Team Infidel
Forum Spin Doctor
New York Times
December 19, 2006
Pg. 1
By David Johnston
WASHINGTON, Dec. 18 — A Justice Department team responsible for investigating accusations that civilian government employees had abused detainees has decided against prosecution in most of the nearly 20 cases referred in the last two years by the Pentagon and the Central Intelligence Agency, said lawyers who have been officially briefed on the effort.
The prosecution team, which was established in June 2004 at the United States attorney’s office in Alexandria, Va., has not brought a single indictment and has been plagued by problems.
The team has been unable to collect forensic evidence or find witnesses needed to bring indictments out of war-ravaged areas of Iraq and Afghanistan. In some cases, the unit has been stymied by the absence of facts in the referrals, the lawyers said. A few investigations remain open, although the lawyers declined to be specific about how many cases fell in that category.
The team was set up in the aftermath of the uproar over abuses at the Abu Ghraib prison in Iraq; it was to investigate accusations that detainees had been mistreated by civilian personnel. Civilians have worked in large numbers in Afghanistan and Iraq, among them C.I.A. officers, Americans hired by companies under contract with the military as interrogators and translators, and local residents temporarily employed as support workers.
The military justice system, meanwhile, has won convictions against a number of soldiers in cases from Abu Ghraib and elsewhere in Iraq and Afghanistan. In some cases, the Justice Department has declined to prosecute in cases involving the same events in which military lawyers have brought charges against members of the armed services.
Lawyers who have been briefed on the work of the Justice Department unit, initially made up of six federal prosecutors, said problems with evidence and the fragmentary nature of some of the accusations had proved so daunting that prosecutors never even reached the point of grappling with difficult legal issues involving permissive interrogation guidelines. These guidelines, most of them based on Justice Department legal opinions, granted government officials the authority to use harsh tactics in questioning detainees.
In one case, Justice Department prosecutors investigated an accusation that a civilian translator working under a contract with the military had sexually assaulted a detainee at Abu Ghraib prison. But when investigators arrived in Iraq, the detainee and witnesses had been released in Baghdad and could not be found.
In another case, a referral cited abusive conduct by a government employee but did not include the names of witnesses or victims or where they lived. In other cases, investigators began their inquiries long after the alleged crimes occurred, when any forensic evidence a crime scene might have provided had been lost.
One of the investigations that remains open involves the November 2003 death of Manadel al-Jamadi, who died at Abu Ghraib after a brutal interrogation in one of the most widely publicized abuse cases in Iraq. Mr. Jamadi was in the custody of a C.I.A. officer and a contract interpreter at the time of his death, although he had first been captured by a team of Navy Seals.
Justice Department prosecutors who reviewed the case advised superiors that neither of the civilians could be charged. They concluded that Mr. Jamadi probably sustained severe injuries when he was in military custody before he was turned over to the intelligence agency and that therefore the civilians could not be prosecuted for his death. Frank Spinner, who represented some of the Navy Seals who have faced disciplinary proceedings, denied that military personnel were responsible for Mr. Jamadi’s death. “He walked into Abu Ghraib, into the custody of the C.I.A.,” Mr. Spinner said.
Justice Department officials have never publicly disclosed that the prosecution team had terminated most of its cases or that it encountered serious evidentiary problems — an assertion likely to be met with skepticism by lawmakers and human rights activists who have been critical of the department’s unwillingness to discuss the abuse cases.
In a letter sent Monday to Attorney General Alberto R. Gonzales, Senator Richard J. Durbin, Democrat of Illinois and a member of the Judiciary Committee, urged the Justice Department to be more forthcoming.
“Providing more public information about the Justice Department’s handling of detainee abuse cases would be an important step in restoring the confidence of the American people in their government and would send a powerful message to the rest of the world about the role of the rule of law in American society,” Mr. Durbin’s letter said.
Hina Shamsi, senior counsel at Human Rights First, a group based in New York, said: “Secrecy itself invites abuse. Investigations shrouded in secrecy invite immunity for abuse. Congress needs to take a hard look at what happened, and why, and how to keep the agency accountable.”
Spokesmen for the Pentagon and the C.I.A. declined to comment on specifics of the referrals, but both said their agencies took seriously accusations of detainee abuse. The C.I.A. has been advised that most of the cases have been closed, an intelligence official said. The referrals had stirred resentment within the agency, where some officers believed the actions of agency personnel did not warrant criminal investigation.
James Rybicki, a spokesman for the United States attorney’s office in Alexandria, declined to comment on the details of the cases or their status. “This office continues the independent investigation of the cases referred to us,” Mr. Rybicki said. “Because our review is ongoing, however, we cannot make any further comment at this time.”
In a letter earlier this year responding to questions posed by Mr. Durbin, the Justice Department said the prosecution unit had received 19 separate accusations of abuse in Iraq and Afghanistan. Eleven referrals of possible wrongdoing came from the Pentagon, and eight from an unspecified agency later identified as the Central Intelligence Agency. The Department reported that it had dropped two of the cases on grounds of insufficient evidence.
Although the team has brought no charges, one civilian case has been prosecuted by federal prosecutors in North Carolina, resulting in a felony assault conviction against David A. Passaro, a C.I.A. contract employee. The charges stemmed from an interrogation in June 2003 at an American base in Afghanistan that resulted in the death of an Afghan, Abdul Wali.
Even that case caused problems for prosecutors, one of the lawyers said. Investigators were unable to retrieve the body of Mr. Wali from where he was buried to determine precisely the cause of his death. As a result, Mr. Passaro was not charged with Mr. Wali’s death, but with beating him with a flashlight.
While the details about most cases are not known, one of the closed cases is believed to have involved the C.I.A. contract personnel who were at times present during the interrogation of Maj. Gen. Abed Hamed Mowhoush, an Iraqi who died after a rough interrogation in November 2003. General Mowhoush died of “asphyxiation due to smothering and chest compression,” according to an autopsy report, after he was severely clubbed, beaten with fists and shoved into a sleeping bag.
In the Jamadi and Mowhoush cases, military prosecutors brought charges against several members of the armed forces. But they had no jurisdiction over civilians working alongside their military counterparts. A court-martial of Lt. Andrew Ledford, the leader of the Navy Seal unit that captured Mr. Jamadi, ended with an acquittal. A court-martial in the Mowhoush case concluded with a conviction of Chief Warrant Officer Lewis Welshofer Jr., who was fined $6,000 and confined for 60 days to his barracks.
Mr. Spinner, a defense lawyer who has specialized in military cases and who represented Lieutenant Ledford and Chief Warrant Officer Welshofer, said the Jamadi case in particular had raised questions about the role of the C.I.A. “The evidence was clear,” Mr. Spinner said. “Let’s have equal justice. If you’re going to try Ledford and try the Seals, then you have to go after the C.I.A. guys.”
From the start, there were doubts among some Democrats in Congress that the Justice Department could mount a serious prosecutorial effort against intelligence officers and other civilians accused of violence against terror suspects. It was the Justice Department, through a series of legal opinions and memoranda, that played a crucial role in erecting the legal framework intended to give C.I.A. officers the widest possible latitude in interrogating terror suspects and virtually indemnify them from legal liability.
December 19, 2006
Pg. 1
By David Johnston
WASHINGTON, Dec. 18 — A Justice Department team responsible for investigating accusations that civilian government employees had abused detainees has decided against prosecution in most of the nearly 20 cases referred in the last two years by the Pentagon and the Central Intelligence Agency, said lawyers who have been officially briefed on the effort.
The prosecution team, which was established in June 2004 at the United States attorney’s office in Alexandria, Va., has not brought a single indictment and has been plagued by problems.
The team has been unable to collect forensic evidence or find witnesses needed to bring indictments out of war-ravaged areas of Iraq and Afghanistan. In some cases, the unit has been stymied by the absence of facts in the referrals, the lawyers said. A few investigations remain open, although the lawyers declined to be specific about how many cases fell in that category.
The team was set up in the aftermath of the uproar over abuses at the Abu Ghraib prison in Iraq; it was to investigate accusations that detainees had been mistreated by civilian personnel. Civilians have worked in large numbers in Afghanistan and Iraq, among them C.I.A. officers, Americans hired by companies under contract with the military as interrogators and translators, and local residents temporarily employed as support workers.
The military justice system, meanwhile, has won convictions against a number of soldiers in cases from Abu Ghraib and elsewhere in Iraq and Afghanistan. In some cases, the Justice Department has declined to prosecute in cases involving the same events in which military lawyers have brought charges against members of the armed services.
Lawyers who have been briefed on the work of the Justice Department unit, initially made up of six federal prosecutors, said problems with evidence and the fragmentary nature of some of the accusations had proved so daunting that prosecutors never even reached the point of grappling with difficult legal issues involving permissive interrogation guidelines. These guidelines, most of them based on Justice Department legal opinions, granted government officials the authority to use harsh tactics in questioning detainees.
In one case, Justice Department prosecutors investigated an accusation that a civilian translator working under a contract with the military had sexually assaulted a detainee at Abu Ghraib prison. But when investigators arrived in Iraq, the detainee and witnesses had been released in Baghdad and could not be found.
In another case, a referral cited abusive conduct by a government employee but did not include the names of witnesses or victims or where they lived. In other cases, investigators began their inquiries long after the alleged crimes occurred, when any forensic evidence a crime scene might have provided had been lost.
One of the investigations that remains open involves the November 2003 death of Manadel al-Jamadi, who died at Abu Ghraib after a brutal interrogation in one of the most widely publicized abuse cases in Iraq. Mr. Jamadi was in the custody of a C.I.A. officer and a contract interpreter at the time of his death, although he had first been captured by a team of Navy Seals.
Justice Department prosecutors who reviewed the case advised superiors that neither of the civilians could be charged. They concluded that Mr. Jamadi probably sustained severe injuries when he was in military custody before he was turned over to the intelligence agency and that therefore the civilians could not be prosecuted for his death. Frank Spinner, who represented some of the Navy Seals who have faced disciplinary proceedings, denied that military personnel were responsible for Mr. Jamadi’s death. “He walked into Abu Ghraib, into the custody of the C.I.A.,” Mr. Spinner said.
Justice Department officials have never publicly disclosed that the prosecution team had terminated most of its cases or that it encountered serious evidentiary problems — an assertion likely to be met with skepticism by lawmakers and human rights activists who have been critical of the department’s unwillingness to discuss the abuse cases.
In a letter sent Monday to Attorney General Alberto R. Gonzales, Senator Richard J. Durbin, Democrat of Illinois and a member of the Judiciary Committee, urged the Justice Department to be more forthcoming.
“Providing more public information about the Justice Department’s handling of detainee abuse cases would be an important step in restoring the confidence of the American people in their government and would send a powerful message to the rest of the world about the role of the rule of law in American society,” Mr. Durbin’s letter said.
Hina Shamsi, senior counsel at Human Rights First, a group based in New York, said: “Secrecy itself invites abuse. Investigations shrouded in secrecy invite immunity for abuse. Congress needs to take a hard look at what happened, and why, and how to keep the agency accountable.”
Spokesmen for the Pentagon and the C.I.A. declined to comment on specifics of the referrals, but both said their agencies took seriously accusations of detainee abuse. The C.I.A. has been advised that most of the cases have been closed, an intelligence official said. The referrals had stirred resentment within the agency, where some officers believed the actions of agency personnel did not warrant criminal investigation.
James Rybicki, a spokesman for the United States attorney’s office in Alexandria, declined to comment on the details of the cases or their status. “This office continues the independent investigation of the cases referred to us,” Mr. Rybicki said. “Because our review is ongoing, however, we cannot make any further comment at this time.”
In a letter earlier this year responding to questions posed by Mr. Durbin, the Justice Department said the prosecution unit had received 19 separate accusations of abuse in Iraq and Afghanistan. Eleven referrals of possible wrongdoing came from the Pentagon, and eight from an unspecified agency later identified as the Central Intelligence Agency. The Department reported that it had dropped two of the cases on grounds of insufficient evidence.
Although the team has brought no charges, one civilian case has been prosecuted by federal prosecutors in North Carolina, resulting in a felony assault conviction against David A. Passaro, a C.I.A. contract employee. The charges stemmed from an interrogation in June 2003 at an American base in Afghanistan that resulted in the death of an Afghan, Abdul Wali.
Even that case caused problems for prosecutors, one of the lawyers said. Investigators were unable to retrieve the body of Mr. Wali from where he was buried to determine precisely the cause of his death. As a result, Mr. Passaro was not charged with Mr. Wali’s death, but with beating him with a flashlight.
While the details about most cases are not known, one of the closed cases is believed to have involved the C.I.A. contract personnel who were at times present during the interrogation of Maj. Gen. Abed Hamed Mowhoush, an Iraqi who died after a rough interrogation in November 2003. General Mowhoush died of “asphyxiation due to smothering and chest compression,” according to an autopsy report, after he was severely clubbed, beaten with fists and shoved into a sleeping bag.
In the Jamadi and Mowhoush cases, military prosecutors brought charges against several members of the armed forces. But they had no jurisdiction over civilians working alongside their military counterparts. A court-martial of Lt. Andrew Ledford, the leader of the Navy Seal unit that captured Mr. Jamadi, ended with an acquittal. A court-martial in the Mowhoush case concluded with a conviction of Chief Warrant Officer Lewis Welshofer Jr., who was fined $6,000 and confined for 60 days to his barracks.
Mr. Spinner, a defense lawyer who has specialized in military cases and who represented Lieutenant Ledford and Chief Warrant Officer Welshofer, said the Jamadi case in particular had raised questions about the role of the C.I.A. “The evidence was clear,” Mr. Spinner said. “Let’s have equal justice. If you’re going to try Ledford and try the Seals, then you have to go after the C.I.A. guys.”
From the start, there were doubts among some Democrats in Congress that the Justice Department could mount a serious prosecutorial effort against intelligence officers and other civilians accused of violence against terror suspects. It was the Justice Department, through a series of legal opinions and memoranda, that played a crucial role in erecting the legal framework intended to give C.I.A. officers the widest possible latitude in interrogating terror suspects and virtually indemnify them from legal liability.