Seven former CIA directors have sent a letter to President Obama, urging him to overturn Attorney General Eric Holder’s decision to appoint a torture prosecutor.
Holder’s decision, they wrote “creates an atmosphere of continuous jeopardy for those whose cases the Department of Justice had previously declined to prosecute.” they added that the probe “will seriously damage the willingness of many other intelligence officers to take risks to protect the country.”The seven former directors are Michael Hayden, Porter Goss, George Tenet, John Deutch, James Woolsey, William Webster and James Schlesinger. One former director whose name isn’t on the letter: George H. W. Bush.
Obama has said that the decision should be made by the Justice Department.
Spencer Ackerman of the Washington Independent notes an apparent factual error in the letter. The ex-directors write:
Not only will some members of the intelligence community be subjected to costly financial and other burdens from what amounts to endless criminal investigations, but this approach will seriously damage the willingness of many other intelligence officers to take risks to protect the country.
But the 2005 Detainee Treatment Act ensured that the government will pick up the tab for any government employee under investigation for detainee abuse. And the CIA has confirmed that it will pay the legal expenses of any of the agents who are prosecuted.
It’s perhaps not surprising that former CIA directors believe the CIA should be above the law. And also that the Justice Department disagrees.
Late Update: The ACLU’s Jameel Jaffer has called the ex-director’s letter “self-serving.” In a statement, Jaffer said:
Attorney General Holder initiated a criminal investigation because the available evidence shows that prisoners were abused and tortured in CIA custody. The suggestion that President Obama should order Attorney General Holder to abort the investigation betrays a misunderstanding of the role of the attorney general as well as the relationship between the attorney general and the president. Where there is evidence of criminal conduct, the attorney general has not just the authority but the duty to investigate. The attorney general is the people’s lawyer, not the president’s lawyer, and it would be profoundly inappropriate for President Obama to interfere with his work.
The attorney general’s investigation should be allowed to proceed without interference, and it certainly should not be derailed by the self-serving protests of former CIA officials who oversaw the very crimes that are being investigated. If there is a problem with the unfolding criminal investigation, it is that its focus is too narrow. There is abundant evidence that torture was authorized at the highest levels of the Bush administration, and the Justice Department’s investigation should be broad enough to encompass Bush administration lawyers and senior officials – including the CIA officials – who authorized torture.
Late Late Update: Via Spencer, a response from the Justice Department:
The Attorney General works closely with the men and the women of intelligence community to keep the American people safe and he does not believe their commitment to conduct that important work will waver in any way.
Given the recommendation from the Office of Professional Responsibility as well as other available information, he believed the appropriate course of action was to ask John Durham to conduct a preliminary review. That review will be narrowly-focused and will be conducted by a career prosecutor who has shown an ability to handle cases involving classified information. Durham has not been appointed as a special prosecutor; he will be supervised by senior managers at the Department.
The Attorney General’s decision to order a preliminary review into this matter was made in line with his duty to examine the facts and to follow the law. As he has made clear, the Department of Justice will not prosecute anyone who acted in good faith and within the scope of the legal guidance given by the Office of Legal Counsel regarding the interrogation of detainees.