A First Step, Not A Prelude To Trials

Keep in mind what today's announcement that the Department of Justice will re-open investigations into about a dozen CIA prisoner interrogations really means: it's a concession to reality  -- a reality that the Obama administration has long resisted. Once it became crystal clear -- became public -- that interrogations exceeded Bush-era Department of Justice guidelines, the Attorney General had no choice but to ask a prosecutor to examine whether laws were broken. As recounted by Newsweek, Holder reached this conclusion earlier this summer after reading classified descriptions of interrogations and comparing them to Office of Legal Counsel memos that authorized them. The White House was notified -- this isn't their decision -- and CIA director Leon Panetta protested vigorously, as one might expect. (CIA and White House officials insist that Panetta never threatened to resign.)

Will the investigation be limited to the dozen or so cases identified in various reports? It's hard to say. It probably depends on whether, in programs that touched the interrogation program, there were comparable instances of wrong-doing. Legal experts believe that it will be very difficult to make a case against CIA officers unless there is incontrovertible proof that they knowingly broke the law, and if that proof can be introduced in court because of the sensitive (but legal) national security practices that might also be disclosed. Presumably, the prosecutor won't recommend charges unless he thinks he can win a case.

Should we read Holder's decision as a political concession to civil libertarians? Probably not. On the one hand, a federal prosecutor, for the first time, has a mandate to investigate illegal interrogation practices. Accountability is finally a possibility.

On the other hand, department officials have longed acknowledged that it would be difficult to make cases.  And if John Durham decides that while wrongdoing occurred, he cannot make a case, President Obama's critics will be within their rights to demand more investigations.

The CIA operatives who face potential prosecution did not design the program in question; they did not manipulate the law to justify it. They did not abuse their own powers to implement it. If they're the only ones punished, there will be a mismatch between the crime -- torture sanctioned at the highest level of government -- and the punishment -- sentences handed down to a few of the people on the front lines of the fight against terrorism.

The results of the investigation are likely to prove unsatisfactory to just about every side in this contentious debate, as the attorney general himself said today.

"The Office of Professional Responsibility has now submitted to me its report regarding the Office of Legal Counsel memoranda related to so-called enhanced interrogation techniques.  I hope to be able to make as much of that report available as possible after it undergoes a declassification review and other steps.  Among other findings, the report recommends that the Department reexamine previous decisions to decline prosecution in several cases related to the interrogation of certain detainees.
        "I have reviewed the OPR report in depth.  Moreover, I have closely examined the full, still-classified version of the 2004 CIA Inspector General's report, as well as other relevant information available to the Department.  As a result of my analysis of all of this material, I have concluded that the information known to me warrants opening a preliminary review into whether federal laws were violated in connection with the interrogation of specific detainees at overseas locations.  The Department regularly uses preliminary reviews to gather information to determine whether there is sufficient predication to warrant a full investigation of a matter.  I want to emphasize that neither the opening of a preliminary review nor, if evidence warrants it, the commencement of a full investigation, means that charges will necessarily follow.
        "Assistant United States Attorney John Durham was appointed in 2008 by then-Attorney General Michael Mukasey to investigate the destruction of CIA videotapes of detainee interrogations.  During the course of that investigation, Mr. Durham has gained great familiarity with much of the information that is relevant to the matter at hand.  Accordingly, I have decided to expand his mandate to encompass this related review.  Mr. Durham, who is a career prosecutor with the Department of Justice and who has assembled a strong investigative team of experienced professionals, will recommend to me whether there is sufficient predication for a full investigation into whether the law was violated in connection with the interrogation of certain detainees.
        "There are those who will use my decision to open a preliminary review as a means of broadly criticizing the work of our nation's intelligence community.  I could not disagree more with that view.  The men and women in our intelligence community perform an incredibly important service to our nation, and they often do so under difficult and dangerous circumstances.  They deserve our respect and gratitude for the work they do.  Further, they need to be protected from legal jeopardy when they act in good faith and within the scope of legal guidance.  That is why I have made it clear in the past that the Department of Justice will not prosecute anyone who acted in good faith and within the scope of the legal guidance given by the Office of Legal Counsel regarding the interrogation of detainees.  I want to reiterate that point today, and to underscore the fact that this preliminary review will not focus on those individuals.
        "I share the President's conviction that as a nation, we must, to the extent possible, look forward and not backward when it comes to issues such as these.  While this Department will follow its obligation to take this preliminary step to examine possible violations of law, we will not allow our important work of keeping the American people safe to be sidetracked.
        "I fully realize that my decision to commence this preliminary review will be controversial.  As Attorney General, my duty is to examine the facts and to follow the law.  In this case, given all of the information currently available, it is clear to me that this review is the only responsible course of action for me to take."