If Holder investigates CIA excessive torture, will it lead to more investigation?

(Just after posting this I learned that Digby substituting today for Glenn Greenwald has written about this same issue. She is looking at, “The bad apple approach doesn’t solve the political, legal or moral problems. Indeed, that seems so clear that you have to wonder if this isn’t being done to serve some other purpose.” My post is discussing, for whatever reason a limited investigation is done, whether or not it will lead to an expanded investigation and investigation of the tree and not just the bad apples.)

An LA Times August 9 article said according to insiders that Eric Holder is close to naming a prosecutor to look into reports of excessive waterboarding and other unauthorized methods. Convictions could be hard to get.” Tom Malinowski, Washington advocacy director for Human Rights Watch, warned “An investigation that focuses only on low-ranking operators would be, I think, worse than doing nothing at all.”

A senior Justice Department official said that Holder envisioned an inquiry that would be narrow in scope, focusing on “whether people went beyond the techniques that were authorized” in Bush administration memos that liberally interpreted anti-torture laws. The reporters Greg Miller and Josh Meyer explained:

Opening a criminal investigation is something Holder “has come reluctantly to consider,” the Justice Department official said, emphasizing that Holder had not reached a final decision but noting that, “as attorney general, he has the obligation to follow the law.” Others familiar with Holder’s thinking say that such an investigation seems all but certain, and that a prosecutor will probably be selected from a short list that Holder asked subordinates to assemble. Such a prosecutor would examine cases that are generally at least five years old, and probably some that were previously reviewed by career prosecutors who concluded that they could not be pursued.

We all know how going after the “rogue” torturers at Abu Ghraib, stopped, so far, any investigation and prosecution of the policy makers or legal interpreters. Will the same thing happen with the CIA as Malinowski warns?

I am undecided. I commented some time ago that if Obama-Holder appointed a prosecutor to investigate everybody up to President Bush, that after the initial uproar died down, all questions aimed at the administration could be answered with no comment because of the investigation. So Obama-Holders fears of the investigation hijacking all their vital proposed legislation does not justify their fears. They obviously don’t agree with me and I’m sure are getting a lot of pressure from Panetta even on pursuing the limited CIA prosecutions

Some Dem members of congress who promised a full investigation have also backed off. It would seem obvious to agree with Malinowski. That means you have to ignore the leak fest that would go on in Washington as it always does. If past history is any guide, we would learn a lot such as who is being questioned and what they are saying. The destroyed videotape issue would regain prominence.

The M$M is primarily responsible for not giving torture sufficient attention because of their stenographer journalism and sleezing with government. With any classified investigation, they would love to use their sources to keep leaking out more and more information because they are infatuated with their immense powers. They will relish each morsel. It might even get to the Jackson level from time to time.

Even though the prosecutor will warn of dire consequences for information leaking, I doubt he/she will succeed. If I am right, I don’t see how it will be possible for Obama-Holder to not let the investigation expand. Or it could motivate congress to do their job when Holder won’t.

I would be very interested in your thoughts.

43 Comments

  1. Karen M says:

    My hunch, all along, has been that a prosecutor will find that a majority of the interrogators exceeded the parameters set by Yoo, et al.

    Once someone begins torturing another person– not to mention many other persons– they’ve let loose something that is not easily stopped.

    My hope is that the far greater scale of the actual torture and abuse will, once it is revealed, make it impossible not to go further with additional investigations and prosecutions… up the ladder of the executive branch.

    But, we’ll just have to wait and see…

    • dirigo says:

      It looks like a narrow probe right now; but I agree with Karen: once it all comes out, anything goes (or should).

      It’s the “boil is lanced; long live the lance” rule, I would hope.

      POP!!! “Eewwwww!” – goes the crowd

      “STAND BACK FOLKS; PLENTY TO SEE HERE! SEEMS TO BE ALL AROUND US.”

  2. bystander says:

    You’re entire premise is based on Fail.

    The party doing the investigating fails to contain the leaks.

    The majority of the trad media fails to merrily pursue celebrity scandals, he said/she said reporting, and gov’t stenography.

    The few in the trad media who might be inclined to actually follow the leaks fail to be consigned to page A17.

    The DoJ fails to keep control of the investigation and it expands beyond its narrow confines.

    And, finally, if the DoJ doesn’t fail, Congress fails to continue its hear no evil, see no evil, speak no evil of the Bush administration for fear of the Rump of the Right’s screams for safety at all costs.

    I can’t get on board with this much serendipitous fail. And, if the system doesn’t fail, then I believe it is very much worse than doing nothing at all.

    • bystander says:

      *sigh*

      Obviously, that should have read, Your entire premise…

      The alternative, You’re depending on…

      Edit. Proof. Edit. Proof. Edit. Fail

    • rmp says:

      I don’t like the fail course either. But the M$M thrives on failure. It’s almost as good as sex. What we need is M$M coverage to move either Obama-Holder or congress. We need CIA types who were conflicted on what they had to do or by what they saw colleagues do to leak to the M$M.

      • bystander says:

        You are absolutely determined to ignore who owns the media. And, you are absolutely determined to ignore how those owners decide what is in their best interests.

        You’re looking for a pony in the dung heap.

        There is no pony.

        • rmp says:

          Do you have any ideas of how to make the dung heap smell enough to be noticed and get the attention of enough people who want the smell to go away through serious consequences on the people who built the dung heap?

          • bystander says:

            You’re moving the goal posts. You have a premise. I am arguing that your premise has a problem. You would choose to ignore the problem I identified. Fine. But, you don’t get to change the rules of the game, mid-game. I have not failed if I don’t have/offer a solution for an intractable problem.

  3. ondelette says:

    What the torture investigations dearly needs is to prosecute an innocent man. Narrowing investigations to the point where one can be assured of guilt with no political consequences is no different than constructing courts to deliver guilty verdicts to Guantanamo prisoners.

    What we get out of prosecuting someone who stayed within the guidelines for torture, not for exceeding guidelines, is probably a political fight and an innocent verdict. We desperately need that scenario. Here’s why (as Paul Krugman always says): If we prosecute the person who stayed within the guidelines, we will have that fight over disobeying an unlawful order. If you read any of the interviews, like the ones that Errol Morris did with Sabrina Harman or other interviews with Abu Ghraib “bad apples”, what is most unclear to anyone in the field is when to exercise their right and obligation to disobey an unlawful order.

    So prosecute someone who scrupulously stayed within the guidelines. Because, at least with the CIA, and at least early on, that person will say that they questioned the orders and wanted to know if they were unlawful. They attempted to find out. They then “found out” that the orders were “lawful”, so under the circumstances they now had no choice but to obey.

    That, I guarantee, will be the defense. And, as Dr. Lanning’s hologram keeps saying, “That, is the right question. Program terminated.” When that question goes all the way up the courts, three things will be revealed: 1) That the people at the top manipulated what was “lawful” to suit an interrogation goal. 2) That we have become a society that demands a guilty verdict for all those prosecuted. 3) That we have relied on torture as part of mass fear programs, not just in the “war on terror”, but in the pursuit of domestic law and order.

    Those are the three main antecedents to the three forms of torture practiced by democratic societies. What we will reveal is the true extent of the core corruption caused by torture on our society, the true extent to which the public believes in this method, and the true extent of the reforms necessary to become whole again.

    We really need to arrest and try an innocent man. Trying only the guilty is bad for our country, and has become only too common in the thinking of those making “policy decisions” in Washington. Only by trying the occasional innocent does the society hold the mirror up to itself and see what it has become.

    • rmp says:

      Yes we desperately need a discussion on the “I was just following orders.” As I said to bystander, I find it hard to believe that some CIA torturers involved were not conflicted by what they were told was legal and what they saw when the inevitable excessive tactics were used. Those who did the excessive would be very conflicted if they were never told the “legal” guidelines.

      That may be the most reliable route. Going after those higher ups who did not provide the “legal” guidance and they could end up reaching higher.

      When the Bush Administration went after the bad apples, far less was known about the role of Bush-Cheney and CIA leadership. I think the bad apple approach is going to sound very sour to a lot of people especially if the British government is going to be unsuccessful in quashing their investigations. We probably need the Brits and their media to show us how to handle this.

      • heru-ur says:

        rmp wrote, “I find it hard to believe that some CIA torturers involved were not conflicted by what they were told was legal and what they saw when the inevitable excessive tactics were used.”

        Perhaps the CIA has a long, long history of involvement with torture that goes back way before this latest GWOT. That would explain it.

    • Karen M says:

      I’m trying to read between the lines, ondelette, since it seems that’s where you’re saying what you really mean. Are you making a case for an accidental or inadvertent scapegoat?

      bystander, that’s a real dose of Reality that you offer there. It seems so reasonable on the one hand to plan on FAIL, since that happens to our preferences so often, but I see your point here. [sigh…[

      • Karen M says:

        Okay, I just did what I always do when the appropriate action seems unattainable. I put in a prayer request for AG Holder to have the courage to appoint a special prosecutor who will pursue these cases where ever they lead (except that I phrased it a bit differently)…

      • ondelette says:

        I was saying that we need to prosecute the people who explicitly followed the orders, even if we just start with one of them and let it go to the Supreme Court first. The defense is going to be that actually they did question the orders (as they are supposed to in the case of an unlawful order), and when the official response came down saying that the practice they were questioning was ‘legal’, then and only then did some of them follow them. That makes an airtight case for prosecuting those who mislead them. But more than that, it makes the case that there is more wrong with our society than meets the eye for that process to have gone on, and had that result. It should not have been such a borderline judgment call that they would have needed a second opinion, but they did, because of our prison system. And it would not be such a difficult decision to prosecute them, but it is, because we’ve become a society that shuns ‘not guilty’ verdicts. And the legal advice would not have been available, but it was, because our society had grown to believe that anything was justified if it provided security.

        So such a trial is necessary as an indictment of the society that produced the tortures. Since it’s also necessary to comply with international law, we need to prosecute an ‘innocent man’ to regain our sanity. Prosecute and acquit, for the entire country to see.

        • rmp says:

          You make a good case and I believe it would work as you project. Those who have been far worse torturers or ordered torture would have to be charged first and then the “innocent” could follow.

        • Karen M says:

          Thanks, ondelette, for clarifying. Your comment was one of those that could be read in multiple ways or in layers. That scenario truly would be an indictment of both our society and our government, and even if no further investigations or prosecutions followed, there would surely be a film or play or two about it. Maybe even a novel. Not that much could be gained from those art forms any more, since few people attend the theater at all (for serious purposes), and perhaps even fewer read literature. But, still…

          I made a different case in a comment on UT… that if they insist on it being a narrowly focused investigation, then start only with those detainees who died in custody. Surely, there must have been a breach of protocol [sic] in those cases. Organ failure is supposed to be that final line in the sand. I was a bit wordier, though.

    • dirigo says:

      “Hold the mirror up to nature … “

  4. rmp says:

    bystander

    I get frustrated when I hear that the problem is beyond solution because the powers that be are too strong to be defeated. So I wanted to know if you had any ideas or if you you were in the beyond solutions camp.

    I don’t buy into the corporations own the M$M to such an extent that this issue will never expand so that Obama-Holder or congress will be forced to go beyond the just going after bad apples and then say we couldn’t prove anything just like the CIA IG concluded except for one torturer.

    I have maintained at least a year ago that we were at the tipping point and that the barn door was opened and the ponies and cows would not go back in. I still believe that the torture issue will expand if not in the way I have suggested in other ways. I don’t think it can be contained although with so many issues on Obama’s plate and an no ethics Repug opposition it is hard to know when the expansion will happen. Appointing any kind of prosecutor no matter how limited the role is another step leading to expansion.

    You apparently believe that the M$M will be muzzled no matter how juicy the leaks. I don’t.

    • bystander says:

      I get frustrated… Yes, I know.

      I don’t buy… Yep, that’s apparent, too.

      You apparently believe… Hold it. You have no idea what I believe apart from what I’ve written. Where is your empirical evidence to refute what I’ve written? What facts would you point to?

      In addition, you have no freakin’ clue what camp I’m in, and I resent beyond measure your attempt to assign me to one.

      You asked,

      I would be very interested in your thoughts.

      And, I gave them to you. You don’t like them. You haven’t been able to refute them, but it’s clear you don’t like them.

      In my opinion, the minute the word belief enters the conversation, the conversation is done.

      • rmp says:

        When I use the qualifier apparently I am trying to convey that I am making an assumption and I am not certain of what you believe and am trying to learn more. Without the qualifier your complaint is justified in my opinion.

      • cocktailhag says:

        I didn’t really like RMP’s choice of words, either, bystander, but I don’t think he meant them the way you think he did. Sadly, I think your “fail” assessment is all too correct; this “investigation” is exactly the opposite of what that word should mean. Like Dirigo, Ondelette, Karen, RMP, and others, I harbor hopes that this could lead to something, but such hopes could be compared to my hopes that I could buy the Seattle PI’s spinning globe and put it on the top of CHNN headquarters, with a neon martini glass around it. If wishes were horses, and all.
        Cue Beach Boys, “Wouldn’t it be nice…”

    • cocktailhag says:

      Well, RMP, there is ample evidence that the M$M will indeed be, if not muzzled, simply too bored to deal with such a tiresome, icky subject. Plenty of great stories like this one have been hiding in plain sight for years that would both make riveting television and valuable news. The chances of that happening? (Makes two circles of thumbs and forefingers and holds around eyes…)

  5. Karen M says:

    OT… but wanted to note that Froomkin’s first column is now up at HuffPost!

    • Karen M says:

      RMP: At the end of his first column, Froomkin mentions his new role at HuffPost, which will be not just as a contributor, but a bit more…

      My New Home

      As for me, this is the first of many posts in my new capacity as Washington bureau chief for the Huffington Post. Starting today, I hope to write fairly often – but that won’t be my main job anymore. I’ll also be working with a team of reporters who are redefining how Washington should be covered.

      I’ve spent the past two weeks getting up to speed on the operations over here and getting to know the extraordinary HuffPost crew. I hope you’re familiar with their work already, but if you’re not, please come to the site (and its Politics section) often from this point forward, and watch what they do.

      We’ll be putting a premium on accountability journalism, focusing relentlessly on the corrupting effect of lobbyists and money on our government, and calling out those people in the national discourse who traffic in misinformation and know-nothingism rather than argue in good faith.

      It’s an opportunity to directly encourage and shape the kind of journalism that, in my previous incarnation, I occasionally championed – but more often yearned for.

      Wish us luck. Follow our work. Come back often. I’m glad to be here.

      [emphasis is mine]

      • rmp says:

        I got, and you may have also, the following email from Dan:

        I just wanted to let you know that I’m writing again!

        As you may have heard, not long after The Washington Post and I parted ways, I accepted a new job as Washington Bureau Chief at The Huffington Post. I’ve spent the last few weeks getting up to speed on how things work around here.

        Today I’m publishing my first piece for HuffPo: Our Fuzzy President Is About To Come Into Focus.
        Here’s the URL: http://www.huffingtonpost.com/_255524.html

        I’ll be writing occasionally from this point forward. I’ll send out alerts to this list for a while – but I would encourage you to either subscribe to my new RSS feed or sign up with Huffington Post to “get e-mail alerts from this reporter”. Those links are in the box at the top of every post, near my little mugshot. Here’s a direct link to my new RSS feed:
        http://www.huffingtonpost.com/feeds/reporting/dan-froomkin/news.xml

        I’d also like to encourage you to visit Huffington Post regularly, to look for the work of the Washington bureau and its reporters Sam Stein, Ryan Grim, Arthur Delaney and Jason Linkins.

        And allow me to thank you all once again for your supportive words over the last month. They meant the world to me.

    • Karen M says:

      On the other hand, from Jay Ackroyd on Twitter:

      @JayAckroyd Key is that GOP goal is delegitimizing ALL citizen communication http://bit.ly/3M3du5 In the eyes of elected officials and the media.

  6. Mona says:

    Just want to say I continue to read here, and get a great deal from hag and rmp’s posts. I just don’t comment much here or at Glenn’s (or post at my blog lately) due to some frustrating but not that serious medical problems, and the crazy-making effects of the indicated meds.

    Anyhoo, keep going guys!

  7. heru-ur says:

    rmp,

    I like this post, it may be one of your best lately. But you left a bold tag open someplace I think.

    If we build a world dominating military machine, paid for on the backs of the working poor, and then station the power forward all over the world, we will use the military. It is guaranteed.

    Now, the next item is that after you use the military, no matter the stated purpose, you will begin to brutalize the civilians in those foreign lands. You will have all sorts of horrors, and I find raining white phosphorus or napalm out of the sky to be even worse than torture no matter what Glenn tries to peddle. However, war and torture have always gone hand in hand — it is the history of war.

    Now, once we are brutalizing the foreign civilians in multitudinous ways, we will begin to see a coarsening in the way the government treats its own civilians: ‘there is a war on after all’ they always say.

    We have seen this play out over and over again since at least ’45. I am gobsmacked that Americans refuse to see what is just there in front of their face. Obama is protecting the CIA (and others) because he agrees that it is a, perhaps regrettable, part of war.

    If you support the war machine, you support the inevitable byproducts of the war machine. How hard is that to see?

    • cocktailhag says:

      You’re definitely correct, Heru. War is made possible only by dehumanization of the “other,” and the definition of “other” is always expanding. Call it the Niemuller Maxim: Once a tactic can be justified for use on the “worst of the worst,” it will soon be used broadly.

      • heru-ur says:

        This coarsening that I spoke of is part of the topic at UT just now. Digby did a good job on TASERs and their abuse by the cops. Since Glenn is gone it seems many of the usual “notice me” types are holding it down and the conversation has stayed on the topic. There have been some moving personal stories.

        We talk all the time about the poor sods the military/CIA are abusing and we talk little about the abuse of the normal USA citizens going on all day, every day here in the USA. Why is that? How among us has not come to realize that our “justice system” is a gigantic torture machine as it is.

        Which is worse, sleep deprivation or prison rape? I don’t know, but both are method of the sadistic state.

  8. dirigo says:

    One could say, or suggest, there is the hint of a low-level attitude of tyranny in some remarks made by police officers after the flap between Professor Gates and Sgt. Crowley in Cambridge.

    Take race out of it and one could hear police officers suggesting they had the power to issue gag orders in the street.

    I don’t think they have that authority, do they?

  9. Mona says:

    Along with Digby, Radley Balko has been screaming from the hilltops about tasers for well over a year now. This is yet another issue that needs to move out of the Intertubes and into the MSM — I know, and it will snow in hell.

  10. I would argue this from a slightly different angle. A guilty secret is, in fact, no secret at all. Everyone knows that extra-judicial punishments, including murder, are a commonplace of supposedly civilized societies. 007 came to us in the guise of popular entertainment, but it was quite explicitly a license issued to professional killers by a secret agency of government which had no interest whatever in the guilt or innocence of those sanctioned by the license-holders. We were amused, even though we knew very well that such licenses, and such people, existed outside popular entertainment.

    The explicit justifications for such things were the same then as they are now — civilization is fragile, and it has many enemies. If it’s to continue to exist at all, we have to do bad things to its enemies, swiftly and with no remorse. Remorse, along with guilt and innocence, have no meaning outside the palisades.

    I’m with Heru on this one. You can believe in such a soothing fantasy only so long as you can avoid being singled out as the enemy. Ask the Jews in Germany, black people in our cities, or Muslims anywhere in the Western world. If you can find one of the few left, ask a Lakota.

    We know, and we do nothing. If we were to be rigorous about prosecutions for such crimes, we might very well wake up to find ourselves in the dock.

  11. Meremark says:

    Timberman, you raise an important point, in semantics, which goes to show bystander’s deceptive dodging dance to pull eyes off the prize.

    In the assignment and responsibilities of a Special Prosecutor, the purpose is to prosecute the crime, NOT some certain person(s).

    So, T-man, the point is exactly “to be rigorous about prosecutions for such crimes.”

    A crime is alleged to have been committed, and investigation seeks to find who facilitated, assisted, participated, or otherwise is involved for the crime. Under statute this means RICO-like treatment, charging an organized criminal ‘enterprise,’ and so charging a conspiracy. About which the law rules equal guilt of the lowly pawn as awfully guilty as of the king of the organization.

    When the Special Prosecutor is appointed it is to go after whoever is discovered in the crime, and names or titles cannot be set aside or precluded from investigation in advance because such particularity is an admission of knowing guilt, of knowing ahead of investigation who is going to be eventually found in the organization for the criminal operation, unless given and necessary to have preliminary exclusion … from finding guilt … which must exist there in order to ask exemption for it.

    If they haven’t done anything wrong, what have they got to hide?

    • ondelette says:

      Then what do you make of the alibi of the lowly pawn who did not exceed the regulations? I am unfamiliar with the process in the CIA, but in the military, the process for disobeying a lawful order is to inquire up the chain of command as to the lawfulness of the order first. If someone did that, and was told it had been examined by experts in international and national law and found lawful, how should they be treated? Are you saying that the UCMJ should be re-written, and if so, what specific changes would make it genuinely comply with CAT? I believe that the answer to this question requires the equitable prosecution of people for whom there is a suspicion of guilt, and the possibility of acquital. No investigation and prosecution that ends in only guilty verdicts can question the implementation of CAT in U.S. statutes. Without that questioning, no review of society’s role in the tortures is likely. Because the problem is our society’s perception of information gathering, trials, and punishments. As it is in any democratic society that resorts to torture, if Rejali is to be believed.

      • It may be considered an abstruse point by some, but what you’ve said here is exactly correct, and extremely important. If the law is to be an instrument of justice, rather than merely a gloss on power, we have to prepared to confront honestly those situations in which justice is seen to be at risk under the law. As you very rightly point out, such situations will never arise so long as every prosecution is structured to produce a foregone conclusion.

        It’s too bad you’re not a lawyer, or a judge. Our jurisprudence would be the better for it, I believe, and so would our politics.

        • rmp says:

          I see our justice system as more designed to win than to find justice. The goal is not to find an outcome that is best for all sides, but one where you either win or lose. Our win or lose process makes it harder to determine a fair and just outcome.

          I see your statement of “prepared to confront honestly those situations in which justice is seen to be at risk under the law,” as profound and our win or lose system makes it hard to bring those cases to a court of law.

          As always happens, we get injustice from faulty systems more than from human weakness or ego.