WASHINGTON – Despite President Barack Obama’s desire to avoid revisiting Bush-era interrogations, Attorney General Eric Holder appointed a special prosecutor Monday to determine whether CIA officials or contractors should be criminally investigated for the alleged torture of terrorism detainees.
The development seems certain to reignite a vitriolic national debate over whether low-level interrogators – not high-level former Bush administration officials – should be held accountable for interrogation abuses.
The announcement came shortly after the release of a heavily censored 2004 CIA inspector general’s report that documented abuses by interrogators who exceeded even the authority granted by the Bush administration’s Justice Department to use “enhanced interrogation techniques” including waterboarding, which is considered torture.
Holder said that in appointing John Durham, a longtime federal prosecutor in Connecticut who’s also investigating the CIA’s destruction of videotapes of interrogations, he was following the recommendations of a still-secret report by the Justice Department’s Office of Professional Responsibility.
Prosecutors in Bush’s Justice Department investigated some two dozen abuse cases and prosecuted one CIA contractor. Durham will re-examine fewer than a dozen of those cases.
The White House sought to distance itself from the decision, repeating Obama’s preference to look “forward, not back” on the question of the U.S. use of torture.
“The president agrees with the attorney general that those who acted in good faith and within the scope of legal guidance should not be prosecuted,” White House spokesman Bill Burton said Monday.
“Ultimately, determinations about whether someone broke the law are made independently by the attorney general.”
Reacting to Holder’s decision, CIA spokesman Paul Gimigliano said, “The agency will, as it always has, cooperate with the Department of Justice in this latest look at previous detention and interrogation practices.”
Anticipating criticism that his decision would have a chilling effect on intelligence-gathering, Holder said the probe would be limited to determining whether interrogators used techniques that went beyond those authorized by the Bush administration, not single out those “who acted in good faith and within the scope of the legal guidance.”
“I fully realize that my decision to commence this preliminary review will be controversial,” he said, adding, “As attorney general, my duty is to examine the facts and to follow the law.”
Depending on how those guidelines are interpreted, interrogators who used even the most controversial techniques such as waterboarding could be off the hook, as could the former administration officials who authorized the interrogation methods.
The CIA inspector general’s five-year-old report describes a number of incidents in which agency employees went well beyond the guidelines that the Justice Department issued in August 2002.
The CIA inspector general’s report found that agency operatives used “unauthorized, improvised, inhumane and undocumented detention and interrogation techniques” in a program that was inadequately supervised in its early years.
Those techniques included mock executions; threats against the families of two high-value detainees; threats against a detainee by debriefers brandishing a semi-automatic handgun and a power drill; extensive sleep deprivation; and the use of a stiff brush on another detainee.
Sen. Patrick Leahy, D-Vt., the chairman of the Senate judiciary committee, said the report underscores why Congress needs to move forward with forming an independent and nonpartisan panel, “so that we can find out what happened and why.”
“Information coming out in dribs and drabs will never paint the full picture,” he said.
Republicans and some conservative groups attacked the administration for what they described as an open-ended, politicized investigation.
Senate Republican leader Mitch McConnell of Kentucky called the appointment “a poor and misguided decision.”
“The administration risks chilling our defense and intelligence community’s ability to protect us from future terrorist attacks by reopening this matter,” he said.