U.S. Attorney General Eric Holder appointed Assistant United States Attorney John Durham to investigate torture by U.S. officials since President Bush commenced the “war on terror,” but in the same act also gave political cover from that prosecutor to anyone who actually committed torture.

Holder announced the August 24 appointment with the proviso that anyone who engaged in torture at the urging of senior Bush administration officials would be exempted from prosecution. Holder said torturers “need to be protected from legal jeopardy when they act in good faith and within the scope of legal guidance. That is why I have made it clear in the past that 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. I want to reiterate that point today, and to underscore the fact that this preliminary review will not focus on those individuals.”

“I was only following orders” is now apparently a complete defense under the Holder Justice Department. But this was precisely the defense rejected at the Nuremberg trials after the Second World War from German soldiers who had committed war crimes. The accused claimed they should be held innocent from punishment for killing Jews and others because they were only following the Führer's legal orders. Although there were numerous problems with the Nuremberg trials, the one truly worthwhile precedent to come out of the tribunals was the principle that men are always responsible for their own actions.

If Holder is serious that “the Department of Justice will not prosecute anyone who acted ... within the scope of the legal guidance given by the Office of Legal Counsel regarding the interrogation of detainees,” then it will be impossible to prosecute anyone. The “legal guidance” — so called — by the Bush-era Office of Legal Council (OLC) essentially said that U.S. Interrogators could perform any kind of torture upon detainees with prosecutorial immunity. The OLC under Deputy Assistant Attorney General John C. Yoo and Jay S. Bybee explicitly stated that interrogators were above the law in a 2002 legal memorandum:

As we explained above, the application of these [torture] statutes to the President's conduct of the war would potentially infringe upon his power as Commander in Chief. Furthermore, the conduct here at issue — interrogations — is a core element of the military's ability to prosecute a war. As a general matter, we do not construe generally applicable criminal statutes to reach the conduct of the military during a war....Moreover, we conclude that different canons of construction indicate that generally applicable criminal laws do not apply to the military interrogation of alien unlawful combatants held abroad. Were it otherwise, the application of these statutes to the interrogation of enemy combatants undertaken by military personnel would conflict with the President's Commander-in-Chief power.... Finally, even if the criminal prohibitions outlines above applied, and an interrogation method might violate those prohibitions, necessity or self-defense could provide justifications for any criminal liability.

Yoo went on in that 2002 memorandum to make a number of legally spurious arguments that would justify actual torture within the confines of the felony torture statute under so-called “necessity” or “self-defense” justifications:

In the current conflict, we believe that a defendant accusing of violating the criminal prohibitions described above [the torture law] might, in certain circumstances, have grounds to properly claim the defense of another. The threat of an impending attack threatens the lives of hundreds if not thousands of American citizens.... [T]he defendant could claim that he was fulfilling the Executive Branch's authority to protect the federal government and the nation from attack after the events of September 11, which triggered the nation's right of self-defense.

It's more than likely that Holder's appointment is designed to consign the torture scandal to investigation oblivion, to investigate it to death until the American people tire of hearing about it — or forget about it entirely. Despite the fact that legal memoranda and statements by the President, Vice President and his attorneys general justifying terrorism have long been on the public record, Holder is only undergoing a “preliminary review” of the evidence for a dozen lower-level CIA officials. A full investigation may or may not follow, Holder said:

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. The Department regularly uses preliminary reviews to gather information to determine whether there is sufficient predication to warrant a full investigation of a matter. I want to emphasize that neither the opening of a preliminary review nor, if evidence warrants it, the commencement of a full investigation, means that charges will necessarily follow.

If Durham does come up with indictments against lower-level CIA interrogators — i.e., the pawns — it's almost inevitable that they will be citing the Yoo-Bybee memorandum as their defense. They could credibly argue any kind of torture was justified by the memorandum. “I was only following orders,” they'll reply, “and President Obama and Attorney General Holder agree that I shouldn't be prosecuted for following orders.” That won't have any legal standing. But the result will be a press spectacle, followed by a wave of “I told you so” media appearances from pro-torture neo-con pundits.

The rejection of the Nuremberg principle and embrace of the “I was only following orders” defense would result in an implosion of the whole Obama administration if Durham tries to prosecute CIA torturers while Obama and Holder are upholding the “I was only following orders” defense. Yet, Holder says he remains wedded to Obama's idea that past crimes are not particularly important to prosecute. As he appointed Durham, Holder stated that “I share the President’s conviction that as a nation, we must, to the extent possible, look forward and not backward when it comes to issues such as these.”

Of course, if we do “look forward” to a time where torturers — along with those who ordered the torture — are not punished for their crimes, then we'll eventually have a lot more government torture. There will simply be no disincentive for government to torture. And history records that most governments often engage in torture even when strong disincentives are in place.

The ACLU sent out an e-mail blast after the appointment, stating that “As anyone who has seen the details of this appalling report can tell you, this investigation is necessary and long overdue, and Attorney General Holder should be commended for taking this important step. However, the very limited scope of the investigation he launched today is nowhere near as thorough and broad as the torture investigation America really needs.” And that's about right.

Durham's particular experience is prosecuting organized crime, which should be particularly apropos in an investigation of Bush-era torture. And he should know from experience that unless you take out the top criminals, the criminal syndicate continues on with little interruption. A torture investigation with meaning has to begin at the top, directly examining the criminal role of top officials in orchestrating the torture of detainees. Otherwise, the criminal enterprise of torture will continue on with little interruption.
 

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Thomas Paine said:

All Evil must come to the surface for us to survive This is a great start. All evil must come to the surface for our constitution to survive. Our tendency to wear rose coloured glasses and otherwise stick our heads in the sand won't cut it. The church goer who is afraid to confront real evil won't help us any longer. Jesus constantly told the truth about the evil at the top. He "told it like it is". Lets see the evil and deal with it.

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August 25, 2009
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Flu-Bird said:

	A nest of vipers Barack Obama surrounding himself with the most fiendish members of the LEGION OF DOOM
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August 25, 2009
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Druthers said:

... Justice Jackson, one among few who truly peered into the heart of evil, held the scales of justice in his hand and spoke words in his address that honor humanity. If what Obama and Holder are doing now is limited in scope, as it seems to be, then we will know the door is again open to the beast. We will know that a two level justice system is OFFICIALLY functioning. Justice does not exist,it is imperfect, it is an ideal and when that ideal is abandonded mankind shrinks and writhes like the "Protrait of Dorian Gray," and no door remains closed forever. One day we will have to face the ugly reflection of what we have become.

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August 29, 2009
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herbert davis said:

	retired citizen The decision of import is made by the President and I think he has decided to allow torture to go unpunished because he fears being labeled partisan. The repubs may be easier to deal with if we allow their heroes to remain free from the prisons and executions they deserve. The repubs are laughing as they oppose everything and get olive branches!
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August 29, 2009
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Ellipser said:

	mirage vertigo Americans (and Canadians) are so blind now that we have no idea just how evil our governments have become. And when our eye's are finally opened to this fact, it will be when we are behind barbed-wire and realize the greatest terrorists where sitting in the highest positions of government.
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August 29, 2009
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Doug said:

	We have some apologizing to do We owe a great big apology to the German people and to the Nazis for our hypocrisy in punishing them, while holding ourselves exempt from prosecution for these very same crimes. This hypocrisy makes Americans worse than Nazis - at least they paid a price for their crimes, while we will slither out of any responsibility for ours.
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August 29, 2009
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Renegade Soldier said:

Evil Starts From within I totally agree with Thomas Paine. However in order to confront the evil that is in our midst we need to look past the stooges that are paraded in front of us every day and direct our anger at the men and women who pull the strings. If we follow the money trail, we find that all roads lead to the Federal Reserve and the private owners who own stock in that Satanic Entity. Think about it...how else would these puppets get into power without the backing of some of the "world´s most powerful players?" Even Obama got in only because the big boys granted it. If we want to take our country back, it is time we see America for what it is: A dictatorship from the top down. Only when we realize who the true enemy is do we have any hope for a better tomorrow.

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August 29, 2009
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Carl said:

Citzens Can Play An Important Role Torturers should be brought to justice, but the political facts of life in the American Empire make such days of reckoning a rather distant possibility. However, citizens can play an important role and create circumstances that make prosecution and punishment more likely. The people who committed these crimes are Americans. They have names and faces. They have workplaces and favorite restaurants and bars. They play golf, attend their children's baseball games, some (rather amazingly) go to church. We can "unofficially" "out" them in their communities, just as pedophiles are officially outed in theirs. We can track their movements and show up with placards and posters and bullhorns. We can hound them and shame them where they live. We can let their children know how daddy makes his living. We can become far more directly involved in these issues, and combine such activities with petition drives directed to the leaders of other countries in which we recognize the fact that our justice system is not equipped to deal with our own war criminals and urge these foreign leaders and criminal justice officials to arrest American suspects at every opportunity. We could convene a public truth commission and appoint retired judges and other legal specialists to review evidence and determine whether it warrants investigation and prosecution. There is much that we as a people can do to process the garbage our political system has produced. At the end of the day, it's up to us. The insiders will protect themselves and the system that sustains and protects them. If we want change, we'd better get active.

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August 29, 2009
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lester ness said:

	Why are so many eager to torture? For some reason, a lot of Americans are eager to torture foreigners; why?
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August 29, 2009
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Doug said:

	Why are so many eager to torture? >> For some reason, a lot of Americans are eager to torture foreigners; why?
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August 30, 2009
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Phonk said:

	The German can claim their money back If this law is effective. Otherwise why investigating and wasting money and enriching lawyers, by the end of this investigation no one to be prosecuted, US image becomes more murkier, the nuremberg laws erradicated and dictators around the world gets worser. Thanks to US justice.
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August 30, 2009
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Phonk said:

Obama is a business man He have to pay back his backers,those who backed Clinton Bush are the same flock who backed Obama....it's a secret corporation and they have their own ethics, different from the universal ethics. When you see something odd on the news assume it comes from these alien characters. How come the nuremberg procedures crafted by the best US prosecutors have become obsolete. odd isn't it.....

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August 30, 2009
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Max said:

	The Gestapo/Wikipedia "Himmler's right-hand man with the Gestapo, summed up this policy by saying, "As long as the police carries out the will of the leadership, it is acting legally.""
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August 30, 2009 | url
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