Holder's Decision To Probe CIA Hints At a New Dynamic
Friday, August 28, 2009
About five weeks ago, faced with a crucial decision on how to react to brutal CIA interrogation practices, Attorney General Eric H. Holder Jr. concluded that it would be all but impossible to follow President Obama's mandate to move forward, rather than investigate divisive episodes from the Bush "war on terror."
Holder notified the White House that he was reluctantly leaning toward naming a prosecutor to review whether laws had been broken during interrogations -- the very thing Obama had said he wanted to avoid. And the word Holder got back, according to people familiar with the conversations, was that the decision was up to him.
The back story to Monday's appointment of a career prosecutor to review CIA interrogation methods illustrates Holder's influence in the new administration and sheds light on the emerging and delicate relationship between the White House and the Justice Department. In this and other big battles, including the decision to release memos this year by Bush administration officials giving the green light to harsh interrogation tactics, Holder and his Justice Department have prevailed over strong objections from the CIA and the intelligence community. Holder hasn't won every one of those battles, but he has won many.
In this case, on a matter of civil liberties and national security, the victory signals a dynamic that could play out on a range of sensitive issues that will come to define the Obama administration and its differences from the Bush era, including the detention of terrorism suspects and the protection of state secrets.
Administrations dating at least to Richard M. Nixon's have grappled with the balance between political sensitivities in the White House and the independence of the attorney general, the nation's top law enforcement officer. During the Bush administration, the relationship was marked for years by charges of politicization.
This week, after Holder announced his decision to examine about 10 cases of alleged detainee abuse by CIA interrogators in overseas prisons, the White House said it was his prerogative. But the official accounts did not mention Holder's conversations with the White House, nor Obama's deep, if cautious, engagement with the issues.
"There are some things he recognizes are the attorney general's prerogative to do, but at the same time, it's not like he just says, 'Well, whatever he does, he'll do,' " a senior administration official said of the president. "He wants to make sure we take into account those decisions and take the appropriate steps within the White House to deal with them, particularly from the standpoint of making sure we maintain that very capable, robust counterterrorism capability."
Holder is still carving out his role in history, finding his comfort zone between such predecessors as Alberto R. Gonzales, widely considered to be too close to the Bush White House, and Janet Reno, who sometimes alienated President Bill Clinton and the FBI with her stubborn independence and her investigations of Cabinet members.
Holder's aides would not describe his thought process in the weeks leading to the announcement. But Holder himself acknowledged the seriousness of the move and its possible fallout this week, saying that he shared the president's conviction that backward-looking inquiries could fracture the country.
"As attorney general, my duty is to examine the facts and to follow the law," Holder said. "In this case, given all of the information currently available, it is clear to me that this review is the only responsible course of action for me to take."
For his part, Obama appears determined to enter relationships with his Cabinet members as a strategic participant. People who brief him say he is able to game out scenarios before the experts in the room, even on foreign policy, national security and other issues in which he had relatively little expertise before running for president.
Obama is approaching the issues as a game of "three-dimensional chess," said John O. Brennan, an assistant to the president for homeland security and counterterrorism. "It's not kinetic checkers. And I think the approach in the past was kinetic checkers. There are moves that are made on the chess board that really have implications, so the president is always looking at those dimensions of it."
The just-announced review by career prosecutor John H. Durham is being closely followed by the intelligence community for clues about whether it will remain fixed on the low-level CIA employees and contractors who may have stepped out of legal bounds. Once Durham starts digging, some analysts said, the veteran prosecutor could uncover evidence that leads him higher up the chain of command in an inquiry that grows broader than the what the Justice Department outlined Monday.
Former vice president Richard B. Cheney excoriated Obama and Holder this week, saying they were weakening protections for Americans.
"President Obama's decision to allow the Justice Department to investigate and possibly prosecute CIA personnel, and his decision to remove authority for interrogation from the CIA to the White House, serves as a reminder, if any were needed, of why so many Americans have doubts about this administration's ability to be responsible for our nation's security," Cheney said.
When he took over as attorney general after the resignation of Gonzales in late 2007, Michael B. Mukasey promptly reinstated guidelines that would bar the Bush White House and others in the executive branch from reaching out to most of the department's prosecutors. "The Department will advise the White House . . . only where it is important for the performance of the President's duties and where appropriate from a law enforcement perspective," Mukasey wrote.
Obama's advisers said he was not oblivious to the effect a criminal investigation into prisoner abuse cases would have, both on the intelligence officials it touches and on the overall political climate. He has talked privately about the effect the inquiry would have on the CIA, but he has drawn a clear line between the White House and the Justice Department on criminal investigations into detainee abuse, according to allies who repeatedly described his approach in a single phrase: "balancing act."
"The president is a very sophisticated thinker and understands the implications of these decisions and events, and wants to make sure that he is aware of what those repercussions might be on the workforce, and on the reputation and image of the United States," Brennan said in an interview.
"I think he is determined to make sure we are on the right course going ahead, but you cannot just ignore the past, especially when Congress is doing its inquiries and reviews and we're going to be facing these issues as a result of court cases, as a result of congressional actions," Brennan said. "I think he is making sure that he makes the best decisions, and sometimes you cannot just wipe the slate clean. You have to deal with what the facts are, or you have to actually try to make sure you can ascertain the facts -- as opposed to the hyperbole that is out there."
Sen. Ron Wyden (D-Ore.) said Obama has "put a lot of thought" into how to balance security and civil liberties.
"I think he is very much aware that this area has been something of a constitutional teeter-totter," said Wyden, a member of the Senate Select Committee on Intelligence.
Yet Wyden, who spoke recently with CIA Director Leon Panetta about the difficulties of the job, said morale and other problems facing the CIA are real.
"He knew this job wasn't going to be a walk in the park, and he's certainly seen that in the last couple of weeks," the senator said, but he added that the director did not plan to walk away, a possibility raised in some news reports. "Leon Panetta is not a quitter," Wyden said.