In a highly contentious move, Attorney General Eric Holder on Monday appointed a special prosecutor to take a fresh look at whether US officials violated the law through harsh treatment of detainees during the Bush administration's war on terror.
Mr. Holder said he was authorizing John Durham, a career Justice Department prosecutor, to conduct a "preliminary review into whether federal laws were violated in connection with the interrogation of specific detainees at overseas locations." He did not identify those detainees by name or where they were allegedly mistreated.
"I fully realize my decision to commence this preliminary review will be controversial," Holder said. "In this case, given all the information currently available, it is clear to me that this review is the only responsible course of action for me to take."
The announcement came shortly after the administration released a redacted version of a 2004 CIA Inspector General's report on harsh interrogation tactics.
The report said CIA interrogators threatened to kill the children of alleged 9/11 mastermind Khaled Shaikh Mohammed, and threatened another detainee with a power drill and suggestions that if he didn't talk his mother would be brought into the room and raped in front of him.
The report was sent to the Justice Department for possible prosecution during the Bush administration. Prosecutors declined. The issue was resurrected by Holder after he read the CIA report.
Justice vs. witch hunt
Since its earliest days in office, the Obama administration has found itself caught in a heated debate over Bush administration antiterrorism policies. On one side, civil libertarians and human rights activists are pushing for a close examination of the legality of Bush policies with an eye toward potential high-level prosecutions. On the other side, members of the intelligence community are warning of the dangers to national security of a "witch hunt" that could decimate and demoralize those on the front lines of the fight against Al Qaeda.
President Obama has tried to avoid a showdown on the issue, suggesting that the Bush policies are a thing of the past. The White House sought to project that posture again on Monday.
"The president has said repeatedly that he wants to look forward, not back," according to a White House statement issued Monday. "Ultimately, determinations about whether someone broke the law are made independently by the attorney general."
Mr. Durham is already at work investigating the destruction of CIA videotapes of detainee interrogations. The videotape destruction investigation involves significant overlap of information with the new probe because they apparently involve some of the same interrogations. Holder said he was expanding Durham's mandate beyond the videotapes issue to include an examination of interrogations and detainee treatment.
Durham is specifically instructed to conduct a preliminary review and then present Holder with a recommendation of whether to proceed with a full investigation or drop the matter.
It appears that Durham's investigative mandate is narrow. The investigation apparently will not examine the role of senior administration officials and their legal advisers. Instead, the preliminary probe appears aimed at US officials and contractors who used harsh and brutal tactics that went far beyond those authorized in the Bush administration's so-called torture memos.
"The Department of Justice will not prosecute anyone who acted in good faith and within the scope of the legal guidance given" by the Bush Justice Department, Holder said.
Panetta will 'stand up for officers'
In a written statement to Central Intelligence Agency employees on Monday, CIA Director Leon Panetta sought to reassure the nation's intelligence officers. "My primary interest," Mr. Panetta wrote, "is to stand up for those officers who did what their country asked and who followed the legal guidance they were given."
"Any meaningful investigation would encompass both those who claimed they were following orders and those who designed and demanded that the illegal policies be implemented," Mr. Cox said.
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