NEWSWEEK: Sources say Holder "seriously considering" outside counsel to investigate torture

HopeOverFear

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Sun Apr-19-09 11:34 PM
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NEWSWEEK: Sources say Holder "seriously considering" outside counsel to investigate torture

The real world is never as neat as the imagined one. Political campaigns, like futuristic parables, are a kind of make believe. Running for president, Barack Obama was able to denounce the torture tactics the Bush administration used and to declare, "If crimes have been committed, they should be investigated." But after his election, Obama said he wanted his administration to look forward, not backward. If only it were so simple. Last week Obama�over the CIA's bitter opposition�permitted the release of Justice Department documents spelling out in great detail the enhanced interrogation techniques used by the CIA and permitted by Justice Department lawyers. That decision alone was one of the hardest the new president has had to face, say his aides.

But the Obama administration is not off the hook. Though administration officials declared that CIA interrogators who followed Justice's legal guidance on torture would not be prosecuted, that does not mean the inquiries are over. Senior Justice Department lawyers and other advisers, who declined to be identified discussing a sensitive subject, say Attorney General Eric Holder Jr. is seriously considering appointing an outside counsel to investigate whether CIA interrogators exceeded legal boundaries�and whether Bush administration officials broke the law by giving the CIA permission to torture in the first place. Even if Holder takes a pass, Sen. Patrick Leahy, chairman of the Senate Judiciary Committee, is still pushing for a "truth commission." In a democracy, the wheels of justice grind on�and the president, for good reason under the rule of law, does not have the power to stop them.

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After several intense cabinet meetings, Obama appeared to back down and go along with a Panetta proposal to heavily "redact"�black out�all references to specific interrogation techniques, say the administration sources. But this would make the release meaningless, argued others, and Obama began to swing back again. Panetta had one ally, John Brennan, a former agency official who is now Obama's chief counterterrorism adviser. But Adm. Dennis Blair, the national intelligence director, backed a more complete release, and so did Secretary of Defense Robert Gates, a Bush holdover (and former CIA director). In the end, Obama approved the disclosure of the documents, along with a strongly worded statement that agency professionals "who acted reasonably and relied upon legal advice from the Department of Justice" will be held blameless.

"As a practical matter, it's over�nobody is going to get prosecuted," says Robert Bennett, the Washington lawyer whose clients include Jose Rodriguez, the former chief of the CIA's clandestine service, who has been under investigation for his November 2005 decision to destroy 92 videotapes showing the interrogation of Abu Zubaydah. But what if evidence emerges that CIA officials (or contractors, who actually conducted most of the interrogations)went beyond the boundaries that the Justice Department erected? The CIA has consistently denied wrongdoing, but an intriguing footnote to one of the memos says that an internal CIA investigation found that there might have been "unnecessary use of enhanced techniques" against one Qaeda suspect. The memos released last week would be comical if they weren't so tragic about the level of legal hairsplitting. In the case of Abu Zubaydah, the Justice Department lawyer instructed that as long as the CIA did not tell him anything about the insect, and the insect was non-stinging, "the insect's placement in the box would not constitute a threat of severe physical pain or suffering to a reasonable person in his position." Just how a lawyer sitting in his office in Washington, D.C., would know what a "reasonable person in his position" might think is unclear.