Holder Announces Impunity for Torture-Homicides

By Scott Horton

There is some long-settled wisdom among Washington politicos: When you have bad news and want to avoid attention, you release it just before a holiday weekend. And when you can hold off long enough to ensure that it is totally buried, you release it at the most moribund point in the entire news calendar: just before the Labor Day weekend, when no one who counts in American politics is likely to be paying any attention. So what news story was official Washington most eager to bury this year? We have our answer. The New York Times reports:

Attorney General Eric H. Holder Jr. announced Thursday that no one would be prosecuted for the deaths of a prisoner in Afghanistan in 2002 and another in Iraq in 2003, eliminating the last possibility that any criminal charges will be brought as a result of the brutal interrogations carried out by the C.I.A.
Mr. Holder had already ruled out any charges related to the use of waterboarding and other methods that most human rights experts consider to be torture. His announcement closes a contentious three-year investigation by the Justice Department and brings to an end years of dispute over whether line intelligence or military personnel or their superiors would be held accountable for the abuse of prisoners in the aftermath of the terrorist attacks of Sept. 11, 2001. The closing of the two cases means that the Obama administration’s limited effort to scrutinize the counterterrorism programs carried out under President George W. Bush has come to an end.

Here is how Holder justified the decision not to prosecute cases in which it is beyond dispute that the conduct of government actors led directly to the death of a prisoner in their custody and control:

[T]he Department has declined prosecution because the admissible evidence would not be sufficient to obtain and sustain a conviction beyond a reasonable doubt.

John Durham, a career federal prosecutor and registered Republican who has done little to conceal his political sympathies, was initially tapped by Attorney General Michael Mukasey on January 2, 2008, to look into the destruction of ninety-two videotapes containing direct evidence of torture sessions by a senior CIA official, Jose A. Rodriguez. On August 24, 2009, Durham’s mandate was expanded by Holder to include a further handful of cases in which the CIA’s own inspector general had recommended a preliminary review by the Justice Department—a list that was subsequently contracted to include only two cases in which CIA officers had engaged in violent conduct that led directly to the death of prisoners. Notwithstanding the fact that in each of these cases clear, compelling, and admissible evidence existed to make out a prima facie case against the target, Durham decided to take no action entirely on the basis of prosecutorial discretion.
These outcomes should once again focus international attention on the Justice Department’s conduct. Mandatory provisions of the Convention Against Torture should have compelled the department to open criminal inquiries into cases in which concrete and credible allegations of torture exist. It failed even to open inquiries in almost all such cases, and in the tiny handful of cases in which inquiries were opened, Justice Department figures were busy murmuring assurances from the outset that these investigations were a mere formality, and that actual prosecutions were unlikely. So did Durham conduct a bona fide investigation? We can never know the answer to that question, because everything that Durham did was cloaked—as proper process in fact requires—in secrecy.
But lawyers who have studied these cases are unlikely to agree with Holder’s contention that the evidence would not sustain prosecution. Elisa Massimino, the president of Human Rights First—a lawyers’ group that includes renowned prosecutors, attorneys, and former judges and has made an exhaustive study (PDF) of the CIA torture-murder cases—stated, “It is hugely disappointing that with ample evidence of torture, and documented cases of some people actually being tortured to death, that the Justice Department has not been able to mount a successful prosecution and hold people responsible for these crimes.” Objectively, it is clear that the available evidence was more than sufficient to warrant indictments and prosecution. What happened in this case was a failure of political will to prosecute.
Had Eric Holder spoken honestly about the Durham investigation, this is what he would have said:

Today the Department has decided that there can be no accountability for crimes involving torture committed by intelligence officers during the Bush Administration. This decision is reached because of our recognition that torture, which was likely to—and did, in a number of cases—lead directly to the death of prisoners, was formally embraced as a policy of the Bush Administration. No reasonable prosecution decision could avoid this fact, and any fair prosecution would have to focus on the senior figures of the executive branch who implemented this decision, and on senior figures of the Department of Justice who, in disregard of the law, condoned and sanctioned it. Because misconduct of the Justice Department itself is at the very heart of this matter, and because institutional interests of the Justice Department dictate that we hide its betrayals of the public trust from public view, we have decided that no prosecutions can be undertaken. Americans must understand that the commitment of the department to uphold and enforce the law is subject to an exception providing that its attorneys serve the president and vice president and that they are, therefore, above the law, at least whenever they secure Justice Department opinions sanctioning illegal conduct.

The Justice Department’s decision to establish a principle of impunity should have other consequences on the international stage. First, under the doctrine of command responsibility, which applies with full force to deaths in detention during wartime, when conduct producing death occurs, and those immediately responsible are not criminally investigated or prosecuted, the criminal accountability for the deaths passes up the chain of command. Because of the dubious circumstances surrounding the Durham investigation and the high probability that political, rather than legal, decisions dictated the outcome, the decision not to prosecute should result in the imposition of legal liability for the deaths on persons further up the chain of command.
Second, the homicides in question occurred outside of the United States, and are under the criminal-law jurisdiction of several other nations. The Durham investigation appears to have been prolonged for at least eighteen months beyond its actual conclusion in order to provide a pretext to block related foreign criminal investigations. There is now no reason why those proceedings should not go forward. Indeed, a decision by the Holder Justice Department to establish a principle of impunity means, under established international-law concepts, that other prosecutors and courts are now free to proceed.