Investigators Examining Interrogations, Legal AdviceBy R. Jeffrey Smith
Washington Post Staff Writer
Sunday, May 10, 2009
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According to excerpts included in those memos, the inspector general's report concluded that interrogators initially used harsh techniques against some detainees who were not withholding information. Officials familiar with its contents said it also concluded that some of the techniques appeared to violate the U.N. Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, ratified by the United States in 1994.
Although some useful information was produced, the report concluded that "it is difficult to determine conclusively whether interrogations have provided information critical to interdicting specific imminent attacks," according to the Justice Department's declassified summary of it. The threat of such an imminent attack was cited by the department as an element in its 2002 and later written authorization for using harsh techniques.
When the report was finished, CIA official Constance Rea told a New York court in January 2008, the inspector general "notified DOJ and other relevant oversight authorities of the review's findings." But two Bush administration officials privy to its conclusions said it did not provoke a specific CIA "referral" to the department suggesting an investigation of potential criminal liability, and no such investigation was undertaken at the time.
A U.S. intelligence official, asked for comment Friday, said that at the time of the inspector general report, the agency's general counsel "took issue with the interpretations of law put forward" in that report. "The bar for criminal referrals is low -- basically the possibility that a crime may have been committed. If it was all as clear-cut as the IG narrative suggests, why were no referrals made?"
The report's conclusions nonetheless prompted CIA general counsel John A. Rizzo to request fresh statements by the Justice Department that what the agency had been doing was indeed legal. Steven G. Bradbury, then deputy assistant attorney general, responded in May 2005 by issuing three opinions explaining why the interrogations did not violate the Convention Against Torture.
Legal experts say that bringing criminal charges against the CIA interrogators or those who ordered harsh methods would be akin to prosecuting police officers for brutality, but it could require also proving that the interrogators acted in bad faith.
David Kaye, a former State Department lawyer who runs UCLA's International Human Rights Program, said, "I don't think we know . . . the mechanics of how OLC legal advice made its way to people in the field, and it's the mechanics that will help investigators know whether there was bad faith in the interrogation program on the ground."
He added that U.S. anti-torture laws bar even "the conspiracy to commit torture," and those are the provisions that "should cause concern for (any) senior-level officials" who sanctioned improper interrogations, even from a distance.
On edit: Reports that the soon-to-be released draft on interogations will recommend no prosecution appear to have been inaccurate. The above WaPo article seems to indicate a concern about why no one decided to pursue a criminal inquiry.
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