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Obama DOJ Investigating Bush CIA

The Obama Justice Department has appointed a criminal prosecutor to look into alleged abuses of the CIA under the Bush administration.

[Attorney General Eric] Holder has named longtime prosecutor John H. Durham, who has parachuted into crisis situations for both political parties over three decades, to open an early review of nearly a dozen cases of alleged detainee mistreatment at the hands of CIA interrogators and contractors.

The announcement raised fresh tensions in an intelligence community fearful that it will bear the brunt of the punishment for Bush-era national security policy, and it immediately provoked criticism from congressional Republicans.

Legal analysts said the review, while preliminary, could expand beyond its relatively narrow mandate and ensnare a wider cast of characters. They cited U.S. Attorney Patrick J. Fitzgerald’s investigation of the leak of a CIA operative’s identity, which culminated with the criminal conviction of then-Vice President Richard B. Cheney’s chief of staff.

In a statement Monday afternoon, Holder cautioned that the inquiry is far from a full-blown criminal investigation. Rather, he said, it is unknown whether indictments or prosecutions of CIA contractors and employees will follow. Lawyers involved in similar reviews said that any possible cases could take years to build because of challenges with witnesses and evidence.

There are reasonable grounds to believe that serious crimes were committed as the Bush administration muddled through the early years of the War on Terror. A society that believes in the rule of law, then, should investigate such charges.

Doing so, especially in the person of a special prosecutor, however, opens up multiple cans of worms. First, it puts our intelligence agencies in CYA mode, making them even more skittish than normal. Second, it provides additional fodder for our enemies. Third, it opens up a rift between our law enforcement and intelligence communities.

I take Holder at his word that he intends only to find the truth and that he has no zeal for putting intelligence professionals or Bush officials in jail. The problem, however, is that these investigations take on a life of their own. Even prosecutors whose independence and judgment were previously thought beyond reproach seem to succumb to the enormous pressure to charge people with something. Otherwise, the tens of millions of taxpayer dollars they spend on their investigation looks like a waste and those who expected the investigation to yield criminal charges will never believe there wasn’t a cover-up.

Will Durham be any different?

Though a registered Republican, Durham generally is regarded as apolitical, and attorneys general from both parties — including Janet Reno, Michael B. Mukasey and Holder — have tapped him for their most difficult assignments. Hugh Keefe, a longtime Connecticut defense lawyer who has often squared off against Durham in court, called the prosecutor “the go-to guy for Justice whenever they get a hot case.”

[…]

Mark Califano, a former prosecutor in Connecticut, described Durham’s approach as “clinical.” He said Durham “very rarely” has walked away from a case without bringing criminal charges. “He likes to make cases when there is evidence there,” said Califano, the son of former Heath, Education and Welfare Secretary Joseph A. Califano Jr. “You’ve got to balance whether that kind of information exists. . . . You can’t move forward if you don’t have the evidence.”

[…]

“The thing about the U.S. attorney’s office in Connecticut is that they take the standard of proof beyond a reasonable doubt seriously in deciding whether to indict,” Keefe said. “If Durham can’t make a case beyond a reasonable doubt, he won’t indict.”

Also of interest:

Durham risked unpopularity a decade ago when he untangled questionable relationships among FBI agents, Massachusetts police and Boston mob kingpins. Ultimately, he turned over evidence that prompted a federal judge to dismiss several murder cases and he won a conviction against a longtime federal agent who had grown too close to organized crime figures. The investigation later attracted a mass audience in the Academy Award-winning film “The Departed.”

One wonders whether this will spawn a movie as well.

Related Posts:

About James Joyner
James Joyner is the publisher of Outside the Beltway, an associate professor of security studies at the Marine Corps Command and Staff College, and a nonresident senior fellow at the Atlantic Council. He's a former Army officer and Desert Storm vet. He earned a PhD in political science from The University of Alabama. Views expressed here are his own. Follow James on Twitter.

Comments

  1. First, it puts our intelligence agencies in CYA mode, making them even more skittish than normal. Second, it provides additional fodder for our enemies. Third, it opens up a rift between our law enforcement and intelligence communities.

    It seems odd to blame this on the person prosecuting crimes rather than the person that commited the crimes to begin with.

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  2. mpw280 says:

    If you thought the CIA’s actions against Bush were bad you just wait till the CIA starts to unload on Obama. Politics hath no fury like the CIA scorned. mpw

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  3. markm says:

    The problem, however, is that these investigations take on a life of their own.

    Add to that the FBI is taking some of the CIA action and there are supposedly some high level CIA types that are pretty upset with this administration…this could become a war within and i’d guess the CIA will win the information portion via accidental leaks.

    One wonders whether this will spawn a movie as well.

    How could it not???. It’s got all the ingredients for three movies.

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  4. James Joyner says:

    @Stormy Dragon The proximate cause of these things is opening up a criminal investigation, not the acts themselves. Whatever damage was done there is done.

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  5. PD Shaw says:

    In my view there are no rule of law concerns when not all of the actors, i.e. foreign detainees, are subject to our rule of law. But even if we say there are rule of law concerns, a key element of that concept is that the law stipulate clear, certain obligations so that it’s enforcement is not arbitrary and subject to shifting politics and public opinion.

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  6. Davebo says:

    Whatever damage was done there is done.

    How can you possibly say that James? Do you know what was done? If so, couldn’t you contact the prosecutor and save him a lot of time?

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  7. James Joyner says:

    @Davebo: It’s simply axiomatic. Past is past. Done is done. Unless you’re contending that the CIA is continuing these practices to this day under Obama?

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  8. Furhead says:

    I take Holder at his word that he intends only to find the truth and that he has no zeal for putting intelligence professionals or Bush officials in jail.

    Maybe I’m misreading this statement, but who else is there?

    What choice does Holder have here? He is legally required to pursue apparent wrongdoing. Just like he is required to defend DOMA even though he doesn’t personally agree with it.

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  9. Davebo says:

    It’s simply axiomatic. Past is past. Done is done. Unless you’re contending that the CIA is continuing these practices to this day under Obama?

    So we shouldn’t prosecute crimes unless we can capture, try and convict the offender prior to his committing a crime?

    Didn’t they make a movie about that?

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  10. Davebo says:

    And would this forgive and forget attitude you’ve settled on apply were we to capture bin Laden?

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  11. Steve Hynd says:

    James, proximate cause is a legal limitation on cause-in-fact. But I don’t think you’re correct in this case.

    If I set your building on fire and the fire dept. put it out, the proximate cause of any water damage might be described by my defense lawyer as the fire dept.’s actions. And yet that addresses nothing at all about my criminal act of arson, which could reasonably be expected to have such causal effects, and I know of no judge that would uphold such a denial of cause-in-fact.

    Regards, Steve

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  12. JKB says:

    The question is, were the internal control processes not handling these issues? A lot of these incidents were referred to DOJ who declined to prosecute. Will those decisions be up for review?

    An IG investigation can freeze an organization. A Special Prosecutor will cast it in concrete. From now until the end, those in, or potentially in, the crosshairs will either be preparing to defend their past actions or making decisions on new actions that are well inside the lines. Rank and file will get the message because the Staff will focus on complying with the investigation rather than their day job of getting intel.

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  13. Zelsdorf Ragshaft III says:

    but Holder is not prosecuting the New Black Panthers they have on tape committing a crime. So I guess that puts to rest the idea Holder is there to prosecute crimes. This act has politics written all over it. Obama needs a distraction after all he did say he did not want to look back but look forward. To suggest the AG acts independently of the President is to be ignorant of actuality.

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  14. Wayne says:

    This is a political motivated hack job that results in the US being at much greater risk. This opens many large can of warms. One the prosecution of former administration for political reason. Two a breakdown of trust between our foreign intelligence agencies and our Presidents for generations to come. Three impedes any future Presidents and foreign operations agency to do what is needed to protect the US.

    US laws do not apply in foreign lands. Our spies stealing secrets should not be prosecuted for stealing.

    The theory of “if they did nothing illegal then they have nothing to worry” is bogus. Going though an investigation can be punishment in itself. Investigators can especially in high profile cases result in finding a small technicality to prosecuted. Anyone remember the Plame case where no actual law was broken but they nail Scooter on a contempt charge? Then there is airing of dirty laundry in public although even if not illegal is still embarrassing. All in which puts our agencies in a CYA mode for generations instead of protecting our country.

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  15. Ugh says:

    First, it puts our intelligence agencies in CYA mode, making them even more skittish than normal.

    Feature, not bug.

    Second, it provides additional fodder for our enemies.

    I’m sure that our enemies are all up in arms about the investigation, not the actual torture.

    Third, it opens up a rift between our law enforcement and intelligence communities.

    Again, feature, not bug.

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  16. TangoMan says:

    This borders too closely to a criminalization of policy differences. We have large international sample sets of the types of politics that envelop nations that pursue tactics which criminalize the policy initiatives or execution of the policies of their predecessors.

    If the Democrats don’t think that this gambit won’t strike them, and strike them hard, the next time that the Republicans assume power, then that explains their stupidity in thinking that this is a smart, and isolated, policy initiative.

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  17. Gustopher says:

    PD Shaw

    In my view there are no rule of law concerns when not all of the actors, i.e. foreign detainees, are subject to our rule of law.

    Pardon my bluntness, but you’re either grossly misinformed, or willfully ignorant.

    We have lots and lots of laws restricting what Americans can do abroad, even restricting what they do to foreigners. From sex tourism to drug trafficking to joining the Taliban.

    Further, the people who authorized any illegal actions did so on American soil.

    The only time we have no jurisdiction is illegal acts committed by foreigners, to foreigners on foreign territory. And even then, there are lots of exceptions.

    But even if we say there are rule of law concerns, a key element of that concept is that the law stipulate clear, certain obligations so that it’s enforcement is not arbitrary and subject to shifting politics and public opinion.

    Again, grossly misinformed or willfully ignorant. There are spots where there are fuzzy boundaries of lawful and unlawful, but there are lots of spots where the boundaries are not so fuzzy.

    If we prosecuted the Japanese for doing it to our soldiers 60 years ago, and called it torture then, it’s torture now.

    Torture is wrong. It is illegal. Those who committed acts of torture, and those who authorized those acts should not escape justice because of “shifting politics and public opinion”.

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  18. davod says:

    With some of the alleged mistreatment the CIA was trying to mislead the detainee into believing he was being held by a foreign power. The threats to the family and to use the power drill were based upon techniques used by the foreign power.

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  19. davod says:

    “If we prosecuted the Japanese for doing it to our soldiers 60 years ago, and called it torture then, it’s torture now.”

    There is a bit of a difference between forcing water into the stomach of a POW then jumping on the POWs stomach, and what the CIA was doing.

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  20. PD Shaw says:

    Gustopher, the legal definition of “torture” that was introduced into American law at the end of Reagan administration, beginning of Bush I, was written in a way to provide strategic ambiguity. America would get the public relations credit of adopting the anti-torture conventions, but the prohibitions would be ambiguous enough to allow the mental interrogation tactics being developed by the CIA. Whether you find that to be a moral or immoral tactic, it violates the basic “rule of law” principle that laws are enforced with predictability and not subject to the ambiguity that permits the state to choose when to enforce them.

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  21. Wayne says:

    “We have lots and lots of laws restricting what Americans can do abroad, even restricting what they do to foreigners. From sex tourism to drug trafficking to joining the Taliban.”

    First those are laws specifically written for foreign conduct. Second can you give any examples of anyone being prosecuted for conduct on foreign soil that didn’t result in the act actually crossing onto US soil or territory? The courts very seldom rule on the constitutionality of a law unless they have an actual case to put before them. One sexual tourism case was prosecuted and that was on actions actually taken in New York to promote foreign sex travel. Espionage is a special case.

    Can you be prosecuted for using drugs in Amsterdam? No.

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  22. odograph says:

    I think it’s a little early to concentrate on the investigation, rather that the crime. It’s more than a throw-away line to say enforcement is a necessary component of any legal system.

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  23. Davebo says:

    Second can you give any examples of anyone being prosecuted for conduct on foreign soil that didn’t result in the act actually crossing onto US soil or territory?

    Does this guy ring a bell?

    One count of supplying services to the Taliban.
    Conspiracy to contribute services to Al Qaeda
    Contributing services to Al Qaeda
    Conspiracy to supply services to the Taliban

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  24. Wayne says:

    Davebo
    As I already pointed out “Espionage is a special case”. This would fall along that line. Perhaps I didn’t explain myself enough in the effort to be concise. Yes laws can be pass to outlaw actions that take place on foreign land but not all laws apply to foreign lands. Those laws are specifically pass for that purpose and are almost always very constraint. The UCMJ cover military personnel worldwide but does not apply to all US or world citizen. Murder is against US law but if a US citizen travels to Mexico and kills someone, he will not be tried in US courts for murder. He may be extradited to Mexico so they can but that is not the same.

    Have you any other examples outside of espionage types?

    Can you point any laws that the CIA violated and please keep in mind jurisdiction?

    Also Presidents have the ability to suspend law. Lincoln suspends habeas corpus and he is not the only President to have suspended laws. There have been many instances of Presidents circumventing “typical or Normal laws “such as driving though stoplights while in a motorcade. Yes that example is a mundane one but there are instances such as using federal troops for domestic law enforcement which are not. If they greatly abuse that right then there is a process to remove them from office. Unfortunately that process has been abused for political reasons than valid ones.

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  25. davod says:

    I read something earlier this year which said that Obama retains the right to authorize enhanced interrogations (Sorry, I cannot find the article). The article was quoting an unnamed White House source.

    Has anything changed.

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  26. davod says:

    Re my earlier postb regarding Obama and enhanced interrogation.

    This from MYDD on May 21, 2009 Obama reserving the right to torture? Non-denial denial from White House (UPDATED) by ryeland, Fri May 22, 2009 at 02:58:21 AM EST

    “I don’t have any desire to write an “Obama=Bush” diary and that’s not what this is. But I think it’s important to point out that the White House has failed to deny one of the most outrageous accusations leveled by Dick Cheney in his speech Thursday morning. And I find it more than a little disturbing…

    …MSNBC Clip MATTHEWS: Well is it your understanding that President Obama reserves the right to use enhanced interrogation methods if we’re in an emergency situation. Is that your understanding? According to the former vice president, that is what the president has said on the record.

    AXELROD: I think that President has made clear his feeling about those tactics with his executive order. The President’s going to do everything that he needs to do to keep this country safe. And I think he’s been clear about that. The American people should be clear about that. This, to me, is a side issue. End MSNBC clip.

    I think I’m going to be sick. I don’t want to be writing this diary, but it’s pretty damned evident that Cheney is right — President Obama is reserving the right to torture. Because if it wasn’t true, Axelrod wouldn’t have hesitated to deny it.

    I’m just sad and disgusted.”

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  27. Wayne says:

    Davod
    You are right that Obama has reserve that right. I also commend you for being consistent and being disgusted with him for doing so. Many on the left and MSM seem to have given him a pass on that.

    That said personally I would hope he reserve that right. I think he is hypercritical for strongly condemning the practice and saying it should not be used while reserving the right to use it. A more appropriate approach would be for him to say that he disagree that the situation was to a point that they needed to use enhance interrogation. I wouldn’t agree with him but at least would respect him for not being a hypocrite.

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  28. anjin-san says:

    Doing so, especially in the person of a special prosecutor, however, opens up multiple cans of worms.

    So what are you saying… that we should think twice about doing the right thing because it might be hard?

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  29. glasnost says:

    There is a bit of a difference between forcing water into the stomach of a POW then jumping on the POWs stomach, and what the CIA was doing.

    Do you know how many people were killed by CIA-run interrogations during the Bush Administration?

    I don’t. Hardly anyone does for sure. But we have a large number of names and stories. Sometimes we only have numbers.

    Start here. Read this link. I’m talking to you, Wayne.

    http://www.salon.com/opinion/greenwald/2009/06/30/accountability/

    Got it? Good. The CIA murdered detainees in singificant numbers, and you speak as though that’s cool with you, because you’re too ignorant to know and you enjoy trashing liberals too much to care about foreigners being exterminated in pits in your name.

    Eric Holder is a coward; his failure to go after Yoo, Gonzales, Hayden and Dick Cheney will forever grant a stamp of approval to have the next President who wants to authorize criminal acts simply tell his DoJ to come up with some bug-eyed crazy legal theory that makes it seem legit.

    But even this bare minimum is better than nothing. The deranged macho men behind this stuff weren’t serving our country; they were burying it. This kind of bloodlust is a textbook case on how to lose a GWOT that depends *completely* on *foreign cooperation*, just like it lost us Iraq for our first four years there.

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  30. Wayne says:

    glasnost
    Salon.com as a source? Get real it is not even worth reading. If that is your source of information, no wonder you are so ignorant.

    How many died under the Clinton administration?

    Here is a clue, the world doesn’t just set around singing songs. Sometime it gets rough and people die. If you think that GWOT depends completely on foreign cooperation, then you are clueless. Also if you think that being nice will get us much if any cooperation then once again you are ignorant. It takes both carrots and sticks. Carrots alone will only get you request for more carrots and not much else.

    Take your loony ignorant troll self back to salon.com.

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  31. davod says:

    Wayne: In relation to my 19:39 post you said:

    “I also commend you for being consistent and being disgusted with him for doing so.”

    Understandably so, you misunderstood my position. Everything below the first sentence are the words from the DD link. I should have finished my post with a closing comment.

    I think the whole debate is contrived to give the MSM a reason to get off Obama’s low ratings. I also think Obama and Holder are working together on this. Just as the left in the USA used the issue to undermine the USA and the Bush administration.

    Enhanced interrogations may not be nice, but they do have value. The definition of torture, as with so many other terms, has been so diluted, that the word becomes meaningless.

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  32. Furhead says:

    Salon.com as a source?

    Glenn Greenwald backs up his stories with evidence and tons of it. He’s often hard to read because of his meticulous detail. If you want to be informed, I would recommend reading him once in awhile.

    Or you can go back to World Net Daily or whatever.

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  33. Wayne says:

    Davod
    Understood my mistake.It is easy to misunderstand people especially in blogs. I am not one of those who will tell you what your intention was. Those people crack me up.

    Furhead
    A bunch of links to conspiracy sites is not evidence. There are still site claiming the WTC was blown up by the US and scientifically couldn’t have collapse like it did from being hit by aircraft and the resulting fires. That conspiracy theory has been proven wrong to anyone with a lick of intellectual honesty.

    How about reference to a non conspiracy site? I will even take CNN or MSNBC .

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  34. […] Schuler and I will talk about the death of Teddy Kennedy, the investigation of CIA interrogation practices, the release of the Lockerbie bomber, Chicago’s parking ticket follies, and […]

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