Jennifer Rubin, a lawyer and regular contributor to Commentary magazine's Contentions blog, is Pajamas Media's Washington editor.
Attorney General Eric Holder's decision to ask a special prosecutor to investigate for possible criminal prosecution CIA operatives who interrogated terrorists in overseas locations is the latest and most egregious instance of political gamesmanship by Holder, who strode into office promising to remove the taint of politicization from the Justice Department.
Holder's announcement brought a storm of criticism from senators, former CIA director Michael Hayden, former vice president Dick Cheney, and veteran Justice Department attorneys. CIA employees, already reeling from congressional attacks, were understandably mystified by Holder's words assuring them of his "respect and gratitude" and puzzled as to how naming a special prosecutor could evidence a willingness, as Holder put it, "to look forward, and not backward." Holder's puffing to the effect that all who acted in "good faith and within the scope of legal guidance given by the Office of Legal Counsel" should have nothing to fear is belied by the nature of the investigation, which will examine whether agents really were acting in good faith and correctly applying the OLC's instructions on interrogation.
Holder pronounced himself obligated to "follow the facts and the law." One critical fact, however, he entirely ignored: Professional prosecutors had already examined the allegations of CIA misconduct, conducted an inquiry, and made a determination--not to prosecute. (One contractor outside the interrogation program was prosecuted for assault.) Holder never mentioned that a task force (informally dubbed the "Detainee Abuse Task Force") in the Eastern District of Virginia has already considered all of the applicable information, including the CIA inspector general's 2004 report made public last week. Following standard procedure, the task force drafted "declination memos" setting forth the rationale for not proceeding with prosecutions.
Those reasons were summed up in a letter from Principal Assistant Deputy Attorney General Brian Benczkowski to Senator Richard Durbin dated February 7, 2008. In each case, Benczkowski wrote, the decision rested on "one or more of the following reasons: insufficient evidence of criminal conduct, insufficient evidence of the subject's involvement, insufficient evidence of criminal intent, and low probability of conviction."
The federal prosecutors involved in reviewing alleged CIA misconduct were seasoned professionals who would not have hesitated to go public if political appointees had influenced their decision-making, according to multiple former Justice attorneys.
A former Justice Department lawyer says of one of them, U.S. Attorney Chuck Rosenberg, "[He] is a complete professional. Had he perceived any political pressure whatsoever not to prosecute these cases, he would have gone public with it, much like Jim Comey did." (Deputy Attorney General James B. Comey made headlines in 2004 when he refused to buckle to perceived White House pressure while then attorney general John Ashcroft was incapacitated.) Any suggestion that the task force was pressured is "completely false," according to another attorney familiar with its work.
A former Justice Department official describes the Eastern District task force's process:
The CIA discovers misconduct, which the CIA inspector general investigates. The information seems to suggest misconduct. They go to DOJ. DOJ tells them to stop and that [Justice] will now look at the issue, gather evidence, and investigate it themselves. They must decide if there is a reasonable belief that they could obtain a conviction beyond a reasonable doubt. They looked at it. They made a decision and declined [to prosecute]. They go back to the CIA, which can, and in several instances did, review the matters for internal discipline.
Another individual with direct knowledge of the career prosecutors' work explains that while some of the allegations in the CIA inspector general's report seem startling, "the evidence was very weak." He continues, "A detainee said X but there was no proof to support it."
Declination memos of the type drafted in these cases, according to former Justice Department officials, are considered the "crown jewels" of the department, which strenuously resists releasing them. (Decisions not to prosecute are rarely the subject of public comment, given the risk of tainting suspects' reputations or impairing other investigations.) If the decisions not to prosecute were reversed, however, and a new process launched retracing the work of the task force, the CIA defendants would certainly demand all of the information that served as the basis for the government's original declinations. If the government had information concerning problematic witnesses, defendants' lack of knowledge of applicable interrogation guidelines, or other reasons not to prosecute, this material would be essential to the defense--and likely fatal to the prosecution's case.
A former Justice Department lawyer explains that any new prosecution would likely face "an insurmountable problem." A respected career prosecutor like Durham would find it "very difficult not to reach the same conclusion" unless new facts had emerged.
Holder, however, mentioned no new evidence. He did cite an investigation by the Justice Department's Office of Professional Responsibility (OPR), but persons familiar with the final report generated by that investigation believe it contains no new material that would explain a decision to reverse the Eastern District task force. Holder, moreover, gave no indication he had reviewed the task force's findings or interviewed its career prosecutors. He is acting as if no decision were ever made to forgo prosecution.
Another obstacle to successful prosecution is the difficulty of obtaining convictions under the torture statute (presumably Holder's basis for potential prosecution). Prosecutors must prove the defendant's specific intent to commit torture, defined as the infliction of "severe physical or mental pain or suffering." Many of the allegations in the CIA inspector general's report, such as blowing smoke in the face of a terror suspect, scratching the suspect's leg with a brush, or forcing him to sit or kneel in an uncomfortable position, do not appear to meet that standard.
The CIA inspector general's report itself suggests serious factual impediments to prosecution. Paragraph 90, for instance, concludes that with regard to a list of interrogation techniques not specifically approved by OLC attorneys,
For all the instances, the allegations were disputed or too ambiguous to reach any authoritative determination regarding the facts. Thus, although these allegations are illustrative of the nature of the concerns held by individuals with the [Counterterrorist Center] Program and the need for clear guidance, they did not warrant separate investigations or administrative action.
The attorney general's decision to reopen the possibility of CIA prosecutions is eerily reminiscent of his handling of an earlier incident when, having received a legal opinion he did not like from his Office of Legal Counsel, he sought a second opinion elsewhere. After OLC informed Holder that a bill granting the District of Columbia voting rights would be unconstitutional, he went to the solicitor general, reframed the question, and seized upon the more congenial answer.
One former Justice Department lawyer says the CIA matter "has the whiff of the D.C. voting rights issue. You don't like the answer you got from the right place in the bureaucracy so you shop it around. You find someone else to give you the answer you wanted and you latch on to that, regardless of whether the source of that answer is the appropriate source."
Holder's use, meanwhile, of the Office of Professional Responsibility to justify his do-over investigation is curious. Unlike the Eastern District's career prosecutors, OPR has no expertise or mandate to investigate the CIA. The "professional responsibility" in OPR's title is lawyers' professional responsibility. The office's job is to investigate whether Justice Department attorneys have engaged in conduct violating their ethical obligations. (This is why it fell to OPR to investigate whether Office of Legal Counsel lawyers had committed misconduct in crafting the interrogation memos.) There is no precedent for OPR's investigating whether non-lawyer CIA agents failed to follow legal advice or broke criminal statutes. One former Justice Department official says, "This is totally outside their lane."
Another veteran lawyer says bluntly that it has "never happened, never," that OPR has been set loose to second guess career prosecutors' judgment, let alone go roving outside of the department to explore criminal charges against another agency's employees. He explains that in essence OPR--without saying it--is claiming that the Eastern District task force career lawyers committed "prosecutorial misconduct." He asks: "What are they going to do--prosecute them too? Refer them to the bar? And if not, if [the task force only exercised] prosecutorial discretion, then the whole thing is political."
An official with direct knowledge of the events explained that when OPR presented its draft report to outgoing Attorney General Michael Mukasey and his deputy, Mark Filip, at the end of the Bush administration, both questioned what a recommendation to investigate the CIA was doing in a report assessing OLC lawyers' professional responsibilities. The potential prosecution of CIA agents was not the focus of the OPR draft, of course, for the obvious reason that OPR's purview did not encompass complex national security issues or CIA agents' potential criminal conduct.
It remains unclear how OPR was tapped to delve into CIA conduct. Former Justice Department attorneys from various divisions express open contempt for the group's quality of lawyering and lack of prosecutorial experience. One says that it is "ludicrous" for OPR attorneys--many with no prosecutorial experience in terrorism (or any) cases--to second guess career prosecutors expert in this area: "It is like having a medical school dropout review the work of a surgeon."
Some point to politics within the Justice Department predating the Obama administration. The department's inspector general has long sought to bring OPR under his ambit, and OPR has historically smarted under the perception that it is not a full-fledged investigative organization. Playing the central role in a high-profile inquiry would demonstrate OPR's muscle and keep the inspector general at bay. Indeed, OPR's former head boasted to Justice officials that his group was following the model of the high-profile investigation by the department's inspector general of the Bush administration's firing of nine U.S. attorneys in 2006. OPR, eager to demonstrate its investigative chops, would be the perfect instrument for an attorney general bent on revisiting the prior administration's work.
Considering the problematic nature of a do-over prosecution, former Justice Department attorneys express astonishment at Holder's move. Many believe it is another bone thrown to the president's leftwing base, one more shot at the Bush administration. Since the special prosecutor, John Durham, is held in high esteem--and almost certainly won't be able to come up with cases provable beyond a reasonable doubt--some speculate that Holder is stalling.
Durham, they reason, will revisit the task force's work, investigate the allegations, and report back that convictions are not obtainable. Holder will have bought the indulgence of the left and some time for the president. This gambit, however, would only postpone the inevitable. The netroots and liberal lawmakers will be satisfied with nothing short of prosecution.
By appointing Durham, Holder may have succeeded only in enraging conservatives and dangerously raising liberals' expectations. But if this special prosecutor takes as long to conduct his review as some have in the past, Holder may move on before Durham finishes his work. Still stinging from criticism of his involvement in the pardon of international fugitive Marc Rich on the final day of the Clinton administration and the revelation that he authorized Clinton-era renditions, Holder will have burnished his image as an "independent" attorney general.
The "outrage," as one former Justice Department lawyer explains, is that although virtually no professional prosecutor believes there will ever be a conviction, the implicated CIA operatives will "have to hire lawyers to defend themselves." Holder appears to have shied away from going to war with veteran Justice Department attorneys over controversial prosecutions of OLC lawyers--but redirected eager OPR attorneys against low level CIA operatives.
Aside from the chilling effect on the CIA and the impropriety of dragging individuals through investigations with virtually no chance for convictions, reversing a prosecutorial decision of a prior administration is a dangerous precedent for the Justice Department. One former Justice lawyer warns: "It would mean no one would ever get any peace, because if you were the target of an investigation at the end of which DOJ said it was not prosecuting, there would be no finality to that decision. It would turn DOJ into a purely partisan agency."
And that is what the Holder Justice Department has become.
By Jennifer Rubin
Reprinted with permission from The Weekly Standard