From a moral and ethical standpoint, there never has been any question that the torture of terrorism suspects under CIA supervision was wrong. From a legal standpoint, there never has been any question that it violated domestic and international law. But for the Bush administration, which encouraged these abhorrent practices and then went to extraordinary lengths to deny and then justify the their use, it all was in the service of an agenda in which the fundamentals of American democracy were trampled.
And so after seven months of sending mixed signals, the White House yesterday sent a few more not coincidentally timed for President Obama to be out of town on vacation.
On the one hand:
* Attorney general Eric Holder is endorsing a recommendation from Justice's once disgraced Office of Professional Responsibility to reopen nearly a dozen abuse cases and has appointed a special prosecutor, as well as further investigate John Yoo and Jay C. Bybee. These are the two key Justice lawyer who declared torture to be legal in twilight-zone opinions reverse engineers to satisfied the fevered minds of Vice President Cheney and others.
* A classified 2004 CIA report that examined the agency's treatment of detainees finally was made public in response to a ACLU lawsuit. It stated that, among other things, interrogators threatened to kill the children of one detainee amd told another that his mother would be sexually assaulted in front of him.
On the other hand:
* A number of Bush era detainee-related policies are being continued, albeit with a veneer of accountability. (More about these later.)
Holder's special prosecutor will be John Durham, who has spent the last two years investigating the illegal destruction of CIA torture videotapes. His mandate will be relatively narrow: To look at whether there is enough evidence to launch a full-scale criminal investigation into any aspects of the labyrinthine case.
The AG's decision is at odds with Obama's oft-stated view that he would rather move forward rather than jeopardize his ambitious policy agenda. Obama says that the decision was the AG's to make, but you can be sure that the green light was cleared first with the Oval Office.
The decision also poses problems for the CIA, and agency Director Leon Panetta said in an e-mail to employees yesterday that he would "stand up for those officers who did what their country asked and who followed the legal guidance they were given."
* * * * *The abuses detailed in the OPR report primarily took place at Abu Ghraib prison in Iraq and in Afghanistan and generally involved lower-level detainees, and it is very important to note that some of those abuses even go beyond what Yoo and Bybee said was okey-dokey.
Among the more notorious cases being reopened are those of Manadel al-Jamadi and Abd al-Rahim al-Nashiri.
Al-Jamadi, a suspect in the bombing of a Baghdad Red Cross office, died in 2003 in CIA custody at Abu Ghraib after being captured by Navy Seals and given what is known as a "Palestinian hanging" in which a prisoner's hands are secured behind his back and suspended by his arms. CIA officials paid a local taxi driver to take away Al-Jamadi's body, while a bloodied sandbag hood and other evidence was destroyed.
Al-Nashiri, suspected as the mastermind of the 2000 bombing of the Navy destroyer USS Cole, was initially held at a black site where he was waterboarded and threatened with a handgun and a power drill if he did not cooperate. Al-Nashiri confessed to his role and in December was belatedly charged before a military commission at Guantánamo Bay. The charges were dropped in February pending an Obama administration review of all Guantánamo detentions.
In another case, a gun was fired in a room next to a detainee who was being questioned to convince him another detainee had been killed. Perhaps not surprisingly, threats of summary execution are against federal law.
The OPR report had been five years in the making, obviously was not a priority and had been bitterly criticized by Bush lapdog Michael Mukasey, the administration's third and arguably worst AG insofar that he had been a federal judge and should have known better.
When Holder took over, he cleaned house at OPR and appointed veteran federal prosecutor Mary Patrice Brown to head up the office, which in one of its most notorious Bush era actions concluded that although Monica Goodling had violated federal law by screening job applicants for career positions at Justice based on their political and ideological affiliations, as well as whether they might be gays or lesbians, her resignation "had been punishment enough."
The reopened cases may be difficult to prosecute if evidence was mishandled and witnesses and victims are unreliable or cannot be located.
A team of Justice lawyers investigating claims of CIA abuses toward the end of the Bush administration recommended seeking an indictment in only one instance: CIA contractor David Passaro, who was convicted of assault, but not murder, for beating a detainee at a military base in Afghanistan with a metal flashlight who died a short time later. Passaro's sentence was affirmed earlier this month by an appeals court.
There a big reason to not hold one's breath over even yesterday's positive developments, as well as a dash of hopefulness and a very big gripe.
The reason: As noted here, American troops tend to get a pass when it comes to bad stuff while CIA operatives are expected to reach for the old Black & Decker and do other really bad things.
The hopefulness: It seems to me that private contractors who were key players in the torture of suspects might be especially vulnerable, including Passaro and these two monsters.
And the big gripe: While it now seems possible that some of the operatives who were goaded on by important people with big offices may become fall guys, the Cheneys will skate and the American people won't give a rat's ass.* * * * *Meanwhile, in related news:
* Just hours before the OPR report was released, Obama approved creation of a new elite team to question key terror suspects. The purpose is to bring together the different groups, including the CIA, military and FBI, that have handled interrogations.
* To the chagrin of human-rights groups, it also was announced that third-country renditions will continue, but supposedly with greater oversight to prevent abuses.
* In a reversal of Pentagon policy, the military (but not the CIA) is notifying the International Committee of the Red Cross of the identities of terrorism suspects being held at militants who were being held in secret at black sites in Iraq and Afghanistan.
The military had argued that disclosing details about detainees at the secret camps could tip off other militants and jeopardize counterterrorism missions.
The most famous of these America's Disappeared was Ibn al-Shaykh al-Libi, whose false confession about a link between Al Qaeda and Saddam Hussein was induced by torture methods that included a mock burial. Al-Libi is believed to have died earlier this year in Libya.
Meanwhile, the most anticipated report of all was not released.
That's the long-awaited report from Justice's Office of Responsibility that is said to conclude that at least Yoo and Bybee violated their ethical duties by producing legally fallacious conclusions. In other words, in bad faith.