Can the C.I.A. legally kill a prisoner?
A DEADLY INTERROGATION
by JANE MAYER
Issue of 2005-11-14
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
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 waterboardingthe near-drowning of a suspecthave
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
This fall, in response to the exposure of widespread prisoner abuse at
American detention facilities abroadamong them Abu Ghraib; Guantánamo
Bay, in Cuba; and Bagram Air Base, in AfghanistanJohn 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 909 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 Swannerwho 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 criminalitythe 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 indicteda 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
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 mistreatmentwhat 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 securitywe've
offered to keep it classified. It's just bullshit. 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, howevera month before Jamadi's deaththe
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
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
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
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.
Manadel al-Jamadi arrived at Abu Ghraib naked from the waist down,
according to an eyewitness, Jason Kenner, an M.P. with the 372nd
Military Police Company. In a statement to C.I.A. investigators,
Kenner recalled that Jamadi had been stripped of his pants,
underpants, socks, and shoes, arriving in only a purple T-shirt and a
purple jacket, and with a green plastic sandbag completely covering
his head. Nevertheless, Kenner told C.I.A. investigators, "the
prisoner did not appear to be in distress. He was walking fine, and
his speech was normal." The plastic "flex cuffs" on Jamadi's wrists
were so tight, however, that Kenner had trouble cutting them off when
they were replaced with steel handcuffs and Jamadi's hands were
secured behind his back.
Staff Sergeant Mark Nagy, a reservist in the 372nd Military Police
Company, was also on duty at Abu Ghraib when Jamadi arrived. According
to the classified internal documents, he told C.I.A. investigators
that Jamadi seemed "lucid," noting that he was "talking during
intake." Nagy said that Jamadi was "not combative" when he was placed
in a holding cell, and that he "responded to commands." In Nagy's
opinion, there was "no need to get physical with him."
Kenner told the investigators that, "minutes" after Jamadi was placed
in the holding cell, an "interrogator"later identified as
Swannerbegan "yelling at him, trying to find where some weapons
were." Kenner said that he could see Jamadi through the open door of
the holding cell, "in a seated position like a scared child." The
yelling went on, he said, for five or ten minutes. At some point,
Kenner said, Swanner and his translator "removed the prisoner's jacket
and shirt," leaving him naked. He added that he saw no injuries or
bruises. Soon afterward, the M.P.s were told by Swanner and the
translator to "take the prisoner to Tier One," the agency's
interrogation wing. The M.P.s dressed Jamadi in a standard-issue
orange jumpsuit, keeping the sandbag over his head, and walked him to
the shower room there for interrogation. Kenner said that Jamadi put
up "no resistance."
On the way, Nagy noticed that Jamadi was "groaning and breathing
heavily, as if he was out of breath." Walter Diaz, the M.P. who had
been on guard duty at the prison, told C.I.A. investigators that
Jamadi showed "no distress or complaints on the way to the shower
room." But he told me that he, too, noticed that Jamadi was having
"breathing problems." An autopsy showed that Jamadi had six fractured
ribs; it is unclear when they were broken. The C.I.A. officials in
charge of Jamadi did not give him even a cursory medical exam,
although the Geneva Conventions require that prisoners receive
"Jamadi was basically a `ghost prisoner,' " a former investigator on
the case, who declined to be named, told me. "He wasn't checked into
the facility. People like this, they just bring 'em in, and use the
facility for interrogations. The lower-ranking enlisted guys there
just followed the orders from O.G.A. There was no booking process."
According to Kenner's testimony, when the group reached the shower
room Swanner told the M.P.s that "he did not want the prisoner to sit
and he wanted him shackled to the wall." (No explanation for this
decision is recorded.) There was a barred window on one wall. Kenner
and Nagy, using a pair of leg shackles, attached Jamadi's arms, which
had been placed behind his back, to the bars on the window.
The Associated Press quoted an expert who described the position in
which Jamadi died as a form of torture known as "Palestinian hanging,"
in which a prisoner whose hands are secured behind his back is
suspended by his arms. (The technique has allegedly been used in the
Israeli-Palestinian conflict.) The M.P.s' sworn accounts to
investigators suggest that, at least at first, Jamadi was able to
stand up, without pain: autopsy records show that he was five feet
ten, and, as Diaz explained to me, the window was about five feet off
the ground. The accounts concur that, while Jamadi was able to stand
without discomfort, he couldn't kneel or sit without hanging painfully
from his arms. Once he was secured, the M.P.s left him alone in the
room with Swanner and the translator.
Less than an hour later, Diaz said, he was walking past the shower
room when Swanner came out and asked for help, reportedly saying,
"This guy doesn't want to coöperate." According to the NPR report, one
of the C.I.A. men told investigators that he called for medical help,
but there is no available record of a doctor having been summoned.
When Diaz entered the shower room, he said, he was surprised to see
that Jamadi's knees had buckled, and that he was almost kneeling.
Swanner, he said, wanted the soldiers to reposition Jamadi, so that he
would have to stand more erectly. Diaz called for additional help from
two other soldiers in his company, Sergeant Jeffery Frost and Dennis
Stevanus. But after they had succeeded in making Jamadi stand for a
moment, as requested, by hitching his handcuffs higher up the window,
Jamadi collapsed again. Diaz told me, "At first I was, like, `This
guy's drunk.' He just dropped down to where his hands were, like,
coming out of his handcuffs. He looked weird. I was thinking, He's got
to be hurting. All of his weight was on his hands and wristsit looked
like he was about to mess up his sockets."
Swanner, whom Diaz described as a "kind of shabby-looking, overweight
white guy," who was wearing black clothing, was apparently less
concerned. "He was saying, `He's just playing dead,' " Diaz recalled.
"He thought he was faking. He wasn't worried at all." While Jamadi
hung from his arms, Diaz told me, Swanner "just kept talking and
talking at him. But there was no answer."
Frost told C.I.A. investigators that the interrogator had said that
Jamadi was just "playing possum." But, as Frost lifted Jamadi upright
by his jumpsuit, noticing that it was digging into his crotch, he
thought, This prisoner is pretty good at playing possum. When Jamadi's
body went slack again, Frost recalled commenting that he "had never
seen anyone's arms positioned like that, and he was surprised they
didn't just pop out of their sockets."
Diaz, sensing that something was wrong, lifted Jamadi's hood. His face
was badly bruised. Diaz placed a finger in front of Jamadi's open
eyes, which didn't move or blink, and deduced that he was dead. When
the men lowered Jamadi to the floor, Frost told investigators, "blood
came gushing out of his nose and mouth, as if a faucet had been turned
Swanner, who had seemed so unperturbed, suddenly appeared "surprised"
and "dumbfounded," according to Frost. He began talking about how
Jamadi had fought and resisted the entire way to the prison. He also
made calls on his cell phone. Within minutes, Diaz said, four or five
additional O.G.A. officers, also dressed in black, arrived on the scene.
Dr. Steven Miles, a medical ethicist at the University of Minnesota,
who is writing a study of U.S. medical practices during the war on
terrorism, has examined the Jamadi incident extensively. He recently
recounted to me what happened that morning: "An Iraqi medical doctor
working with the C.I.A. confirmed Jamadi's death. Captain Donald
Reese, the commander of Abu Ghraib M.P.s, came to the shower room and
heard Colonel Thomas M. Pappas, the commander of military intelligence
at the prison, say, `I am not going down for this alone.' "
C.I.A. personnel ordered that Jamadi's body be kept in the shower room
until the next morning. The corpse was packed in ice and bound with
tape, apparently in an attempt to slow its decomposition and, Miles
believes, to try to alter the perceived time of death. The ice was
already melting when Specialist Sabrina Harman posed for pictures
while stooping over Jamadi's body, smiling and giving the thumbs-up
sign. The next day, a medic inserted an I.V. in Jamadi's arm, put the
body on a stretcher, and took it out of the prison as if Jamadi were
merely ill, so as to "not upset the other detainees." Other
interrogators, Miles said, "were told that Jamadi had died of a heart
attack." (There is no medical evidence that Jamadi experienced heart
failure.) A military-intelligence officer later recounted that a local
taxi-driver was paid to take away Jamadi's body.
Before leaving, Frost told investigators, Swanner confided that he
"did not get any information out of the prisoner." C.I.A. officials
took with them the bloodied hood that had covered Jamadi's head; it
was later thrown away. "They destroyed evidence, and failed to
preserve the scene of the crime," Spinner, the lawyer for one of the
Navy SEALs, said.
The next day, Swanner gave a statement to Army investigators,
stressing that he hadn't laid a hand on Jamadi, and hadn't done
anything wrong. "Clint C.," the translator, also said that Swanner
hadn't beaten Jamadi. "I don't think anybody intended the guy to die,"
a former investigator on the case, who asked not to be identified,
told me. But he believes that the decision to shackle Jamadi to the
window reflected an intent to cause suffering. (Under American and
international law, intent is central to assessing criminality in
war-crimes and torture cases.) The C.I.A., he said, "put him in that
position to get him to talk. They took it that pain equals coöperation."
The autopsy, performed by military pathologists five days later,
classified Jamadi's death as a homicide, saying that the cause of
death was "compromised respiration" and "blunt force injuries" to
Jamadi's head and torso. But it appears that the pathologists who
performed the autopsy were unaware that Jamadi had been shackled to a
high window. When a description of Jamadi's position was shared with
two of the country's most prominent medical examinersboth of whom
volunteered to review the autopsy report free, at the request of a
lawyer representing one of the SEALstheir conclusion was different.
Miles, independently, concurred.
One of those examiners, Dr. Michael Baden, who is the chief forensic
pathologist for the New York State Police, told me, "What struck me
was that Jamadi was alive and well when he walked into the prison. The
SEALs were accused of causing head injuries before he arrived, but he
had no significant head injuriescertainly no brain injuries that
would have caused death." Jamadi's bruises, he said, were no doubt
painful, but they were not life-threatening. Baden went on, "He also
had injuries to his ribs. You don't die from broken ribs. But if he
had been hung up in this way and had broken ribs, that's different."
In his judgment, "asphyxia is what he died fromas in a crucifixion."
Baden, who had inspected a plastic bag of the type that was placed
over Jamadi's head, said that the bag "could have impaired his breath,
but he couldn't have died from that alone." Of greater concern, he
thought, was Jamadi's position. "If his hands were pulled up five
feetthat's to his neck. That's pretty tough. That would put a lot of
tension on his rib muscles, which are needed for breathing. It's not
only painfulit can hinder the diaphragm from going up and down, and
the rib cage from expanding. The muscles tire, and the breathing
function is impaired, so there's less oxygen entering the
bloodstream." A person in such a state would first lose consciousness,
he said, and eventually would die. The hood, he suggested, would
likely have compounded the problem, because the interrogators "can't
see his face if he's turning blue. We see a lot about a patient's
condition by looking at his face. By putting that goddam hood on, they
can't see if he's conscious." It also "doesn't permit them to know
when he died." The bottom line, Baden said, is that Jamadi "didn't die
as a result of any injury he got before getting to the prison."
Dr. Cyril Wecht, a medical doctor and a lawyer who is the coroner of
Allegheny County, Pennsylvania, and a former president of the American
Academy of Forensic Sciences, independently reached the same
conclusion. The interpretation put forward by the military
pathologists, he said, "didn't fit with their own report. They said he
died of blunt-force trauma, yet there was no significant evidence of
trauma to the head." Instead, Wecht believes that Jamadi "died of
compromised respiration," and that "the position the body was in would
have been the cause of death." He added, "Mind you, I'm not a critic
of the Iraq war. But I don't think we should reduce ourselves to the
insurgents' barbaric levels."
Walter Diaz told me, "Someone should be charged. If Jamadi was already
handcuffed, there was no reason to treat the guy the way they didthe
way they hung him." Diaz said he didn't know if Swanner had intended
to torture Jamadi, or whether the death was accidental. But he was
troubled by the government's inaction, and by what he saw as the
agency's attempt at a coverup. "They tried to blame the SEALs. The
C.I.A. had a big role in this. But you know the C.I.A.who's going to
go against them?"
According to Jeffrey Smith, the former general counsel of the C.I.A.,
now a private-practice lawyer who handles national-security cases, a
decision to prosecute Swanner "would probably go all the way up to the
Attorney General." Critics of the Administration, such as John Sifton,
a lawyer for Human Rights Watch, question whether Alberto Gonzales,
who became Attorney General last year, has too many conflicts of
interest to weigh the case against Swanner fairly. Sifton said, "It's
hard to imagine the current leadership pursuing these guys, because
the head of the Justice Department, Alberto Gonzales, is centrally
implicated in crafting the policies that led to the abuse." He
suggested that the prudent thing for Gonzales to do would be to
"recuse himself from such a decision, and leave it to a deputy, or a
But there are political conflicts here, too. It is in the office of
Paul McNultywhose nomination to become Gonzales's deputy will soon be
presented to Congress, and who was a Republican congressional staff
member before being named a U.S. Attorneythat the Jamadi case has
stalled. And Alice Fisher, the new head of the Justice Department's
criminal division, got that job only under a recess appointment;
during her confirmation hearings, Fisher, who previously handled
counter-terrorism cases for the department, refused to provide all the
information requested about her knowledge of C.I.A. prisoner abuse,
and Congress did not approve her nomination.
Even more troubling is the possibility that, under the Bush
Administration's secret interrogation guidelines, the killing of
Jamadi might not have broken any laws. Jeffrey Smith says it's
possible that the Office of Legal Counsel's memos may have opened too
many loopholes for interrogators like Swanner, "making prosecution
somehow too hard to do." Smith added, "But, even under the expanded
definition of torture, I don't see how someone beaten with his hands
bound, who then died while hanginghow that could be legal. I'd be
embarrassed if anyone argued that it was."
Senator Richard Durbin, a Democrat from Illinois, served on the Senate
Intelligence Committee until January. Before his tenure ended, he
looked at the full, classified set of photographs from Abu Ghraib. In
a recent interview at his office in the Capitol, he said, "You can't
imagine what it's like to go to a closed room where you have a
classified briefing, and stand shoulder to shoulder with your
colleagues in the Senate, and see hundreds and hundreds of slides like
those of Abu Ghraib, most of which have never been publicly disclosed.
I had a sick feeling when I left." He went on, "It was then that I
began to have suspicions that something significant was happening at
the highest levels of the government when it came to torture policy."
Since then, Durbin has been trying to close the loopholes that allow
government personnel to engage in brutal interrogations. Last year, he
introduced an amendment to the defense-authorization bill affirming
that the C.I.A. was covered by U.S. laws forbidding torture and the
cruel, inhuman, and degrading treatment of prisoners. But his effort
met intense resistance from the Bush Administration, and the amendment
did not pass. Durbin tried other legislative stratagems, without much
success. Eventually, John McCain took up Durbin's causewhich led to
last month's confrontation with Cheney and Goss. The Abu Ghraib
scandal seems not to have chastened Cheney or any other Administration
officials; in fact, they are for the first time arguing openly and
explicitly that C.I.A. personnel should be exempt from standards that
apply to every other American.
"I'm concerned that the government isn't going forward on these
prosecutions," Durbin said of the C.I.A. cases. "It's really hard to
follow the Administration's policies here. I think the world was very
simple before 9/11. We knew what the law was, and I understood it to
apply to everyone in the government. Now there's real uncertainty.
There's a shadow over our nation that needs lifting."
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