Michael Isikoff and Mark Hosenball at Newsweek offer an interesting analysis of Sen. Kit Bond’s (R-Mo.) announcement last week that he was pulling the entire GOP staff off a Senate Intelligence Committee investigation into Central Intelligence Agency interrogation practices.
The move appears to be part of a broader campaign by congressional Republicans and the U.S. intelligence community to pressure [Attorney General Eric] Holder to rescind his recent appointment of a special counsel to investigate allegations of torture during the Bush administration.
The flare-up is significant because, whatever the results of Holder’s criminal probe, the Senate panel’s investigation offered perhaps the only opportunity for a full public accounting of the U.S. intelligence community’s conduct in the aftermath of September 11 attacks.
The result, Isikoff and Hosenball write, is the interrogations inquiry has become “hopelessly politicized.”
Bond, the ranking Republican on the intelligence panel, said he objects to Holder’s decision to empower a special prosecutor, John Durham, to examine whether criminal laws were broken during interrogations. Among the methods the CIA used against terrorism suspects is waterboarding, a method both Holder and President Obama have described as torture.
According to the Washington Times:
“Had Mr. Holder honored the pledge made by the president to look forward, not backwards, we would still be active participants in the committee’s review,” said Sen. Christopher S. Bond of Missouri, the panel’s vice chairman. “Instead, DOJ sent a loud and clear message that previous decisions to decline prosecution mean nothing and old criminal charges can be brought anytime against anyone — against these odds, what current or former CIA employee would be willing to gamble his freedom by answering the committee’s questions?”
Senator Dianne Feinstein (D-Calif.), chair of the Senate Intelligence Committee, said she regretted Bond’s decision to boycott the investigation.
Bond’s move came after seven former CIA directors wrote Obama, urging him to overturn Holder’s decision. The Sept. 18 letter reads:
Attorney General Holder’s decision to re-open the criminal investigation creates an atmosphere of continuous jeopardy for those whose cases the Department of Justice had previously declined to prosecute. Moreover, there is no reason to expect that the re-opened criminal investigation will remain narrowly focused.
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The Justice Department in a Monday court filing said it can’t find 10 documents that are supposed to be released as part of a Freedom of Information Act request filed by the American Civil Liberties Union, Al Kamen reported in The Washington Post.
The ACLU’s five-year FOIA battle seeks to illuminate the process that led to a policy of harsh interrogations of terrorism suspects during the Bush administration. One of the 10 missing documents is a 59-page exchange in 2002 between the Office of Legal Counsel and the Pentagon on the eve of a decision to increase the intensity of the interrogations, Kamen reported.
The Justice Department was able to find an additional 224 documents relevant to the ACLU’s 2005 request, Kamen said. They were found in three safes and in “the back of a third drawer” inside OLC’s room for highly classified documents. The documents were located by two visiting Assistant U.S. Attorneys from New York and one DOJ attorney.
Acting Assistant Attorney General for the OLC David J. Barron had to explain the loss to a federal judge in New York. He wrote: “Due to their extreme sensitivity at the time,” the relevant document set was not copied and its contents were “intermingled” with other files in the room. The documents then took the scenic tour of Washington, D.C., first going to another special room at DOJ, then to the CIA in 2007 and stopping at the Office of Professional Responsibility until March.
Kamen reported there is no word on if or when the documents might be made public.
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Former U.S. Attorney General Alberto Gonzales on Thursday clarified his recent comments about Attorney General Eric Holder’s decision to probe possible CIA interrogation abuses, saying he supports Holder’s authority to investigation but does not support the investigation itself, The Washington Times reported.
On Tuesday, Reuters and Main Justice reported that Gonzales supported Holder’s decision to investigate. His comments came during an interview with The Washington Times’ “America’s Morning News” radio show. During the interview, Gonzales said if people go beyond the established parameters for interrogations, “I think it is legitimate to question and examine that conduct to ensure people are held accountable for their actions, even if it’s action in prosecuting the war on terror. ”
On Thursday, in a follow-up interview with The Times, Gonzales offered the clarification. “I don’t support the investigation by the department because this is a matter that has already been reviewed thoroughly and because I believe that another investigation is going to harm our intelligence gathering capabilities and that’s a concern that’s shared by career intelligence officials and so for those reasons I respectfully disagree with the decision,” Gonzales said.
Regarding his earlier comments, Gonzales said he was not endorsing the investigations, but rather Holder’s right to conduct the probe. He said, “It’s an endorsement of his right to exercise his discretion,” adding, “I’m just saying I would have exercised my discretion in a different manner, given the information I have.”
Gonzales would not say what evidence was uncovered during the Bush administration that led him to deem Holder’s probe unnecessary. “This has been looked at, and I agree with President Obama that we ought to be looking forward,” he said Thursday.
Click here to read the transcript of the interview.
This post has been updated.
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Gonzales’ comments came during an interview with The Washington Times’ “America’s Morning News” radio show. He said the Bush administration ”worked very hard to establish ground rules and parameters about how to deal with terrorists,” and “if people go beyond that, I think it is legitimate to question and examine that conduct to ensure people are held accountable for their actions, even if it’s action in prosecuting the war on terror. ”
“I’ve talked to friends of mine in the CIA, and there is a great deal of concern,” Gonzales said, adding, “People are scared about taking actions that might be legal but in any way controversial. They’re just not going to do it.” Read The Times’ article here.
He added the possible offenses should be investigated despite the potential “chilling effect” the probe could have on future CIA interrogation sessions, Reuters reported. Gonzales said he believes Holder is only concerned about investigating officials who went beyond approved techniques.
Holder has come under fire from former Vice President Dick Cheney and other conservatives for re-opening an investigation that has been closed by the Bush administration. Some liberals, meantime, have also complained that Holder’s focus on CIA interrogators doesn’t hold accountable the Bush administration officials who authorized brutal techniques such as waterboarding, which Holder and Obama have both called torture.
Cheney on Sunday said President Obama should be calling the shots on the interrogation matter and not leave the decision to a “political appointee” such as Holder. Click here to read our previous report.
But Gonzales, who resigned amid criticism he wasn’t independent enough of the Bush White House, endorsed Holder’s authority. ”As chief prosecutor of the United States, he should make the decision on his own, based on the facts, then inform the White House,” Gonzales said, according to Reuters. Gonzeles didn’t head the DOJ at the time the interrogation methods were authorized and the original CIA probe closed, but he was privvy to information about the methods as White House counsel.
Gonzales also said Holder appears concerned with the “one percent of actors” who went beyond Department of Justice guidelines, The Times reported. He added that the other 99 percent “are heroes and should be treated like heroes for the most part, not criminals.”
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The president is the chief law enforcement officer in the administration. He’s now saying, well, this isn’t anything that he’s got anything to do with. He’s up on vacation on Martha’s Vineyard and his attorney general is going back and doing something that the president said some months ago he wouldn’t do.
Sen. John McCain (R-Ariz), who called the interrogation probe a “mistake,” said on CBS’s “Face the Nation” that Holder nonetheless has the authority to investigate. “The attorney general has a unique position in the cabinet obviously,” McCain said. “He can’t be told what to do by the president of the United States.”
Yet Cheney said the Constitution confers ultimate law enforcement authority on the president, not the Attorney General.
Well, I think if you look at the Constitution, the president of the United States is the chief law enforcement officer in the land. The attorney general’s a statutory officer. He’s a member of the cabinet.
Cheney appears to be taking an expansive view of Article II of the Constitution, which says: “The executive Power shall be vested in a President of the United States.” Yet in practice and common understanding, the chief law enforcement officer of the United States is the Attorney General. The Judiciary Act of 1789 established the AG’s office, “which evolved over the years into …. chief law enforcement officer of the Federal Government,” the Department of Justice’s Web site says.
The Attorney General’s office is unique in that it is expected to enforce the nation’s laws fairly, uphold the Constitution and represent the broader interests of the American people, not the political interests of the White House. While President Obama has said he opposes a new review of the CIA interrogation methods, he’s also repeatedly said the decision ultimately lies with Holder.
While no Attorney General is deaf and dumb to politics, there are lines that can’t be crossed without an uproar.
President Nixon’s attorney general, Elliot Richardson, resigned in protest when Nixon fired the Watergate special counsel, Archibald Cox. FBI Director Robert Mueller and then-Deputy Attorney General James Comey almost resigned after the White House tried to pressure then-Attorney General John Ashcroft, who was in the hospital, to reauthorize surveillance techniques believed to be illegal. And Attorney General Alberto Gonzales resigned after it was revealed the White House had directed the firings of nine U.S. Attorneys for political reasons.
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CIA Director Leon Panetta got into a ”profanity-laced screaming match” with a White House staffer last month after learning of Department of Justice plans to investigate brutal interrogations, ABC News reported. Read the story here.
The report didn’t identify the White House staffer who was on the receiving end of Panetta’s rage, which ABC News said also included a threat by Panetta to quit. Panetta was reportedly angry about plans by Attorney General Eric Holder to open criminal investigations of CIA officers who may have carried out interrogation methods that both Holder and President Obama have characterized as torture.
Holder also won out over Panetta in April, when President Obama sided with the attorney general and released largely unredacted versions of DOJ Office of Legal Counsel memos authorizing the brutal techniques. Click here for our previous report. The Wall Street Journal reported earlier this month that White House counsel Greg Craig’s job may be at stake, in part because of Holder’s decision to release the OLC memos. Craig was an ally of Holder in pushing to release the memos, which kicked up a political controversy that reportedly displeased the president.
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The Justice Department’s Office of Professional Responsiblity has recommended that Attorney General Eric Holder reopen nearly a dozen CIA prisoner-abuse cases, a person briefed on the matter told The New York Times. Read the NYT story here.
The revelation arrives at the confluence of several events that mark a further break with the Bush administration on the hot-button issue of interrogations.
The Washington Post reported in today’s paper that President Obama has approved a special terrorism interrogation team that would be housed at the FBI but report directly to the National Security Council, shifting oversight from the CIA to the White House. The special interrogation team, named the High-Value Detainee Interrogation Group, or HIG, will comprise experts from several intelligence and law enforcement agencies and likely be headed by an FBI official, a senior administration official told the Post.
Also, the Obama administration is set to release today a 2004 CIA inspector general’s report detailing prisoner abuse.
But it is the long-awaited OPR report that is likely to have the most consequences. According to the Times, it is now all but certain that Holder will appoint a special prosecutor to investigate the alleged CIA abuses, despite Obama’s stated preference to move on.
The OPR report also examined the legal reasoning of the Bush-era Office of Legal Counsel lawyers who authorized interrogation techniques that Holder himself has called torture. It has already been reported that OPR recommended referrals to local bar associations for possible discipline against the OLC lawyers, but further information on the report’s conclusions about the OLC lawyers isn’t known yet.
According to the Times, the part of the OPR report focusing on detainee abuse will be made public after classified information is deleted. The allegations center on incidents reported mainly in Iraq and Afghanistan, the Times said.
Said the Times:
“The cases represent about half of those that were initially investigated and referred to the Justice Department by the C.I.A.’s inspector general, but were later closed. It is not known which cases might be reopened.”
The news of the OPR recommendations follows reports of CIA abuses, including officers carrying out mock executions and threatening at least one prisoner with a gun and a power drill. Under anti-torture statutes, it’s a violation of federal law to threaten a prisoner with imminent death, the Times said.
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The New Republic profiles John Durham, the special prosecutor from Connecticut appointed by then-Attorney General Michael Mukasey to investigate the CIA’s destruction of videotapes documenting brutal interrogations of terrorism suspects.
After Attorney General Eric Holder was quoted in Newsweek earlier this month saying he was leaning towards appointing a prosecutor to investigate the Bush-era interrogations, this Washington Post story by Carrie Johnson named Durham as a possible choice for the job.
“Durham may be under consideration for an expanded mandate, given that he already has reviewed hundreds of sensitive CIA cables and other documents related to treatment of detainees.”
Read a more recent New York Times’s story about Holder’s deliberations here.
Quinnipiac law professor Jeffrey Meyer, a former colleague of Durham, told the New Republic: “Think of him as the second coming of Patrick Fitzgerald”– yet without the publicity hound aspect to him.
To us, the most interesting part of the profile is the unearthing of this blog post from a year and a half ago by Georgetown law professor Marty Lederman, a vocal critic of torture. Lederman is now a Deputy Assistant Attorney General in the Office of Legal Counsel, whose lawyers during the Bush administration produced the legal opinions authorizing torture.
Lederman was highly skeptical of Durham’s appointment, questioning his independence (Durham reports to the Deputy Attorney General in the CIA tapes matter):
But there’s nothing really “outside” about John Durham. He’s a career DOJ prosecutor, the number two official in the U.S. Attorney’s Office in Connecticut. As the Attorney General explained today (see statement below), the case would ordinarily be handled by the U.S. Attorney for the Eastern District of Virginia, but that U.S. Attorney requested that his office be recused from the matter “in order to avoid any possible appearance of a conflict with other matters handled by that office.” (Hmm . . . what might that mean? That the investigation deals with whether there was obstruction of justice in cases being prosecuted by the E.D. Va., perhaps?)
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The CIA on Thursday denied former Vice President Dick Cheney’s March 31 request to the National Archives and Records Administration for classified intelligence documents regarding the effectiveness and necessity of torture. Why? Because of an executive order made by President George W. Bush intended to complicate and overrule the Mandatory Declassification Review process. Oops.
In 1995, President Bill Clinton filed Executive Order 12958, an order intended to make the government more transparent. The order was touted by former Clinton chief of staff John Podesta in a 2002 speech as resulting “in the declassification of over 800 million pages of historically valuable records” in just five years. But Clinton was overruled by Executive Order 13292, signed by President George W. Bush on March 25, 2003. It amended the Clinton executive order, giving the Vice President essentially the same authority as the President in the classification process, and adding a number of exemptions to reject declassification requests:
Sec. 3.5. Mandatory Declassification Review. (a) Except as provided in paragraph
(b) of this section, all information classified under this order or
predecessor orders shall be subject to a review for declassification by the
originating agency if:
(1) the request for a review describes the document or material containing
the information with sufficient specificity to enable the agency to locate
it with a reasonable amount of effort;
(2) the information is not exempted from search and review under sections
105C, 105D, or 701 of the National Security Act of 1947 (50 U.S.C. 403–
5c, 403–5e, and 431); and
(3) the information has not been reviewed for declassification within the
past 2 years. If the agency has reviewed the information within the past
2 years, or the information is the subject of pending litigation, the agency
shall inform the requester of this fact and of the requester’s appeal rights.
What’s the conflicting litigation holding Cheney up? According to the letter rejecting Cheney’s request:
we have discovered that it is currently the subject of pending FOIA litigation (Bloche v. Department of Defense, Amnesty International v. Central Intelligence Agency).
The letter also has a fun fact that isn’t at all ironic:
This provision ensures that the Mandatory Declassification Review process is not used to disrupt simultaneous litigation proceedings that are already pending.
So, long story short, the documents Cheney wants declassified cannot be declassified because there is already a FOIA request to have the documents declassified, now that sounds like good old-fashioned Bush administration logic!
And what’s Cheney’s take on the predicament he’s created for himself? Here’s the statement from Cheney’s transition office:
The Obama Administration has denied Vice President Cheney’s request for the declassification of two documents that provide information about the effectiveness of the detainee program. Vice President Cheney is preparing his appeal to this denial.
Government secrecy really sucks when you’re not in power.