Last week, House Democrats launched a sneak attack on the CIA, inserting into the intelligence authorization bill — without advance notice to Republicans or the CIA — a provision that would have criminalized the intelligence services’ use of certain interrogation tactics. People such as Andy McCarthy exposed this effort, and Democrats were forced to pull the entire bill.
This was a good outcome for the intelligence community and the people who care about it, but the ploy was just the latest attempt of many by the Left to score political points at the expense of the men and women who defend our national security. The most damaging blow came six months ago, when Attorney General Eric Holder announced he would reopen an investigation of the CIA’s interrogations of certain suspected terrorists — an investigation that had been closed for four years.
Although the usual suspects in left-wing corners hailed Holder, others panned the decision. Seven former CIA directors, who had served under Democratic and Republican presidents, wrote a letter reminding President Obama of his pledge to look forward, a pledge that could be kept only “if the investigation of these interrogations that Attorney General Holder has re-opened is now re-closed.” The former directors were concerned not only about the unfairness to the individuals involved but also that Holder’s decision would “seriously damage the willingness of many other intelligence officers to take risks to protect the country.” Such risk-taking, the directors explained, “is vital to success in the long and difficult fight against the terrorists who continue to threaten us.” The president rejected their advice, though the White House has tried to distance itself from Holder’s decision.
Was Holder merely reversing a “CYA” decision of the Bush administration? Hardly. During the Bush years, the CIA asked the Justice Department to consider whether criminal charges were warranted in a number of instances. In all but one case (which concluded with the successful prosecution of the interrogator), two sets of career federal prosecutors with extensive experience trying terrorism and national-security cases, in two rounds of review, decided the answer was no. As is their practice, the prosecutors wrote memos — known as “declination memos” (because they declined to prosecute) — explaining their reasoning.
Did Holder find some flaw in their work? Was there some evidence of bias? No. There has been no hint that these prosecutors were mistaken or intimidated or biased or compromised in any way. By all indications, they did their jobs carefully and objectively. Nonetheless, Holder declared it was open season on the intelligence community.
Holder’s excuse for reopening the investigation was that he had just read the report of Justice’s Office of Professional Responsibility (OPR) recommending that John Yoo and Jay Bybee face disciplinary proceedings for the advice they provided on the lawfulness of the CIA interrogation program. Here’s the relevant excerpt from Holder’s press release:
The Office of Professional Responsibility has now submitted to me its report regarding the Office of Legal Counsel memoranda related to so-called enhanced interrogation techniques. I hope to be able to make as much of that report available as possible after it undergoes a declassification review and other steps. Among other findings, the report recommends that the Department reexamine previous decisions to decline prosecution in several cases related to the interrogation of certain detainees.
I have reviewed the OPR report in depth. Moreover, I have closely examined the full, still-classified version of the 2004 CIA Inspector General’s report, as well as other relevant information available to the Department. 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 nods at the CIA inspector general’s report, but this report had already been scrutinized by the prosecutors who declined to bring charges; indeed, that report was the primary basis for CIA’s referral of the matter to Justice in the first place. He also refers to unspecified “other relevant information.” We have no idea what that might be, but we know for sure that it did not include the declination memos.
The report recommending that Holder revisit the declinations has finally been released; one can find that recommendation on page 95. All of OPR’s analysis leading to that recommendation is blacked out, however. In part, we assume, this is because some of the details of the interrogations remain classified. But why Justice could not release those parts of OPR’s analysis that were purely legal in nature — for example, what case law or statutes it was relying on to recommend reopening the investigation — is a mystery.
Unredacted is OPR’s view that the “changed legal landscape” supposedly militates in favor of reopening. We don’t know what OPR means by this. Do they mean the Detainee Treatment Act of 2005? The Military Commissions Act of 2006? Of course, these laws were passed after the interrogations in question had occurred, and we assume OPR knows that it would be unconstitutional to charge the interrogators with violating laws that didn’t exist when the conduct in question happened.
We suspect that OPR’s use of the word “legal” was euphemistic, and that what they really meant to say was “political.” OPR was both prescient and savvy on this front. The new political leadership at Justice proved exceptionally receptive to overturning the decisions of two groups of career prosecutors without so much as reviewing their reasons for declining to bring charges.
If the quality of the rest of the report is any guidepost, the reasoning behind the OPR recommendation was unimpressive. The shoddiness of the analysis behind OPR’s allegation that Yoo and Bybee committed professional misconduct has been detailed by former attorney general Michael Mukasey and his deputy Mark Filip; Yoo and Bybee’s lawyers; and David Margolis, the career Justice official with the responsibility for reviewing OPR’s work. It was fortunate for Yoo and Bybee that Margolis has been reviewing OPR reports for 17 years, because he saw the report for what it was and rejected OPR’s recommendation.
The CIA interrogators have no such luck. Margolis reviewed only negative recommendations leveled by OPR against current or former Justice Department lawyers. Since the interrogators did not work for Justice, the CIA does not receive the benefit of Margolis’s analysis and is stuck with the report — and with Holder’s over-hasty judgment.
Should we have any more confidence in OPR’s recommendation to re-examine the prosecutors’ declinations? To the contrary, there is every reason to think OPR botched the job. We wrote last week that OPR, Justice’s version of internal affairs, is not equipped to second-guess the legal analysis of the Office of Legal Counsel, or OLC, which provides advice on the most difficult legal matters to the entire executive branch and is staffed with some of Justice’s top minds on constitutional law. Moreover, OPR’s report served no useful purpose, because OLC had long since disavowed and withdrawn the flawed analysis of the Yoo and Bybee memos.
OPR is equally out of its depth in re-examining how seasoned career prosecutors — people who actually try criminal cases for a living and must carefully examine the strength of the evidence before indictment and trial — exercise their prosecutorial discretion to bring, or not to bring, charges. Critically, after reviewing a draft of the unredacted report before they left office, Mukasey and Filip (both of whom are former prosecutors and federal judges) wrote to OPR that reconsideration of the declinations was unwarranted because there was nothing in the report that would likely affect the prosecutors’ decision.
Unlike OPR, which conducts internal inquiries and issues reports without regard for the rules of evidence or the oversight of neutral arbiters outside the Justice Department, federal prosecutors need to convince impartial judges and juries that they have a viable case and can prove it beyond a reasonable doubt. That is foremost in a good prosecutor’s mind before he or she makes the enormously consequential decision — to the targeted individuals, their families, and the integrity of our justice system — to bring criminal charges. OPR does not have a seat at the table when the decision to prosecute is made. It is not informed, consulted, or asked its view of the law or the strength of the evidence. OPR has a much narrower role: to investigate incidents of alleged prosecutorial misconduct by Justice Department lawyers. To be sure, if there were an allegation that the prosecutors who declined to bring charges against the CIA interrogators had committed wrongdoing or acted corruptly or with gross negligence, OPR could investigate. Of course, there was no suggestion of anything like that here.
OPR meandered into other areas far outside its competence. The report contains a digression on a CIA evaluation that found enhanced interrogation techniques to be effective in eliciting useful intelligence. OPR concluded that the CIA’s assessment was unreliable — and that when OLC, under Steve Bradbury, reviewed the program in 2005 and 2007, it should have discounted this assessment.
There is surely a worthwhile debate to have about whether enhanced interrogation techniques actually work. Some in the CIA, including former director Gen. Michael Hayden, say they do work under the right circumstances, and the Obama administration’s current director of national intelligence, Dennis Blair, is also on the record stating that the CIA’s enhanced interrogation program was effective. On the other hand, some in the military and in the FBI believe that coercive interrogation methods are unnecessary, even counterproductive.
But in joining this debate, OPR betrays a fundamental misunderstanding of its own role: Who knew that OPR employed highly trained intelligence analysts qualified to second-guess the CIA’s expert assessment of the effectiveness of its interrogation program? And in criticizing OLC for not joining this debate, it betrays an ignorance of OLC’s essential role as a legal adviser, and not an intelligence service, for the executive branch. A principal responsibility of OLC is to answer questions posed by client agencies concerning the lawfulness of proposed or existing policies. As a legal adviser, OLC must rely on its clients’ representations as to the effectiveness of their policies, how the policies will be carried out, and the limitations and conditions to which the agencies will adhere.
It is not OLC’s job to investigate the expert factual assessments of other agencies, or to monitor whether the agencies actually carry through on their promises to abide by specific conditions and limitations. This is how OLC has always operated, and it is how Bradbury operated, even by OPR’s account.
We understand that OLC provided a detailed rebuttal of OPR’s criticism. Holder has chosen to keep that rebuttal out of the public eye.
Holder should follow Margolis’s lead and reassess the unprincipled, and frankly absurd, decision to reopen criminal investigations based on something as flimsy as OPR’s disagreement with career prosecutors. We are under no illusions that will happen. But we do have some questions for Justice:
1. What were OPR’s grounds for recommending the career prosecutors’ declination decisions be revisited?
2. Why did Justice redact the entirety of OPR’s analysis of the declination decisions?
3. What was the “other relevant information” Holder considered in deciding to reopen the investigation?
4. Why did Holder not review the declination memos or consult with the career prosecutors who wrote them?
5. Did Holder provide the prosecutors an opportunity to review OPR’s report and reassess their own declinations? If so, what was their view? If not, why not?
6. Are we to take Holder’s acceptance of OPR’s recommendation over that of the prosecutors to indicate that he believes the prosecutors acted inappropriately? If so, what is the basis of that conclusion?
7. With whom did Holder actually consult about reopening the investigation, and did any of those people formerly represent Guantanamo detainees?
8. Why has Justice declined to make public OLC’s rebuttal of OPR’s criticism of Bradbury’s opinions?
We look forward to Justice’s responses.
— Bill Burck is a former federal prosecutor and deputy counsel to Pres. George W. Bush. Dana M. Perino is former press secretary to President Bush.