Politics & Policy

Remember ‘No Controlling Legal Authority’?

The CIA probe shows once more that the law does not control this attorney general.

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.

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.


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.

Obviously, holding an unloaded gun to a prisoner’s head and pulling the trigger or forcing a prisoner to play “Russian roulette” would qualify. By contrast, the DOJ guidance said keeping threats “vague,” such that there was “a lack of certainty” that actual harm might occur, would not produce the severe psychological suffering required for a torture offense. Brandishing guns or dangerous instruments is rough behavior. But rough is not fear of imminent death or severe pain; it is not criminal, much less torture.


Here, it is necessary to clear up some Holder-induced confusion. The attorney general, like his president, claims that all waterboarding is torture (which is not true) and implies that interrogation practices under Bush’s CIA program were forms of torture even if the DOJ guidance permitted them (which is further still from the truth). That lays the groundwork for Holder to posit that any CIA practices that went beyond what the DOJ permitted were certainly torture.

Meanwhile, within the broad limits of what the DOJ permitted, the CIA had its own narrower rules. They were narrower because a government agency never wants to operate at the outer margins of its legal authority — otherwise, if mistakes are made (as they always are), those mistakes are crimes.

The IG report describes the interrogators’ use of the gun and the drill as being “unauthorized.” But “unauthorized” is a misleading term. To begin with, just because a tactic was not authorized by CIA rules (which state what practices the agency permits or forbids) does not mean it was a violation of the DOJ guidance (which undertook, in part, to state what was and was not illegal). When Holder and the media point to “unauthorized” tactics, they are happy to have you assume this means “unauthorized by the DOJ guidance” — which is what Holder claims is the valid basis for conducting a criminal investigation. But what they actually mean is “unauthorized by the CIA rules” — which may be a basis for administrative discipline (e.g., firing or reprimanding an interrogator) but provides no basis for conducting a criminal investigation.

And here, the label “unauthorized” is even more disingenuous, because it’s not even clear the use of guns and drills was prohibited under the CIA rules. At pages 40-41, the IG report relates that, at the start of its interrogation program, the CIA did not have lots of rules. Instead, a practice developed in which interrogators would exchange cable communications with their headquarters to get clarity on what they could and couldn’t do. The report continues:

Agency personnel were authorized to employ standard interrogation techniques on a detainee without Headquarters’ prior approval. The guidance did not specifically address the use of props to imply a physical threat to a detainee, nor did it specifically address the issue of whether or not the Agency officers could improvise with any other techniques.

Translation: Though it was foreseeable that there might be some use of props to induce fear, the CIA rules did not address props one way or the other. The interrogators weren’t told what they could or could not use. The use of a gun or a drill was “unauthorized” only in the narrow sense that no one told the interrogators, “You can use guns and drills as props.” But it’s equally true that no one said, “You can’t use guns and drills as props.” Holder wants you to believe that “unauthorized” means the interrogators either (a) did things they were explicitly told not to do, or (b) were explicitly told that tactics were prohibited unless the CIA had expressly approved them. To the contrary, while not authorized, guns and drills were not prohibited either.

That gets us to the issue of judgment. It may have been appalling judgment to use a gun or a drill as a prop, even if only for brandishing or flipping on and off rather than for making an imminent threat. But stupidity is not a crime, and here it wasn’t even clearly prohibited. Should it have been? Maybe, but that’s policy. Prosecutors do law, not policy.


Let’s move on from the lack of imminent-threat evidence  to two other essential elements of a psychological-torture offense: intent and harm.

As I’ve detailed a couple of times (see here and here), torture is a specific-intent crime. It cannot be proved unless the government can demonstrate, beyond a reasonable doubt, that an interrogator was trying to torture a prisoner. For a psychological-torture offense (as opposed to physical torture), the government’s burden is even more demanding. As the DOJ guidance explained, there must be a showing of intent to cause prolonged psychological damage.

This is where the “mock execution” comes in. In assessing whether the interrogator intended to inflict prolonged psychological damage, threats to third parties are relevant. If one were to tell a detainee that if he didn’t cooperate he’d be killed just like X non-cooperator, and then a mock execution of X were staged before the detainee’s eyes, that would be egregious. If a mock execution of X were staged before the detainee’s eyes but without threatening the detainee that he was next, we get into the same “lack of certainty” we saw with the element of imminence. And the threat would be vaguer still if the detainee were told nothing but heard shots fired, was shown an apparently dead body, and was left to speculate about what had happened and what it might portend for him.

Again, all of this is unsavory, but that doesn’t make it criminal. The further one gets from threats that are imminent and certain, the less compelling is the evidence that an interrogator had the specific intent to inflict psychological torture. That’s especially true if it turns out the interrogator was constantly going back to his superiors for clarity about what he was permitted to do — something you’d only do if your intent was to avoid committing torture.

This moves us to the closely related issue of harm. It’s not enough, in a psychological-torture case, for the prosecutor to prove that the interrogator intended to cause prolonged harm. As the DOJ guidance told the CIA, the pressure inflicted must “cause long-term mental harm” — as in extreme, debilitating anguish of mind. That is, to establish a torture offense here, the prosecutor would have to prove that the tactics used actually inflicted prolonged mental harm on hardened al-Qaeda terrorists — who claim to love death more than life — and who had been schooled in interrogation-resistance techniques at their training camps. In fact, many of the worst terrorists actually teach interrogation resistance.

Clearly, many sensible people will not only feel revulsion over these tactics but be outraged that the United States resorted to them. But revulsion does not prove a crime, much less a crime of torture. Outrage about a government policy is not an ethical rationale for prosecuting the operatives who carried out the policy. The law makes torture very difficult to prove. That is by design. It is among the most heinous of imaginable offenses. We trivialize the concept, and the barbarities committed by history’s monstrous regimes, when we apply the label “torture” to conduct that, though disturbing, does not approach this level of horror.

Obviously, that is why the Obama-Holder Justice Department has argued in federal court that government officials do not commit torture, even if they actually do inflict severe pain on a detainee, unless it is clear that torturing the victim was their purpose. If they had a different purpose, there is no torture. In fact, in recent testimony before the House Judiciary Committee, Holder — despite his prior insistence that waterboarding is always torture no matter how administered — conceded that U.S. government trainers who waterboard military and intelligence personnel cannot be guilty of torture. As Holder explained, because their motivation is to teach trainees to resist interrogation, not to cause severe pain, there is no crime.

Investigations are about satisfying daunting legal standards, not mollifying an administration’s political base. Here, there is not just reasonable doubt that the interrogators engaged in imminent threats, intended to commit psychological torture, and caused prolonged, severe mental damage to the terrorist detainees. There is virtual certainty that they did not. Clearly, that is why the professional prosecutors who probed these cases over the last several years opted not to bring charges.

When Al Gore clearly violated the law, Eric Holder found no controlling legal authority and shut down the case. Now, when the controlling legal authority clearly shows no violation of law, Holder has unleashed the prosecutors to go after the nation’s most crucial line of defense against terror. That is shameful.


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