that we’d rather not hear about. It’s easier, in other words, to hang them out to dry. Furthermore, the CIA’s interrogation program has been vouched for by George W. Bush personally, so the few-bad-apples argument is much harder for apologists to make, even if Interrogator Jim used 8 oz. of water to waterboard when the rules clearly told him to use 4 oz. or whatever. But we’ll see.
Meanwhile, Jeffrey Smiwhile, Jeffrey Smith, who served as the CIA’s general counsel in 1995 and 1996, makes the case against prosecuting CIA employeeston Post. Smith concludes:
If media reports are accurate, the conduct detailed in the inspector general’s report was contrary to our values. It caused harm to our nation and cannot be repeated. But prosecuting those who actually carried out that behavior has consequences that could further harm our nation. Even if the attorney general concludes that a criminal charge could be brought, other factors must be considered. Sometimes broader national objectives must be given greater weight.
UPDATE: Greg Sargent
Right now, it’s becoming clearer that Obama’s handling of health care, specifically his conciliatory approach towards Republicans and his apparently wavering commitment to the public option, is causing a real erosion of support among Democrats and liberals. Now the debate over torture is suddenly about to flare up again, intensifying liberal demands for some sort of accounting, something Obama has repeatedly said he wants to avoid.
The health care failings that have eroded Obama’s support on the left could, paradoxically, increase pressure on the White House to pursue some sort of prosecutions in order to avoid further angering the base. And if Attorney General Eric Holder does take this course of action, it could actually repair relations with liberals. But if he doesn’t things will only get worse with the left. And the President was hoping for a quiet vacation…
Barack Obama brought a reputation for “cool” to the White House, bordering on indifference, but ABC News says that only represents the veneer. The new administration has pushed the CIA to the brink of rebellion and CIA chief Leon Panetta to the brink of resignation. Panetta launched a “profanity-laced tirade” at Attorney General Eric Holder over his plans to open investigations into CIA interrogations during the Bush administration, and now officials tell ABC to expect some turnover in national security positions
Even Panetta apparently sees the idiocy of this approach, or at least the fact that he’s about to lose a major turf war within the administration. And that provokes the question of whether Panetta’s appointment was specifically designed to produce this result. Had Obama appointed a real intel professional to the position of CIA Director, could he have gotten away with this transfer of authority? It would be very doubtful. Having a political hack in this spot reduces the ability for professional intel leaders to take their case to the media, since in this case we would likely be trading one political hack for another.
Congress should ensure that this position has significant Congressional oversight. It looks like Obama’s about to carve out an interrogations czar with no accountability outside of the West Wing, and that’s very, very dangerous indeed.
Zachary Roth at TPM
UPDATE #2: Breaking at WaPo: Holder appointing prosecutor
UPDATE #3: Ackerman with the 2004 report
UPDATE #4: On Holder and the prosecutor:
Alex Koppelman in Salon
John McCormack in TWS with statements
Charles Johnson at LGF
John Hinderaker at Powerline
UPDATE #6: There’s a billion posts on this today, of course. We may do more, we may just keep adding to this. Can’t get to everyone, so here’s some people we haven’t gotten to yet.
Sully came back from vacation to talk about this.
Jacob Sullum in Reason
Will at The League
UPDATE #7: Andy McCarthy at NRO