Holder’s Hole Card

Human-rights activists, GOP senators and U.S. intelligence officials have been preoccupied for weeks over what actions Holder might take to address controversial conduct by the Bush administration. The anxiety among some U.S. intelligence officers was ratcheted up considerably two weeks ago when Holder, in his confirmation hearing, flatly told the Senate Judiciary Committee that he viewed "waterboarding" as "torture."

Senior Bush White House officials and conservative lawyers at the Justice Department approved the CIA's use of waterboarding against three "high value" Al Qaeda suspects. All told, the CIA used various "enhanced" interrogation techniques against 33 detainees, according to an interview Vice President Dick Cheney gave to the Washington Times shortly before he left office.

"Once Holder said that [waterboarding is torture] I got nervous," said one lawyer who represents a CIA official involved in the interrogation program, who asked not to be identified talking about a legally sensitive matter. "If he says it was torture, he has to do something."

The comment also spurred follow-up questions to Holder from GOP senators. In one such exchange, Holder was asked in writing by GOP Sen. John Kyl if he believed it would be "appropriate" to investigate a government agent "and force him to incur legal fees" if that individual relied "reasonably and in good faith on Justice Department assurances that his actions are lawful."

In a response carefully vetted by Obama's White House lawyers, Holder responded that "no one is above the law. But where it is clear that a government agent has acted in 'reasonable and good-faith reliance on Justice Department legal opinions' authoritatively permitting his conduct, I would find it difficult to justify commencing a full-blown criminal investigation, let alone a prosecution."

White House aides said that Holder went no further than that in his meeting with Bond. But that leaves open the possibility of inquiries into critical questions. Among them: precisely when and under what circumstances did abusive interrogations of detainees begin? How were the Justice Department legal opinions prepared—and what went into the decisions by senior Bush administration officials to approve waterboarding as policy in the first place?

An even more relevant matter, which could well touch on all these questions: The findings of the long-running probe by Durham, the Justice Department special counsel, into the destruction of CIA tapes showing waterboarding by senior officials in the agency's Counterterrorism Center. Indeed, Holder cited that investigation in a written exchange with GOP Sen. Jeff Sessions.

That probe is important because Durham recently asserted in a legal filing that he expected to wrap up his probe "no later than Feb. 28, 2009." His legal filing argued that the Justice Department should not be forced under the Freedom of Information Act to disclose the contents of documents relating to the interrogations because it would tip off "targets and/or potential targets" to the status of his probe. The heavily redacted filing referred to the "Moussaoui phase" of his investigation—apparently a reference to allegations by defense lawyers that either Justice Department or CIA lawyers lied to a federal judge when they asserted there were no tapes of the interrogations of potential witnesses in the case against Zacarias Moussaoui, the self-confessed Al Qaeda operative arrested in the United States shortly before the September 11 attacks. (Michael Hayden, outgoing head of the CIA, said in a statement in December 2007 that the tapes were destroyed only after it was determined that they were "not relevant to any internal, legislative or judicial inquiries." But at the time Attorney General Michael Mukasey ordered the investigation and appointed Durham as his special counsel.)

© 2009