“Placing CIA officials who were acting in the aftermath of the worst attacks against our country and civilians in our history in possible criminal jeopardy years after the fact is in my mind a horrible decision.

“It jeopardizes our ability to continue to effectively protect our country against those who hate us and want to attack us again.”

Oddly, Pataki claimed that his disapproval of the investigation sprung from a concern for the rule of law. “We must make sure we obey the rule of law and act in ways that are not just legal but moral,” said Pataki. “But now, years after the fact, to consider charges is wrong for our country, wrong for our security and wrong for the entire world that believes in the rule of law.”

Human Rights Watch responded to the announcement by imploring Holder to go further and investigate those who “planned, authorized, and facilitated the use of abusive methods.” As constitutional attorney and blogger Glenn Greenwald has noted, Holder’s investigation would effectively immunize interrogators who complied with the Bush administration’s Office of Legal Counsel (OLC) interrogation memos, which authorized brutal torture, and ensure that White House officials who authorized torture “will never be held to account.”

In an appearance today on Fox News’s “America’s Newsroom,” Rep. Jerry Nadler (D-NY) echoed the concerns of these advocates. He told Fox’s Megyn Kelly that Holder should not “limit the investigation” to field interrogators and that he should also investigate the people who gave the orders that resulted in abuse and torture, including former Vice President Cheney:

NADLER: Now, the law says very clearly that it is the obligation of the Attorney General to investigate, to see whether crimes were committed, any time there was torture under American jurisdiction. He must do that. If he didn’t do that, he’d be breaking the law. My criticism of the Attorney General is that he should not limit the investigation to people in the field who may have committed the torture, but to people who may have ordered it, such as the Vice President, for example.

Watch it:

Nadler has been one of the most vociferous critics of the Bush administration’s interrogation policies and its record on civil liberties. In the past, he has said that Bush officials “clearly committed war crimes” and that the Obama administration would be “breaking the law” if it did not fully investigate the Bush administration’s complicity in torture. Most recently, he responded to Cheney’s comments opposing a torture probe by saying that his objections show that he “still fails to understand the law.”

We worked very hard to establish ground rules and parameters about how to deal with terrorists. And if people go beyond that, I think it is legitimate to question and examine that conduct to ensure people are held accountable for their actions, even if it’s action in prosecuting the war on terror.

Listen here:

Of course, Gonzales said he was reassured that Holder was interested the “one percent of actors” who went beyond the legal authorization and not the 99 percent who “are heroes and and should be treated like heroes for the most part.” No doubt that Gonzales puts himself in that 99-percent group.

KERRY: I think there is a little bit of a tension between the White House itself and the lawyers in the Justice Department as they see the law and as what their obligation is. In a sense, that’s good. That’s appropriate, because it shows that we have an attorney general who is not pursuing a political agenda, but who is doing what he believes the law requires him to do. And we have an administration, on the other hand, that is balancing some of those other issues.

Watch it:

The only reason Cheney thinks the investigation is partisan is because he disagrees with it. Holder is doing what an attorney general is supposed to do — following the law, not political considerations.

These are not just the philosophical musings of a new attorney general. Holder, 58, may be on the verge of asserting his independence in a profound way. Four knowledgeable sources tell NEWSWEEK that he is now leaning toward appointing a prosecutor to investigate the Bush administration’s brutal interrogation practices, something the president has been reluctant to do. While no final decision has been made, an announcement could come in a matter of weeks, say these sources, who decline to be identified discussing a sensitive law-enforcement matter. Such a decision would roil the country, would likely plunge Washington into a new round of partisan warfare, and could even imperil Obama’s domestic priorities, including health care and energy reform. Holder knows all this, and he has been wrestling with the question for months. “I hope that whatever decision I make would not have a negative impact on the president’s agenda,” he says. “But that can’t be a part of my decision.”

The AP’s Nedra Pickler confirms that Holder is considering appointing a special prosecutor and that he “will make a final decision within the next few weeks.”

SESSIONS: Well it was disapproved by your predecessor, Judge Mukasey, and Mr. Hayden, the CIA, um, DIA [sic] director. They didn’t approve of that at all. … You were willing to release matters that the DNI and the Attorney General believe were damaging to our national security.

HOLDER: Well, one attorney general thought that. I am the Attorney General of the United States, and it is this attorney general’s view that the release of that information was appropriate, as well as the president of the United States. I respect their opinion, but I had to make the decision, holding the office that I now hold.

Watch it:

There are 240 people there who have now spent years in legal limbo. In dealing with this situation, we do not have the luxury of starting from scratch. We are cleaning up something that is – quite simply – a mess; a misguided experiment that has left in its wake a flood of legal challenges that my Administration is forced to deal with on a constant basis, and that consumes the time of government officials whose time should be spent on better protecting our country.

Yesterday, on the Brian and the Judge radio show, Karl Rove was angered by Obama’s critiques of the Bush administration, and he disputed the fact that the Bush administration had left a “mess” at Guantanamo. When conservative judge Andrew Napolitano noted that Obama “does have a constitutional mess on his hands,” Rove responded by saying that the “mess” is being caused by litigation from Attorney General Eric Holder — who is apparently “arguing against the government”:

ROVE: What’s ironic to me is that yesterday he said “this is a mess that was left to me by my predecessors.” No. This is a mess, to the extent that it is a mess, left to him by his friends and allies like Attorney General Eric Holder. Remember, there are DOJ appointees of this president who are in court arguing against the government’s position on these kind of things. I mean, it is his friends and allies and in some instances, his appointees who are in court arguing for an expansion of the rights of the terrorists and arguing for an end to the military commissions.

Listen here:

It’s unclear what cases Rove is referring to. There has been no litigation on the military commissions since Obama took office in January.

The lingering legal mess at Guantanamo, of course, was created by Bush. Obama now must determine “where to imprison and/or try the remaining approximately 250 Guantanamo detainees, many of whom have already been declared eligible for release.” This is complicated by the fact that multiple detainees have not been able to go to trial because of inadmissible evidence obtained through torture or hearsay. The international community is also encountering similar problems in repatriating Guantanamo detainees. Perhaps worst of all, Bush’s kangaroo courts have produced only three convictions.

As Obama noted Thursday, “the problem of what to do with Guantanamo detainees was not caused by my decision to close the facility; the problem exists because of the decision to open Guantanamo in the first place.”

On Sunday, White House Chief of Staff Rahm Emanuel said that “those who devised the policies…should not be prosecuted.” Press Secretary Robert Gibbs admitted yesterday the White House was failing to hold anyone “accountable” for torture. However, today the New York Times’ Peter Baker and Scott Shane reported that aides to Obama “did not rule out legal sanctions for the Bush lawyers who developed the legal basis for the use of the techniques.”

In the Oval Office this afternoon, the AP’s Jennifer Loven put the question directly to Obama. He refused to rule out prosecutions of the Bush lawyers who created the legal underpinnings for torture, saying it was a question he would leave up to Attorney General Eric Holder:

OBAMA: The OLC memos that were released reflected in my view us losing our moral bearings. … For those who carried out some of these operations within the four corners of legal opinions or guidance that had been provided from the White House, I do not think it’s appropriate for them to be prosecuted. With respect to those who formulated those legal decisions, I would say that is going to be more of a decision for the Attorney General within the parameters of various laws, and I don’t want to prejudge that.

Obama also tacitly endorsed a bipartisan, Congressional commission to investigate Bush’s torture program. Watch it:

Obama is effectively putting the ball in Holder’s court. Recall, during his Senate confirmation hearing, Holder said that the President cannot “immunize” torture and must enforce the law in all cases:

LEAHY: Do you believe that the president of the United States has authority to exercise a commander-in-chief override and immunize acts of torture? I ask that because we did not get a satisfactory answer from Former Attorney General Gonzales on that.

HOLDER: Mr. Chairman, no one is above the law. The president has a constitutional obligation to faithfully execute the laws of the United States. There are obligations that we have as a result of treaties that we have signed — obligations, obviously, in the Constitution. Where Congress has passed a law, it is the obligation of the president, or the commander-in-chief, to follow those laws. [...]

If one looks at the various statutes that have been passed, it is my belief that the president does not have the power that you’ve indicated.

Holder told Katie Couric earlier this month that a special commission investigating torture is something that “Senator Leahy, the people in the Senate Judiciary Committee, the President will ultimately have to decide.” Leahy, Judiciary Committee senators, and Obama have made up their mind. Now, it is up to Holder to ensure that “no one is above the law.”

First, the interrogation techniques described in these memos have already been widely reported. Second, the previous Administration publicly acknowledged portions of the program – and some of the practices – associated with these memos. Third, I have already ended the techniques described in the memos through an Executive Order. Therefore, withholding these memos would only serve to deny facts that have been in the public domain for some time. This could contribute to an inaccurate accounting of the past, and fuel erroneous and inflammatory assumptions about actions taken by the United States.

In releasing these memos, it is our intention to assure those who carried out their duties relying in good faith upon legal advice from the Department of Justice that they will not be subject to prosecution. The men and women of our intelligence community serve courageously on the front lines of a dangerous world.

Attorney General Eric Holder issued a parallel statement in which he not only promised not to pursue prosecutions but also to provide representation “in any state or federal judicial or administrative proceeding brought against” any CIA employee who acted “reasonably” upon the advice of the OLC. Senate Judiciary Committee Chairman Pat Leahy (D-VT) responded to the release by reiterating his desire to hold a “Commission of Inquiry” into the Bush administration’s use of torture in order to gain a “thorough accounting of what happened.” Read the memos here.

HOLDER: Well, I think that’s totally false. It’s inconsistent with the facts. … All the things that we’re doing are designed to enhance the safety of the American people. And closing Guantanamo is, in fact, one of those things. It takes away from people who are our enemies. A recruiting tool. It actually makes our relationships with our allies a lot less complicated. If you look at what the president is doing, what this administration is doing in Afghanistan, what we’re doing with regard to Guantanamo, I think the former vice president’s remarks are are way off the mark.

Watch it:

Vice President Biden also said this week that Cheney is “dead wrong,” noting that the “last administration left us in a weaker posture than we’ve been any time since World War II.” Senior Obama adviser David Axelrod said on Sunday that Cheney has not been acting like a “statesman.”

LIMBAUGH: I, El Rushbo, am no coward. … In fact, I show bravery on race. I am totally willing to discuss it openly and honestly. How does one show bravery on race as I have? You talk about media bias, you talk about slavish media coverage of Black quarter backs in the National Football League. Then see what happens. Then watch all hell descend upon you from every quarter of this nation’s media. From print to broadcast to internet. … I show bravery on matters of race.

Watch it:

Limbaugh is clearly still bitter about the fact that he was forced to resign from his position as an ESPN commentator in 2003 for claiming that the media were only interested in Philadelphia Eagles Quarterback Donovan McNabb because he is black (despite the fact that McNabb has shown himself to be incredibly talented):

Sorry to say this, I don’t think he’s been that good from the get-go. I think what we’ve had here is a little social concern in the NFL. The media has been very desirous that a black quarterback do well. There is a little hope invested in McNabb, and he got a lot of credit for the performance of this team that he didn’t deserve.

By citing the McNabb episode as a “brave” moment in the history of race-relations, Limbaugh actually reaffirmed Holder’s point. As Holder explained yesterday, discussions surrounding race and public policy in American society ought to be “nuanced, principled and spirited.” But too often, we leave the conversation to “those on the extremes who are not hesitant to use these issues to advance nothing more than their own, narrow self interest.”

The result is a de facto acceptance and even endorsement of Limbaugh’s repeated race-based outbursts and criticism of public officials who choose to speak out.

Though this nation has proudly thought of itself as an ethnic melting pot, in things racial, we have always been, and we, I believe, continue to be, in two many ways, a nation of cowards. Though race related issues continue to occupy a significant portion of our political discussion, and though there remain many unresolved racial issue in this nation, we, average Americans, simply do not talk enough with each other about things racial. [...]

And we, in this room, bear a special responsibility. Through its work and through its example, the Department of Justice — this Department of Justice — as long as I’m here, must and will leave the nation to the new birth of freedom so long ago promised by our greatest president. This is our duty, this is our solemn responsibility.

Holder’s remarks are a refreshing break from the Bush administration, during which Justice Department officials allowed conservative political interests to trump civil rights concerns. Watch Holder’s speech here.

When the DoJ Inspector General report on Goodling was released in July 2008, it concluded that Goodling was motivated by Hagen’s perceived sexual orientation and “that Goodling’s actions violated Department policy and federal law, and constituted misconduct.”

Last night, however, NPR reported the good news that Obama Justice Department has re-hired Hagen for old position:

Last year, the Justice Department posted Hagen’s old job again. The department conducted a national search. Applications came in from around the country. After several rounds of interviews, Hagen eventually won the job.

The paperwork makes it official as of Monday, Feb. 2. Hagen now has her old position back, but this time it’s a little different. Her contract no longer comes up for renewal every year. Now, the job is permanent.

NPR’s Ari Shapiro notes that “it is not a perfectly happy ending for Hagen” because “nobody official from the department ever apologized to her for what happened” and she still owes thousands of dollars in attorney fees that the Bush Justice Department refused to pay.

Hagen’s rehiring is only the latest move in an effort by President Obama and new Attorney General Eric Holder to provide a “a clean break with the past policies of the Bush administration.” Not only does Holder say that the Department is “no place for political favoritism,” but he is also expected to embark on “a broad doctrinal shift in policies” from the Bush administration.

(HT: Queerty)

But less than two weeks into his presidency, just 17 of the 31 nominees officially announced by the White House have been confirmed by the Senate. [...] By comparison, 19 of Bill Clinton’s nominees were confirmed in his first 10 days in office. George W. Bush, who had a much abbreviated transition because of the Florida recount, had 13 nominees confirmed in the first 10 days, according to an analysis by the Presidential Transition Project at New York University’s Wagner School of Public Service in cooperation with The Washington Post.

Among the key nominees awaiting confirmation are Eric Holder for attorney general and Rep. Hilda Solis (D-CA) for Labor Secretary. For example, Senate Republicans have obstructed Holder’s confirmation for 63 days since Obama nominated him on Dec. 1.

- Matt Finkelstein

At the Progressive Media Summit on Capitol Hill yesterday, Marcy Wheeler asked Sen. Carl Levin (D-MI), the chairman of the Senate Armed Forces Committee, about congressional plans to continue investigating torture. “There needs to be, I believe, an accounting of torture in this country,” replied Levin. He then said that he had suggested to Attorney General-nominee Eric Holder that he appoint “an outside person who’s got real credibility” to continue to investigate:

LEVIN: We’re going to try to complete this investigation, at least on the DoD side, Ok. But on the intelligence, the CIA side, that’s going to be up to the Intelligence Committe. I know I suggested to Eric Holder, who will be the next Attorney General despite the delay that took place today, that he select some people or hire an outside person whose got real credibility, perhaps a retired federal judge, to take all the available information, and there’s reams of it.

Watch it:

In December 2008, Levin’s committee released the executive summary of an investigation into the Bush administration’s detainee policy, which concluded that top Bush administration officials “bore major responsibility for the abuses committed by American troops in interrogations.” Levin said yesterday that the full report would be released “in the next couple of weeks.”

Transcript:

LEVIN: The CIA, which you make reference, that investigation will take place, if it takes place — and I think Sen. Cardin…– Anyway, let me give you a general answer first. There needs to be, I believe, an accounting of torture in this country. I — My committee, the Armed Services Committee, which I chair has recently issued a report, which you’re obviously very familiar with, I know you are, about torture at the highest levels. The policies that were put in place at the highest levels of this government. We released the executive summary of that report, and it’s on my website, and I have a copy here with me, I don’t have time, but I have it here with me, I don’t have time to read parts of it. But it does say, to state as the former Secretary of Defense said, or his deputy, that this was just a few people, a few bad apples, that was Wolfowitz, that a few bad apples perpetrated Abu Ghraib is false. The policies of torture were adopted at the highest level. That’s what our report finds. So, we’re going to continue. We’re going to try to complete this investigation, at least on the DoD side, Ok. But on the intelligence, the CIA side, that’s going to be up to the Intelligence Committe.

I know I suggested to Eric Holder, who will be the next Attorney General despite the delay that took place today, that he select some people or hire an outside person whose got real credibility, perhaps a retired federal judge, to take all the available information, and there’s reams of it. Look, the Vice President, the former Vice President of the United States, acknowledged that they engaged in torture. He says that waterboarding’s not torture, he’s wrong. Waterboarding is torture, period. And this administration and Eric Holder has said so. It’s torture and there’s other forms that they engaged in, so what needs to be done, I believe, in addition to finishing the investigation, is for the Attorney General, the new Attorney General, to identify some people in his office to take the existing documentation. The acknowledgment, folks, this is not a very difficult — this is almost like a case in court with an agreed upon statement of facts, that the previous administration acknowledges that they engaged in waterboarding, period. Now, we’ve got a 200 page report, which goes into details, which will be released, we hope, in the next couple of weeks, the full report. But, in the event, we are going to finish our side of the investigation and Intelligence Committee, hopefully, will do the CIA part.

“It could well be there will be a request to delay the markup for a week so those questions can be asked and answered,” Cornyn said. “Part of my concern relates to his statements at the hearing with regard to torture and what his intentions are toward our intelligence personnel who were operating in good faith based on their understanding of what the law was.”

Sen. John Cornyn (R-TX) could not fathom that an Attorney General would reject a practice that both is unlawful and endangers Americans. He tried to get Holder to back off his anti-torture stance by presenting an absurd “ticking time bomb” hypothetical in which thousands of American lives are at stake. “You would still refuse to condone aggressive interrogation techniques?” Cornyn asked. When Holder replied that waterboarding is not the only interrogation method, Cornyn insisted, “Assume that it was”:

HOLDER: I think your hypothetical assumes a premise that I’m not willing to concede.

CORNYN: I know you don’t like my hypothetical.

HOLDER: No, the hypothetical’s fine; the premise that underlies it I’m not willing to accept, and that is that waterboarding is the only way that I could get that information from those people.

CORNYN: Assume that it was.

HOLDER: [Laughs] Given the knowledge that I have about other techniques and what I’ve heard from retired admirals and generals and FBI agents, there are other ways in a timely fashion that you can get information out of people that is accurate and will produce useable intelligence. And so it’s hard for me to accept or to answer your hypothetical without accepting your premise. And in fact, I don’t think I can do that.

Watch it:

A few minutes later, Sen. Dick Durbin (D-IL) identified where Cornyn most likely thought up his torture-is-the-only-option scenario: “I understand Senator Cornyn’s questions. They are questions that anyone who watches Jack Bauer on ‘24′ would ask.”

Intelligence officials have repeatedly rejected the idea of a ticking time bomb scenario. Jack Cloonan, who spent 25 years as an FBI special agent and interrogated members of al Qaeda, said that he has “been hard pressed to find a situation where anybody” can say “that they’ve ever encountered the ticking bomb scenario” when interrogating terrorists. He said it is a “red herring” and “[i]n the real world it doesn’t happen.”

One law professor, who has extensively researched interrogation, said she had heard of only one ticking time bomb scenario. “It’s on the show ‘24.’ And that’s the only one I know of.”

Transcript:

CORNYN: I wanna just ask you a hypothetical. Earlier, you condemned the use of waterboarding. But you’re familiar with the ticking time bomb scenario, and I just wanna pose a hypothetical for you. Let’s say as Attorney General you find out that there are terrorists that have access to chemical, biological, or nuclear weapons, and that you have a detainee who’s in possession of information that, if disclosed, would prevent those weapons from being detonated in the United States and thousands, maybe tens of thousands people being killed. You would still refuse to condone aggressive interrogation techniques like waterboarding to get that information, which would, under my hypothetical, save perhaps tens of thousands of lives.

HOLDER: Well, I think there are a couple of ways in which I’d look at that. One, I would not assume that because I say waterboarding should not be done that that’s the only tool, the only mechanism, that we have in our arsenal to try to get that information from that person as quickly as we could. I also think I’m not at all certain that waterboarding somebody, torturing somebody – whatever technique you want to use – is necessarily going to produce the results that we want. What I’ve heard from the experts is that people will say almost anything to avoid torture. They will give you whatever information they think you want to hear. And so, I’m not at all certain that given the time sensitivity that I assume we have in your hypothetical, that waterboarding that person would necessarily give us the result that we want. And I think we also have to understand that we have other things in our arsenal that we could use – other techniques that we could use that would, I think, perhaps the result that we want.

CORNYN: Well, of course, torture’s illegal under international treaties and under domestic laws, and I’ve heard people talk about torture in expansive ways, where things like sleep deprivation, other techniques that maybe you would employ as an alternative are considered torture to them as well. But under my hypothetical, if that were the only thing standing between you and deaths of tens of thousands of Americans, you would decline to use that interrogation technique in order to save those lives. Is that correct?

HOLDER: Again, I think your hypothetical assumes a premise that I’m not willing to concede.

CORNYN: I know you don’t like my hypothetical.

HOLDER: No, the hypothetical’s fine; the premise that underlies it I’m not willing to accept, and that is that waterboarding is the only way that I could get that information from those people.

CORNYN: Assume that it was.

HOLDER: [Laughs] Given the knowledge that I have about other techniques and what I’ve heard from retired admirals and generals and FBI agents, there are other ways in a timely fashion that you can get information out of people that is accurate and will produce useable intelligence. And so it’s hard for me to accept or to answer your hypothetical without accepting your premise. And in fact, I don’t think I can do that.

[...]

DURBIN: I listened to your opening statement and in three words, in three words, the world changed as far as I’m concerned, because you stated without hesitation that waterboarding is torture. I can’t tell you how many times Senator Whitehouse and I asked that of the current Attorney General and we could never, ever get a straight declarative sentence. I think it’s important — important for our country, important for our position in the world. And I understand Senator Cornyn’s questions. They are questions that anyone who watches Jack Bauer on “24″ would ask. And most Americans do, I have. But it’s a different scenario, and when we’re going to draw up values and principles and laws, we have to really be cognizant of the fact that you can always construct the scenario that will challenge the foundation of any legal principle. And I think it’s far better for us to stand by standards that have guided our nation for generations and return to them now with this new administration.

HOLDER: If you look at the history of the use of that technique, used by the Khmer Rouge, used in the Inquisition, used by the Japanese and prosecuted by us as war crimes. We prosecuted our own soldiers for using it in Vietnam. I agree with you, Mr. Chairman, waterboarding is torture.

In another break with Bush administration officials, Holder said other countries would be violating international law if they waterboarded U.S. citizens. Watch it:

Holder also said that the President cannot immunize officials who committed acts of torture. “No one is above the law,” he stated.

BENNETT: Do you have confidence that the Democrats on your committee will look at [Holder's record] honestly? [...]

SPECTER: I think they will be strongly inclined to confirm him regardless. … Sen Leahy has said that he “guarantees” the confirmation of Holder.

BENNETT: Well, how can you say that ahead of time?

SPECTER: Well I can’t say that ahead of time. I wouldn’t and haven’t.

Specter said further, “I think it’s very important for people in my position to deal on a factual basis and a professional basis and not to make up my mind in advance. That is what a hearing is for.” Listen here:

Specter’s dismay at Leahy’s prediction is ironic, considering his past statements. On December 24, 2000, two days after then President-elect Bush announced that he had selected John Ashcroft for Attorney General and three weeks before Ashcroft’s confirmation hearings, Specter went on Face the Nation and confidently predicted that Ashcroft would be confirmed by the Senate:

SCHEIFFER: Senator Specter, you’re on the Judiciary Committee. Can John Ashcroft be confirmed?

SPECTER: Yes, I think he can be, and will be. I think the president is entitled to great latitude in the selection of his Cabinet officers. And I know John Ashcroft very well. He’s a first-rate lawyer. He was attorney general of Missouri.

Additionally, Specter’s emphasis today on the import of senators not making up their minds “in advance” of confirmation is disingenuous considering that fact that he decided to vote to confirm Ashcroft before that set of hearings began. A day before Ashcoft’s hearings began on January 16, 2001, Specter told a reporter for the Pittsburgh Post-Gazette, “I’ve said publicly that unless something comes up which is extraordinary, that I do intend to vote for him.”

Similarly, on January 17, 2001, Wolf Blitzer asked Specter, “you have made up your mind, basically, already, haven’t you?” Specter responded, “I have said that unless something unusual happens, I will support John Ashcroft.”

Specter appears increasingly alone in his opposition to Holder’s confirmation. Today, former judiciary committee chair Sen. Orrin Hatch (R-UT) announced his support for Holder. Other prominent conservatives backing Holder include former Solicitor General Ted Olsen, former Rep. Asa Hutchinson (R-AR), and former Deputy Attorneys General Jim Comey and Paul Mcnulty.