By Carrie Johnson, Jerry Markon and Julie Tate
Washington Post Staff Writers
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.
It was also unclear to investigators whether the detainee, who was among prisoners captured in Pakistan, would have died from injuries sustained during his capture, rather than by freezing. Hypothermia was listed as the cause of death in an autopsy, but the body was not available to investigators and questions remain whether hypothermia was used as a cover story in part to protect people who had beaten the captive.
The CIA later promoted a young case agent who supervised the Salt Pit interrogation, one of his first big assignments, which suggested that the agency did not think any crime had been committed. The agent's supervisor played an unspecified role in other incidents of detainee abuse in Iraq, according to sources.
A senior official who took part in the review confirmed that of two dozen referrals, the Salt Pit episode was one of two or three cases close to being considered for criminal indictment. The cases were reviewed by federal prosecutors in the Eastern District of Virginia, who traveled the globe to talk to witnesses, reviewed interview reports and ultimately prepared memos explaining why they did not prosecute agency interrogators and contractors.
Two other detainee cases were among those that drew significant law enforcement attention: the death by suffocation of Iraqi Gen. Abed Hamed Mowhoush in November 2003, after which an Army officer was convicted; and the death the same month of Manadel al-Jamadi at Abu Ghraib prison, in the custody of the CIA, where he was placed after being beaten by Navy SEALs. One SEAL was charged with a crime, and he later won an acquittal.
The Justice Department review in the Eastern District of Virginia decision several years ago was conducted by some of the office's top prosecutors.
One official involved in the review said there was "absolutely no pressure from DOJ" to decide the cases in a certain direction. "There was absolutely none of that, and if I had seen that I would have been very offended by it," the official said.
Holder said last month that his decision to open the inquiry was in part because of a still-secret ethics report, which is examining the conduct of Justice Department lawyers who drafted memos blessing harsh interrogation tactics, including simulated drowning and sleep deprivation.
The ethics report, which is undergoing declassification review, does not point to problems with attorneys in the Eastern District of Virginia, two sources said, but it does explore differences of opinion within the working group that examined the detainee allegations over how to proceed on the few cases that were "close calls." In a small number of instances, career lawyers disagreed about whether the evidence was sufficient to seek indictment and ultimately win in court. Some of those issues were assessed -- as is normally the case -- by political appointees, including Paul J. McNulty, the U.S. Attorney in the Eastern District of Virginia who was nominated to serve as deputy attorney general in October 2005. There are no allegations that cases were rejected for improper political reasons.
Before his decision to reopen the cases, Holder did not read detailed memos that prosecutors drafted and placed in files to explain their decision to decline prosecutions. That issue has rankled GOP lawmakers and some career lawyers in the Justice Department, who question whether Holder's order was made based on the facts or on his political instincts.
But a government source asserted that Holder was briefed on some of the details by advisers and that the attorney general was troubled by the material he read. Authorities have not pointed publicly to new evidence or witnesses that would strengthen the cases under review.
"The professionals at DOJ looked with considerable care at the various serious cases," former CIA inspector general John L. Helgerson said. "I had no concern that they were making uninformed decisions or treating the cases casually. . . . My guess is that for reasons that varied from case to case, they simply did not feel they had a certain conviction in any of these."
Lawyers with experience in the area cast doubt on whether criminal prosecutions will result from Durham's inquiry.
"A lot of times cases look open-and-shut because a guy froze to death on a cold cement floor, but these cases are more complicated and involved than that," said a government official, who spoke on the condition of anonymity. "You have to prove the cause of death. How do we know he froze to death? He may have died a natural death from clogged arteries. You have to prove beyond a reasonable doubt that he died as a result of the actions of the people who tied him to the floor naked. It may be a logical inference, but proving it beyond a reasonable doubt might be a different story."
Staff writer Peter Finn contributed to this report.