Thousands of Pages of Evidence and a Quarter Million Signatures: What Will It Take For Attorney General to Prosecute Torture Crimes?
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By the time Attorney General Eric Holder took his seat before a Congressional subcommittee on Thursday, the Bush torture program had broken wide open. In the past week alone, hundreds of pages in declassified legal memos and Congressional reports had blown the lid off the previous administration's harsh interrogation policies to reveal -- in addition to grisly new details about what the U.S. government did to prisoners in its custody -- a chronology of the program's history that implicated the most senior government officials, including Condoleezza Rice, Donald Rumsfeld, Dick Cheney, Paul Wolfowitz, and of course the former president. What's more, it appeared that the torture of high-value detainees in 2002 and 2003 was, at least in part, the direct consequence of Bush officials' need to extract a link -- fictitious or otherwise -- between al Qaeda and Saddam Hussein in the run-up to the invasion of Iraq.
Damning stuff, to be sure. Yet watching Holder's testimony before the House Appropriations Committee, where his office was met with a coalition of activists delivering petitions carrying 250,000 signatures from Americans who support appointing an independent prosecutor to investigate Bush's crimes, it would be hard to guess that it came in a week that saw such a flood of evidence of human rights violations and war crimes come to light. Reiterating his contention (following the initial release of legal memos last week outlining the rationale for Bush era torture) that "those in the intelligence community who acted reasonably and in good faith are not going to be prosecuted," Holder also reassured the committee members that he "will not permit the criminalization of policy differences" -- an almost superfluous response to one of the bogus conservative talking points that has sprung up -- the notion that holding accountable lawyers who authorized flagrantly illegal techniques against U.S. held prisoners will have a "chilling effect" on advisers' opinions. But, he said, "it is my responsibility as attorney general to enforce the law. ... If I see evidence of wrongdoing I will pursue it to the full extent of the law." Very well, but with virtually no references to the avalanche of evidence that emerged this week, Holder's words, like President Obama's pep-rally style speech before the CIA last week and the hearing itself (which, in fairness, was held to discuss the 2010 budget of the DOJ), largely belied the severity of what has been revealed in the past week.
To recap: Holder's appearance came one week to the day after the release of the infamous OLC memos, which describe in chilling detail the methodology of the CIA's "enhanced interrogation" program. The documents sparked fresh revulsion in the media and blogosphere over the Bush administration's torture program, while also prompting renewed calls for the Obama administration to investigate and hold accountable those who authorized it. Despite President Obama's immediate announcement that CIA rank and file would not face charges -- "it is our intention to assure those who carried out their duties relying in good faith upon legal advice from the Department of Justice that they will not be subject to prosecution" -- online and in the pages of the New York Times, the call for accountability was deafening. From the push to impeach former OLC lawyer turned judge Jay Bybee, who currently enjoys a seat on the federal bench, to the heckling of former OLC attorney John Yoo (the veritable godfather of the OLC's pro-torture rationale) at a California college where audience members shouted "war criminal" as he took the stage, people were outraged.
Then, on Tuesday night, the Senate Armed Services Committee released its 263-page "Inquiry Into the Treatment of Detainees In U.S. Custody," an exhaustive look at the Bush administration's torture program following September 11th. Based on over 200,000 pages of classified and unclassified documents and interviews with more than 70 people (mostly Pentagon officials), the document is more than a catalog and condemnation of the torture program. It officially upends the dishonest narrative that has been used to excuse the abuse of prisoners in U.S. custody ever since the first photographs of hooded prisoners left Abu Ghraib. "The abuse of detainees in U.S. custody cannot simply be attributed to the actions of 'a few bad apples' acting on their own," read the report, using the very language Secretary of Defense Donald Rumsfeld employed to dismiss the abuse in 2005. "The fact is that senior officials in the United States government solicited information on how to use aggressive techniques, redefined the law to create the appearance of their legality, and authorized their use against detainees. Those efforts damaged our ability to collect accurate intelligence that could save lives, strengthened the hand of our enemies, and compromised our moral authority."
The Senate Armed Services report revealed a number of other significant details, including a more complete chronology of the development and authorization of the torture program. Writing on the New Yorker website, investigative journalist Jane Mayer wrote that the Senate report makes clear that "the C.I.A. and the military were preparing a blueprint for brutality months before they even had captured a single high-level Al Qaeda operative." While the OLC memos have long been understood to have been designed to grant legal cover to practices already in place, this fact would seem to carry significant legal implications even if they are taken at face value.