After Making Bank Fraud Legal, Eric Holder’s DOJ Makes Torture Legal

DOJ has announced that the two ongoing investigations it had into torture have been closed for lack of admissible evidence.

The Attorney General announced today the closure of the criminal investigations into the death of two individuals while in United States custody at overseas locations.

Eric Holder tried to put a good spin on this event.

AUSA John Durham has now completed his investigations, and the Department has decided not to initiate criminal charges in these matters. In reaching this determination, Mr. Durham considered all potentially applicable substantive criminal statutes as well as the statutes of limitations and jurisdictional provisions that govern prosecutions under those statutes. Mr. Durham and his team reviewed a tremendous volume of information pertaining to the detainees. That review included both information and matters that were not examined during the Department’s prior reviews. Based on the fully developed factual record concerning the two deaths, the Department has declined prosecution because the admissible evidence would not be sufficient to obtain and sustain a conviction beyond a reasonable doubt.


Mr. Durham and his team of agents and prosecutors have worked tirelessly to conduct extraordinarily thorough and complete preliminary reviews and investigations. I am grateful to his team and to him for their commitment to ensuring that the preliminary review and the subsequent investigations fully examined a broad universe of allegations from multiple sources. I continue to believe that our Nation will be better for it.

I also appreciate and respect the work of and sacrifices made by the men and women in our intelligence community on behalf of this country. They 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. I asked Mr. Durham to conduct this review based on existing information as well as new information and matters presented to me that I believed warranted a thorough examination of the detainee treatment issue.

I am confident that Mr. Durham’s thorough reviews and determination that the filing of criminal charges would not be appropriate have satisfied that need. Our inquiry was limited to a determination of whether prosecutable offenses were committed and was not intended to, and does not resolve, broader questions regarding the propriety of the examined conduct. [my emphasis]

But when it comes down to it, it means our government either refuses or is completely incapable of holding the powerful to account.

John Kiriakou is being prosecuted for speaking about waterboarding. But the guys who water doused someone to death? They enjoy the same impunity as the banksters.

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.

45 replies
  1. phred says:

    Where is alintexas (or whatever his handle was) who kept going on and on about what a cracker jack job Bull Durham was gonna do… bmaz called bullshit then and I’ll go ahead and call it now.

    Holder. Worst. Attorney. General. Ever.

    And after Alberto Gonzales, that is a remarkable achievement.

  2. Jim White says:

    Henceforth, it is the Department Formerly Known as Justice.

    I knew this was coming, but I still can’t believe how fucking mad I am right now.

  3. MadDog says:

    With AG Holder’s announcement today, he’s proven the maxim that the law is an ass. A blind, morally indefensible, and cowardly ass!

  4. tjallen says:

    Surely now the golden rule applies, and US captives will be freely tortured by whomever. We’ve made our bed…

  5. Teddy says:

    This bodes well for the Romney Administration’s non-prosecution of drone operators and orders-givers. Team Obama hopes.

  6. BSbafflesbrains says:

    Holder is doing what he is told, as is Obama. This was fait accompli before the election results were in in 2008. We do not live in a constitutional democracy. The big lie “we don’t torture” is all that needs be said.

  7. phred says:

    @bmaz: I did indeed ; )

    And just for the record, once, just once, I would like you to actually be shocked by the conduct of DoJ. I doubt I will ever be so lucky.

  8. harpie says:

    The end of a “few loose ends”.

    Torture Whitewash: Probe of Two CIA Murders Ends Obama Administration’s Investigation of Bush’s Global Torture Program; Andy Worthington;7/10/11

    […] For what it’s worth, the criminal prosecutions recommended by John Durham and approved by Eric Holder will investigate the November 2003 murder, in the notorious Abu Ghraib prison in Iraq, of Manadel al-Jamadi, also known as “the Iceman” (which was recently reported by Adam Zagorin of Time, as I discussed here), and the November 2002 murder, in the secret prison in Afghanistan known as the “Salt Pit,” of Gul Rahman. This story was first reported by Dana Priest in the Washington Post in March 2005, but it was not until March 2010 that Adam Goldman of the Associated Press uncovered his name and provided crucial details about the circumstances of his death.

    In both cases, there are reasons for extremely cautious optimism that any prosecution will not just to sacrifice a few low-level operatives as “bad apples,” but will also look a few notches up the chain of command, as Marcy Wheeler has been reporting on FireDogLake. Overall, however, Eric Holder’s announcement is bad news for accountability, as it suggests that the process of “look[ing] forward as opposed to looking backwards” is almost complete, with just a few loose ends to be tied up before we are all obliged to move on, forever consigning to oblivion any outstanding demands we might have — including a full account of who was held in the “high-value detainee” program, and what happened to those who did not end up in Guantánamo, and, most importantly, another question, asked repeatedly until a satisfactory answer is given: how can it be that senior Bush administration officials and their lawyers broke the US torture statute, which requires torturers to be prosecuted, and got away with it?[…]

  9. What Constitution? says:

    @MadDog: No, Holder has not proven that “the law is a ass”. He has proven that he is an ass, and that the synchophants working for him are asses, and that his boss is an ass — and that together, they believe the law is irrelevant. That asses won’t apply or uphold the law does not render the law itself “a ass”. The problem here is with people who won’t apply the Rule of Law and other people who let them not apply the Rule of Law. Maybe there will come a time in our future where those entrusted to respect and apply the Rule of Law will again try to do so — but it plainly is not this time in this country with these people in those positions.

  10. Gimme Shelter says:

    Quick Thoughts

    1) Never surrender to usa military / usa paramilitary / usa mercenaries – Fight to the Death – otherwise, you will end up at Guantanamo Bay Torture & Death Concentration Camp or at some Black Site outside of Red Cross scrutiny.

    2) Start rendering / kidnapping as many americanos as you can lay your hands on – uniformed / non – uniformed / government / civilian – does not matter – and start torturing the absolute sh*t outta them until the usa reverts to a civilized country that obeys the Geneva Conventions.

    what the rest of the planet is not understanding (or has been too slow to come to grips with) is that the usa is now all in – it is going to be a fight to the death over resources – Oil / Water / Minerals etc etc. religion / race / ethnicity is all a smoke screen – the amerikkkan 1% and their corporations are in this to win – and they are not going to lose. at least until the rest of the planet wakes the eff up and starts fighting back.

  11. bittersweet says:

    Wasn’t there a lone Spanish Judge willing to prosecute the Bush Regime for these crimes? What ever happened to him? Ah yes, he was the accused in a scandal and removed from office. Convenient that! Get rid of the only judge in the world willing to indict for torture crimes, and THEN announce that you are dropping the case. (sigh).
    “Spanish Judge Baltasar Garzón is known for ordering the arrest of Chilean dictator Augusto Pinochet and seeking to indict members of the George W. Bush administration for their role in torturing prisoners. Now Garzón is facing trial himself, in Madrid, after right-wing groups objected to his investigation of atrocities committed by supporters of the dictator Francisco Franco. Garzón has used the doctrine of universal jurisdiction to investigate war crimes and torture across national lines. “The irony here, of course, is that he is being prosecuted in Spain for trying to apply the very principles that he so successfully promoted internationally,” says Reed Brody of Human Rights Watch, who has been in the courtroom observing Garzón’s trial.”

    Now he is Julian Assange’s defense attorney. Are we still debating the Assange case, or have we given up on him, …too.

  12. MadDog says:

    @What Constitution?: No, I don’t thing I’m wrong. We disagree about what Holder has or has not proven, but politely.

    I’m referring to what the law actually is and you are referring to what we would like the law to be. They are not mutually exclusive, but that doesn’t make either of us wrong.

  13. H. Candace gorman says:

    As a Gitmo colleague estutely pointed out-if they don’t have sufficient evidence to convict then why not just move them to Gitmo with our clients and detain them forever without charge….sigh.

  14. harpie says:

    @H. Candace gorman:

    Thanks for that little bit of dark humor. Maybe DoJ has a suggestion box. If not, we could just send the idea as a tip [as per pdaly @4 above] to the
    “Report a Complaint about Waste, Fraud, Abuse, or Misconduct in the Department of Justice” hot line.

  15. What Constitution? says:

    @MadDog: Ahhhh … but, of course, that all depends on what you mean by “is”. One thing’s for sure: Holder is despicable here.

  16. bmaz says:

    @H. Candace gorman: You may, or may not, be surprised to know i was jawing about the same concept with somebody today. Shirley, I jest; but, you know.

    There may be embarrassment reasons, and secrecy reasons (re: such things as the MON which I think Marcy has laid consistent groundwork on) that the Administration, whether this one or any other one, does not comfortably wish to delve into, but so far as I can tell the legal bullshit Holder and DOJ spewed today is a complete and unmitigated load of crap.

    These cases CAN be prosecuted, and there is sufficient “admissible evidence” and “jurisdiction” with which to do so. The problem is, the defendants will ask questions, raise defenses, and demand disclosure that is just a bridge too far for the Depends covered, puckered and soiled asses in the Executive Branch.

  17. JohnT says:


    These cases CAN be prosecuted, and there is sufficient “admissible evidence” and “jurisdiction” with which to do so. The problem is, the defendants will ask questions, raise defenses, and demand disclosure that is just a bridge too far for the Depends covered, puckered and soiled asses in the Executive Branch.

    That’s assuming there’s a dimes worth of difference between the two. JMHO but I think Zero’s admin is just as full of arrogant egotistical narcissistic sociopathic sadists as Shrub’s admin … but they hide it better, by being better at playing the role

  18. tjallen says:

    So long as the administration (this one and the next) refuses to allow secret documents to appear in court, then there is not enough evidence to convict. Even documents leaked and publicly available are not admissible at trial. As long as that’s so, then Durham might be right, though we all know the evidence, the courts cannot use it. End of case.

  19. Peterr says:

    the admissible evidence would not be sufficient to obtain and sustain a conviction beyond a reasonable doubt.

    Your honor, I beg to $%@#*%^ differ with my distinguished colleague Mr. Holder.

    And this . . .

    Our inquiry was limited to a determination of whether prosecutable offenses were committed and was not intended to, and does not resolve, broader questions regarding the propriety of the examined conduct.

    . . . is dangerously close to an admission that Mr. Holder deserves to be tried alongside Messers Bradbury, Bybee, and Yoo.

  20. Peterr says:

    @tjallen: There are a number of documents that are unclassified, including some at the DOJ’s own damn website, that show how DOJ lawyers in the OLC tried to give torture a fig leaf of legal cover. See the link @24 for more.

    As at Nuremberg, these folks can be convicted on their own words.

  21. P J Evans says:

    I wondered, when I read the story while at work, what would be said here.
    (My comment, at that site, was

    It’s OK if the government does it. Laws only apply to little folks. /wish-it-was-snark


  22. tjallen says:

    @Peterr: I’m not arguing they are right to not prosecute – for goodness sakes, I’m totally frustrated at their unwillingness to do so. If I remember correctly, we even have Bush confessing that he ordered the torture. What more is needed? The will to do what is right. How can we break out of this mess? Our country is morally hideous. The shining light on the hill went out long ago.

    Sadly, I foresee some lame resolution in the 40-60 year timescale, like the apology for the Japanese held in US concentration camps in WW2. Late and basically meaningless, and no one left alive to punish or compensate. On my view, that is not anywhere near a good enough result.

  23. Peterr says:

    @tjallen: I was reacting to your comment that without classified documents, there isn’t enough admissible evidence to convict. There *is* such evidence that is unclassified — but as your comment @30 makes crystal clear, it takes the will to do what is right and actually put that evidence before a judge and jury.

  24. MadDog says:

    Speaking of the pursuit of justice in letting the guilty go free and punishing the innocent, this via the AP:

    Pentagon May Take Legal Action Against Seal Author

    “The Pentagon’s top lawyer on Thursday informed the former Navy SEAL who wrote a forthcoming book describing details of the raid that killed Osama bin Laden that he violated agreements to not divulge military secrets and that as a result the Pentagon is considering taking legal action against him.

    The general counsel of the Defense Department, Jeh Johnson, wrote in a letter transmitted to the author that he had signed two nondisclosure agreements with the Navy in 2007 that obliged him to “never divulge” classified information…


    …Johnson said that after reviewing a copy of the book, “No Easy Day,” the Pentagon concluded that the author is in “material breach and violation” of the agreements…”

  25. Jeff Kaye says:

    @Gimme Shelter:

    “…what the rest of the planet is not understanding (or has been too slow to come to grips with) is that the usa is now all in – it is going to be a fight to the death over resources …”

    Well, I think much of the rest of the planet does understand this. It’s the American people who are pretty slow on the uptake, so goggle eyes over techno dreams and hoary Horatio Alger fantasies they didn’t notice that the imperialists who rule their nation have jettisoned the pretensions to the very Enlightenment ideals that formed the country. The jettison of Democracy itself, in the ragged form in which it still exists, and of democratic rights (like habeas!) is just around the corner.

    In all my work against torture, I’ve never actually believed this government was capable of policing itself. I intend the torture work as an ongoing expose of a ruling elite that has left its sanity at the door of private profit and monopoly control over the whole planet.

    I shudder for our future, and the historical forces at work here are highly destructive. Indeed, they have already spilled massive amounts of blood, and fortress America will turn inward. The day is coming. Unless… [you fill in the blank, but it better be pretty good, because a society unable to restrain barbarism is doomed]

  26. greg brown says:

    “Eric Holder tried to put a good spin on this event.”

    Only in today’s America would the Attorney General attempt to put a good spin on his failure to prosecute the most egregious crimes against humanity: torture and murder.

  27. joanneleon says:

    Reading the comments here helped because I have no idea what this feeling is that I have upon hearing this news but it is a horrible feeling.

  28. uggabugga says:

    No surprise. The Committee Against Torture has pointed out that federal law does not comply with the Convention Against Torture. Torture is not illegal in our throwback state.

  29. bell says:

    @greg brown:
    it is all about aren’t supposed to consider the content.. news served up by the corporate media for the brain-dead to be swallowed unquestioned..

  30. What Constitution? says:

    Good thing they timed this story for release during the Rethug convention and on the day Romney was to speak. Better than a Friday evening. Not only will no no Democrats dare criticize the action (for fear of being called soft on terror), but no Rethugs will even risk distracting attention from their boy, Romney, by sanctimoniously crediting Holder and Obama for carrying on Bush’s playbook — so Obama gets to carry on Bush’s playbook with virtually no “damned by faint praise” commentary that might hurt his electoral posture within the Democratic wing, too. In other words, nothing to see here, move along.

  31. earlofhuntingdon says:

    NOT obtaining admissible evidence was an attribute built into the illegal architecture of torture. Mr. Holder and, more important, his Mr. Obama, never challenged that. Indeed, it was and almost certainly remains a defining feature of the torture programs.

  32. harpie says:

    Holder Announces Impunity for Torture-Homicides; Scott Horton; Harper’s; 8/31/11

    […] Had Eric Holder spoken honestly about the Durham investigation, this is what he would have said:

    Today the Department has decided that there can be no accountability for crimes involving torture committed by intelligence officers during the Bush Administration. […] Because misconduct of the Justice Department itself is at the very heart of this matter, and because institutional interests of the Justice Department dictate that we hide its betrayals of the public trust from public view, we have decided that no prosecutions can be undertaken.[…]

  33. youmayberight says:

    @tjallen: But wouldn’t it be the Justice Department itself who would be the party with the standing to object to the admissibility of secret documents? In other words, isn’t the DOJ saying these documents won’t be admissible because WE will object to them? If that is the case, a more honest statement by Holder would simply have said that they didn’t want to prosecute because they wanted to keep some secrets.

  34. Propriety of conduct says:

    Spent some time yesterday looking at Alfred McCoy’ s bracing study “Policing America’s Empire: The United States, the Philippines, and the Rise of the Surveillance State.” Highly recommended reading for those dismayed by this turn of events. In it, the author – an expert in SE Asian history and in authoritarian methods – underscores what he sees as parallels between a former colonial adventure and a more recent incursion into Iraq. Around world war I he argues “a mix of emergency legislation and extralegal enforcement removed the restraints of courts and Constitution that had protected Americans from surveillance and secret police for over a century.” police methods tested and perfected overseas migrated homeward including arbitrary arrests, censorship, mass surveillance and black ops. Not just informants, wiretaps and break-ins but also anonymous attempts to break up marriages, disrupt meetings and blacklist people from their professions, even targeting groups into rivalries that might result in deaths. McCoy suggests that every time these amplifications of state power through advanced security technologies traumatized both the distant and domestic society, it took decades to repair. Not a bug. A feature.

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