30 August 2012, DOJ: Statement of Attorney General Eric Holder on Closure of Investigation into the Interrogation of Certain Detainees

https://www.nytimes.com/2012/08/31/us/holder-rules-out-prosecutions-in-cia-interrogations.html

AUG. 30, 2012

No Charges Filed on Harsh Tactics Used by the C.I.A.

By SCOTT SHANE

Attorney General Eric H. Holder Jr. announced Thursday that no one would be prosecuted for the deaths of a prisoner in Afghanistan in 2002 and another in Iraq in 2003, eliminating the last possibility that any criminal charges will be brought as a result of the brutal interrogations carried out by the C.I.A.

Mr. Holder had already ruled out any charges related to the use of waterboarding and other methods that most human rights experts consider to be torture. His announcement [1] closes a contentious three-year investigation by the Justice Department and brings to an end years of dispute over whether line intelligence or military personnel or their superiors would be held accountable for the abuse of prisoners in the aftermath of the terrorist attacks of Sept. 11, 2001.

The closing of the two cases means that the Obama administration's limited effort to scrutinize the counterterrorism programs carried out under President George W. Bush has come to an end. Without elaborating, Mr. Holder suggested that the end of the criminal investigation should not be seen as a moral exoneration of those involved in the prisoners' treatment and deaths.

"Based on the fully developed factual record concerning the two deaths, the department has declined prosecution because the admissible evidence would not be sufficient to obtain and sustain a conviction beyond a reasonable doubt," his statement said. It said the investigation "was not intended to, and does not resolve, broader questions regarding the propriety of the examined conduct."

The Justice Department did not say publicly which cases had been under investigation. But officials had previously confirmed the identities of the prisoners: Gul Rahman, suspected of being a militant, who died in 2002 after being shackled to a concrete wall in near-freezing temperatures at a secret C.I.A. prison in Afghanistan known as the Salt Pit; and Manadel al-Jamadi, who died in C.I.A. custody in 2003 at Abu Ghraib prison in Iraq, where his corpse was photographed packed in ice and wrapped in plastic.

Mr. Holder's announcement might remove a possible target for Republicans during the presidential campaign. But the decision will disappoint liberals who supported President Obama when he ran in 2008 and denounced what he called torture and abuse of prisoners under his predecessor.

"It is hugely disappointing that with ample evidence of torture, and documented cases of some people actually being tortured to death, that the Justice Department has not been able to mount a successful prosecution and hold people responsible for these crimes," said Elisa Massimino, president of Human Rights First. "The American people need to know what was done in their name."

She said her group's own investigation of the deaths of prisoners showed that initial inquiries were bungled by military and intelligence officers in charge of prisons in Iraq and Afghanistan. She said Mr. Holder, whose statement referred to consideration of "statutes of limitations and jurisdictional provisions," should have been more explicit in explaining exactly why charges could not be brought.

While no one has been prosecuted for the harsh interrogations, a former C.I.A. officer who helped hunt members of Al Qaeda in Pakistan and later spoke publicly about waterboarding, John C. Kiriakou, is awaiting trial on criminal charges that he disclosed to journalists the identity of other C.I.A. officers who participated in the interrogations.

The C.I.A. director, David H. Petraeus, who as an Army general had spoken out against brutal interrogations, issued a cautious statement to agency employees about Mr. Holder's announcement. He thanked C.I.A. officers "who played a role in supporting the Justice Department's inquiries" and added, "As intelligence officers, our inclination, of course, is to look ahead to the challenges of the future rather than backwards at those of the past."

Representative Mike Rogers, the Michigan Republican who is chairman of the House Intelligence Committee, welcomed the announcement. "I am pleased that the attorney general's re-examination of these cases has come to a close and that he recognizes that filing criminal charges in these cases is inappropriate," he said. "These intelligence officers can now continue to focus on the hard work at hand, protecting our national security."

Mr. Holder's decision in 2009 to open a new investigation into the C.I.A. interrogations was sharply criticized by some former intelligence officials and Republicans in Congress. The harsh interrogation methods, including the near-drowning of waterboarding, had been authorized in Justice Department legal opinions, and the deaths in custody had been previously reviewed by prosecutors during Mr. Bush's presidency.

But after reviewing secret documents describing the treatment of prisoners, most of whom had been held in secret C.I.A. prisons overseas, Mr. Holder directed John Durham, the organized-crime prosecutor already looking into the C.I.A. destruction of video recordings of waterboarding, to broaden his inquiry.

Mr. Holder said interrogators would not be charged if they had acted strictly in accordance with the department's legal advice, though the legal opinions involved were later withdrawn. The review focused more narrowly on cases in which interrogators exceeded legal guidelines, including instances of prisoners waterboarded more often than permitted and of one prisoner who was threatened with an electric drill.

In November 2010, the Justice Department said there would be no charges in the destruction of the videotapes of C.I.A. interrogations. In June 2011, Mr. Holder said that of more than 100 prisoners whose treatment had been reviewed, only the final two cases remained under investigation.

On his first full day in office in January 2009, Mr. Obama banned coercive interrogation methods and ordered the closing of the C.I.A.'s remaining prisons overseas. But he said that month that while he did not "believe that anybody is above the law," he preferred "to look forward as opposed to looking backwards" and that he did not want C.I.A. employees to "suddenly feel like they've got to spend all their time looking over their shoulders and lawyering."

The Senate Intelligence Committee has largely completed its own three-year investigation of the C.I.A. interrogation program, but its report is still classified and its conclusions are not yet known. In April, responding to a book by a former C.I.A. official asserting that brutal interrogations had produced the intelligence that helped locate Osama bin Laden, the Democratic chairwoman of the Senate Intelligence Committee, Dianne Feinstein, called that claim "misguided and misinformed."

The moral and political debate over responsibility for the abuse and death of prisoners is unlikely to be ended by Mr. Holder's announcement. Senator Patrick J. Leahy, the Vermont Democrat who is chairman of the Judiciary Committee, has long called for a "truth commission" to look into interrogation and other matters, offering immunity from prosecution in return for candid testimony. But Mr. Obama never supported the idea, and with prosecution all but ruled out, it seems unlikely to gain new momentum.

Ms. Massimino noted that in some other countries, the torture and death of prisoners have been the subject of public inquiries decades after the events. "I don't think this is over," she said. "I take the long view."

[1] http://www.justice.gov/opa/pr/2012/August/12-ag-1067.html