Legal Commentary

DOJ to Limit Criminal Investigations of CIA Abuses

By Jeralyn

Attorney General Eric Holder took months to decide on whether to investigate any cases of abuse of detainees overseas with an eye towards criminal prosecution. He got a lot of praise (and in some venue, criticism) when he announced he'd consider it. The Washington Post reports the number of cases the DOJ may prosecute is down from more than a dozen to just a few .

A senior official who took part in the review confirmed that of two dozen referrals, the Salt Pit episode was one of two or three cases close to being considered for criminal indictment.

Why? Problems with jurisdiction. And prosecutors believe "that material collected on battlefields and in secret prisons was difficult to translate into a criminal case, which requires proof beyond a reasonable doubt." (Interesting that we have jurisdiction over a teenage Somali pirate but not an American contractor working for the CIA. ) Nor were there were no jurisdictional problems prosecuting John Walker Lindh for what he did on the battlefield in Afghanistan -- and the U.S. refuses to give up on prosecuting Canadian Omar Kdahr who was 15 when captured in Afghanistan.

And what took Holder so long to decide? I thought he was studying the cases closely. Not according to the Washington Post, which says Republicans are angry at him for his initial review decision because he didn't read the files:

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, an issue that 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.

Remember what Holder said when he decided on the review:

"I have reviewed the OPR report in depth. Moreover, I have closely examined the full, still-classified version of the 2004 CIA Inspector General’s report, as well as other relevant information available to the Department.

As a result of my analysis of all of this material, I have concluded that the information known to me warrants opening a preliminary review into whether federal laws were violated in connection with the interrogation of specific detainees at overseas locations.

Remember this Newsweek article describing how Holder poured over the documents night after night and they made him sick to his stomach? After all that, DOJ is going to investigate two or three cases?

If it weren't a serious matter, I'd be laughing at the officals' attempt to play defense lawyer on behalf of the abusers. Can you imagine any defense lawyer arguing clogged arteries caused "the death seven years ago of a young Afghan man, who was beaten and chained to a concrete floor without blankets"? This is "Thethe man who "died in the cold night at a secret CIA facility north of Kabul, known as the Salt Pit."

"A lot of times cases look open-and-shut because a guy froze to death on a cold cement floor, but these cases are more complicated and involved than that," said a government official, who spoke on the condition of anonymity. "You have to prove the cause of death. How do we know he froze to death? He may have died a natural death from clogged arteries. You have to prove beyond a reasonable doubt that he died as a result of the actions of the people who tied him to the floor naked. It may be a logical inference, but proving it beyond a reasonable doubt might be a different story."

Full post as published by TalkLeft on September 19, 2009 (boomark / email).