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Remember ‘No Controlling Legal Authority’?
The CIA probe shows once more that the law does not control this attorney general.


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Andrew C. McCarthy

It was a dozen years ago when Eric Holder began his first tour of duty at the Justice Department, as deputy attorney general. At the time, DOJ had a major hot potato on its hands: Al Gore, the vice president of the United States, had engaged in a clear, black-and-white felony violation of campaign-finance laws.

Gore made phone calls soliciting campaign contributions from his White House office. As Charles Krauthammer wrote at the time, “Section 607 of Title 18 of the U.S. Criminal Code states very clearly there is to be no solicitation of campaign funds in federal government offices. Gore broke the law as written, as understood and as practiced.” Violations of Section 607 called for a penalty of up to three years in prison.

Gore had no real defense, so he trotted out a phony one: There was, he infamously claimed, “no controlling legal authority.” What he meant was that there weren’t many court decisions interpreting the meaning of Section 607. It was laughable. The rule of thumb for judges, as for the rest of us, is that laws are construed to mean what they say, the ordinary, everyday understanding of the words. Most statutes are not 1,000 pages of health-care arcana. When they are succinct and clear, we don’t need judicial opinions to divine their meaning. No solicitation of campaign funds in federal government offices means: No solicitation of campaign funds in federal government offices.

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But Gore was the heir apparent to Pres. Bill Clinton, and the deputy attorney general was very much hoping to become the attorney general in a Gore administration. So Holder found it within himself to oppose the appointment of a prosecutor. Gore was in the clear.

The CIA did not make out so well. Holder, having finally become attorney general eight years later than planned, has just appointed a prosecutor to investigate the agency’s interrogators, which really means to investigate the Bush administration’s interrogation practices. Thus does Holder begin delivering on the “reckoning” he promised the hard Left as an Obama political spokesman during the 2008 campaign. The attorney general has plunged into this crassly partisan adventure even though, this time around, the controlling legal authority says there is no case and, therefore, no ethical basis for conducting an investigation.

IMMINENT THREAT

Holder rests his decision on a five-year-old report by the CIA’s inspector general that was declassified on Monday. The most alarming details revealed by the report involve Abd al-Rahim al-Nashiri, the al-Qaeda chieftain said to have directed the October 2000 U.S.S. Cole bombing that killed 17 members of the U.S. Navy. The report alleges that a gun was brandished during Nashiri’s interrogation and that a power drill was held near him and occasionally turned on and off. Moreover, it is claimed that, on more than one occasion, shots were fired in adjoining rooms in a manner suggestive of the possibility that the CIA was executing uncooperative detainees.

These details are grisly, but the pressing question for a prosecutor is whether they rise to the legal threshold of torture. And that means examining these actions under federal law, not on the basis of our tender sensibilities or the rhetoric of human-rights activists. There are many necessary questions in the interrogations debate: Were the tactics used effective? Even if they were, are they tactics we should be using? If the answer depends on the circumstances, in what types of emergencies should we resort to coercive measures of this unsavory type? But notice that all those questions are about public policy.

Holder isn’t supposed to be doing policy here. He is supposed to be doing law. The question for a prosecutor is whether, on a dispassionate legal analysis, and with the understanding that the interrogators would be presumed innocent at trial, there is sufficient evidence to prove every element of a torture offense beyond a reasonable doubt. Journalists and political activists casually throw around terms like “threats of imminent death” (which are outlawed by the torture statute). Prosecutors, however, have to back their allegations up with evidence that satisfies exacting legal requirements.

Undeniably, interrogators resorted to these dubious tactics to put detainees in fear. But putting detainees in fear, or making them extremely uncomfortable, is neither illegal nor unusual. To rise to the heinous level of a psychological-torture violation, the government must prove, among other things we’ll get to, that the imminent infliction of death or severe pain was threatened. The CIA was advised in 2002 Justice Department guidance that, to qualify as “imminent,” threats would have to be clear and immediate.



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