DOJ Prosecutor Investigates Interrogation Abuses

U.S. Attorney General Eric Holder has announced the Justice Department is opening a criminal investigation into the treatment of prisoners held by the CIA. The department released portions of a 2004 CIA internal report detailing some of the interrogation techniques. Some of the actions directly violate anti-torture laws. Scott Silliman, professor of law at Duke University and executive director of the Center on Law, Ethics and National Security, talks with Steve Inskeep about what a criminal investigation might achieve.

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RENEE MONTAGNE, host:

This is MORNING EDITION from NPR News. I'm Renee Montagne.

STEVE INSKEEP, host:

And I'm Steve Inskeep. Good morning.

We know more now about CIA interrogations. Americans looking for information about al-Qaida threatened, beat and choked their prisoners, as we're hearing in detail elsewhere in today's program. Right now, we're going to look at the law. That will be the concern of a prosecutor named to exam the CIA interrogations. Scott Silliman is professor of law at Duke University and Executive Director of the Center on Law, Ethics and National Security. He's going to try to talk us through this.

Good morning, sir.

Professor SCOTT SILLIMAN (Law, Duke University): Good morning, Steve.

INSKEEP: All right. We know what was done, and we also know that in many cases government lawyers approved it in advance. So how does a prosecutor go about deciding who's legally responsible for a crime, if any, in these interrogations?

Prof. SILLIMAN: Steve, I think what Mr. Durham will be looking for are those cases where what was done by the interrogator or the briefer actually exceeded the guidelines that were provided by the Department of Justice. So to that extent, it's going to be a very narrow scope of his inquiry - looking for those cases, again, where there was a technique that was not specifically approved in the Department of Justice memos.

INSKEEP: And when you say Mr. Durham, of course, you're referring to the assistant U.S. attorney who will be the special prosecutor.

Now, you mention those Justice Department memos. I'm curious if it is possible that a Justice Department lawyer could be prosecuted for saying that torture or some form of torture was legal, when in fact, a reasonable person would argue that it was illegal.

Prof. SILLIMAN: I think not, Steve. The scope of this inquiry, approved by the attorney general, seems to be focused only on the interrogation sessions themselves. What was done while the detainees were being asked questions and the techniques used. We don't believe that the scope of the inquiry will extend to John Yoo or Dan Levin or Jay Bybee, those who were in the Department of Justice Office of Legal Counsel who actually authored those memos.

INSKEEP: Although, wait a minute. I mean, there was a detainee here who was waterboarded 183 times. According to this report, CIA officials didn't think that waterboarding was going to work, even if, or unless it was only used very sparingly.

The CIA's report says interrogators asked to stop waterboarding and had, quote, "substantial pressure from headquarters to continue," that they were ordered by higher ups to do so. Are you saying this investigation is set up in such a way that the higher ups would not be exposed to any scrutiny for that?

Prof. SILLIMAN: I'd be very surprised, Steve, if this particular inquiry by John Durham extends to either very high level CIA officials like George Tenet or Jim Pavitt, who was the DVO, or even into other government officials. I think it's going to be a very narrow focus. And because of that it's very unpopular on Capitol Hill. The Democrats are very upset that it's not going far enough. And the Republicans are upset that this inquiry's even going on.

INSKEEP: Why would there be a narrow focus? Is there a legal justification for that? Is that just because President Obama had really been hoping to move on? What?

Prof. SILLIMAN: Steve, there is, in statute, in the Detainee Treatment Act that was passed back in 2005, a defense that Congress built in with regard to CIA interrogators, and said that if they were relying on good faith reliance upon the advice of counsel then that would be a defense to any civil or criminal action. So the Department of Justice memos that we've been talking about - the ones by John Yoo and the others - if, in fact, the CIA interrogator said he relied on what the Department of Justice said they could do, then that would make him immune from prosecution and you could not successfully prosecute him.

INSKEEP: I just want to come back. We've just got a few seconds. I want to close the circle. You said that the Justice Department people seem to be immune from this, even if they were the people who approved the actions. If a Justice Department lawyer, because he was a Justice Department lawyer, wrote a memo saying it was ok to kill someone would it then be ok to kill someone?

Prof. SILLIMAN: Well, he didn't say it's ok to kill someone, Steve. I don't think (unintelligible)…

INSKEEP: Ok. Fair enough.

Prof. SILLIMAN: …into the memos. But, again, this, from what we understand, is going to be more narrowly focused and will not extend to the Justice Department lawyers. They are being subject to another inquiry, which is more administrative.

INSKEEP: Ok. Mr. Silliman, thanks very much.

Prof. SILLIMAN: Ok. My pleasure, Steve.

INSKEEP: Appreciate your insights.

Scott Silliman is a professor of law at Duke University. He is also executive director of the Center on Law, Ethics and National Security.

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