By William Fisher
Attorney General Eric Holder’s decision yesterday to investigate whether interrogators from the Central Intelligence Agency or its contractors violated any federal laws in applying “enhanced interrogation techniques” to detainees in U.S. custody overseas triggered immediate criticism from human rights advocates and appeared to widen the partisan divide between Republicans and Democrats.
As Holder released a long-delayed 2004 report by the CIA’s then-Inspector General (IG) detailing the often-brutal questioning of “high value” al Qaeda terror suspects, he named a special prosecutor to investigate whether CIA officers or its contractors went beyond the policies and practices authorized in legal memos from the George W. Bush administration.
The 190-page report, though still heavily redacted, describes a litany of interrogation abuses inside the Central Intelligence Agency’s overseas prisons, including repeatedly choking a prisoner, threatening to sexually assault a detainee’s mother in front of him, vowing to kill a detainee’s children, using a power drill during an interrogation to terrify the suspect, and staging a mock execution.
The report also addresses the repeated waterboarding of Khalid Sheik Mohammed, the self-described “mastermind” of the 9/11 attacks. Some CIA operatives were unclear about the legal basis for using this technique and sought guidance from their headquarters. The report says the attorney general at the time, John Ashcroft, was aware of and approved its use. Mohammed was waterboarded 183 times in a single month.
But prosecutor John Durham's mandate will be limited to roughly a dozen cases in which CIA interrogators and contractors may have violated U.S. torture laws and other statutes. Moreover, Durham will first conduct a 'preliminary' investigation meant to determine whether a full investigation is appropriate. Many of the same cases were reviewed in 2005 during the Bush Administration, which decided that prosecutions were not justified.
Predictably, the middle ground taken by Holder failed to satisfy either the Right or the Left. Those on the Right want no investigations. Those on the Left believe the investigation should not be limited to CIA operatives but rather should follow the evidence trail up the chain of command to senior Bush administration officials.
Moreover, in the heated partisan environment of today’s Washington, any investigation is likely to complicate the Obama Administration’s efforts to forge bipartisan coalitions to implement the president’s legislative agenda, which includes ambitious initiatives in health care, climate change, education, and immigration.
The human rights community was virtually unanimous in the view that Durham’s limited mandate did not go far enough.
"The Obama administration made a commitment to transparency, and the release of the IG report is a step in the right direction. The American public has a right to know the full truth about the torture that was committed in its name," said Jameel Jaffer, Director of the National Security project for the American Civil Liberties Union (ACLU), the group that originally brought the lawsuit against the government that resulted in the public release of the CIA IG report.
“The information in the report about the origins and scope of the CIA's torture program further underscores the need for a comprehensive investigation into the torture of detainees and those who authorized it," he said.
The Center for Constitutional Rights (CCR), a legal advocacy group that has provided defense counsel for many Guantanamo Bay detainees, said, “Justice demands an investigation without such limits – a comprehensive investigation that doesn't exempt high-ranking officials.”
Clare Algar, Executive Director of Reprieve, a London-based British charity that has defended more than 30 terror detainees, said, “Rather than creating low-level scapegoats, any prosecution should reveal that the criminal acts described in these memos were ordered by those at the very top of the CIA and Bush Administration.”
Devon Chaffee, Human Rights First Advocacy Counsel, said “The Attorney General should ensure that the appointed prosecutor has discretion to follow the facts wherever they lead, including investigating the architects of the system of prison abuse, not only those who implemented it.”
And, in a statement, Amnesty International USA, said, “After years of evidence that torture and human rights violations were ordered and authorized from above, only lower level personnel have been held to account. We can’t let impunity for torture continue.”
Members of Congress were far less unanimous.
Senator Dianne Feinstein, a California Democrat who heads the Senate Select Committee on Intelligence, said “The documents released today provide evidence that the CIA detention and interrogation program exceeded its authority.” Her committee is currently conducting its own investigation of the CIA ‘s abuse of prisoners in its secret prisons overseas. She said, “The Committee’s study will continue until we complete our work, regardless of any decision by Attorney General Holder on whether to proceed to a criminal investigation.”
Senator Ron Wyden, Democrat of Oregon and a member of the Senate Intelligence Committee, said the DOJ investigation reminded him of previous inquiries into prisoner abuse at Abu Ghraib in Iraq, when “lower ranking troops who committed abuses were hung out to dry.”
But Republicans took a decidedly different view. The senior Republican on the Intelligence Committee, Kit Bond of Missouri, characterized the appointment of a special prosecutor as a “witch hunt targeting the terror fighters who have kept us safe since 9/11.”
And Senate Minority Leader Mitch McConnell of Kentucky called Holder’s decision “poor and misguided.” Bond and eight other GOP Senators said Holder’s actions would have a “chilling effect” on the CIA.
In the House of Representatives, Rep. Peter Hoekstra of Michigan, the top Republican on the House Intelligence Committee, said the DOJ investigation could interfere with the government’s counter-terrorism programs. He added that the abuse charges had already been “exhaustively reviewed.”
But House Intelligence Committee Chairman, Texas Democrat Silvestre Reyes, said that senior Bush officials should not be left out of any probe.
As Holder was releasing the CIA IG report, the White House announced that the government would continue to carry out “renditions” – shipping detainees to third countries to be held in custody. But officials said these actions would be much more carefully monitored to ensure that prisoners were not sent to countries known to torture prisoners.
That announcement draw sharp and unanimous criticism from human rights advocates.
The ACLU’s Amrit Singh, who tracked rendition cases under President George W. Bush, echoed the community’s sentiment. She said, “It is extremely disappointing that the Obama administration is continuing the Bush administration practice of relying on diplomatic assurances, which have been proven completely ineffective in preventing torture.”
She cited the case of Maher Arar, a Syrian-born Canadian sent in 2002 by the United States to Syria, which offered assurances against torture but beat Mr. Arar with electrical cable anyway.
The disclosures by the Justice Department also included two reports that former Vice President Dick Cheney wanted released earlier this year, stating that they would demonstrate the effectiveness of abusive interrogation techniques. However, these reports refer to no specific interrogation methods and make no effort to measure their effectiveness.
Their release drew sharp criticism from human rights groups.
The comments of CCR Attorney Gitanjali S. Gutierrez are typical. She said, “These are the documents Dick Cheney was so excited to see declassified, but they don’t make the case for torture, they only show that the CIA is able to tailor documents to justify its actions after the fact.”
Cheney said yesterday that the CIA's interrogation of terror suspects "saved lives and prevented terrorist attacks." In a statement, he said those who carried out the interrogations "deserve our gratitude" -- not "to be the targets of political investigations or prosecutions."