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Undermining faith in law enforcement and national security: the legacy of Eric Holder

I wrote here about the sustained persecution of CIA agents who protected America by obtaining information from terrorists in the aftermath of 9/11. The persecution culminated in a decision by Attorney General Holder to reopen cases against some agents that the Justice Department had already deemed unworthy of prosecution.

I now know the “back story” to Holder’s decision. It renders that decision even more disgraceful than I had thought.

The back story is set forth in the pretentiously titled book Kill or Capture: The War on Terror and the Soul of the Obama Presidency by Daniel Klaidman, a veteran Newsweek correspondent. As Michael Mukasey, Holder’s predecessor as Attorney General, shows in the the November 2012 issue of Commentary, Obama’s approach to dealing with terrorism and terrorists, as depicted by Klaidman, is “a four year scandal.” I urge you to read Mukasey’s article.

My focus, though, is on Holder’s decision to reopen the investigation of the CIA agents. Understand first that the techniques used by these agents had been analyzed in detailed legal memos by Justice Department lawyers that, although revised at least once, concluded uniformly that they violated no standards applicable when the memos were written.

Moreover, career prosecutors in the Eastern District of Virginia had investigated each instance of claimed unlawfulness and had concluded that none merited prosecution. They had drafted detailed memoranda describing their conclusions and the reasons for closing each of the investigations.

But Holder ordered the investigations reopened. And he did so, by his own account in testimony, without even having read the memoranda prepared by the career prosectors.

By doing so, as Holder surely was aware, he risked seriously damaging morale within the agency. And, according to Jack Goldsmith in his book Power and Constraint, morale at the CIA did suffer.

Holder also knew that he was inflicting damage on the CIA agents regardless of the outcome of his action. After reasonably concluding that they had been exonerated, the agents now once again had to lawyer up, refresh their memories, and face a grand jury.

So why did Holder reopen the investigation? Klaidman’s book identifies, in essence, two reasons: Chrisopher Hitchens and Marc Rich.

Hitchens had volunteered to be waterboarded and videotaped his experience of the procedure. Then, in the pages of Vanity Fair, he pronounced the experience “torture.”

With his characteristic lack of rigor, Hitchens didn’t bother to define torture and there is no indication that he consulted the legal definition of it. As Mukasey explains:

The word “torture”. . .is defined in the applicable statute that criminalizes torture as acting under color of law with the specific intent to cause “severe physical or mental pain or suffering.” “Severe mental pain or suffering” is defined as “prolonged mental harm” resulting from any of several causes, including “severe physical pain or suffering” or the threat thereof, or the threat of imminent death; “severe physical pain or suffering” is not defined.

Hitchens. . .never claimed to have. . .experienced any prolonged effects from his ordeal; he simply announced that what he had experienced was torture. According to Klaidman, Holder watched the video of Hitchens’s experience, which showed that Hitchens had “lasted for fewer than 10 seconds before asking for mercy” and was “both mesmerized and repulsed.”

I understand that we live in the age of YouTube. But is it too much to expect of the Attorney General of the United States that he review his lawyers’ legal analysis, even if only as a supplement to his video watching, before making a decision that jeopardizes CIA morale, and hence the national security?

Marc Rich is the crooked financier charged with tax evasion, whose wife had contributed huge sums to the Clinton campaign and library. He fled the country to avoid prosecution, but received a pardon from President Clinton on Holder’s recommendation. As with his decision to reopen the investigation of the CIA agents, Holder failed to consult with the relevant prosecutors in his own department before acting on Rich’s pardon request.

According to Klaidman, Holder felt guilty about the pardon of Rich. Somehow that guilt was taken out on public servants who, unlike Rich, had been cleared of wrongdoing. To perceive a connection between Rich and the CIA agents in question should disqualify Holder from any job that requires analysis, never mind the position of Attorney General of the United States.

As Mukasey concludes of his successor as Attorney General:

The chief law-enforcement officer of the United States knowingly damaged morale in the nation’s principal intelligence agency by reopening investigations previously closed by career prosecutors within his own department without bothering to read why they did so. Holder acted on the strength of a fewer-than-10-second simulation of waterboarding performed on a writer devoid of any acquaintance with the law, and on his own guilty conscience over a previous lifting of tax-evasion charges in a case in which he also did not bother to determine why career prosecutors in his own department had acted. In so doing, he moved with exquisite efficiency to undermine faith simultaneously in law enforcement and national security.

“Undermining faith simultaneously in law enforcement and national security.” That is the legacy of Eric Holder’s disgraceful tenure at the Department of Justice.

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