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Holder Aide: We Made No Special Promises to Bond
My colleague Zack at TPMmuck just heard from an aide to Attorney General nominee Eric Holder. The aide definitively denied Sen. Kit Bond's (R-MO) claim that Holder had given him "assurances" of avoiding future prosecutions of Bush intelligence officials who engaged in torturous interrogations.
"Eric Holder has not made any commitments about who would or would not be prosecuted," the aide said via e-mail. "He explained his position to Senator Bond as he did in the public hearing and in his responses to written questions."
The aide pointed to Holder's written response to a question from Sen. Jon Kyl (R-AZ):
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.
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Josh
Matt
Eric
"reasonable and good-faith reliance on Justice Department legal opinions"
What is "reasonable and good-faith reliance"?
What would bad-faith reliance look like?
January 28, 2009 4:41 PM | Reply | Permalink
Bad faith reliance would be claiming you did something you knew was wrong because your attorney said you could do it. Reliance on advice of counsel has a well-developed body of caselaw around it. There are legal boundaries around good faith reliance outside of which reliance is no defense. Holder is not speaking in generalities. He's speaking in legal terms of art. And that's good.
January 28, 2009 4:47 PM | Reply | Permalink
There are legal boundaries around good faith reliance outside of which reliance is no defense.
Okay. Perhaps you could help those of us who don't know so much about law understand where those boundaries are? Because the previous administration's behavior in this regard certainly seems to me like the archetypical example of "doing something you knew was wrong because your attorney said you could do it"; the national and international law concerning torture is consistently unambiguous in its plain wording and the public record about the torture-justifying decisions by Gonzales and Yoo seem like the classic example of starting with a policy and then going in search of a legal opinion to justify it.
Is there any way to tell whether my intuition that the previous administration's officials crossed these boundaries matches up with the case-law-defined notion of where those boundaries are?
January 28, 2009 6:33 PM | Reply | Permalink
Those who sought the ass-covering Yoo memoes were those who recognized the illegality of what was being done: the lawyers involved. They are in no position to claim to have been acting in good faith -- especially as they were requesters of the ass-covering memoresw. So they have two options:
1. Plead ignorance of the law. Their profession, positions, intents, and actions don't allow for that.
2. Plead insanity. This is intriguing; and being far-right lunatic fringe America-haters, a case can be made that they were/are insane.
But that means being housed in their local asylum until they are able to stand trial, should that longshot eventuality come to pass.
January 29, 2009 1:14 AM | Reply | Permalink
I appreciate your knowledge and expertise. I was wondering, can the DoJ prosecute Yoo for writing "bad" legal opinions? What if there was evidence that Bush/Cheney/Rumsfeld told Yoo to legalize "enhanced interrogation"?
January 28, 2009 7:15 PM | Reply | Permalink
All involved are culpable. Including Yoo -- he is also a lawyer, who claimed to know better than the express law, and can be considered as knowing what he was doing: engaging in fraud: he is luckier than Gonzales: he got a job as a "law" professor.
He was told what the outcome of the memoes needed to be -- ass-covering -- before he wrote them, and likely before he researched the law for the writing of them.
January 29, 2009 1:18 AM | Reply | Permalink
Bad-faith reliance would be saying, "We want to do X; let's generate a legal opinion that says we can do it," and then relying on that opinion.
Here's how I interpret Holder's statements about torture prosecutions: It will happen, if it happens at all, only for the higher-ups. The grunts -- the actual torturers -- got orders from their superiors to do it and were told that DoJ legal opinions supported it. The grunts weren't lawyers, so they were justified in relying on what they were told. (Not to mention that the prosecution of grunts following orders would be difficult to win and in any case a political disaster.)
But the higher-ups -- the ones who knew or should have known that the Yoo memos were flimsy, manufactured justifications -- those guys were not relying in good faith. They are not off-limits.
January 28, 2009 6:04 PM | Reply | Permalink
That's my read on it, too. After working with federal prosecutors for three years, we learned that what they don't say is just as important as what they do say.
January 28, 2009 6:51 PM | Reply | Permalink
"authoritatively"
Is that Holder's word? Or was it interjected by someone else?
If his (and actually not only his), then he is speaking to memoes which are blatantly fraudulently. Got that John Yoo?
There is also the timeline/paper trail: the torture began before there were memoes pretending it was legal. The memoes were then requested with a specific end: to ass-cover those who authorized, and were ordering and directing, the torture.
January 29, 2009 1:09 AM | Reply | Permalink
Bush.
January 29, 2009 8:10 AM | Reply | Permalink
Maybe Holder didn't make any special promises, but we all know what a colossal loophole is created by that phrase "reasonable and good faith reliance".
January 28, 2009 4:43 PM | Reply | Permalink
No, actually, there is not a colossal loophole. We had a case last year involving the defense of reliance on advice of counsel. I think you should be comforted to know that it has well-defined boundaries and is not a wide-ranging defense with incomprehensibly fuzzy edges.
January 28, 2009 4:49 PM | Reply | Permalink
the defense of reliance on advice of counsel
Does this arise only in specific intent crimes? I mean, it may go to mens rea, but some conduct is proscribed regardless of what some Prof. at *Boalt says.
*(Help me Jesus, what has become of my school??!!)
January 29, 2009 2:39 PM | Reply | Permalink
Kit Bond,this guy is the most disenginious person in the senate,He is like GWBush.Just last week KBond was on MSNBC hardball lying that the DOD report stated that 61 Guantanamo detainees returned to fight American soldiers in the war on terror.He was parroting a lie of course.Look if KBond tells you run do the opposite.
January 28, 2009 4:52 PM | Reply | Permalink
I think it's clear that Bond might have raised the issue with Holder, but Holder didn't answer, or didn't answer as Bond was demanding. So Bond is saving face, saying he made the effort. And throwing red meat to the America-haters who support him and torture.
January 29, 2009 1:24 AM | Reply | Permalink
Holder and Obama both know darn well that if they don't prosecute suspected war crimes they become accessories complicit in those crimes. That isn't going to happen. That said, with the AG confirmation pending they are better keeping quiet about this.
January 28, 2009 4:53 PM | Reply | Permalink
That's total BS.
January 28, 2009 5:46 PM | Reply | Permalink
Except that it isn't, at least in degree: the treaties which prohibit torture to which the US is signatory also OBLIGE the US to prosecute. NOT prosecuting will undercut, negate, Obama's genuine -- good faith -- effort to repeair the US's image around the world (and domestically).
January 29, 2009 1:22 AM | Reply | Permalink
I've been kind of bewildered by the republicans' harping on the "can't prosecute the CIA guys who carried out waterboarding" nonsense. A far more obvious target for prosecution would be the people who crafted the blatantly illegal Justice department opinions used to justify torture in the first place. If I'm Kit Bond I'd be far more concerned that Yoo and Addington and Gonzalez will get prosecuted. Am I missing something here?
January 28, 2009 5:02 PM | Reply | Permalink
January 28, 2009 5:12 PM | Reply | Permalink
Certainly Yoo, Gonzales, Bush, Cheney and other senior officials should be thoroughly investigated, should not be allowed to hide behind privilege or national security claims and should be prosecuted if and when the evidence of criminal action is strong enough.
However, I agree with Holder that there is a very clear history that shows that waterboarding is definitely torture. I don't think it is reasonable for any of the interrogators that used this technique to claim that they honestly believed that the legal opinions and memorandums issued by the Bush administration were sufficient to make it legal.
Anyone who participated in waterboarding a suspect, anyone who ordered it and any superior officer who knew about it and allowed it to continue should also face charges. Some of the other "enhanced interrogation" techniques may be more of a gray area where the interrogators should be given the benefit of the doubt on this, but there were undoubtedly some techniques used other than waterboarding where the illegality was just as clear.
January 28, 2009 8:36 PM | Reply | Permalink
And those who not only requested them, but required specific ass-covering outcomes in the memoes.
Required "fitting the facts to the policy".
January 29, 2009 1:27 AM | Reply | Permalink
Given the corruption of both political partys of the American congress, why would any American citizen be surprised that there will be few, if any, prosecutions?
The "looking forward" is just a dodge to avoid any "real" investigations and any "real" prosecutions and any "real" jail time.
Why? "It's bad for Business."
January 28, 2009 5:14 PM | Reply | Permalink
Congress -- including Pelosi -- have expressed willingness to investigate. Let's wait until we get the facts before we engage in your typical excuse to either not vote, or to throw your vote on fringe parties.
January 29, 2009 1:29 AM | Reply | Permalink
Lars Thorwald, don't kid yourself, and don't imagine we peasants can be kidded either. No prosecutions, no investigations, no justice . . . but, on the other hand, MAYBE the black sites and the kidnappings and torture will be discontinued . . . MAYBE. Though how will President Obama ever know if his orders have been complied with?
January 28, 2009 5:22 PM | Reply | Permalink
Bush said the US does not use torture. So why would Sen. Bond need any kind of assurance?
January 28, 2009 5:29 PM | Reply | Permalink
Oh Snap!
http://video.google.com/videoplay?docid=-4106811338754255077
January 28, 2009 5:51 PM | Reply | Permalink
CIA agents knew what they were doing was illegal. Why would so many of them be reported to be buying insurance to fray lawyer costs if they were investigated? As lame as the Yoo memos were even then they would know it was breaking the law. What they want to permit now is the Nuremburg Defense. It won't wash. Nobody may be put in the dock, but those responsible,from the TOP down should be exposed.
January 28, 2009 6:01 PM | Reply | Permalink
The devil is in the details. Holder writes "...Justice Department legal opinions authoritatively permitting his conduct..."
THe key word is "authoritatively," which does not include "made as instructed by Shooter" legal opinions that can't stand the light of day or brief legal review by adults. We all know the ones to which I refer.
January 28, 2009 6:13 PM | Reply | Permalink
No, we don't no "which ones". And the rest of your cute comment doesn't compute either.
January 29, 2009 1:32 AM | Reply | Permalink
It's unfortunate, but it's clear to me, that is, IMO, no prosecutions will be pursued for crimes committed by the Bush administration.
I've heard Conyers and Leahy talk about Rove, and Obama and Holder talk about their positions on this, and I can't find one clear and concise assurance that they will hold anyone accountable.
Everything comes with a qualifier.
I think it will take international pressure on the U.S.--applied by all signatories to the Geneva conventions-- investigation into Bush war crimes should be a pre-condition other nations insist on before any diplomatic talks take place.
It's leverage.
If other nations refuse to enter into any discussions regarding the environment, nuclear power, peace in the middle east, or trade agreements, then the Obama administration will see to it that those who abused American power will be held accountable.
The world is more interconnected now, multi-lateral cooperation is critical. One of the benefits of this reality is that our politicians are held accountable by more than Americans.
January 28, 2009 6:18 PM | Reply | Permalink
Which is precisely as it should be. Announcing in advance that you will prosecute is no less problematic than announcing in advance that you won't. A prosecutor who is doing their job goes where the evidence leads and does not let anybody pressure them into a course of action.
January 28, 2009 6:54 PM | Reply | Permalink
I totally agree. I hope that's what they're doing. I don't think this country can move on until someone in W.'s administration is held accountable for the crimes they committed. America needs closure and justice, as does the world.
January 28, 2009 7:20 PM | Reply | Permalink
Yes, I understand that. I should have been more clear. It is not just from what they have said, or haven't said. It is my gut feeling that justice, in this case, will not be served. Not unless it happens out of international pressure.
January 28, 2009 8:02 PM | Reply | Permalink
Former President Bush and his top administration officials seem to be strongly relying on the theory that secret Justice Department memos can make anything legal and permissible, even after the fact in some cases.
Can they get away with it? Is there, as Rachel Maddow remarked not long ago, a magic wand in DOJ that can make illegal stuff legal?
January 28, 2009 6:20 PM | Reply | Permalink
Let's see...Hummm...Sen. Bond-REPUBLICAN, and the Washington Times - Republican RAG from Sun Yung Moon making up stories to favor republicans?? What? Say it ain't so...naaahh....
Bond and the Wash. Times have been LIARS since the beginning..
January 28, 2009 7:10 PM | Reply | Permalink
According to Jack Goldsmith, former OLC head stated on pg 144 of his book The Terror Presidency:
The message of the August 1, 2002 OLC opinion was indeed clear: violent acts aren't necessarily torture; if you do torture, you probably have a defense; and even if you don't have a defense, the torture law doesn't apply if you act under color of presidential authority: CIA interrogators and their supervisors under pressure to get information about the next attack, viewed the opinion as a "golden shield," as one CIA official later called it, that provided enormous comfort.
The CIA knew it was wrong, that is why they wanted that "golden shield". Therefore that whole acting in "good faith" can be totally thrown out the window.
January 28, 2009 8:58 PM | Reply | Permalink
Damn, should have previewed the blockquote. Oh well, the middle paragraph is the quote from the book.
January 28, 2009 9:00 PM | Reply | Permalink
Holder better prosecute whoever may have engaged in torture.
January 29, 2009 1:47 AM | Reply | Permalink
I wouldn't believe a druken liar like Kit Bond, if you water-boarded him!
January 29, 2009 8:23 AM | Reply | Permalink
If Holder does not prosecute 'the Grunts' after he has prosecuted the 'Brass' what would happen?
In 8 years they will have been promoted/ gone up within the CIA.
Is that acceptable to anyone?
Won't they be more likely to engage in torture again?
To those who don't want to see the 'Grunts' prosecuted, what do you suggest we do instead?
What credible alternatives are there?
January 30, 2009 10:51 PM | Reply | Permalink