Will Eric Holder Be The Anti-Torture Hero?

12.7.09

Eric Holder and Barack ObamaIn an important article for Newsweek, “Independent’s Day,” Daniel Klaidman manages not only to present a convincingly intimate and sympathetic first-hand portrait of Eric Holder, the first African-American Attorney General in US history, demonstrating how “[h]is first instinct is to shy away from confrontation, to search for common ground,” and how he remains haunted by his role in the pardon of Marc Rich at the end of the Clinton administration, but also to explain how “[f]our knowledgeable sources” told him that Holder is “leaning toward appointing a prosecutor to investigate the Bush administration’s brutal interrogation practices, something the president has been reluctant to do.”

As Klaidman notes, “Such a decision would roil the country, would likely plunge Washington into a new round of partisan warfare, and could even imperil Obama’s domestic priorities, including health care and energy reform. Holder knows all this, and he has been wrestling with the question for months. ‘I hope that whatever decision I make would not have a negative impact on the president’s agenda,’ he says. ‘But that can’t be a part of my decision.’”

Although the independence of the Attorney General is supposed to be a given — which made the abominable betrayal of that independence by Alberto Gonzales so wounding — in reality, even the most principled Attorney General faces an unenviable task. “Alone among cabinet officers,” they are, as Klaidman describes it, “partisan appointees expected to rise above partisanship.”

Even so, there is an openness about the discussions of whether Eric Holder will indeed demonstrate his independence by appointing a prosecutor to investigate the Bush administration’s interrogation policies, which suggests that it may indeed happen. Certainly, after the publication of this article — which, I can only presume, had Holder’s tacit authorization, as a way of testing responses — it will be difficult for him to back-track without provoking an unprecedented storm of disapproval from the many critics of the Bush administration’s descent into lawless brutality.

I urge you to read the whole article, but the key passages dealing with Holder’s considerations of “whether to launch a probe into the Bush administration’s interrogation policies” are as follows:

Holder began to review those policies in April. As he pored over reports and listened to briefings, he became increasingly troubled. There were startling indications that some interrogators had gone far beyond what had been authorized in the legal opinions issued by the Justice Department [the Office of Legal Counsel’s “torture memos,” issued in August 2002 and in May 2005], which were themselves controversial. He told one intimate that what he saw “turned my stomach.”

It was soon clear to Holder that he might have to launch an investigation to determine whether crimes were committed under the Bush administration and prosecutions warranted. The obstacles were obvious. For a new administration to reach back and investigate its predecessor is rare, if not unprecedented. After having been deeply involved in the decision to authorize Ken Starr to investigate Bill Clinton’s affair with Monica Lewinsky, Holder well knew how politicized things could get. He worried about the impact on the CIA, whose operatives would be at the center of any probe. And he could clearly read the signals coming out of the White House. President Obama had already deflected the left wing of his party and human-rights organizations by saying, “We should be looking forward and not backwards” when it came to Bush-era abuses.

Still, Holder couldn’t shake what he had learned in reports about the treatment of prisoners at the CIA’s “black sites.” If the public knew the details, he and his aides figured, there would be a groundswell of support for an independent probe. He raised with his staff the possibility of appointing a prosecutor. According to three sources familiar with the process, they discussed several potential choices and the criteria for such a sensitive investigation. Holder was looking for someone with “gravitas and grit,” according to one of these sources, all of whom declined to be named. At one point, an aide joked that Holder might need to clone Patrick Fitzgerald, the hard-charging, independent-minded US attorney who had prosecuted Scooter Libby in the Plamegate affair. In the end, Holder asked for a list of 10 candidates, five from within the Justice Department and five from outside.

Klaidman described the negotiations over the April release of the torture memos as follows:

For weeks Holder had participated in a contentious internal debate over whether the Obama administration should release the Bush-era legal opinions that had authorized waterboarding and other harsh interrogation methods. He had argued to administration officials that “if you don’t release the memos, you’ll own the policy.” CIA Director Leon Panetta, a shrewd political operator, countered that full disclosure would damage the government’s ability to recruit spies and harm national security; he pushed to release only heavily redacted versions.

When President Obama decided to release the memos, “Holder and his team celebrated quietly,” according to Klaidman. What surprised them was that there was no “national outrage.” Klaidman suggested that the memos “had already received such public notoriety that the new details in them did not shock many people,” although it may be that, unfortunately, evidence of torture that was authorized at the highest levels of the US government is simply not a significant enough matter to a large number of Americans who seem to have forgotten that Richard Nixon was disgraced for what, essentially, was a less significant crime.

Nevertheless, both the President and his ferocious Chief of Staff, Rahm Emanuel, moved swiftly to head off dissent, with Emanuel appearing on This Week With George Stephanopoulos to declare that “there would be no prosecutions of CIA operatives who had acted in good faith with the guidance they were given,” and Obama noting, in a statement on the release of the memos, “This is a time for reflection, not retribution.”

Klaidman stresses that, throughout discussions of possible prosecutions regarding the torture memos, Obama “has been careful to say that the final decision is the attorney general’s to make,” which is as it should be, but it certainly made Holder’s independent decision-making harder when the White House was obviously anxious not to provide Republican enemies with an opportunity to attack. As Klaidman also notes, in the first few months after the inauguration, the relationship between the Justice Department and the White House was “marred by surprising tension and acrimony. A certain amount of friction is inherent in the relationship, even healthy. But in the Obama administration the bad blood between the camps has at times been striking.”

One particular source of tension was the Justice Department’s apparently unilateral decision, in February, to contest a lawsuit brought by the ACLU against Jeppesen Dataplan, Inc., a Boeing subsidiary known in human rights circles as the CIA’s “travel agent for torture,” because of its role in the Bush administration’s program of “extraordinary rendition” and torture. As Klaidman describes it, by “invoking the ‘state secrets’ privilege, the [DoJ] lawyer was reaffirming a position staked out by the Bush administration.” It was not only liberals and human rights groups who were appalled, as Klaidman explains:

It also infuriated Obama, who learned about it from the front page of the New York Times. “This is not the way I like to make decisions,” he icily told aides, according to two administration officials, who declined to be identified discussing the president’s private reactions. White House officials were livid and accused the Justice Department of sandbagging the president. Justice officials countered that they’d notified the White House counsel’s office about the position they had planned to take.

From my point of view — and from the point of view of many others who have campaigned for the comprehensive repudiation of all the Bush administration’s “War on Terror” policies — the ongoing Jeppesen debacle is not the only occasion when the Justice Department has shown itself unwilling or unable to effectively turn its back on the policies of its predecessors. The DoJ’s involvement in reviving the Military Commissions at Guantánamo (the “terror trials” introduced by former Vice President Dick Cheney in November 2001) is bitterly disappointing, as is its role in advocating a policy of “preventive detention” for some of those still held at Guantánamo, and its ongoing attempts to prevent foreign prisoners “rendered” to the US prison at Bagram airbase in Afghanistan — and held for up to seven years — from having the same rights as those held at Guantánamo.

Moreover, on a day-to-day basis, Holder’s integrity has repeatedly been called into question by his apparent refusal to look beyond the decisions about the prisoners that are being made by the administration’s inter-departmental Guantánamo Task Force, and to prevent DoJ lawyers from pursuing worthless habeas corpus cases in the District Courts. In recent months, these have brought nothing but shame and humiliation on the Department — as highlighted in the case of Alla Ali Bin Ali Ahmed, a Yemeni prisoner, and, in particular, Abdul Rahim al-Ginco, a Syrian whose case was pursued even though he had been tortured by al-Qaeda as a spy.

Sadly, the Attorney General has done nothing to assuage fears that, when it comes to the courts, he is in charge of a policy that, in effect, defends the most egregious errors made by the Bush administration while doing nothing to encourage the long-overdue release of prisoners who should never have been held in the first place, but on torture, at least, if Daniel Klaidman is to be believed, he may finally be on the verge of doing the right thing. As he explains:

After the prospect of torture investigations seemed to lose momentum in April, the attorney general and his aides turned to other pressing issues. They were preoccupied with Gitmo, developing a hugely complex new set of detention and prosecution policies, and putting out the daily fires that go along with running a 110,000-person department. The regular meetings Holder’s team had been having on the torture question died down. Some aides began to wonder whether the idea of appointing a prosecutor was off the table.

But in late June Holder asked an aide for a copy of the CIA inspector general’s thick classified report on interrogation abuses [the “Holy Grail” of torture reports, whose public release is being delayed by the CIA and the Defense Department]. He cleared his schedule and, over two days, holed up alone in his Justice Department office, immersed himself in what Dick Cheney once referred to as “the dark side.” He read the report twice, the first time as a lawyer, looking for evidence and instances of transgressions that might call for prosecution. The second time, he started to absorb what he was reading at a more emotional level. He was “shocked and saddened,” he told a friend, by what government servants were alleged to have done in America’s name. When he was done he stood at his window for a long time, staring at Constitution Avenue.

Andy Worthington is the author of The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison (published by Pluto Press, distributed by Macmillan in the US, and available from Amazon — click on the following for the US and the UK). To receive new articles in your inbox, please subscribe to my RSS feed, and see here for my definitive Guantánamo prisoner list, published in March 2009.

As published on the Huffington Post.

For a sequence of articles dealing with the use of torture by the CIA, on “high-value detainees,” and in the secret prisons, see: Guantánamo’s tangled web: Khalid Sheikh Mohammed, Majid Khan, dubious US convictions, and a dying man (July 2007), Jane Mayer on the CIA’s “black sites,” condemnation by the Red Cross, and Guantánamo’s “high-value” detainees (including Khalid Sheikh Mohammed) (August 2007), Waterboarding: two questions for Michael Hayden about three “high-value” detainees now in Guantánamo (February 2008), Six in Guantánamo Charged with 9/11 Murders: Why Now? And What About the Torture? (February 2008), The Insignificance and Insanity of Abu Zubaydah: Ex-Guantánamo Prisoner Confirms FBI’s Doubts (April 2008), Guantánamo Trials: Another Torture Victim Charged (Abdul Rahim al-Nashiri, July 2008), Secret Prison on Diego Garcia Confirmed: Six “High-Value” Guantánamo Prisoners Held, Plus “Ghost Prisoner” Mustafa Setmariam Nasar (August 2008), Will the Bush administration be held accountable for war crimes? (December 2008), The Ten Lies of Dick Cheney (Part One) and The Ten Lies of Dick Cheney (Part Two) (December 2008), Prosecuting the Bush Administration’s Torturers (March 2009), Abu Zubaydah: The Futility Of Torture and A Trail of Broken Lives (March 2009), Ten Terrible Truths About The CIA Torture Memos (Part One), Ten Terrible Truths About The CIA Torture Memos (Part Two), 9/11 Commission Director Philip Zelikow Condemns Bush Torture Program, Who Authorized The Torture of Abu Zubaydah?, CIA Torture Began In Afghanistan 8 Months before DoJ Approval, Even In Cheney’s Bleak World, The Al-Qaeda-Iraq Torture Story Is A New Low (all April 2009), Ibn al-Shaykh al-Libi Has Died In A Libyan Prison , Dick Cheney And The Death Of Ibn al-Shaykh al-Libi, The “Suicide” Of Ibn al-Shaykh al-Libi: Why The Media Silence?, Two Experts Cast Doubt On Ibn al-Shaykh al-Libi’s “Suicide”, Lawrence Wilkerson Nails Cheney On Use Of Torture To Invade Iraq, In the Guardian: Death in Libya, betrayal by the West (in the Guardian here), Lawrence Wilkerson Nails Cheney’s Iraq Lies Again (And Rumsfeld And The CIA) (all May 2009) and WORLD EXCLUSIVE: New Revelations About The Torture Of Ibn al-Shaykh al-Libi (June 2009). Also see the extensive archive of articles about the Military Commissions.

For other stories discussing the use of torture in secret prisons, see: An unreported story from Guantánamo: the tale of Sanad al-Kazimi (August 2007), Rendered to Egypt for torture, Mohammed Saad Iqbal Madni is released from Guantánamo (September 2008), A History of Music Torture in the “War on Terror” (December 2008), Seven Years of Torture: Binyam Mohamed Tells His Story (March 2009), and also see the extensive Binyam Mohamed archive. And for other stories discussing torture at Guantánamo and/or in “conventional” US prisons in Afghanistan, see: The testimony of Guantánamo detainee Omar Deghayes: includes allegations of previously unreported murders in the US prison at Bagram airbase (August 2007), Guantánamo Transcripts: “Ghost” Prisoners Speak After Five And A Half Years, And “9/11 hijacker” Recants His Tortured Confession (September 2007), The Trials of Omar Khadr, Guantánamo’s “child soldier” (November 2007), Former US interrogator Damien Corsetti recalls the torture of prisoners in Bagram and Abu Ghraib (December 2007), Guantánamo’s shambolic trials (February 2008), Torture allegations dog Guantánamo trials (March 2008), Sami al-Haj: the banned torture pictures of a journalist in Guantánamo (April 2008), Former Guantánamo Prosecutor Condemns “Chaotic” Trials in Case of Teenage Torture Victim (Lt. Col. Darrel Vandeveld on Mohamed Jawad, January 2009), Judge Orders Release of Guantánamo’s Forgotten Child (Mohammed El-Gharani, January 2009), Bush Era Ends With Guantánamo Trial Chief’s Torture Confession (Susan Crawford on Mohammed al-Qahtani, January 2009), Forgotten in Guantánamo: British Resident Shaker Aamer (March 2009), A Child At Guantánamo: The Unending Torment of Mohamed Jawad (June 2009) and the extensive archive of articles about the Military Commissions.

16 Responses

  1. Will Eric Holder Be The Anti-Torture Hero? by Andy Worthington « Dandelion Salad says...

    [...] by Andy Worthington Featured Writer Dandelion Salad http://www.andyworthington.co.uk 13 July 2009 [...]

  2. Andy Worthington says...

    So here are some comments from the lively responses on the Huffington Post:

    arcticredriver wrote:

    In my opinion, a full, thorough, hard-headed investigation into the Bush detention and interrogation programs is essential for more reasons than morality. I know some people, who are unmoved by the argument that extended detention without charge, and brutal interrogation are immoral, would be extremely disturbed by the Bush policies if they understood how they [misled] the public through the utter and unforgiveable malice and incompetence with which they were run.

    Andy’s excellent work has helped expose how there was zero meaningful sanity-checking of the confessions and denunciations wrung from the captives through brutal interrogation. As Andy’s work has helped point out, the Guantanamo authorities took years to sort out what should have been truly obvious instances of mistaken identity. And the end result of this incompetence is that precious and irreplaceable counter-terrorism resources were squandered on wild goose chases — based on false confessions and false denunciations.

    Public safety requires a full and total review of the cases of the 540 men who have been repatriated from Guantanamo, to root out the dangerous and wild misconceptions based on those brutal interrogations.

  3. Andy Worthington says...

    Salpha wrote:

    Mr. Worthington you say:
    “Sadly, the Attorney General has done nothing to assuage fears that, when it comes to the courts, he is in charge of a policy that, in effect, defends the most egregious errors made by the Bush administration while doing nothing to encourage the long-overdue release of prisoners who should never have been held in the first place, but on torture, at least, if Daniel Klaidman is to be believed, he may finally be on the verge of doing the right thing.”

    The attitude and actions of the AG until now seems to contradict that they’re really will be an investigation into misdeeds of the CIA regarding torture.
    Until we have a concrete announcement that there will be indeed an investigation we are in the realm of speculation. Is the AG testing the water? Is it a turf war between the CIA and the AG?
    Let us hope that the AG’s sudden concern are genuine.

  4. Andy Worthington says...

    benjaminblue wrote:

    Mr. Holder must investigate; it is an obligation of his office. If he cannot/will not uphold his responsibilities, he should resign. And if President Obama cannot/will not hold the corrupt Bush cabal accountable, he, too, should resign.

    Whatever one may think of Ms. Palin, she had the decency to quit her job when she found it involved work. Mr. Holder and President Obama should display similar decency; it they cannot stomach the unpleasant tasks associated with their offices, they should step aside.

    It is time to prove to America — and to the world — that the law applies equally to all.

  5. Andy Worthington says...

    CypressTree wrote:

    It would be an incredible service to this nation and to its future generations if Holder proceeds with the obligations of his job. Time to cross the Rubicon and make us whole again.

  6. Andy Worthington says...

    HumanityEqualsLaw wrote:

    There has to be an US answer to the atrocities of the Bush/Cheney administration. They happened, they are now global knowledge and the world will not forget. If the US fails to acknowledge its own violations of international (and domestic) law and binding treaties, it loses all credibility concerning preaching others about their responsibilities. Not only torture, but the illegal, unnecessary Iraq war has to be probed also. It is about your legitimacy as a modern liberal democracy and as a nation of laws.

  7. Andy Worthington says...

    furey wrote:

    http://www.law.cornell.edu/uscode/18/usc_sec_18_00002441—-000-.html

    “(a) Offense.” Whoever, whether inside or outside the United States, commits a war crime, in any of the circumstances described in subsection (b), shall be fined under this title or imprisoned for life or any term of years, or both, and if death results to the victim, shall also be subject to the penalty of death.”

    “(A) Torture.” The act of a person who commits, or conspires or attempts to commit, an act specifically intended to inflict severe physical or mental pain or suffering (other than pain or suffering incidental to lawful sanctions) upon another person within his custody or physical control for the purpose of obtaining information or a confession, punishment, intimidation, coercion, or any reason based on discrimination of any kind.

    (B) Cruel or inhuman treatment.” The act of a person who commits, or conspires or attempts to commit, an act intended to inflict severe or serious physical or mental pain or suffering (other than pain or suffering incidental to lawful sanctions), including serious physical abuse, upon another within his custody or control.”

    Enforce the law or be complicit, Mr. Holder.

    http://michaelfury.wordpress.com/2008/10/16/confess/

  8. Andy Worthington says...

    Billy Hell wrote:

    You’ve been doing great work. Thank you very much Andy Worthington.

  9. Andy Worthington says...

    viper234 wrote:

    The media are pushing Repub propaganda about investigations into Bush war crimes as further “endangering troops” and “endangering Obama’s domestic agenda.” The troops are in danger of losing their lives because they are deployed to war zones. If the US does not want its troops in danger, don’t start wars of aggression against countries that never attacked America nor selectively invade countries with so-called ties to groups or persons supposedly associated with 9/11. 15 of the 19 hijackers on 9/11 were Saudi nationals, but the US did not invade Saudi Arabia. Osama bin Laden’s family is from one of the wealthiest families in Saudi Arabia, but the US did not carry out any “surgical strikes” against any bin Laden family compounds in Saudi Arabia, nor has the US sought out and prosecuted any of the Saudi Royal family for their ties to funding terrorism. As for Obama’s domestic agenda, to say that investigating US war crimes and bringing those responsible for those crimes to justice is a “distraction” to the President’s domestic goals is not only morally corrupt, it is downright sociopathic.

  10. Andy Worthington says...

    NotBlind wrote:

    Senator McCain asked: “What’s going to be the positive result from airing out and ventilating details of what we already knew took place and should never have? And we are committed to making sure it never happens again.” The only manner in which we can prevent such abuses of power from ever happening again is to hold accountable those who conceived of, implemented, and justified these nefarious, illegal policies.

    The issue here is not political, but the “Rule of Law.” The “privilege” of individuals can not be allowed to circumvent or subvert laws, without checks or balances. By holding officials accountable for the abuses of power, and systematic subversion of the Constitution they swore to “protect, preserve and defend,” those who committed these crimes will be exposed, and a strong message sent to future administrations that such acts can and will not be tolerated. It can show that America is serious about its values, principles, ideals, and the rule of law and that it holds itself accountable for transgressions against same.

    We prosecuted and punished officials, judges, commanders and soldiers of the Third Reich and executed Japanese soldiers who water-boarded Allied POW’s. The precedent has been set, by us, that there should and needs to be accountability. If we are to regain our credibility as a nation, claiming to be the leader of the “free” world, then we must set the same example and hold the same standards by which we’ve judged others, for ourselves.

  11. Andy Worthington says...

    Alethea wrote:

    Mr. Holder,

    Please do the right thing. Appoint an independent prosecutor. It will be hugely cathartic for the whole country if not the whole world. You know how they say that the American Public is always 2 steps ahead of DC? This is absolutely true in this case. We know what they did, and we know it was wrong. You shouldn’t be surprised that no one will be surprised by the evidence. Now it’s up to you to lay down the consequences.

    If you want to wait until after a Healthcare Reform gets passed, that’s ok. I would rather not jeopardize something so crucial, and besides the evidence will still be there come winter. You should take advantage of the extra time to piece together a bullet proof plan of action. But after that, it’s your show. Do your job and bring justice back to America.

    Thank you.

  12. Andy Worthington says...

    northstar11 wrote:

    no doubt there will be a huge divisive fight in the country if there is an investigation and charges are brought

    it will be painful and a bitter pill to swallow but you have to do it

    kind of like chemotherapy — to help you get rid of cancer

  13. “Los presos liberados de Guantánamo deberían poder pedir una compensación” – P+DH [periodismo + derechos humanos] says...

    [...] los crímenes de la administración Bush, como se ha insinuado en los últimos días (véase mi artículo al [...]

  14. Tortured Logic: ACLU launches campaign to ask Eric Holder to investigate Bush and Cheney’s war crimes by Andy Worthington « Dandelion Salad says...

    [...] Romero wrote: Recent reports that US Attorney General Eric Holder is considering appointing a prosecutor to investigate illegal torture carried out during the Bush administration is a positive sign, [...]

  15. Spanish judge resumes torture case against six senior Bush lawyers by Andy Worthington « Dandelion Salad says...

    [...] from proceeding. He explained that he believed the recent decision by US Attorney General Eric Holder to appoint a special investigator to investigate cases of torture by the CIA is related to the [...]

  16. 2009-10-08 Request to RCMP to arrest George Bush when he is in Canada. COMPREHENSIVE argument. » The Battles says...

    [...] from proceeding. He explained that he believed the recent decision by US Attorney General Eric Holder to appoint a special investigator to investigate cases of torture by the CIA is related to the [...]

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