Although we came to learn about them five years apart, there is no separating in law or in fact the prisoner abuse at Abu Ghraib from the prisoner abuse at Guantanamo Bay or wherever else our government's agents used mock executions and power-drills during interrogation sessions of terror suspects.
Whether in Iraq or Cuba, whether at Gitmo, Bagram Air Force Base, Diego Garcia or at some secret prison, the odious conduct occurred around the same time (2003), came from the same dubious legal rationale (Bush-era torture memos), and ultimately upon its disclosure brought embarrassment, if not outright shame, to our diplomatic and public-relations efforts in the war on terrorism.
We've already processed through our court systems the men and women whose actions generated the Abu Ghraib scandal. At least 12 soldiers and civilians, including Lynndie England and Charles Graner, were found guilty or pleaded out their cases. Most of these ignominious people say they have been punished unfairly for the sins of their superior officers. Six years after the photos, we still do not know how high up goes this particular chain of command.
Now a new administration, fated like all the rest to ride out the consequences of its predecessor's worst choices, must decide what to do with Central Intelligence Agency operatives accused of terrorizing suspected (or even proven) terrorists with tactics straight out of Scarface. We learned about their excesses thanks to a leak to Newsweek (late on a Friday evening in August with the loudest of the chattering class in Maine, on the Vineyard, or in the Hamptons) of a long-awaited internal CIA Inspector's General Report written in 2004, before the CIA destroyed videotaped evidence of its interrogations.
If its weekend preview is any indication, the report - it's still not been made public - is sure to raise the legal and political heat on a man who has just returned from his own August recess. It's been widely reported that Eric Holder has been considering for months whether to endorse federal charges against the sorts of tactics evidently chronicled in the CIA report. And now, with the report due to be made public this week, it's finally time for the attorney general to decide once again whether - and to what degree - we want to treat our soldiers differently from our spies. Back in Washington after his vacation, Holder will earn his salary this week.
As a matter of law, there is no question about what the nation's chief lawyer and law enforcement officer should do. Even the new, watered-down version of our anti-torture law prohibits (with a sentence of 20 years as backstop) the intentional infliction of "severe physical or mental pain or suffering:" brought upon prisoners by their U.S. guards/interrogators through the "threat of imminent death" or the "threatened infliction" of physical pain. "Conspirators" to this crime of torture would be considered under federal law to be just as culpable as the people who fired up the drill in detainee Rahim al-Nashiri's prison cell.
The law seems clear. But when it comes to politics and law in Washington, it's seldom enough to simply apply facts and reach conclusions. Holder knows that the Bush administration stoically refused to prosecute its own policy-makers - men like John Yoo, Jay Bybee, and Alberto Gonzales - who authorized and sanctioned the orders that ultimately led to the abuse. He understands the practical (if unseemly) differences between low-level prison-guard-soldiers and specially trained civilian-spy interrogators. And he realizes that if he starts down the path toward a spectacular CIA trial he might not like where he and his Justice Department end up.
Perhaps that's why it has taken Holder so long to decide what to do about conduct that evidently falls beyond even the expansive rules for interrogations ginned up in 2002 by Bush's Office of Legal Counsel. Or perhaps the delay is explained by the craftsmanship of the memos themselves, explicit enough in sending direction down into the ranks about terror suspects but ambiguous enough to defy future prosecution. Indeed, for this reason, those self-destructive torture directives are like little toy boats sent off from shore onto the surface of a lake. After the initial push they float in the direction in which they were headed, momentum being what it is, until something stops them.
One anonymous official told the Los Angeles Times over the weekend that the interrogators were "almost in juvenile detective mode." But its unlikely the men firing guns in empty cells just invented those ideas or acted out their own fantasies (juvenile or otherwise) in the absence of any orders. Like the disgraced soldiers at Abu Ghraib, we now know that the CIA interrogators, and their supervisors, and maybe their bosses as well, clearly got the drift of the torture memos. The gloves were indeed off. The lawyers had said so. And those agents of the United States acted accordingly. All that remains now is to see what more our government, and the new administration, is willing to do about it.
Andrew Cohen is CBS News' Chief Legal Analyst and Legal Editor. CourtWatch is his new blog with analysis and commentary on breaking legal news and events. For columns on legal issues before the beginning of this blog, click here.