The declination: An advance pardon for torture.

The law, lawyers, and the court.
March 29 2010 1:07 PM

The Get Out of Jail Free Card for Torture

It's called a declination—just ask the CIA.

Gulbuddin Hekmatyar. Click image to expand.
Gulbuddin Hekmatyar of Hizb-i-Islami

On Sunday, Adam Goldman of the Associated Press broke new details about a 2002 torture-homicide of an Afghan CIA detainee at the infamous "Salt Pit" near Kabul, one of several that occurred in CIA custody from 2002 to 2004. The new report raises questions about the investigation of the death and about accountability generally for past CIA abuses.

The Washington Post first reported on the homicide in 2005, but until now it was only known that the man killed was an Afghan and that he had possibly died of exposure to cold. AP now reveals his name—Gul Rahman—and that he had been through several weeks of interrogation when, shackled and half-naked, he died of hypothermia early in the morning of Nov. 20, 2002. We also learn that Rahman was not a member of al-Qaida, but rather an Afghan insurgent in Hizb-i-Islami, a mujahedeen group headed by the warlord Gulbuddin Hekmatyar. (Ironic twist: Hekmatyar's group received hundreds of millions of dollars in CIA assistance in the 1980s; it was one of the CIA's most favored mujahedeen groups. It's also in the news now for offering Karzai a peace plan.)

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The facts of Rahman's death suggest at least a negligent homicide, but as AP reports, it appears no one was ever punished for Rahman's death. Why not? The answer may lie with an obscure word in a little-noticed footnote in a recently declassified memo sent to a Department of Justice Office of Professional Responsibility. Page 29, Footnote 28 of the memo, submitted in 2009 by lawyers for former administration lawyer Jay Bybee, refers to a "declinationmemorandumprepared by the CIA's Counterterrorism Section regarding the death of Gul Rahman."

The word pops up in other sections of the OPR report and other declassified documents, also in the context of interrogations. On Page 38 of the OPR report, one can read about the CIA in early 2002 asking for an "advance declination" from the criminal division of the Justice Department, for proposed interrogation techniques for Abu Zubaydah, the CIA's first detainee, including mock burial, binding in painful positions, deprivation of sleep for multiple days, being thrown into walls, and water-boarding. Marcy Wheeler lists on Emptywheel other documents in which lawyers discuss "declination letters," "pre-activity declination memos," and "declination decisions" in the context of proposed interrogations of other so-called high-value detainees (see one example here).

What's a declination? The answer—in the context of the CIA, torture, and homicides—is troubling. The word declination in law is similar to the word indulgence in Catholicism; it's about avoiding eternal damnation by obtaining forgiveness for your sins.

Declinations are typically used in garden-variety criminal cases when potential defendants who have survived investigation wish to confirm that they won't be indicted. An attorney for a business client might seek a declination from DoJ in the context of a tax case. With, say, a client under investigation for using a dodgy tax shelter, a lawyer might say: "Hey, let's ask the prosecutors about you, if they're formally declining to prosecute, we'll get something in writing—a declination letter—and you can sleep at night." (Declinations to prosecute can also be part of plea agreements.) The business is somewhat shady: The very fact a client needs a declination letter can suggest legal shenanigans occurred. Prosecutors can still choose to indict later if new facts emerge, but the declination itself, once given, serves as exculpatory in the hands of a good defense attorney.

In the context of interrogation, torture, and homicide, the word becomes even more sinister. The declination memo "regarding Gul Rahman's death" was essentially an after-the-fact blessing for Rahman's killer, in the form of a memo stating that DoJ would not prosecute the officers responsible. It is clear from Page 95 of the OPR report that in several cases (perhaps this one included) the criminal division of DoJ provided declinations in cases of detainee abuse, thus giving individual officers de facto immunity from criminal prosecution. Even if the DoJ later decides to prosecute—and the Obama DoJ in fact announced in 2009 that it was reopening investigations into several CIA cases—an earlier declination can be used by defense counsel as a partial shield. To this day, not a single CIA officer has been prosecuted for detainee abuse (although a CIA contractor assigned to a military unit in eastern Afghanistan was prosecuted for assault in a case that occurred in 2003). The Gul Rahman case suggests that declinations may have been handed out not as objective conclusions from the DoJ criminal division but as after-the-fact immunities—almost like pardons.

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