Earlier today, Attorney General Eric Holder announced that the Justice Department is launching a "full criminal investigation" into the deaths of two detainees in CIA custody during the Bush administration.
In August 2009, Holder asked Assistant U.S. Attorney General John Durham to open "a preliminary review into whether federal laws were violated in connection with the interrogation of specific detainees at overseas locations."
The announcement from the Justice Department today states,
"Mr. Durham and his team reviewed a tremendous volume of information pertaining to the detainees. That review included both information and matters that had never previously been examined by the Department. Mr. Durham has advised me of the results of his investigation, and I have accepted his recommendation to conduct a full criminal investigation regarding the death in custody of two individuals. Those investigations are ongoing. The Department has determined that an expanded criminal investigation of the remaining matters is not warranted."
While we welcome the announcement that the Justice Department will conduct an investigation into these two deaths of prisoners in CIA custody, it is difficult to understand the prosecutor's conclusion that only those deaths warrant further investigation. Under the Bush administration, officials at the highest levels of our government operated an interrogation program that subjected prisoners to unimaginable cruelty and violated both international and domestic law. (This graphic diagrams the participation of high-level officials in the torture program based upon publicly available documents.)
While the scope of Durham's investigation was not publicly defined, press reports have consistently suggested that it is focused on a handful of incidents in which CIA agents and contractors had used techniques other than those approved in the torture memos. Holder has stated, "I have made clear...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."
We continue to believe that the scope of Durham's mandate was far too narrow. As Holder's comments make clear, Durham was focused principally on interrogations that went beyond the bounds set by the Justice Department. However, the central problem was not with interrogators who disobeyed orders, but with senior officials who authorized a program of torture.
As Marcy Wheeler wrote earlier today: "Two dead detainees may get justice. The other 99 will not."