Attorney General Eric Holder's decision to name a career prosecutor to investigate alleged CIA interrogation abuses would seem to fulfill a dramatic pledge he made last year when he was promoting the election of Barack Obama. "We owe the American people a reckoning," Holder said in a much-quoted speech that blasted the excesses of the Bush administration in its prosecution of the war on terror.
But while Holder's move in choosing John Durham to probe agency abuses has roiled the intelligence community and infuriated Republicans on Capitol Hill, it is far from clear that such a "reckoning" will ever come. The investigation Holder has directed Durham to conduct is sharply circumscribed. It won't involve the conduct of senior Bush officials who approved waterboarding and other "enhanced interrogation" techniques. In a statement Monday, Holder said it won't endanger any CIA operatives who relied "in good faith" on controversial Justice Department memos that gave the green light to such practices.
Instead, it will involve a "review" of "less than a dozen" cases of alleged abuse by individual CIA operatives and contractors that took place years ago, according to a senior official who asked not to be identified talking about what is about to become a criminal investigation. The operatives are alleged to have violated the letter, if not the spirit, of those Justice Department memos. But Justice Department officials acknowledge that Durham's review may never result in any prosecutions. Indeed, virtually all of them were previously examined by a special Justice Department task force and rejected for prosecution due to a lack of witnesses and evidence. "These are hard cases," said the senior official.
This will hardly satisfy human-rights advocates and others who say the startling alleged abuses unveiled Monday with the release of a long-suppressed CIA inspector general’s report require a far more fundamental probe of how the U.S. government lost its moral compass in the aftermath of the September 11 terror attacks.
"Simply anemic," said Anthony Romero, executive director of the ACLU, about the scope of the new Justice probe.
"If this ends with the prosecution of a few low-ranking people who crossed the line of the fine print of the Justice memos" while leaving high-ranking officials at the CIA and the White House untouched, "then it will be worse than nothing at all," added Tom Malinowski of Human Rights Watch, a group that has long advocated a more sweeping probe than the one Holder has ordered.
Certainly, it is not hard to see why Holder felt he had to take some action. The attorney general said he tapped Durham in part because of a separate report (not yet made public) by the Justice Department's ethics office. That report recommended he take a new look at the abuse cases; some are believed to involve the gruesome deaths of detainees in custody in Iraq and Afghanistan. And the CIA inspector general's report revealed new evidence of alleged misconduct that is likely to disturb many Americans.
CIA interrogators told 9/11 architect Khalid Sheikh Mohammed that they would harm his family, the report states. If anything else happens in the United States, "We're going to kill your children," one questioner told KSM, according to the report. Another detainee, Abd al-Rahim al-Nashiri, was led to believe that female members of his family would be raped. "We could get your mother in here," an intelligence officer told Nashiri, according to the report. The officer spoke to Nashiri in the Arabic dialect of a Middle Eastern country (the identity of which was blacked out) that was widely believed to use interrogation techniques that involve "sexually abusing female relatives in front of the detainee," the report states.
As NEWSWEEK first reported last week, Nashiri was also threatened with a power drill and a semiautomatic handgun in an effort to frighten him. In addition, the report says that agency interrogators smoked cigars "and blew smoke in Al-Nashiri's face," and yanked him up while he was shackled in ways that raised concerns that his arms might be dislocated.
But these and other alleged abuses documented in the report were first disclosed to the Justice Department by the —CIA inspector general five years ago—and never went anywhere. Indeed, some of what CIA Inspector General John Helgerson concluded were excesses were endorsed by the highest levels of Justice. Helgerson's report, for example, questioned "the repetitive use" of waterboarding, the controlled drowning technique used on Khalid Sheikh Mohammed 183 times.
But after Helgerson questioned whether such repetitive waterboarding exceeded what had been authorized by the Justice Department legal memos, he was informed by the CIA general counsel that he was wrong. The attorney general at the time, John Ashcroft, "acknowledged he is fully aware of the repetitive use of the waterboard and that CIA is well within the scope of the DOJ opinion and the authority given to CIA by that opinion," the report states. "The Attorney General was informed the waterboard had been used 119 times on a single individual."