Torture: The CIA in double jeopardy

Investigators have been asked to focus only if any agency employee has exceeded the guidelines

Early in 2002, Eric Holder, then a former deputy attorney general, said on CNN that the detainees being held at Guantánamo Bay were “not, in fact, people entitled to the protection of the Geneva Convention”, particularly “given the way in which they have conducted themselves”.

Six years later, declaring that “Guantánamo Bay is an international embarrassment”, Holder said, “I never thought I would see the day when ... the Supreme Court would have to order the president of the US to treat detainees in accordance with the Geneva Convention”.

So what changed?

A lot of things, of course, but most of all, our national political climate. Reeling from the attacks of Sept 11, 2001, many on the front lines of the war against terrorism felt a sense of fear and urgency that, years later, it’s hard for some to recall. Now, the attacks receding into the past, a lot of us see things in a different light.

Certainly Holder, now the attorney general, does. Last week he announced the appointment of a career prosecutor, John Durham, to review a dozen or so cases of abuses inflicted upon detainees by Central Intelligence Agency employees and contractors in the course of carrying out ‘enhanced interrogation’ and to determine whether to initiate a criminal investigation.

Holder doesn’t seem concerned that each of these cases was exhaustively reviewed, beginning in 2005, by career prosecutors under the supervision of the US attorney for the Eastern District of Virginia. Those men had access to the complete, unredacted report of the agency’s inspector general, an expurgated version of which was released last Monday. Yet these prosecutors recommended against criminal charges in all but one case.

Imbalance

Holder’s decision, then, implies that justice wasn’t done five years ago probably because high-level officials in the George W Bush administration put their thumbs on the scale of justice. This seems unlikely. The prosecutors in Virginia were well experienced in dealing with classified intelligence matters, as most of the federal intelligence agencies are in their district. They have a reputation for being hardheaded and unforgiving of CIA transgressions.

Lacking reliable witnesses or forensic evidence, they made the only call they could have made: not to prosecute. In our nation of laws, that’s exactly the way you want government prosecutors to behave. And there is no indication that any of them has complained about being pressured to decide against criminal charges. If any new information has come out about these cases, any complaints about undue influence or any new witnesses, Holder hasn’t mentioned it. The prosecutors in this case had to abide by the justice department’s ruling, in August 2002, that no agency interrogator would face prosecution for exceeding the guidelines as long as he acted in ‘good faith’ and didn’t have “the specific intent to inflict severe pain or suffering”. Not an easy distinction to make, surely, when the work you’re told to do seems to be designed precisely to inflict pain and suffering.

Now imagine that you’re a CIA interrogator in some dank ‘black site’ prison, facing a terrorist you honestly believe had something to do with the attack that killed 3,000 of your fellow Americans and might very well know about the next one. You’re under extreme pressure to extract information from the guy.

And the guidance you’ve been given from Washington is maddeningly illogical. ‘Walling’ (slamming a prisoner into a wall) is legal, but not revving a power drill near his head. ‘Cramped confinement’ — locking someone in a dark box for 18 hours a day — or depriving him of sleep for 180 hours is OK, but firing a gun in the next room is not. Waterboarding a prisoner is legal, but blowing cigar smoke in his face may be a crime.

Holder said in April that it “would be unfair to prosecute dedicated men and women working to protect America for conduct that was sanctioned in advance by the justice department”. He has also made it clear that he won’t be going after any high-level officials who approved the waterboarding of ‘high-value detainees’, including Dick Cheney, George Tenet, John Ashcroft and Colin Powell. He won’t be prosecuting anyone who issued the ‘enhanced interrogation’ instructions.

Investigation and reports

Certainly nobody in the justice department has to worry. While Attorney General Holder pushed hard for the release of the CIA inspector general’s report, which contained a lot of highly classified information — he still hasn’t published the findings of his own Office of Professional Responsibility on the ‘torture memos’ that were written by the Bush justice department’s Office of Legal Counsel. If that newer report is critical of the legal competence of top lawyers at justice department who authorised the torture programme in the first place, wouldn’t it have some bearing on Durham’s investigation?

Yet it seems that Holder has instructed Durham to focus only on whether any agency employees or contractors exceeded the authorised guidelines — to go after the ‘bad apples’: those at the bottom of the food chain who carried out these orders in wartime and may have violated an incoherent set of rules that made as little sense to them in the field six or seven years ago as it does to us now. This doesn’t look much like justice; it looks like politics. This is scarcely different from what the Bush administration did after the Abu Ghraib prisoner-abuse scandal, scapegoating only low-level military police officers.

Nothing will change for the better: President Obama has, fortunately, already renounced torture. We’ll learn nothing from this.

The process that Holder has unleashed threatens to undermine one of the basic principles of the US government. For a new administration to repudiate a consequential legal decision in an individual case made by the previous administration serves to delegitimise the US government itself, which is, after, all premised upon institutional continuity.

Whatever Holder’s motive for reopening these cases — whether a well-intentioned desire to provide the American people with the ‘reckoning’ for the “abusive and unlawful practices in the ‘war on terror’ ” that he demanded last year, or a more cynical political calculation — the consequences will be grievous.