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The man who holds the CIA accountable doesn't

Published January 29, 2006

After Chief Warrant Officer Lewis Welshofer Jr. asphyxiated a high-level Iraqi detainee by stuffing him head-first into a sleeping bag, wrapping him with electrical cord and using suffocation techniques on him during interrogations, he was charged with the man's murder.

Earlier this month, Welshofer was convicted of the lesser charge of negligent homicide and sentenced by a military jury to a $6,000 fine and 60 days confined to the barracks.

It was a loud message that we don't take the abuse of prisoners very seriously. But at least Welshofer had to answer for his actions.

According to both the New York Times and Washington Post, the CIA also had a hand in Iraqi Maj. Gen. Abed Hamed Mowhoush's failing condition. One CIA contract worker, if not more, assisted in severely beating Mowhoush two days before he died. But no charges have been filed for those transgressions.

It's a persistent problem. The military guys take the fall while the men-in-black slither into the shadows with no one holding them accountable.

Currently, one man decides whether to criminally prosecute CIA operatives and civilian contractors for detainee abuse: Paul McNulty. And so far, he has found no one worthy of pursuit.

Before McNulty was named the U.S. Attorney for the Eastern District of Virginia, he was a key staffer on the impeachment of President Clinton and led the transition team after the 2000 election for President Bush's Justice Department. In 2001, he was given his current post, despite never having tried a case.

Now McNulty is being kicked upstairs. He's up for the post of deputy attorney general, the No. 2 honcho at the Justice Department. Some senators have expressed relief at McNulty's nomination since he took the place of Timothy Flanigan, a former deputy White House counsel who had an active role in drafting the administration's torture policy. Flanigan withdrew after his associations with discredited lobbyist Jack Abramoff came to light.

But before McNulty slides through his Senate confirmation, he needs to answer some tough questions at his hearing before the Senate Judiciary Committee on Wednesday. Primarily, why is he letting the CIA get away with murder?

McNulty was enlisted in 2004 by then-Attorney General John Ashcroft to supervise all the detainee abuse cases that were referred to the Justice Department for possible prosecution. Up until that point, only one civilian had been charged with prisoner abuse and that indictment came out of a U.S. Attorney's office in North Carolina.

A CIA contract worker, David Passaro, was accused of beating an Afghan prisoner so savagely with a heavy flashlight that the man begged to be shot and died a few days later. Since charges against Passaro were brought, all such cases were moved to McNulty's jurisdiction. And since then, not a single indictment has been issued.

A letter from the Justice Department to Sen. Dick Durbin, D-Ill., confirms that 19 abuse cases have been referred to McNulty's office, but it refuses to give any details. Press reports indicate that one case involves a CIA officer in Afghanistan who allegedly ordered a prisoner stripped and left outside to freeze during the night. The man died of hypothermia. In another, a prisoner in Iraq died in the shower room at Abu Ghraib while being questioned by a CIA officer and a contract interrogator. He was found with his hands tied behind his back shackled to a high window.

McNulty has been reviewing some of these cases for more than a year, and you have to wonder what's taking so long. The only word from the Justice Department is that two of the cases have been closed with no indictments. Beyond that it's keeping mum.

Maybe the problem is that it's difficult to prosecute a CIA officer for exposing a prisoner to extreme temperatures when that method is listed as acceptable under the Bush Administration's torture-lite regime?

Or maybe McNulty is being a good soldier by keeping these horrific cases out of the public eye?

What is scary about McNulty's promotion is that both he and Attorney General Alberto Gonzales seem disinterested in keeping the CIA operating within the law. Gonzales famously shepherded a legal memorandum that shielded CIA agents from criminal prosecution if they severely abused prisoners. McNulty hasn't found a single CIA abuse case that rises to the level of a crime, despite the fact that many in the military who have been prosecuted were working alongside CIA and contract interrogators.

McNulty has many fans who say he will be a fine deputy attorney general. But before he becomes the supervisor of all U.S. Attorneys, the department's criminal division and the FBI director, he has some explaining to do.

[Last modified January 28, 2006, 00:32:03]

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