Eric Holder

The Department of Justice (DOJ) has issued new procedures on when the government employs the state secrets privilege in litigation involving national security issues. The new policy, reports The Washington Post, would require government agencies such as the CIA to "convince the attorney general and a team of Justice Department lawyers that the release of the sensitive information would present significant harm to ‘national defense or foreign relations.'"

In a statement announcing the policy, Attorney General Eric Holder said, "This policy is an important step toward rebuilding the public's trust in the government's use of this privilege while recognizing the imperative need to protect national security. It sets out clear procedures that will provide greater accountability and ensure the state secrets privilege is invoked only when necessary and in the narrowest way possible."

Holder also states that the DOJ is committed to ensuring that the state secrets privilege is not used "for the purpose of concealing government wrongdoing or avoiding embarrassment to government agencies or officials."

In a recent guest article for ACSblog, Professor Amanda Frost critiqued the Obama administration's use of the state secrets privilege, saying it was too similar to that of its predecessor and concluded that Congress should pass legislation to limit the privilege. For more discussion of the state secrets privilege, see video of the ACS event, "The State Secrets Privilege: Time for Reform?"

The Bush and Obama administrations have drawn criticism for invoking the privilege to scuttle litigation over national security policy including rendition and warrantless spying, The Post reports. Some lawmakers, such as Sen. Patrick Leahy, have promoted legislation that would limit the privilege.

Adam Serwer writes on Tapped that the new policy falls "well short of the standards that would be set by Senator Leahy's bill, but they seem more rigorous than I would have expected ...." Serwer concludes that the "guidelines are certainly better than I would have expected from the preliminary reports, but we'll see if they satisfy the senators sponsoring the state secrets bill. Leahy gave some positive feedback, (he also takes credit for some of the changes) but he didn't say that he would abandon the bill."

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By Scott Horton. Horton is an adjunct professor at Columbia Law School and a contributing editor at Harper's Magazine, where he writes the No Comment blog.

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On Monday, Attorney General Eric Holder appointed John Durham, a career prosecutor from Connecticut, to undertake a preliminary examination of a group of cases in which CIA interrogators apparently exceeded even the scope of torture authorized by the now rescinded Justice Department memoranda to see if the circumstances warranted a more thorough criminal investigation. This decision constitutes an important, but very modest, step forward on the torture issue.

Holder's decision is amply justified by a report prepared by the CIA's Inspector General, substantial parts of which were released Monday. Indeed, reading it we are bound to ask whether Holder is doing enough-whether he has not in fact unreasonably limited the scope of Durham's investigation. Here are a few points to consider.

1. Torture was approved at the top and implemented with close supervision from senior administration actors. Policies of torture and official cruelty adopted by the administration incorporated new interrogation practices that were up to that point condemned by the United States as torture: this included waterboarding, hyperthermia and sleep deprivation, as now well documented. But the CIA report shows that experimentation was encouraged in a policy that a top officer, Cofer Black, described in congressional testimony with the words "take the gloves off," and CIA agents drew on a range of techniques that seem inspired not by legal guidance and prior practice, but by Hollywood and Fox television: a power drill was turned on, firearms brandished, mock executions staged, threats were made to kill, rape or abuse the children or parents of prisoners. In one case, an agent repeatedly applied pressure to the carotid artery, which feeds oxygenated blood to the brain, until a prisoner reached the point of collapse. In another, prisoners were "buttstroked" with a rifle, and given knee kicks (a procedure documented in the Oscar-winning film Taxi to the Dark Side, which resulted in death to an innocent young Afghan named Dilawar. Roughly half of the case study information remains blacked out, and context suggests that it contains incidents still more gruesome than those disclosed. The report shows CIA supervisors, lawyers and healthcare professionals (most likely psychologists) deeply involved in the process at almost every stage. The notion, therefore, that these were rogue agents off on a lark is absurd. Were the practices employed and documented by this report are practices the Bush White House wanted to see used? That's a pressing question that the CIA report raises without resolving.

Attorney General Holder has drawn a fine distinction between what the OLC memos explicitly authorized and what was done in excess of the guidance given. It's not clear that this distinction is tenable. If Durham pursues any of these cases, he is almost certain to run into claims from those involved in the interrogation process that they did what they understood to have been authorized based on communications up the chain of command. They will say there was a perpetual green light. And the CIA report contains a great deal of support for this understanding. A good example comes in the practice of waterboarding. When the inspector general established that the limits imposed by the OLC memos had been exceeded, Attorney General John Ashcroft was consulted. According to the report, Ashcroft expressed the view that he was perfectly happy with whatever was done. That reaction is extremely telling about the attitude the Justice Department adopted towards the process, which appears more geared to facilitation than regulation. The record also supports the view that a large part of the communication between Bush officials and interrogators wasn't committed to writing, so it's a reasonable inference that the "edgier" approvals were conveyed orally.

2. The introduction of torture and cruelty as official practices damaged the morale and reputation of the CIA. The major argument raised repeatedly by Directors Tenet and Hayden against disclosure of the CIA report is that disclosure would damage the morale and reputation of the CIA. But the report squarely addresses that issue. It shows that the torture and abuse practices themselves severely damaged morale inside the agency. In fact, the report was launched as a result of numerous complaints recorded by valued career CIA officers who explicitly said they felt the practices were a violation of criminal law and would likely result in prosecutions of agency personnel. The report shows that the number of persons raising this objection is substantial. And this is supported by the stream of ex-CIA agents who appeared on television the day of the disclosures: Tyler Drumheller, Jack Rice, Bob Baer, James Bamford and a number of others, all welcoming the appointment of a prosecutor and saying that enforcement measures were welcome. By contrast the number of CIA officers involved in and supporting the torture program is extremely limited, likely not more than two dozen figures, led by three veterans who remain in place: John O. Brennan, Steven Kappes and Michael Sulick.