The embarrassing revelation in a recent Washington Post story that Attorney General Eric Holder “did not read detailed memos that prosecutors drafted and placed in files to explain their decision to decline prosecution” of CIA interrogators is just another example of a seriously flawed decision-making process in the Obama Justice Department.
I worked directly for three assistant attorneys general and two acting AAGs during my years in the Civil Rights Division. Whenever a memorandum on a proposed criminal prosecution or civil investigation was sent up to the front office for approval, the AAGs for whom I worked always read it. Referred to in DOJ nomenclature as “j-memos” (short for “justification memos”), these documents summarized all of the relevant facts, outlined the applicable statutes and case law, and detailed the recommendation of the career lawyers. We did not always agree with the legal analysis contained in those memos. But none of the AAGs with whom I served would have considered making a decision without first reviewing the documents. Indeed, they would have considered a failure to do so as bordering on malpractice.
How things have changed. A government source (probably one of Holder’s staff) asserts in the same Post story that Holder “was briefed on some of the details by advisors.” While it may be a common practice for the attorney general to be briefed on case matters rather than read the original documents produced by DOJ line prosecutors, such indirect attention is completely insufficient in a case as sensitive and precedent-setting as the CIA-interrogation probe. Holder is a longtime veteran of the department. At different times in his DOJ career, he would have learned the value of these memoranda.
What makes this revelation even worse is an earlier news report that Holder “cleared his schedule and, over two days, holed up alone in his Justice Department office” to read the CIA inspector general’s classified report on interrogations — twice. Yet Holder apparently could not find the time to read his own prosecutors’ analysis of the facts, the evidence, the applicable law, and their recommendations to decline prosecution.
When a prosecutorial decision will affect both the national security of the United States and the personal lives U.S. intelligence officers — and when that decision would reverse the considered judgment and definitive call of a prior attorney general — the attorney general has a heightened obligation to review all of the facts and applicable laws himself. This is especially true when the decision in question is whether to reopen a closed prosecution from a prior administration. As seven former CIA chiefs said in a letter to President Obama, “[i]f criminal investigations closed by career prosecutors during one administration can so easily be reopened at the direction of political appointees in the next, declinations of prosecution will be rendered meaningless.” They further pointed out that the “men and women who undertake difficult intelligence assignments in the aftermath of an attack such as September 11 must believe there is permanence in the legal rules that govern their actions.” If our CIA officers on the front lines must fear that the next administration might change the rules and either prosecute them or subject them to financial ruination, the strength and security of the entire country will suffer.
The fact that the attorney general made such an important decision without reviewing the detailed prosecution (declination) memos prepared by career prosecutors at Main Justice and in the U.S. Attorney’s Office for the Eastern District of Virginia raises serious questions about the deliberative process at Justice. When grave issues of national security and the personal freedom of American citizens are at stake, few will be happy to know that the most relevant documents went unread by the man who made the final decision.
In June of 2008, while campaigning for the election of President Barack Obama, Attorney General Eric Holder promised the leftist American Constitutional Society: “We owe the American people a reckoning.” Yesterday, Holder escalated his “reckoning” campaign by appointing a prosecutor to re-investigate nearly a dozen CIA interrogators and contractors alleged to have abused detainees in 2002 and 2003. This is nothing more than an all out war on the CIA by the left at a time when the President desperately needs to shore up trust with his base in the face of his declining poll numbers.
Already the White House is at pains to create the perception of distance between Holder’s announcement and President Obama’s wishes. Deputy press secretary Bill Burton told reporters from Martha’s Vineyard yesterday: “ultimately, the decisions on who is investigated and who is prosecuted are up to the attorney general. . . . The president thinks that Eric Holder, who he appointed as a very independent attorney general, should make those decisions.” But make no mistake. Holder works for Obama. Holder’s priorities are by definition Obama’s priorities. And the facts make it clear that this “new” investigation is nothing more than a political witch hunt:
No New Information: Depending on where you get your news you may hear today that Holder’s decision is based on “new details” about the CIA interrogation program. This is false. While the release of the 2004 CIA inspector general report has exposed some new information to the public, Holder read the report months ago. Both the Department of Justice and the leadership of the Congressional intelligence committees have had the full report since 2004, and the full committees have had the report since 2006. The only thing that has changed since both DOJ and Congress received the full report is the 2008 presidential election.
Career Justice Lawyers Already Investigated: Not only has the Department of Justice been in possession of CIA IG report since 2004, but the DOJ’s career, not political, prosecutors have already examined that document and other incidents from Iraq and Afghanistan for legal accountability. CIA Director, and former President Clinton Chief of Staff, Leon Panetta assured CIA employees yesterday that the DOJ’s career prosecutors “worked carefully and thoroughly, sometimes taking years to decide if prosecution was warranted or not. In one case, the Department obtained a criminal conviction of a CIA contractor. In other instances, after Justice chose not to pursue action in court, the Agency took disciplinary steps of its own.”
Program Worked: From the 2004 CIA IG report: “The detention of terrorists has prevented them from engaging in further terrorist activity, and their interrogation has provided intelligence that has enabled the identification and apprehension of other terrorists, warned of terrorists plots planned for the United States and around the world, and supported articles frequently used in the finished intelligence publications for senior policymakers and war fighters. In this regard, there is no doubt that the Program has been effective.”
A Politically Motivated Re-Investigation Can Only Harm National Security: In yesterday’s Washington Post, CIA General Counsel under the Clinton administration Jeffrey Smith explains how Holder’s reopened investigation harms our national security: “Prosecutions would set the dangerous precedent that criminal law can be used to settle policy differences at the expense of career officers. … Prosecuting CIA officers risks chilling current intelligence operations. … their colleagues will become reluctant to take risks. What confidence will they have when their senior officers say not to worry, “this has been authorized by the president and approved by Justice”? … Prosecutions could deter cooperation with other nations. It is critical that we have the close cooperation of intelligence services around the world. … The key to this cooperation is the ability of the United States to be a reliable partner and keep secrets. Prosecuting CIA officers undermines that essential element of successful intelligence liaison.”
New Interrogation Guidelines Inadequate To Protect Nation: Yesterday the Obama administration also announced that their own new program for future interrogations would be controlled by the Army Field Manual. A senior administration official tells Politico, “The practices and techniques within the Army Field Manual are currently used by law enforcement and provide adequate and effective means of conducting such interrogations.” This is just not true. Across the country law enforcement official are allowed to lie to witnesses all the time in order to extract a confession. Under the Obama administration’s new guidelines we could only tell al Qaeda the truth.
It is no accident that the United States has been free of al Qaeda attack since 9/11. The CIA played a vital role in that accomplishment. President Obama has repeatedly assured the American people he wants to “look forward, not back” on CIA interrogations. It is time he lived up to this promise.
Quick Hits:
- The Obama administration will continue the Bush administration’s practice of sending terrorism suspects to third countries for detention and interrogation.
- President Obama will reappoint Ben Bernanke as his Federal Reserve Chief.
- According to a new report, homeowners who fall behind on their mortgage payments have become much less likely to catch up again.
- Only 17 of the 58 Democratic senators — less than a third — are holding town halls back home, according to an informal POLITICO survey of every Democratic office in Congress.
- The Democratic National Committee and its “grassroots” arm, Organizing for America, are planning to hold more than 500 events between Wednesday and September 8th.