Inquiry Into CIA Practices Narrows
Saturday, September 19, 2009
The Justice Department's review of detainee abuse by the CIA will focus on a very small number of cases, including at least one in which an Afghan prisoner died at a secret facility, according to two sources briefed on the matter.
On Friday, seven former CIA directors urged President Obama to end the inquiry, arguing that it would inhibit intelligence operations in the future and demoralize agency employees who believed they had been cleared by previous investigators.
"Attorney General [Eric] Holder's decision to re-open the criminal investigation creates an atmosphere of continuous jeopardy for those whose cases the Department of Justice had previously declined to prosecute," the directors, who served under Republican and Democratic presidents over the past 35 years, wrote in a letter.
Opposition to the probe has grown in the weeks since Holder ordered it, even as the outlines of the inquiry become more clear. Among the cases under review will be the death seven years ago of a young Afghan man, who was beaten and chained to a concrete floor without blankets, according to the sources. The man died in the cold night at a secret CIA facility north of Kabul, known as the Salt Pit.
The November 2002 episode at the Salt Pit, and the significant details about the case that remain murky, highlight the challenges facing prosecutor John H. Durham. Holder named him to consider whether to launch a full-scale criminal investigation into agency interrogators who may have broken the law during the Bush administration.
Holder made his decision in part because of unspecified elements that came to light since the cases were investigated years ago, according to one source. The attorney general has played down expectations for the inquiry; he issued a statement last month that "neither the opening of a preliminary review nor, if evidence warrants it, the commencement of a full investigation, means that charges will necessarily follow."
Although earlier reports indicated that Durham would look into 10 cases, a source said recently the number is much smaller. In all, 24 alleged abuse cases were earlier referred to federal prosecutors by the CIA inspector general, of which 22 were declined, according to a letter in February 2008 from a Justice Department legislative liaison.
Only one person, former CIA contractor David A. Passaro, has been convicted in connection with detainee mistreatment. Passaro hit an Afghan captive with a flashlight. The captive, Abdul Wali, later died, but Passaro was not charged with murder. Instead the contractor faced a less serious charge of assault because of the difficulty of attributing Wali's death to the beating.
When they rejected the other cases, Justice Department officials cited complications, including a lack of evidence, problems with jurisdiction and "low probability of conviction," according to a letter sent to Senate Democrats, who had demanded information about the investigations. One government lawyer involved in the reviews called the evidence "a mess" and said that material collected on battlefields and in secret prisons was difficult to translate into a criminal case, which requires proof beyond a reasonable doubt.
CIA officials have noted that the allegations of detainee mistreatment had been evaluated by an aggressive team of federal prosecutors who declined to file criminal charges, after which some CIA employees were subjected to internal discipline.
"The CIA is cooperating with the official reviews now in progress, in part to see that they move as expeditiously as possible," agency spokesman Paul Gimigliano said.
CIA officials referred the Salt Pit case to the Justice Department five years ago. Prosecutors concluded at the time that the Afghan prison was outside the reach of U.S. law, even though the CIA funded it and vetted its home-country guards.