No Comment — August 24, 2009, 4:30 pm

Holder’s Modified, Limited Hangout

Attorney General Eric Holder today announced that he has charged John Durham, a career prosecutor from Connecticut, to examine a series of cases in which CIA interrogators appear to have exceeded the guidelines provided in the use of Bush-era torture techniques and to determine whether cause exists for a full criminal investigation. Durham is a serving special prosecutor, having been appointed by Michael B. Mukasey to look into the destruction of tapes of interrogation sessions after the CIA’s Inspector General concluded that the tapes had to be preserved. Durham is also a registered Republican. In announcing his decision, Holder stated that “I have made it clear in the past that the Department of Justice will not prosecute anyone who acted in good faith and within the scope of the legal guidance given by the Office of Legal Counsel regarding the interrogation of detainees. I want to reiterate that point today, and to underscore the fact that this preliminary review will not focus on those individuals.”

Note that Holder does not expressly exclude the possibility of prosecuting Justice Department lawyers or figures in the White House. That is of course proper, because it is not the role of the attorney general to tell the prosecutor who he should or should not investigate. But there are still troubling aspects to Holder’s decisions. It is revealing that Holder decided not to release the report of the Office of Professional Responsibility (OPR), which reviews and comments on the legal guidance given by OLC. That report was readied, apparently on Holder’s instructions, for release today. Why did Holder decide to keep the OPR report under wraps?

I can propose a number of reasons:

First, the report itself could question the legal competence of the OLC memos—which were in fact repudiated by the Bush Administration before Holder even arrived on the scene. It could therefore provide ample reason to doubt whether anyone with legal training—or indeed, anyone with a functioning mind and the ability to read—would find the memos to be persuasive statements of the law. That matters, because the law requires someone relying on them to have done so “in good faith.”

Second, the factual section of the OPR report could show that the memos were not commissioned because the White House or the CIA wanted the benefit of OLC’s thoughts about the law. In fact, the torture program was already in place and being used. These memos were solicited and written as get-out-of-jail cards to get CIA interrogators, at least some of whom raised concerns about the legality of what was being done, to use the new techniques.

Third, the Holder Justice Department may want attention focused on the CIA interrogators and away from the reprehensible role played by the Justice Department. Release of the OPR report would fuel discussion of the role played by John Yoo, Jay Bybee, and Steven Bradbury and of the link between the CIA and Vice President Cheney’s office—since the OLC memos were written as a collaborative effort between the OLC attorneys and still-unidentified persons who worked for Cheney.

While Holder presents himself as moved by legitimate law-enforcement concerns, his actions are questionable. Does he want to put the Justice Department in the position of saying it has investigated the crimes that obviously occurred, and then limit the scope of the investigation in a way that makes any prosecution rather unlikely? Doing so might keep criminal action involving Justice Department personnel (and in the White House) at bay. No–it seems that he is offering what, as John Dean reminds us, was known in the Watergate era as a “modified, limited hangout.” Yes, some of those involved in the program will be exposed to the possibility of prosecution–but right now it seems that the torture program’s true authors could escape any serious scrutiny.

That would be a travesty. But it would be wrong to believe at the outset that this entire exercise is predetermined and a whitewash. John Durham does not have the sort of credentials I think would have been appropriate for this job—it should have gone to someone whose background makes him a peer of the attorney general, not a senior employee who reports to him. Nonetheless, Durham’s credentials as a prosecutor are impeccable, and his handling of the CIA tapes so far reflects consummate professionalism—particularly because it has been handled aggressively but without leaks to the press, which are the hallmark of the prosecutor who has the wrong motives in mind.

The public should trust Durham to do his job. But the Justice Department should come clean about its unsavory role in this entire affair. That process will start with the publication of the OPR report and the release of documents cited and discussed in it. Holder needs to release these documents immediately, and he should be pressed to account for his failure to do so.

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