Atlas
11-10-2005, 04:15 PM
:
A DEADLY INTERROGATION
Can the C.I.A. legally kill a prisoner?
by JANE MAYER
Issue of 2005-11-14
Posted 2005-11-07
At the end of a secluded cul-de-sac, in a fast-growing Virginia suburb favored by employees of the Central Intelligence Agency, is a handsome replica of an old-fashioned farmhouse, with a white-railed front porch. The large back yard has a swimming pool, which, on a recent October afternoon, was neatly covered. In the driveway were two cars, a late-model truck, and an all-terrain vehicle. The sole discordant note was struck by a faded American flag on the porch; instead of fluttering in the autumn breeze, it was folded on a heap of old Christmas ornaments.
The house belongs to Mark Swanner, a forty-six-year-old C.I.A. officer who has performed interrogations and polygraph tests for the agency, which has employed him at least since the nineteen-nineties. (He is not a covert operative.) Two years ago, at Abu Ghraib prison, outside Baghdad, an Iraqi prisoner in Swanner’s custody, Manadel al-Jamadi, died during an interrogation. His head had been covered with a plastic bag, and he was shackled in a crucifixion-like pose that inhibited his ability to breathe; according to forensic pathologists who have examined the case, he asphyxiated. In a subsequent internal investigation, United States government authorities classified Jamadi’s death as a “homicide,” meaning that it resulted from unnatural causes. Swanner has not been charged with a crime and continues to work for the agency.
After September 11th, the Justice Department fashioned secret legal guidelines that appear to indemnify C.I.A. officials who perform aggressive, even violent interrogations outside the United States. Techniques such as waterboarding—the near-drowning of a suspect—have been implicitly authorized by an Administration that feels that such methods may be necessary to win the war on terrorism. (In 2001, Vice-President Dick Cheney, in an interview on “Meet the Press,” said that the government might have to go to “the dark side” in handling terrorist suspects, adding, “It’s going to be vital for us to use any means at our disposal.”) The harsh treatment of Jamadi and other prisoners in C.I.A. custody, however, has inspired an emotional debate in Washington, raising questions about what limits should be placed on agency officials who interrogate foreign terrorist suspects outside U.S. territory.
This fall, in response to the exposure of widespread prisoner abuse at American detention facilities abroad—among them Abu Ghraib; Guantánamo Bay, in Cuba; and Bagram Air Base, in Afghanistan—John McCain, the Republican senator from Arizona, introduced a bill in Congress that would require Americans holding prisoners abroad to follow the same standards of humane treatment required at home by the U.S. Constitution. Prisoners must not be brutalized, the bill states, regardless of their “nationality or physical location.” On October 5th, in a rebuke to President Bush, who strongly opposed McCain’s proposal, the Senate voted 90–9 in favor of it.
Senior Administration officials have led a fierce, and increasingly visible, fight to protect the C.I.A.’s classified interrogation protocol. Late last month, Cheney and Porter Goss, the C.I.A. director, had an unusual forty-five-minute private meeting on Capitol Hill with Senator McCain, who was tortured as a P.O.W. during the Vietnam War. They argued that the C.I.A. sometimes needs the “flexibility” to treat detainees in the war on terrorism in “cruel, inhuman, and degrading” ways. Cheney sought to add an exemption to McCain’s bill, permitting brutal methods when “such operations are vital to the protection of the United States or its citizens from terrorist attack.” A Washington Post editorial decried Cheney’s visit, calling him the “Vice-President for Torture.” In the coming weeks, a conference committee of the House and the Senate will decide whether McCain’s proposal becomes law; three of the nine senators who voted against the measure are on the committee.
The outcome of this wider political debate may play a role in determining the fate of Swanner, whose name has not been publicly disclosed before, and who declined several requests to be interviewed. Passage of the McCain legislation by both Houses of Congress would mean that there is strong political opposition to the abusive treatment of prisoners, and would put increased pressure on the Justice Department to prosecute interrogators like Swanner—who could conceivably be charged with assault, negligent manslaughter, or torture. Swanner’s lawyer, Nina Ginsberg, declined to discuss his case on the record. But he has been under investigation by the Justice Department for more than a year.
Manadel al-Jamadi was captured by Navy SEALs at 2 a.m. on November 4, 2003, after a violent struggle at his house, outside Baghdad. Jamadi savagely fought one of the SEALs before being subdued in his kitchen; during the altercation, his stove fell on them. The C.I.A. had identified him as a “high-value” target, because he had allegedly supplied the explosives used in several atrocities perpetrated by insurgents, including the bombing of the Baghdad headquarters of the International Committee of the Red Cross, in October, 2003. After being removed from his house, Jamadi was manhandled by several of the SEALs, who gave him a black eye and a cut on his face; he was then transferred to C.I.A. custody, for interrogation at Abu Ghraib. According to witnesses, Jamadi was walking and speaking when he arrived at the prison. He was taken to a shower room for interrogation. Some forty-five minutes later, he was dead.
For most of the time that Jamadi was being interrogated at Abu Ghraib, there were only two people in the room with him. One was an Arabic-speaking translator for the C.I.A. working on a private contract, who has been identified in military-court papers only as “Clint C.” He was given immunity against criminal prosecution in exchange for his coöperation. The other person was Mark Swanner.
In the spring of 2004, the fact of pervasive prisoner abuse at Abu Ghraib became public, on “60 Minutes II” and in a series of articles in these pages by Seymour M. Hersh. Photographs, taken by U.S. soldiers, that showed Iraqi prisoners being hooded, sexually humiliated, and threatened with dogs were published around the world. One of the most harrowing images was of Jamadi’s severely battered corpse, which had been wrapped in plastic and put on ice; he became known in the media as the Ice Man.
Around this time, John Helgerson, the C.I.A.’s inspector general, sent investigators to Iraq and San Diego to interview witnesses about the agency’s role in Jamadi’s death. These investigators determined that there was the possibility of criminality—the threshold level required by the intelligence agency in order for the case to be referred to the Justice Department. The agency did so, and officials in the Justice Department then forwarded the case to the office of Paul McNulty, the U.S. Attorney for the Eastern District of Virginia, which has jurisdiction over C.I.A. headquarters. The dossier has been there for more than a year. A lawyer familiar with the case, who asked not to be named, said that the Swanner file seemed to be “lying kind of fallow.”
A spokeswoman for McNulty said that he would have no comment on the case, because it was still under investigation. (Last month, President Bush nominated McNulty to the position of Deputy Attorney General, the second most powerful job in the Justice Department.) No other official in the Justice Department would discuss on the record why, more than two years after Jamadi’s death, no decision has been made about pressing charges against anyone.
A government official familiar with the case, who declined to be named, indicated that establishing guilt in the case might be complicated, because of Jamadi’s rough handling by the SEALs before he entered the custody of the C.I.A. Yet, in the past two years, several of the Navy SEALs who captured Jamadi and delivered him to C.I.A. officials have faced abuse charges in military-justice proceedings, and have been exonerated. Moreover, three medical experts who have examined Jamadi’s case told me that the injuries he sustained from the SEALs could not have caused his death.
Fred Hitz, who served as the C.I.A.’s inspector general from 1990 to 1998, and who is now a lecturer in public and international affairs at Princeton University, said of Bush Administration officials, “I just think they’re playing stall ball.” He told me that he had no inside knowledge of the Swanner case, but he believes that, for numerous reasons, ranging from protecting national security to avoiding political embarrassment, Administration officials “would be opposed to any accountability in this case. They want it to disappear off the screen.” (A spokesman for the C.I.A. said that its internal investigation into Jamadi’s death was “nearly complete,” making it “inappropriate to discuss any of the details.”)
John Radsan, a lawyer formerly in the C.I.A’s Office of General Counsel, says, “Along with the usual problems of dealing with classified information in a criminal case, this could open a can of worms if a C.I.A. official in this case got indicted—a big fat can of worms about what set of rules apply to people like Jamadi. The sixty-four-thousand-dollar question is: What has been authorized? Can the C.I.A. torture people? A case like this opens up Pandora’s box.”
Since September 11, 2001, the C.I.A.’s treatment and interrogation of terrorist suspects has remained almost entirely hidden from public view. Human-rights groups estimate that some ten thousand foreign suspects are being held in U.S. detention facilities in Afghanistan, Iraq, Cuba, and other countries. A small but unknown part of this population is in the custody of the C.I.A., which, as Dana Priest reported recently in the Washington Post, has operated secret prisons in Thailand and in Eastern Europe. It is also unclear how seriously the agency deals with allegations of prisoner abuse. The C.I.A. tends to be careful about following strict legal procedures, including the briefing of the top-ranking members of the congressional intelligence committees on its covert activities. But experts could recall no instance of a C.I.A. officer being tried in a public courtroom for manslaughter or murder. Thomas Powers, the author of two books about the C.I.A., told me, “I’ve never heard of anyone at the C.I.A. being convicted of a killing.” He added that a case such as Jamadi’s had awkward political implications. “Is the C.I.A. capable of addressing an illegal killing by its own hands?” he asked. “My guess is not.” Whereas the military has subjected itself to a dozen internal investigations in the aftermath of the Abu Ghraib scandal, and has punished more than two hundred soldiers for wrongdoing, the agency has undertaken almost no public self-examination.
The C.I.A. has reportedly been implicated in at least four deaths of detainees in Afghanistan and Iraq, including that of Jamadi, and has referred eight potentially criminal cases involving abuse and misconduct to the Justice Department. In March, Goss, the C.I.A.’s director, testified before Congress that “we don’t do torture,” and the agency’s press office issued a release stating, “All approved interrogation techniques, both past and present, are lawful and do not constitute torture. . . . C.I.A. policies on interrogation have always followed legal guidance from the Department of Justice. If an individual violates the policy, then he or she will be held accountable.”
Yet the government has brought charges against only one person affiliated with the agency: David Passaro, a low-level contract employee, not a full-fledged C.I.A. officer. In 2003, Passaro, while interrogating an Afghan prisoner, allegedly beat him with a flashlight so severely that he eventually died from his injuries. In two other incidents of prisoner abuse, the Times reported last month, charges probably will not be brought against C.I.A. personnel: the 2003 case of an Iraqi prisoner who was forced head first into a sleeping bag, then beaten; and the 2002 abuse of an Afghan prisoner who froze to death after being stripped and chained to the floor of a concrete cell. (The C.I.A. supervisor involved in the latter case was subsequently promoted.)
One reason these C.I.A. officials may not be facing charges is that, in recent years, the Justice Department has established a strikingly narrow definition of torture. In August, 2002, the department’s Office of Legal Counsel sent a memo on interrogations to the White House, which argued that a coercive technique was torture only when it induced pain equivalent to what a person experiencing death or organ failure might suffer. By implication, all lesser forms of physical and psychological mistreatment—what critics have called “torture lite”—were legal. The memo also said that torture was illegal only when it could be proved that the interrogator intended to cause the required level of pain. And it provided interrogators with another large exemption: torture might be acceptable if an interrogator was acting in accordance with military “necessity.” A source familiar with the memo’s origins, who declined to speak on the record, said that it “was written as an immunity, a blank check.” In 2004, the “torture memo,” as it became known, was leaked, complicating the nomination of Alberto R. Gonzales to be Attorney General; as White House counsel, Gonzales had approved the memo. The Administration subsequently revised the guidelines, using language that seemed more restrictive. But a little-noticed footnote protected the coercive methods permitted by the “torture memo,” stating that they did not violate the “standards set forth in this memorandum.”
The Bush Administration has resisted disclosing the contents of two Justice Department memos that established a detailed interrogation policy for the Pentagon and the C.I.A. A March, 2003, classified memo was “breathtaking,” the same source said. The document dismissed virtually all national and international laws regulating the treatment of prisoners, including war-crimes and assault statutes, and it was radical in its view that in wartime the President can fight enemies by whatever means he sees fit. According to the memo, Congress has no constitutional right to interfere with the President in his role as Commander-in-Chief, including making laws that limit the ways in which prisoners may be interrogated. Another classified Justice Department memo, issued in August, 2002, is said to authorize numerous “enhanced” interrogation techniques for the C.I.A. These two memos sanction such extreme measures that, even if the agency wanted to discipline or prosecute agents who stray beyond its own comfort level, the legal tools to do so may no longer exist. Like the torture memo, these documents are believed to have been signed by Jay Bybee, the former head of the Office of Legal Counsel, but written by a Justice Department lawyer, John Yoo, who is now a professor of law at Berkeley.
For nearly a year, Democratic senators critical of alleged abuses have been demanding to see these memos. “We need to know what was authorized,” Carl Levin, a Democrat from Michigan, told me. “Was it waterboarding? The use of dogs? Stripping detainees? . . . The refusal to give us these documents is totally inexcusable.” Levin is a member of the Senate Intelligence Committee, which is supposed to have an oversight role in relation to the C.I.A. “The Administration is getting away with just saying no,” he went on. “There’s no claim of executive privilege. There’s no claim of national security—we’ve offered to keep it classified. It’s just bull****. They just don’t want us to know what they’re doing, or have done.”
By the summer of 2003, the insurgency against the U.S. occupation of Iraq had grown into a confounding and lethal insurrection, and the Pentagon and the White House were pressing C.I.A. agents and members of the Special Forces to get the kind of intelligence needed to crush it. On orders from Secretary of Defense Donald Rumsfeld, General Geoffrey Miller, who had overseen coercive interrogations of terrorist suspects at Guantánamo, imposed similar methods at Abu Ghraib. In October of that year, however—a month before Jamadi’s death—the Justice Department’s Office of Legal Counsel issued an opinion stating that Iraqi insurgents were covered by the Geneva Conventions, which require the humane treatment of prisoners and forbid coercive interrogations. The ruling reversed an earlier interpretation, which had concluded, erroneously, that Iraqi insurgents were not protected by international law.
As a result of these contradictory mandates from Washington, the rules of engagement at Abu Ghraib became muddy, and the tactics grew increasingly ad hoc. Jeffrey H. Smith, a former general counsel of the C.I.A., told me, “Abu Ghraib has its roots at the top. I think this uncertainty about who was and who was not covered by the Geneva Conventions, and all this talk that they’re all terrorists, bred the climate in which this kind of abuse takes place.”
At Abu Ghraib, the confusion over interrogation and detention methods was compounded by the fact that C.I.A. officials worked side by side with U.S. military people. Colonel Janis Karpinski, a former commander of the 800th Military Police Brigade, which oversaw the administration of Abu Ghraib during the period of widespread abuse, has said that C.I.A. officers, along with contract interpreters and some military-intelligence officers, did not wear uniforms when they visited the prison, and it was not clear, even to her, what they were doing there. “I thought most of the civilians there were interpreters, but there were some civilians I didn’t know,” she told Seymour Hersh. “I called them disappearing ghosts. . . . They were always bringing in somebody for interrogation, or waiting to collect somebody going out.” C.I.A. officials, unlike members of the Army and the Navy, are not bound by the Uniform Code of Military Justice, which prohibits “cruelty toward, or oppression or maltreatment of” prisoners.
Walter Diaz, a military policeman, was on guard duty at Abu Ghraib the morning that Jamadi was delivered to the prison. He told me, “The O.G.A.”— “other government agencies,” initials commonly used to protect the identity of the C.I.A.—“would bring in people all the time to interview them. We had one wing, Tier One Alpha, reserved for the O.G.A. They’d have maybe twenty people there at a time.” He went on, “They were their prisoners. They’d get into a room and lock it up. We, as soldiers, didn’t get involved. We’d lock the door for them and leave. We didn’t know what they were doing.” But, he recalled, “we heard a lot of screaming.”
Considering this level of secrecy, it’s doubtful that any details would have emerged about the C.I.A.’s role in Jamadi’s death had it not been for a strange and tangential chain of events. Three months after Jamadi died, Jeffrey Hopper, a Navy SEAL who had been assigned to carry out joint operations with the C.I.A. in Baghdad, was accused of stealing another SEAL’s body armor. Hopper, who had been nicknamed Klepto by the unit, was expelled from the Special Forces. When he was dismissed, he told authorities that he knew of far worse offenses committed by other SEALs, and he cited the abuse of several prisoners, including Jamadi. His accusations formed the basis of multiple charges against several SEALs, which led to the court-martial of Lieutenant Andrew Ledford, the commander of the platoon that captured Jamadi, for, among other things, allowing his troops to assault the prisoner. Last May, Ledford was acquitted of any wrongdoing; but during the hearings, which were open, a number of troubling facts spilled out, hinting at the C.I.A.’s role in Jamadi’s death.
Seth Hettena, an Associated Press reporter based in San Diego, California, attended the hearings. The courtroom testimony, he reported, indicated that Jamadi, before arriving at Abu Ghraib, was interrogated “in a rough manner” by a combination of SEALs and C.I.A. personnel in “the Romper Room,” a tiny space in the Navy camp at Baghdad International Airport. Swanner was among those present. One of the SEALs testified that after Jamadi was handcuffed a C.I.A. interrogator rammed “his arm up against the detainee’s chest, pressing on him with all his weight.” According to a recent report by John McChesney on National Public Radio, a C.I.A. guard who witnessed the scene later told investigators that, after stripping Jamadi and dousing him in cold water, a C.I.A. interrogator threatened to “barbecue” him if he didn’t talk. Jamadi reportedly moaned, “I’m dying, I’m dying.” The interrogator replied, “You’ll be wishing you were dying.”
Court testimony also established that Jamadi was “body-slammed” by the SEALs into the back of a Humvee before being delivered to Abu Ghraib. During this time, he was handcuffed. “Was he a threat?” a Navy prosecutor asked one of the SEALs on trial. “No, ma’am,” the SEAL conceded.
Soon after the Associated Press published Hettena’s Romper Room story, two unidentified officials, evidently from the C.I.A., appeared in the courtroom. From that point on, Hettena told me, the officials, who did not give their names, protested when the testimony touched on matters sensitive to the C.I.A. In many instances, reporters and other members of the public were required to leave the courtroom. On another occasion, an unidentified C.I.A. witness testified from behind a blue curtain. Several areas of questioning by defense lawyers for the SEALs were ruled off limits. When one of the defense lawyers, Matthew Freedus, asked a witness, “What position was Jamadi in when he died?,” the C.I.A. representatives protested, saying that the answer was classified. The same objection was made when a question was asked about the role that water had played in Jamadi’s interrogation.
By late last spring, the SEALs’ reputations had been tarnished by the exposure of their rough treatment of Jamadi, but they were cleared of the gravest abuse charges. The question of who was responsible for Jamadi’s death remained unanswered. Milt Silverman, one of the defense attorneys, told me, “Who killed Jamadi? I know it wasn’t any of the SEALs. . . . That’s why their cases got dismissed.” Frank Spinner, a civilian lawyer who represented Ledford, said, “There’s a stronger case against the C.I.A. than there is against Ledford. But the military’s being hung out to dry while the C.I.A. skates. I want a public accounting, whether in a trial, a hearing before a congressional committee, or a public report. There’s got to be something more meaningful than sticking the case in a Justice Department drawer.”
Spinner and several of the other defense lawyers learned more about the C.I.A.’s role in Jamadi’s death than they were supposed to know, owing to a classification error made by the agency. The C.I.A. sent hundreds of pages of material on Jamadi’s death to the Navy; much of it was classified, and all of it was marked unclassified. The pages were passed on to the civilian lawyers, who read them carefully. The agency, after realizing its mistake, demanded that the lawyers return the classified material, and subsequently sealed virtually all the court records relating to the case. Some of the C.I.A. documents, however, were seen by a source familiar with the case, who shared their contents with me.
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A DEADLY INTERROGATION
Can the C.I.A. legally kill a prisoner?
by JANE MAYER
Issue of 2005-11-14
Posted 2005-11-07
At the end of a secluded cul-de-sac, in a fast-growing Virginia suburb favored by employees of the Central Intelligence Agency, is a handsome replica of an old-fashioned farmhouse, with a white-railed front porch. The large back yard has a swimming pool, which, on a recent October afternoon, was neatly covered. In the driveway were two cars, a late-model truck, and an all-terrain vehicle. The sole discordant note was struck by a faded American flag on the porch; instead of fluttering in the autumn breeze, it was folded on a heap of old Christmas ornaments.
The house belongs to Mark Swanner, a forty-six-year-old C.I.A. officer who has performed interrogations and polygraph tests for the agency, which has employed him at least since the nineteen-nineties. (He is not a covert operative.) Two years ago, at Abu Ghraib prison, outside Baghdad, an Iraqi prisoner in Swanner’s custody, Manadel al-Jamadi, died during an interrogation. His head had been covered with a plastic bag, and he was shackled in a crucifixion-like pose that inhibited his ability to breathe; according to forensic pathologists who have examined the case, he asphyxiated. In a subsequent internal investigation, United States government authorities classified Jamadi’s death as a “homicide,” meaning that it resulted from unnatural causes. Swanner has not been charged with a crime and continues to work for the agency.
After September 11th, the Justice Department fashioned secret legal guidelines that appear to indemnify C.I.A. officials who perform aggressive, even violent interrogations outside the United States. Techniques such as waterboarding—the near-drowning of a suspect—have been implicitly authorized by an Administration that feels that such methods may be necessary to win the war on terrorism. (In 2001, Vice-President Dick Cheney, in an interview on “Meet the Press,” said that the government might have to go to “the dark side” in handling terrorist suspects, adding, “It’s going to be vital for us to use any means at our disposal.”) The harsh treatment of Jamadi and other prisoners in C.I.A. custody, however, has inspired an emotional debate in Washington, raising questions about what limits should be placed on agency officials who interrogate foreign terrorist suspects outside U.S. territory.
This fall, in response to the exposure of widespread prisoner abuse at American detention facilities abroad—among them Abu Ghraib; Guantánamo Bay, in Cuba; and Bagram Air Base, in Afghanistan—John McCain, the Republican senator from Arizona, introduced a bill in Congress that would require Americans holding prisoners abroad to follow the same standards of humane treatment required at home by the U.S. Constitution. Prisoners must not be brutalized, the bill states, regardless of their “nationality or physical location.” On October 5th, in a rebuke to President Bush, who strongly opposed McCain’s proposal, the Senate voted 90–9 in favor of it.
Senior Administration officials have led a fierce, and increasingly visible, fight to protect the C.I.A.’s classified interrogation protocol. Late last month, Cheney and Porter Goss, the C.I.A. director, had an unusual forty-five-minute private meeting on Capitol Hill with Senator McCain, who was tortured as a P.O.W. during the Vietnam War. They argued that the C.I.A. sometimes needs the “flexibility” to treat detainees in the war on terrorism in “cruel, inhuman, and degrading” ways. Cheney sought to add an exemption to McCain’s bill, permitting brutal methods when “such operations are vital to the protection of the United States or its citizens from terrorist attack.” A Washington Post editorial decried Cheney’s visit, calling him the “Vice-President for Torture.” In the coming weeks, a conference committee of the House and the Senate will decide whether McCain’s proposal becomes law; three of the nine senators who voted against the measure are on the committee.
The outcome of this wider political debate may play a role in determining the fate of Swanner, whose name has not been publicly disclosed before, and who declined several requests to be interviewed. Passage of the McCain legislation by both Houses of Congress would mean that there is strong political opposition to the abusive treatment of prisoners, and would put increased pressure on the Justice Department to prosecute interrogators like Swanner—who could conceivably be charged with assault, negligent manslaughter, or torture. Swanner’s lawyer, Nina Ginsberg, declined to discuss his case on the record. But he has been under investigation by the Justice Department for more than a year.
Manadel al-Jamadi was captured by Navy SEALs at 2 a.m. on November 4, 2003, after a violent struggle at his house, outside Baghdad. Jamadi savagely fought one of the SEALs before being subdued in his kitchen; during the altercation, his stove fell on them. The C.I.A. had identified him as a “high-value” target, because he had allegedly supplied the explosives used in several atrocities perpetrated by insurgents, including the bombing of the Baghdad headquarters of the International Committee of the Red Cross, in October, 2003. After being removed from his house, Jamadi was manhandled by several of the SEALs, who gave him a black eye and a cut on his face; he was then transferred to C.I.A. custody, for interrogation at Abu Ghraib. According to witnesses, Jamadi was walking and speaking when he arrived at the prison. He was taken to a shower room for interrogation. Some forty-five minutes later, he was dead.
For most of the time that Jamadi was being interrogated at Abu Ghraib, there were only two people in the room with him. One was an Arabic-speaking translator for the C.I.A. working on a private contract, who has been identified in military-court papers only as “Clint C.” He was given immunity against criminal prosecution in exchange for his coöperation. The other person was Mark Swanner.
In the spring of 2004, the fact of pervasive prisoner abuse at Abu Ghraib became public, on “60 Minutes II” and in a series of articles in these pages by Seymour M. Hersh. Photographs, taken by U.S. soldiers, that showed Iraqi prisoners being hooded, sexually humiliated, and threatened with dogs were published around the world. One of the most harrowing images was of Jamadi’s severely battered corpse, which had been wrapped in plastic and put on ice; he became known in the media as the Ice Man.
Around this time, John Helgerson, the C.I.A.’s inspector general, sent investigators to Iraq and San Diego to interview witnesses about the agency’s role in Jamadi’s death. These investigators determined that there was the possibility of criminality—the threshold level required by the intelligence agency in order for the case to be referred to the Justice Department. The agency did so, and officials in the Justice Department then forwarded the case to the office of Paul McNulty, the U.S. Attorney for the Eastern District of Virginia, which has jurisdiction over C.I.A. headquarters. The dossier has been there for more than a year. A lawyer familiar with the case, who asked not to be named, said that the Swanner file seemed to be “lying kind of fallow.”
A spokeswoman for McNulty said that he would have no comment on the case, because it was still under investigation. (Last month, President Bush nominated McNulty to the position of Deputy Attorney General, the second most powerful job in the Justice Department.) No other official in the Justice Department would discuss on the record why, more than two years after Jamadi’s death, no decision has been made about pressing charges against anyone.
A government official familiar with the case, who declined to be named, indicated that establishing guilt in the case might be complicated, because of Jamadi’s rough handling by the SEALs before he entered the custody of the C.I.A. Yet, in the past two years, several of the Navy SEALs who captured Jamadi and delivered him to C.I.A. officials have faced abuse charges in military-justice proceedings, and have been exonerated. Moreover, three medical experts who have examined Jamadi’s case told me that the injuries he sustained from the SEALs could not have caused his death.
Fred Hitz, who served as the C.I.A.’s inspector general from 1990 to 1998, and who is now a lecturer in public and international affairs at Princeton University, said of Bush Administration officials, “I just think they’re playing stall ball.” He told me that he had no inside knowledge of the Swanner case, but he believes that, for numerous reasons, ranging from protecting national security to avoiding political embarrassment, Administration officials “would be opposed to any accountability in this case. They want it to disappear off the screen.” (A spokesman for the C.I.A. said that its internal investigation into Jamadi’s death was “nearly complete,” making it “inappropriate to discuss any of the details.”)
John Radsan, a lawyer formerly in the C.I.A’s Office of General Counsel, says, “Along with the usual problems of dealing with classified information in a criminal case, this could open a can of worms if a C.I.A. official in this case got indicted—a big fat can of worms about what set of rules apply to people like Jamadi. The sixty-four-thousand-dollar question is: What has been authorized? Can the C.I.A. torture people? A case like this opens up Pandora’s box.”
Since September 11, 2001, the C.I.A.’s treatment and interrogation of terrorist suspects has remained almost entirely hidden from public view. Human-rights groups estimate that some ten thousand foreign suspects are being held in U.S. detention facilities in Afghanistan, Iraq, Cuba, and other countries. A small but unknown part of this population is in the custody of the C.I.A., which, as Dana Priest reported recently in the Washington Post, has operated secret prisons in Thailand and in Eastern Europe. It is also unclear how seriously the agency deals with allegations of prisoner abuse. The C.I.A. tends to be careful about following strict legal procedures, including the briefing of the top-ranking members of the congressional intelligence committees on its covert activities. But experts could recall no instance of a C.I.A. officer being tried in a public courtroom for manslaughter or murder. Thomas Powers, the author of two books about the C.I.A., told me, “I’ve never heard of anyone at the C.I.A. being convicted of a killing.” He added that a case such as Jamadi’s had awkward political implications. “Is the C.I.A. capable of addressing an illegal killing by its own hands?” he asked. “My guess is not.” Whereas the military has subjected itself to a dozen internal investigations in the aftermath of the Abu Ghraib scandal, and has punished more than two hundred soldiers for wrongdoing, the agency has undertaken almost no public self-examination.
The C.I.A. has reportedly been implicated in at least four deaths of detainees in Afghanistan and Iraq, including that of Jamadi, and has referred eight potentially criminal cases involving abuse and misconduct to the Justice Department. In March, Goss, the C.I.A.’s director, testified before Congress that “we don’t do torture,” and the agency’s press office issued a release stating, “All approved interrogation techniques, both past and present, are lawful and do not constitute torture. . . . C.I.A. policies on interrogation have always followed legal guidance from the Department of Justice. If an individual violates the policy, then he or she will be held accountable.”
Yet the government has brought charges against only one person affiliated with the agency: David Passaro, a low-level contract employee, not a full-fledged C.I.A. officer. In 2003, Passaro, while interrogating an Afghan prisoner, allegedly beat him with a flashlight so severely that he eventually died from his injuries. In two other incidents of prisoner abuse, the Times reported last month, charges probably will not be brought against C.I.A. personnel: the 2003 case of an Iraqi prisoner who was forced head first into a sleeping bag, then beaten; and the 2002 abuse of an Afghan prisoner who froze to death after being stripped and chained to the floor of a concrete cell. (The C.I.A. supervisor involved in the latter case was subsequently promoted.)
One reason these C.I.A. officials may not be facing charges is that, in recent years, the Justice Department has established a strikingly narrow definition of torture. In August, 2002, the department’s Office of Legal Counsel sent a memo on interrogations to the White House, which argued that a coercive technique was torture only when it induced pain equivalent to what a person experiencing death or organ failure might suffer. By implication, all lesser forms of physical and psychological mistreatment—what critics have called “torture lite”—were legal. The memo also said that torture was illegal only when it could be proved that the interrogator intended to cause the required level of pain. And it provided interrogators with another large exemption: torture might be acceptable if an interrogator was acting in accordance with military “necessity.” A source familiar with the memo’s origins, who declined to speak on the record, said that it “was written as an immunity, a blank check.” In 2004, the “torture memo,” as it became known, was leaked, complicating the nomination of Alberto R. Gonzales to be Attorney General; as White House counsel, Gonzales had approved the memo. The Administration subsequently revised the guidelines, using language that seemed more restrictive. But a little-noticed footnote protected the coercive methods permitted by the “torture memo,” stating that they did not violate the “standards set forth in this memorandum.”
The Bush Administration has resisted disclosing the contents of two Justice Department memos that established a detailed interrogation policy for the Pentagon and the C.I.A. A March, 2003, classified memo was “breathtaking,” the same source said. The document dismissed virtually all national and international laws regulating the treatment of prisoners, including war-crimes and assault statutes, and it was radical in its view that in wartime the President can fight enemies by whatever means he sees fit. According to the memo, Congress has no constitutional right to interfere with the President in his role as Commander-in-Chief, including making laws that limit the ways in which prisoners may be interrogated. Another classified Justice Department memo, issued in August, 2002, is said to authorize numerous “enhanced” interrogation techniques for the C.I.A. These two memos sanction such extreme measures that, even if the agency wanted to discipline or prosecute agents who stray beyond its own comfort level, the legal tools to do so may no longer exist. Like the torture memo, these documents are believed to have been signed by Jay Bybee, the former head of the Office of Legal Counsel, but written by a Justice Department lawyer, John Yoo, who is now a professor of law at Berkeley.
For nearly a year, Democratic senators critical of alleged abuses have been demanding to see these memos. “We need to know what was authorized,” Carl Levin, a Democrat from Michigan, told me. “Was it waterboarding? The use of dogs? Stripping detainees? . . . The refusal to give us these documents is totally inexcusable.” Levin is a member of the Senate Intelligence Committee, which is supposed to have an oversight role in relation to the C.I.A. “The Administration is getting away with just saying no,” he went on. “There’s no claim of executive privilege. There’s no claim of national security—we’ve offered to keep it classified. It’s just bull****. They just don’t want us to know what they’re doing, or have done.”
By the summer of 2003, the insurgency against the U.S. occupation of Iraq had grown into a confounding and lethal insurrection, and the Pentagon and the White House were pressing C.I.A. agents and members of the Special Forces to get the kind of intelligence needed to crush it. On orders from Secretary of Defense Donald Rumsfeld, General Geoffrey Miller, who had overseen coercive interrogations of terrorist suspects at Guantánamo, imposed similar methods at Abu Ghraib. In October of that year, however—a month before Jamadi’s death—the Justice Department’s Office of Legal Counsel issued an opinion stating that Iraqi insurgents were covered by the Geneva Conventions, which require the humane treatment of prisoners and forbid coercive interrogations. The ruling reversed an earlier interpretation, which had concluded, erroneously, that Iraqi insurgents were not protected by international law.
As a result of these contradictory mandates from Washington, the rules of engagement at Abu Ghraib became muddy, and the tactics grew increasingly ad hoc. Jeffrey H. Smith, a former general counsel of the C.I.A., told me, “Abu Ghraib has its roots at the top. I think this uncertainty about who was and who was not covered by the Geneva Conventions, and all this talk that they’re all terrorists, bred the climate in which this kind of abuse takes place.”
At Abu Ghraib, the confusion over interrogation and detention methods was compounded by the fact that C.I.A. officials worked side by side with U.S. military people. Colonel Janis Karpinski, a former commander of the 800th Military Police Brigade, which oversaw the administration of Abu Ghraib during the period of widespread abuse, has said that C.I.A. officers, along with contract interpreters and some military-intelligence officers, did not wear uniforms when they visited the prison, and it was not clear, even to her, what they were doing there. “I thought most of the civilians there were interpreters, but there were some civilians I didn’t know,” she told Seymour Hersh. “I called them disappearing ghosts. . . . They were always bringing in somebody for interrogation, or waiting to collect somebody going out.” C.I.A. officials, unlike members of the Army and the Navy, are not bound by the Uniform Code of Military Justice, which prohibits “cruelty toward, or oppression or maltreatment of” prisoners.
Walter Diaz, a military policeman, was on guard duty at Abu Ghraib the morning that Jamadi was delivered to the prison. He told me, “The O.G.A.”— “other government agencies,” initials commonly used to protect the identity of the C.I.A.—“would bring in people all the time to interview them. We had one wing, Tier One Alpha, reserved for the O.G.A. They’d have maybe twenty people there at a time.” He went on, “They were their prisoners. They’d get into a room and lock it up. We, as soldiers, didn’t get involved. We’d lock the door for them and leave. We didn’t know what they were doing.” But, he recalled, “we heard a lot of screaming.”
Considering this level of secrecy, it’s doubtful that any details would have emerged about the C.I.A.’s role in Jamadi’s death had it not been for a strange and tangential chain of events. Three months after Jamadi died, Jeffrey Hopper, a Navy SEAL who had been assigned to carry out joint operations with the C.I.A. in Baghdad, was accused of stealing another SEAL’s body armor. Hopper, who had been nicknamed Klepto by the unit, was expelled from the Special Forces. When he was dismissed, he told authorities that he knew of far worse offenses committed by other SEALs, and he cited the abuse of several prisoners, including Jamadi. His accusations formed the basis of multiple charges against several SEALs, which led to the court-martial of Lieutenant Andrew Ledford, the commander of the platoon that captured Jamadi, for, among other things, allowing his troops to assault the prisoner. Last May, Ledford was acquitted of any wrongdoing; but during the hearings, which were open, a number of troubling facts spilled out, hinting at the C.I.A.’s role in Jamadi’s death.
Seth Hettena, an Associated Press reporter based in San Diego, California, attended the hearings. The courtroom testimony, he reported, indicated that Jamadi, before arriving at Abu Ghraib, was interrogated “in a rough manner” by a combination of SEALs and C.I.A. personnel in “the Romper Room,” a tiny space in the Navy camp at Baghdad International Airport. Swanner was among those present. One of the SEALs testified that after Jamadi was handcuffed a C.I.A. interrogator rammed “his arm up against the detainee’s chest, pressing on him with all his weight.” According to a recent report by John McChesney on National Public Radio, a C.I.A. guard who witnessed the scene later told investigators that, after stripping Jamadi and dousing him in cold water, a C.I.A. interrogator threatened to “barbecue” him if he didn’t talk. Jamadi reportedly moaned, “I’m dying, I’m dying.” The interrogator replied, “You’ll be wishing you were dying.”
Court testimony also established that Jamadi was “body-slammed” by the SEALs into the back of a Humvee before being delivered to Abu Ghraib. During this time, he was handcuffed. “Was he a threat?” a Navy prosecutor asked one of the SEALs on trial. “No, ma’am,” the SEAL conceded.
Soon after the Associated Press published Hettena’s Romper Room story, two unidentified officials, evidently from the C.I.A., appeared in the courtroom. From that point on, Hettena told me, the officials, who did not give their names, protested when the testimony touched on matters sensitive to the C.I.A. In many instances, reporters and other members of the public were required to leave the courtroom. On another occasion, an unidentified C.I.A. witness testified from behind a blue curtain. Several areas of questioning by defense lawyers for the SEALs were ruled off limits. When one of the defense lawyers, Matthew Freedus, asked a witness, “What position was Jamadi in when he died?,” the C.I.A. representatives protested, saying that the answer was classified. The same objection was made when a question was asked about the role that water had played in Jamadi’s interrogation.
By late last spring, the SEALs’ reputations had been tarnished by the exposure of their rough treatment of Jamadi, but they were cleared of the gravest abuse charges. The question of who was responsible for Jamadi’s death remained unanswered. Milt Silverman, one of the defense attorneys, told me, “Who killed Jamadi? I know it wasn’t any of the SEALs. . . . That’s why their cases got dismissed.” Frank Spinner, a civilian lawyer who represented Ledford, said, “There’s a stronger case against the C.I.A. than there is against Ledford. But the military’s being hung out to dry while the C.I.A. skates. I want a public accounting, whether in a trial, a hearing before a congressional committee, or a public report. There’s got to be something more meaningful than sticking the case in a Justice Department drawer.”
Spinner and several of the other defense lawyers learned more about the C.I.A.’s role in Jamadi’s death than they were supposed to know, owing to a classification error made by the agency. The C.I.A. sent hundreds of pages of material on Jamadi’s death to the Navy; much of it was classified, and all of it was marked unclassified. The pages were passed on to the civilian lawyers, who read them carefully. The agency, after realizing its mistake, demanded that the lawyers return the classified material, and subsequently sealed virtually all the court records relating to the case. Some of the C.I.A. documents, however, were seen by a source familiar with the case, who shared their contents with me.
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