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.