Eric Holder's appointment of a special prosecutor to investigate the CIA has divided Capitol Hill.
President Barack Obama has long said he wanted to look forward, not backward, when it came to investigating Bush-era interrogation policies – but his good friend, Attorney General Eric Holder, went ahead anyway Monday.
And it didn’t take long to see just what Obama was worried about.
The immediate reaction to Holder’s announcement suggested the investigation will be politically divisive, drive down Obama’s stock at the CIA and almost certainly re-open an uncomfortable question for the White House: just how far is Obama willing to go to extract information from terror suspects?
Several Democrats cheered Holder’s announcement of a preliminary investigation – then immediately insisted he didn’t go far enough. The chairmen of the House and Senate judiciary committees kept up their calls for a “truth commission” into Bush-era practices.
Others said veteran federal prosecutor John Durham must have free rein to target any potential wrongdoing, even if it takes him to the most senior levels of the Bush administration.
“I applaud the Attorney General for this first step. But, we must go further,” Rep. Jerry Nadler (D-N.Y.) said. “Seeking out only the low-level actors in a conspiracy to torture detainees will bring neither justice nor restored standing to our nation.”
At the same time, a number of Republican senators warned Holder that Durham’s investigation has the potential to spiral into a witch hunt that could hamstring the CIA.
“History has shown that special prosecutors. . .often take an expansive view of their investigative authority,” Sen. Jon Kyl (R-Ariz.) and eight others wrote to Holder. “Despite your assurances that this investigation will be narrow and focused, there is a real risk that today's announcement portends a long, arduous, and unpredictable process for the intelligence community.”
And reaction from the intelligence community was swift, and largely negative. CIA Director Leon Panetta tried to pre-empt the Holder announcement – and the release of CIA investigative report on some of the most egregious abuses – with a statement seeking to bolster morale at Langley. Durham is already investigating the CIA’s destruction of 92 interrogation videotapes.
CIA spokesman Paul Gimigliano echoed some of Obama’s forward-not-back language in pledging to cooperate with the investigation. “The CIA’s primary focus remains, as the American people expect, the present and the future, not the past,” he said.
Holder insisted he intended no disrespect to intelligence officials working under “difficult and dangerous circumstances,” but there was every indication that his move further undermined the Obama administration’s standing at CIA headquarters – just months after a bitter split between House Speaker Nancy Pelosi and the agency over interrogation briefings.
“This is a political act….It’s awful, just awful” said Vince Cannistraro, who headed CIA counterterrorism efforts in the early 1990s. “There’s a lot of sadness among the professionals that have been doing this…They’re scaring the hell out of people. A lot of people are going to just retire.”
Cannistraro said he viewed many of the extreme techniques, such as waterboarding, as unhelpful and unwise, at least in retrospect. But he said it was “stupid” to expose people to criminal liability for excesses such as trying to frighten a detainee by staging a mock execution in another room.
“There were a lot of stupid things done, no question about it, but do you want to prosecute them for doing the same kind of thing you saw on TV in a drama?” the former CIA official said. “We are now forgetting why they were doing what they were doing. Whether it was right or wrong is another question.”
Clearly aware of the firestorm he could ignite, Holder offered a litany of public assurances to try to limit the political fire and fallout.
He stressed that the inquiry was preliminary in nature and might not trigger a full-blown investigation. He reiterated that the inquiry would be restricted to incidents involving a limited number of specific detainees. He said that those who relied in good faith on legal guidance about what was and wasn’t permissible would not be placed in “legal jeopardy.” And he emphasized that he personally would make the final decision about whether to conduct a full-scale investigation.
Also yesterday, Holder released a once-heavily redacted CIA inspector’s general’s report from 2004 that laid out some of the most egregious abuses of the interrogation program – as if to show the American people that what he wanted to investigate was so outrageous it had to be re-examined, even though prosecutors already considered and passed up the cases under the Bush administration.
One detainee was threatened with a pistol cocked by his ear, as well as a power drill. Interrogators staged a mock execution in an adjoining room to scare him. He was warned if he didn’t talk, “We could get your mother in here.” Interrogators tried to convince him he was being held by a foreign country, because it’s widely believed that some foreign interrogations involve “sexually abusing female relatives in front of the detainee,” the report said.
And interrogators threatened to kill the children of 9/11 mastermind Khalid Sheikh Mohammed.
Another development Monday – the announcement of a new elite interrogation teams -- raised the question of what interrogation tactics Obama finds acceptable. The Justice Department said the new interrogations team would stick to military interrogation policies in the Army Field Manual, but that scientific research would be ordered to consider whether there were any circumstances when they should go further.
But the developments offered no conclusive answer to one question Obama has sought to put to rest: do the harsh interrogation tactics work? The 2004 CIA report – previously believed by anti-torture critics to be a scathing indictment of Bush’s program – falls far short of declaring the aggressive tactics to be an abject failure. It says the tactics’ efficacy is questionable at best, and is critical of the CIA’s management of the interrogation program, but acknowledges that at least one detainee “has appeared to be cooperative” after being waterboarded.
“It is not possible to say definitively that the waterboard is the reason for Abu Zubaydah’s increased production [of intelligence information], or if another factor, such as the length of detention was the catalyst,” the report reads. “Since the use of the waterboard, however, Abu Zubaydah has appeared to be more cooperative.”
And another report released by the CIA would seem to give ammunition to former Vice President Dick Cheney, who has argued that the harsh interrogation tactics worked, and provided useful information that saved lives. That report was called “Khalid Shaikh Mohammed – Pre-eminent Source on Al-Qaida.” Mohammed was waterboarded 183 times.
In addition, the flurry of news developments on interrogation left a variety of questions unanswered.
One ambiguity in Holder’s heavily qualified announcement is how high Durham will be permitted to look when considering possible criminal charges. Holder did not explicitly preclude Durham from considering charges against any individual, but his marching orders to focus on cases where interrogators exceeded legal guidance seems to rule out an inquiry into whether attorneys deliberately warped that guidance to allow legal violations.
It also seems to move the spotlight away from top officials, such as President George W. Bush and Cheney, who are unlikely to have given direct orders to disregard formal legal advice.
“I think it works back from the dead body,” said another former CIA official, who asked not to be named. “Whoever was in that room, the person is in trouble.”
The ex-official said other CIA officials could be in legal jeopardy if they deliberately provided inaccurate information to headquarters or other officials about what techniques were used. “Where there was inaccurate reporting or cables, that sets up a false testimony charge,” the ex-official said.
Such a case could be easier to make than a violation of the U.S. anti-torture statute, which has led to the conviction of only one person, a former Liberian paramilitary leader.
It’s also unclear how much Holder’s assurance that those who acted “within the scope of legal guidance” is worth to specific individuals. Documents released Monday indicate that many interrogators never saw any Justice Department guidance and must have relied on others to interpret what was permitted and what wasn’t.
Concern at CIA about the criminal inquiry is likely to be compounded by the White House’s announcement Monday that the spy agency will effectively take a back seat in future interrogations of terrorism suspects. Obama has approved a plan to set up a new interrogation unit that will be overseen by the National Security Council and run by the FBI in cooperation with the CIA.
“There’s a group that says, ‘I told you so. We should not have been doing this,’ [but] more aggressive people, some of whom have left some of whom are still there, they’re going to be concerned,” the ex-CIA official said. “It’s an insecure place…..It’s part of the wounding of their pride.”