Justice Dept. Investigators Say No Criminal Prosecutions, Just ‘Disciplinary Actions’

Federal investigators say the torture memo authors only committed ‘serious lapses of judgment,’ not crimes. Critics say that’s ‘outrageous.’

By Jeremy Scahill

The movement to hold Bush-era torturers, their bosses and their lawyers criminally accountable for their crimes may be facing another setback. Reports are emerging that Justice Department investigators will recommend that the torture memo authors should not be criminally prosecuted. Instead, officials from the department’s Office of Professional Responsibility, which examines possible ethics violations by Justice Department employees, suggest the department refer “two of the three lawyers [who authored the torture memos] to state bar associations for possible disciplinary action,” according to an unnamed official interviewed by the Associated Press. “Investigators initially recommended professional sanctions against [Jay] Bybee and [John] Yoo, but not [Steven] Bradbury, according to the person familiar with the matter. That would come in the form of recommendations to state bar associations, where the most severe possible punishment is disbarment.”

As The New York Times put it, the investigators “concluded that the authors committed serious lapses of judgment but should not be criminally prosecuted.” The report is still subject to review by Attorney General Eric Holder and can still be amended. And, as The Washington Post reports, “Former Bush administration officials are launching a behind-the-scenes lobbying campaign to urge Justice Department leaders to soften” the (already apparently very soft) report. While disbarment of any of the lawyers in question would be significant, it is by no means a replacement for a criminal prosecution.

Vince Warren, Executive Director of the Center for Constitutional Rights responded sharply to the news. “We represent people who were tortured as a result of these criminal policies: calling what was done to them a mere ‘lapse in judgment’ is outrageous,” Warren said. “Government officials broke laws and then tried to create legal justifications for breaking the law—since when do we decide whether to prosecute crimes based on political expediency?”

According to the Times:

The draft report is described as very detailed, tracing e-mail messages between Justice Department lawyers and officials at the White House and the Central Intelligence Agency. Among the questions it is expected to consider is whether the memos reflected the lawyers’ independent judgments of the limits of the federal anti-torture statute or were skewed deliberately to justify what the C.I.A. proposed.

The report was supposed to have been completed months ago, but was “delayed late last year, when then-Attorney General Michael Mukasey and his deputy asked investigators to allow the lawyers a chance to respond to their findings,” according to the AP. “Investigators also shared a draft copy with the CIA to review whether the findings contained any classified information… the CIA then requested to comment on the report.”

The Post also reveals that early this year before Bush left office, Mukasey and then-Deputy Attorney General Mark Filip “wrote a 14-page letter to counterbalance the draft report. They described the context surrounding the origins of the memos, which were written at a time when government officials feared another terrorist strike on American soil:”

Both Mukasey and Filip were dissatisfied with the quality of the legal analysis in the wide-ranging draft report, sources said. Among other things, the draft report cited lengthy passages from a 2004 CIA inspector general investigation and cast doubt on the effectiveness of the questioning techniques, which sources characterized as far afield from the narrow legal questions surrounding the lawyers’ activities. The letter from Mukasey and Filip has not been publicly released, but it may emerge when the investigative report is issued.

One of the key Senators monitoring the progress of the Justice Department report, Richard Durbin, said, “It’s time to get to the bottom of the conduct of some of the key players… . It’s a question of responsibility. In this chain of command, how far up did it go?” However, Durbin, according to the Post believes it is “premature to call for a special prosecutor or the impeachment of Bybee.” Powerful Democratic Senators, including Harry Reid and Dianne Feinstein, have called for closed-door Senate Intelligence Committee hearings. Feinstein asked Obama not to take any action for 6-8 months.

In contrast to Durbin’s remarks, in an interview Tuesday on Democracy Now!, Senator Russ Feingold said, he was “very open” to signing on to a letter from Rep. John Conyers and Jerrold Nadler calling for the appointment of a Special Prosecutor. “I want to see the letter,” he said. “That is one of the options that I agree with. I potentially agree with prosecutions. I agree with the idea of the truth commission. And I potentially would support a special prosecutor.” The CCR, ACLU and over 120 other organizations have called for the appointment of a Special Prosecutor.

See related RebelReports coverage:

Spain Launches Wide-Ranging Criminal Investigation Into US Torture. When Will Obama?

In Letter to AG Holder, Conyers and Nadler Officially Call for Special Torture Prosecutor

What if Instead of the Nuremberg Trials There Was Only a Truth Commission?

Former Intelligence Committee Chair on Torture Briefings: I do not recall a single objection from my colleagues

Are Leading Democrats Afraid of a Special Prosecutor to Investigate Torture?

In Letter to AG Holder, Conyers and Nadler Officially Call for Special Torture Prosecutor

“We must investigate and demand accountability for acts of torture committed by or on our behalf,” they wrote.

By Jeremy Scahill

Today, Rep. John Conyers (D-MI), chair of the House Judiciary Committee, and  Rep. Jerrold Nadler (D-NY), who chairs the  Subcommittee on the Constitution, Civil Rights and Civil Liberties, wrote to Attorney General Eric Holder officially requesting the appointment of an independent Special Prosecutor “to investigate and, where appropriate, prosecute torture committed against detainees during the Bush administration.” In the letter to Holder, the two Congressmen write, “During your confirmation hearings, you testified that waterboarding is torture, and the International Committee of the Red Cross, which had been denied access to detainees held at CIA secret prisons for several years, has concluded that the treatment alleged by fourteen of these detainees constituted torture. Earlier this year, the Bush Administration’s top official in charge of military commissions concluded that the U.S. military’s treatment of Mohammed al-Qahtani ‘met the legal definition of torture.’”

Nadler and Conyers lay out the three “Justice Department regulations which provide for the Attorney General to appoint an outside special counsel:

1) A “criminal investigation of a person or matter is warranted,”

(2) The “investigation or prosecution of that person or matter by a United States Attorney’s Office or litigating Division of the Department of Justice would present a conflict of interest for the Department”

3) “[I]t would be in the public interest to appoint an outside Special Counsel to assume responsibility for the matter.” Such counsel is to be appointed from outside the government and should have the authority to secure resources for the investigation and prosecution and have full investigatory and prosecutorial powers.

The five page letter is available here. In this section, Nadler and Conyers lay out their legal argument for why Holder should take this action:

We believe that these three criteria have been met and warrant the appointment of a special counsel to investigate whether federal criminal laws were violated by individuals who authorized or participated in the interrogation of detainees. First, as noted above, there is abundant, credible evidence of torture and the cruel, inhuman, and degrading treatment of detainees, and criminal investigation is not only warranted, it is also required. The Geneva Conventions obligate High Contracting Parties like the United States to investigate and bring before our courts those individuals “alleged to have committed, or to have ordered to be committed” grave breaches of those Conventions. The war crimes act, 18 U.S.C. § 2441, creates jurisdiction in the U.S. courts whenever the victim or alleged offender is a U.S. national or member of the Armed Forces, and specifically identifies torture and cruel or inhuman treatment, as well as the conspiracy to commit those acts, as punishable war crimes. The Convention Against Torture (CAT) – signed by President Reagan in 1988 and ratified by the U.S. Senate in 1994 – also obligates the U.S. to conduct a “prompt and impartial investigation” and “submit the case to [our] competent authorities for the purpose of prosecution” whenever there are reasonable grounds to believe that torture has been committed in a territory under our jurisdiction or by U.S. nationals. The federal anti-torture statute, 18 USC § 2340A, criminalizes torture and the conspiracy to commit torture and creates jurisdiction in the U.S. courts whenever the “alleged offender is a national of the United States” or “is present in the United States.”

Second, a conflict of interest would be presented in having the Department investigate allegations that high-ranking Justice Department officials and lawyers provided legal guidance on and may have been involved in developing interrogation policy. For example, the Department of Justice’s Office of Legal Counsel and former Attorney General and White House Counsel Alberto Gonzales advised the Administration and President to deny detainees the legal protection of the Geneva Conventions, and OLC lawyers wrote extensive legal memos that authorized specific interrogation techniques that likely amounted to torture. While some key individuals are no longer with the Department or Executive Branch, it is impossible to determine at this stage and before conclusion of the necessary investigation whether additional conflicts of interest might exist or arise. When Department lawyers are alleged to have been involved, we believe the Attorney General should turn to a special counsel.

Finally, there can be little doubt that the public interest will be served by appointment of a special counsel. The authorization and use of interrogation techniques that likely amounted to torture has generated tremendous concern and outrage in this country, and has harmed our legal and moral standing in the world. As a country committed to the rule of law, we must investigate and demand accountability for acts of torture committed by or on our behalf. Appointing a special counsel to undertake this task would serve the interests of the Department and of the public in ensuring that the necessary investigation is thorough and impartial, and that the United States fairly investigates serious and credible accusations of misconduct, even where high-ranking government officials may be involved.

Importantly, Nadler noted in a press release, “A Special Counsel is the most appropriate way to handle this matter. It would remove from the process any question that the investigation was subject to political pressure, and it would preempt any perceptions of conflict of interest within the Justice Department, which produced the torture memos.”

On April 21, the Judiciary Committee announced it would hold hearings on the torture memos, releasing a statement that said: “The Office of Professional Responsibility will soon complete a report concerning the former Justice Department lawyers who wrote these memos. The Judiciary Committee will subsequently hold hearings and investigate these matters.” A date has not been announced.

NOTE: See my earlier piece What if Instead of the Nuremberg Trials There Was Only a Truth Commission? featuring attorneys Michael Ratner, Jameel Jaffer, Scott Horton and others weighing in on why a Special Prosecutor is necessary.

Former Intelligence Committee Chair on Torture Briefings: I do not recall a single objection from my colleagues

Former CIA Director Porter Goss should be investigated for his role in the torture scandal, but he still makes an important point about the role of some Democrats

By Jeremy Scahill

It has been known for years that House Speaker Nancy Pelosi, Senator Jay Rockefeller and other leading Democrats were briefed on the US torture program in real time in 2002. This may be one reason why the Democrats seem to be leaning in the direction of closed door intelligence hearings instead of calling for an independent special prosecutor. While some Democrats have indicated they may hold public hearings, this is not the same as the criminal investigation that this war crimes scene necessitates. Unfortunately, the main figures calling out the Democrats on their complicity in the torture program are the biggest torture advocates—Republican politicians, who obviously have their own political agendas.

The latest Republican to detail the extent to which the Democrats were briefed on the torture program is Porter Goss, who was director of the CIA from September 2004 to May 2006 and was chairman of the House Permanent Select Committee on Intelligence from 1997 to 2004. In The Washington Post this weekend, Goss wrote:

Today, I am slack-jawed to read that members claim to have not understood that the techniques on which they were briefed were to actually be employed; or that specific techniques such as “waterboarding” were never mentioned. It must be hard for most Americans of common sense to imagine how a member of Congress can forget being told about the interrogations of Sept. 11 mastermind Khalid Sheik Mohammed. In that case, though, perhaps it is not amnesia but political expedience.

Let me be clear. It is my recollection that:

— The chairs and the ranking minority members of the House and Senate intelligence committees, known as the Gang of Four, were briefed that the CIA was holding and interrogating high-value terrorists.

— We understood what the CIA was doing.

— We gave the CIA our bipartisan support.

— We gave the CIA funding to carry out its activities.

— On a bipartisan basis, we asked if the CIA needed more support from Congress to carry out its mission against al-Qaeda.

I do not recall a single objection from my colleagues. They did not vote to stop authorizing CIA funding. And for those who now reveal filed “memorandums for the record” suggesting concern, real concern should have been expressed immediately — to the committee chairs, the briefers, the House speaker or minority leader, the CIA director or the president’s national security adviser — and not quietly filed away in case the day came when the political winds shifted. And shifted they have.

Of course, Goss himself should be one of the figures looked at in the special prosecutor’s criminal investigation, particularly his leadership years at the CIA. While it is important to keep the focus on the top-down chain of command (starting at the top) in determining responsibility for these crimes, the actions (or lack thereof) of the Democrats who were briefed on this torture program should be made public to determine their responsibility as well.

Latest Stories on RebelReports:

Are leading Democrats Afraid of a Special Prosecutor to Investigate Torture?: Congress was briefed in real time on the Bush-era torture tactics. Is that why some Democrats prefer whitewash commissions and closed-door hearings?

U.S. Cities Increasing Use of Armed Mercenaries to Replace Police: There are now some 2 million private forces deployed inside America. This number is growing in cities like Oakland. Now is the time to confront it before it is too late.

“Worse than Gitmo:” ACLU Asks for Documents on Bagram Prison, Where the US Still Holds 600 Prisoners:The Obama administration argues that the prisoners at Bagram—some who have been there 6 years—do not have habeas corpus rights. That’s not looking backwards. It is current policy.

Jay Bybee’s Rules at Home: “Be Nice. Don’t Hit.” Bybee’s Rules for the CIA: Torture Prisoners: Bybee seems to be against corporal punishment, but has no problem with slamming prisoners against walls, locking people in boxes and simulating drowning.

Please note, I am going to be speaking at a conference on Blackwater and other mercenary firms in Stockton, Illinois Friday and Saturday. If you are in the area, information is here.

“Worse than Gitmo:” ACLU Asks for Documents on Bagram Prison, Where the US Still Holds 600 Prisoners

The Obama administration argues that the prisoners at Bagram—some who have been there 6 years—do not have habeas corpus rights. That’s not looking backwards. It is current policy.

By Jeremy Scahill

As the Obama administration faces mounting pressure to appoint an independent special prosecutor to investigate torture and other crimes ordered by senior Bush administration officials and implemented by CIA operatives and contractors, the ACLU is opening up another front in the battle for transparency. But this one is not exclusively aimed at the Bush era. Today, the ACLU filed a Freedom of Information Act request seeking to make public records on the US-run prison at Bagram Airfield in Afghanistan. The group is seeking documents from the Departments of Defense, Justice and State and the CIA.

As the ACLU states, “the U.S. government is detaining more than 600 individuals at Bagram, including not only Afghan citizens captured in Afghanistan but also an unknown number of foreign nationals captured thousands of miles from Afghanistan and brought to Bagram. Some of these prisoners have been detained for as long as six years without access to counsel, and only recently have been permitted any contact with their families. At least two Bagram prisoners have died while in U.S. custody, and Army investigators concluded that the deaths were homicides.”

The Obama administration has refused to grant habeas corpus rights to prisoners at Bagram, but a federal judge recently ruled that three prisoners can challenge their detention in U.S. courts. The Obama administration, in continuing a Bush-era policy, is appealing the ruling. According to the ACLU, “The prisoners, who were captured outside of Afghanistan and are not Afghan citizens, have been held there for more than six years without charge or access to counsel:”

“The U.S. government’s detention of hundreds of prisoners at Bagram has been shrouded in complete secrecy. Bagram houses far more prisoners than Guantánamo, in reportedly worse conditions and with an even less meaningful process for challenging their detention, yet very little information about the Bagram facility or the prisoners held there has been made public,” said Melissa Goodman, staff attorney with the ACLU National Security Project. “Without transparency, we can’t be sure that we’re doing the right thing – or even holding the right people – at Bagram.”

This is a very important case to monitor, particularly because it is an area where Obama’s administration has allied itself squarely with that of the Bush administration. This is not “looking backwards” at all, it is looking at the present and it aint Dick Cheney and Donald Rumsfeld running this sick, unconstitutional show.

Update: Today’s Stories on RebelReports:

BOMBSHELL: Rep. Jane Harman Caught on Tape Agreeing to Lobby for Alleged AIPAC/Israel Spies? Harman was allegedly caught on tape saying she would “waddle into” the AIPAC case in return for support from the Israeli lobby for her bid to become chair of the Intelligence Committee.

The Radio ‘Führer’ G Gordon Liddy’s Sexist Attack on Joan Walsh of Salon Liddy says Walsh’s anger over torture memos is because it’s “probably that time of the month.” Beyond the sexism, though, Liddy’s radio show reveals what an imbecile he really is.

Momentum Gains in Movement to Impeach Bush Torture Lawyer Turned Federal Judge While the leadership of the Democratic Party remains silent on Obama’s refusal to hold torturers accountable, activists are demanding a special prosecutor and calling on Congress to impeach  Jay Bybee.

After “Year of Record Profit,” Halliburton Earnings Plummet Sad news for the poor little war profiteers from Dick Cheney’s “former” company. The Wall Street Journal is repoting, “Halliburton Co.’s first-quarter net income fell 35% amid a steep downturn in North American drilling activity and lower prices.”

US Bombs Pakistan… Again As many as eight people have been killed in another US drone attack in Pakistan. The US has reportedly killed more than 700 people in these attacks since 2006. Most are civilians— 2% of the dead were allegedly “al Qaeda”