New York Times (9.16.06).

The Question of Liability Stirs Concern at the C.I.A.

By SCOTT SHANE

WASHINGTON, Sept. 15 — Behind the debate between Congress and the White House over the proper treatment of terror suspects is an old fear at the Central Intelligence Agency: that officers could be vulnerable to lawsuits, or even criminal prosecution, for actions they believed at the time complied with administration policy.

Legislation proposed by the White House would address that concern head-on by offering retroactive protection for some actions taken since the Sept. 11 terrorist attacks. Specifically, it would amend the War Crimes Act to prohibit only certain “serious violations” of a provision of the Geneva Conventions, including torture, murder and other clearly unsanctioned acts.

The distinction is a crucial one, because the War Crimes Act prohibits any violation of Common Article 3 of the Geneva Conventions, which outlaws “outrages upon personal dignity” and “humiliating and degrading treatment.” In view of the Supreme Court’s ruling in June that Common Article 3 applies to all interrogations of terror suspects, some harsh techniques used by C.I.A. or military officers since 2001 could be viewed as illegal under the existing law.

The plan favored by the White House bans what it defines as “serious violations of Common Article 3,” including murder, torture and the use of biological experiments. The alternative favored by a group of Republican senators led by Senator John W. Warner of Virginia, chairman of the Armed Services Committee, does not introduce any such distinction.

The two plans also differ in their treatment of past abuses. The White House plan would be retroactive to Sept. 11, 2001, while senators working with Mr. Warner say their approach avoids dealing with past events because of legal and constitutional concerns. The senators say they believe that past abuses should be reviewed case by case.

A. John Radsan, assistant general counsel at the C.I.A. from 2002 to 2004, said he thought the legal exposure for officers involved in capturing and interrogating suspects since 2001 was not as great as some feared. But Mr. Radsan said he understood their concern.

“Their perspective is that they got authorization, they got legal advice and they did the difficult, dirty work of the war on terror,” said Mr. Radsan, now at the William Mitchell College of Law in St. Paul. “They think they should not suffer because someone changed the rules.”

Mr. Radsan and other legal experts said Friday that it was highly unlikely that intelligence officers could be prosecuted in American courts for their actions in interrogating terror suspects. Similarly, they said, lawsuits filed by former prisoners would probably face insurmountable hurdles in American courts.

But some said future investigations by Congress or a C.I.A. inspector general were quite possible and could bring the daunting prospect of high legal fees or devastating news coverage.

Nearly 100 terror suspects have spent time in C.I.A. custody since the Sept. 11 attacks, President Bush acknowledged publicly last week, when he announced the transfer of the last 14 of them to military custody in Guantánamo Bay, Cuba.

Mr. Bush has defended the interrogation program and has said it should not be disbanded, but he has said his legislation is necessary to provide clear legal guidelines to interrogators. Within the C.I.A. and the military, concern about possible repercussions against interrogators has increased since 2004, when disclosure of the abuses at Abu Ghraib prison in Iraq and elsewhere prompted a tightening of the guidelines on interrogation.

The first such step came in December 2004, when the Justice Department formally withdrew a controversial 2002 legal memorandum, intended primarily as a guideline for the C.I.A. interrogation program, that had defined torture as treatment leading to organ failure.

Last December, over White House objections, Congress passed an amendment proposed by Senator John McCain, Republican of Arizona, that explicitly outlawed “cruel, inhuman and degrading” treatment of prisoners. Finally, in June, the Supreme Court ruled that Common Article 3 of the Geneva Conventions, contrary to what the administration had argued for nearly five years, did apply to all prisoners captured in the campaign against terrorism.

With the possibility that the Democrats could win control of one or both houses of Congress in the November elections, the prospect of aggressive, public investigations of detainee treatment also looms.

Jack L. Goldsmith, a law professor at Harvard who served in the Defense Department and the Justice Department under Mr. Bush, said the shifting legal atmosphere made fear of criminal or civil liability on the part of C.I.A. and military personnel “a completely genuine concern, even if it seems far-fetched.”

Suzanne Spaulding, a former assistant general counsel at the C.I.A., said agency officers could face legal liability abroad. Ms. Spaulding said some countries had asserted jurisdiction over war crimes committed anywhere in the world. And C.I.A. officers involved in the seizing of a Muslim cleric in Milan in 2003 faced an arrest order in Italy.

A C.I.A. spokesman, Mark Mansfield, acknowledged officers’ concerns about possible legal troubles, but he said those concerns should not be exaggerated.

Mr. Mansfield said, for example, that while many C.I.A. officers, including polygraph examiners, members of promotion boards and interrogators, had long had professional liability insurance, he had seen no evidence of a recent increase in purchases of such insurance, the cost of which is reimbursed by the agency.

“It is fair to say that C.I.A. officers are mindful of these situations and developments,’’ Mr. Mansfield said, “but it’s unwise to make generalizations or sweeping statements about levels of concern. That said, we have a very important mission to carry out — helping to protect the country — and that has been and continues to be the paramount concern.”