Attorney General Eric Holder Jr. said Thursday that CIA officials who used harsh interrogation tactics on suspected terrorists would not face prosecution and that the government would provide free legal representation to any official sued for their participation in the now-banned interrogation program. In a statement today, Holder said the government would indemnify intelligence officials for any monetary judgment or penalty imposed against them and represent them in congressional investigations, provided they acted within the margins of the Justice Department's legal opinions sanctioning the techniques, which included beatings, cramped confinement, and waterboarding.
Holder’s remarks accompanied the release of one secret legal opinion the Justice Department’s Office of Legal Counsel issued to the CIA in August 2002 and three the office issued to the agency in May 2005. Click here for 2002 opinion; and here, here, and here for the 2005 opinions. (Be warned: The files are large.)
Notably, Holder gave no assurances that the lawyers who wrote the opinions -- Jay Bybee, now a federal appellate judge in California, and Steven Bradbury -- would receive legal cover. Bybee, Bradbury and another former OLC layer, John Yoo, a professor at the University of California, Berkeley, School of Law, are the subjects of a critical report by DOJ's ethics watchdog. The release of the report has been delayed to allow them time to respond to allegations that they strayed from professional standards in authoring several OLC opinions.
The department has been defending Yoo in a lawsuit brought by Jose Padilla, who was detained for more than three-and-half years in a military brig in South Carolina. Padilla, a U.S. citizen, claims that Yoo was one of the architects of unlawful policies that led his designation as an "enemy combatant," his detention at the military brig, and the harsh interrogations and extreme isolation he allegedly suffered there. That case prompted the Justice Department last month to release seven opinions and two memos issued by Yoo and others during the Bush administration. One opinion by Yoo held that the Fourth Amendment didn't apply to domestic military operations. He also suggested that First Amendment speech and press rights “would potentially be subordinated to overriding military necessities."
Today's opinions were released as part of case filed by the American Civil Liberties Union and the Center for Constitutional Rights, which is seeking information about the government's treatment of detainees. Bybee and Bradbury authored them in response to inquiries from John Rizzo, the CIA's acting general counsel, regarding the legality of the scope and intensity of CIA interrogations. They describe, with precision, coercive methods used on a select group of detainees thought to be senior members of al-Qaeda or to have knowledge of imminent terrorists threats to the United States.
Here is the Justice Department statement in full:
“The President has halted the use of the interrogation techniques described in these opinions, and this administration has made clear from day one that it will not condone torture,” said Attorney General Eric Holder. “We are disclosing these memos consistent with our commitment to the rule of law."
Holder also stressed that intelligence community officials who acted reasonably and relied in good faith on authoritative legal advice from the Justice Department that their conduct was lawful, and conformed their conduct to that advice, would not face federal prosecutions for that conduct.
The Attorney General has informed the Central Intelligence Agency that the government would provide legal representation to any employee, at no cost to the employee, in any state or federal judicial or administrative proceeding brought against the employee based on such conduct and would take measures to respond to any proceeding initiated against the employee in any international or foreign tribunal, including appointing counsel to act on the employee’s behalf and asserting any available immunities and other defenses in the proceeding itself.
To the extent permissible under federal law, the government will also indemnify any employee for any monetary judgment or penalty ultimately imposed against him for such conduct and will provide representation in congressional investigations.
“It would be unfair to prosecute dedicated men and women working to protect America for conduct that was sanctioned in advance by the Justice Department,” Holder said.
After reviewing these opinions, OLC has decided to withdraw them: They no longer represent the views of the Office of Legal Counsel.