AMY GOODMAN: The Justice Department’s ethics office has recommended the attorney general reopen and pursue nearly a dozen CIA prisoner abuse cases, this according to the New York Times. The move would reverse Bush administration policy, which had closed the cases, and could expose CIA employees and contractors to criminal prosecution.

The Times reports the recommendation by the Office of Professional Responsibility was recently presented to Attorney General Eric Holder. Holder is also expected to announce within days his decision on whether to appoint a prosecutor to conduct a new investigation into prisoner abuse.

The ethics recommendation comes as the Justice Department is scheduled today to disclose a long-suppressed 2004 report by the CIA’s inspector general detailing prisoner abuse. Among the findings are that CIA interrogators staged mock executions on prisoners. The federal law banning the use of torture expressly forbids threatening a detainee with “imminent death.” The report also describes how one prisoner, suspected USS Cole bomber Abd al-Rahim al-Nashiri, was threatened with a handgun and an electric power drill during the course of CIA interrogation.

Newsweek magazine first reported details from the report on its website Friday night. Michael Isikoff is the investigative correspondent for Newsweek. He joins us on the phone from Washington, DC.

What did you learn, Michael? What did you report on this report that’s expected to come out today?

MICHAEL ISIKOFF: Well, we got some of the details of what’s going to be in the report, particularly on this matter of mock executions, that the CIA staged mock executions of detainees. In one case, it had — it shot a gun in a room next to one detainee, making — in an effort to have that detainee believe that the detainee in the next room was being executed. In other instances, a gun was brandished in front of a detainee, Abd al-Rahim al-Nashiri, an accused architect of the Cole bombing, and also a power drill was brought in and turned on close to his head in an effort to intimidate him, make him think that he was going to be drilled or shot.

And the issue here is, none of these techniques were authorized by the Justice Department legal memos, those memos that have been so controversial, and a ethics — internal ethics report by the Justice Department, to come out soon, will say were badly flawed and possibly unethical on their face. But these techniques went beyond what was in the legal memos, so they raise a whole set of new legal issues that are going to be addressed in the next few days.

AMY GOODMAN: Michael Isikoff, what are these legal issues?

MICHAEL ISIKOFF: Well, as — a federal torture law does forbid anybody from threatening a detainee with imminent death. So, one obvious question with mock executions and brandishing a gun and a power drill is, was the intent here to threaten that detainee, in this case Mr. Nashiri, with execution? That seems to be what is being talked about, and it is hard to know on its face how that squares with the federal prohibition on torture, which does include that language about imminent death. So that’s one on its face.

There’s also a whole host of other questions about detainee deaths and treatments that — and interrogations that, in other respects, went beyond the guidelines. We know from the memos that have already been released, the Justice Department memos, that in some instances the waterboarding was found by the inspector general to go — to be excessive and beyond what was authorized in the memos. So, everybody has been waiting for some time to see this CIA inspector general report that was actually completed five years ago, in May of 2004, but has been suppressed until now.

AMY GOODMAN: And it is coming out now because…?

MICHAEL ISIKOFF: It’s been coming out now because there has been a Freedom of Information Act lawsuit by the ACLU that has been vigorously prosecuted by its lawyers. They have been pushing very hard and found a judge, Judge Hellerstein in New York, who has ordered the release of the report. He had actually ordered it, Judge Hellerstein, some time ago, and the government, through the Justice Department, has been repeatedly delaying release. There’s been a back-and-forth with the CIA, which, as we know, has fiercely resisted disclosure of any of these reports and documents about the kind of interrogations that took place under the Bush administration. But thanks to the ACLU, thanks to the judge, that has prodded disclosure, and we’re — you know, how much of that report we’re going to see, we’ll know in a few hours. About half of it, I’m told, is going to be still redacted, even with the order from the judge. So there may still be further litigation on this.

AMY GOODMAN: And the information that came out from the torture of Nashiri, his claiming that al-Qaeda was working on a nuclear bomb?

MICHAEL ISIKOFF: We don’t know about that. There have been — there certainly have been instances where detainees have said — made claims under extreme interrogations or torture that have turned out to be blatantly false. The most obvious case, one we’ve talked about on this program before, is Ibn al-Shaykh al-Libi, who was rendered to Egypt, subjected to aggressive techniques, something approaching a mock burial by the Egyptians, and coughed up the information that Osama bin Laden had sent operatives to Saddam Hussein’s Iraq for training in chemical, biological weapons. That was proven to be false. Ibn Shaykh al-Libi recanted that claim, and the CIA was forced to withdraw it, although it was used prominently in the run-up to the war in Iraq. So that’s probably the most dramatic example that we know about. Precisely what Nashiri said remains classified, and I’m not sure we’re going to see that in the report today. We’ll find out, again, in a few hours.

AMY GOODMAN: What about, Michael Isikoff, the Office of Public [sic] Responsibility report?

MICHAEL ISIKOFF: Professional Responsibility.

AMY GOODMAN: Professional Responsibility.

MICHAEL ISIKOFF: Yeah, that is the ethics office in the Justice Department that has been conducting for more than four years now an investigation of those legal memos themselves that were authored by John Yoo and Jay Bybee and, later, Steve Bradbury at the Justice Department. This report has been extremely controversial. When it was first presented to Attorney General Michael Mukasey in the last days of the Bush administration, he rejected it, sent it back, would not endorse its findings.

What we are told is those findings are not just sharply critical of these legal memos, but may have found that, in some instances, the lawyers went beyond or exceeded their professional conduct in deliberately slanting the memos to omit legal references that might have undercut its findings that the Bush White House wanted, which is that all these techniques could be conducted without running afoul of the law.

That report has been undergoing a declassification process, and we should be seeing that report fairly soon, as well. So there’s a lot that people have been talking about in this whole basket of issues relating to the interrogation and detention of detainees that we are expected to be learning in the next few weeks.

AMY GOODMAN: Firedog —-

MICHAEL ISIKOFF: And starting today.

AMY GOODMAN: Firedoglake is saying that they have been holding it because the CIA has been reviewing it to protect John Rizzo’s role in crafting Office of Legal Counsel memos that claim to authorize torture, the outgoing general counsel for the CIA.

MICHAEL ISIKOFF: Well, we do know that John Rizzo, who was the acting general counsel of the CIA, was directly involved in these matters. He was the CIA lawyer who shows up on the memos that have been released as the one who was communicating with the Justice Department lawyers about how these memos would be written. And so, he -— it would make sense that he would be directly involved. Whether the CIA is trying to protect him, as opposed to just generally protecting disclosures about these programs, is hard to know.

It is worth noting that CIA Director Panetta, appointed by President Obama, has been leading the charge against disclosure of many of these matters. He fought the disclosure of the first batch of Justice Department memos that came out last spring. He has resisted disclosing operational cables that would shed light on the interrogation of, for example, Abu Zubaydah, who was the first detainee to be waterboarded. He has essentially been adopting the position of his agency in fighting, saying any further disclosures will demoralize the CIA and make it more difficult for it to do its job.

AMY GOODMAN: Michael Isikoff, if you could stay with us for one minute, we’re going to break. When we come back, I want to ask you about Eric Holder’s expected announcement and whether or not he’ll appoint a special prosecutor and the questions you’ve got for him. We’re talking to Michael Isikoff, investigative correspondent for Newsweek magazine. Stay with us.

[break]

AMY GOODMAN: Our guest, Michael Isikoff, investigative reporter for Newsweek magazine. Michael, the issue of the Attorney General Eric Holder naming a special prosecutor?

MICHAEL ISIKOFF: Yes, we are expected to hear more about that this week, as well. Holder had read the CIA inspector general’s report some months ago, told intimates that he was sickened by some of what he read in there.

We also learned today from the New York Times that this Justice Department Office of Professional Responsibility report I was just talking about had recommended that criminal prosecutions be — a review or investigation of some of these instances be reinvestigated by the Justice Department. There had been criminal referrals during the Bush administration that had led to — resulted in only one prosecution of a CIA contractor. There had been about nineteen or twenty, overall. All the others were rejected. The OPR report recommends a review, a new look at those; precisely what grounds, we don’t know yet. But all this has strengthened Holder’s hand in his determination, apparent determination, to appoint some prosecutor to take a new look at these cases to see whether there are prosecutions worth bringing.

One point I should make, Nashiri, the guy we were talking about before, the Cole bomber, he’s one of the three high-value detainees known to be waterboarded. He’s also one of the detainees, the tapes of whose interrogations were destroyed by the CIA in November 2005 after the first reports of this — about the findings of this CIA inspector general report. And it is — one question that hangs out there is whether the kind of tactics we were talking about earlier — the brandishing of the gun, the power drill, mock executions — were in fact captured on those tapes that were destroyed. If they were, that significantly changes the picture, presents sort of new clear motivations for why those tapes would have been destroyed.

And, of course, there has been a special prosecutor, John Durham, who has already been investigating for over a year that CIA tapes destruction. One scenario is that Holder could expand John Durham’s mandate now as a result of this, but we’re going to have to wait and see on that.

AMY GOODMAN: Well, go through the questions you have for Attorney General Eric Holder around the issue of a special prosecutor.

MICHAEL ISIKOFF: Yeah, I mean, probably the biggest one is Holder’s people have made clear that if he does act as we think he’s going to, to have some sort of prosecutor, that it would be limited to those CIA operatives who exceeded the Justice Department legal guidelines in those memos, the legal guidelines crafted by John Yoo, Steve Bradbury and Jay Bybee. And human rights groups look at that and say that’s not good enough, because, in fact, the real crime here was the authorization of these tactics in the first place, the use of waterboarding, which now President Obama, Attorney General Holder, a whole host of people, have concluded itself constitutes torture, that the authorization of such techniques was the real crime.

The problem with prosecuting that, from a political perspective, is that we know these tactics were ultimately authorized at the highest levels of the government, by President Bush and pushed very vigorously by Vice President Cheney, approved by the National Security Council. So if you were to go down that road, you essentially would be investigating the entire upper echelon of the Bush White House. President Obama has made clear he doesn’t want to do that; he wants to look to look forward, not backward, as he said many times. And so, Holder is sort of caught in the middle here, trying to do something to address these issues without causing a political upheaval in the country that would put the entire Bush White House under investigation.

AMY GOODMAN: You quote, in your questions, Eric Holder giving that speech in Washington: “Waterboarding is torture. My Justice Department will not justify it, will not rationalize it and will not condone it.” And then you ask him to explain how those words square with his decision to exclude individuals who designed, approved and ordered waterboarding from the scope of his investigation. Could this actually further cover up what happened over the last years? Could an investigation do that?

MICHAEL ISIKOFF: Well, surely it can be argued that carving out that — the whole issue of waterboarding from an investigation is de facto condoning of what took place in the past. It’s all well and good to say we’re not going to do it in the future, but if, in fact, it was done and no further scrutiny is given to those who approved it, you know, that certainly seems hard to square with Holder’s previous position or — which I think continues to be his position, as articulated in that quote. So there is — you know, this is a very interesting, legally interesting, issue.

And, you know, you know that any prosecutions that are ultimately brought by any prosecutor who Holder appoints, the defense lawyers are going to point to those memos, point to the approval at the high levels, and say, “Look, my guy was only trying to do what was approved here. Yes, you may say he exceeded it, but these memos are not clear. The exact line gets kind of blurry. And given what was approved, how can you pick on CIA operative A or B for maybe going a little beyond that?” That’s inevitably going to be the defense here. And when you carve out this whole area from further prosecution, you could make it difficult to prosecute those people you want to go after.

AMY GOODMAN: And finally, Michael Isikoff, in your investigation of this possibility of a special prosecutor, are there any names being floated?

MICHAEL ISIKOFF: Well, one, which I suggested before, is John Durham, the special prosecutor who’s already investigating the CIA tapes issue, could have his mandate expanded. That’s one scenario that has been floated.

But what we are told is it — whether it’s him or somebody else, it’s going to be somebody inside the Justice Department, some senior Justice Department prosecutor who’s got some experience in this area. But who that’s likely — it’s not — if so, that’s not likely to be a household name, although I should say — and not that I have any inside information on this — I did notice that Patrick Fitzgerald, the US attorney in Chicago, former special prosecutor in the Valerie Plame case, was in Washington late last week for a press conference with Eric Holder. And when I asked if he flew here just — flew to Washington just for that press conference, he said, “That and other matters.” I have no inside information on that, but it did — the timing did strike me as somewhat interesting.

AMY GOODMAN: Michael Isikoff, thanks very much for being with us, investigative reporter for Newsweek magazine, speaking to us from Washington, DC.