Justice Dept. Report Advises Pursuing C.I.A. Abuse Cases

by 
August 24, 2009

WASHINGTON ó The Justice Departmentís ethics office has recommended reversing the Bush administration and reopening nearly a dozen prisoner-abuse cases, potentially exposing Central Intelligence Agency employees and contractors to prosecution for brutal treatment of terrorism suspects, according to a person officially briefed on the matter.

The recommendation by the Office of Professional Responsibility, presented to Attorney General Eric H. Holder Jr. in recent weeks, comes as the Justice Department is about to disclose on Monday voluminous details on prisoner abuse that were gathered in 2004 by the C.I.A.ís inspector general but have never been released.

When the C.I.A. first referred its inspector generalís findings to prosecutors, they decided that none of the cases merited prosecution. But Mr. Holderís associates say that when he took office and saw the allegations, which included the deaths of people in custody and other cases of physical or mental torment, he began to reconsider.

With the release of the details on Monday and the formal advice that at least some cases be reopened, it now seems all but certain that the appointment of a prosecutor or other concrete steps will follow, posing significant new problems for the C.I.A. It is politically awkward, too, for Mr. Holder because President Obama has said that he would rather move forward than get bogged down in the issue at the expense of his own agenda.

The advice from the Office of Professional Responsibility strengthens Mr. Holderís hand.

The recommendation to review the closed cases, in effect renewing the inquiries, centers mainly on allegations of detainee abuse in Iraq and Afghanistan. The Justice Department report is to be made public after classified information is deleted from it.

The cases represent about half of those that were initially investigated and referred to the Justice Department by the C.I.A.ís inspector general, but were later closed. It is not known which cases might be reopened.

Mr. Holder was said to have reacted with disgust earlier this year when he first read accounts of abusive treatment of detainees in a classified version of the inspector generalís report and other materials.

In examples that have just come to light, the C.I.A. report describes how C.I.A. officers carried out mock executions and threatened at least one prisoner with a gun and a power drill. It is a violation of the federal torture statute to threaten a prisoner with imminent death.

Mr. Holder, who questioned the thoroughness of previous inquiries by the Justice Department, is expected to announce within days his decision on whether to appoint a prosecutor to conduct a new investigation; in legal circles, it is believed to be highly likely that he will go forward with a fresh criminal inquiry.

Paul Gimigliano, a C.I.A. spokesman, said Sunday that the Justice Department recommendation to reopen the cases had not been sent to the intelligence agency. He added: ďDecisions on whether or not to pursue action in court were made after careful consideration by career prosecutors at the Justice Department. The C.I.A. itself brought these matters ó facts and allegations alike ó to the departmentís attention.Ē

The report by the Justice Departmentís ethics office has been under preparation for more than five years, and its critique of legal work on interrogations provoked bitter complaints from Attorney General Michael B. Mukasey as he was leaving office as the Bush administrationís final attorney general.

The Justice Departmentís report, the most important since Mr. Holder took office, was submitted by Mary Patrice Brown, a veteran Washington federal prosecutor picked by Mr. Holder to lead the Office of Professional Responsibility earlier this year after its longtime chief, H. Marshall Jarrett, moved to another job in the Justice Department.

There has never been any public explanation of why the Justice Department decided not to bring charges in nearly two dozen abuse cases known to be referred to a team of federal prosecutors in Alexandria, Va., and in some instances not even the details of the cases have been made public.

Former government lawyers said that while some detainees died and others suffered serious abuses, prosecutors decided they would be unlikely to prevail because of problems with mishandled evidence and, in some cases, the inability to locate witnesses or even those said to be the victims.

A few of the cases are well known, like that of Manadel al-Jamadi, who died in 2003 in C.I.A. custody at Abu Ghraib prison in Iraq after he was first captured by a team of Navy Seals. Prosecutors said he probably received his fatal injuries during his capture, but lawyers for the Seals denied it.

Over the years, some Democratic lawmakers sought more details about the cases and why the Justice Department took no action. They received summaries of the number of cases under scrutiny but few facts about the episodes or the departmentís decisions not to prosecute.

The cases do not center on allegations of abuse by C.I.A. officers who conducted the forceful interrogations of high-level Qaeda suspects at secret sites, although it is not out of the question that a new investigation would also examine their conduct.

That could mean a look at the case in which C.I.A. officers threatened one prisoner with a handgun and a power drill if he did not cooperate. The detainee, Abd al-Rahim al-Nashiri, was suspected as the master plotter behind the 2000 bombing of the Navy destroyer Cole.

All civilian employees of the government, including those at the C.I.A., were required to comply with guidelines for interrogations detailed in a series of legal opinions written by the Justice Department. Those opinions, since abandoned by the Obama administration, were the central focus of the Justice Departmentís internal inquiry.

It has been known that the Justice Department ethics report had criticized the authors of the legal opinions and, in some cases, would recommend referrals to local bar associations for discipline.

But the internal inquiry also examined how the opinions were carried out and how referrals of possible violations were made ó a process that led ethics investigators to find misconduct serious enough to warrant renewed criminal investigation.

Copyright 2009 The New York Times Company