The declination: An advance pardon for torture.

The declination: An advance pardon for torture.

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.

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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.

The proposed advance declination in the Abu Zubaydah case is also disturbing. Had it been signed, it would have been a virtual license to torture, a "get out of jail free" card. According to the OPR report, the DoJ criminal division refused to sign any advance declinations on policy grounds, but the very fact the CIA asked for one is significant. Notably, the proposed advance declination was discussed in early 2002, months before the infamous White House "torture memos" were drafted. The timing seriously undercuts Bush administration accounts of the origins of the CIA's interrogation program (for instance, this account). For years, Bush officials have suggested (see here and here) that interrogation techniques were utilized only after a thorough and objective legal review by White House lawyers, culminating in the two torture memos in August 2002. It now appears that the infamous memos—which even Bush's own OLC later dismissed as twisted and erroneous—were drafted only after the criminal division refused to provide advance declinations to the CIA. So the CIA first asked for criminal immunity for interrogations. Then, after the criminal division refused to provide advance immunity, the CIA demanded that OLC lawyers write memos justifying the same acts. Does that suggest that the memos were drafted in bad faith?

Why did the CIA go to such great lengths to protect officers, including those responsible for Rahman's death? The Associated Press didn't mention the name of the officer responsible for Rahman's death, but as you can go ahead and read for yourself in the obscure footnote above, his last name begins with "Z." From my own investigative work, I can state here that his supervisor's first name begins with "P." (To avoid the CIA's wrath I have refrained from revealing either officer's full name here.) [Update, April 2, 2010: In an interesting development, since the publication of this post, the original version of this document has been reloaded and reference to "Z" redacted.]

 "Z" and "P" are very much beloved in the agency. "Z" was not only cleared in the Gul Rahman death, he was promoted to other positions in the CIA's Near East and South Asia division and later served the Counterterrorism Center. "P" was promoted to the Iraq Operations Group and later served as CIA station chief in Baghdad and then as a deputy in the Near East and South Asia division—a very high-level post. No surprise the CIA went to bat for its guys.

Of course, no one seriously thinks accountability means going after ordinary CIA officers. This is one thing that right-wing commentators and human rights advocates can agree on: Officers like "Z" and "P" shouldn't be left holding the bag for the misdeeds of their superiors.

Yet one of the oddest aspects of Attorney General Eric Holder's policies on accountability for Bush-era abuses has been his prosecutorial focus on rank-and-file CIA officers who exceeded now-rescinded authorizations-to-torture, instead of focusing on higher-level officials and lawyers who actually authorized torture. The circumstances of the death of Gul Rahman reminds us that Obama's Justice Department would do better to focus on the true wrongdoers: lawyers and the White House officials who appear to have conspired—using legalistic devices like declinations—to evade the protections of U.S. law.

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