Justice Department won’t pursue bulk of CIA detention cases

The Justice Department has decided not to file criminal charges in the vast majority of cases involving the Central Intelligence Agency’s former interrogation, detention and kidnapping program.

In a statement to CIA employees on his last day as CIA director, Leon Panetta said that after examining more than 100 instances in which the CIA allegedly had contact with terrorism detainees, Assistant U.S. Atty. John Durham has decided that further investigation is warranted in just two cases, each resulting in deaths.

Panetta, who is to be sworn in as Defense secretary Friday, did not disclose any details about those cases, but it has been widely reported that one involves Manadel al-Jamadi, who died in 2003 at Abu Ghraib prison in Iraq after he was questioned in a shower by a CIA interrogator.

“In those two cases—each involving a detainee fatality—the Department of Justice has determined that further investigation is warranted,” Panetta said. “No decision has been made to bring criminal charges. Both cases were previously reviewed by career federal prosecutors who subsequently declined prosecution.”

Atty. Gen. Eric H. Holder Jr., who announced the CIA probes in August 2009, followed Panetta’s announcement with a statement that confirmed the decision but did not explain it. The two detainee deaths will now be the subject of a “full criminal investigation,” he said.

“The department has determined that an expanded criminal investigation of the remaining matters is not warranted,” Holder said.

The announcements mean that no CIA officer will face criminal prosecution in connection with interrogations that the agency’s inspector general and a former Bush Justice Department official concluded exceeded what lawyers had authorized.

For example, a 2004 CIA inspector general’s report concluded that the way the CIA practiced waterboarding, a drowning technique, was harsher than Bush administration lawyers envisioned it in the memos they wrote signing off on it. Those memos were later criticized as badly reasoned, and many lawyers believe the technique was never legal.

“The difference was in the manner in which the detainee’s breathing was obstructed,” the report said. “In the [Department of Justice] opinion, the subject’s airflow is disrupted by the firm application of a damp cloth over the air passages; the interrogator applies a small amount of water to the cloth in a controlled manner. By contrast, the agency interrogator … continuously applied large volumes of water to a cloth that covered the detainee’s mouth and nose.”

In another case, German citizen Khaled el-Masri, whom the CIA later concluded was innocent, was kidnapped and held in a secret CIA prison for five months. The officer in charge of the operation was promoted.

Japanese officers who waterboarded American soldiers were prosecuted for war crimes, and the technique is widely regarded as torture. The legal opinions authorizing it were rescinded during the Bush administration, and President Obama banned all so-called enhanced interrogation techniques when he took office.

Three detainees, including Khalid Sheikh Mohammed, the mastermind of the Sept. 11 terrorist attacks, were waterboarded. Obama officials, and an investigation by Senate Democrats, have concluded the techniques yielded no real intelligence value; former Bush officials hotly disagree.

Panetta praised the decision not to file charges in most cases, as did Rep. Mike Rogers (R-Mich.), who chairs the House intelligence committee.

Gen. David Petraeus, who was confirmed by the Senate on Thursday to be the next CIA director, told the Senate intelligence committee last week that “it is time to take the rearview mirrors off the bus with respect to certain actions out there.”

“I . . . would like to see us focus forward and indeed put some of these actions behind us once and for all and put our workforce at rest with respect to that,” he said.

Lawyers for the American Civil Liberties Union reiterated their disagreement, repeating their longstanding assertion that Durham should have been tasked with investigating senior officials, not just CIA interrogators. Holder said the probe was confined to the issue of whether interrogators exceeded their legal authority.

“We continue to believe that the scope of Mr. Durham’s mandate was far too narrow,” said Hina Shamsi, director of the ACLU’s National Security Project. “The central problem was not with interrogators who disobeyed orders, but with senior officials who authorized a program.