Photo: Mandel Ngan/AFP/Getty Images

By: Dan Froomkin, The Intercept, 10/15/15

Former attorney general Eric Holder on Wednesday called for the public release of details of the Justice Department’s criminal investigation into CIA abuse of detainees, saying it would show the world how hard his prosecutors tried to bring Bush-era torturers to justice.

“I’d love to be able to just throw on the table all the work that was done by John Durham, and let people see how seriously we took the responsibility that we had to figure out whether criminal charges could be brought,” Holder said at a reception for the Reporters Committee for Freedom of the Press.

The DOJ investigation into torture, led by special counsel John Durham under a carefully circumscribed mandate from Holder, ended in 2011 with no charges being filed against anyone at the CIA despite the massive amount of evidence showing that they had engaged in extraordinary brutality that went well beyond even what was sanctioned by the Bush Justice Department’s infamous “torture memos.”

Holder and other Obama administration officials have been criticized for not holding anyone accountable for torture, and in that way leaving open the possibility that some future administration will do it again. That critique was revived after the release last year of the executive summary of the Senate Intelligence Committee’s exhaustive Torture Report, which chronicled a seemingly endless series of atrocities, followed by lies to Congress and the public about their supposed effectiveness in eliciting information.

Durham used a grand jury for part of his investigation, and it is a central tenet of the American justice system that grand jury records should be kept secret – especially when no charges are filed. Releasing them – which is highly unusual – would require the acquiescence of a judge.

But, Holder said: “I actually think that with regard to this particular set of fact that the need of grand jury secrecy is outweighed by the need of the nation to know that its leaders took this seriously.”

“To unseal grand jury stuff is pretty extraordinary, I think,” said Anne Weisman executive director of the Campaign for Accountability. “And for the former attorney general to believe that it should be unsealed and to say that the balance with grand jury secrecy is decidedly in favor of the public, I just think that’s extraordinary.”

Holder’s sincerity, however, is debatable, for at least two reasons.

For one, the Department of Justice under his watch began fought against the release of documents related to the Durham investigation that had been requested under the Freedom of Information Act by New York Times reporter Charlie Savage

Savage had requested documents including summaries of interviews with about 100 witnesses and a memo by Durham explaining why in the end no charges were filed.

Just last month, a federal judge tentatively ruled that Savage was entitled to some but far from all of what he had requested, and nothing has yet been made public.

And for another, it’s a little late. He’s not the attorney general anymore. (He stepped down in April.) When I asked Holder if he would make such a request to a judge, he said. “It won’t be for me to decide now.”

“Why didn’t he make that happen then, when he could?” asked Elizabeth Goitein, co-director of the Brennan Center for Justice’s Liberty and National Security Program, when I told her what Holder had said.

Nevertheless, Goitein said, she strongly supports Holder’s proposal. “I think it would be useful,” she said. “In the best case scenario, there would be some satisfactory explanation for why prosecutors couldn’t couldn’t go forward, and that would help restore public faith in the system,” she said. “Alternately, we get a glimpse into how the system went awry.”

When I spoke to Holder directly, he said he “absolutely” had regret about never being able to hold anyone accountable for torture. “Did we want to make cases? Yeah, we wanted to make cases,” he said.

But Holder said there were problems. One was that Bush-era Justice Department lawyers like John Yoo and Jay Bybee’s had drafted “torture memos” that gave the CIA a lot of legal cover. “When you’ve got a Justice Department that tells people: If you act in conformity with the legal advice we’re giving you — that makes a real problem for you to make cases against people.”

Durham eventually identified two cases that he thought involved behavior well beyond what had been sanctioned. But another problem, Holder told me, was that it was too late by then.

“We might have been able to bring charges had an investigation been done in the way that we did it, way back when,” he said. But years later, Durham’s team no longer had “the ability to make the cases in terms of factual stuff and witnesses,” Holder said.

Holder also said that while he had not personally read all of the executive summary of the Senate Torture Report, none of it was a surprise.

“We did a total grand jury examination of all of that stuff. So there’s nothing in the Senate report I didn’t already know,” he said.

Durham’s appointment as special prosecutor actually dates back to 2008, when George W. Bush’s own attorney general, Michael Mukasey, felt he could not ignore revelations that a top CIA official had destroyed videotapes of the brutal interrogations of two terror suspects. Mukasey appointed Durham, a career employee at the Connecticut U.S. Attorney’s Office, to investigate that matter.

The CIA incinerated 92 videotapes, right after the media discovered the existence of secret CIA interrogation sites. The CIA had never disclosed their existence to various federal and judicial inquiries. David S. Addington, former vice president Dick Cheney’s chief of staff and legal counsel, was among three White House lawyers who participated in at least one key meeting about the videotapes in 2004. Nevertheless, Durham announced in November 2010 that he would not bring any charges against anyone involved in the tapes’ destruction.

In August 2009, however, Holder had tasked Durham with another job: reopening some prisoner-abuse cases the Bush administration had closed. But Holder explicitly barred Durham from investigating either the senior officials who approved the torture regime or anyone who followed their orders. “The Department of Justice will not prosecute anyone who acted in good faith and within the scope of the legal guidance given by the Office of Legal Counsel regarding the interrogation of detainees,” Holder said at the time.

Durham looked at the cases of 101 detainees who had been abused, but ultimately opened full criminal investigations into only two – both of whom had been tortured to death.

Gul Rahman died of hypothermia in November 2002 after being stripped of his clothes, beaten, doused with water and left shackled overnight against cold cement with his arms over his head in a secret CIA prison in northern Kabul known as the Salt Pit. Manadel Al-Jamadi died in 2003 at Abu Ghraib. He was known as “the Iceman” on account of an attempt to cool his body and make him look like he hadn’t been dead so long.