Posted by Jonathan Adler:
A "Narrow" Investigation of CIA Interrogations:
http://volokh.com/archives/archive_2009_09_13-2009_09_19.shtml#1253388428
The Washington Post has an interesting article on the Justice
Department investigation of CIA interrogations, suggesting the inquiry
may be narrower than some hoped or feared. It begins:
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.
It also contains this interesting bit:
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.
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