Revolution #175, September 6, 2009

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Holder's Torture Investigation… And What is NOT Being Investigated

Even before the release of the CIA Inspector General's report documenting CIA torture, Obama's Attorney General Eric Holder apparently decided to launch an investigation to identify CIA agents for possible prosecution. But the criteria for criminal charges in this investigation is not those who broke the law—but those who went beyond the guidelines they were given by the White House Office of Legal Counsel.'s legal commentator, Glenn Greenwald noted: "the scope of the 'review' is limited at the outset to those who failed to 'act in good faith and within the scope of legal guidance'—meaning only those interrogators and other officials who exceeded the torture limits which John Yoo and Jay Bybee [authors of the Bush Office of Legal Counsel Torture Memos—Revolution] approved. Those who, with good faith, tortured within the limits of the OLC memos will "be protected from legal jeopardy."

The Torture Memos issued by the Bush White House Office of Legal Counsel (OLC) were an attempt to overwrite longstanding U.S. and international law that prohibits torture. The Convention Against Torture and Other Cruel, Inhumane, and Degrading Treatment (the Torture Convention) is, according to the CIA report, binding law in the U.S. (page 16, footnote). That Convention outlaws, almost word for word, the very techniques that the White House determined to be legal. For example, the CIA report cites international law against torture as prohibiting "the threat of imminent death," "procedures calculated to disrupt profoundly the senses or personality," and "threatened infliction of severe physical pain or suffering."

And Eric Holder himself, in his Senate confirmation hearing, essentially confirmed that waterboarding is torture and illegal. When asked by Senator Patrick Leahy, "Do you agree with me that water boarding is torture and illegal?" Holder responded, "I agree with you, Mr. Chairman. Water boarding is torture."

By making the criteria for prosecution exceeding illegal guidelines in the White House OLC Torture Memos, Holder's investigation—even if he actually indicts anyone associated with CIA torture—effectively serves to enshrine as law those illegal guidelines, including waterboarding. In the realm of law, it adopts the standard that the president can order the White House OLC to approve of any illegal activity, and then impose that finding as "law." And in the realm of morality, the criteria for Holder's investigation serves to put a stamp of approval on the torture techniques orchestrated from the White House.

Even as Holder's investigation serves to radically expand the scope of what is legal torture, it is fiercely opposed by powerful forces within the ruling class. This tension is expressed not just in recent verbal volleys between Obama and Dick Cheney, but also within the Obama administration. ABC News reported that "A profanity-laced screaming match" broke out at the White House when CIA Director Leon Panetta reacted furiously to being informed of Holder's investigation.

These conflicts reflect real divisions. Not over whether, but over how to pursue global war for empire, and how to ratchet up spying and repression. For an analysis of the motive forces behind these conflicts within the ruling class over torture policy, and how to bring forward the interests of the masses of people in the context of these divisions, see, "Night of the Living Dead: Obama, Cheney, and the 'Debate' Over Torture," (Revolution #167, June 7, 2009).

For a strategic perspective on these and related questions, we urge readers to study:

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