Double Jeopardy for CIA Interrogators?

Some interrogators facing possible criminal charges were already disciplined.

ByJonathan Karl
July 13, 2009, 6:45 PM

WASHINGTON, July 13, 2009 -- Some of the Central Intelligence Agency's interrogators now facing potential criminal prosecution for how they interrogated alleged terrorists have already been disciplined by the CIA, according to officials familiar with the matter.

The CIA's disciplinary actions were taken in the 2004-05 time frame, after the Justice Department reviewed a still-classified CIA inspector general report on the agency's interrogation program.

At the time, career Department of Justice prosecutors in the eastern district of Virginia decided not to prosecute the CIA interrogators, referring their cases back to the agency for possible non-legal disciplinary action.

Among the cases that the Justice Department decided not to prosecute include:

After the Justice Department decided against prosecuting these cases in 2004, the CIA accountability board reviewed the inspector general report and decided to slap an administrative punishment on some of the interrogators. Officials would not say what the punishments were, nor how many individuals were punished.

Now, Attorney General Eric Holder is considering appointing a special prosecutor to conduct a criminal investigation into whether CIA interrogators broke the law and tortured captured terrorists, going beyond the so-called enhanced interrogation techniques, like waterboarding, that were approved by the Bush administration.

The attorney general's actions have some in the intelligence community asking why he would reopen the cases years after they had already been reviewed by career prosecutors.

Asked about the attorney general's possible appointment of a special prosecutor, CIA spokesman Paul Gimigliano said today, "The Department of Justice knows -- and has known for years -- the details of CIA's past interrogation practices. This has all been reviewed and dealt with before. It has also had for years the CIA inspector general's report on detention and interrogation. Based on that material and that knowledge, Justice decided when to prosecute and when not to prosecute. This has all been reviewed and dealt with before."

The only CIA interrogator prosecuted was David Passaro, a contractor who was charged in July 2004 with assault in the death of a detainee in Afghanistan named Abdul Wali. Passaro was found guilty in 2006 and sentenced to eight years in prison.

New questions have been raised in recent days about a separate secret CIA program that was designed to target senior al-Qaeda leadership.

Revelations about that secret counterterrorism intelligence program have stirred controversy among congressional legislators who have demanded to know what it entailed and why it was kept secret from Congress for nearly eight years after going into the planning stages shortly after the Sept. 11, 2001, attacks.

One Democrat on the Senate Intelligence Committee said CIA Director Leon Panetta told them that former Vice President Dick Cheney ordered the program be kept secret and that CIA directors agreed, placing Cheney squarely at the center of the controversy.

"He was told the vice president had ordered that the program not be briefed to the Congress," said Sen. Dianne Feinstein, D-Calif. "I think that is a problem, obviously."

But in an interview with NPR, former CIA Director Michael Hayden disputed that claim, saying he was never told not to brief Congress about the CIA's secret counterterrorism program.

"I never felt I had any impediment in briefing Congress," Hayden said.

Panetta canceled the secret program in June. In a hastily arranged classified briefing to the House and Senate intelligence committees last month, the CIA director said he himself found out about the program in June and believed Congress should have been informed of it long ago.

The Associated Press quoted government officials as saying that the CIA program never got off the ground and that Panetta told lawmakers there was no indication of anything illegal or inappropriate about the effort itself.

The Wall Street Journal reported today that the secret program, which was meant to kill or capture al-Qaeda leaders, was an extension of a presidential finding authorized in 2001 by then President George W. Bush.

Democrats on Capitol Hill say they will investigate the spy agency's failure to inform lawmakers about the secret program.

"The executive branch of government should not create programs like these programs and keep Congress in the dark," said Majority Whip Sen. Richard Durbin, D-Ill., on "This Week With George Stephanopoulos." "To have a massive program that is concealed from the leaders in Congress is not only inappropriate -- it could be illegal."

There's been no comment from Cheney, but some of the former vice president's allies have argued that the CIA did not need to brief Congress because the program never went beyond the planning stages.

"The CIA is in the secrecy business. And what I hear from the Democratic members of Congress is they want the CIA to tell more of them what's going on," said Sen. Lamar Alexander, R-Tenn., on CNN's "State of the Union." "The best way to ruin a secrecy business is to tell."

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