Assessing CIA culpability in detainee deaths will be tricky

Central Intelligence Agency
Central Intelligence Agency Chuck Kennedy / MCT

WASHINGTON — By all accounts, the interrogation of Iraqi Maj. Gen. Abed Hamed Mowhoush went terribly wrong. Military guards accused his interrogators of beating the detainee and stuffing his body into a sleeping bag bound with electrical cord until he suffocated.

When it came time for a CIA employee to testify during the court-martial of Army Chief Warrant Officer Lewis Welshofer, however, officials went to great lengths to protect the employee's identity, erecting a high, Army-green tarpaulin to shield him from spectators. Even the unidentified man's employment by the CIA was off-limits, until Welshofer's civilian attorney mentioned it in a slip of the tongue.

"The CIA was a kind of specter hanging on the edge of the case the entire time," said David Danzig, of the advocacy group Human Rights First, who attended the trial. The CIA's role in questioning Mowhoush "was not being investigated, not being discussed," he said.

With the appointment of special prosecutor John Durham, critics of the Bush administration's interrogation policies are hoping that the CIA's role in the alleged mistreatment of detainees finally will be revealed.

Attorney General Eric Holder has asked Durham to determine whether there should be a criminal investigation into CIA officers or contractors who may have gone beyond the limits of the Bush administration's broad interrogation policies. In several incidents, detainees died.

Judging from previous investigations of the agency, Durham will have his work cut out for him. Although the CIA's former inspector general referred the Mowhoush case and eight others to federal prosecutors during the Bush administration, only one CIA contractor ended up being prosecuted.

Frederick P. Hitz, who served as the CIA's first inspector general from 1990 to 1998, said "it's going to be tough" to prosecute cases of alleged abuse that the Justice Department looked at years ago. That could change, Hitz said, if there are shocking incidents in the blacked-out sections of a report by his successor that was released last month. "Unless there's something horrific, I don't see what they can do."

The Justice Department won't provide details about the latest investigation, which involves fewer than a dozen cases, but officials acknowledged that it includes incidents the department reviewed and declined to prosecute several years ago.

Current and former top CIA officials maintain that the agency has cooperated fully in the investigations, in some cases bringing suspected misconduct to their inspector general's attention. Officers implicated in detainee abuse have been reprimanded or reassigned, they said, resulting in careers that were damaged or destroyed.

"Allegations of misconduct were rare, leaving the agency to take disciplinary steps of its own in just a handful of cases," CIA spokesman Paul Gimigliano said. The agency declined to provide further details.

As their military counterparts went on trial, however, agency employees implicated in some of the most egregious abuse avoided criminal liability. When they were compelled to testify, CIA officials provided little clarity in court about policies and oversight of the interrogations.

There are at least five known cases in which agency personnel potentially were implicated in the deaths of detainees in Iraq and Afghanistan, according to a 2005 letter from Sen. Carl Levin, D-Mich., to the CIA. A former agency official, speaking only on the condition of anonymity because of the subject's sensitivity, said that figure was roughly correct.

Those deaths took place under wartime conditions, not in the CIA's once-secret program for interrogating top al Qaida suspects by using techniques such as waterboarding, or simulated drowning.

Officials and heavily redacted records indicate that the inspector general investigated at least three cases: the beating death of an Afghan, Abdul Wali, in June 2003, for which the CIA contractor, David Passaro, was convicted of assault; Mowhoush's suffocation in November 2003, of which Welshofer was convicted; and the death at Iraq's Abu Ghraib prison of Manadel al Jamadi.

When news of detainee abuse by the U.S. military at Abu Ghraib first broke in 2004, the CIA avoided a public accounting of its role. Pentagon investigators complained that they couldn't shed light on the agency's role because it refused to cooperate with their probes.

The CIA also sought to close the courts-martial of Army personnel in which CIA officers might be implicated, and classified the circumstances of the deaths in military autopsies.

During the military trial of Navy SEAL Lt. Andrew Ledford, who was charged in Jamadi's death, CIA officials tried to block questions about the position of Jamadi's body when he died and whether water was used during his interrogation.

Prosecutors mulling the Jamadi case would have faced another problem: Navy SEALs allegedly mistreated the Iraqi during his capture, before he was turned over to the CIA officer who was interrogating him when he died. How seriously injured Jamadi was when he arrived at Abu Ghraib is in dispute.

Of the 10 SEALs implicated, only Ledford was prosecuted in a military court. He was acquitted.

During the only federal civilian trial, Passaro's defense attorneys tried to press the CIA for details about Wali's death, with little success. A federal jury convicted Passaro of one felony and three misdemeanor assault charges for kicking Wali in the groin and striking him with a flashlight.

His CIA supervisors, who testified using aliases and wearing wigs to disguise themselves, conceded that they'd permitted Passaro, an untrained contractor, to interrogate Wali alone after they'd failed to extract any useful information. They denied authorizing Passaro to use force, however, and said that the agency never would have permitted any kind of physical contact without authorization from higher-ups.

When Passaro's defense attorneys sought details about the CIA's interrogation policies, they received a one-paragraph summary. They also were denied access to Justice Department memos and CIA documents — now released publicly — revealing that agency officials had received authorization to use methods such as waterboarding.

Passaro's attorneys asserted that they should be entitled to show that the authority to assault detainees existed within the CIA at the time. They argued unsuccessfully that it was impossible for them to show that the authority existed because the government didn't provide them with the now-unclassified documents.

Passaro is serving more than eight years in prison, although an appeals court recently granted him a new sentencing hearing.

When George E.B. Holding, the U.S. attorney for the Eastern District of North Carolina, where Passaro was prosecuted, was asked about the CIA's role in the case, he said in a statement that he "stands behind the prosecution."

"We fully investigated the matter and charged who we believed to be the only criminally responsible party."

Col. Michael Boardman, the Army intelligence officer who first investigated the Wali incident for the Pentagon, said he still had lingering questions.

Soon after he arrived at the Army base in a remote area of northeast Afghanistan, Boardman discovered that Wali's body had been turned over to his family members at their request and buried without an autopsy.

Boardman said he tried to interview Passaro's supervisor and other CIA officials at the time, but never got anywhere. "I don't see it as a sinister cover-up, but my personal opinion is that they didn't want me asking questions," Boardman said, speaking as a retired officer, not on behalf of the military.

In the end, Boardman concluded that military interrogation policies had been violated, but he learned little about the CIA's role.

"I doubt it was an accident that the guy who was prosecuted was not a CIA career officer," he said. "You could reasonably conclude that the CIA failed to supervise him properly and this detainee died. You could also reasonably conclude that the CIA encouraged him to do this and the interrogation was a factor in his death."

Prosecutors have never provided a public explanation for declining to bring charges in the other CIA interrogation cases.

Paul McNulty, who initially oversaw the investigations as the U.S. attorney for the Eastern District of Virginia, provided some clues in 2006. Pressed by Democratic lawmakers to explain why the cases had been pending for 18 months, McNulty said that problems with witnesses and questions of U.S. jurisdiction hampered the investigations.

The Passaro case, however, showed that prosecutors could overcome many of those hurdles. Passaro's attorneys raised the jurisdiction argument, but they failed to convince the courts.


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