DOJ Investigations into Torture as a Diplomatic Stunt

I’m back into moving hell this week, so I haven’t looked as closely at all the WikiLeak cables that have come out. But I wanted to add one point to David Corn’s story on a cable showing the discussions about a potential Spanish prosecution of our torture lawyers. As Corn describes, the cable chronicles a series of efforts in April 2009–to pressure the Spanish government to quash any prosecution in Spanish courts.

Now, it’s worth noting the timing of the cable: April 17, 2009. That is, the day after the Administration released the torture memos. That is, the big piece of news (aside from the chronology of Republican efforts to quash an investigation)–the Spanish Attorney General Candido Conde Pumpido’s announcement on April 16 that he would not support a criminal complaint–happened almost simultaneously with the release of the memos that would provide a great deal of evidence for a case against John Yoo, who was one of the six being investigated. The cable was probably even sent before–but not by much–Obama released a statement saying,

In releasing these memos, it is our intention to assure those who carried out their duties relying in good faith upon legal advice from the Department of Justice that they will not be subject to prosecution. The men and women of our intelligence community serve courageously on the front lines of a dangerous world. Their accomplishments are unsung and their names unknown, but because of their sacrifices, every single American is safer. We must protect their identities as vigilantly as they protect our security, and we must provide them with the confidence that they can do their jobs.


The United States is a nation of laws. My Administration will always act in accordance with those laws, and with an unshakeable commitment to our ideals. That is why we have released these memos, and that is why we have taken steps to ensure that the actions described within them never take place again. [my emphasis]

Which is why I think the most critical passages of this cable (which includes DOJ among its recipients) are these ones:

Meanwhile, the Embassy has been involved in DOJ-led talks to have [Chief Prosecutor Jose] Zaragoza – who attended the April 16 press conference – lead a four-person team of GOS officials to Washington for a possible meeting with U.S. Deputy AG David Ogden or AG Eric Holder during the week of May 18. Zaragoza’s wife, who is Conde Pumpido’s chief of staff, would reportedly be one of the four.


Zaragoza has also told us that if a proceeding regarding this matter were underway in the U.S., that would effectively bar proceedings in Spain. We intend to further explore this option with him informally (asking about format, timing, how much information he would need, etc.) while making it clear that the USG has not made a decision to follow this course of action. [my emphasis]

That is, within the larger context of a discussion of past efforts to pressure the Spanish not to investigate, the cable points to the person whom the US could leverage–Zaragoza–and describes the best means to do so. Zaragoza, the cable makes clear, is telling the US that the best way to halt the Spanish investigation would be to show that “a proceeding regarding this matter were underway in the U.S.”

That was on April 17, the day Obama said there would be no prosecutions. It discussed a meeting between Zaragoza and either David Ogden or Eric Holder to take place in May, at which point the OPR investigation was still pending. And then less than a month after the OPR Report concluding (finding that John Yoo was an idiot, but not criminally or unethically so), Eric Holder announced the Durham investigation into torture. The one for which the primary basis expired with no charges recently. But the same one DOJ claims is ongoing. The one that Harold Koh pointed to–in another diplomatic venue–so as to be able to say with a straight face that the US considers waterboarding to be illegal.

Harold Koh, legal adviser at the US State Department, said on the sidelines of a UN Human Rights Council meeting in Geneva that “there has been a turning of the page” under President Barack Obama.

“I think that the Obama administration defines waterboarding as torture as a matter of law under the convention against torture and as part of our legal obligation… it’s not a policy choice,” Koh told journalists after being asked about the report.

Asked whether the United States was still considering investigation or federal prosecution of those who might have ordered such a practice in the past, Koh said the matter was being examined by Special Prosecutor John Durham in Connecticut.

“Those investigations are ongoing. So the question is not whether they would consider it, they’re going on right now,” he explained.

In other words, what this cable shows is the genesis of the plan–on the day after the torture memos were released–to forestall international investigations of US torture by claiming that the US is itself conducting an investigation. It’s a claim that continues to this day.

It’s not a surprise that the Obama Administration has been pointing to its own investigations–credible or not–to persuade the international community not to hold our torturers accountable. But it is useful to see how the diplomats and the lawyers first hatched that plan.

  1. Mary says:

    It does help with the destruction of evidence and running out your statutes and not being caught flat footed when yet another country’s real prosecutors start an investigation if you’ve investigated. Every good mafia lawyer co-conspirator knows you have to hide ALL the evidence; for good repeat clients, some is not enough.

  2. Mary says:

    While you’re timelining, the Siddiqui cables that the Guardian has up are worth a look. I dropped a comment at the end of the el-Masri thread. The take in an article at the Guardian is that they indicated that the embassy wasn’t concerned that the US was involved in the missing years, but my take on them is very much to the contrary.

    One thing that comes out is that the US was actually holding Siddiqui in Afghanistan after her “shoot-out where only she got shot” at the same time the Pak emb was sending a cable that the Pak Gov was being ordered to appear before the high court to testify about her and that they had checked with Bagram and been assured, in one of those carefully worded assurances, that authorities in Bagram had not been holding her for four years. No mention of her being currently held by them, as was floated by the FBI and military on Aug 4 – in time to prevent anyone in Pak Gov from having to appear before the court on the habeas petition.

  3. tjbs says:

    The United States is a nation of laws. My Administration will always act in accordance with those laws, and with an unshakeable commitment to our ideals.

    I bet you read this as “with an unshakable commitment to our ideals” [enshrined in our constitution]

    Maybe it should read as ” with a unshakable commitment to our ideals”[that look you in the eye lying, cheating and selling out with him and rahm yuking it up, rolling the rubes like they do with jive talk]

  4. bobschacht says:

    OT with apologies:

    Of interest to many at this Wheel House, from Shahid Buttar, Executive Director of the Bill of Rights Defense Committee, in an email:

    …National security spending has dramatically increased in recent years. Surveillance programs have expanded, collecting huge amounts of data on law-abiding Americans. Meanwhile, the intelligence establishment has created new ways of collecting that data—through invasive technology like TSA’s body scanners, policies including the FBI’s 2008 Mukasey Guidelines, and entirely new institutions such as fusion centers (over 70 of which currently operate around the country).

    By researching national security spending and recommending specific cuts, we can help Congress—particularly incoming representatives less beholden to the Washington establishment—scale back programs that infringe on fundamental rights.

    We need help to identify specific programs for budget cuts. This project does not require subject matter expertise, but will require significant web research and some writing. We’ll brief volunteers in early December and invite your research over the holidays for submission in early January. We’ll then compile recommendations to distribute to members of Congress during a grassroots lobby day in DC on Thursday, January 27, 2010.

    If you’re willing to help with this research, please sign up today. Civil liberties are not a priority on Capitol Hill, which makes it imperative to engage policymakers. And because this strategic opportunity to shift the debate lies beyond our research capacity, we can pursue it only with the focused support of concerned volunteers.

    Volunteers can sign up here. If my name comes up, please click on the “Not Bob Schacht?” button.

    Bob in AZ

  5. JohnLopresti says:

    There is one article in El Pais this week entitled **Zaragoza has a strategy for twisting Garzon*s arm in the *Guantanamo Case* **. Alternatively, the article is linked from a page describing the judge*s work on the matter over the past several years; this page in turn links to many other articles about the judge*s side skirmishes with a suspension ruling which he eventually won quite recently. The material is all written in a bureaucratic lexicon of Castillian Spanish. Some of the chronology in ew*s post coincides well with the first linked article, above. The upshot seems to be now getting Zaragoza to affect what would be Garzon*s prerogative, now that he is reinstated, to resume prosecution and investigation efforts. Subjectively, it looks like the mechanics of what bmaz had predicted as the ineluctable mooting of the initiative thru diplomatic measures.

    • jawbone says:

      I’ve been trying to find out what Garzon’s current status is re: the Franco era investigation charges, but couldn’t find anything. Your comment seems to indicate he has been reinstated or exonerated — of those issues??

      I’m not totally clear on what’s being referenced here:

      …this page in turn links to many other articles about the judge*s side skirmishes with a suspension ruling which he eventually won quite recently

      Thanks for any clarification.

  6. Nell says:

    OT but closely related:

    Take a look at the story Jeff Kaye and Jason Leopold have been working on for some time:

    U.S. military personnel forced all prisoners coming into Guantanamo to take a high dosage (treatment level vs. preventive) of an antimalarial drug that causes hallucinations, suicidal thoughts, anxiety, and other serious neurological disturbances — whether they had malaria or not. More human experimentation from our overlords. Those who ordered and dispensed the drug committed torture in so doing.

  7. perris says:

    raw story is reporting that the cia knew the torture program inspired ghadists, we all knew this, everyone did but it’s good to see their own documentation

  8. harpie says:

    You’re moving hell?! Yikes! You must be even more powerful than I thought. Let me know where it is when you’re done? I’m sure I’ll need that info at some point in the future. ;-)

  9. timbo says:

    Yeah, duh, this is just a juggling act by the current administration. Hopefully some other country than our own has the balls to rein in our own war criminals…as we have no interest ourselves in ever doing so…not while the current power structure remains entrenched like it is now in America.

  10. b2020 says:

    The Uncertainty principle of Obama/Holder investigations: You don’t know whether there is a dead detainee or an empty binder inside, until after the investigation is over.

    • Mary says:

      Actually, that’s pretty much what the memos themselves say – that if a jury thinks you knew what you were doing was torture, there isn’t a good faith defense. That just gets left out of the Bushco and Obamaco talking points.

  11. bobschacht says:

    Good catch, EW!
    It now becomes what Durham’s true mission is: ward off any international indictments by undertaking a “proceeding.”

    …if a proceeding regarding this matter were underway in the U.S., that would effectively bar proceedings in Spain….

    Notice the careful wording. All it takes is a “proceeding,” not an investigation, to forestall the foreign busybodies.

    How does Durham feel about this? His “proceeding” is being used to obstruct justice. How long can this go on? As parsnip suggests, our “forever war” is now matched by a *forever proceeding.*

    Bob in AZ

    • bmaz says:

      Hmmm, yes, I think I have heard this somewhere before – starting say about the time the Bull Durham “investigation” was commissioned.

  12. bobschacht says:

    Shouldn’t you change your headline from “DOJ Investigations…” to “DOJ Proceedings…”? As bmaz and others (you in an earlier post?) have pointed out, Durham’s scope of work does not include “investigation,” which has a special meaning in DOJ; it is only a study to see if an investigation is warranted. So it is merely a proceeding, which permits it to ward off pressure for it to actually do anything.

    Bob in AZ