Abuse cases in a legal twilight

Almost six months ago I sat in a courtroom in Raleigh for three days listening to lawyers from the U.S. Department of Justice present evidence in the trial of former CIA contractor David Passaro. At the end of that trial Passaro was convicted of four counts of assault for beating Abdul Wali, an Afghan detainee at a U.S. Army base in Asadabad, Afghanistan.

Passaro was supposed to be interrogating Wali. In the course of that interrogation, Passaro kicked Wali in the groin and repeatedly beat him, at times with a metal flashlight, over a period of two days. By the third day Wali was dead.

On Tuesday, U.S. District Court Judge Terrence Boyle sentenced Passaro to eight-plus years in prison for the beating.

The case is unusual, but not in the way you might think. Passaro is not the only person on the CIA's payroll involved in detainee abuse. Human Rights First has documented five cases, including Wali's, in which CIA operatives were involved in serious abuse of detainees in U.S. custody.

In each of those cases, the detainee died. Passaro, though, remains the only individual connected with the CIA to be held accountable for detainee abuse.

The CIA's inspector general has referred the cases of eight CIA agents to the Department of Justice for investigation and possible criminal prosecution. Yet no charges have resulted from these referrals. In response to queries from U.S. Sens. Patrick Leahy and Dick Durbin asking why there has been a failure to prosecute CIA agents, the Justice Department has cited problems with collecting evidence and delays caused when cases involve both military and civilian suspects.

Admittedly there may be larger hurdles in collecting evidence overseas, and cases over which both the military and civilian prosecutors have jurisdiction may take longer. But as time ticks by, the failure to fully investigate and prosecute CIA agents sends the message that they have little to lose for violating the law. In fact, they may be getting quite the opposite message.

The earliest known case in which a detainee died in CIA custody -- at the secret "Salt Pit" prison in Afghanistan -- took place in November 2002. A CIA case officer allegedly ordered that an Afghan prisoner be stripped naked, chained to a floor and left outside in the freezing night. The detainee died; the CIA officer was promoted.

The record so far creates the wrong set of incentives: CIA agents may come to expect impunity, not accountability.

Although the conviction and sentencing of Passaro by a U.S. court is welcome, the CIA and the Department of Justice have a long way to go to ensure that such abuses do not happen again. Two key steps they should take are: to hold all CIA agents implicated in the abuse of detainees accountable, and to clarify that, under the law, CIA personnel are prohibited from conducting abusive interrogations.

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The need for a clear statement by the CIA and the Justice Department that the abuse of detainees will not be tolerated is especially critical now. Last summer President Bush forcefully advocated a CIA exemption from criminal liability under the War Crimes Act. Congress rejected this extreme position, led by three Republican senators, John Warner, John McCain and Lindsey Graham. But Bush continues to insist that the CIA may secretly detain people and interrogate them with an "alternative set of procedures."

The president has sent mixed messages. He claims these procedures, which Congress has not authorized, are lawful, but has refused to disclose them. Both U.S. and international laws against torture and other cruel and inhuman treatment are clear, however, and they contain no exceptions. Like military interrogators, CIA agents are barred from violating the legal prohibitions against torture and mistreatment.

Until all violators of the prohibition against torture and mistreatment are held to account for their actions, and unless the CIA and Justice Department clarify that CIA agents are bound by the same laws as everyone, detainee abuse is likely to continue.

(Priti Patel is an associate attorney with Human Rights First, an advocacy group based in New York City.)