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Torture Update: Inspector General Report, Special Prosecutor, and New Interrogation Unit

by Professor Will Huhn on August 25, 2009

in Constitutional Law,Wilson Huhn

     Three significant events yesterday occurred yesterday on the torture front: the government released the 2004 C.I.A. Inspector General's Report on interrogations; Attorney General Eric Holder expanded the special prosecutor's jurisdiction to investigate whether interrogators broke the law; and it was revealed that the President has created a new single government unit to question "high value" prisoners in the war on terror.  More below.

     On Monday the administration released the May 7, 2004 report of the C.I.A. Inspector General entitled "Counterterrorism Detention and Interrogation Activities.  The report is over 100 pages long  and more than half of it is blacked out, its remaining contents still "top secret."  The most heavily edited portions of the report are those that describe how prisoners were treated.  Nearly everything on the use of waterboarding (pages 45 to 66 of the report) is blacked out. 

     Another portion of the report that is heavily blacked out contains references to the expressed concerns of C.I.A. officers that they would be subject to legal action for participating in the interrogation of prisoners.  In particular, the Report notes, while the Department of Justice had advised the C.I.A. that waterboarding and other interrogation techniques were not "torture," it had neglected to advise the C.I.A. whether the interrogation techniques constituted "cruel, inhuman, or degrading treatment or punishment" prohibited by Convention Against Torture, a treaty which was signed by the United States in 1984.

     The report describes how interrogators used unauthorized methods such as subjecting prisoners to mock executions, water dousing, smoke inhalation, pressure points, threatening prisoners with handguns and an electric drill, and threatening their family members with rape or death.  At page 102, paragraph 258, the Inspector General concluded:

Unauthorized, improvised, inhumane, and undocumented detention and interrogation techniques were used ….

     On page 105 of the Report, in paragraph 266, the Inspector General reaches this final conclusion:

The Agency faces potentially serious long-term political and legal challenges as a result of the CTC Detention and Interrogation Program, particularly its use of EITs [enhanced interrogation techniques] and the inability of the U.S. Government to decide what it will ultimately do with terrorists detained by the Agency.

     The remaining four pages of the report containing ten recommendations are entirely blacked out.

     Attorney General Holder issued a statement noting that he had read the complete and unredacted Inspector General Report and that as a result he had decided to expand the jurisdiction of Special Prosecutor John Durham who had initially been appointed during the Bush administration to investigate the C.I.A.'s destruction of videotapes allegedly showing the mistreatment of prisoners.  The Attorney General stated that the report had led him to believe that a preliminary review was necessary to determine whether federal laws had been violated during the interrogation of prisoners at overseas locations.  In the key paragraph of his statement, the Attorney General said:

"There are those who will use my decision to open a preliminary review as a means of broadly criticizing the work of our nationâs intelligence community. I could not disagree more with that view. The men and women in our intelligence community perform an incredibly important service to our nation, and they often do so under difficult and dangerous circumstances. They deserve our respect and gratitude for the work they do. Further, they need to be protected from legal jeopardy when they act in good faith and within the scope of legal guidance. That is why I have made it clear in the past that the Department of Justice will not prosecute anyone who acted in good faith and within the scope of the legal guidance given by the Office of Legal Counsel regarding the interrogation of detainees. I want to reiterate that point today, and to underscore the fact that this preliminary review will not focus on those individuals."

     Finally, it would appear that the C.I.A. has lost its responsibility for interrogating high-level prisoners in the war on terror, and not simply or even primarily because of the mistreatment of prisoners.  Anne Kornblut of the Washington Post reports that the President has established an elite team, the High-Value Detainee Interrogation Group (HIG) under the direction of the National Security Council and hosted at F.B.I. headquarters, to question these prisoners.  This will bring interrogation of these prisoners directly under the control of the White House.  Kornblut reports that the interrogations will be carried out with the help of linguists, cultural experts, and interrogation specialists who will advise the interrogation team.  Some of the most damning portions of the Inspector General's report did not concern the mistreatment of prisoners but rather the lack of expertise and professionalism among the C.I.A. interrogators: there were persons conducting interrogations who had no experience questioning hostile prisoners; interrogators who had no idea what their prisoners might or might not know because of a complete absence of informed analysis; and a failure to thoroughly and adequately evaluate whether enhanced interrogation techniques had been necessary or useful.  As a result the C.I.A. will no longer be responsible for interrogating "high-value" prisoners.

{ 4 comments }

The Reverend August 26, 2009 at 12:31 pm

"Some of the most damning portions of the Inspector General's report did not concern the mistreatment of prisoners but rather the lack of expertise and professionalism among the C.I.A. interrogators…"

That's seems like an odd statement. It's not damning that the CIA acted like savages, like crazed zombies from some horror flick…..it's damning that the crazed zombies didn't have the proper credentials.

I know you didn't mean it that way….it just caught my attention.

N. E. Frye August 26, 2009 at 2:34 pm

So whose nephew/big bucks contributor gets to head up the High-Value Detainee Interrogation Group, how many square feet of office space do they need, and what will their budget be for the 1st year?

Professor Will Huhn August 26, 2009 at 7:51 pm

Reverend,
I think that the main reason that the C.I.A. lost the power to question important prisoners in the war on terror is because they were ineffective. That may not be entirely the C.I.A.'s fault – it has been reported that the agency was pressured into using untrained personnel and questionable techniques that did not prove efficient in generating sound intelligence. But in the end the agency has to pay the price for not generating results.
That doesn't answer your moral concern, I know.

Attorney Alease Sigala October 9, 2010 at 1:32 pm

This website is very useful. You are a very thoughtful speaker.

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