Morning Edition, May 15, 2009 · Congressional testimony this week showed that private CIA contractors were a driving force behind harsh interrogations. Although there are lawsuits against military contractors involved in detainee abuse, there has been far less legal action against contractors who worked for the CIA.
American Civil Liberties Union attorney Ben Wisner believes this is largely because of the secrecy that has surrounded the CIA's interrogation and detention program.
"There simply have not been a lot of lawsuits related to the CIA's torture program against either the CIA or its contractors, because courts have almost universally been shutting these lawsuits down on the basis of overbroad secrecy claims made by the CIA," says Wisner.
President Obama and Attorney General Eric Holder have said CIA agents who followed the Justice Department's legal advice won't be prosecuted criminally, but they have said nothing about contractors.
Criminal or civil lawsuits against CIA contractors would present their own unique legal challenges.
In 2006, Congress passed a bill called the Military Commissions Act that includes a provision immunizing contractors from lawsuits. Some lawyers believe that provision is unconstitutional, but no court has weighed in on the law.
The Justice Department memos defining torture are silent about contractors. At a congressional hearing Wednesday, subcommittee Chairman Sheldon Whitehouse (D-RI) asked Georgetown Law professor David Luban about the omission.
"I don't recall any specific mention of private contractors" in the memos, said Luban.
"I don't recall it either," replied Whitehouse, "and it would seem that might raise legal issues. It's interesting that would be a fact in the lengthy opinions that never appears to have surfaced."
When Leon Panetta took charge of the CIA a few months ago, he banned contractors from interrogating detainees. Director of National Intelligence Dennis Blair talked about the decision at a roundtable with reporters.
"It seems to me that those who do these sorts of interrogations of the most important detainees should be government employees," said Blair. "They shouldn't be contractors; they should be highly trained — very supervised."
The full significance of the decision to bar contractors from CIA interrogations was not immediately clear. Then on Wednesday, a former FBI interrogator testified that CIA contractors were the people on the ground who pushed hardest for abusive interrogations in 2002.
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