Attorney General Eric Holder will decide to scope of possible torture prosecutions. (Photo: Getty Images)
Last year, in the heat of the presidential campaign, Eric Holder was a featured speaker at the American Constitution Society's annual convention where he told a packed crowd that the "American people are owe[d] a reckoning" as a result of the "abusive" and "unlawful" policies of the Bush administration.
"Our government authorized the use of torture, approved of secret electronic surveillance of American citizens, secretly detained American citizens without due process of law, denied the Writ of Habeus Corpus to hundreds of accused enemy combatants, and authorized the use of procedures that both violate international law and the United States Constitution," Holder said in June 2008. "We owe the American people a reckoning."
If recent news reports are accurate, some form of that day of reckoning may soon be upon us as now-Attorney General Holder weighs the possibility of appointing a federal prosecutor to probe the Bush administration's use of torture during the interrogation of detainees captured in the "war on terror."
But those same news reports, quoting unnamed sources, say that if Holder decides in the coming weeks to authorize a criminal investigation, it would be limited to the "few bad apples" at the CIA who exceeded interrogation limits set by Justice Department attorneys, in memos that authorized brutal acts of torture against suspected terrorists.
If that is the case, the Obama administration's approach would be virtually the same as the Bush administration's in the aftermath of the Abu Ghraib prisoner abuse scandal, in which low-level MPs were court-martialed and imprisoned for acts that supposedly had not been sanctioned by their superiors.
By targeting just CIA interrogators who exceeded the torture guidelines, the Obama administration also would be shutting the door on new internal investigations that might reach higher levels - the Justice Department lawyers who established the parameters and the White House officials who encouraged the brutal tactics - including the near-drowning of waterboarding.
In April, Holder declared 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." What that meant was that a possible criminal investigation would be limited to examining actions that went beyond what was sanctioned, such as repetitious use of waterboarding.
Still, Holder might face public pressure to expand the probe, if and when a CIA inspector general's report is released that reportedly calls into question the legality of the agency's torture of "high-value" detainees.
The secret findings of CIA Inspector General John Helgerson led to eight criminal referrals to the Justice Department for homicide and other misconduct, but those cases languished as Vice President Dick Cheney is said to have intervened to constrain Helgerson's inquiries.
Holder may reopen those cases, but if an investigation is narrowly focused on the CIA interrogators and outside contractors and does not include the Bush administration officials who implemented the policies, then the probe would likely amount to a whitewash, much like the Abu Ghraib case.
Of the 12 government investigations launched in the aftermath of the Abu Ghraib prison scandal, not one scrutinized the roles of Defense Secretary Donald Rumsfeld or any other senior Bush administration official. The inquiries concentrated instead on the military police identified in the photographs, like Private Lynndie England and Corporal Charles Graner Jr.
Back in 2004, even the neoconservative editorial page of The Washington Post found the Abu Ghraib "whitewashing" of the higher-ups' roles hard to take.
"[D]ecisions by Mr. Rumsfeld and the Justice Department to permit coercive interrogation techniques previously considered unacceptable for US personnel influenced practices at the prison at GuantÃ¡namo Bay, Cuba, and later spread to Afghanistan and Iraq," a Post editorial said. "Methods such as hooding, enforced nudity, sensory deprivation and the use of dogs to terrorize - all originally approved by the defense secretary - were widely employed, even though they violate the Geneva Conventions."
Now, five years later in a July 27 editorial, The Post deviated from the logic of its earlier position, by urging Holder to move forward with an investigation focused only on rogue individual interrogators who exceeded the legal limits outlined in the torture memos.
Evidence of Approval
But such an approach would ignore evidence that senior Bush administration officials and high-level officials at CIA headquarters in Langley micromanaged the torture of at least one high-level detainee.
Documents released earlier this year in a Freedom of Information Act lawsuit between the American Civil Liberties Union and the CIA showed that CIA interrogators provided top agency officials at Langley with daily "torture" updates of Abu Zubaydah, the alleged "high-level" terrorist detainee, who was held at a secret "black site" prison and waterboarded 83 times in August 2002.
Additionally, alleged 9/11 mastermind Khalid Sheikh Mohammed was waterboarded 183 times in the span of a single month. CIA Inspector General Helgerson also "had serious questions about the agency's mistreatment of dozens more, including Khalid Sheikh Mohammed," according to Jane Mayer, a reporter for The New Yorker and author of the book "The Dark Side."
Senior Bush administration officials were known to be closely following these developments and pressed the CIA for more and more results.
In an interview with Harper's magazine last year, Mayer said Helgerson "investigated several alleged homicides involving CIA detainees" and forwarded several of those cases "to the Justice Department for further consideration and potential prosecution."
"Why have there been no charges filed? It's a question to which one would expect that Congress and the public would like some answers," Mayer said. "Sources suggested to me that â€¦ it is highly uncomfortable for top Bush Justice officials to prosecute these cases because, inevitably, it means shining a light on what those same officials sanctioned."
One possible reason that the Justice Department investigations went nowhere was that Vice President Cheney intervened and demanded that Helgerson meet with him privately about his investigation. Mayer characterized Cheney's interaction with Helgerson as highly unusual.
Cheney's "reaction to this first, carefully documented in-house study concluding that the CIA's secret program was most likely criminal was to summon the Inspector General to his office for a private chat," Mayer wrote.
"The Inspector General is supposed to function as an independent overseer, free from political pressure, but Cheney summoned the CIA Inspector General more than once to his office."
"Cheney loomed over everything," one former CIA officer told Mayer. "The whole IG's office was completely politicized. They were working hand in glove with the White House."
Last year, in several interviews prior to exiting the White House, Cheney admitted that he personally authorized the waterboarding of three so-called "high-value" prisoners.
"I signed off on it; others did, as well, too," Cheney said.
Waterboarding, in which a person is strapped down to a board with a cloth covering his face and then water is poured over it, is a torture technique dating back at least to the Spanish Inquisition. The victim feels as if he is drowning.
"I thought that it was absolutely the right thing to do," Cheney said of what he called the "enhanced interrogation" of the detainees. "I thought the [administration's] legal opinions that were rendered [endorsing the harsh treatment] were sound. I think the techniques were reasonable in terms of what they [the CIA interrogators] were asking to be able to do. And I think it produced the desired result.
"Was it torture? I don't believe it was torture," Cheney said. "The CIA handled itself, I think, very appropriately. They came to us in the administration, talked to me, talked to others in the administration, about what they felt they needed to do in order to obtain the intelligence that we believe these people were in possession of."
Regarding the earlier Abu Ghraib case, retired Lt. Gen. Ricardo Sanchez, who was commander of US forces in Iraq at the time, confirmed in the paperback version of his book, "Wiser in Battle," that the prisoner-abuse investigations were constrained for political reasons.
"A meaningful and unlimited investigation, which the Bush administration adamantly opposed, would result in an unmitigated disaster," Sanchez wrote. "It would open up Pandora's box and let out a world of evil."
Sanchez added, "It's now clear the Bush administration did not tell the truth about the use of torture at Guantanamo Bay, or in Afghanistan and Iraq.... In the aftermath of Abu Ghraib, administration officials worked diligently to deflect responsibility away from them and down to military leadership on the ground....
"It is also apparent that the White House and the Department of Defense consistently attempted to minimize any further exposure of their actions and, specifically, to prevent a serious investigation into their executive-decision making process."
Sanchez wrote that "to prevent this [disgrace] from ever happening again" and "to restore America's moral authority," the Obama administration and Congress "must conduct more comprehensive investigations across all involved agencies, learn from the findings, and implement permanent changes."
Whether Attorney General Holder is up to that task remains to be seen.