U.S. Army General David Petraeus was confirmed by the Senate as the new CIA director, and Attorney General Eric Holder sent him a Washington-style concession.
The concession was found in Holder’s statement, which indirectly said his lawyers were ending their investigation of CIA officials involved in 101 interrogations of suspected jihadis.
Holder’s statement provides “clear indication that CIA interrogators who adhered to the [administration’s] enhanced interrogation policy were innocent of any wrongdoing,” said Fran Townsend, President George W. Bush’s senior counter-terrorism adviser. Townsend is now a lawyer in private practice in New York.
“The Attorney General’s decision is a significant step forward. … [M]any good people were vindicated,” said Rep. Mike Rogers, the Republican chairman of the House intelligence committee.
But Holder’s concession, however, came with a controversial caveat.
The caveat is Holder’s prominent declaration that lawyers are still pursuing criminal investigations of intelligence employees in Petraeus’ agency that were linked to the death in custody of two people. (National security experts blast attorney general’s claim that lawyers are America’s ‘most effective terror-fighting weapon’)
The outside investigator “has advised me of the results of his investigation, and I have accepted his recommendation to conduct a full criminal investigation regarding the death in custody of two individuals,” said the statement from Holder, who declared earlier this month that civil courts and lawyers — not soldiers and intelligence agents — were the foundation of the nation’s defense against jihadis.
Holder’s statement did not identify the two dead people, nor provide any dates or locations. He did say the information justifying the investigations came from such sources as a February 2007 report by the International Committee of the Red Cross Report.
One of the two dead individuals may have been Manadel al-Jamadi, who died in Iraq in 2003. According to a June report in Time magazine, Durham has called witnesses before a grand jury investigating al-Jamadi’s death.
From 2003 to 2009, Petraeus’ soldiers fought and defeated a terrorist army of allied Al Qaeda jihadis and out-of-power gunmen who had worked for Saddam Hussein. In that campaign, thousands of civilians were deliberately murdered by the jihadis and gunmen, thousands of jihadis and gunmen were killed in gunfights, and many thousands of men were arrested and interrogated, and then held or released.
The recommendation cited by Holder that urged further investigation came from Assistant United States Attorney John Durham of the District of Connecticut. “Mr. Durham has advised me of the results of his investigation, and I have accepted his recommendation to conduct a full criminal investigation regarding the death in custody of two individuals,” said Holder’s statement.
The next sentence revealed that Holder was ending his controversial investigations of CIA interrogators begun in 2009. “The Department has determined that an expanded criminal investigation of the remaining matters is not warranted,” said the statement.
“He buried the lede,” because Holder’s decision to end 101 interrogation-related investigations is far more important than his decision to continue two death-related inquiries, said Debra Burlingame, an activist who has campaigned against Holder’s investigation of the CIA interrogators.
The “remaining matters” are elliptically described earlier in Holder’s statement.
“On August 24, 2009, based on information the Department received pertaining to alleged CIA mistreatment of detainees, I announced that I had expanded Mr. Durham’s mandate to conduct a preliminary review into whether federal laws were violated in connection with the interrogation of specific detainees at overseas locations … Durham’s review examined primarily whether any unauthorized interrogation techniques were used by CIA interrogators, and if so, whether such techniques could constitute violations of the torture statute or any other applicable statute,” the statement said.
The investigation covered U.S. employees involved in the detention of 101 individuals, Holder’s statement said.
The Holder statement did not declare CIA officials to be innocent of the torture charges, said David Cole, a Georgetown University critic of President George W. Bush’s interrogation policies. Innocence “is legal presumption, not a [legal] finding” in Holder’s statement, he said. Until a jury says otherwise, “we’re all innocent, and that applies to the CIA officials, the president, and you and me. It’s a fact of life,” he said. Holder’s inquiry was too narrow because it incorrectly accepted Bush-era legal findings, and so shielded the CIA officials from prosecution, he said.
Holder’s 2009 decision to investigate the CIA officials prompted sharp objections from many national-security experts. Former Vice-President Dick Cheney, for example, called the investigation an “outrage.” The investigation, critics said, would deter current investigation of seized jihadis, some of whom would know of planned attacks on soldiers and civilians.
The news was applauded at the CIA. “I welcome he news that the broader inquires are behind us,” outgoing CIA director Leon Panetta told the New York Times. “We are now finally about to close this chapter of our agency’s history.”
Panetta also pushed back against Holder’s decision to continue investigating the last two death-realted cases. “No decision has been made to bring criminal charges [and] both cases were previously reviewed by career federal prosecutors who subsequently declined prosecution,” he wrote in his June 30 letter to CIA employees.
But “the real reason they’re dropping [the 101 interrogation investigations is that President Barack] Obama practically wherever he goes, either stumping or commenting, gets his line in there ‘I killed bin Laden,’” said Burlingame. Obama “would look pretty small boasting about that while the criminal investigation of the [CIA] guys who made it possible as is still underway,” especially if the media asked Petraeus for a comment, said Burlingame, whose brother, a pilot, was murdered on 9/11 by the jihadis.
Holder’s admission that “investigation … is not warranted” is a blow to left-wing and progressive legal groups, such as the New York-based Center for Constitutional Rights (CCR). The groups have argued for several years that officials working for President George W. Bush should be prosecuted for violating international laws barring interrogations deemed tough enough to be torture. “They wanted President Bush and Dick Cheney to go to jail, they wanted criminal prosecutions against the CIA … and now this going out with a whimper,” said Burlingame. The continued investigation into the two deaths, she said, “is a face-saving sop to the left.”
A CCR spokeswoman did not return repeated calls from TheDC.
ACLU lawyers publicly objected to Holder’s decision to drop the 101 interrogation-related investigations, and also claimed the interrogations involved torture. “The narrow investigation that Attorney General Holder announced today is not proportionate to the scale and scope of the wrongdoing,” said Jameel Jaffer, deputy legal director at the American Civil Liberties Union. “The Justice Department must conduct an investigation that is broad enough to reach the senior officials who were most responsible for developing this program,” said Hina Shamsi, director of the ACLU’s National Security Project.
Their criticism is very mild, said Burlingame, because they’re protecting trying to shield Holder and Obama from left-wing critics. “They don’t want to give any ammunition to the President’s opponents,” she said.
Bush’s officials, such as White House lawyer John Yoo, also were heavily criticized by left-wing groups when they tried to describe what interrogation techniques were tough but legal, and what techniques were tough and illegal.
Holder’s partial climb-down comes two weeks after he declared that lawyers and civil-judges should take the lead role in defending the nation from jihadi terrorists.
“We cannot — and we must not — allow the public safety concerns that all Americans share to divide us … we must ensure that the rule of law … must be recognized as the foundation for our continued security,” Holder told an audience of progressive lawyers, advocates, judges and students gathered mid-June at American Constitution Society’s annual gala.
That claim brought derision from centrist and right-of-center advocates who say the military should play the lead role in dealing with overseas jihadis. “The attorney general said the other night our biggest weapon in the war on terror was the U.S. civilian court system,” Republican Senate Leader Mitch McConnell said on CBS’ Face The Nation. “ I don’t know what planet he’s living on.”
Panetta’s June 30 letter also included a rebuke of Holder, and of his claim to primacy in national security. “As Director, I have always believed that our primary responsibility is not to the past, but to the present and future threats to the nation. We will continue to fulfill our vital mission of protecting America.”