No Comment — April 2, 2010, 2:39 pm

Disappearing Act

On Monday, in a post entitled “Inside the Salt Pit,” I noted that the identity of the CIA agent who managed the Salt Pit at the time of Gul Rahman’s death in 2003 was, perhaps inadvertently, disclosed in filings submitted on behalf of Judge Jay Bybee to the Justice Department, which were posted at the Judiciary Committee’s website. As Jane Mayer notes at the New Yorker, the page with the disclosure has now been modified and the name redacted. This vanishing act achieves very little in fact, since the page exists in thousands of copies. But it does suggest the Agency’s zeal in “disappearing” unpleasant facts.

The Bybee letter gives us a glimpse at how the Justice Department handled a matter which offered every prospect of embarrassing them. Here’s how Mayer describes it:

The Bybee document reflects arguments made by lawyers in the Bush Justice Department, who held that, despite Rahman’s death, the “manager of the Saltpit site” should not be prosecuted for torture, because he lacked the requisite criminal intent. According to the Bush Administration’s interpretation, the site manager had not intended for Rahman to “suffer severe pain from low temperatures in his cell,” and was therefore not criminally liable for the accidental death.

Note that the declination, issued by politically loyal U.S. attorneys who were subsequently rewarded with high postings at Main Justice, carefully follows the rationalizations that Yoo and Bybee advanced for not prosecuting deaths or serious physical harm resulting from state-sanctioned torture. But the obvious problem, as John Sifton notes at Slate, is that torture and homicide are hardly the only charges that could be brought in such a circumstance. Negligent homicide or milder abuse charges would have obviously been available, and a survey of comparable cases in the setting of state and local prisoners suggests that they are far more common. By looking only at homicide and torture, the prosecutors were paving the way for a decision not to charge. But the zeal shown by the Eastern District prosecutors in closing the book is striking, and worthy of independent scrutiny. I stress that the big story here doesn’t really focus on the CIA. The more worrisome miscreants were at the Justice Department itself.

Jeff Stein offers a fresh take on all these developments in the Washington Post.

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