An Iraqi died under CIA torture in Abu Ghraib prison.
Why did a Navy SEAL platoon take the blame?
By Seth Hettena
(Copyright @ 2020)
I. A death in Abu Ghraib
Today, March 19, marks the 18th anniversary of the Iraq War, a conflict that has claimed the lives of more than 4,400 American servicemen and women. Another 31,000 were wounded
Hundreds of thousands of Iraqis also perished in the years since U.S.-led forces invaded Iraq. This is a story about one of them, the death of a man named Manadel al-Jamadi. It’s a story I have been reporting on and trying to tell for more than a decade, but it’s also a story that parts of the CIA and the special forces didn’t want to be told.
Manadel al-Jamadi died in 2003 in CIA custody the shower room of Baghdad’s Abu Ghraib prison, a few hours after he was captured by Navy SEALs.
If al-Jamadi’s body had been treated with respect, his name would be lost to history, another casualty in a long and bloody war.
But that’s not what happened. What did happen is a few members of the U.S. Army National Guard decided to have a little fun with his corpse.
In the photos that surfaced in the Abu Ghraib prison scandal, you can see al-Jamadi’s corpse packed in ice while the soldiers who were pulling duty as prison guards leered in the background.
Al-Jamadi’s death would be investigated by the Army, the Navy, the CIA, the Department of Justice, and finally Special Counsel John Durham. It was an investigation that led into the darkest parts of the CIA’s “enhanced interrogation,” exposing early on how the program led to torture.
Someone had to be held accountable for what happened to the man on ice.
It turned out to be the members of the SEAL platoon that captured him.
One day they were heroes. They next day they were criminals.
And it all started with the word of a thief.
Jeffrey Hopper was a member of Seal Team Seven’s Foxtrot platoon, a reservist who had returned to active duty after 9/11. But the platoon wanted nothing to do with him.
His fellow teammates accused him of being a thief. They called him “klepto.”
Things would go missing after Hopper’s unit deployed to Iraq. Small stuff at first. A flashlight. An iPod.
One day, a SEAL named Ryan couldn’t find his body armor he wore to keep him safe on the battlefield. The whole camp was searched. No trace of it was found.
Someone happened to notice two small cigarette burns on the body armor Hopper was wearing.
The thing was Hopper didn’t smoke. Ryan did.
Someone tugged on the velcro straps on Hopper armor. There, in black marker, was Ryan’s name written on the inside.
Stealing someone’s body armor is the kind of thing that will get you kicked out of the SEALs. Which was exactly what was about to happen to Hopper in May 2004 when he met with the commanding officer of SEAL Team Seven back at SEAL headquarters in Coronado, California.
But before Hopper could be stripped of his Navy SEAL Trident, he told his CO he had something to say. He had seen members of his unit sadistically punch, kick and twist the testicles of defenseless prisoners.
Hopper couldn’t have timed his revelations any better. The Abu Ghraib prison scandal had just exploded in the press. President Bush went on Arab television to apologize.
“There will be investigations,” Bush said. “People will be brought to justice.”
There was one prisoner whose beating Hopper said had personally witnessed.
It was the ice man in the Abu Ghraib photos, Manadel al-Jamadi.
Part III. Lions Led by Dogs
There comes a point in every military career where a commander has to stand up for his men.
If he is worth his salt, a commander accepts responsibility for the actions of those under his command. If a ship runs aground, the captain is responsible, even if he or she happened to be asleep at the time.
“When things go wrong in your command,” General Bruce D. Clark once said, “start wading for the reason in increasing larger concentric circles around your own desk.”
Hopper’s commanding officer, Alex Krongard, certainly couldn’t ignore what Hopper had told him, but he had good reason to be skeptical.
Hopper, after all, was about to get kicked out of the SEALs. Didn’t Foxtrot platoon deserve the benefit of the doubt?
Foxtrot platoon had completed 120 successful missions in Iraq, capturing 365 people and killing about a dozen. They weren’t trigger happy. They were highly-trained professional soldiers.
Krongard could have done some checking of his own. He might have learned that things tended to disappear around Hopper. He might have learned that there were doubts about Hopper’s story.
But then again, Alex Krongard had his career to consider. The Abu Ghraib scandal was going to wreck careers. Defense Secretary Donald Rumsfeld had offered to resign. If Krongard stood by his men, who were connected to it however indirectly, some of that stink might land on him.
And Alex Krongard had a promising career ahead of him.
There’s a story about the Krongard family that might help explain what Alex did next.
Krongard was the son of Alvin “Buzzy” Krongard, a former chairman of the Baltimore investment firm Alex, Brown & Co., whom CIA Director George Tenet had picked for the No. 3 job at the spy agency.
Buzzy Krongard left the CIA in the fall of 2004 and took a seat on the advisory board of Blackwater, the military contracting giant founded by Erik Prince. Prince got to know Buzzy through Alex, who trained at Blackwater as a Navy SEAL.
Alex’s uncle, Howard “Cookie” Krongard, was the inspector general for the State Department. And the State Department had awarded Blackwater contracts worth more than a billion dollars to keep its personnel safe in Iraq.
In 2007, Blackwater personnel shot and killed 14 unarmed civilians in Nisour Square, a traffic circle in Baghdad, and wounded 18 more. Democrats in Congress held hearings and accused Howard Krongard of blocking State Department investigations into Blackwater.
Questioned about his brother’s role in the company, Howard Krongard testified that he had checked with Buzzy and he reported that his brother had nothing to do with Blackwater. After a recess, Howard Krongard sheepishly admitted that his brother did have a role with Blackwater. He recused himself from all State Department matters related to the company. His brother, Buzzy, resigned from Blackwater.
So what did Alex Krongard do when faced with Hopper’s allegations? He forwarded them up the chain of command for further investigation.
Krongard would be promoted all the way up to rear admiral. His men felt like they were being hung out to dry.
As one SEAL who served under Krongard told me, they were lions led by dogs.
Part IV. Kill or Capture
A dozen members of Foxtrot platoon would be accused in one way or another of prisoner abuse.
Navy prosecutors started rounding up suspects and threatened them with prison if they didn’t talk. One member of the platoon was led away in handcuffs from his wedding rehearsal dinner
Dan Cerrillo was one of the accused. He spent 12 years on active duty in the SEALs. He was awarded a Bronze Star for bravery and a Purple Heart.
He faced a slew of charges in the al-Jamadi case and was found not guilty of all of them except taking an unauthorized photo and making a false official statement.
Cerrillo quit in disgust over the way he and his teammates were treated during the al-Jamadi case. Even after all the Navy did to him, he continues to help prepare young men who want to become SEALs.
Cerrillo was Foxtrot Platoon’s breacher. His main job was to sprint up to a door and blast it open with an explosive charge, storm inside and take the prisoner into custody. And he did it in the dead of night while wearing 60 pounds of gear, including a helmet, body armor with two ceramic plates, an M4 rifle, a 9mm pistol, grenades, a knife and a radio.
That’s what he was wearing after midnight on November 4, 2003, when Foxtrot platoon set out to find al-Jamadi on a joint CIA-special forces mission.
The CIA’s sources had identified al-Jamadi as a group cell leader of the Abu Abdullah terrorist group that had blown up the Baghdad offices of the Red Cross in October 2003, killing 12. The explosion left a crater six feet deep and shattered windows a mile away, and it was one of five blasts that rocked Baghdad within a 45-minute span that morning.
The CIA’s sources also said al-Jamadi had two tons of high explosives at his disposal to cause even more havoc and bloodshed.
Foxtrot platoon usually went on “capture or kill” missions. The objective was to bring suspects back alive so they could be questioned and future attacks could be thwarted.
The al-Jamadi mission was “killl or capture.” If he put up a fight, the SEALs were told to put him down.
Part V. Turning Steel
Al-Jamadi lived in Al Mahmudiyah, a short, dangerous drive south of Baghdad. Al Mahmudiyah marked the upper boundary of an area known as the Triangle of Death, a hotbed of the insurgency.
Based on the intelligence, Cerrilo and his partner, Jay, who was the unit’s other breacher, built C-3 double-tamped charges, which contained a few hundred grains of explosive encased in rubber. Just enough to blow the lock open without hurting anyone on the SEAL team or anyone inside.
Jay and Cerrillo took turns alternating as lead breacher, the one who actually set the explosive charge. This mission, it was Jay’s turn.
According to the CIA’s sources, al-Jamadi lived on the third floor, at the far right end of enclosed hallway behind a wooden door.
The assault team ran up to the third floor and then held back while Jay ran down the hallway to the right, prepping his breaching charge as he went. Eight, nine seconds passed while he slapped the charge on the door and backed off.
“Turning steel,” Jay said into his headset. That was the signal that the charge was about to go off.
Jay flew inside the apartment and the rest of the primary breach team followed and grabbed the man inside.
It was the wrong man.
“This is not the house!” the platoon leader called out “This is not the house! Reset! Reset!”
The platoon leader pointed Cerrillo to a door at the other end of the hallway. “It’s that one right there!”
Cerrillo ran up to the door and got his breaching charge ready. Right as he was about to attach it he heard a faint noise, “rrrrrt” — the squeak of a door opening or the creak of a floorboard.
He attached the charge, backed up two steps and then saw a little flash of light as the door opened less than an inch and shut again.
The hair on the back of Cerillo’s neck stood up.
Part VI. “I was hitting him anywhere I could, and he was hitting me.”
I’ll let Cerrillo tell what happened next.
“I paused for a split-second, and then sprang up into door and hit is as hard as I could. The first thing I did was to grab hold of the guy standing behind it and try to take him to the ground.
“It was al-Jamadi, all right. He was about eight inches taller than me, but under the circumstances he seemed like a giant.
“There wasn’t enough room to bring him down in the tight hallway, with my teammates pushing to get past me. I slammed him against the wall and we tumbled into the kitchen, just to the right of the doorway. We crashed together onto the wooden kitchen table.
“I was hitting him anywhere I could, and he was hitting me. His hands were up under my face. So we were like that, fighting for a moment on top of the kitchen table, and then it broke beneath us and we crashed together onto the floor.
“He landed half on top of me. I bench-pressed him up off of me and slammed him back down and got on top of him and started pounding away. I was trying to hit him as hard as I could, but I only connected a couple of times. I hit him in the eye and in the jaw, but I was hitting the cement floor of the apartment with my gloved hands just as often. My hands were raw and swollen the next day, and they still bear the scars today. He had his hands on my neck. He must have been hitting me, too. The next day, I had a fat lip and I was sore.
“At that moment, all I could think about was shooting this fucking guy. Shoot him. Shoot him. But I couldn’t grab my gun. The shattered kitchen table was in the way and I just kept slapping the wood when I reached for my pistol. I was on my knees, with his hands on my neck, and I tried to stand up. There was an oven door handle and I grabbed hold of it to pull myself up. It was a heavy steel stove, and when I pulled on it, the thing toppled over.”
The stove landed on al-Jamadi’s head. The fight was over.
Winded from the fight, Cerrillo cuffed al-Jamadi and got him up and brought him over to the doorway.
For a long time after that, whenever Cerrillo saw the photos of al-Jamadi or thought about him, he believed that he had killed him.
Then he learned the CIA had.
Part VII. “I’m Manadel”
Al-Jamadi’s wife and kids were all in the living room. Watching. One of his children was crying. His wife was seated, wearing a little black and white kaffiyeh and a blue dishdasha. Nobody said anything.
Then, al-Jamadi turned to Cerrillo and, in perfect English, told him, “Don’t beat me in front of my kids, OK.”
“I’m not going to beat you here in front of your kids,” Cerrillo told him. “You fuck up, I’m going to beat your ass when we get outside.”
“Do not fuck around,” Cerrilo told him. “We’re leaving. You’re coming with us.”
“I didn’t do anything wrong,” he said.
“You know why we’re here,” Cerrillo told him.
He didn’t say anything after that.
It was someone’s job to mark time during the operation. Now, the unit heard the elapsed time announced over their headsets. Three minutes had passed since they arrived at the apartment building.
The lieutenant who led Foxtrot platoon, Lt. Drew, searched the apartment. In the apartment hallway, he found a gun. Cerrillo had probably knocked it out of al-Jamadi’s hands when he slammed into the door. Lt. Drew also found a knife in the kitchen, a big bronze dagger.
“Who’s this guy?” Lt. Drew asked Cerrillo.
“This is him,” Cerrillo repled.
“Well, how do you know?” Lt. Drew asked. “We gotta make sure.”
Cerrillo turned to al-Jamadi.
“Hey, fucker. Is your name Mohammed?” Cerrillo asked.
“No I’m Manadel,” he replied.
Cerrilo turned back to his platoon leader.
“I told you. It’s fucking him!”
Part VIII. Stuck on a Cul-de-Sac in the Triangle of Death
The SEALs were instructed to bring al-Jamadi outside so the CIA’s source could identify him.
Cerrillo led al-Jamadi out and put a sandbag over his head.
Out in the hallway, al-Jamadi started acting up. He started kicking like a mule. He was doing everything he could to make things difficult. It was like trying to get a drunk out of a bar. So Cerrillo gave him a couple of open hand shots hard to the back of his head, just as he had warned him he would.
He marched al-Jamadi to the CIA vehicle, pulled back his hood and shined a light in his face. The tinted window on the black Suburban rolled down.
Inside, the source confirmed they had right guy. Brandon, a nerdy agency case officer, gave the thumbs-up.
Cerrillo loaded al-Jamadi into one of the Humvees. The way the SEALs got detainees into the Humvee was by leaning their chests over the tailgate and then lifting their legs up so they basically did a somersault into the Humvee.
The SEALs had practiced the maneuver on themselves and they say that, while it didn’t feel great, it didn’t hurt. It was the fastest way to get a detainee loaded and they were all about getting out there as soon as possible. This maneuver would later become one of the allegations of “prisoner abuse.”
The SEALs couldn’t leave right away. One of the CIA vehicles had taken a wrong turn on the way to the target and had gotten lost. So they waited.
“Five minutes,” the timekeeper called.
Not good. The mission was taking too long.
Lights started coming on in the apartments above and around them. They started seeing heads popping up in windows and over the rooftops. Pilots in a U.S. Blackhawk helicopter that was taking part in the mission started seeing men running between buildings.
They were just sitting there, stuck on a cul-de-sac in the Triangle of Death.
Finally, the lost CIA vehicle found them. Just in time, too, because they the clatter of small-arms fire as the convoy roared off.
Jeff Hopper would claim that he saw al-Jamadi being beaten in the back of the Humvee. That night, however, he was riding in a different vehicle.
The convoy stopped to regroup at the 82nd Airborne base about a mile away. The SEALs were in good spirits. They had just captured the leader of a terrorist cell that blew up the Red Cross.
Someone pulled out a camera and snapped a few group photos to memorialize the moment. The photos would later become evidence in criminal proceedings.
Then they were off again, back to the SEAL base at Baghdad International Airport.
Part. IX The Romper Room
Cerrillo and the rest of the unit went to bed.
For al-Jamadi, the suffering was about to begin.
He taken to an area on base the SEALs sarcastically referred to as the “Romper Room.”
There, he was doused with cold water and interrogated by CIA and Naval Special Warfare personnel.
Two SEALs were present for the entire two-hour interrogation in the Romper Room. Their on-scene commander wanted them there, as one put it, to ensure that nothing got out of hand and no one died on the SEAL base.
In the Romper Room, a CIA officer used a mix of force, threats and humiliation to try to get al-Jamadi to talk.
According to one of the SEALs, the CIA officer pressed his forearm into al-Jamadi’s chest or pushed down hard on his shoulders during the interrogation.
At another point, al-Jamadi was made to stand against the wall. His arms were stretched out away from him, and someone threatened to hit his hand with a hammer, though no one did.
After about an hour, al-Jamadi had been stripped down to his underwear. Those who saw him couldn’t help but notice the healed “scars from hell” on his body. They reminded one person of the scars on John Rambo, the damaged Vietnam vet played by Sylvester Stallone in the movie First Blood.
“I’m going to barbecue you!” the CIA officer screamed at al-Jamadi.
At one point, according to one witness in the room, the interpreter translated al-Jamadi as saying “I’m dying, I’m dying.”
“You’ll be wishing you were dying,” the CIA officer replied.
Part X. “Palestinian hanging”
The prosecution of the SEALs took place in a military courtroom on the 32nd Street Navy base in San Diego. I covered the case for The Associated Press.
Inside the courtroom, the proceedings were full of secrets.
Every so often, a military judge would clear journalists from the courtroom to discuss classified matters. The only civilians who stayed behind were a pair of young CIA attorneys. When the day’s proceedings wrapped up, they would rush off to a classified phone to report back to Langley.
The biggest mystery of all was how al-Jamadi had died. It was clear there was something the government didn’t want the public to know.
All we were told is that he was found dead in the shower room at Abu Ghraib prison. The CIA had taken him there after leaving The Romper Room. He was a “ghost detainee.” He was being held off-the-books in the prison.
One day, a defense attorney for a Navy SEAL lieutenant was interviewing a witness when he asked a question that got my attention:
“What position was Jamadi in when he died?”
One of the CIA attorneys in the courtroom leapt out of his seat.
“That’s classified!” he shouted.
It took me a while, but I found out the position al-Jamadi was in when he died.
The answer was in a pile of documents a lawyer let me read in his musty, wood-paneled office in the suburbs of San Diego.
First, al-Jamadi’s arms were handcuffed behind his back.
Per the CIA’s instructions, he was made to kneel. A chain was attached from the handcuffs to a barred window above the prisoner’s head in the Abu Ghraib shower room.
If he tried to lean forward, his arms would be wrenched painfully back up over his head.
This position is known as a “Palestinian hanging,” named for its alleged use by Israel in the Palestinian territories.
During the interrogation, an Army guard who saw what was going on said he was surprised that his hyperextended arms didn’t “pop out of their sockets.”
An autopsy ruled the death the result of blunt force trauma and compromised respiration.
But Michael Baden, a medical examiner who consults in many high-profile cases, reviewed the autopsy at the request of defense attorneys for one of the SEALs. Blunt force injuries were insufficient to kill al-Jamadi because he was alive and well when he entered the prison.
“Asphyxia is what he died from—as in a crucifixion,” he told The New Yorker’s Jane Mayer.
One of the grim facts of crucifixion is that its victims are slowly strangled to death.
Part XI. The New Sheriff
This was a glimpse into the CIA’s interrogation program when the gloves were still off, before the revelations of Abu Ghraib set in motion a chain of events that led the agency to shut down the program.
Americans weren’t supposed to hang prisoners by their shoulders. President Bush was assuring the world that America didn’t use torture.
Someone at the CIA hadn’t gotten the message. I suspected that some people in the agency were following a different set of rules.
It turned out I was right. The confirmation for that came from an unlikely source – the man who waterboarded Khalid Shaikh Mohammed, the principal architect of 9/11, 183 times.
James Mitchell was a former Air Force psychologist who helped design the CIA’s interrogation protocols. He later revealed that, in the program’s early days, techniques were employed that went way beyond what the Department of Justice or the agency had authorized.
This might sound strange coming from the man who advocated waterboarding detainees, which makes subjects feel like they’re drowning. But Mitchell drew the line at causing physical harm. Waterboarding, he wrote, “is scary and uncomfortable but not painful.”
Some in the CIA disagreed with Mitchell. They wanted to inflict pain.
“There was this other view,” Mitchell testified, “that what you do is you essentially hurt the person until they tell you what you want to know, and then you hurt them a little bit more.”
One of the main proponents of this “other view” was a veteran CIA officer named Charlie Wise.
Wise had served with the CIA in Nicaragua where had learned how to inflict pain in ways that didn’t leave any marks. Like making people kneel with a broomstick behind their knees.
Wise had been reprimanded for his role in other troubled interrogation efforts in the 1980s in Beirut, according to The Washington Post.
In his 2016 book, Enhanced Interrogation, Mitchell recounted a harrowing “interrogation” Wise conducted around Christmas 2002 in a secret prison in Poland. The subject was Abd al-Rahim al-Nashiri, the suspected mastermind of the bombing of the USS Cole.
…the chief interrogator stood al-Nashiri up and cinched his elbows together behind his back with a leather strap until they touched. Then the chief interrogator and one of the newly minted interrogators started lifting al-Nashiri’s arms behind him, toward the ceiling. Al-Nashiri bent over and screamed. I knew this had not been approved.James Mitchell, Enhanced Interrogation
Just like the guards in the Abu Ghraib shower room, Mitchell wrote that he believed the prisoner’s arms were going to pop out of their sockets.
Mitchell doesn’t name Wise in his book, but media reports identified him as the man Mitchell calls the new sheriff.
That was the first thing Mitchell heard arrived at the secret prison in Poland. “There is a new sheriff in town,” Wise had told him. “I’m calling the shots now. Wise told Mitchell he had decided to “start over from square one” and employ techniques he had used in Latin America during the 1980s.
Mitchell complained about Wise to CIA leadership and ultimately told his account to the agency’s inspector general. Wise left the agency in the summer of 2003 and died shortly thereafter from a heart attack.
Even with Wise gone, his influence continued to be felt in the spy agency’s nascent interrogation program.
Wise had personally trained a group of five to eight hand-picked interrogators. He had instilled in them his belief that the CIA’s approved techniques didn’t go far enough and taught them the things he believed would do the job.
Mitchell called them Wise’s “acolytes.”
Part XII. Playing Possum
Another mystery in the prosecution of the Navy SEALs was the identities of the CIA personnel who were in the room when al-Jamadi died.
One evening, while I was covering the al-Jamadi case for the AP, I met a source in a hotel room in San Diego who allowed me to look through a cache of military documents.
One document prepared by Army investigators identified the CIA interrogator who was questioning al-Jamadi.
His name was Mark B. Swanner. He was a polygraph examiner at the CIA.
Swanner was the guy in the “Romper Room” who had threatened to smash al-Jamadi’s hands with a hammer and told him he was going to barbecue him.
The Senate’s investigation into the CIA’s torture program found that agency-trained interrogators “included individuals who, among other issues, had engaged in inappropriate detainee interrogations, had workplace anger management issues, and had reportedly admitted to sexual assault.”
In its response, the CIA conceded that a shortage of people willing and able participants in the interrogation program was “a huge challenge.”
Was Swanner one of Charlie Wise’s “acolytes?” He sure acted like it.
While he was interrogating al-Jamadi in Abu Ghraib, Swanner had acted like it was a completely normal thing to watch someone dangle from their wrists.
When Army MPs were summoned into the shower room to reposition al-Jamadi, the guards were stunned to see the prisoner in such a contorted position, but Swanner seemed almost blasé.
“He was kind of calm,” Tony Diaz, one of the MPs on the scene later recalled. “He was sitting down the whole time. He was like ‘Yeah, you know, he just don’t want to cooperate. I think you should lift him a little higher.’”
Swanner said the Iraqi was faking injury – “playing possum,” as he put it.
The guards released the shackles, lowered al-Jamadi, and removed the nylon bag on his head.
Blood gushed from his mouth “as if a faucet had been turned on,” one guard recalled. “After we found out he was dead, they were nervous,” Army Specialist Dennis E. Stevanus said of the CIA interrogator and translator. “They didn’t know what the hell to do.”
“No one’s ever died on me before when I interrogated them,” said the CIA translator in the room with Swanner, a heavyset Lebanese-Christian called Clint.
The next day, al-Jamadi’s corpse was spirited out of Abu Ghraib on a stretcher with an IV stuck in his arm to make it appear that he was still alive.
Swanner no longer works at the spy agency. He has never commented on the al-Jamadi case. In photos I found on Facebook (under an alias), he seems to be living a happy retirement from the agency.
Part XIII. Bull Durham
John Helgerson, the CIA Inspector General, sent investigators to Naval Special Warfare Command in Coronado in the spring of 2004 to interview SEALs about al-Jamadi’s death.
“We know you didn’t kill him,” one of Helgerson’s investigators told Dan Cerrillo. “We just need to know what injuries you caused so we can eliminate them.”
The CIA Inspector General’s office forwarded its findings to the U.S. Attorney’s office in the Eastern District of Virginia. The case sat dormant for years.
Finally, John Durham got the case. In June of 2011, Attorney General Eric Holder announced that he had accepted Durham’s recommendation to conduct full criminal investigations for two deaths in custody.
One was Gul Rahman, a suspected Afghan militant who froze to death in 2002 in the Salt Pit, a, frigid, secret CIA prison in a former brick factory north of Kabul.
The other was Manadel al-Jamadi.
The al-Jamadi remains the only known case where you can put a CIA officer in the room with a prisoner who died in a position the world recognizes as torture.
It has taken years of media reports, a lawsuit, and United Nations inquiry to pry out even the most basic facts about Durham’s investigation into CIA interrogations.
Durham and his team of prosecutors and FBI agents interviewed 96 witnesses. Those summoned to testify before a grand jury in Alexandria, Virginia included Dan Cerrillo and others from Foxtrot platoon, including Jeff Hopper. Mark Swanner testified. So did his boss David Martine, the former chief of the CIA’s Detention Elicitation Cell in Iraq, who was accused of destroying evidence – the hood covering al-Jamadi’s head. Even the Abu Ghraib guards who took photos of detainees were called in to testify.
Little more than a year later, AG Holder announced that Durham had closed his investigation without filing any criminal charges.
AUSA John Durham has now completed his investigations, and the Department has decided not to initiate criminal charges in these matters. In reaching this determination, Mr. Durham considered all potentially applicable substantive criminal statutes as well as the statutes of limitations and jurisdictional provisions that govern prosecutions under those statutes. Mr. Durham and his team reviewed a tremendous volume of information pertaining to the detainees. That review included both information and matters that were not examined during the Department’s prior reviews. Based on the fully developed factual record concerning the two deaths, the Department has declined prosecution because the admissible evidence would not be sufficient to obtain and sustain a conviction beyond a reasonable doubt.
With that decision, John Durham ensured that the only people who were charged with a crime in connection with al-Jamadi’s death were the ones who didn’t kill him: The men of SEAL Team Seven’s Foxtrot Platoon.
The decision was strongly criticized. Later, the Justice Department said Durham’s review was limited to whether any prosecutable offenses were committed and did not include “the broader questions regarding the propriety” of the conduct.
Durham laid out his reasoning in a report submitted to Holder’s chief of staff in 2012. Those reports have never been made publicly available.
Durham refused to speak to outside investigators. “Durham would not even return our phone calls,” Daniel Jones, the former Senate investigator who compiled the more than 6,000-page report on the CIA’s detention and interrogation programs, told me. “He refused to speak to us.”
“It makes you wonder now about Durham,” Jones continued. “What was going on? Why did he refuse to speak with the Senate investigators? And how did he come to the conclusion he did, given the CIA records the Senate reviewed?”
The Department of Justice has spent years fighting to Durham’s reports secret. Charlie Savage, a reporter at The New York Times, filed in a Freedom of Information Act lawsuit to bring them to light. The newspaper lost the battle to make the reports public.
Interestingly, Durham noted in a court filing in the New York Times lawsuit that disclosing the names of covert personnel involved in the interrogation program, “could subject them to harassment or embarrassment as well as undue public attention,” according to the judge’s ruling the case.
No one seemed too concerned about harassing or embarrassing the SEALs who faced charges in the case.
These days, John Durham is investigating a subject near and dear to Donald Trump: the FBI’s investigation of the Trump campaign’s connections to Russia. Trump liked to call him “Bull Durham.”
“You have Bull Durham, who is supposed to be the toughest,” Trump said. “I’ve never met him. Never spoke to him. But he’s supposed to be the smartest and the best.”
Someday, Durham will reveal the findings of his investigation of the investigators.
The question we’re left with when does is this: Was the FBI’s investigation of a presidential campaign a bigger crime than crucifying an Iraqi prisoner to death?
The Trump Justice Department has decided to open a criminal investigation into the origins into the FBI’s investigation into the links between the Trump campaign and Russia. Leading this investigation is a veteran federal prosecutor named John Durham.
The New York Times reports that Durham wants to interview former officials who ran the CIA in 2016. Some CIA officials have retained criminal lawyers in anticipation of being questioned.
Durham has investigated the CIA before in a case that I know very well. And the outcome of that investigation tells us a lot about what justice means when it comes to the actions of the U.S. intelligence community.
In 2009, Durham was tapped to investigate the homicide of an Iraqi prisoner named Manadel al-Jamadi. Al-Jamadi’s corpse appears in the gruesome photos taken by U.S. soldiers in Abu Ghraib prison. Grinning soldiers flash thumbs up over his decomposing body.
Al-Jamadi was a “high-value target,” suspecting of supplying explosives in the October 2003 bombing of a Red Cross facility in Baghdad that killed 12 and a group of Navy SEALs was sent out to go and get him. The SEALs captured al-Jamadi in his home the following month in a nighttime raid. They had returned to their base. There, the SEAL and CIA team that captured ai-Jamadi took turns punching, kicking and striking him with their rifles after he was detained in a small area in the Navy camp at Baghdad International Airport known as the “Romper Room.”
A CIA interrogator threatened him, saying: “I’m going to barbecue you if you don’t tell me the information.” A government report states that another CIA security guard recalled al-Jamadi saying he was dying. “You’ll be wishing you were dying,” the interrogator replied.
Al-Jamadi was handed over to the CIA. The next day, he was dead.
A group of Navy SEALs was being prosecuted for abusing al-Jamadi – but, critically, not for killing him. Exactly how al-Jamadi died was shrouded in mystery and the CIA was working very hard to keep it that way. A team of young CIA lawyers sat with us journalists during the courtroom proceedings in a San Diego Navy base. When one of the SEALs’ defense lawyers asked a curious question – “what position was al-Jamadi in when he died?” – a CIA lawyer stood up and objected. “That’s classified,” he said.
Back then, when I working for The Associated Press, I found out that al-Jamadi had died in the shower room at Abu Ghraib a position known as a “Palestinian hanging” – a position that human rights groups condemn as torture.
His arms, which were handcuffed behind his back, were attached by a chain to the wall behind him. If he tried to sit or lie down his arms would be wrenched up painfully behind his back. And that’s how he died, with his arms wrenched behind his back. One Army guard, Sgt. Jeffery Frost, told investigators he was surprised al-Jamadi’s arms “didn’t pop out of their sockets.”
This was a crucifixion. “Asphyxia is what he died from — as in a crucifixion,” said the military pathologist who ruled the case a homicide.
There were only two people in the room with al-Jamadi when he died, a CIA interrogator and a translator. The interrogator’s name, I found out later, was Mark B. Swanner.
Swanner told guards that al-Jamadi was “playing possum” — faking it — and then watched as guards struggled to get him on his feet. But the guards realized it was useless.
“After we found out he was dead, they were nervous,” Spc. Dennis E. Stevanus said of the CIA interrogator and translator. “They didn’t know what the hell to do.” Blood was cleaned up. Evidence was disposed of and al-Jamadi was spirited out of the prison with an IV attached to his lifeless arm to make it appear that he was still alive.
But years later, all that had come of it was that a bunch of Navy SEALs were spending their life savings hiring defense attorneys. Of the 10 who were accused, nine ended up with nonjudicial punishment. A SEAL officer was acquitted at trial.
As for Swanner, nothing was happening to him. The CIA’s Inspector General referred the case to the Justice Department, but nothing happened. Jane Mayer of The New Yorker wrote a big story about Swanner. Still nothing.
In August 2009, U.S. Attorney General Eric Holder directed Durham to review roughly a dozen cases of alleged abuse against “war on terror” suspects that had gone dormant. He narrowed the cases down to two: Al-Jamadi and an Afghani named Gul Rahman.
Durham convened a grand jury in the Eastern District of Virginia and began calling witnesses. TIME magazine obtained a subpoena signed by Durham that stated “the grand jury is conducting an investigation of possible violations of federal criminal laws involving War Crimes (18 USC/2441), Torture (18 USC 243OA) and related federal offenses.”
Once again, the Navy SEALs who captured al-Jamadi were called up to testify. One SEAL called me after he received a subpoena. He was angry and upset that he had to go through the whole ordeal all over again. I put him in touch with a DC attorney I knew who agreed to help him out.
Three years went by. In 2012, Holder announced that “based on the fully developed factual record concerning the two deaths, the department has declined prosecution because the admissible evidence would not be sufficient to obtain and sustain a conviction beyond a reasonable doubt.”
The word “admissible” is doing a lot of work in that sentence.
Durham had looked at whether Swanner had used “unauthorized” interrogation techniques. “The approach taken in the inquiry was not to prosecute anyone who acted in good faith and within the scope of the legal guidance given by the justice department’s Office of Legal Counsel regarding the interrogation of detainees,” the Guardian wrote.
In other words, CIA officers were immune from prosecution as long as they stayed within the guidelines of the dubious “Torture Memo” drafted in 2002 by John Yoo that was withdrawn, reinstated, and ultimately rescinded by President Obama. Although Yoo’s memo only applied to one high-level al Qaida suspect, the CIA treated it as a generalized authorization to use the “enhanced” techniques on detainees held at black sites.
According to Yoo’s memo, placing a prisoner on the floor with legs extended and arms raised above his head was authorized as a “stress position.” Yoo said such a position “falls far below the threshold of severe physical pain” that would constitute torture.
The legal reasoning here, as applied to Swanner, appears to have been equally tortured, for it implies that although al-Jamadi was crucified to death he didn’t experience severe physical pain.
When Durham’s decision was announced, the CIA breathed a sigh of relief; human rights advocates called it a scandal. “Continuing impunity threatens to undermine the universally recognized prohibition on torture and other abusive treatment,” said Jameel Jaffer, deputy legal director of the American Civil Liberties Union.
The question is whether John Durham will find a way to do what he failed to in the al-Jamadi case: prosecute CIA officials for daring to investigate a presidential campaign that, as the Muller Report found, welcomed offers of Russian assistance.
It may be that investigating a presidential candidate carries greater risks than crucifying a man to death.