Bush Proposal May Slow Abuse Prosecutions

When the Muslim world was first inflamed over images of abuse from the Abu Ghraib prison in Iraq, President Bush took the lead in a campaign to minimize the damage by pledging that his government would speak through its actions.

“There will be investigations. People will be brought to justice,” Bush said on May 5, 2004, speaking from the Map Room of the White House and into the lens of a camera for Al Arabiya, the Arabic-language satellite network.

But more than two years later, provisions in Bush’s proposed legislation for detainee interrogations and terrorism tribunals could hamper potential criminal prosecutions in some of the 17 abuse investigations from Iraq and Afghanistan pending before federal prosecutors in Virginia.

The CIA’s former assistant general counsel, a defense attorney for one veteran intelligence officer under scrutiny in a pending investigation, and outside military-law experts all said Bush’s proposal would retroactively weaken the U.S. law against war crimes, possibly making it more difficult to win criminal indictments in those cases.

Bush’s plan would backdate a more narrow definition of war crimes to Sept. 11, 2001, the day terrorists crashed jets into the World Trade Center and the Pentagon.

The proposal seems to fit a broader pattern of Bush administration efforts to protect interrogators working for the CIA and the Department of Defense, or to find ways to keep the law in question, the 1996 War Crimes Act, from applying to post-Sept. 11 actions.

Another provision in Bush’s proposal would mandate taxpayer-financed legal defenses for intelligence agents charged or sued in connection with detainee abuse.

Even those simply under investigation would get their legal bills paid under the plan, presumably including those involved in the 17 pending cases.

Although Bush was commenting on the future of interrogations, and not his proposed legislation’s potential effect on the pending cases, the president said Friday that he wanted to give intelligence operatives confidence to proceed.

“These are decent, honorable citizens who are on the front line of protecting the American people, and they expect our government to give them clarity about what is right and what is wrong in the law. And that’s what we have asked to do,” Bush said.

One pending investigation in Virginia involves the death of Manadel Jamadi, an alleged Iraqi insurgent. Images of his battered corpse, which was packed in ice, were aired by ABC’s “World News Tonight” the same day in 2004 that Bush made his pledge to prosecute abusers. It was soon dubbed the “iceman” case.

Nina Ginsberg, the attorney representing 47-year-old Mark Swanner, a veteran CIA officer who interrogated Jamadi before the prisoner’s death, said in an interview Thursday that she believed the administration was attempting to use its proposed legislation to retroactively immunize or protect interrogators now under investigation.

Although she said it would be difficult to indict some of the Pentagon and CIA interrogators under investigation even if Bush’s bill is rejected by Congress, Ginsberg said there was no other explanation for the retroactive nature of the changes proposed by the White House except to protect operatives already under scrutiny.

Deputy Atty. Gen. Paul J. McNulty, who as the U.S. attorney in Alexandria, Va., oversaw the 17 pending cases before becoming the Justice Department’s acting No. 2 lawyer in November, did not deny during a brief interview Friday that the legislation would retroactively affect the investigations.

But asked about the potential effects, McNulty would only say, “I don’t want to say.... The best I can say right now is [an answer] would probably reveal more about those cases involved than has been publicly said.”

All of the cases assigned to Virginia remain secret, and no one has been charged. John Radsan, assistant general counsel at the CIA from 2002 to 2004, suggested that bringing charges against agency officers in any of the cases is already a difficult proposition -- legally, practically and politically.

But Radsan also said, “This legislation will make it even more difficult to bring a case against a CIA officer for violating the War Crimes Act,” because it would significantly limit the definition of a war crime.

Eugene Fidel, a military law expert in Washington and president of the National Institute of Military Justice, said the Bush proposal “would make it much more difficult for federal prosecutors to even take those cases into court.”

Fidel added, “The prosecutor could just say, ‘What you did doesn’t even fall within the War Crimes Act anymore; therefore I’m not even going to paper it,’ ” that is, bring charges. He predicted that some of the investigations would “turn out to be unprosecutable because of this legislation.”

Jim Rybicki, a spokesman for the U.S. Attorney’s office in Alexandria, confirmed that 17 abuse investigations remain open but declined to discuss any details.

The New Yorker magazine first identified Swanner’s connection to the Jamadi case last year.

A Justice Department memo written in January said 20 investigations related to detainee abuse allegations in Iraq and Afghanistan had been referred for prosecution.

Ten came from the Defense Department, the memo said, while the remainder came from “another agency,” a reference to the CIA.

Only one, that of CIA contract interrogator David A. Passaro, has been prosecuted. He was convicted in Raleigh, N.C., last month of felony assault for beating an Afghan prisoner who died one day after being pummeled with fists and a flashlight, evidence showed.

Passaro was indicted before then-Atty. Gen. John Ashcroft set up the special prosecution team in Virginia.

The Justice memo said two of the 20 cases were closed without charges because “the department has determined in each of them that there was insufficient evidence to support a prosecution.”

In a statement Friday, the Justice Department declined to comment “on ongoing criminal investigations.” But the agency, which is supporting Bush’s push for the legislation, said there has never been a War Crimes Act prosecution because the statute is too vague.