The embarrassing revelation in a recent Washington Post story that Attorney General Eric Holder “did not read detailed memos that prosecutors drafted and placed in files to explain their decision to decline prosecution” of CIA interrogators is just another example of a seriously flawed decision-making process in the Obama Justice Department.
I worked directly for three assistant attorneys general and two acting AAGs during my years in the Civil Rights Division. Whenever a memorandum on a proposed criminal prosecution or civil investigation was sent up to the front office for approval, the AAGs for whom I worked always read it. Referred to in DOJ nomenclature as “j-memos” (short for “justification memos”), these documents summarized all of the relevant facts, outlined the applicable statutes and case law, and detailed the recommendation of the career lawyers. We did not always agree with the legal analysis contained in those memos. But none of the AAGs with whom I served would have considered making a decision without first reviewing the documents. Indeed, they would have considered a failure to do so as bordering on malpractice.
How things have changed. A government source (probably one of Holder’s staff) asserts in the same Post story that Holder “was briefed on some of the details by advisors.” While it may be a common practice for the attorney general to be briefed on case matters rather than read the original documents produced by DOJ line prosecutors, such indirect attention is completely insufficient in a case as sensitive and precedent-setting as the CIA-interrogation probe. Holder is a longtime veteran of the department. At different times in his DOJ career, he would have learned the value of these memoranda.
What makes this revelation even worse is an earlier news report that Holder “cleared his schedule and, over two days, holed up alone in his Justice Department office” to read the CIA inspector general’s classified report on interrogations — twice. Yet Holder apparently could not find the time to read his own prosecutors’ analysis of the facts, the evidence, the applicable law, and their recommendations to decline prosecution.
When a prosecutorial decision will affect both the national security of the United States and the personal lives U.S. intelligence officers — and when that decision would reverse the considered judgment and definitive call of a prior attorney general — the attorney general has a heightened obligation to review all of the facts and applicable laws himself. This is especially true when the decision in question is whether to reopen a closed prosecution from a prior administration. As seven former CIA chiefs said in a letter to President Obama, “[i]f criminal investigations closed by career prosecutors during one administration can so easily be reopened at the direction of political appointees in the next, declinations of prosecution will be rendered meaningless.” They further pointed out that the “men and women who undertake difficult intelligence assignments in the aftermath of an attack such as September 11 must believe there is permanence in the legal rules that govern their actions.” If our CIA officers on the front lines must fear that the next administration might change the rules and either prosecute them or subject them to financial ruination, the strength and security of the entire country will suffer.
The fact that the attorney general made such an important decision without reviewing the detailed prosecution (declination) memos prepared by career prosecutors at Main Justice and in the U.S. Attorney’s Office for the Eastern District of Virginia raises serious questions about the deliberative process at Justice. When grave issues of national security and the personal freedom of American citizens are at stake, few will be happy to know that the most relevant documents went unread by the man who made the final decision.