The Magazine

Eric Holder's Anti-CIA Witch Hunt

Second-guessing career prosecutors for political gain.

Sep 7, 2009, Vol. 14, No. 47 • By JENNIFER RUBIN
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Attorney General Eric Holder's decision to ask a special prosecutor to investigate for possible criminal prosecution CIA operatives who interrogated terrorists in overseas locations is the latest and most egregious instance of political gamesmanship by Holder, who strode into office promising to remove the taint of politicization from the Justice Department.

Holder's announcement brought a storm of criticism from senators, former CIA director Michael Hayden, former vice president Dick Cheney, and veteran Justice Department attorneys. CIA employees, already reeling from congressional attacks, were understandably mystified by Holder's words assuring them of his "respect and gratitude" and puzzled as to how naming a special prosecutor could evidence a willingness, as Holder put it, "to look forward, and not backward." Holder's puffing to the effect that all who acted in "good faith and within the scope of legal guidance given by the Office of Legal Counsel" should have nothing to fear is belied by the nature of the investigation, which will examine whether agents really were acting in good faith and correctly applying the OLC's instructions on interrogation.

Holder pronounced himself obligated to "follow the facts and the law." One critical fact, however, he entirely ignored: Professional prosecutors had already examined the allegations of CIA misconduct, conducted an inquiry, and made a determination--not to prosecute. (One contractor outside the interrogation program was prosecuted for assault.) Holder never mentioned that a task force (informally dubbed the "Detainee Abuse Task Force") in the Eastern District of Virginia has already considered all of the applicable information, including the CIA inspector general's 2004 report made public last week. Following standard procedure, the task force drafted "declination memos" setting forth the rationale for not proceeding with prosecutions.

Those reasons were summed up in a letter from Principal Assistant Deputy Attorney General Brian Benczkowski to Senator Richard Durbin dated February 7, 2008. In each case, Benczkowski wrote, the decision rested on "one or more of the following reasons: insufficient evidence of criminal conduct, insufficient evidence of the subject's involvement, insufficient evidence of criminal intent, and low probability of conviction."

The federal prosecutors involved in reviewing alleged CIA misconduct were seasoned professionals who would not have hesitated to go public if political appointees had influenced their decision-making, according to multiple former Justice attorneys.

A former Justice Department lawyer says of one of them, U.S. Attorney Chuck Rosenberg, "[He] is a complete professional. Had he perceived any political pressure whatsoever not to prosecute these cases, he would have gone public with it, much like Jim Comey did." (Deputy Attorney General James B. Comey made headlines in 2004 when he refused to buckle to perceived White House pressure while then attorney general John Ashcroft was incapacitated.) Any suggestion that the task force was pressured is "completely false," according to another attorney familiar with its work.

A former Justice Department official describes the Eastern District task force's process:

The CIA discovers misconduct, which the CIA inspector general investigates. The information seems to suggest misconduct. They go to DOJ. DOJ tells them to stop and that [Justice] will now look at the issue, gather evidence, and investigate it themselves. They must decide if there is a reasonable belief that they could obtain a conviction beyond a reasonable doubt. They looked at it. They made a decision and declined [to prosecute]. They go back to the CIA, which can, and in several instances did, review the matters for internal discipline.

Another individual with direct knowledge of the career prosecutors' work explains that while some of the allegations in the CIA inspector general's report seem startling, "the evidence was very weak." He continues, "A detainee said X but there was no proof to support it."