WASHINGTON – Attorney General Eric Holder is leaning toward appointing a criminal prosecutor to investigate whether CIA personnel tortured terrorism suspects after Sept. 11, 2001, setting the stage for a conflict with administration officials who would prefer the issues remain in the past, according to three sources familiar with his thinking.
Naming a prosecutor to probe alleged abuses during the darkest period in the era of President George W. Bush would run counter to President Barack Obama’s oft-repeated desire to be “looking forward, not backwards.” Top political aides have expressed concern such an investigation might spawn partisan debates that could overtake Obama’s ambitious legislative agenda.
The White House successfully resisted efforts by congressional Democrats to establish a “truth and reconciliation” panel. But fresh disclosures have continued to emerge about detainee mistreatment, including a secret CIA watchdog report, recently reviewed by Holder, highlighting several episodes that could be likened to torture.
Holder’s decision could come within weeks, around the same time the Justice Department releases an ethics report about Bush lawyers who drafted memos supporting harsh interrogation practices, the sources said. The legal documents spell out in sometimes painstaking detail how interrogators were allowed to subject detainees to simulated drowning, sleep deprivation, wall slamming and confinement in small, dark spaces.
Any criminal inquiry could face challenges, including potent legal defenses by CIA employees who could argue that attorneys in the Bush Justice Department authorized a wide range of harsh conduct. But the sources said an inquiry would apply only to activities by interrogators, working in bad faith, that fell outside the “four corners” of the legal memos. Some incidents that might go beyond interrogation techniques that were permitted involve detainees in Iraq and Afghanistan, and are described in the secret 2004 CIA inspector general report, set for release Aug. 31.
Among the unauthorized techniques allegedly used, as described in the report and Red Cross accounts, were shackling, punching and beating of suspects, as well as the waterboarding of at least two detainees using more liquid and for longer periods than the Justice Department had approved. That conduct could violate ordinary criminal laws, as well as the U.N. Convention Against Torture, which the United States signed more than a decade ago.
Former government officials, led by former Vice President Dick Cheney, have publicly decried efforts to dig into the past. In a speech to the American Enterprise Institute in May, Cheney described the harsh interrogation program as “legal, essential, justified,” and said that “the intelligence officers who questioned the terrorists can be proud of their work and proud of the results.”
He added: “The danger here is a loss of focus on national security and what it requires. I would advise the administration to think very carefully about the course ahead.”
The young White House has struggled to find solid ground in its approach to national security, particularly in its relations with the CIA. The president has sought to reach out to agency employees who fear they could be unfairly faulted in an effort to allocate blame for past counterterrorism strategy.
CIA spokesman Paul Gimigliano said the Justice Department has long known the details of the agency’s past interrogation practices. “What the president, the attorney general and (CIA) Director (Leon) Panetta have said consistently is that no one who followed Department of Justice guidance should be punished,” he said.
Holder’s predecessor, Michael B. Mukasey, followed a similar path by reaching out to veteran federal prosecutors from Connecticut to investigate some of the most sensitive allegations in the Bush years.
Those prosecutors continue to examine the firing of nine U.S. attorneys in 2006 and the destruction of CIA videotapes that depicted waterboarding of terrorism suspects.
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