(CN) – The 4th Circuit upheld the conviction of the first U.S. civilian, a former CIA contractor, to be found guilty of abusing a detainee in the wars on terrorism in Iraq and Afghanistan.
The detainee, Abdul Wali, had been captured for questioning as the suspected orchestrator of rocket attacks on Asadabad Firebase, a U.S. military outpost in Afghanistan.
David A. Passaro, a former Army special forces medic, was serving on the base as a paramilitary civilian contractor. He interrogated Wali on June 19 and 20, 2003.
“This ‘interrogation’ involved Passaro’s brutal attacks on Wali, which included repeatedly throwing Wali to the ground, striking him open handed, hitting him on the arms and legs with a heavy, Maglite-type flashlight measuring over a foot long, and, while wearing combat boots, kicking Wali in the groin with enough force to lift him off the ground,” the ruling states.
After two days of abusive interrogation, Wali collapsed and died.
Passaro was convicted of one count of felony assault resulting in bodily injury and three counts of misdemeanor simple assault. (The government said it couldn’t charge him with murder, because Wali’s family had removed the body from Asadabad and refused to allow an autopsy.)
Passaro was sentenced to eight years and four months in jail, a duration the district court arrived at by applying sentencing enhancements.
His appeal centered on the claim that the district court didn’t have criminal jurisdiction over the Asadabad Firebase.
A three-judge panel acknowledged that the court’s jurisdiction wouldn’t extend to any Afghan soil where a soldier “pitches his pup tent,” but found that the base qualifies as a “military mission” subject to jurisdiction. After the Sept. 11 terrorist attacks, Congress passed a law allowing individuals accused of committing crimes on “military missions” to be prosecuted in U.S. federal courts.
But even if the court had jurisdiction, Passaro argued, it violated the separation of powers doctrine by meddling in foreign affairs and war powers, areas reserved for the Executive branch.
“This argument ignores a critical fact: the Executive itself elected to bring this prosecution,” Judge Diana Gribbon Motz wrote for the Richmond, Va.-based court.
The court upheld Passaro’s conviction and refused to grant him a new trial. However, the panel was forced to vacate his sentence, because the district court failed to explain what justified one of the sentencing enhancements.