The CIA and the Statute of Limitations

I’ll try to make this short…last week I wrote about my concerns over the naming of a special federal prosecutor to re-examine the use of Enhanced Interrogation Techniques by the CIA. I have appeared on several radio shows since the article posted here at Big Hollywood and I was pleased to see over weekend former Vice President Dick Cheney say in a more articulate fashion almost every point I raised in the article EXCEPT one.

Today my point is the LAW. I touched on it briefly in the article but no one seems to be discussing the LAW. Many on the left and maybe even some on the right are applauding the decision by Attorney General Eric Holder to name a special prosecutor. I only have one question: What crimes were committed? Those supporting the decision to name a prosecutor say, “torture.”

The federal statute can be found in Title 18 chapter 113C of the Federal Criminal Code and Rules. Section 2340 defines torture. Section 2340A says:

Whoever outside the United States commits or attempts to commit torture shall be fined under this title or imprisoned not more than 20 years or both, and if death results to any person from conduct prohibited by this subsection, shall be punished by death or imprisoned for any term of years or life.

According to John Helgerson, who prepared the 2004 inspector general report for the CIA, the most egregious case was that of Abdul Wali, an Afghan suspected of rocket attacks on military bases. Wali died after four days in custody. A CIA contractor, David Passaro, was convicted in federal court of assault for the techniques he employed in June, 2003 during the interrogation.

Federal career prosecutors have already reviewed the 2004 report and concur only one criminal case warranted prosecution. I can only assume there were no other situations warranting the death penalty. Every pundit seems more concerned with the water-boarding and “threats” to Abu Zubayda, Khalid Shaikh Mohammed (KSM), and Abd al-Rahim al-Nashiri, none of whom died from the interrogations.

The Statue of Limitations for federal offenses is spelled out in Title 18 Section 3282:

Except as otherwise expressly provided by law, no person shall be prosecuted, tried, or punished for any offense, not capital, unless the indictment is found or the information is instituted within five years next after such offense shall have been committed.

In other words, unless someone was killed all prosecutions must be brought within five years. Math was never my strongest subject but the report came out in 2004. Obviously the incidents occurred earlier and it’s now 2009. To prosecute anyone the offense must have taken place after August, 2004 otherwise the Statute of Limitations has run. KSM was captured on March 1, 2003; Abu Zubayda in March 2002; and Abd a-Rahim al-Nashiri in 2002. Even assuming some interrogator violated the law prior to that date, he can’t be prosecuted. So why the need for a “special prosecutor” to review what career federal prosecutors have already studied?

Maybe I’m missing something but this sure looks like a political move designed to distract the masses, embarrass the prior administration, and destroy morale at the CIA.

Prove me wrong.