White House Aide Denying That Holder Ruled Out Prosecuting Bush Officials
An aide to incoming Attorney General Eric Holder is denying that he privately told GOP Senators that he’d ruled out prosecuting former Bush officials involved in interrogating programs.
Earlier today, the Washington Times got everyone stirred up by reporting that GOP Senator Christopher Bond had decided to back Holder’s confirmation for AG because Holder had privately assured him he wouldn’t pursue such prosecutions. The story has cheered conservatives today, and sent human rights advocates into a panic.
But a Holder aide says the tale is bogus. He just emailed me this:
Eric Holder has not made any commitments about who would or would not be prosecuted. He explained his position to Senator Bond as he did in the public hearing and in his responses to written questions.
Here, also sent over by the Holder aide, is what Holder wrote in response to written Senate questions about this:
Prosecutorial and investigative judgments must depend on the facts, and no one is above the law. But where it is clear that a government agent has acted in “reasonable and good-faith reliance on Justice Department legal opinions” authoritatively permitting his conduct, I would find it difficult to justify commencing a full-blown criminal investigation, let alone a prosecution.
That is certainly not a blanket ruling out of prosecutions, and presuming that Holder did repeat this answer to Bond, it’s not hard to see how someone might hear what he or she wanted to hear in it. What’s more, the substance of the prosecution debate aside, it seems highly unlikely that Holder would trade a blanket assurance such as this one for confirmation.
Glenn Greenwald observes that “something caused virtually all of the [Judiciary] Committee Republicans to vote to confirm Holder today.” It seems unlikely that Bond’s version of events is it, however.
This could be a case of everyone reading what they want to find in Holder’s words, expecially the written response to Judiciary questions. That statement is not a firm promise never to prosecute, and is appropriately qualified. But I cannot read it and reasonably expect prosecutions to occur. Notably, Holder’s position there is not unlike prior public statements by Marty Lederman, a prominent legal critic of Bush administration interrogation policies who now is nominated to fill John Yoo’s old job at the DOJ Office of Legal Counsel.
agree jao, it seems to be shaded in the direction of not prosecuting, which could have been enough for Bond to hear what he wanted to hear.
So it comes down to whether one can in good-faith pretend that the best known crime in the world is legal because your subordinate obediently drafts an opinion stating so.
yeah david, true enough — that’s of course missing from the discussion: presumably these lawyers were under pressure from above to come up with these opinions.
anyway, our open thread is up:
http://theplumline.whorunsgov.com/probes-of-bush-administration/happy-hour-roundup-3/
I would like as much as anyone to see some reckoning for violations committed during the Bush administration. But I am increasingly pessimistic that there will ever be any criminal accountablity. I’m not convinced that the high officials involved truly had a “reasonable and good faith” reliance on the flawed opinions, but it might be difficult to prove otherwise. Civil actions are a different matter, as is the prospect of some official “truth commission” to more fully expose the wrongdoing. Since Obama clearly seems not to want to be seen indicting his political predecessors and their high-level aides, perhaps he should openly and officially pardon them.
Just to be clear, there was another aspect in addition to interrogation. According to the Washington Times, Bond also claims Holder made a promise to him on illegal surveillance:
good point Crust. I’d forgotten that. worth digging into tomorrow.
Planting minions in DOJ with instructions to invent bogus interpretations of law must certainly be illegal. Whether it is “clear” that the opinions subsequently rendered were followed with faith that was “good” strikes me as a question much better put to a jury than an administrator.
On this issue, sadly, Marty Lederman provides a dubious stance. One that seems biased per his previous position in the OLC … he for some reason appears to be of the sort who thinks that thinks because the higher ups says so, criminality by inferiors can be deemed legal. This reeks of the “Nazi defense” and ML should be embarrassed.
Regarding the wiretapping issue here, I think what that passage refers to is the provision of the FISA amendment of 2008 granting immunity to telelcoms in civil lawsuits. For that provision to apply, the AG has to make certain factual certifications about the surveillance in question. It is hard to see how the AG would have much discretion not to make the certifications if the facts were true. It had never occurred to me that he would not. For those of us who don’t care for that provision –including me — we should not take this out on Eric Holder, but on the members of Congress who enacted it.
There will not be any prosecutions or truth commissions . The Reactionary Oligarchy’s Noise Game (RONG) will disrupt any such “business as unusual”–along with any other kind of business and we all know it.
This bogus “promise” is a set up–if any prosecutions were undertaken the “equal time deflection talking points” would be about how Holder lied to a Senator and/or how he wasn’t independent enough, just as they said he wouldn’t be, to withstand pressure from his boss.
You don’t hear the drumbeat, already, for impeachment of Holder?
Ironic isn’t it? A candidate for Attorney General questioned by this crew about whether he might not be able to withstand pressure from the President?
You gotta give it to them for doing stuff like this. The power of outright lies–as well as doing what you are accusing others of doing–proves overwhelming, over and over.
Makes me wonder more about the rest of us than it makes me wonder about them.
Wicked site man. I really like the theme you used. Is it a free one?