Right-Wing Media Falsely Claim DOJ Is “Going After CIA” Agents Who Administered Waterboarding

Doocy: “The Attorney General Of The United States Is Going After The People” Who Administered Waterboarding. On the May 9 edition of Fox News' Fox & Friends, co-host Steve Doocy falsely claimed Attorney General Eric Holder is “going after the people” who administered waterboarding to terror suspects. From Fox & Friends:

DOOCY: So there you've got this administration, unlike the previous one, has simply said that waterboarding will not be allowed. And, in fact, the attorney general of the United States is going after the people who did administrate [sic] some of these waterboardings to these CIA captives -- there were only three of them in all, including Khalid Sheikh Mohammed. But when you look at what the president said last week, he thanked the men and women of the intelligence community behind the scenes and around the world in getting us to this point. So effectively he was thanking them for getting the information via waterboarding. Meantime, you've got Eric Holder who is looking into their, perhaps, abuses.

Later in the segment, after playing a clip of former Vice President Dick Cheney calling the investigations an “outrage,” Doocy said, “Leon Panetta admitted, I think on Tuesday night on NBC, that these enhanced interrogation techniques did lead to information that did lead to the killing of Osama bin Laden. So for them to then say, 'OK, it was OK then, but it's illegal now,' drop the investigation. That's just crazy.” [Fox News, Fox & Friends, 5/9/11]

Kilmeade: “Can We Stop Investigating The CIA Interrogators That Are Doing What They Had The Right To Do?” In a later segment on Fox & Friends, co-host Brian Kilmeade asked former Attorney General Michael Mukasey, “Can we stop investigating the CIA interrogators that were doing what they legally had the right to do back in early 2003 and 2004?” Mukasey responded, “Absolutely” and went on to say that it is “an outrage” that “the new administration decided, without reading [memos on enhanced interrogation] to reopen those investigations.” [Fox News, Fox & Friends, 5/9/11]

NRO Asks If Obama Will “Call Off The Dogs” Who Are “Investigating The CIA For Interrogating” Terrorists. In a May 8 post on National Review Online, Mona Charen claimed that “President Obama needs to be asked” whether he will “instruct Eric Holder to call off the dogs who are currrently [sic] investigating the CIA for interrogating the terrorists who led you to Osama bin Laden?” [National Review Online, 5/8/11]

NRO: Holder “Is Investigating [Interrogators] With An Eye Toward Possible Prosecution.” A May 9 National Review Online post claimed, “Eric Holder is investigating [intelligence officers who used enhanced interrogation] - even though their action were assessed lawful at the time.” The post later claimed that Holder should be asked “why dedicated intelligence officers - whose work, in part, led to the termination of the world's most wanted terrorist -- should be in continuing legal jeopardy for actions they'd been assured were not only lawful, but necessary to national security?” [National Review Online, 5/9/11]

But Holder Will Not Prosecute Those “Who Acted ... Within The Scope Of The Legal Guidance”

Holder: We “Will Not Prosecute” CIA Personnel “Who Acted In Good Faith And Within The Scope Of The Legal Guidance.” In a statement released August 24, 2009, announcing the investigation of “the interrogation of certain detainees,” Attorney General Eric Holder made clear that intelligence agents who acted “in good faith and within the scope of legal guidance” “need to be protected from legal jeopardy.” From Holder's 2009 statement:

There are those who will use my decision to open a preliminary review as a means of broadly criticizing the work of our nation's intelligence community. I could not disagree more with that view. The men and women in our intelligence community perform an incredibly important service to our nation, and they often do so under difficult and dangerous circumstances. They deserve our respect and gratitude for the work they do. Further, they need to be protected from legal jeopardy when they act in good faith and within the scope of legal guidance. That is why I have made it clear in the past that 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. I want to reiterate that point today, and to underscore the fact that this preliminary review will not focus on those individuals. [Department of Justice, 8/24/09 emphasis added]

Amann: “Cause For Concern ... Only Rests With Persons Who Acted In Bad Faith, Or Against Legal Advice.” In an August 24, 2009, post on the New York Times' Room For Debate blog, Diane Marie Amann, law professor at the University of California, Davis, quoted Holder's statement that officers who acted in “good faith” would not be prosecuted, and wrote, “Cause for concern thus rests only with persons who acted in bad faith, or against legal advice.” Amann concluded, “All Mr. Holder did, in short, was to instruct a prosecutor to see if U.S. law was violated. Given the descriptions in the just-released C.I.A. report of waterboarding and other abuses, how could he have done anything less?” [New York TImes, 8/24/09]

Wittes: “The Key ... Is That The Investigation Should Focus Only On The Specific Incidents In Which People Exceeded The Legal Guidance.” In the same New York Times post, Benjamin Wittes, senior fellow at the Brookings Institution, wrote, “My best guess is that Attorney General Eric Holder probably acted quite reasonably.” Wittes further pointed out:

But this leaves the question of what should happen to those operatives who acted beyond the exceptionally permissive guidance that the lawyers gave them. Some of these incidents are very ugly. Some detainees even died in custody. And if people acted in violent fashions beyond what the Justice Department authorized and if there is some reason for Holder to be dissatisfied with the manner in which the career prosecutors in the Justice Department previously investigated their cases, it strikes me as appropriate for him to request another look.

The key, it seems to me, is that the investigation should focus only on the specific incidents in which people exceeded the legal guidance they were given. [New York Times, 8/24/09]