Holder May Appoint Counsel, Next Step: OPR Opinion

(9 am. – promoted by ek hornbeck)

It’s been an emotional two days for those of us who don’t sleep well knowing our country almost certainly committed war crimes.  It’s a kneejerk issue for me — I’ll admit that without apology.  If America doesn’t hold its leaders accountable for torture, then it’s no longer my America.  And I love my America dearly.  Country aside, the core of my being is offended by the existence of torture in this world.  If some of my money bought waterboards, I now have a stake in the company.  Call it moralizing if you like, but I just can’t live with that.  And yes, I become very emotional.

But tonight, after an especially discouraging day, hope comes from the Rachel Maddow Show in the form of interviews with the estimable Senator Sheldon Whitehouse and Michael Isikoff from Newsweek Magazine.  For me, sources don’t get much more reliable than Senator Whitehouse.

First, let me apologize to anyone I may have misunderstood today.  My ear for nuance doesn’t do that well when the discussion involves such things as the torture of children.  And I’m not saying this with a high-horse pride; I really do know that sometimes I just can’t quite get exactly what someone is saying to me, but it sure sounds like it amounts to an excuse for torture.  I’m sincerely sorry for any feeding of the craziness my behavior may have caused.  I do my best to make sense and be reasonable.

So, here’s some hope that all is not lost.  As McJoan diaried on the fp today, Michael Isikoff has reported that the Holder DOJ may not be in step with recent statements of Obama and Rahm:

But the Obama administration is not off the hook. Though administration officials declared that CIA interrogators who followed Justice’s legal guidance on torture would not be prosecuted, that does not mean the inquiries are over. Senior Justice Department lawyers and other advisers, who declined to be identified discussing a sensitive subject, say Attorney General Eric Holder Jr. has discussed naming a senior prosecutor or outside counsel to review whether CIA interrogators exceeded legal boundaries–and whether Bush administration officials broke the law by giving the CIA permission to torture in the first place. Some Justice officials are deeply troubled by reports of detainee treatment and believe they may suggest criminal misconduct, these sources say. Even if prosecutions prove too difficult to bring, an outside counsel’s report could be made public. For his part, Sen. Patrick Leahy, chairman of the Senate Judiciary Committee, is still pushing for a “truth commission.” In a democracy, the wheels of justice grind on–and the president, for good reason under the rule of law, does not have the power to stop them.

[Emphases mine]

Okay, good reminder.  Not everyone in the government is totally corrupt and insensitive.  Some folks inside justice still care that the last administration probably tortured.  And hey, the legal system was never declared legally dead; like a well-bathed Glenn Close, it may yet spring up again, shocking the bejesus out of Dick Cheney and Donald Rumsfeld.

Then tonight on the Rachel Maddow Show, Isikoff was quoted:  

[Attorney General Eric Holder] is seriously considering appointing an outside counsel to consider whether CIA interrogators exceeded legal boundaries and whether Bush administration officials broke the law by giving the CIA permission to torture in the first place.

Listen, I’m as highstrung on this issue as an ex-wife with a restraining order.  I’m dissecting every word, and that’s just how it is.  Deal with it.  The step up from an initial “Holder has discussed” to Holder “is seriously considering” is enough to double my testosterone levels for a few hours.  I feel a lot less defeated now than I did when some of my fellow kossacks tried to convince me I was floundering aimlessly.

Isikoff went on to point out something that has been lost on me in these emotional days–it is unseemly for the WH to insert itself into criminal investigations of the DOJ.  Who can forget Whitehouse’s telling chart, comparing the few lines of communication between the Clinton WH and his DOJ with the infestation of corrupt connections between the Bush WH and his politicized DOJ?  Some standards have been so long gone that it’s hard to remember that they were normal before the last imperial presidency.  Perhaps we have an independent DOJ again.  Let us pray.

Isikoff puts a fine point on this. I’ll lazily quote McJoan (if there’s a fair use issue, please contact my publisher):

Isikoff was on the Rachel Maddow Show tonight, and drew an important parallel that hadn’t occurred to me between the Harman/Gonzales story and this one. Gonzales used the DOJ as a political arm of the administration, and his scuttling of the Harman investigation was for purely political reasons.

The White House cannot and should not put Eric Holder in a similar position by asking the Justice Department to ignore illegal activities by the previous administration in order to “look forward” and make the politics of working on the economy, health care, etc. easier. There must be a bright line between the independent activities of the Department of Justice in investigating and prosecuting criminality and the White House.

In any case, Rahm’s and Obama’s remarks have been untoward, venturing as they do into an area beyond their proper jurisdiction.  But perhaps the purported genius of Obama is at work here–he’s for looking forward, but his DOJ has to do its job.  That thought will lift me up for the next few hours before the another devastating bombshell.  I’ll take what relief I can get.

Also on Rachel’s show, Sheldon Whitehouse, the man who said in December 2007,speaking of illegal wiretapping:

In a nutshell, these three Bush administration legal propositions boil down to this:

  1. “I don’t have to follow my own rules, and I don’t have to tell you when I’m breaking them.”

  2. “I get to determine what my own powers are.”

  3. “The Department of Justice doesn’t tell me what the law is, I tell the Department of Justice what the law is.”

Senator Whitehouse may be what we hippies used to call “straight,” but this man is steeped in respect for the constitution and the rule of law in a way we part-time bloviaters can only begin to imagine.  I trust him.

The great news for those of us wanting to keep open the possibility of prosecution for war crimes comes at the very end, but first they discuss Torture Justifier Bybee.  First, Rachel quotes the NYT’s surprisingly forceful challenge to Bybee’s suitability to be one step shy of the U.S. Supreme Court:

These memos make it clear that Judge [Torture Justifier] Bybee is unfit for a job that requires legal judgment and a respect for the Constitution. Congress should impeach him.

Rachel references Congressman Nalder’s recent quote that Torture Justifier Bybee should be impeached.  Claire McCaskill is quoted as explaining herself concerning Bybee’s behavior: “Yikes!”  Whitehouse is more circumspect, which means you don’t want to be in the room when he is finally ready to unload on you.  Rachel asked him if an impeachment may be warranted in light of the new information that was not known at the time of Torture Justifier Bybee’s confirmation in 2003.

It is certainly possible that an impeachment inquiry is warranted, but I think that decision should probably wait until the Department of Justice’s Office of Professional Responsibility (OPR) finishes its investigation into the Office of Legal Counsel and all of these opinions.  They’ve been working on this for, I would say, more than a year now, and I expect that it will be a very thorough report.  And with that in the offing–I think it can’t be more than a few weeks away–prudence would dictate that we wait and take advantage of all the good work that the Department of Justice, and Marshall Jarrett, who ran the OPR, had done.  And then we’ll have a much clearer sense as to how proceedings, and whether proceedings, should begin.

Whitehouse clearly trusts Jarrett.  Here’s one reference to him in wikipedia:

Jarrett sought to investigate DOJ approval for the National Security Agency’s domestic wiretapping program in 2006, but requisite security clearances were denied.

(Speaker Pelosi also references the upcoming OPR opinions as a basis for the next move.)

Rachel raises the question of the OPR not releasing the report yet because the subjects of the report were given a chance to respond.  Whitehouse says he and Durbin have inquired about that and not received an answer.  He responds with some dry references to the procedure being “not the traditional” way, and unsettles us lovers of truth further by remarking that

You do have the chance, as the subject of an OPR inquiry, to present a defense, but I’ve never heard of a case in which somebody’s actually been entitled to become a co-editor of the opinion or write a chapter in it.

This sounds scary.  The fix is in.  But wait, is Whitehouse almost smirking?  He really does seem to be close to mocking the last pathetic efforts of the Bush “legal” team to escape accountability.  He implies that he will be able to discern to what extent the subjects of the report were involved in writing the report, then ends on a most reassuring note:

There’s every expectation, every reason to believe, that this will be a devastating opinion.

And now for the juice, the reason I have the heart to write this diary.  Senator Whitehouse does not think the door is shut on investigation and prosecution of the war crimes of the Bush administration.

Maddow: Does it seem like there, enough information has come to light that there ought to be a wholesale new inquiry, perhaps starting in the Senate Judiciary Committee?

Whitehouse: I think Michael Isikoff earlier was dead right.  The White House has a strong political imperative to reassure the people of America that they are working as hard as they can on getting us out of the economic ditch that the Bush administration drove us into.  People are suffering in Rhode Island and across the country, and to have the president be focused in that area is exactly, I think, the right message for them to send out.  But it’s a completely different question when it’s the Department of Justice looking at whether the evidence is in place for a criminal prosecution.

Praise be to ye gods of second chances.  The WH is behaving politically, but Mr. Professional DOJ reminds us that the DOJ bases it’s behavior on evidence and the rule of law.  Damn, in the last few years I had plumb forgot how that works.

And I think generating that evidence is important.  We have Senate Intelligence Committee investigation underway.  We have the President’s special task force looking at this question.  We have considerable energy and interest behind this.  We’ve got the OPR opinion coming out soon.  So, there’s a lot of evidence that remains to be gathered.  And I think no good prosecutor would make a decision about going forward until he had all the evidence in place.

Okay, deep breath.  Someone is actually gathering evidence?  Well, I wish they were doing it publicly–it has worked that way in other similar circumstances.  And I know I don’t trust the closed door, but Whitehouse says it is happening.  

The evidence is gradually being amassed, but at this point I would take the Obama administration’s general description of themselves as interested in going forward and working on the economy and all those things as general sort of political discussion, and very appropriately so.  But in the bowels of the Department of Justice, where people actually put together indictments, they look at the evidence, and they look at the law, and we need to let that process go forward.  I do not see anything in what the Obama adminstration has said that would allow anything other than the traditional defenses to be raised:  that it was reasonable to rely on these opinions, that people acted in good faith, that they acted within the scope of the opinions, both as to what people were allowed to do and the predicates, the predicates for engaging in this conduct in the first place.  Once you’re outside of those, then you’re in a world in which you are vulnerable to prosecution, and nobody in the administration has said somebody in that world should not be prosecuted.

If it were someone other than Whitehouse, I would assume I was being jerked around in an attempt to calm all the fervor in the blogosphere.  But I saw how deeply offended, personally hurt and angry he was at the Bush trashing of the DOJ.  I do not know of his feelings on torture, but these two issues overlap enough to know that when Whitehouse is subtly smirking at the thought of the OPR reports, it’s good news for my side.  I have to admit not fully understanding his last sentence, but it sounds to me as though the lawyers and the “deciders” are still fair game.  How to reconcile that with Rahm’s remarks, I don’t know.  And it has been well established that those “traditional defenses” do not protect one from culpability for war crimes, so I’m not sure exactly what line he has drawn there.  I think the bottom line is that it doesn’t much matter what Obama says; the DOJ is an independent entity.

With this first good news after two days of misery, someone went into full gloat mode in McJoan’s diary:  “Ha ha look how far ahead Obama is of everyone those stupid people who don’t deserve to kiss Obama’s lapel pin”  kind of thing.  Luckily, someone was on hand to call that Obamabot a zombie.  Sigh.  We’re discussing torture, but the main thing is to be proven right in the end.  Well, I’ve figured out how we can all be right, but I doubt we’ll have the good sense to celebrate together if it plays out this way.  “My side” can be fairly certain that Whitehouse’s tone and content were informed by the considerable agitation he is seeing from us Obama mistrusters.  He seemed to be directly addressing the concerns of those of us who have been so discouraged by Obama’s and Rahm’s remarks over the weekend.  And bully for us for screaming loud enough to be heard in Washington.  And if Holder does appoint an outside counsel to investigate, the Obama fans can be right that their man cleverly minimized the perception of a political prosecution by having remained focused on other issues while letting his DOJ operate independently.  That would be a clever political move indeed.  And if it happens, I’ll write an ode to the wisdom of Obama and the hysteria of the moralizers right here on dkos.  Crow would never be tastier than during the sentencing of those who tortured in our name.  Until then, I’m going to be reacting fervently to every hint and clue.

Finally, a word about waiting.  I remember waiting for the two million emails that disappeared.  I remember waiting for Harriet Myers to testify before Congress.  I remember waiting for Rove to be arrested for contempt of Congress.  I remember . . . well, you remember, too.  My amygdala is flashing like crazy telling me, “You’ve been here before and very very bad things happened.”

So, fair warning, I’m going to wait in a state of near-hysteria–I ain’t gonna quiet down.  And I’m not trusting Obama.  And I’ll remain convinced that the intelligence agencies are actually running the show and that our government is owned by the corporations.  But I will try to remember that nothing more is going to happen, nothing more is likely to emerge, before the issuing of the OPR opinions.  For those of you already bored by this topic, I would suggest a vacation that week, because we moralizers will be reacting to every word.  We will be insisting that torturers see justice.

[Crossposted on dkos]