Adam Zagorin reports that John Durham, the prosecutor Attorney General Eric Holder assigned to probe the Bush administration's torturous interrogation program, may be coming back with some indictments:
It has been nearly a decade since Manadel al-Jamadi, an Iraqi prisoner known as "the Iceman" — for the bungled attempt to cool his body and make him look less dead — perished in CIA custody at Abu Ghraib. But now there are rumbles in Washington that the notorious case, as well as other alleged CIA abuses, could be returning to haunt the agency. TIME has learned that a prosecutor tasked with probing the CIA — John Durham, a respected, Republican-appointed U.S. Attorney from Connecticut — has begun calling witnesses before a secret federal grand jury in Alexandria, Va., looking into, among other things, the lurid Nov. 4, 2003, homicide, which was documented by TIME in 2005.
TIME has obtained a copy of a subpoena signed by Durham that points to his grand jury's broader mandate, which could involve charging additional CIA officers and contract employees in other cases.
The subpoena says "the grand jury is conducting an investigation of possible violations of federal criminal laws involving War Crimes (18 USC/2441), Torture (18 USC 243OA) and related federal offenses."
Zagorin notes that some conservatives are crying foul:
Last month, Michael Mukasey, who served as U.S. Attorney General under Bush, declared it "absolutely outrageous" that the Justice Department was still looking into potential CIA wrongdoing. Seven former CIA directors wrote to Obama soon after Holder's appointment of Durham and asked him to scrap the investigation. Former GOP Senator Rick Santorum recently slammed the effort as he launched his 2012 presidential bid. “This whole process should be terminated immediately,” Santorum said. “This is a political prosecution ... that would be ended with a political solution, that is the 2012 elections.”
The recent attempt to rehabilitate torture in the aftermath of Osama bin Laden's death by making the dubious claim that waterboarding lead to the discovery of his whereabouts had two purposes. One, it was a means to give Bush some credit for bin Laden's demise, despite his reduced focus on finding him after 2006. The second thing it was meant to do was lay the groundwork for objection to potential prosecutions of contractors or CIA officials involved in interrogations.
Of course, Durham's original mandate involved probing interrogations that went beyond the lines proscribed by the Bush Era Office of Legal Counsel, and I'd be surprised if the indictments, if any, involve people who didn't do that. Keep in mind though, what the administration's conservative detractors are demanding here is blanket immunity for any national security official who breaks the law, even if doing so involves killing someone. Not only that, but the presumption is that President Obama, who has already politicized the Department of Justice's mission enough by implying that the government should "look forward" on matters of accountability for past lawbreaking, should interfere with an ongoing investigation because the target deserves immunity from breaking the law simply by virtue of who they are.
Look, you can't have a system based on the rule of law when an entire class of people are immune from prosecution for breaking the law, and that course of argument becomes particularly anti-democratic and dangerous when the class is comprised of the country's national security officials.
