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Will Attorney General Eric Holder's Torture Probe Let Senior Bush Officials Off the Hook?

Anti-torture lawyers argue that any investigation must target the whole torture system, including its legal architects and those who gave the orders.

Lawyers from the American Civil Liberties Union have just been notified that there will be a hearing on Wednesday morning in the group’s lawsuit to have a much-anticipated 2004 CIA Inspector General’s report on “enhanced interrogation” publicly released. The report is believed to contain some key information on the nature of what others call the “Bush torture program.” The Obama White House has been fighting to have the report suppressed with CIA Director Leon Panetta telling federal Judge Alvin Hellerstein in June that the release of the report would result in “exceptionally grave damage to the national security.” At present, the Obama administration has stalled the release until August 31, a delay the ACLU is protesting. Today, Judge Hellerstein notified the lawyers from the administration and the ACLU of Wednesday’s meeting.

As this battle (one of many being waged by the ACLU) continues, a spot light is once again being focused on the issue of potential prosecutions stemming from the Bush administration’s torture program.

In the 48 hours since Newsweek published a story asserting that Attorney General Eric Holder is now “leaning toward appointing a prosecutor to investigate the Bush administration’s brutal interrogation practices,” the internet and Capitol Hill have buzzed with reaction. While Obama has spoken quite strongly against prosecutions, he has made a point of saying that the final decision is Holder’s.

For months, Republican politicians and their media proxies (and, as noted above, some Obama officials) have lambasted the possible prosecutions as unnecessary, irresponsible and a threat to U.S. national security. Meanwhile, the recent reports on Holder have some anti-torture activists wondering whether Holder will be the new “ Anti-Torture Hero.”

But, a closer examination of the type of investigation Holder is reportedly considering may come as a disappointment to those pressing for accountability -- particularly for prosecuting those at the high levels of power -- for the crimes of the Bush administration.

As has been noted over the past two days by The New York Times, The Washington Post, the Wall Street Journal (and most of the elite, connected media), any investigation authorized by the Justice Department is likely to be very narrowly focused on those CIA interrogators who went beyond the torture methods explicitly approved in Justice Department legal memos. “The actions of higher-level Bush policymakers are not under consideration for possible investigation,” reports the Washington Post . “Attorney General Eric Holder may order a criminal probe into whether treatment of terrorism detainees exceeded guidelines set by the Justice Department,” administration officials told the Wall Street Journal . “Holder’s potential order would likely be limited in scope, focusing only on any interrogation practices that may have gone beyond the bounds set by Justice Department memos, according to a person familiar with the attorney general’s thinking.”

The New York Times , meanwhile, reported today, “The attorney general would prefer to keep such an inquiry narrowly focused and assign it to a line prosecutor, if possible, rather than appoint a special prosecutor.”

In interviews today, two of the leading lawyers working on confronting the Bush administration’s torture program expressed serious concerns about the reported approach being considered by Holder. “It is utterly limiting and means that the lawyers and the higher-ups -- assuming they just had these ‘torture rules’ on paper—are not going to be implicated, but only some lower-level persons who went beyond what was supposedly ‘authorized’ by the Office of Legal Counsel, [by] William Haynes [General Counsel of the DoD under Bush], John Rizzo [General Counsel at the CIA] and the [Bush administration] leadership,” says Michael Ratner, president of the Center for Constitutional Rights. “So, that’s very very limiting because it’s in essence accepting the ‘golden shield’ defense that you can somehow get away with legally authorizing waterboarding.” Ratner said waterboarding and some of the other tactics and actions employed under Bush are “so outside of anything that could be a lawful order that anyone who authorized or obeyed it should be prosecuted.”

Jameel Jaffer, who is Director of the ACLU’s National Security Program said the report that Holder may appoint a prosecutor “is very encouraging,” but cautioned: “If the prosecutor has a mandate only to look at the actions of interrogators who exceeded their authority, that’s a very narrow mandate and its one that’s going to result in the misimpression that, as with the Department of Defense, the problem in the CIA was with rogue interrogators. In fact, the problem with the CIA torture program was the program itself, which was authorized at the highest levels and the most senior Justice Department lawyers sought to provide a legal basis for that torture program. That’s where the real problem is.”