prosecution of lawyers who gave legal cover for harsh interrogation methods

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"It would be contrary to the principles of the criminal justice system for the attorney general to say he believes a very serious crime has been committed and then to do nothing about it." - Jennifer Daskal, senior counterterrorism counsel at Human Rights Watch

Remarks on Torture May Force New Administration's Hand
January 16, 2009

WASHINGTON -- Just 14 months ago, at his confirmation hearing, Attorney General Michael B. Mukasey frustrated and angered some senators by refusing to state that waterboarding, the near-drowning technique used on three prisoners by the Central Intelligence Agency, is in fact torture.


Times Topics: Eric H. Holder Jr.

This week, at his confirmation hearing,Eric H. Holder Jr., the attorney general-designate, did not hesitate to express a clear view. He noted that waterboarding had been used to torment prisoners during the Inquisition, by the Japanese in World War II and in Cambodia under the Khmer Rouge.

"We prosecuted our own soldiers for using it in Vietnam," Mr. Holder said. "Waterboarding is torture."

In the view of many historians and legal authorities, Mr. Holder was merely admitting the obvious. He was agreeing with the clear position of his boss-to-be, President-electBarack Obama, and he was giving an answer that almost certainly was necessary to win confirmation.

Yet his statement, amounting to an admission that the United States may have committed war crimes, opens the door to an unpredictable train of legal and political consequences. It could potentially require a full-scale legal investigation, complicate prosecutions of individuals suspected of committing terrorism and mire the new administration in just the kind of backward look that Mr. Obama has said he would like to avoid.

Mr. Holder's statement came just two days after the Defense Department official in charge of military commissions at Guantánamo Bay, Cuba, said in an interview with The Washington Post that she had refused to permit a trial for one detainee there, Mohammed al-Qahtani, because she believed he had been tortured.

Together the statements, from a current and an incoming legal official, cover both the Central Intelligence Agency, which has acknowledged waterboarding three captured operatives of Al Qaeda, and the military's detention program.

Legal experts across the political spectrum said the statements would make it difficult for the incoming administration to avoid a criminal investigation of torture, even as most also say a successful prosecution might well be impossible.

Two obvious obstacles stand in the way of a prosecution: legal opinions from the Justice Department that declared even the harshest interrogation methods to be legal, and a provision in the Military Commissions Act of 2006 that grants strong legal protections to government employees who relied on such legal advice in counterterrorism programs.

Still, Jennifer Daskal, senior counterterrorism counsel at Human Rights Watch, said, "It would be contrary to the principles of the criminal justice system for the attorney general to say he believes a very serious crime has been committed and then to do nothing about it."

Charles D. Stimson, who served as the Defense Department's top official on detainee affairs from 2004 to 2007 and is now a senior legal fellow at the conservative Heritage Foundation, said the statements "certainly will increase the pressure on Holder to mount some kind of investigation."

In addition to domestic political pressures, the United States appears to have a legal obligation as a party to the international Convention against Torture to follow up on the torture statements. That treaty requires signatory states to conduct a "prompt and impartial investigation, wherever there is reasonable ground to believe that an act of torture has been committed in any territory under its jurisdiction."

The Bush administration placed its interrogation operations offshore, at the American base in Cuba and at secret C.I.A. sites, and officials have sometimes argued that they were not on territory under American jurisdiction. But that assertion has been eroded by court decisions concerning the Guantánamo detention center, and it is unlikely that the Obama administration would use such a loophole to avoid the torture convention's effect.

"There's a moral, legal and practical obligation of the United States to follow this allegation in good faith wherever it leads," said Juan E. Méndez, a veteran human rights lawyer who is president of the International Center for Transitional Justice in New York.

Where such an inquiry might lead is an unsettling question for departing Bush administration officials, who have long worried that aggressive policies could make them vulnerable to civil or criminal liability.

If rank-and-file interrogators are protected by the Justice Department's assurance that their actions were legal, what about the lawyers who gave the assurances? What about the senior officials, including President Bush, who approved the use of waterboarding and other such tactics?

Such questions are so legally daunting and politically complex that Mr. Obama has played down, while not ruling out, the possibility of a criminal investigation or a national commission to examine past policies. In an interview with ABC last Sunday, he said "my orientation's going to be to move forward" rather than looking back.

In recent weeks, Mr. Bush, Vice President Cheney and other officials have strongly defended their counterterrorism methods and credited them with preventing attacks on the United States since 2001. Their implicit argument -- that the Obama administration should not question policies that protected Americans -- was made more explicit and personal by Michael V. Hayden, the departing C.I.A. director, in a session with reporters on Thursday.

"If I'm going to go to an officer and say, 'I've got a truth commission, or I want to post all your e-mails, or, well, we've got this guy from the bureau who wants to talk to you,' " Mr. Hayden said, it would discourage such a C.I.A. officer from taking risks on behalf of the new president's policies.

"We have no right to ask this guy to bet his kid's college education on who's going to win the off-year election," Mr. Hayden said, alluding to legal fees that such a C.I.A. officer might face.

At his confirmation hearing, Mr. Holder was asked by Senator Orrin G. Hatch, Republican of Utah, whether he would pursue a criminal investigation of the interrogation programs.

Mr. Holder hedged his response, saying, "Senator, no one's above the law, and we will follow the evidence, the facts, the law, and let that take us where it should."

But he added, quoting Mr. Obama, that "we don't want to criminalize policy differences" and finally pleaded for time to study the matter.

"One of the things I think I'm going to have to do," Mr. Holder said, "is to become more familiar with what happened that led to the implementation of these policies." 

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