A Deadly Interrogation--Can the C.I.A. legally kill a prisoner?

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A Deadly Interrogation
http://www.informationclearinghouse.info/article10904.htm
Can the C.I.A. legally kill a prisoner?

By JANE MAYER

11/07/05 "New Yorker" -- -- 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 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, 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.



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
Swanner—began "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 "medical attention."

"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 wrists—it 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 on."

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 examiners—both of
whom volunteered to review the autopsy report free, at the request
of a lawyer representing one of the SEALs—their 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 injuries—certainly 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 from—
as 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 feet—that'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 painful—it 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 did—the 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 career officer."

But there are political conflicts here, too. It is in the office of
Paul McNulty—whose 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. Attorney—that 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 hanging—how 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 cause—which 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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