Jacob Sullum

In a 2004 report that was made public on Monday, the CIA's inspector general noted that "a number of agency officers of various grade levels who are involved with detention and interrogation activities are concerned that they may at some future date be vulnerable to legal action." Depending on your view of the Bush administration's "enhanced interrogation techniques," this spontaneously expressed fear shows either that the officers knew they were breaking the law or that they worried they would be punished for policy decisions made by their superiors.

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There is evidence to support both interpretations, which in the end are not mutually exclusive. Unfortunately, John Durham, the special prosecutor appointed by Attorney General Eric Holder to investigate the CIA's treatment of terrorism suspects, is not supposed to consider the culpability of higher-ups, Democrats as well as Republicans, who condoned abuse or turned a blind eye to it.

The worst example of mistreatment described in the report involved a CIA contractor who in 2003 beat an Afghan detainee to death with a metal flashlight. Because no autopsy was performed, the contractor could not be charged with homicide, but he was ultimately convicted of assault.

It seems clear that waterboarding, which involves both "severe physical or mental pain or suffering" and "the threat of imminent death," violates the federal ban on torture. But any prosecution of CIA officers for using the simulated drowning technique would be complicated by the fact that the Justice Department's Office of Legal Counsel claimed otherwise, relying on a strained, implausible reading of the statute.

The inspector general's report notes that waterboarding as practiced by the CIA went beyond the method approved by the Justice Department, involving larger amounts of water and many more applications (at least 83 for one detainee, 183 for another). But the CIA's general counsel said he received oral approval from Attorney General John Ashcroft for deviating from the original description.

Other methods mentioned in the report were never cleared with the Justice Department. By menacing a detainee with a handgun and a power drill, a CIA debriefer seems to have committed a felony, since the legal definition of torture includes "severe mental pain or suffering" caused by "the threat of imminent death." Likewise the interrogators who tried to elicit information through mock executions.

Jacob Sullum

Jacob Sullum is a senior editor at Reason magazine and a contributing columnist on Townhall.com.
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