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Reuters: High Hurdles to Prosecute CIA Interrogators
(Reuters) - A decision by the U.S. attorney general to probe deeper into alleged CIA abuse of captured terrorism suspects may not land anyone in jail, and it could just produce more headaches for President Barack Obama.
A report issued by the Central Intelligence Agency's inspector general this week offered a possible road map for building cases. It gave graphic details about interrogations going beyond approved techniques, recounting threats to kill prisoners' families, a fake execution, a use of a power drill to scare a prisoner and the fact that accused September 11 mastermind Khalid Sheikh Mohammed was "waterboarded" 183 times.
| We could always compare to what al-Qaeda does to the people it captures ... |
But legal experts say special prosecutor John Durham, named by Attorney General Eric Holder to lead the investigation, will face high hurdles to sending anyone to jail. "I think it's going to be pretty challenging because if you look at the torture statute it is very narrowly drafted," said Thomas McDonnell, a law professor at Pace University in New York. "Even using the drill as a threat, according to the torture statute, there was no physical harm so there has to be severe mental harm. But the statute then defines as it having to be prolonged mental harm," he said. "So unless you can show that it produced severe and long mental harm, it may not even fit."
| Demonstrating that we caused 'prolonged mental harm' to a terrorist -- is that even possible? |
But regardless of whether charges are filed or not, Obama will likely face criticism from more liberal Democratic supporters who want former Bush officials prosecuted. Republicans, including former Vice President Dick Cheney, have criticized the investigation as undermining national security. "It's almost a no-win," said Larry Sabato, a political science professor at the University of Virginia. "This is bound to be a moderate-sized to massive controversy depending on what the recommendations are."
Another legal complication in the prisoner abuse cases is that some of the interrogations were done outside the United States, and many were done years ago which raises questions of whether they can still be prosecuted. Glen Donath, a former federal prosecutor and now a partner at the law firm Sonnenschein Nath and Rosenthal, said that the prisoners would also have a motive to complain after being held for so long under such conditions.
| Al-Qaeda terrs are taught to complain from the get-go so as to use our system against us. Bet Holder never considered that ... |
"All of these things would be firing off against wanting to prosecute this unless the evidence was compelling," Donath said, adding that it would have to be along the lines of an interrogator trying to kill someone or trying to inflict harm "with no motive of gathering intelligence."
One of the biggest hurdles Durham likely faces is that Bush Justice Department lawyers wrote lengthy memos authorizing the CIA to use coercive techniques. Interrogators could use those memos as a defense. The ACLU has also called for prosecuting the attorneys who offered extensive legal backing for the techniques, Steven Bradbury, Jay Bybee and John Yoo.
| Thus criminalizing the act of giving legal advice ... |
But that too poses problems for Durham. "I think it's pretty much close to impossible to prove that in their minds and heart of hearts they understood that the law provided otherwise but they were just doing what their masters wanted," Donath said.
Posted by: trailing wife 2009-08-30 |
