WASHINGTON — Despite President Barack Obama's desire to avoid revisiting Bush-era interrogations, Attorney General Eric Holder appointed a special prosecutor Monday to determine whether CIA officials or contractors should be criminally investigated for the alleged torture of terrorism detainees.
The development seems certain to reignite a vitriolic national debate over whether low-level interrogators — not high-level former Bush administration officials _ should be held accountable for interrogation abuses.
The announcement came shortly after the release of a heavily censored 2004 CIA inspector general's report that documented abuses by interrogators who exceeded even the authority granted by the Bush administration's Justice Department to use "enhanced interrogation techniques" including waterboarding, which is considered torture.
Holder said that in appointing John Durham, a longtime federal prosecutor in Connecticut who's also investigating the CIA's destruction of videotapes of interrogations, he was following the recommendations of a still-secret report by the Justice Department's Office of Professional Responsibility.
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Prosecutors in Bush's Justice Department investigated some two dozen abuse cases and prosecuted one CIA contractor. Durham will re-examine fewer than a dozen of those cases.
The White House sought to distance itself from the decision, repeating Obama's preference to look "forward, not back" on the question of the U.S. use of torture.
"The president agrees with the attorney general that those who acted in good faith and within the scope of legal guidance should not be prosecuted," White House spokesman Bill Burton said Monday. "Ultimately, determinations about whether someone broke the law are made independently by the Attorney General."
Late Monday in response to pending open record lawsuits, the Justice Department released thousands of pages of documents revealing additional details of the CIA's interrogation programs. The documents ranged from internal State Department and Pentagon cables to descriptions of daily life for CIA detainees.
CIA spokesman Paul Gimigliano said, "The agency will, as it always has, cooperate with the Department of Justice in this latest look at previous detention and interrogation practices."
Anticipating criticism that his decision would have a chilling effect on intelligence-gathering, Holder said the probe would be limited to determining whether interrogators used techniques that went beyond those authorized by the Bush administration, not single out those "who acted in good faith and within the scope of the legal guidance."
"I fully realize that my decision to commence this preliminary review will be controversial," he said, adding, "As attorney general, my duty is to examine the facts and to follow the law."
Depending on how those guidelines are interpreted, interrogators who used even the most controversial techniques such as waterboarding could be off the hook, as would the former administration officials who authorized the interrogation methods.
The five-year-old CIA inspector general's report describes a number of incidents in which agency employees went well beyond the guidelines that the Justice Department issued in August 2002.
The CIA inspector general's report found that agency operatives used "unauthorized, improvised, inhumane and undocumented detention and interrogation techniques" in a program that was inadequately supervised in its early years.
Those techniques included mock executions; threats against the families of two high-value detainees; threats against a detainee by debriefers brandishing a semi-automatic handgun and a power drill; extensive sleep deprivation; and the use of a stiff brush on another detainee.
In one instance, a CIA interrogator threatened the family of detainee Khalid Sheik Mohammed, the alleged mastermind of the 9/11 attacks, telling him, "If anything else happens in the United States, 'We're going to kill your children'," the report says.
In others, a debriefer from CIA headquarters who apparently hadn't received the customary two weeks of agency training in interrogation methods, threatened Abd al Rahim al Nashiri, who was thought to be behind the 2000 attack on the destroyer USS Cole that killed 17 American sailors, with a semi-automatic handgun and a power drill, according to the report.
The Justice Department hadn't approved any of those interrogation methods. Two approved techniques, waterboarding — simulated drowning — and sleep deprivation, were used in ways that violated Justice Department guidelines, the report found.
The report by then-CIA Inspector General John Helgerson is cautious on claims by some senior CIA officials and former vice president Dick Cheney that waterboarding and the other authorized techniques yielded valuable terrorist threat information that couldn't be obtained by other means.
Moreover, it said, the CIA knew so little about al Qaeda in the months after the Sept. 11, 2001, terrorist attacks that analysts were driven by speculation about what a detainee "should know."
"When a detainee did not respond to a question posed to him, the assumption at (CIA) headquarters was that the detainee was holding back and knew more," it said. "Consequently, headquarters recommended resumption of" enhanced interrogation techniques.
The CIA Monday also released two memos on intelligence gleaned from senior terrorist detainees. Their publication had been requested by Cheney, who's said they'd prove that "enhanced interrogation techniques" foiled plots and saved Americans' lives.
The documents say that Mohammed provided CIA interrogators with a wealth of data on al Qaeda. They detail how Mohammed, perhaps inadvertently, gave up information that led to a chain of debriefings and arrests that ultimately led to the capture of Hambali, the head of Jemaah Islamiyah, al Qaeda's southeast Asia affiliate.
Neither report, however, sheds any light on what role, if any, waterboarding or other controversial methods played in collecting accurate and timely information on terrorist groups.
While some top al Qaeda detainees appeared to be more cooperative after they were subjected to the enhanced techniques, "There is limited data on which to assess their individual effectiveness," Helgerson wrote. Regarding waterboarding, he questioned whether "the risks of its use were justified by the results."
Detainees revealed numerous plots against the U.S., but Helgerson noted that his investigation "did not uncover any evidence that these plots were imminent."
Sen. Patrick Leahy, D-Vt., the chairman of the Senate judiciary committee, said the report underscores why Congress need to move forward with forming an independent and nonpartisan panel, "so that we can find out what happened and why.""Information coming out in dribs and drabs will never paint the full picture," he said.
The CIA report released Monday is a more complete version of a document that was first released in heavily redacted form last year. Large portions of it are still blacked out, however, notably the inspector general's 10 recommendations about the agency's terrorist detention and interrogation program.
Most information about the death of an Afghan detainee in June 2003 also is redacted. A former CIA contractor, David Passaro, was convicted of assault in that case.
The report also notes prophetically that some CIA officers expressed fear that they could face legal action for participating in the program. "'Ten years from now we're going to be sorry we're doing this . . . (but) it has to be done'," it quotes one unnamed officer saying.
The additional documents released late Monday include a December 2004 memo from CIA lawyers to Justice Department official Dan Levin that describes in bureaucratically clinical detail how high-value detainees _ HVDs, in the agency's parlance _ are treated from the moment of capture to reduce them to dependency on their interrogators.
Even before interrogations begin, "The HVD's clothes are taken and he remains nude. . . . The HVD is placed in the vertical shackling position to begin sleep deprivation. . . . The HVD is fed Ensure Plus or other food at regular intervals," the memo states.
A 2006 memo describes detainees' eyes being covered with goggles or other "opaque material" upon arriving at the facility, their heads and faces being shaved, "white noise" playing in walkways to prevent communication, isolation from other prisoners and 24-hour lights in their cells.
The document describes in detail a typical interrogation program, and makes clear that so-called enhanced interrogation techniques were the rule, not the exception. They were also often used in combination, such as when a detainee forced into a stress position was also doused with water, slapped or grabbed.
As of a July 20, 2007, memo from Principal Deputy Assistant General Steven G. Bradbury, the CIA had detained a total of 98 in its program and had used enhanced interrogation techniques on 30.
The same memo reveals that the CIA planned to seek additional high-value detainees even after President George W. Bush's 2006 announcement that the agency's detainees had been transferred to other once-secret documents released late Monday show that parts of the CIA's tough treatment program continued even after Bush's September 2006 transfer of agency prisoners to the U.S. military base at Guantánamo Bay, Cuba.
In the wake of limits to interrogation techniques, the CIA was seeking new approval for six techniques, including six new techniques that officials considered the "minimum necessary" to deal with the highest value detainees, including extended sleep deprivation and various holds and slaps.
"Collectively, these documents shed a great deal of light on the scope and the nature of the CIA's torture program and underscore the need for a comprehensive investigation," said Jameel Jaffer, a lawyer with the American Civil Liberties Union's National Security Program.
Holder had been hesitant to launch a new investigation, but when he learned more about the deaths of detainees he became concerned about the original decisions on whether to prosecute interrogators, according to a Justice Department official who asked to remain anonymous because of the sensitivity of the topic.
Civil liberties and human rights groups had pushed the administration to hold administration officials accountable for the approval of interrogation techniques such as waterboarding. Some of those groups expressed disappointment Monday at the scope of the investigation.
"Responsibility for the torture program cannot be laid at the feet of a few low-level operatives," said Vincent Warren, the executive director of the Center for Constitutional Rights. "It is the lawyers and the officials who oversaw and approved the program who must be investigated."
Republicans and some conservative groups criticized the administration for what they described as an open-ended, politicized investigation.
Senate Republican leader Mitch McConnell of Kentucky called the appointment "a poor and misguided decision."
"The administration risks chilling our defense and intelligence community's ability to protect us from future terrorist attacks by reopening this matter," he said.
No matter what the political fallout, a criminal investigation is likely to be legally complicated, and the newly appointed prosecutor will have to demonstrate that the interrogator meant to torture a victim who experienced extreme suffering.
As a result, investigators are expected to zero in on the most egregious allegations of abuse, including scrutinizing deaths of detainees in U.S. custody in Iraq and Afghanistan.
Theoretically, prosecutors could uncover evidence against high-level former officials. However, the Military Commissions Act of 2006 appears to give administration officials immunity.
Challenging that immunity would likely be an uphill battle because Congress has the constitutional authority to define and punish offenses against the laws of nations.