Trial May Shed Light On CIA's Detainee Tactics

Trial may shed light on CIA's detainee tactics
In a case that could shed light on CIA interrogation practices, a veteran Miami lawyer will prosecute the government's case against an ex-CIA worker accused in the beating death of an Afghan detainee.

http://www.miami.com/mld/miamiherald/13914858.htm

BY JAY WEAVER
jweaver@MiamiHerald.com
1/20/2006

Abdul Wali was an Afghan man who U.S. authorities suspect launched rocket attacks against a military base in Afghanistan. David Passaro was an American hired by the CIA to interrogate detainees during the U.S. war in that country.

On June 21, 2003 -- three days after surrendering to military authorities -- Wali was found dead inside a U.S. detention facility in Asadabad, near the Pakistani border.

Today, Passaro, a former CIA contract worker, stands accused of beating Wali so badly with a flashlight that he eventually died. Passaro, who faces up to 40 years in prison, is the first U.S. civilian to be charged in federal court with mistreatment of a prisoner overseas.

Heading the government's case against Passaro is Michael ''Pat'' Sullivan, a veteran Miami federal prosecutor.

For Sullivan, a hardened trial lawyer known for taking down major drug defendants, the Passaro case puts him on an international stage. He has the delicate job of defending the Bush administration's controversial detainee interrogation policy while prosecuting an alleged criminal affiliated with the CIA.

Passaro's indictment on four assault charges was announced with fanfare by Attorney General John Ashcroft in Washington on June 17, 2004.

The North Carolina man was indicted just weeks after pictures were broadcast worldwide that showed U.S. soldiers smiling and joking at Iraqi prisoners at Abu Ghraib near Bagdhad, who had been stripped naked, tortured and humiliated, purportedly to extract intelligence from them. Several male and female U.S. soldiers have since been convicted on charges of prisoner mistreatment at courts-martial.

ORDERS FROM ABOVE?
Passaro's trial isn't expected to start until later this year in a North Carolina federal courtroom, but the unprecedented civilian case raises one highly sensitive question: Was Passaro, as he claims, merely following orders from superiors at the CIA? Passaro's attorney could call some powerful people to the witness stand to help his defense. Among them: President Bush; Attorney General Alberto Gonzales; former CIA Director George Tenet; current CIA Director Porter Goss.

Sullivan, along with Raleigh federal prosecutor James Candelmo, wants to stop Passaro's lawyer from ever questioning top federal officials at trial. The prosecutors have argued in court documents that it's unnecessary.

The reason: ``As government documents provided during classified discovery make abundantly clear, [the] CIA forbids its employees and contractors from engaging in the conduct for which Passaro has been charged.''

But that policy could come under intense scrutiny at trial, exposing the secretive CIA's role in the Bush administration's war on terror.

Last month, U.S. District Judge Terrence Boyle agreed to let Passaro, 39, put on some evidence at trial regarding the CIA's prisoner interrogation policy. The judge said he will then rule on whether to allow Passaro to proceed with a full-fledged defense that he was authorized by the CIA to beat Wali when he interrogated him.

By using what is legally called a ''public authority defense,'' Passaro's lawyer hopes to convince jurors of this: Superior CIA officers allowed him to beat the Afghan detainee during questioning, so he cannot be held criminally responsible for the assaults that led to his death.

If Passaro is allowed to present such classified evidence, it would possibly provide the public with a first-ever view of the CIA's prisoner interrogation policy since the Sept. 11, 2001, terrorist attacks.

DEBATE OVER TACTICS
Legal experts say the trial could be potentially explosive because the outcome might influence CIA interrogations of detainees as well as global terrorist networks.

''The trial is important, in and of itself, because of its impact on the interrogation debate,'' said Robert M. Chesney, an associate professor of law at Wake Forest University. ``It may well provide the judge with an opportunity to weigh in on the legal standards applicable to overseas interrogations.''

But legal experts said it remains to be seen whether Passaro's lawyer, Federal Public Defender Thomas McNamara, will get the opportunity to present such evidence to a trial jury. McNamara's office declined to comment.

Chesney said Passaro's best shot at acquittal might be convincing jurors that he followed orders.

''The judge may determine after the evidence is in that Passaro cannot formally rely on the public authority defense, but that does not mean the jury will not be influenced by what they've heard in the meantime,'' Chesney said.

But to date, Passaro hasn't identified in classified documents who authorized him to assault the Afghan detainee with a large flashflight, strike him with a closed fist and kick him with his foot -- or how such orders were given to him, prosecutors said.

''Passaro's public authority defense still fails because no CIA official had legal authority to authorize the acts for which Passaro has been charged,'' they said in court papers.

Passaro was indicted by the Raleigh federal grand jury after the CIA's inspector general referred his criminal case to the Justice Department. He is the only civilian, among reportedly at least eight CIA employees investigated for alleged prisoner abuse by the Justice Department, to face federal assault charges.

''There were other prisoner abuse allegations referred to the special prosecution team . . . that remain open,'' said a Justice Department official, who did not want to be identified.

Passaro is also the first civilian charged under the Patriot Act, which expanded the authority of federal prosecutors to U.S. military bases abroad.

A former U.S. Army Ranger, Passaro was working in 2003 as a CIA contract employee with a paramilitary team that hunted terrorists in Afghanistan.

IT'S `POLITICAL'
He has said the federal assault charges stemming from the Afghan detainee's alleged beating are politically motivated. He considers himself a ``scapegoat.''

''They needed to make an example out of somebody,'' Passaro told The Raleigh News & Observer during a jailhouse interview in October. ``After Abu Ghraib, they had to take the focus away from the Department of Defense and [Defense Secretary] Donald Rumsfeld. That's what makes this whole thing political.''

The CIA has reportedly been implicated in at least four deaths of detainees in Afghanistan and Iraq, yet the Justice Department has brought charges against only one civilian, Passaro, notably not a CIA officer.

One possible explanation for the sole CIA prosecution is the Bush administration's narrow definition of torture. A 2002 Justice Department memo defined torture during interrogations this way: It causes pain equal to what a person experiencing death or organ failure might suffer.

Last year, the CIA's director, Goss, a former Florida congressman, testified that ''we don't do torture.'' The agency's press office issued a statement, saying,``CIA policies on interrogation have always followed legal guidance from the Department of Justice.''

If that is true, Passaro's trial could be far-reaching.

''Politically, it really is significant,'' said Richard E. Myers II, an assistant professor at the University of North Carolina School of Law. ``If CIA officials come to court and say no one has this authority -- that's a very broad statement that will have an effect on people around the world.''