UPDATE, 5/06: The Justice Department’s Office of Professional Responsibility (OPR) has completed a 220-page report looking into possible ethics violations by Jay S. Bybee, John C. Yoo and Steven G. Bradbury—the three principal authors of the Bush administration’s legal memoranda that gave a green light to the use of classic torture techniques. According to one Justice source who has read the report, its conclusions are “devastating” and contrary to the New York Times, criminal charges aren’t off the table—Attorney General Eric Holder just has to make up his mind. READ MORE HERE
On Sunday, White House Chief of Staff Rahm Emanuel, appearing on ABC’s This Week, underscored that President Obama had promised that CIA agents who acted in reliance on Bush-era Justice Department memoranda approving since-repudiated torture techniques would not face criminal investigation or prosecution. Then he went one step further, stating “those who devised the policy, he believes that they were—should not be prosecuted either.” A few hours later, White House Press Secretary Robert Gibbs reiterated Emanuel’s remarks as official policy. But during the course of the day on Tuesday the White House appeared suddenly to shift gears. President Obama, responding to a reporter’s question, declared that he was not prejudging a possible criminal investigation or prosecution of "those who formulated those legal decisions" behind the interrogation methods. What happened?
"[Rahm Emanuel] described it in a way that clearly suggested that political judgment was driving the entire process," one senior Justice official told me. "It was depressing and amateurish."
Members of the White House press corps struggled to explain the shift, many of them suggesting that Obama was pandering to his political base. But the winds of change blew in from an address just down Pennsylvania Avenue. The Daily Beast has learned that senior Justice Department lawyers were “incensed” at the Emanuel and Gibbs statements, as one put it—not because they disagreed with Obama’s apparent opposition to an investigation and prosecution, but because the statements violated well-established rules separating political figures in the White House from decisions about active criminal cases. The statements were viewed as a frontal assault on the autonomy and independence of the criminal-justice system. “Emanuel got far ahead of the process and described it in a way that clearly suggested that political judgment was driving the entire process,” one senior Justice official told me. “It was depressing and amateurish.”
Now the White House misstep may in fact be propelling the process in the opposite direction. Another Justice Department official observed, “The department is now in the process of making some very tough decisions about what to do with this extremely complex and difficult matter. Emanuel’s statement was unfortunate, because now if the attorney general decides against appointing a special prosecutor, people are going to believe that this was a politically dictated decision. The only clear way out of this bind may now be to do what the critics suggest and appoint a special prosecutor.” Demands for the appointment of a special prosecutor have been proliferating in recent days following the release of the torture memoranda on April 16.
The demand for accountability gained an additional influential voice on Tuesday with a statement issued by Senator Carl Levin (D-MI), chairman of the Armed Services Committee. “I have recommended to Attorney General Holder,” he said, “that he select a distinguished individual or individuals—either inside or outside the Justice Department, such as retired federal judges—to look at the volumes of evidence relating to treatment of detainees, including evidence in the Senate Armed Services Committee’s report, and to recommend what steps, if any, should be taken to establish accountability of high-level officials—including lawyers.” Levin justifies the call for a special prosecutor on the grounds that the inquiry will inevitably need to focus on internal dealings inside the Bush Justice Department’s Office of Legal Counsel that prepared the torture memos, the Criminal Division, and the attorney general’s office. No currently serving prosecutor would have the required measure of detachment to handle such an investigation.
One of Holder’s priorities since arriving at Justice has been bolstering the department’s tarnished reputation as an independent law-enforcement agency free of political influence. During the Bush years, the department was shaken by allegations that prosecutions were brought or dropped as a result of pressure from the White House. A special prosecutor is now completing an investigation of allegations of political manipulation connected with the Bush administration’s decision to dismiss nine U.S. attorneys who were judged to be insufficiently zealous in pursuit of politically directed targets. Holder recently appointed the department’s senior ethics expert, Marshall Jarrett, to head the Executive Office of U.S. Attorneys, as a response to these concerns.
International developments also complicate the Justice Department’s handling of the matter. In an interview with the Austrian newspaper Der Standard on Sunday, the United Nations Special Rapporteur on Torture Manfred Nowak sharply condemned reports that Obama had decided against an investigation of allegations of torture involving the CIA. “Obama has violated international law,” Nowak stated, because the Convention Against Torture mandates a criminal inquiry be undertaken whenever there is credible evidence that torture occurred.
International-law experts within the Justice Department recognize that Nowak’s analysis is correct with respect to a criminal investigation, although they do not appear to share his view that a prosecution is mandated. They take the view that the Convention preserves the full prosecutorial discretion of a domestic prosecutor, who would be able to collect the available evidence and decide whether to prosecute on the basis of domestic law, including prosecutorial guidelines and factors such as how compelling the evidence is, the likely reaction of a jury, and the availability of affirmative defenses—such as reliance on legal memoranda of the Justice Department. Still, they agree that the failure to investigate the public reports of torture is impossible to reconcile with the United States’ obligations under the Torture Convention.
Finally, the pending criminal case in Spain targeting the Bush Six—former administration officials implicated in setting the torture policy—adds another complexity. Spanish prosecutors, who opposed the prosecution of the case after the Spanish attorney general intervened in opposition, told State Department officials that the Spanish case would likely be suspended if the Justice Department were to take up an investigation. A decision by Holder to open a probe would therefore likely protect the Bush Six from prosecution overseas.
On April 21, Levin declassified the Senate Armed Services Committee’s exhaustive study of the treatment of detainees. The report lands a series of devastating blows on Bush administration claims since the Abu Ghraib scandal broke. It firmly links the abuses at Abu Ghraib to abusive interrogation practices that the administration introduced, specifically documenting how the techniques Rumsfeld approved for use at Guantánamo worked their way into the list of approved techniques in Afghanistan and Iraq as well.
It ridicules Pentagon claims that the problems were the product of a “few rotten apples.” “The record established by the committee’s investigation shows that senior officials sought out information on, were aware of training in, and authorized the use of abusive interrogation techniques,” Senator Levin said. “Those senior officials bear significant responsibility for creating the legal and operational framework for the abuses. As the committee report concluded, authorizations of aggressive interrogation techniques by senior officials resulted in abuse and conveyed the message that physical pressures and degradation were appropriate treatment for detainees in U.S. military custody.”
Obama’s initial statement that CIA agents involved in the Bush “enhanced interrogation techniques” program would not be investigated or prosecuted was taken at the Justice Department as pushing the boundaries of political involvement in criminal law. But the statement by Emanuel, seen as a distinctly political figure, was perceived at Justice as going beyond those boundaries, according to high Justice officials. Within Justice, if Holder follows the now well-articulated views of the president and his chief of staff, the fear is that the attorney general would be viewed as a political subordinate in the mold of Alberto Gonzales. Ironically, the White House pronouncements have contributed to the momentum for a special prosecutor. That development coincides with the congressional voices now being raised for such an appointment.
Scott Horton is a law professor and writer on legal and national-security affairs for Harper's magazine and The American Lawyer, among other publications.