Why Emanuel Nixed The Release Of The Torture Photos

-by Doug Kahn

Appointing John Durham as prosecutor, no matter how broad his scope of investigation, will have only one near-term result: he'll immediately go into court to make sure the military photos of detainee abuse won't be released anytime soon. And he'll win.

According to the Washington Post: "Durham's mandate, the sources added, will be relatively narrow: to look at whether there is enough evidence to launch a full-scale criminal investigation of current and former CIA personnel who may have broken the law in their dealings with detainees." There is absolutely no public support, and no moral justification, for prosecuting the 'foot soldiers' (CIA employees and the Blackwater contractors we hired as professional torturers back in 2002 and 2003) while leaving Dick Cheney and his line of command alone. So this appointment is for some other purpose.

Here's the timeline. In September 2008, the appeals court decided in favor of the ACLU and its FOIA request for the photos, filed in 2003. This May, the White House announced President Obama had decided not to appeal to the Supreme Court. On May 28, the administration changed its tune and asked the appeals court to "recall its mandate" to release the photos in prospect of a Supreme Court appeal. The appeals court agreed on June 10. Since then, Obama has asked for, and received, two extensions on its deadlines for filing at the Supreme Court. On August 7, they petitioned the Supreme Court to hear an appeal.

It's all about the torture photos, and the conniption fit CIA chief Leon Panetta threw at the White House last month. Panetta had a heated argument with a "senior White House official," a formulation the Washington Post uses when it means Rahm Emanuel. Obama's chief of staff versus Clinton's chief of staff. It makes sense to me that Rahm and company concluded early this year to proceed with domestic accomplishments like health care reform and the energy bill, and that prosecuting anyone in the Bush administration would make bipartisan support from Republicans in Congress impossible. Releasing the photos (reportedly displaying horrific abuse at non-military, CIA prisons) would create a firestorm of criticism that would force Obama to act against Cheney and crew, not just the CIA guys. So the photos have to be withheld for as long as possible. You have to figure Panetta objected to having CIA employees taking the heat for boss Cheney.

The courts have already soundly rejected arguments that letting the public see the photos would harm the detainees; they'd be redacted to hide the identities of the victims. There were claims that anger over the photos would harm US troops, by inciting more attacks in Iraq and Afghanistan, also rejected. Rahm needs some specific people to be harmed in order to prevail, and naming a prosecutor gives him those people: a few CIA employees and contractors. They'll just tell the court that the photos are certain to prejudice people who would end up being on the jury in any trial, and the pool of prospective jurors is every adult American.

Any ethical, moral Attorney General would reject prosecuting only the little guys. So Holder appoints a prosecutor to start to get ready to begin to prepare to commence looking for evidence to use in asking a grand jury (which might be convened) for an indictment against possible suspects who might have violated the (as yet undetermined) legal instructions from unnamed Bush administration lawyers vis a vis how to grill 'illegal enemy combatants' (definition currently in legal limbo) in an 'enhanced' manner. As opposed to torturing them fair and square, as it were.

We shouldn't hold our breath.