Trying to reclaim their reputations

Politics is full of characters who don’t do the right thing when they are in office but become righteous after they leave. For example, when he was Attorney General, Eric Holder and president Obama refused to prosecute those people who were responsible for torture and stonewalled any attempts to shed light on them. He was also terrible when it came to prosecuting the top executives at the big banks. Dan Froomkin says that Holder is now calling for the release of documents about the torture program.

Holder’s sincerity, however, is debatable, for at least two reasons.

For one, the Department of Justice under his watch began fought against the release of documents related to the Durham investigation that had been requested under the Freedom of Information Act by New York Times reporter Charlie Savage

Savage had requested documents including summaries of interviews with about 100 witnesses and a memo by Durham explaining why in the end no charges were filed.

Just last month, a federal judge tentatively ruled that Savage was entitled to some but far from all of what he had requested, and nothing has yet been made public.

And for another, it’s a little late. He’s not the attorney general anymore. (He stepped down in April.) When I asked Holder if he would make such a request to a judge, he said. “It won’t be for me to decide now.”

“Why didn’t he make that happen then, when he could?” asked Elizabeth Goitein, co-director of the Brennan Center for Justice’s Liberty and National Security Program, when I told her what Holder had said.

In August 2009, however, Holder had tasked Durham with another job: reopening some prisoner-abuse cases the Bush administration had closed. But Holder explicitly barred Durham from investigating either the senior officials who approved the torture regime or anyone who followed their orders. [My italics-MS] “The Department of Justice will not prosecute anyone who acted in good faith and within the scope of the legal guidance given by the Office of Legal Counsel regarding the interrogation of detainees,” Holder said at the time.

Durham looked at the cases of 101 detainees who had been abused, but ultimately opened full criminal investigations into only two – both of whom had been tortured to death.

Gul Rahman died of hypothermia in November 2002 after being stripped of his clothes, beaten, doused with water and left shackled overnight against cold cement with his arms over his head in a secret CIA prison in northern Kabul known as the Salt Pit. Manadel Al-Jamadi died in 2003 at Abu Ghraib. He was known as “the Iceman” on account of an attempt to cool his body and make him look like he hadn’t been dead so long.

Ben Bernanke, now flogging a book, is someone else who, now that he is out of office, says that he regrets that top executives at the big banks were not held liable for their role in causing the financial crisis, though he did and said nothing when it mattered and could have done something, when he was chair of the Federal Reserve.

As David Dayen writes:

Former Federal Reserve Chair Ben Bernanke joined practically everyone in America by saying in his new memoir, The Courage to Act, that more Wall Street executives should have gone to jail for criminal misconduct that led to the financial crisis.

“It would have been my preference to have more investigation of individual action, since obviously everything what went wrong or was illegal was done by some individual, not by an abstract firm,” he wrote.

Unlike practically everyone else in America, however, Bernanke was in a pretty good position to actually facilitate criminal misconduct proceedings, if he wanted to see them so badly — as head of the nation’s most powerful bank supervisory agency from 2006 to 2014.

The Fed, like all banking regulators, can initiate criminal referrals to the Justice Department for individuals they find to have broken the law. This acts as the first line of defense to discipline criminal misconduct on Wall Street.

But such activities were absent during the period when Bernanke was chair, according to criminologist and law professor Bill Black. “The Federal Reserve appears to have made zero criminal referrals; it made three about discrimination,” Black told Bill Moyers in 2013.

Interestingly, Holder has not called for the prosecution of top bank executives even now. Could it have something to do with the fact that some of them are clients of the big law firm of Covington and Burling where he worked before he became Attorney General and where he returned immediately afterward?

Dan Froomkin sums up:

As Fed chair, Bernanke could have initiated criminal referrals to the Justice Department, but chose not to.

As attorney general, Holder could have made pursuing financial fraud a top priority. And he did not.

You should be judged by what you did when you could have done something, not by what you say other people should do. And by that measure, Holder and Bernanke look like weasels.


  1. Pierce R. Butler says

    The title of Bernanke’s book goes beyond irony into oxymorony -- or maybe just rank dishonesty.

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