August 31, 2012
DOJ Closes Torture Investigations, Declines to Prosecute
Attorney General Eric Holder announced yesterday that the Justice Department will not pursue criminal charges in the two cases--the only two, and the last two--that it investigated involving torture of detainees in U.S. custody. The announcement means that no U.S. official, employee, or service member will face criminal charges for torture.
This announcement, along with the courts' now widely adopted view that civil suits for torture are barred by either the state secrets privilege or by "special factors" counseling against such suits (under Bivens), means that no U.S. official, employee, or service member is likely to face any judicial accountability for torture.
Recall that the Justice Department in 2009 tasked Assistant U.S. Attorney John Durham of the District of Connecticut with an expanded investigation into whether federal laws were violated in connection with the interrogations of specific detainees at overseas locations. But AG Holder said that the Department wouldn't prosecute anyone who acted in good faith and within the scope of legal guidance by the OLC. In June 2011, Durham recommended opening full criminal investigations into only two cases. The announcement today means that those investigations are now closed--without prosecutions.
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