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CIA Inspector General’s Report: Will criminal and civil action follow?

Abd al-Rahim al-Nashiri, AP Photo

Abd al-Rahim al-Nashiri, AP Photo

Much is being written about the soon-to-be released Inspector General’s report on the Central Intelligence Agency. Slated to be released on Monday, the report will allegedly disclose further abuses of detainees. For example, the New York Times reports:

C.I.A. jailers at different times held the handgun and the drill close to the detainee, Abd al-Rahim al-Nashiri, threatening to harm him if he did not cooperate with his interrogators, a government official familiar with the contents of the report said.

Mr. Nashiri, who was implicated in the bombing of the Navy destroyer Cole in 2000, was one of two C.I.A. detainees whose interrogation sessions were videotaped — tapes that were destroyed by C.I.A. officers in 2005. It is unclear whether the threats with the gun and the power drill were documented on the tapes.

In a separate episode detailed in the report — completed in 2004 by the inspector general, John L. Helgerson, but emerging now after a lawsuit by the American Civil Liberties Union forced its release — C.I.A. officers fired a gunshot in a room next to a detainee, leading the prisoner to believe that a second detainee had been killed.

It is a violation of the federal torture statute to threaten a detainee with imminent death.

(For the record, the Torture Statute prohibits prolonged mental harm caused by or resulting from . . . the threat of imminent death.” So I can already see the arguments noting that even if the US agents threatened imminent death, the threat did not cause “prolonged mental harm.”)

So, will the release of the report lead to further criminal action? The Times notes:

A federal prosecutor is now investigating the destruction of the C.I.A. tapes, but the Justice Department has thus far declined to open a formal investigation into the abuses in C.I.A. prisons.

That may be about to change, as Attorney General Eric H. Holder Jr. is considering whether to appoint a prosecutor to examine the allegations in Mr. Helgerson’s report, and to investigate a number of cases where detainees died in C.I.A. custody.

President Obama has insisted that C.I.A. officers who adhered to Justice Department interrogation guidelines should escape prosecution, and Mr. Holder is not expected to single out Justice Department lawyers who approved the brutal interrogation techniques.

This would give any future investigation a somewhat narrow mandate: aiming only at C.I.A. officers who carried out abuses that exceed the interrogation guidelines.

Mr. Helgerson’s report is said to document in grim detail a number of abuse cases, and its release on Monday is likely to reinvigorate a partisan debate on Capitol Hill. Some senior Democrats have described the Bush administration’s interrogation methods, including waterboarding, as torture.

Republicans have responded that top Democratic lawmakers, including House Speaker Nancy Pelosi, a California Democrat, attended C.I.A. briefings about the interrogation methods and apparently did not object.

Even as White House officials say that they are hesitant to dwell on the detainee abuse during the Bush administration, the A.C.L.U. lawsuit has forced a number of classified documents from that era to be made public, including the Justice Department memos authorizing the C.I.A. interrogations. When it was completed in April 2004, Mr. Helgerson’s report forced the C.I.A. to put a halt to the most extreme interrogation techniques, including waterboarding.

I think Holder should indeed appoint a special prosecutor to investigate these allegations. But, as previous posts have noted, even if ultimately there are no criminal charges preferred in these and other incidents of abuse, detainees should still be able to pursue civil litigation under the Alien Tort Statue, which, as is well know provides:

The district courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States.

Unless Congress amends the ATS or adopts some other form of legislation effectively granting immunity, I don’t see how persons involved in certain actions can escape civil suit.

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Welcome! Who am I?

Anthony Clark Arend is Professor of Government and Foreign Service at Georgetown University and the Director of the Master of Science in Foreign Service in the Walsh School of Foreign Service.

Commentary and analysis at the intersection of international law and politics.