Eric H. Holder Jr., attorney general of the United States, has been a lonely man for the last six weeks.
On Aug. 24, Holder ordered a federal prosecutor to review the Bush administration Justice Department’s decisions not to prosecute CIA personnel who broke the agency’s own rules in their zeal to wring information from suspected terrorists.
Holder didn’t ask for indictments or a full investigation, only for a “preliminary review.” But the response from defenders of the Bush administration was immediate and deafening.
Former Vice President Dick Cheney called Holder’s action “a terrible decision” and, in a chilling endorsement of lawlessness, said he didn’t mind if interrogators broke the administration’s own rules. Republican senators denounced Holder’s decision as political, which is a nonsensical charge against an action that produced only political grief. And seven former directors of the CIA, defending their clandestine service, warned that holding intelligence officers accountable would discourage risk-taking in the future.
What are the excesses being looked at? In several cases, detainees died as an apparent result of their jailers’ acts. One froze to death, chained to the floor of an unheated cell in the Afghan winter. Another died after his interrogator bludgeoned him with a flashlight. (That was the one case that did prompt prosecution; the interrogator was convicted.)
There’s no question that serious misconduct occurred; the CIA says all of the interrogators being investigated were disciplined for breaking the rules -- rules that permitted waterboarding, ramming heads against walls and other “enhanced interrogation techniques.” The question now is whether any of their rule-breaking deserved criminal prosecution -- and whether the Bush administration made the right calls when it decided not to prosecute.
Holder hasn’t had a lot of support for his investigation. A few Democrats in Congress and, oddly, former Atty. Gen. Alberto R. Gonzales applauded the move, but not the White House, where some aides privately made it clear that they wished the attorney general’s conscience hadn’t bothered him so much.
But help for the beleaguered attorney general arrived last week from an unexpected quarter: a group of retired generals and admirals who want to restore more stringent respect for the rule of law in the culture of our national security agencies.
The group includes well-known retired officers such as Gen. Charles Krulak, former commandant of the Marine Corps; Marine Gen. Joseph P. Hoar, a former commander of U.S. forces in the Middle East; and Army Maj. Gen. Antonio M. Taguba, who investigated the crimes at Abu Ghraib in Iraq. Some of its members met with Holder last week to offer their support for his efforts to close the detention facility at Guantanamo as well as for his position on the CIA inquiry, and they said he was grateful. (A Justice Department spokesman didn’t respond to a request for Holder’s version of the meeting.)
It was Abu Ghraib that brought the military men together, they said -- their anguish over how far Army soldiers had strayed from the traditional rules for treatment of prisoners of war, even in an ugly battle zone like Iraq.
Their arguments are straightforward: The rule of law should apply even in a war against lawless terrorists, and the CIA should be held to the same standard of accountability as the soldiers who were tried for what they did at Abu Ghraib.
“I’m amazed at my former colleagues in the intelligence community who think [Holder’s decision] is a terrible thing,” said retired Army Lt. Gen. Harry E. Soyster, former chief of the Defense Intelligence Agency. “If accountability is going to discourage CIA officers from doing their jobs, then we have the wrong culture.”
“In the military, we’re told to follow the rules,” Taguba said. “We expect that our civilian leaders will do the same.”
Taguba doesn’t hide his bitterness that soldiers and officers were tried for what they did at Abu Ghraib, but the CIA personnel who encouraged them to break the rules weren’t.
There’s an element here of the age-old culture clash between the uniformed military, with its detailed field manuals and bright-line rules, and the clandestine service of the CIA, with its long tradition of pushing the envelope.
But for these retired officers, the notion that any branch of the U.S. government can invoke the Roman Polanski rule -- that if your work is important enough, you shouldn’t be treated like an ordinary criminal -- is dangerous.
Some of the officers’ arguments are familiar: The assertion that torture produces unreliable intelligence and that brutality by U.S. personnel, whether military or civilian, merely makes it easier for Al Qaeda and the Taliban to win new recruits.
But they have other reasons for supporting Holder that come from their experiences commanding troops in battle. A force that doesn’t enforce its own rules will quickly turn into undisciplined rabble. And Krulak notes that American parents send their children to the military to make them better people; if they come home both brutalizers and brutalized, the military has broken that promise.
And they say one other thing: Higher-ups should be held accountable too. David M. Brahms, a retired Marine one-star general who now practices law in Carlsbad, can recite from memory a line from the 1950 officers manual commissioned by Gen. George C. Marshall: “When an officer winks at any degradation by his men, it is no different than if he had committed the act.”
In a campaign organized by Human Rights First, a nonpartisan human rights group, the generals and admirals are pressing the administration to close the Guantanamo facility on schedule, give its inmates civilian trials and -- until then -- to house them in American prisons. “I thought we were supposed to be the home of the brave, not the home of the fearful,” said retired Gen. David M. Maddox, a former commander of Army forces in Europe, dismissing the hysteria about holding detainees on the mainland.
Lest you think the retired officers have a political motive, they aren’t all Democrats; Krulak, for one, is an outspoken Republican. Indeed, they say one of their concerns now is making sure President Obama keeps his word on closing the Guantanamo facility and resolving the detainee cases as soon as possible.
Obama and Holder are lucky to have such friends, none of them gun-shy, to speak on their behalf -- and to hold their feet to the fire.