The Associated Press August 05, 2006
Ex-CIA contractor David Passaro to stand trial in Afghan beating
By Estes Thompson
RALEIGH, N.C. - In the weeks after the Abu Ghraib prison scandal stunned Iraq, a story emerged from Afghanistan about a CIA contractor named David Passaro, a former Special Forces medic accused of beating an Afghan detainee so severely that he later died.
More than three years later, after several soldiers working at Abu Ghraib have been sentenced to prison, Passaro will finally stand trial when jury selection begins Monday - in a civilian court in his home state of North Carolina. He is the first, and so far only, civilian to be charged with mistreating a detainee during the U.S. wars in Iraq and Afghanistan.
To bring charges against Passaro, who as a civilian isn't subject to military justice, prosecutors turned to the USA Patriot Act, arguing the law passed after the Sept. 11 terrorist attacks allows the government to charge U.S. nationals with crimes committed on land or facilities designated for use by the U.S. government.
When U.S. District Court Judge Terrence Boyle agreed last year, prosecutors received a license to enforce the nation's criminal laws in "any foxhole a soldier builds," said Duke University law professor Scott Silliman.
"Until 2005, Passaro ... was unreachable in federal courts," said Silliman, who runs Duke's Center on Law, Ethics and National Security. "What we're seeing is Congress moving to ensure there is criminal accountability for civilians accompanying the forces."
Silliman said the law represents a dramatic expansion of the reach of federal prosecutors, whose jurisdiction most experts believed was limited to places like embassies and consulates, and not locations like the remote U.S. base in Afghanistan where detainee Abdul Wali turned himself in to U.S. forces.
"What the Patriot Act said was that part of Afghanistan is now part of our ... jurisdiction," Silliman said. "The charge of assault is as if it had occurred in Raleigh. All you have to show it's an assault."
Neither prosecutors nor defense lawyers are willing to talk about the case, which is expected to include a significant amount of evidence considered classified by the government. Before the trial, a secure area was built inside the courthouse so lawyers could review such classified material safe from electronic eavesdropping.
"What we're seeing is a piercing of a normally very tight veil around the agency," Silliman said.
The government has said its case includes three eyewitnesses, paratroopers from the Army's 82nd Airborne Division, who will testify they saw Passaro beat Wali with his hands, feet and a large flashlight in June 2003 during two days of questioning about a series of rocket attacks on a remote firebase housing U.S. and Afghan troops in Afghanistan's mountains.
Wali later died in his cell, although Passaro isn't charged with his death. Instead, he faces two counts of assault with a dangerous weapon and two counts of assault resulting in serious injury. If convicted, he will face up to 40 years in prison.
Passaro, a 39-year-old from Lillington, N.C., has insisted he is innocent, calling the charges a "knee-jerk reaction" by the Bush administration to the Abu Ghraib scandal. To prove it, his attorneys have said they wanted to call former CIA Director George Tenet and Attorney General Alberto Gonzales, formerly the White House counsel, as part of a "public authority defense" - namely, that Passaro was following orders.
Such a defense could be a challenge. Boyle has limited the defense's access to several classified documents and e-mails Passaro wants, including a memo Passaro believes the Justice Department gave the CIA on what kind of interrogation techniques U.S. law allowed. But until Passaro shows who approved of his actions in Wali's interrogation, Boyle has ruled such documents - if they even exist - will remain off-limits.
"This is going to be a very hard sell," said Eugene Fidell, a Washington lawyer and president of the National Institute of Military Justice. "People have tried to suggest in the military cases that an environment was established that there were vague rules of engagement that allowed things to happen that everybody knew were illegal.
"The difference here is that this is a jury drawn from civilians. The whole fog of war aura is less likely to get any traction."
It's not clear if Tenet, Gonzales or any Bush Administration official will actually end up testifying, since both the prosecution and defense witness lists are among the many court documents under seal. Boyle has also upheld a government request to delay enforcing defense subpoenas of unidentified government employees until he first determines whether their testimony is necessary.
The trial comes amid a renewed focus on the actions of Americans in the Middle East. Officials are investigating allegations a group of Marines deliberately shot 24 Iraqi civilians in Haditha last November. Federal prosecutors in Kentucky have charged Stephen Green, a former member of the Army's 101st Airborne, with raping a young Iraqi girl and killing her and three family members earlier this year.
But despite the attention focused on Passaro, Abu Ghraib and the latest incidents, misconduct by Americans on the battlefield appears to be relatively rare, said John Pike, a military analyst at GlobalSecurity.org in Washington.
"How many people have we had on the ground? It's got to be half a million," Pike said. "And how many instances of indiscipline have been brought to trial - a dozen? That's not very many bad apples."
© Copyright 2006, The Associated Press
