justification versus declination of murder and torture, city birds

In the pilot episode of Elmore Leonard’s Justified U.S. Marshall Raylan Givens ( Timothy Olyphant) gives a thug 24 hours to leave town. In a face to face meeting he gives him another chance. Even in the last minute before the sadist villain has his gun already drawn under the table, Givens keeps his holstered. The villain radiates so much evil that we’re almost glad he decided to stay so we could have that gift that Hollywood keeps on giving. That moment of instant justice. No blurred lines. A killer is shot dead in a more than fair gun fight. Even so such a bloody spectacle in a public place lands the Marshall back in his old stumping grounds. If his liberal credentials had not already been well established the first case Givens is assigned to in his rural modern noir is a sociopath white supremacist who had just fired a rocket blowing up a local Rastafarian church. In their final showdown Givens again gives the culprit a chance to come peacefully to be booked and to reach for his gun to shot first.  Givens is quicker and shots him. The Marshall could have ended it all there and shot him in the heart, but instead shoots a few inches off. When asked why he didn’t go for the kill – which is certainly justified when someone is trying to kill you – Givens explains they dug coal together when they were nineteen. Not friends, but guys that had to, under the circumstance, look out for each other. Really bad chest wounds tend to end white supremacist careers anyway. Some writers have noted Marshall Givens bottled up anger and its addressed in the show itself, but while that anger is there it seems pretty clear that if its a battle between his inner demons – doing what’s fair and just, versus the anger – the fair and just side wins.  Disappearing Act

On Monday, in a post entitled “Inside the Salt Pit,” I noted that the identity of the CIA agent who managed the Salt Pit at the time of Gul Rahman’s death in 2003 was, perhaps inadvertently, disclosed in filings submitted on behalf of Judge Jay Bybee to the Justice Department, which were posted at the Judiciary Committee’s website. As Jane Mayer notes at the New Yorker, the page with the disclosure has now been modified and the name redacted. This vanishing act achieves very little in fact, since the page exists in thousands of copies. But it does suggest the Agency’s zeal in “disappearing” unpleasant facts.

Scott Horton notes the Bybee document sums up the case made Bush administration sharks that those CIA agents responsible for Rahman’s death should not be prosecuted because the death was unintentional. Rahman died from hypothermia – where basic body functions start to break down due to decreased core body temperature. Among other things hypothermia causes reduction of white blood cells, increased blood viscosity, reduced cardiac output, highly stressed respiratory function and decreasing consciousness leading to shock and coma. When you induce these cold related conditions on someone you would have to be blind and deaf not to realize your intent has serious consequences even before the onset of coma and death. I’m just going to follow Scott’s links: Who Killed Gul Rahman?

Last week, in a review of Marc A. Thiessen’s “Courting Disaster,” I questioned many of Thiessen’s assertions about the use of torture during the Bush years, including his claim that no detainee “deaths in custody took place in the C.I.A. interrogation program.” Now, underscoring that point, the Associated Press has published a remarkable account detailing the death of one detainee held by the C.I.A.

The story, by Adam Goldman and Kathy Gannon, revealed for the first time the name of a suspected Afghan militant who died of exposure in C.I.A. custody on November 20, 2002, in a secret prison, known as the “Salt Pit,” run by the Agency. The suspect, Gul Rahman, reportedly died after having been stripped naked from the waist down and shackled in a cell in which the temperature dipped to approximately thirty-six degrees Fahrenheit.

I probably would not have liked Rahman very much. He was suspected of being a guard for an Afghan warlord at a time when that warlord was cozy with Al Qaeda. Such alliances of convenience – we hate each other, but have a common enemy – are not uncommon in Afghanistan. That same warlord in now in negotiations with the U.S. supported government of Karzai. It’s likely that Karzai will find some common ground and the U.S. will look the other. So Rahman is probably not someone who you’d invite over for pizza to watch ESPN, but it seems that as time has passed his boss is becoming mainstreamed into Afghan society. Rahman was never put on trial – or his nefarious boss for that matter. No evidence was offered for or against him before an impartial jury. He was not given one chance, much less three. He was human according to his wife and four daughters who were never notified of his death.

According to the A.P. story, both the C.I.A. and the Justice Department reviewed the case for potential criminal violations during the Bush years, but declined to prosecute. Since then, however, Attorney General Eric Holder has asked special prosecutor John Durham to take a second look at the Salt Pit case, along with several other instances of alleged abuse of C.I.A. prisoners. Former and current C.I.A. officials have vehemently opposed this effort. Meanwhile, Holder has made clear that his department would only bring charges if C.I.A. personnel could be shown to have gone beyond the extraordinarily broad legal guidelines for interrogations and detentions specified by the Justice Department during the Bush years.

I’m not inclined to seek the worse consequences for those involved – the agents themselves probably did act with what they felt was authority that came down from no less the U.S. Department of Justice and  President Bush. Though since apparent war crimes were committed it does not seem to much to ask that we have some official legal declaration of wrong doing, an official reprimand and maybe some early retirements. In the original AP story it was reported “The CIA’s then-station chief in Afghanistan was promoted after Rahman’s death,” and “and the officer who ran the prison went on to other assignments, including one overseas.” Marshall Givens is punished by being sent back to the home town he joined the military and Marshall service to escape for his justifiable actions and real life officers of the law are rewarded for unjustifiable torture. Marshall Givens probably already knows how to work the politics of his job, but to his credit chooses not to. The Get Out of Jail Free Card for Torture, It’s called a declination—just ask the CIA.

The business is somewhat shady: The very fact a client needs a declination letter can suggest legal shenanigans occurred. Prosecutors can still choose to indict later if new facts emerge, but the declination itself, once given, serves as exculpatory in the hands of a good defense attorney.

In the context of interrogation, torture, and homicide, the word becomes even more sinister. The declination memo “regarding Gul Rahman’s death” was essentially an after-the-fact blessing for Rahman’s killer, in the form of a memo stating that DoJ would not prosecute the officers responsible. It is clear from Page 95 of the OPR report that in several cases (perhaps this one included) the criminal division of DoJ provided declinations in cases of detainee abuse, thus giving individual officers de facto immunity from criminal prosecution.

[   ]…Of course, no one seriously thinks accountability means going after ordinary CIA officers. This is one thing that right-wing commentators and human rights advocates can agree on: Officers like “Z” and “P” shouldn’t be left holding the bag for the misdeeds of their superiors.

Yet one of the oddest aspects of Attorney General Eric Holder’s policies on accountability for Bush-era abuses has been his prosecutorial focus on rank-and-file CIA officers who exceeded now-rescinded authorizations-to-torture, instead of focusing on higher-level officials and lawyers who actually authorized torture.

I’m not sure this is a left/right issue much less something those terms are supposed to describe. John Yoo has already been given – not a complete pass. The DOJ released a report on Yoo and it was done by a career DOJ lawyer whose impartiality is at least questionable.  If the CIA’s inspector General found the events at the Salt Pit disturbing enough to refer Rahman’s death to the Justice Department for prosecution, the CIA’s own internal watchdog casts doubts on the findings of David Margolis ( the DOJ attorney who wrote the findings about Yoo) and make Yoo’s condescending smugness even more the attitude of a mad man than someone on the wrong side of a thoughtful legal and constitutional debate.

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