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Criminal investigation into CIA treatment of detainees expected

Insiders say Atty. Gen. Eric Holder is close to naming a prosecutor to look into reports of excessive waterboarding and other unauthorized methods. Convictions could be hard to get.

August 09, 2009|Greg Miller and Josh Meyer

WASHINGTON — U.S. Atty. Gen. Eric H. Holder Jr. is poised to appoint a criminal prosecutor to investigate alleged CIA abuses committed during the interrogation of terrorism suspects, current and former U.S. government officials said.

A senior Justice Department official said that Holder envisioned an inquiry that would be narrow in scope, focusing on "whether people went beyond the techniques that were authorized" in Bush administration memos that liberally interpreted anti-torture laws.

Current and former CIA and Justice Department officials who have firsthand knowledge of the interrogation files contend that criminal convictions will be difficult to obtain because the quality of evidence is poor and the legal underpinnings have never been tested.

Some cases have not previously been disclosed, including an instance in which a CIA operative brought a gun into an interrogation booth to force a detainee to talk, officials said.

Other potentially criminal abuses have already come to light, including the waterboarding of prisoners in excess of Justice Department guidelines, and the deaths of detainees in CIA custody in Afghanistan and Iraq in 2002 and 2003.

Opening a criminal investigation is something Holder "has come reluctantly to consider," the Justice Department official said, emphasizing that Holder had not reached a final decision but noting that, "as attorney general, he has the obligation to follow the law."

Others familiar with Holder's thinking say that such an investigation seems all but certain, and that a prosecutor will probably be selected from a short list that Holder asked subordinates to assemble.

Such a prosecutor would examine cases that are generally at least five years old, and probably some that were previously reviewed by career prosecutors who concluded that they could not be pursued.

"I don't blame them for wanting to look into it," said a former high-ranking Justice Department official familiar with the details of the program. "But if they appoint a special prosecutor, it would ultimately be unsuccessful, and it would go on forever and cause enormous collateral damage on the way to getting that unsuccessful result."

Bracing for the worst, a small number of CIA officials have put off plans to retire or leave the agency so that they can maintain their access to classified files and be in a better position to defend against a Justice investigation.

"Once you're out, it gets a lot harder," said a retired CIA official who said he had spoken recently with former colleagues. The inquiry would probably also target private contractors who worked for the CIA during the interrogations.

Current and former U.S. officials interviewed for this article spoke on condition of anonymity because of the secrecy that still surrounds Holder's deliberations and the details of the interrogation files.

President Obama has repeatedly expressed reluctance to launch a criminal investigation of the interrogation program, but has left room for the prosecution of individuals who may have broken the law.

Obama and Holder have both said that they believe waterboarding constitutes torture. But an investigation would pose thorny political problems for the administration, and probably draw criticism over questions of fairness.

"An investigation that focuses only on low-ranking operators would be, I think, worse than doing nothing at all," said Tom Malinowski, Washington advocacy director for Human Rights Watch.

An inquiry also would probably drive a new wedge between the CIA and the Justice Department, agencies with a fractious history that have struggled to work more closely together since the Sept. 11 attacks.

Holder's interest in appointing a prosecutor to mount an investigation reportedly surged after he recently read a still-classified 2004 report by the CIA's inspector general citing extensive problems and abuses in the agency's interrogation program. The bulk of the report is expected to be released this month.

Former CIA officials said the most disturbing section deals with waterboarding, a technique in which prisoners are made to feel they are drowning.

The Justice Department authorized waterboarding in an August 2002 memo that contained a caveat that could prove crucial to any criminal investigation. Although it allowed the approved methods to be "used more than once," the memo stipulated that "repetition will not be substantial because the techniques generally lose their effectiveness after several repetitions."

One passage of the CIA report declassified this year said that the method had been used "at least 83 times during August 2002" on Abu Zubaydah, the first senior Al Qaeda figure captured by the agency. Waterboarding was then employed "183 times during March 2003" on Khalid Shaikh Mohammed, the self-proclaimed mastermind of the Sept. 11 attacks.

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