Despite his clear declaration during his confirmation hearing that "waterboarding" is torture, new Attorney General Eric Holder Jr. has seemed reluctant to order criminal probes into alleged rough treatment of detainees during the Bush presidency. His rationale: CIA interrogators who used the simulated drowning technique believed the Justice Department had given them the green light.
But one particular case could leave Holder with little choice: that of Mohammad al-Qatani, a Guantánamo detainee and alleged 9/11 conspirator who was in U.S. military—not CIA—custody. Last month, Susan Crawford, the convening authority for the U.S. military commissions, told The Washington Post that she refused to bring charges against Qatani because his interrogations "met the legal definition of torture." (Crawford, who last week also withdrew charges against accused USS Cole bomber Abd al-Rahim al-Nashiri, did not respond to requests for comment. A Pentagon official said her comments about Qatani were her "opinion.") According to a senior Justice Department official, who asked not to be identified in order to speak candidly, Holder believes Crawford's comments can't be ignored and he's "wrestling" with what to do about it. One option, the source said: dispatch FBI agents to grill Crawford.
Government lawyers, though, are worried about how such a move would affect the more sweeping review of Gitmo detainees ordered by President Obama, which Holder will oversee. More than 30 "high value" detainees at Gitmo were subjected to similar "enhanced" interrogation techniques—such as cold temperatures and sleep deprivation—as Qatani. A criminal probe of Qatani's treatment could complicate efforts to bring the others to trial. In the meantime, Holder has directed aides to begin the process of releasing a trove of secret Justice memos regarding Bush interrogation policies. The memos, long sought by Congress, could be disclosed within "weeks," said the Justice official. "The American public deserves to know what was done in their name."