By Jason Ralph
Last week’s developments give some indication of how the US may seek to resolve the dilemma of whether and who to prosecute. The dilemma of course is that if a prosecutor targets CIA interrogators they will claim that they sought legal advice and the OLC told them that their interrogation practices were lawful. But if the prosecutor targets OLC lawyers they will simply argue they misinterpreted the law but were not partof any conspiracy to break it. The first point to note about last week is that the Attorney General appointed the prosecutor John Durham to investigate the CIA. Durham had been looking at what happened to the videotapes of the Zubaydah interrogation but now his remit is wider. The second point, is that the May 7 2004 report by the CIA Inspector General, John Helgerson, points to the use of interrogation techniques that were not approved by the OLC. This is picked up by the OLC lawyer, Jack Goldsmith in a 27 May 2004 letter to Scott Muller, General Counsel of the CIA. Goldsmith may have been trying to protect OLC colleagues when he notes that the OLC’s clearance of the 10 enhanced interrogation techniques in the August 2002 memo to Rizzo, “depended on a number of factual assumptions as well as limitations concerning how those techniques would be applied. … Our inititial review of the IGs report raises the possibility that, at least in some instances and particularly in early in the program, the actual practice may not have been congruent with all of these assumptions and limitations.”
This may be the case and it suggests prosecutions of those CIA interrogators who went beyond what the OLC said was legal. But does that mean what the OLC said was legal is in fact legal? The OIG report also notes that the evidence which the OLC used to draw its conclusion that the 10 EITs were legal was in fact flawed. This is reference to the SERE training program, which the OLC August 2002 opinion used to conclude that the EIT would not cause prolonged mental harm. Relying on this evidence has been widely attacked and subsequent OLC lawyers, Goldsmith, Bradbury backed away from it while continuing to approve EITs.
The problem with only prosecuting those CIA interrogators that went beyond the OLC advice is that it does not address the fact that the OLC advice gives a get out for actions that many continue to see as illegal. There is I believe an internal DoJ report on the ethics of the August 2002 opinions, which hasn’t yet been released. It would seem to me, however, that while the prosecution of interrogators who went beyond legal advice is right, to say nothing about the advice that went beyond the law is wrong. Questions remain.