http://www.nytimes.com/2005/10/23/international/asia/23intel.html

October 23, 2005

C.I.A. to Avoid Charges in Most Prisoner Deaths

By DOUGLAS JEHL and TIM GOLDEN

WASHINGTON, Oct. 22 - Despite indications of C.I.A. involvement in the deaths of at least four prisoners in Iraq and Afghanistan, C.I.A. employees now appear likely to escape criminal charges in all but one of those incidents, according to current and former intelligence and law enforcement officials.

Federal prosecutors reviewing cases of possible misconduct by C.I.A. employees have recently notified lawyers that they do not intend to bring criminal charges in several cases involving the handling of terrorism suspects and Iraqi insurgents, the officials said.

Some of the cases are still technically under review by the Justice Department, but the intelligence and law enforcement officials said they had been told that the department was not preparing to bring charges against C.I.A. employees in those cases.

The Justice Department has charged only one person linked to the C.I.A. with wrongdoing in any of the cases: David A. Passaro, who was a contract worker, not a C.I.A. officer. The details of the C.I.A. cases remain classified, as do the Justice Department reviews.

But the prosecutors' decisions appear to reflect judgments that the C.I.A. was far less culpable in the mistreatment of prisoners than was the military, where dozens of soldiers have been convicted or accepted administrative punishment for their actions in cases in Iraq and Afghanistan.

The cases became public in April 2004, with reports about abuses at Abu Ghraib prison in Iraq and have led to the convictions of Pvt. Charles A. Graner Jr., Pfc. Lynndie R. England and other soldiers implicated in those episodes. The decisions are based on reviews of eight dossiers referred to the Justice Department by the C.I.A.'s inspector general, describing possible misconduct by a half dozen to a dozen C.I.A. employees in the deaths and other cases.

A case still technically under review by the Justice Department, the officials said, involves a high-profile episode in which a C.I.A. officer has been linked to mistreatment of prisoners, in a case involving an Iraqi who died under C.I.A. interrogation in a shower room at Abu Ghraib. But in another case, involving the hypothermia death of an Afghan at a C.I.A.-run detention center called the Salt Pit in Afghanistan in November 2002, the Justice Department has signaled that it does not intend to bring charges.

A third episode studied within the C.I.A. involves a former Iraqi general who died of asphyxiation after being stuffed head-first into a sleeping bag at the base at an American base in Al Asad, in western Iraq, on Nov. 26, 2003, after several days of interrogation. The questioning involved beatings by a group that included at least one C.I.A. contract worker. One official said that case was never referred to the Justice Department for prosecution.

Mr. Passaro is awaiting trial in North Carolina in connection with his role in a fourth case, involving the death of a prisoner in Afghanistan in June 2003.

It was not previously known that the C.I.A. had sent eight dossiers to the Justice Department. An article by The New York Times in February said only that the C.I.A. inspector general had made at least two such referrals, asking that the Justice Department review the cases for possible prosecution.

All of the cases have been reviewed by the C.I.A. inspector general, and in at least two of the cases - the deaths at the Salt Pit and Abu Ghraib - the individuals could still face punishment by internal accountability review boards, which could be convened at the discretion of Porter J. Goss, director of the agency.

C.I.A. officials have expressed deep unease over the possibility that career officers could be prosecuted or punished administratively for their conduct during interrogations and detentions of terrorism suspects.

Most of the Justice Department reviews have been handled by federal prosecutors in the Eastern District of Virginia, law enforcement officials said. But they said officials at Justice Department headquarters in Washington had taken part in the decisions not to prosecute some of the cases.

The details remain classified, and the current and former law enforcement and intelligence officials who described the status of the cases declined to discuss them in detail. The officials came from several intelligence, law enforcement and military agencies.

They spoke on condition of anonymity, saying they were not authorized to speak publicly about matters still under investigation. They would not say exactly how many C.I.A. employees were named in the reports or how many cases of possible abuse were described in the eight dossiers.

In a classified report this summer, the Senate Intelligence Committee expressed concern about what it called shortcomings in the C.I.A.'s handling of prisoners, government officials briefed on the document said. An unclassified section said Mr. Goss had carried out only 5 of 10 recommendations made last year in a classified report by the C.I.A. inspector general.

The Justice Department has also been reviewing cases involving possible misconduct by Defense Department contractors in the handling of prisoners. A Justice Department official said the department had assigned a team of lawyers to conduct criminal investigations of abuse cases involving the deaths of detainees.

The team has traveled to the Middle East and elsewhere to investigate, the official said, while declining to discuss how many people were subjects of the inquiries, the precise nature of the accusations against them and how many inquiries had been closed.

"There is a team that is dedicated to actively investigating these types of cases," the Justice Department official said. "We expect that these cases will move forward. In some cases, it appears there is insufficient evidence to move forward."

The cases cited in the eight dossiers include the hypothermia death of the prisoner in Afghanistan in November 2002 at a site nominally under Afghan control, in a case first reported by The Washington Post; the death of Manadel al-Jamadi on Nov. 24, 2003, at Abu Ghraib prison in Iraq, where he had been taken after his capture by members of the Navy Seals, but was imprisoned in C.I.A. custody; and the asphyxiation of Maj. Gen. Abed Hamed Mowhoush. He died in the sleeping bag at a base in western Iraq on Nov. 26, 2003, after several days of interrogation that included at least one C.I.A. officer.

Mr. Jamadi's death was among the most notorious of the incidents at Abu Ghraib that became public in the spring of 2004, in part because his body was photographed wrapped in plastic and packed in ice. He died after being beaten by commandos of the Navy Seals who struck him in the head with rifle butts and then turned him over to C.I.A. interrogators at Abu Ghraib.

A lieutenant in the Navy Seals was acquitted in May of striking Mr. Jamadi and failing to restrain his men from hitting Mr. Jamadi. The lieutenant, Andrew K. Ledford, remains the only person to have been prosecuted in that death.

Eight members of the Seals and a sailor who served under him, received administrative punishments for abusing Mr. Jamadi and other detainees.

Former intelligence officials have said that questions remain about the role of a C.I.A. officer and a contract interrogator who had taken custody of Mr. Jamadi and were questioning him in the shower room at Abu Ghraib when he died. Mr. Jamadi was found with his hands bound behind his back and shackled to a barred window. Mr. Jamadi had not been examined by a physician when he was brought to Abu Ghraib, because the C.I.A. officers had circumvented normal procedures of registering his presence as a prisoner.

An intelligence official briefed on the case said it was clear that the C.I.A. officers and members of the Navy Seals team bore some responsibility for the prisoner's death, but that the legal culpability of each was difficult to untangle. A government official who reviewed a coroner's report said evidence suggested that Mr. Jamadi's broken ribs - apparently sustained in beatings by the Navy Seals - contributed to his death.

"It may have been too hard a case to prove," said the intelligence official, referring to possible criminal charges against the C.I.A. employees. "He was in de facto agency custody, but he was in a military prison. They could see that he was injured, but they maybe didn't know he was so injured. If he had had a medical examination they would have known. But they didn't do one."

Four soldiers are awaiting trial in military court in Colorado in the case of General Mowhoush. Testimony presented in a pretrial hearing at Fort Carson, Colo., indicated that General Mowhoush had been beaten with a piece of insulating rubber, by a team that included a C.I.A. contract worker, and that his interrogators had, on at least one occasion, piled onto his chest, before he suffocated in the sleeping bag.

In the case from Afghanistan from 2002, a young C.I.A. officer who ran the detention center had ordered that the prisoner be left out in the cold, one intelligence official said, confirming the account in The Washington Post. The prisoner was stripped and dragged outside by Afghan guards at what was technically an Afghan-run detention center, they said.

The intelligence official described the death as a case of "negligent homicide," but said the legal culpability the of C.I.A. officer who ran the center was less clear-cut, because there was no way to prove that Afghan guards had not abused the prisoner during the night.

David Johnston contributed reporting from Washington for this article.