Interrogations and Prosecution

Monday, July 27, 2009

IN APRIL, Attorney General Eric H. Holder Jr. declared that it "would be unfair to prosecute dedicated men and women working to protect America for conduct that was sanctioned in advance by the Justice Department." He was speaking, of course, of CIA operatives and other government interrogators who complied with the "torture memos" authored by the George W. Bush-era Office of Legal Counsel (OLC).

Mr. Holder was right to shield these interrogators from criminal prosecution. He is now confronted with a different question: What to do about those who may have gone beyond -- perhaps far beyond -- even what the OLC sanctioned?

We reject the distorted interpretations that underpin the OLC memos and that serve as legal justification for harsh interrogation techniques that either border on or constitute torture. But those who relied on the memos and shaped their behavior in the good-faith belief that they were following the law should not be subject to prosecution. It is an entirely different story for those who went well beyond the often-extreme measures authorized by the memos.

In 2004, the Pentagon reported that 34 deaths had occurred in detention facilities in Iraq and Afghanistan; at that time, nine deaths were classified by military medical examiners as homicides. While the Defense Department has conducted several courts-martial of military personnel in abuse or death cases, the same level of scrutiny has not been applied to civilian personnel.

Take, for example, the case of Manadel Jamadi, an Iraqi insurgent captured in late 2003 and taken to the now-infamous Abu Ghraib prison. Navy SEALS delivered Jamadi "alive, kicking and shouting" to CIA interrogators, according to a Post account. Jamadi is believed to have died during the interrogation, while in CIA custody.

A Navy SEAL was court-martialed and ultimately acquitted for his role in the Jamadi case. Yet CIA operatives involved in the matter have thus far escaped accountability. This is inexcusable. Even under the warped logic of the OLC memos, interrogations are forbidden if they result in pain associated with organ failure or death. Jamadi's interrogation clearly crossed that line.

The task before Mr. Holder is not an easy one. If he authorizes an investigation, he could be accused by some of criminalizing policy differences with his predecessors. He may also appear to undercut President Obama's desire to leave the past behind and "look forward." The attorney general must put political considerations aside. He should assign a career prosecutor to look at the facts and apply the law.

We continue to believe that an independent commission would best be able to shed light on a wide range of questions regarding detainee detention and treatment policy. It would help to ensure that such mistakes are never repeated. But some acts, including the violent deaths of detainees at the hands of U.S. personnel, must be investigated and addressed by law enforcement.

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