A Torture Prosecutor After All?

The LA Times reports that Attorney General Eric Holder is now expected to appoint a prosecutor to look into the alleged abuse of detainees during interrogations. Specifically, the report suggests the prosecutor will be asked to examine the narrow question of whether CIA personnel and others exceeded the limits on interrogation techniques that were set by the Justice Department. Even though the Justice Department’s Office of Legal Counsel adopted a fairly expansive view of permissible interrogation techniques during the Bush Administration, some reports indicate that some interrogation methods used went well beyond what the OLC memos authorized. The story also reports there are additional incidents of abuse or illegal conduct that have yet to be disclosed.

Successfully prosecuting CIA interrogators could be difficult, the LA Times reports.. The events in question occurred several years ago, and the facts may be difficult to pin down. In addition, the federal anti-torture statute has a specific intent requirement, and some interrogators may plausibly claim they were unaware of what the limits OLC had set. Justice Department officials apparently looked into bringing charges against CIA or military personnel implicated in detainee mistreatment, including some cases that resulted in a detainee’s death, but concluded the cases would be too hard to make.

The announcement of a prosecutor will likely generate criticism from both Right and Left. The former will argue that any prosecution is an effort to criminalize political differences and undermine CIA morale. The latter will be upset about the inquiry’s narrow focus, and its failure to cover those who authorized coercive interrogation techniques. According to a spokesperson for Human Rights Watch: “An investigation that focuses only on low-ranking operators would be, I think, worse than doing nothing at all.” Stay tuned.