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DOJ investigation into terror suspect interrogations harms US national security

Steven Emerson [Founder, The Investigative Project on Terrorism]: "Attorney General Eric Holder has appointed a career Federal prosecutor from Connecticut to lead a preliminary investigation into whether criminal laws were broken by US intelligence operatives involved in post-9/11 terror suspect interrogations. In April, President Obama went to CIA Headquarters and assured the Agency's career employees that no CIA officers would face investigation or prosecution for conducting interrogations while following Department of Justice (DOJ) legal advice and policy. Whether Holder is demonstrating a degree of independence from his boss the President or is simply following backdoor directives from the White House, pursuing even a preliminary inquiry into terrorist interrogations is wrong-headed.

Holder and the administration claim this initial inquiry is simply an effort to discover if there is evidence that CIA and other US intelligence officers may have gone beyond the scope of what was then legally permissible under policies set by the Department of Justice under the Bush administration. Those policies, set forth in several previously classified memos that were made public by the Obama administration, were the result of a multi-tiered and complex legal review by high-level government attorneys from the DOJ and the Intelligence Community.

Ironically, in an April 16th press release issued by the DOJ announcing the release of the interrogation memos, the DOJ seemingly closed the door on any investigation or prosecution of officials involved in the interrogations.

Holder has also stressed that intelligence community officials who acted reasonably and relied in good faith on authoritative legal advice from the Justice Department that their conduct was lawful, and conformed their conduct to that advice, would not face federal prosecutions for that conduct.

The Attorney General has informed the Central Intelligence Agency that the government would provide legal representation to any employee, at no cost to the employee, in any state or federal judicial or administrative proceeding brought against the employee based on such conduct and would take measures to respond to any proceeding initiated against the employee in any international or foreign tribunal, including appointing counsel to act on the employee's behalf and asserting any available immunities and other defenses in the proceeding itself.

To the extent permissible under federal law, the government will also indemnify any employee for any monetary judgment or penalty ultimately imposed against him for such conduct and will provide representation in congressional investigations. "It would be unfair to prosecute dedicated men and women working to protect America for conduct that was sanctioned in advance by the Justice Department," Holder said.

This April 16 press release, and the purported policy noted therein, should have been the end of this matter. Yet four months later, the Attorney General launched the current "preliminary" inquiry. Holder claims the scope of the investigation is to learn if any intelligence officers may have gone beyond the scope of what the memos authorized. But a recently released CIA Inspector General report covering interrogations from September 2001 to October 2003 clearly indicates that interrogation activities were monitored and documented. The terrorist interrogations were not conducted in a rogue cowboy-style environment, but rather were limited actions conducted by highly trained professionals whose actions were subject to close internal review.

In fact, one intelligence contractor conducting interrogations was found to have crossed the line and was prosecuted and convicted in 2007 for his misdeeds. In 2004, the CIA referred some 19 cases of suspected abuse to the DOJ for review and possible prosecution. While no other prosecutions stemmed from those referrals, the referral and review process itself demonstrated the agencies involved took these matters very seriously and that strong internal oversight did exist. So, if the interrogation program had significant and meaningful real time oversight that addressed suspected abuse and did properly punish at least one egregious violator, why is there a need now to reopen and renew a review process that goes in exactly the direction the Attorney General and the President said they would not go as recently as last April?

Even assuming this current preliminary inquiry discovers what prosecutors believe might be actionable evidence that some interrogators violated the law, the legalities involved make a successful prosecution potentially very difficult. Former Federal counter-terrorism prosecutor Andrew McCarthy has addressed these issues at length in National Review Online. His comments from August 11:

...the Justice Department has quietly conceded that federal law makes torture exceedingly difficult to prove (i.e., federal law ensures that the ignominious label "torture" is reserved for especially heinous, malevolent abuse). Not only must there be an infliction of extreme physical or mental suffering; the government must prove beyond a reasonable doubt that the defendant specifically intended to torture his victim. In congressional testimony, Holder himself has admitted that if a government official had a purpose different from causing extreme pain, he could not be guilty of torture even if he actually caused extreme pain.

Reacting to the potential of being investigated and prosecuted for doing what they perceived at the time to be their lawful duty to their country - a duty that frequently put their lives at risk - CIA and other intelligence personnel involved in these interrogations are reportedly seeking personal legal representation to defend themselves. This is highly reflective of the state of morale among intelligence operations officers. Their primary focus, for a long time, will be legally protecting themselves rather than effectively conducting their missions. This harms national security. The Attorney General should have followed his own directive in his department's April 16 press release: "It would be unfair to prosecute dedicated men and women working to protect America for conduct that was sanctioned in advance by the Justice Department.""

Opinions expressed in JURIST Commentary are the sole responsibility of the author and do not necessarily reflect the views of JURIST's editors, staff, donors or the University of Pittsburgh.

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