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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Declination memos of the type drafted in these cases, according to former Justice Department officials, are considered the "crown jewels" of the department, which strenuously resists releasing them. (Decisions not to prosecute are rarely the subject of public comment, given the risk of tainting suspects' reputations or impairing other investigations.) If the decisions not to prosecute were reversed, however, and a new process launched retracing the work of the task force, the CIA defendants would certainly demand all of the information that served as the basis for the government's original declinations. If the government had information concerning problematic witnesses, defendants' lack of knowledge of applicable interrogation guidelines, or other reasons not to prosecute, this material would be essential to the defense--and likely fatal to the prosecution's case.

A former Justice Department lawyer explains that any new prosecution would likely face "an insurmountable problem." A respected career prosecutor like Durham would find it "very difficult not to reach the same conclusion" unless new facts had emerged.

Holder, however, mentioned no new evidence. He did cite an investigation by the Justice Department's Office of Professional Responsibility (OPR), but persons familiar with the final report generated by that investigation believe it contains no new material that would explain a decision to reverse the Eastern District task force. Holder, moreover, gave no indication he had reviewed the task force's findings or interviewed its career prosecutors. He is acting as if no decision were ever made to forgo prosecution.

Another obstacle to successful prosecution is the difficulty of obtaining convictions under the torture statute (presumably Holder's basis for potential prosecution). Prosecutors must prove the defendant's specific intent to commit torture, defined as the infliction of "severe physical or mental pain or suffering." Many of the allegations in the CIA inspector general's report, such as blowing smoke in the face of a terror suspect, scratching the suspect's leg with a brush, or forcing him to sit or kneel in an uncomfortable position, do not appear to meet that standard.

The CIA inspector general's report itself suggests serious factual impediments to prosecution. Paragraph 90, for instance, concludes that with regard to a list of interrogation techniques not specifically approved by OLC attorneys,

For all the instances, the allegations were disputed or too ambiguous to reach any authoritative determination regarding the facts. Thus, although these allegations are illustrative of the nature of the concerns held by individuals with the [Counterterrorist Center] Program and the need for clear guidance, they did not warrant separate investigations or administrative action.

The attorney general's decision to reopen the possibility of CIA prosecutions is eerily reminiscent of his handling of an earlier incident when, having received a legal opinion he did not like from his Office of Legal Counsel, he sought a second opinion elsewhere. After OLC informed Holder that a bill granting the District of Columbia voting rights would be unconstitutional, he went to the solicitor general, reframed the question, and seized upon the more congenial answer.

One former Justice Department lawyer says the CIA matter "has the whiff of the D.C. voting rights issue. You don't like the answer you got from the right place in the bureaucracy so you shop it around. You find someone else to give you the answer you wanted and you latch on to that, regardless of whether the source of that answer is the appropriate source."

Holder's use, meanwhile, of the Office of Professional Responsibility to justify his do-over investigation is curious. Unlike the Eastern District's career prosecutors, OPR has no expertise or mandate to investigate the CIA. The "professional responsibility" in OPR's title is lawyers' professional responsibility. The office's job is to investigate whether Justice Department attorneys have engaged in conduct violating their ethical obligations. (This is why it fell to OPR to investigate whether Office of Legal Counsel lawyers had committed misconduct in crafting the interrogation memos.) There is no precedent for OPR's investigating whether non-lawyer CIA agents failed to follow legal advice or broke criminal statutes. One former Justice Department official says, "This is totally outside their lane."