Obama's Enforcer (17 page)

Holder refused numerous requests by Congress and news organizations to identify all of the former terrorist lawyers who were working in Justice and had potential conflicts of interest. As Senator Chuck Grassley said, “the administration has made many highly questionable decisions when it comes to national security . . . [and Americans] have a right to know who advises the Attorney General and the President on such critical matters.”
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In Senate testimony in March 2010, Holder compared the Al Qaeda lawyers to John Adams and said he would not “allow their reputations to be besmirched.”
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But he would put them in positions in the Justice Department where their prior representation of terrorists and their demonstrated bias against protecting the nation's security would help shape the Justice Department's implementation of national security policy. It took digging by news organizations like Fox News to find out the names of these lawyers.

Holder's comparison to John Adams is absurd: Adams did not represent members of the British military when we were at war with England. It is neither unfair nor somehow improper to criticize or question the patriotism and objectivity of lawyers who volunteered to help the enemies of the United States who are dedicated to killing as many innocent Americans as possible and destroying the country. As McCarthy points out, “the Constitution guarantees counsel to people accused of ordinary crimes”—not America's enemies.
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Doing pro bono work is part of being a lawyer and that work is a valued part of the legal system. But lawyers can pick the clients they volunteer to help. They can't claim immunity from being criticized for the fact that they volunteered to help cold-blooded murderers and enemies of the United States instead of ordinary, everyday criminals. But lawyers like West and Daskal, and especially the large, wealthy law firms with corporate clients that employ many of these terrorist lawyers, bristle at any such criticism. But if the authors were officers in corporations in need of legal services, we would be wary of employing law firms that provide such pro bono work since it would be the large corporate fees we pay for legal services that would be subsidizing this legal assistance to Al Qaeda.

Jennifer Daskal once said that freeing dangerous terrorists was an “assumption of risk” that must be taken to “cleanse the nation of Guantanamo's moral stain.”
22
She and others with similar viewpoints should not have been given the authority to direct policy and make decisions on the prosecutions of terrorists. It would be like hiring mob lawyers for the Organized Crime and Narcotics Task Force or hiring a lawyer who represented the Ku Klux Klan for a job in the Civil Rights Division.

According to McCarthy, since these lawyers have been running the Justice Department:

[T]here has been a detectable shift in favor of due-process rights for terrorists, a bias in favor of civilian trials in which terrorists are vested with all the rights of American citizens, a bias against military tribunals, the extension of Miranda protections to enemy combatants, a concerted effort to publish previously classified information detailing interrogation methods and depicting the alleged abuse of detainees, efforts to subject lawyers who authorized aggressive counterterrorism policies to professional sanction, the reopening of investigations against CIA interrogators even though those cases were previously closed by apolitical law-enforcement professionals, and the continued accusation that officials responsible for designing and carrying out the Bush administration's counterterrorism policies committed war crimes.
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When he was speaking to the American Constitution Society in 2008, Eric Holder said that under the Bush administration the “government authorized the use of torture” and “we owe the American people a reckoning.” Holder tried to engineer that “reckoning” to the dismay of intelligence and national security experts when he announced in August 2009 that he was asking a special prosecutor, Assistant U.S. Attorney John Durham, to investigate the CIA's handling of about one hundred high-value terrorists captured by American forces on the battlefield.

The investigation was unjustified because during the Bush administration, before Holder was attorney general, a task force of long-term,
career
Justice Department prosecutors in the Eastern District of Virginia conducted an in-depth, exhaustive investigation into the allegations that CIA interrogators had abused their prisoners. They concluded that the CIA had expressly followed the rules laid out by the Justice Department in legal memoranda issued by the Office of Legal Counsel on the use of enhanced interrogation techniques. Though the popular press and critics called the techniques “torture,” they were not torture under applicable federal law or presidential authority.
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In every case during the first review save one involving a CIA contractor,
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the career prosecutors—not Bush political appointees—determined that there were no violations of the law and no evidence of abuse by CIA interrogators. The prosecutors drafted extensive “declination memos” summarizing the facts and the findings of their investigations with regard to each prisoner, as well as the applicable statutes and case law, and detailed their conclusions and recommendations that there were no crimes to prosecute.

Seven former CIA directors, covering thirty-five years of Democratic and Republican administrations including the Nixon, Reagan, Clinton, and both Bush administrations, sent a letter to Barack Obama protesting Holder's decision to reopen the criminal investigation. They said that Holder's decision would create “an atmosphere of continuous jeopardy” for CIA employees and would “seriously damage the willingness of many other intelligence officers to take risks to protect the country.” As they pointed out, “Those men and women who undertake difficult intelligence assignments in the aftermath of an attack such as September 11 must believe there is permanence in the legal rules that govern their actions.”
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Leon Panetta, the director of the CIA at the time, was so upset over Holder's decision that he engaged in a “profanity-laced screaming match” at the White House.
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Holder admitted that he did not read the “detailed memos that prosecutors drafted and placed in files to explain their decision” before he decided to reopen the investigations.
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It is almost unbelievable that Holder would make a decision on a matter so sensitive and important, involving the nation's ability to obtain crucial intelligence information to prevent more horrendous attacks like 9/11, without bothering to read his own prosecutors' analysis of the facts, the evidence, the applicable law, and their recommendations to decline prosecution. This, combined with his prior statements before he even became attorney general, makes it clear that the decision to launch a new investigation was part of an ideological crusade against the CIA rather than an objective law enforcement decision.

One of the authors worked for three different assistant attorneys general at the Justice Department and not one of them would have ever considered making such a critical decision without having first reviewed the detailed legal and factual memoranda sent to them by their lawyers. Indeed, they would have considered a failure to do so to border on malpractice, as well as being potentially unethical. Greg Katsas, who was acting associate attorney general during the George W. Bush administration, said in an interview that the “declination memos should have been the first thing [Holder] read. He effectively overruled professional career prosecutors who had been studying the facts of these cases for months if not years. And he did so without so much as even considering the reasons for their decision. Hard to explain that decision on anything but nakedly political grounds.”

Fortunately for the CIA case officers wrongfully retargeted by Holder, Leon Panetta took advantage of a quirk in the CIA's authorizing statute and quickly announced that he would use agency funds to pay for their legal defense. The Central Intelligence Agency Act of 1949 specifically allows the director of the CIA to use its appropriated funds “for objects of a confidential, extraordinary, or emergency nature,” and he alone deems whether it is in the public interest to do so. This provision was upheld in a Supreme Court decision in 1974 in which a taxpayer tried to claim that exempting the funds of the CIA from general government accounting, audit, and use regulations was unconstitutional. His case was thrown out.
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But having their legal costs paid for did not make up for the legal liability and risk these CIA employees faced for the two years that the Justice Department's special prosecutor reinvestigated them. Or for all of the time away from their jobs and the consternation and fear caused by having to deal with another set of investigators and lawyers examining every aspect of how they had conducted their jobs of trying to get vital information from vicious, coldhearted killers who were still targeting innocent Americans.

In the end, no doubt to Holder's disappointment, special prosecutor John Durham made exactly the same decision that had been made by the prior task force of career prosecutors—that the Justice Department should not “initiate criminal charges in these matters.”
30
Marc Thiessen, who worked in the Bush White House, said the “CIA created a well-run, highly disciplined interrogation and detention regime, where clear guidelines were established, the safety of the detainees was ensured, invaluable intelligence was uncovered and any deviations from approved techniques were stopped, reported and addressed. Now the special prosecutor assigned by Holder to investigate that regime has affirmed—once again—that this program operated completely within the law.”
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But Holder was not apologetic for putting these CIA officers through this unneeded, expensive, and repetitive investigation, although he claimed that he appreciated “the work of and sacrifices made by the men and women in our intelligence community on behalf of this country. . . . They deserve our respect and gratitude for the work they do.”
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But Holder's actions spoke louder than his belated words at the end of this investigation—too bad he didn't actually show real respect and gratitude for the work of the CIA by not mounting a crusade against them to start with.

Marc Thiessen probably said it best when he pointed out that the lives of these CIA employees “will never be the same. They have spent much of the decade since Sept. 11 under threat of prosecution, fighting to defend their good names even as they worked to keep us safe. As a result of the witch hunt that Holder unleashed, some of our most talented, capable counterterrorism officials have left government service—and countless others, who might have contemplated such service, have chosen other careers instead. The damage this investigation has done is incalculable.”
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At the same time that Eric Holder was trying to unravel our intelligence operations against terrorists, he was also conducting an abusive, high-profile prosecution of a politically unpopular defendant, Blackwater Worldwide. Blackwater was a private contractor who provided security for State Department and other government employees in Iraq and was a favorite boogeyman of left-wing advocacy groups. Five of its employees were charged by the Justice Department with manslaughter and “firearms violations” arising out of a shooting that occurred in Baghdad, Iraq, on September 16, 2007.
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After receiving a message of an IED explosion near a compound where U.S. officials were meeting with Iraqi officials, the Blackwater team took up positions in Nisur Square, a traffic circle just outside the International Zone, to secure an evacuation route for the American officials. They got into a firefight in which fourteen Iraqis were killed and others wounded. The media painted this as an overreaction by the Blackwater guards, who claimed they had been shot at by insurgents. Those media accounts failed to acknowledge the fact that State Department investigators who went to the scene after the firefight found shell casings from AK-47s—the favorite weapon of Iraqi insurgents—which tended to confirm the claim that the Blackwater team had been shot at. None of the contractors were equipped with AK-47s.

No one minimizes the seriousness of what happened or the fact that civilians were killed. But the “firearms violations” charges were particularly ridiculous—the Justice Department apparently objected to the Blackwater guards being equipped with automatic weapons and grenade launchers in a country flooded with automatic weapons and grenade launchers routinely used by terrorists and insurgents to attack American forces and their Iraqi allies.

In a startling and unusual action, federal judge Ricardo Urbina dismissed the indictment against the five Blackwater guards in 2009 in a ninety-page opinion, preventing the case from even going to trial. His scathing criticism of Holder's prosecutors, including lawyers from the National Security Division, made it clear that they had engaged in gross prosecutorial misconduct. That misconduct included withholding “substantial exculpatory evidence” from the grand jury that indicted the defendants, such as the fact that within “five seconds” of the Blackwater team pulling into its position in the square, they “started taking fire.”
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The prosecutors also presented evidence summaries to the grand jury that were “distorted versions of the testimony on which they were based.”

The worst abuse of the prosecutors, however, was their use of sworn statements that the guards had given immediately after the incident to State Department investigators. The guards were required to make the statements as part of their contract with Blackwater and the State Department. The use of such testimony, just like the use of the compelled testimony of police officers to internal department investigators, is strictly barred from being used in subsequent criminal prosecutions. In the case of
Garrity v. New Jersey
,
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the Supreme Court concluded that using such compelled statements violates the Fifth Amendment privilege against self-incrimination.