- The Washington Times - Sunday, October 31, 2010

If Republicans on Tuesday win the majority of seats in the House, that body’s intelligence panel is likely to give fresh oversight of the Obama administration’s prosecution review of the CIA’s enhanced interrogation program.

Rep. Peter Hoekstra of Michigan, the highest-ranking Republican on the House Permanent Select Committee on Intelligence, told The Washington Times last week that he would expect the next Republican chairman of the committee to hold hearings on how the threat of prosecutions has affected the CIA’s morale.

“I expect vigorous oversight of this administration now,” Mr. Hoekstra said. “What has been the impact of [Attorney General Eric H.] Holder’s review of potential prosecutions of CIA folks involved in interrogation program? What has been the impact in the field?”

He added that a review would look at the administration’s handling of the closure of the U.S. military’s detention center at Guantanamo Bay, Cuba.

Spokesmen for the Justice Department and the CIA offered no comment.

On Aug. 24, 2009, the Justice Department launched a review of whether CIA officers interrogating terrorism suspects overseas violated U.S. criminal law.

The decision was based in part on a 2004 CIA inspector general report on what is known as the enhanced interrogation program, which included a network of overseas prisons where CIA officers and U.S. contractors questioned captured terrorism suspects.

At the time, Mr. Holder said his review of the CIA inspector general report, which the White House later declassified in part, prompted him to launch the probe.

“As a result of my analysis of all of this material, I have concluded that the information known to me warrants opening a preliminary review into whether federal laws were violated in connection with the interrogation of specific detainees at overseas locations,” Mr. Holder said.

The decision to reopen the investigation was controversial because the Justice Department under President George W. Bush had looked into some of these cases and chose not to prosecute.

Less than a month after the review was announced, seven former CIA directors wrote a letter to President Obama urging him to overrule Mr. Holder.

“If criminal investigations closed by career prosecutors during one administration can so easily be reopened at the direction of political appointees in the next, declinations of prosecution will be rendered meaningless,” they wrote. “Those men and women who undertake difficult intelligence assignments in the aftermath of an attack such as September 11 must believe there is permanence in the legal rules that govern their actions.”

Mr. Holder in his announcement said CIA officers who followed Justice Department guidance on interrogation techniques in good faith would not be prosecuted for following the legal advice of the previous administration.

He said that CIA officers “need to be protected from legal jeopardy when they act in good faith and within the scope of legal guidance.”

The legal guidance on interrogations was drafted in a series of memos after Sept. 11, 2001, by the Office of Legal Council (OLC). The OLC memos asserted that some controversial techniques such as simulated drowning, or waterboarding, did not violate U.S. and international laws prohibiting torture. In the second term of the Bush administration, the legal guidance on many of these points was reversed and revised.

Two former CIA officers interviewed for this article said the agency was concerned that the assistant U.S attorney leading the investigation, John Durham, would prosecute officers for following the OLC memos even though Mr. Holder said he would not, and that the investigation also undermined the CIA’s own internal process for disciplining its officers.

Mr. Durham was tasked in 2008 with investigating the CIA’s destruction of videotapes of the waterboarding of Khalid Shaikh Mohammed, the man widely considered the mastermind of the Sept. 11 attacks.

“I have met with CIA folks in 10 to 12 stations in the last few months,” Mr. Hoekstra said. “For them it’s real. Why is the review taking so long? Why is Holder not saying anything? It is having a chilling effect.”

If Republicans win the majority of House seats, the two leading Republican candidates for the chairmanship of the House intelligence committee would be Reps. Mike Rogers of Michigan and William M. “Mac” Thornberry of Texas. Both have questioned the prospect of prosecuting CIA officers, but neither agreed to be interviewed for this report.

• Eli Lake can be reached at elake@washingtontimes.com.

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