Holder Says He Will Not Permit the Criminalization of Policy Differences

April 23, 2009— -- As lawmakers call for hearings and debate brews over forming commissions to examine the Bush administration's policies on harsh interrogation techniques, Attorney General Eric Holder confirmed to a House panel that intelligence officials who relied on legal advice from the Bush-era Justice Department would not be prosecuted.

"Those intelligence community officials who acted reasonably and in good faith and in reliance on Department of Justice opinions are not going to be prosecuted," he told members of a House Appropriations Subcommittee, reaffirming the White House sentiment. "It would not be fair, in my view, to bring such prosecutions."

But Holder left open the door to some legal action, saying that though he "will not permit the criminalization of policy differences," he is responsible as attorney general to enforce the law.

"If I see evidence of wrongdoing, I will pursue it to the full extent of the law, and I will do that in an appropriate way," he added.

As part of the continuing fallout of the Justice Department's release of memos from its Office of Legal Counsel last week, Holder faced questioning from a GOP lawmaker about the circumstances surrounding the documents' release.

"I just think, in fairness to the American people, once you made a decision, once the administration made a decision to release the existing memos that you put out, then I think you have an obligation to release the rest of the memos," Rep. Frank Wolf, R-Va., told Holder.

Former Vice President Dick Cheney has claimed that the Obama administration released only documents that show the negative aspects of interrogations, and insisted that there are still classified documents -- which he is asking to be released -- that show the information gained from them helped keep the United States safe.

Of the existence of those documents, Holder said, "I've heard that Vice President Cheney indicated that such memos exist. I frankly have not seen them. I do not know if they exist."

Holder indicated a willingness to release more documents to give the public a better understanding of the Justice Department's decision-making process and to inspire debate about future policies that are formed to be "consistent with our values and that can be supported by the American people.

"It is certainly the intention of this administration not to play hide-and-seek, or not to release certain things in a way that is not consistent with other things," Holder said. "It is not our intention to try to advance a political agenda or to hide things from the American people."

Holder also noted that the effectiveness of enhanced interrogation techniques has been questioned by those who employed them.

"I've also seen articles written by people who were involved in the use of these techniques who say those techniques in fact were not particularly effective, that the information could have been gotten by a more traditional means," he said. "So that is something, I guess, we'll have to debate."

However, some officials in the Obama administration have stated the opposite. Director of National Intelligence Dennis C. Blair admitted that he informed President Obama in a private memo that the harsh interrogation tactics conducted by the CIA did indeed yield valuable information from terror suspects.

He also added a caveat, saying in a statement: "We do not need these techniques to keep America safe. ... The information gained from these techniques was valuable in some instances, but there is no way of knowing whether the same information could have been obtained through other means."

Holder said at his confirmation hearing that he considers waterboarding torture.

Debate at Capitol Hill Continues

Today at Camp Lejeune, N.C., Defense Secretary Robert Gates said he backed the Obama administration releasing the Justice Department's memos to the CIA, but that he was also concerned about a potential backlash in the Middle East.

"All of us wrestled with it," he said, adding that there was "a certain inevitability that most of this would come out.

"There was the realization in the discussions that some of these disclosures could be used by al Qaeda and our adversaries," Gates said while visiting a troops preparing to leave for Afghanistan. "Pretending that we could hold all of this and keep it all a secret, even if we wanted to, I think was probably unrealistic. So we'll just have to deal with it. ... There is a certain inevitability, I believe, that much of this will eventually come out. Much has already come out."

Former Bush official Philip Zelikow echoed the same sentiment when he was at the State Department after hearing of the memos from the Justice Department containing legal justifications for harsh interrogation techniques.

"Did folks really think Americans would never learn what we were doing in this program? That they'd think that it was going to stay a secret forever?" he asked in an interview with ABC News. "My conclusion, then, is it was inevitable that the American people were going to learn about this stuff. And when you dig a really deep hole, you ought to think a little bit about whether you have a ladder to climb out of it."

The Obama administration last week released previously classified Department of Justice memos that detailed how harsh interrogation techniques such as waterboarding -- a controversial interrogation technique that simulates drowning -- were formulated and authorized.

Republicans strongly denounced the release of the memos and any potential prosecution of officials involved in such techniques.

"I think it provides a chilling effect on our intelligence officers all 'round the world. I think that's unfortunate. I don't know how that's going to help keep America safe," said Rep. John Boehner, R-Ohio.

However, in discussing how to deal with the information, Republicans oddly are using the same language as the White House -- that the government must look ahead rather than backward.

Obama has defended his release of the memos and said he does not want charges pursued against people who were following orders given to them by the Bush White House. However, he indicated the decision on whether to pursue other charges rests with the Department of Justice. He urged a bipartisan commission -- what many say might be like the 9/11 commission -- to investigate the issue.

"I don't see a lot of value in looking back ... and this is another sideshow here in Washington," Boehner said. "When it comes to what our interrogation techniques are going to be or should be, I'm not going to disclose, nor should anyone, have a conversation about what those techniques ought to be. It's inappropriate. All it does is give our enemies more information about us than they need."

Republicans such as Boehner say details of U.S. interrogation techniques and surveillance were provided to all congressional leaders and no objections were raised.

Sen. Dianne Feinstein, D-Calif., who serves as chairwoman of the Senate Intelligence Committee, has said she was not present at the briefings where this information was presented, and that the Democrats did not know about waterboarding and other harsh interrogation techniques.

House Speaker Nancy Pelosi, D-Calif., also flatly denied ever being briefed that some of the interrogation techniques debated in Congress, such as waterboarding, were used.

Before she became speaker, Pelosi was the top-ranking Democrat on the House Intelligence Committee.

"Flat out, they never briefed us that this was happening," Pelosi said. "In fact, they said they would, if and when they did. ... We were not, I repeat, we were not told that waterboarding, or any of these other enhanced interrogation methods were used."

She added that House Intelligence Committee members were promised by the briefers that if and when harsh methods were ever used, Congress would be notified at that time.

Feinstein said the committee is reviewing the conditions and interrogation techniques. The study will likely be completed in six to eight months, she said.

Pelosi hinted that there would be multiple congressional hearings on the issue and said that each case should be studied individually. She said that a distinction had to be made between those were implementing the policy by following orders and those above them who came up with the legal opinions, as well as those who actually devised the policy.

"I, myself, do not believe that immunity should be granted to everyone in a blanket way," she told reporters Wednesday, adding that she favors congressional hearings on the subject and the creation of a "truth commission" -- which also has been proposed by the White House and favored by Senate Judiciary Chairman Pat Leahy, D-Vt., and several liberal Democratic senators, including Russ Feingold, D-Wis., and Sheldon Whitehouse, D-R.I.

At the same time, Democrats are in disagreement about how to deal with the issue.

Senate Majority Leader Harry Reid, D-Nev., told reporters he is against the idea of starting a truth commission. For now, he suggested, the Senate Intelligence Committee's investigation into the issue is adequate.

Until we get all the facts, Reid said, people should "relax." He added, "Justice should be served, but it should not be retribution."

High-Level Officials Involved

Two separate Senate committees have released reports that provide a detailed narrative about the interrogation techniques and involvement of high-level officials in the Bush administration.

The Senate Select Committee on Intelligence declassified a document that indicated that CIA proposed using waterboarding on terror suspect Abu Zubaydah three months before the Justice Department approved the harsh interrogation technique.

Another more-than-200-page document released late Tuesday by the Armed Services Committee shed new light on the authorization and implementation of harsh interrogation techniques at U.S. military prisons around the world.

"The report represents a condemnation of both the Bush administration's interrogation policies and of senior administration officials who attempted to shift the blame for abuse -- such as that seen at Abu Ghraib, Guantanamo Bay, and Afghanistan -- to low-ranking soldiers," said Senate Armed Services Committee chairman Sen. Carl Levin, D-Mich.

The report showed that senior officials knew about and authorized the interrogation tactics that are considered torture by some and are banned under the Geneva Conventions.