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Published on Tuesday, August 25, 2009 by The Nation

Holder -- and Obama -- Must Focus on Torture Accountability

by John Nichols

Attorney General Eric Holder chose not to take the counsel of the Republican partisans who have been campaigning in recent weeks to avert an accountability moment with regard to the Bush-Cheney administration's torture regime.

But that does not necessarily mean that an accountability moment will come.

For that to happen, Holder -- and, by extension, President Obama -- must stop being so cautious about laying the groundwork for the prosecution of wrongdoings.

They must, as well, be far more explicit in spelling out the purpose and point of the investigation into the use and abuse of so-called "harsh-interrogation" techniques by the Central Intelligence.

For now, Holder has opened what he refers to as a "preliminary review" into whether some CIA operatives broke the law in their coercive interrogations of suspected terrorists in the years after the Sept. 11, 2001 attacks.

"As a result of my analysis of all of this material, I have concluded that the information known to me warrants opening a preliminary review into whether federal laws were violated in connection with the interrogation of specific detainees at overseas locations," Holder said in a statement issued by his office. "The department regularly uses preliminary reviews to gather information to determine whether there is sufficient predication to warrant a full investigation of a matter. I want to emphasize that neither the opening of a preliminary review nor, if evidence warrants it, the commencement of a full investigation, means that charges will necessarily follow."

Let's be clear: it is good that Holder has decided to take a more serious look at the use of torture during the Bush-Cheney years.

But he has done so in a disturbingly cautious manner that is described by the American Civil Liberties Union as "anemic." That runs the risk of encouraging the campaign by Missouri Senator Kit Bond and a handful of senators -- working in conjunction with conservative broadcast and print outlets -- to narrow the scope of any inquiry to such an extent that it will yield little in the way of accountability.

As with the battle to defend insurance-industry control over the healthcare system, Republican partisans in Congress are going to fight hard to block any inquiry that might expose and hold to account members of the Bush-Cheney administration.

Bond, in particular, has made it his mission to thwart anything akin to a real investigation.

Taking the lead in the campaign to block an investigation of officials who initiated, authorized and encouraged the use of torture, Bond has shown no qualms about using his position as the ranking Republican on the Senate Intelligence Committee to protect partisan allies and prevent checking and balancing of executive excess. He has little to lose; after an undistinguished Senate tenure, the man who was once boomed as a Republican presidential or vice presidential prospect is a lame-duck senator who will leave the Capitol after the next election.

But Bond is determined to finish his career with a partisan flourish.

And he is in a position to do so.

As a senior Republican senator with close ties to key players within the intelligence establishment -- both at the CIA and among independent contractors associated with the agency, Bond was the key signer of a last-minute missive urging Attorney General Eric Holder to drop plans to appoint a special prosecutor to investigate the use of torture during the Bush-Cheney years.

The other signers of the letter, all Republican senators, are Alabama's Jeff Sessions, Arizona's Jon Kyl, Georgia's Saxby Chambliss, Texan John Cornyn, Oklahoma's Tom Coburn, Utah's Orrin Hatch, Iowa's Chuck Grassley and North Carolina's Richard Burr. With the possible exceptions of Hatch and Grassley, all are among the more rabidly partisan members of the senate's Republican caucus. Bond has traditionally been a more responsible member of that caucus. But with this letter, he positions himself as the key point person in the struggle to prevent the inquiry Holder has initiated from getting anywhere.

Bond and his compatriots argued that the appointment of a special prosecutor would "have serious consequences not just for the honorable members of the intelligence community, but also for the security of all Americans."

In fact, the appointment of a special prosecutor should have serious consequences primarily for dishonorable members of the Bush-Cheney administration -- including former Attorney General Alberto Gonzales, former Vice President Dick Cheney and, perhaps, former President Bush. Creating a false conflict between the rule of law and national security, Bond and his co-signers argued in their letter to Holder that, "It is ironic that the Obama administration, which has delayed justice for the victims of September 11 by suspending the trial of (Khalid Sheikh Mohammed), may soon be charging ahead to prosecute the very CIA officials who obtained critical information from him." The absurdity of this argument is that it suggests the primary focus of an investigation will be on low-level or even mid-level Central Intelligence Agency operatives.

For it to be meaningful, the investigation can and should focus on the people who authorized the use of torture and who outlined how it should be applied. Those are high-level players in the Bush-Cheney administration, not "honorable members of the intelligence community." The only place at which low-level CIA operatives might become targets of an investigation -- or perhaps face prosecution -- would be if followed their own personal agendas.

The Center for Constitutional Rights offers a proper perspective:

Responsibility for the torture program cannot be laid at the feet of a few low-level operatives. Some agents in the field may have gone further than the limits so ghoulishly laid out by the lawyers who twisted the law to create legal cover for the program, but it is the lawyers and the officials who oversaw and approved the program who must be investigated.

The attorney general must appoint an independent special prosecutor with a full mandate to investigate those responsible for torture and war crimes, especially the high-ranking officials who designed, justified and orchestrated the torture program," the center said in a statement. "We call on the Obama administration not to tie a prosecutor's hands but to let the investigation go as far up the chain of command as the facts lead. We must send a clear message to the rest of the world, to future officials, and to the victims of torture that justice will be served and that the rule of law has been restored.

The point of any inquiry has to be to identify those who set the torture policy -- deliberately violating the U.S. and international laws, refusing to share information with Congress and lying to the American people -- and hold them to account.

Holder needs to spell this out.

So, too, does President Obama.

It is essential to confront the spin from Kit Bond and compatriots immediately and aggressively.

If Holder and Obama pull their punches, they will give opponents of accountability the opening they need to thwart it.

Copyright © 2009 The Nation
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