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Justice zeroes in on a few detainee cases

Justice zeroes in on a few detainee cases

WASHINGTON -- The Justice Department's review of detainee abuse by the CIA will focus on a very small number of cases, including at least one where an Afghan prisoner died at a secret facility, according to two sources briefed on the matter.

Yesterday, seven former CIA directors urged President Barack Obama to end the inquiry, arguing that it would inhibit intelligence operations in the future and demoralize agency employees who believed that they already had been cleared by previous investigators.

"Attorney General [Eric] Holder's decision to re-open the criminal investigation creates an atmosphere of continuous jeopardy for those whose cases the Department of Justice had previously declined to prosecute," the directors wrote.

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Opposition to the probe has grown in the weeks since Mr. Holder ordered it, even as the inquiry's outlines have become more clear.

Among cases under review will be the death seven years ago of a young Afghan man, who had been beaten and chained to a concrete floor without blankets, according to the sources.

The man died in the cold night at a secret CIA facility north of Kabul, known as the Salt Pit.

The November 2002 episode at the Salt Pit, and the significant details about the case that remain murky, highlight the challenges facing prosecutor John Durham, named by Mr. Holder to consider whether to launch a full-scale criminal investigation into agency interrogators who may have broken the law during the Bush years.

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Mr. Holder made his decision in part because of new, unspecified elements that came to light since the cases were investigated years ago, according to one of the sources.

The attorney general has played down expectations for the inquiry, issuing a statement last month saying, "Neither the opening of a preliminary review nor, if evidence warrants it, the commencement of a full investigation means that charges will necessarily follow."

While earlier reports indicated that Mr. Durham would look into 10 cases, a source said recently that the number is much smaller.

In all, 24 alleged abuse cases were earlier referred to federal prosecutors by the CIA inspector general, of which 22 were declined, according to a letter in February 2008 from a Justice Department legislative liaison.

Only one person, former CIA contractor David A. Passaro, has been convicted in connection with detainee mistreatment, after Mr. Passano hit an Afghan captive with a flashlight. The captive, Abdul Wali, later died, but Mr. Passaro was not charged with murder. Instead, the contractor faced a less serious charge of assault because of the difficulty in directly attributing Mr. Wali's death to the beating.

In rejecting the other cases, Justice Department officials at the time cited complications, including a lack of evidence, problems with jurisdiction and "low probability of conviction," according to a letter sent to Senate Democrats. who had demanded information about the investigations.

One government lawyer involved in the reviews later called the evidence "a mess," and said material collected on battlefields and in secret prison sites was difficult to translate into a criminal case, which requires proof beyond a reasonable doubt.

CIA officials have noted that all allegations of detainee mistreatment had been evaluated previously by an aggressive team of federal prosecutors, who declined to file criminal charges, after which some CIA employees were subjected to internal discipline.

"The CIA is cooperating with the official reviews now in progress, in part to see that they move as expeditiously as possible," agency spokesman Paul Gimigliano said.

The Salt Pit case was first referred to the Justice Department by CIA officials five years ago, but prosecutors concluded at the time that the Afghan prison was outside the arm of the U.S. law, though it was funded by the CIA and its home-country guards had been vetted by the agency.

It was also unclear to investigators whether the detainee, who was among prisoners captured in Pakistan, would have died from injuries sustained in his capture, rather than by freezing.

An autopsy lists hypothermia as the cause of death, but the body was not available to investigators, and questions remain whether hypothermia was used as a cover story, in part to protect people who had beaten the captive.

The CIA later promoted a young case agent who supervised the Salt Pit interrogation, one of his first big assignments, which suggested that the agency did not believe that any crime had been committed.

The agent's supervisor played an unspecified role in other incidents of detainee abuse in Iraq, according to sources.

A senior law enforcement official who took part in the review confirmed that of two dozen referrals, the Salt Pit episode was only one of two or three cases close to being considered for criminal indictment.

The cases were reviewed by Eastern District of Virginia federal prosecutors, who traveled the globe to talk to witnesses, reviewed interview reports and ultimately prepared detailed memos explaining the reasons they did not prosecute agency interrogators and contractors.

First Published: September 19, 2009, 5:00 a.m.

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