[Infowarrior] - Holder to Appoint Prosecutor to Investigate CIA Terror Interrogations

[Richard Forno]

Holder to Appoint Prosecutor to Investigate CIA Terror Interrogations
By Carrie Johnson
Washington Post Staff Writer
Monday, August 24, 2009 2:23 PM

http://www.washingtonpost.com/wp-dyn/content/article/2009/08/24/AR2009082401743_pf.html
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 Durham in part because the longtime  
prosecutor is familiar with the CIA and its past interrogation regime.  
For nearly two years, Durham has been probing whether laws against  
obstruction or false statements were violated in connection with the  
2005 destruction of CIA videotapes. The tapes allegedly depicted  
brutal scenes including waterboarding of some of the agency's high  
value detainees. That inquiry is proceeding before a grand jury in  
Alexandria, although lawyers following the investigation have cast  
doubt on whether it will result in any criminal charges.

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 New York forced the administration to  
release the secret report after a lawsuit from the American Civil  
Liberties Union.

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 Guantanamo Bay, Cuba.

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," Burton said.

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 Iraq and Afghanistan.

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 Virginia, which is renown for  
its expertise in probing clandestine operations, reviewed about 20  
cases of alleged prisoner abuse after receiving referrals from the  
military and then-CIA Inspector General John Helgerson. Among the  
assistant U.S. attorneys involved in the review was Robert Spencer,  
who successfully prosecuted al-Qaeda operative Zacharias Moussaoui and  
who later won one of the highest awards the Justice Department bestows.

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  
Afghanistan. Passaro was not charged with murder. Abdul Wali, the  
detainee he questioned, died shortly after the beating but  
investigators could not conclusively link his death to the flashlight  
attack.

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 Alliance for Justice, as well as  
groups that represent torture victims, exhorted Holder to undertake a  
wide-ranging probe of Bush lawyers and administration officials who  
helped develop the interrogation policy.

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.