What does the Justice Department do when a prisoner dies as the direct result of a Justice Department-approved torture technique? The question presents a direct challenge to the integrity of the Department and its law enforcement mission, and it reveals the dilemma that the Department faces when it advises its “clients” on how to commit torture without being prosecuted. When a person dies as the result of torture, there should be a criminal investigation leading to the prosecution of a culpable person. There have been a number of such instances involving the CIA, one being the so-called “ice man” of Abu Ghraib, Manadel Al-Jamadi. But on Sunday, the Associated Press’s Adam Goldman and Kathy Gannon examined the death of Gul Rahman in a secret CIA prison in an abandoned brick factory just outside Kabul, Afghanistan, called the “Salt Pit.” Dana Priest first broke this story in 2005, but the AP team substantially develops the facts. The most revealing aspect of this story is, as Arthur Conan Doyle would say, the fact that the dog didn’t bark.
The exact circumstances of Rahman’s death are not clear, but the Afghan was left in the cold cell on the morning of Nov. 20, when the temperature dipped just below 36 degrees. He was naked from the waist down, said two former U.S. officials familiar with the case. Within hours, he was dead. CIA headquarters in Langley, Va., sent a team “to gather the facts,” the current U.S. official said. “The guidance was for the people on scene to preserve everything as it was.” A CIA medic at the site concluded the Afghan died of hypothermia. A doctor sent later confirmed that judgment. But the detainee’s body was never returned to his family for burial.
A week later, Amnesty International issued a statement saying Baheer was being held without charge and possibly in CIA or FBI custody. No mention was made of Rahman. Rahman’s family, Baheer said, went to the Red Cross in Islamabad and Kabul. They are still uncertain of Rahman’s fate, he said. “The Americans have had enough time,” said Baheer. “They should expose all those missing people who have died. After nearly eight years, enough is enough.”
The exposure of a prisoner to extreme cold in order to affect his physical condition and “soften” him for interrogation was an accepted technique applied with a Justice Department “okay” during the war on terror. The following year, the AP piece notes, the CIA “issued guidelines covering the use of cold in interrogations, with detailed instructions for the “safe temperature range when a detainee is wet or unclothed.” But it continues to be an approved technique used on prisoners held at Bagram, with its use being documented into the Obama years.
The death launched an internal CIA probe focusing on Mr. Z, the CIA officer directly involved in handing Rahman, and Mr. P, his supervisor. (Mr. Z’s name seems to have been inadvertently exposed in footnote 28 here.) [Update, April 2, 2010: The page has now been modified and the name redacted.] After an investigation, the case went to the CIA’s number three, Dusty Foggo, who declined any formal action against the officer involved. The AP reports that Mr. Z was promoted three times since the incident in 2003. Dusty Foggo, of course, is now serving a 37-month sentence for fraud at a federal penitentiary.
But inside the Justice Department, the matter was handed off to Paul J. McNulty and Chuck Rosenberg, the U.S. attorneys in the Eastern District of Virginia, which has special jurisdiction over criminal matters involving CIA operatives. McNulty went on to hold the number two job at Justice, while Rosenberg became chief of staff to a rapidly sinking Attorney General Alberto Gonzales. Both names are tightly linked to the U.S. Attorneys’ scandal, which ultimately cost McNulty his job. The AP states that McNulty and Rosenberg “couldn’t make a case” against the CIA figures involved, and notes that they wouldn’t elaborate why not. A federal official with knowledge of the matter is quoted by the AP as stating that the lawyers could not establish that the CIA personnel involved “intended to harm the detainee.” This is the argument that has consistently been made by John Yoo and torture-apologists like Andrew McCarthy at National Review: if the techniques were applied for purposes of interrogation, then the necessary criminal intention is lacking, and prosecution is impossible. This reasoning has fairly obvious flaws, since it is both possible that a technique is being used for interrogation purposes and would reasonably be expected to lead to death or to cause serious pain meeting the standards for torture as well as homicide–a point which has been made repeatedly at international criminal tribunals, starting with those convened in Nuremberg and Tokyo at the end of World War II.
Going back over the recently released Justice Department documents, John Sifton notes that they are riddled with talk about “declination,” “declination letters,” “advanced declination decisions,” “pre-activity declination advice,” and so forth. The report about the Salt Pit helps us understand concretely what this was all about. In many of these cases, the CIA is pushing the Justice Department for assurance that, when Justice Department-approved torture techniques are used—or even something like the approved techniques—its personnel will face no prosecution. What we see is an unprecedented effort to lobby the Criminal Division and other policy-making echelons not to enforce a criminal statute, with the lobbying undertaken by persons who recognize they are about to engage in conduct which would ordinarily subject them to prosecution. Some declinations are sought pre-emptively (as when the agency proposed to waterboard Abu Zubaydeh); others after the incident has occurred. Either way, the declination is sought—just like the Office of Legal Counsel memoranda—as a shield against future prosecution.
The idea is simple. Suppose an attorney general comes into office who actually believes in enforcement of the Anti-Torture Statute. With a declination in hand, the perpetrator can say “my case was reviewed by professional prosecutors, who decided that no criminal case was warranted. The matter is closed.” And it can also be used as a sort of sword: “The fact that Bush-era prosecutors said no action was warranted, while you want to open this up, demonstrates that your prosecution is politically motivated.” In fact, all these arguments have been played out in the public debate surrounding the appointment of John Durham to conduct a special preliminary review—but the Justice Department documents show how the spade work for them was done carefully in advance.
Of course, the AP story focuses on the CIA’s role at the Salt Pit, the death, and the fact that no one was ever held accountable for it. But it seems to me, just as Sifton suggests, that the real focus of any sensible inquiry would be on any cover-up that occurred at the higher policy-making levels. The discovery of the death at the Salt Pit, like the one at Abu Ghraib, presented a direct threat to those who gave the green light for torture. The matter was handed to two politically trustworthy prosecutors in the Eastern District of Virginia, the same prosecutors who deep-sixed inquiry into the Abu Ghraib contractors, and the matter is closed. What’s going on here? The Justice Department is squelching a criminal matter that threatens the integrity and reputation of the Justice Department—one that, properly investigated, could lead straight to high-echelon political appointees at Justice.
Review of these facts makes clear why Eric Holder was right to appoint John Durham to conduct a special review of these cases. But that still leaves the question of whether the Justice Department actually has the resolve to enforce the law when it’s politically inconvenient to do so.