Prosecutor Near For Cia

Attorney General Poised For 'Narrow' Probe Of Alleged Abuses In Questioning Of Terror Suspects

August 10, 2009|By Greg Miller and Josh Meyer | Greg Miller and Josh Meyer,Tribune Newspapers

WASHINGTON - -U.S. Attorney General 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 Holder envisions a probe 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 been disclosed, including an instance in which a CIA operative took a gun into the interrogation booth to force a detainee to talk.

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

Opening a criminal probe is something Holder "has come reluctantly to consider," the Justice Department official said, stressing that he has not reached a final decision. "But as attorney general, he has the obligation to follow the law," the official said. Others familiar with Holder's thinking say that such an investigation seems all but certain, and that a prosecutor probably will be selected from a short list Holder asked subordinates to assemble.

Such a prosecutor would examine cases that are generally at least five years old, and probably some that were reviewed previously 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 better position to defend against a Justice Department probe. "Once you're out it gets a lot harder," said a retired CIA official who said he had spoken recently with former colleagues. The investigation probably also would 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 Barack Obama repeatedly has expressed reluctance to launch a criminal investigation of the interrogation program, but has left room for prosecution of individuals who may have broken the law.

Obama and Holder have said they believe waterboarding constituted torture. 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, advocacy director for Human Rights Watch. A probe also probably would 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 later 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 critical to any criminal probe. While allowing 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."

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