Holder to Appoint Prosecutor to Investigate CIA Terror Interrogations
By Carrie Johnson
Monday, August 24, 2009 2:23 PM
Attorney General Eric H. Holder Jr. has decided to appoint a prosecutor to examine nearly a dozen cases in which CIA interrogators and contractors may have violated anti-torture laws and other statutes when they allegedly threatened terrorism suspects, according to two sources familiar with the move.
Holder is poised to name John Durham, a career Justice Department prosecutor from Connecticut, to lead the inquiry, according to the sources, who spoke on condition of anonymity because the process is not complete.
Durham's mandate, the sources added, will be relatively narrow: to look at whether there is enough evidence to launch a full-scale criminal investigation of current and former CIA personnel who may have broken the law in their dealings with detainees. Many of the harshest CIA interrogation techniques have not been employed against terrorism suspects for four years or more.
The attorney general selected
Word of Holder's decision comes on the same day that the Obama administration will issue a 2004 report by the then-CIA Inspector General. Among other things, the IG questioned the effectiveness of harsh interrogation tactics that included simulated drowning and wall slamming. A federal judge in
A separate internal Justice Department ethics report on the professionalism of lawyers who blessed the questioning techniques continues to undergo declassification review and is not likely to be released imminently. The New York Times reported Monday that the ethics report recommended that Holder take another look at several episodes of alleged detainee abuse that previously had been declined for prosecution during the Bush years, bolstering his decision to appoint a prosecutor.
Leaders at the Justice Department and the intelligence community have clashed this year over the release of sensitive interrogation memos, military photographs of detainee abuse and how to handle the cases of more than 200 detainees at the prison in
Holder's decision could complicate the Justice Department's relationship with the White House, where President Obama has repeatedly expressed a desire to move forward from the national security controversies of the Bush administration. Deputy White House press secretary Bill Burton told reporters Monday that the president had complete faith in Holder and that the decision whether to launch an investigation was the attorney general's sole prerogative.
"The White House supports the attorney general making the decisions on who gets prosecuted and investigated,"
Holder acknowledges the possible fallout from his decision, but has concluded in recent days that he has no other choice than to probe whether laws were broken in connection with the Bush administration's interrogation program, the two sources said. Fewer than a dozen cases will be examined, most from
Any criminal investigation into the CIA conduct faces serious hurdles, according to current and former government lawyers, including such challenges as missing evidence, nonexistent or unreliable witnesses, no access to some bodies of detainees who died, and the passage of up to seven years since the questionable activity occurred far from American soil.
During the Bush years, a team of more than a half-dozen career prosecutors in the Eastern District of
In only one of the cases did the lawyers recommend seeking a grand jury indictment. A federal appeals court earlier this month affirmed the assault conviction of David A. Passaro, a CIA contractor who wielded a metal flashlight against a detainee at a military base in
A former government official involved in the previous review said that, given problems with evidence, there was "no conceivable way we could have come out different" and sought criminal indictments. The official said that analysis might change if new and reliable witnesses emerged.
Current and former CIA officials from both Democratic and Republican administrations have cited the prior review by prosecutors as one of several reasons why the Obama Justice Department need not act. They fear that any criminal investigation will chill intelligence activities and alienate operatives who are responsible for protecting national security.
In a message distributed to employees Monday morning, CIA Director Leon Panetta noted that the agency repeatedly had sought legal advice from the Justice Department, receiving "multiple written assurances that its methods were lawful. The CIA has a strong record in terms of following legal guidance and informing the Department of Justice of potentially illegal conduct."
The Justice Department investigation has roiled activists from across the political spectrum for weeks even before it became a reality Monday. The left-leaning ACLU and
But nine GOP senators who occupy prominent roles on the Judiciary Committee last week urged Holder not to act at all, arguing that further investigation was both unnecessary and unwise.
"The intelligence community will be left to wonder whether actions taken today in the interest of national security will be subject to legal recriminations when the political winds shift," said the letter, signed by lawmakers including Sens. Jon Kyl (Ariz.), Jeff Sessions (Ala.), John Cornyn (Tex.), Orrin Hatch (Utah) and Charles Grassley (Iowa).
With Monday's looming public announcement, however, the attorney general and his national security team appear to be staking out a middle ground -- rejecting a broad inquiry that could result in possible prosecutions of Justice Department lawyers in the Bush years as well as cabinet officers who developed counterterrorism policy; but giving civil liberties advocates at least part of what they wanted without supporting a full, independent truth commission to examine a host of Bush national security practices.
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