Passaro case: subpoenas

On 18 June 2003 Abdul Wali turned himself in to US forces in Afghanistan. After three days in their custody, he died.

Despite U.S. officials' insistence that Wali was not mistreated, and subsequent stories that Wali died of a heart attack, CIA operative David Passaro was later charged with mistreating Wali. Today, court documents relating to the trial of Passaro will be released.

Since the start of the trial, it appears that Passaro's initial tactic of trying to use military statements that Wali was not mistreated to prove that Wali was not mistreated has fallen through.

Passaro now intends to use a "public authority" defense, arguing that he acted under the authority of the President and the Director of the CIA, and that he had the authority to treat Wali in the way that he allegedly did. To demonstrate this, Passaro is attempting to subpoena U.S. officials, who have since proved untouchable in prisoner-abuse related court-cases. They include:

• Attorney General Alberto Gonzales,
• then-Directer of the CIA George Tenet,
• David Addington (counsel to Vice President Dick Cheney),
• U.S. Appeals Court Judge Jay S. Bybee (who authored a memo redefining torture), and
• Prof. John Yoo (who helped craft a way to avoid the Geneva Conventions where Taliban and Al Qaida are concerned).

Defense lawyers also sought recordings or documents of satellite phone calls related to Wali's surrender, questioning and death. They also want the court to order the CIA and Justice Department to release documents "that address the capture, detention, and/or interrogation of members of the Taliban, al Qaeda, or other terrorist organizations or combatants operating in Afghanistan."

In early 2006 a federal judge will permit him to present evidence at the trial that he was following orders when he interrogated Wali, however he will stop short of authorizing Passaro to argue a broader "public authority defense" until jurors hear evidence supporting his claim.