Holder Announces the Investigation

And notes some will be unhappy that he has initiated the review. But doesn’t consider those of us who smell a whitewash.

I have reviewed the OPR report in depth. Moreover, I have closely examined the full, still-classified version of the 2004 CIA Inspector General’s report, as well as other relevant information available to the Department. As a result of my analysis of all of this material, I have concluded that the information known to me warrants opening a preliminary review into whether federal laws were violated in connection with the interrogation of specific detainees at overseas locations. The Department regularly uses preliminary reviews to gather information to determine whether there is sufficient predication to warrant a full investigation of a matter. I want to emphasize that neither the opening of a preliminary review nor, if evidence warrants it, the commencement of a full investigation, means that charges will necessarily follow.

Assistant United States Attorney John Durham was appointed in 2008 by then-Attorney General Michael Mukasey to investigate the destruction of CIA videotapes of detainee interrogations. During the course of that investigation, Mr. Durham has gained great familiarity with much of the information that is relevant to the matter at hand. Accordingly, I have decided to expand his mandate to encompass this related review. Mr. Durham, who is a career prosecutor with the Department of Justice and who has assembled a strong investigative team of experienced professionals, will recommend to me whether there is sufficient predication for a full investigation into whether the law was violated in connection with the interrogation of certain detainees.

There are those who will use my decision to open a preliminary review as a means of broadly criticizing the work of our nation’s intelligence community. I could not disagree more with that view. The men and women in our intelligence community perform an incredibly important service to our nation, and they often do so under difficult and dangerous circumstances. They deserve our respect and gratitude for the work they do. Further, they need to be protected from legal jeopardy when they act in good faith and within the scope of legal guidance. That is why 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.

I share the President’s conviction that as a nation, we must, to the extent possible, look forward and not backward when it comes to issues such as these. While this Department will follow its obligation to take this preliminary step to examine possible violations of law, we will not allow our important work of keeping the American people safe to be sidetracked.

I fully realize that my decision to commence this preliminary review will be controversial. As Attorney General, my duty is to examine the facts and to follow the law. In this case, given all of the information currently available, it is clear to me that this review is the only responsible course of action for me to take."

Marcy has been blogging full time since 2007. She’s known for her live-blogging of the Scooter Libby trial, her discovery of the number of times Khalid Sheikh Mohammed was waterboarded, and generally for her weedy analysis of document dumps.

Marcy Wheeler is an independent journalist writing about national security and civil liberties. She writes as emptywheel at her eponymous blog, publishes at outlets including the Guardian, Salon, and the Progressive, and appears frequently on television and radio. She is the author of Anatomy of Deceit, a primer on the CIA leak investigation, and liveblogged the Scooter Libby trial.

Marcy has a PhD from the University of Michigan, where she researched the “feuilleton,” a short conversational newspaper form that has proven important in times of heightened censorship. Before and after her time in academics, Marcy provided documentation consulting for corporations in the auto, tech, and energy industries. She lives with her spouse and dog in Grand Rapids, MI.

29 replies
  1. phred says:

    Gee, now that he’s reviewed the OPR report, does that mean the rest of us finally get to see it? Or will they keep dragging their feet so that Berkley doesn’t need to find a new ConLaw professor? I would hate to see that august educational institution inconvenienced in any way. /s

  2. al75 says:

    Is Durham really a “whitewash” choice. He put the GOP Connecticut governor in the can. WaPo

    As a federal prosecutor in Connecticut, Durham helped convict the state’s GOP governor on corruption charges five years ago. In a different case, he untangled a labyrinthine series of shady relationships between state police officers, FBI agents and mob kingpins in Boston that helped inspire the Academy Award-winning film “The Departed.” And Monday he got what may be his toughest assignment yet: He is the new attorney general’s choice to review nearly a dozen cases in which CIA employees and contractors may have abused terrorism suspects in Iraq and Afghanistan.

    I share the frustration over Obama’s timidity investigating the CIA and the various Cheney cabals. But I’m not sure whitewash is quite the right word for this investigation

    • scribe says:

      He’s been dicking around with the destruction of the torture tapes for over a year now, and no one has – so far as anyone can tell – even been brought before a grand jury, much less indicted or otherwise charged.

      Oh, there’s been a bit of smoke here and there, but no charges.

      And, you can bet that destroying evidence of other crimes – regardless of the context – would be swiftly and abruptly prosecuted. If it weren’t Republicans doing it. After all, this DoJ has the resources to go after people using their garage sale to selling products which were recalled by the Consumer Product Safety Commission. If they have the resources to do that, they surely have the resources to prosecute people who destroy tapes of torture.

      So, as far as I am concerned, he’s been assigned to make a bit of a show and then throw his hands up and quit. If anyone gets prosecuted, you can bet it will be (a) someone low level and (b) that someone will have cooperated in the investigation by naming names, and those names will promptly turn it around on him.

    • siri says:

      I agree with you EXCEPT, Marcy Wheeler is rarely wrong or even “off” about these things!
      I trust her instincts here.
      Too bad she wasn’t (or couldn’t yet be) appointed to help with this investigation.
      We’ll see………..

  3. whyknot says:

    To me it seems reasonable to appoint the same guy looking at torture tape destruction (plainly orders from higher-ups to destroy evidence) w/finding out everything that happened and who did what in terms of those damn memos and Blackwater involvement, the works. Waiting for the ‘you’re just an Obama/OFA shill carrying water, etc. etc… But honestly I’m happy about this and think Marcy should be applauded for her service to the country in keeping this issue out there in the (progressive) public eye.

    • bmaz says:

      Why yes, we should all be simply thrilled that Holder has given an AUSA with a track record of not finding criminal conduct on torture issues, where such conduct exists in spades, and then limiting completely the things said AUSA can do in his “preliminary review” (which isn’t even a freaking investigation by the way). Oh yeah, this news is just wonderful. If you fancy a whitewash.

      • whyknot says:

        I hear you, I just hate to assume this is merely a whitewash. What if it is a real attempt to view the entire situation and all the enablers? Am I just being hope-y again?

          • whyknot says:

            Yeah, maybe – but I’m holding onto the idea that someday, and not just in a dream or cartoon, the whole Office of Special Plans finds themselves charged with (at minimum) trying to run an alternate, unreviewable government. Bastards. I’m actually afraid to go read the thread that’s reviewing the report. But I’ll take my laptop home with me tonight anyway, people endured it, so I feel it’s important to read it and start to know what happened.

  4. joelmael says:

    “In this case, given all of the information currently available, it is clear to me that this review is the only responsible course of action for me to take.”

    Is this an apology for attempting to enforce ’some’ of the law?

    The big lie is “the only responsible course of action”. No it is not. An actual responsible course of action would be to use the evidence you already have to investigate the entire torture regime.

  5. R.H. Green says:

    I’ve commented previously about the curious caveat that Holder included in his confirmation hearing. He stated that those relying on “authoratative” legal advice would not be prosecuted. I have been waiting for the other shoe to fall in order to find out whether the Yoo legal memos fell short of being “authoritative” enough. I note with sadness that Holder’s statement today has withdrawn that curious qualifier. I can only conclude that its original intent was to mislead suckers such as myself.

  6. LabDancer says:

    I realize everyone is over on the Working thread, & I’m way behind on this [& will get more behind; I blame management of Labdancer Industries: IGmas should have been declared a day off], but there’s a [mercifully] few points I want to make on the appointment of Durham.

    [1] I’m empathetic with WmOckham’s comment on the last thread, but more on the EFFECTS of the Durham appointment than on gleaning deeper political meaning from it. I’m certainly willing to accept that Holder et al, Holder in particular, are AWARE of the ‘kick the can’ [somewhat] effects, & that such awareness MIGHT go to intent — if on no other basis than convenience — but the fact is that there is no career on-line DOJ in a better position for this task: and that certainly includes Fitzgerald.

    [2] The Fitzgeralds & Durhams of the DOJ — & there remain hundreds of others about as good, despite hundreds of others leaving during the last 8 years of the REIGH OF [T]ERROR — are very much a breed apart from high profile ’symbolic’ types like David Boies [who lost me on his support for the new FISA 2008], and Dershowitz [who’s lost me lots of times, including U.S. foreign ‘policy’ even remotely touching on Israel] and George Mitchell [who’s received way too much credit for essentially doing stenographic work on MLB’s problems with steroids & — sort of — HGH], and even Holder himself. The high profile lawyers who by name, reputation & appointment might single something meaningful about Holder’s — & by extension I suppose Obama’s — commitment to seriously grappling with this torture demon are all of them seriously technically deficient in this area, in ways that the Fitzgeralds, the Durhams, the Lams et al are not.

    [3] In all fairness to Holder, in particular, there’s some real big problems dealing with lawyers going after lawyers, given the historical basis for lawyering & the pre-existing constructs of relying on the licensing bodies & otherwise only resorting to the criminal law process where there’s stand-alone corruption or other law-breaking to which providing legal services is incidental [I recognize this last part invites contest, but anyway].

    Bear in mind, as we’ve discussed before, as I know I’ve raised a number of times, one of the critical pieces to the Federalist/neocon approach to neutering governance is to ENLIST lawyers and the implication that in that: to enlist the LAW.

    Holder’s statement is, as observed, in essence that Durham is being charged to investigate the extent to which this big horrible is subject to effective prosecution. I have to say: when one bears in mind the technical and political gaps between the Holder & the big names on the one side & the Durhams on the other, that goal resonates with me quite a bit.

    [4] Weeks maybe months back, WmOckham, on a thread here speculating on where all this might go, clearly suggested this process would take on a life of its own. I agreed then, & I know of nothing has happened since that suggests that still doesn’t apply just as much.

    [5] We should watch from this point whether Durham approaches this assignment essentially like Fitzgerald did with the CIA Plame leak investigation, in putting up a dedicated website & posting stuff from which the public can gain some degree of transparency [& fearless leader can gain further traction on an Izzy]. I think to some serious extent Fitz did that out of self-preservation, and I would hope Durham recognizes the same sort of need — at least. If he does this, it’s a sign — that’s he’s put himself at risk & knows it — & it shares the load with the rest of us.

    • bmaz says:

      Except that is all pretty much precluded by the way this is playing out and constructed by Holder, not to mention the extremely limited scope of Durham’s mandate. He does not have the jurisdiction to go farther.

    • Mary says:

      there remain hundreds of others about as good

      I don’t believe this and I haven’t for a long time. The DOJ has been a criminal enterprise for so long now, with rampant disprespect to Congress, the courts and law; with an open and obvious dedication to torture and disappearing people and child abuse and soliciting physical assaults and shipments to more torture and threats against courts and Congress etc. that I think it’s been too long now to say someone still there is a good person.

      And it’s also been so long and yet never any of what you have seen from State Dept and military lawyers – people who would resign and go public with their complaints. Over and over we’ve seen military lawyers do the right thing and DOJ lawyers cover for each other, lie to the courts, use people’s lives like wads of snuff and egregiously opt for the realities and propaganda of torture. With no peeps. All the resignations and pushbacks in JAG, all the silence in DOJ.

      Good people and DOJ don’t go together anymore – not for a long time. Once you get past that, most of what has happened the last couple of years or so is pretty predictable. You have people who will protect their political bases still in DOJ, and people who will protect their colleagues. Just no one to protect the law or the powerless.

  7. wavpeac says:

    There are those who will use my decision to open a preliminary review as a means of broadly criticizing the work of our nation’s intelligence community. I could not disagree more with that view. The men and women in our intelligence community perform an incredibly important service to our nation, and they often do so under difficult and dangerous circumstances. They deserve our respect and gratitude for the work they do. Further, they need to be protected from legal jeopardy when they act in good faith and within the scope of legal guidance. That is why 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.

    WTF??

    Why does language like this even get used in a situation like this? First of all, it hands it to them wrapped in a bow. And secondly, it says “we are afraid you will criticize us and we can’t handle that”. Holy crap. We are only going to enforce laws if it makes people happy????

    I guess regardless of who was appointed…for me that quote tells me all I need to know. Nope… the law is only to be applied in accordance with the wishes of those “in power”. And it ain’t “we the people”.

    • JThomason says:

      You have really zoned in on the problem here: the presumption that executive branch opinion is not subject to judicial review and that its opinions are authoritative in and of themselves.

      Its really a de facto undoing of the principle of judicial review established in Marbury v. Madison and the rationalization I suppose is that decision making on the executive branch level is a policy matter subject only to reviews of illegality under the rubric of impeachment. And we all know how far review of potential war crimes got in Congress with passage of the MCA. It has been almost like some kind of oligarchical agreement was in place to take impeachment off the table. Oh wait, anyway.

      Otherwise Holder would press forward on assessing the legal quality of the opinions justifying “enhanced interrogation techniques” out of the OLC in the first place.

      Of course administratively these categories of analysis have been long by-passed. The problem is that no document has emerged to define the overriding constitutional principles that are operative in place of the Constitutional understanding. But the British Imperial example shows that this kind of vague governance is in fact possible with extra-Constitutional super-legislation (e.g. FISA and the MCA) acting as the earmark of historical progress.

      But in the end the unchanging dialectic of governance is frameable in the context of brutality and civility or humanity. And it is clear in which direction the pendulum swings in this regard. I salute you who continue to witness this erosion of values that encompass a fundamental sense of human dignity under in the name of national “nobility”. Perhaps someone could speak up and steel me in both hope and patience in light of what we are witnessing.

      • perris says:

        You have really zoned in on the problem here: the presumption that executive branch opinion is not subject to judicial review and that its opinions are authoritative in and of themselves.

        that is the problem right there and that problem is HUGE

        • JThomason says:

          If Congress and the Executive are going to conspire to constrain both impeachments and prosecutions, it would seem only fair that the people have, in the face of all the chest pounding assertions in government of “good faith”, the right of a “no confidence” vote. I am just saying. Its not unprecedented in the evolution of the “Constitutional Republic”. But what is in fact possible in the era of the ascent of the money-lenders?

  8. SebastianDangerfield says:

    Something to prevent the public spotting
    how everything is crumbling in their sight.

    So…it’s…whitewash we need!
    Only whitewash we need.

    If the pig sty falls down it’s too late.

    Look, there’s a new crack started,
    even the bricks have parted.
    Now it seems we still have more to do!

    From “Song of the Whitewash”: Lyrics by Bertolt Brecht, music by Han Eisler (1941).

    For a taste, listen here.

  9. bobschacht says:

    Thanks Marcy, for being all over the material released and announced today!

    Holder said:

    That is why 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.

    So, the Nuremburg Defense is now official policy?

    Bob in HI

  10. wigwam says:

    Further, [members of the U.S.’s “intelligence community, which presumably includes intelligence contractors] need to be protected from legal jeopardy when they act in good faith and within the scope of legal guidance. That is why 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.

    Per UNCAT Article 7:

    “The State Party in territory under whose jurisdiction a person alleged to have committed [torture], if it does not extradite him, submit the case to its competent authorities for the purpose of prosecution.”

    UNCAT is a Senate-ratified treaty and thus “supreme law of the land” by Article 6 of the U.S. Constitution.

    By inference those who acted in ”good faith and within the scope of legal guidance” have immunity from prosecution in the U.S. and are therefore subject to extradition. And, under the principle of “universal jurisdiction” any nation can indict them and call for their extradition.

  11. Skellen says:

    So, by Holder initiating a limited investigation does this mean he’s essentially legalizing the authorization and torture committed within the parameters of said authorization? I’m not a lawyer but it seems to me that if he’s not going to investigate all of it he should investigate none of it.

  12. orionATL says:

    i’m not so sure, ew, that it is a pre-determined whitewash.

    here is the wapo’s story on durham: http://www.washingtonpost.com/…..43_pf.html

    what if this is a “small steps to get big players” approach like fitzgerald took in the plame case.

    in the end, fitzgerald concluded he dare not go further than libby,

    but he left us with a lot a very useful information, now in public hands, about how things were handled.

    information, not conviction, is the real gold to screen in cases like this.

    i hope that is what happens here.

    will it? i have too little direct knowledge to make an estimate.

    but i can always hope that holder is playing slow, patient release-the-info power games against powerful public criminals.

    if so, historians at least should benefit.

  13. bmaz says:

    Carrie Johnson at the WaPo is patently misleading and disingenuous to compare Durham to Fitzgerald. Simply absurd. Their jurisdictions, mandates, funding, staffing, pretty much everything, is completely dissimilar. Holder has been consistent from the get go that there will not be a free ranging investigation. Lastly, I find it not a real good bet that Durham will find the likelihood of conviction for even the 10-12 people he is tasked with considering, much less that he unilaterally decides to exceed his mandate and go up the food chain.

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