Documents unsealed this week in federal court in Raleigh, N.C., show that the interrogator, David A. Passaro, 38, may cite top officials' written legal justifications for harsh interrogation techniques and a Congressional resolution passed after the Sept. 11, 2001, attacks on New York and the Pentagon calling on the president "to use all necessary and appropriate force" to thwart further terrorism.
Mr. Passaro's lawyers contend in court filings that in passing the legislation under which their client is charged, Congress "cannot have contemplated" the use of the law to "provide grounds for criminal prosecution of a battlefield interrogation of a suspected terrorist linked to constant rocket attacks."
Thomas P. McNamara, Mr. Passaro's lead defense lawyer, has officially notified the government that he will pursue a "public authority defense." Such a defense involves a claim that the defendant believed, even if incorrectly, that he was acting with the authority and approval of the government.
Mr. Passaro, a former Army Special Forces soldier from North Carolina was hired by the C.I.A. in 2003 to capture fighters from the Taliban and Al Qaeda and question them at a base at Asadabad, in northeast Afghanistan.
He was charged in June with four counts of assault, accused of using his hands and feet and a large flashlight to beat a prisoner named Abdul Wali over two days. Mr. Wali, who had turned himself in to the American military after learning he was under suspicion of firing rockets at the base, died in his cell on June 21, 2003. Mr. Passaro is not charged in his death.
In court papers, Mr. Passaro's lawyers say the interrogation was considered urgent because Mr. Wali might have had information that could protect the American military from further rocket attacks.
On a Web site set up by friends and relatives to raise money for his defense, www.savedave.us, Mr. Passaro says: "The allegations against me are false! The Army had control of the prisoner, who apparently died of a heart attack."
Mr. Passaro, who is free on bond but subject to a nighttime curfew, faces up to 40 years in prison. His trial is scheduled to begin May 1.
In court papers filed in December, Mr. McNamara, a federal public defender, objected to the use of the USA Patriot Act of 2001 in prosecuting his client. Among its provisions was an expansion of the government's power to prosecute crimes committed at United States facilities overseas.
"To subject Mr. Passaro to prosecution for actions taken in battle and in furtherance of this wartime mission under a criminal statute not intended for battlefield application violates the United State Constitution, contravenes Congressional intent, and turns the Patriot Act on its head," Mr. McNamara wrote.
Mr. McNamara declined to comment on the case.
The prosecutor, James A. Candelmo, an assistant United States attorney, said his written response to Mr. Passaro's public authority defense has been sealed by the court.
I. Michael Greenberger, a former Justice Department counterterrorism official who now teaches at the University of Maryland law school, said Mr. Passaro's claim to have been acting under governmental authority was unlikely to result in the charges' dismissal before trial. But it may provide some leverage to Mr. Passaro if he tries to negotiate a plea agreement, he said.
"He's saying to the government, 'If you put me on trial, I'll drag in a lot of your questionable past statements,' " Mr. Greenberger said. "It could make the trial very embarrassing for the government."
While some military police officers charged with abusing detainees at the Abu Ghraib prison in Iraq have tried a similar tactic, which so far has proved unsuccessful, their cases are being handled in courts-martial. Mr. Passaro will face a civilian jury, which may find his arguments more appealing, Mr. Greenberger said.
By SCOTT SHANE
WASHINGTON, Feb. 10
Copyright 2005 NYT
WASHINGTON, Feb. 10
Copyright 2005 NYT