By R. Jeffrey Smith
Washington Post Staff Writer
Wednesday, April 13, 2005
The dispute over the Bush administration's treatment of military detainees is playing out in a North Carolina courtroom, where a CIA contractor has asserted that his rough interrogation in 2003 of an Afghan who subsequently died was indirectly authorized by deliberations in Washington at the highest ranks of the Bush administration.
A lawyer for David A. Passaro, the sole CIA worker to be indicted publicly as the result of a detainee's death in the war on terrorism, stated in court documents unsealed yesterday that he wishes to call the legal counsel to Vice President Cheney, two former senior Justice Department officials, former CIA director George J. Tenet and Attorney General Alberto R. Gonzales as witnesses in his defense.
The aim of the CIA contractor is evidently to undermine the promised testimony of Army personnel about the brutality of the Afghan's interrogation session by convincing the court that he was acting in concert with detainee treatment policies set out by a range of administration officials, including President Bush. Passaro has pleaded not guilty to four assault charges.
His argument runs contrary to the statement last June of then-Attorney General John D. Ashcroft at a televised news conference announcing Passaro's indictment. Ashcroft, speaking amid the furor over revelations of prisoner abuse at the U.S. military's Abu Ghraib prison in Iraq, called Passaro part of "a small group of individuals" who had betrayed U.S. policy and its most basic values.
Passaro, through his public defender, Thomas P. McNamara, has alleged in court documents that he used "necessary and appropriate force" during the interrogation to extract information from Abdul Wali. The government, in its court pleadings, has argued that no official contemplated or approved of acts with a "nature and scope" similar to those that Passaro is accused of committing.
In similar cases involving detainee abuse in Iraq, military personnel have sought to call senior defense officials as witnesses, but military judges have turned them down. Passaro's case is the first such attempt in a civilian court. No government response has been placed on the public record in Passaro's case, which remains months away from a trial.
The events at issue unfolded after Passaro arrived in May 2003 at the Army's firebase in Asadabad, Afghanistan, a few miles from the Pakistani border. The base came under frequent assault from rockets and mortars through the late spring, and on June 17 a Special Forces patrol from the base was disabled in a land-mine attack.
The next day, Wali -- who apparently heard that military personnel were looking for him -- surrendered at the front gate. Passaro, who was assigned to interrogate suspected terrorists detained by CIA and special operations forces, met with Wali on June 19 and 20. McNamara has said that at the time, Passaro believed Wali "knew the locations of more rockets and land mines" and wanted to extract information that he thought would save lives. On June 21, Wali was pronounced dead in his cell at the base.
The U.S. attorney in North Carolina did not accuse Passaro of murder, but of assault with his hands, feet and a dangerous weapon -- a flashlight. He also promised to produce witnesses to the interrogation from the Army's 82nd Airborne Division.
In a document placed on the court record last December, McNamara first announced his intention to mount a "public authority" defense. He cited a statement by Gonzales, who was then White House counsel, at a news conference last June 22 that "all interrogation techniques authorized for use by the Agency and against the Taliban and al Qaeda . . . are lawful and do not constitute torture."
McNamara also said Wali's interrogation had fulfilled "the strategic objectives" articulated by Bush in calling for bringing terrorists to justice. He cited an August 2002 Justice Department memo that concluded "a defendant who had acted pursuant to an exercise of the President's constitutional powers" in conducting an interrogation could not be criminally prosecuted.
That document was withdrawn, altered and reissued by the Bush administration in December, shortly before Gonzales was questioned by a Senate committee reviewing his nomination to become attorney general.
But the government, in a pleading first unsealed yesterday, said the memo dealt with torture and "expressed no opinion" about federal statutes prohibiting murder or assault. It further said that another memo cited by Passaro's lawyer as authorizing rough interrogations -- signed in November 2002 by Defense Secretary Donald H. Rumsfeld -- did not apply to Iraq and did not "license [Passaro] to commit the acts of which he stands charged."
The new documents were unsealed by U.S. District Judge Terence W. Boyle, acting on a court motion filed by The Washington Post, the News & Observer in Raleigh, N.C., and the Associated Press.
Researcher Julie Tate contributed to this report.