No Comment — March 29, 2010, 12:44 pm

Inside the Salt Pit

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.

Share
Single Page

More from Scott Horton:

Conversation August 5, 2016, 12:08 pm

Lincoln’s Party

Sidney Blumenthal on the origins of the Republican Party, the fallout from Clinton’s emails, and his new biography of Abraham Lincoln

Conversation March 30, 2016, 3:44 pm

Burn Pits

Joseph Hickman discusses his new book, The Burn Pits, which tells the story of thousands of U.S. soldiers who, after returning from Iraq and Afghanistan, have developed rare cancers and respiratory diseases.

Context, No Comment August 28, 2015, 12:16 pm

Beltway Secrecy

In five easy lessons

Get access to 169 years of
Harper’s for only $23.99

United States Canada

CATEGORIES

THE CURRENT ISSUE

September 2019

The Wood Chipper

= Subscribers only.
Sign in here.
Subscribe here.

Common Ground

= Subscribers only.
Sign in here.
Subscribe here.

Love and Acid

= Subscribers only.
Sign in here.
Subscribe here.

The Black Axe

= Subscribers only.
Sign in here.
Subscribe here.

view Table Content

FEATURED ON HARPERS.ORG

Article
Common Ground·

= Subscribers only.
Sign in here.
Subscribe here.

Thirty miles from the coast, on a desert plateau in the Judaean Mountains without natural resources or protection, Jerusalem is not a promising site for one of the world’s great cities, which partly explains why it has been burned to the ground twice and besieged or attacked more than seventy times. Much of the Old City that draws millions of tourists and Holy Land pilgrims dates back two thousand years, but the area ­likely served as the seat of the Judaean monarchy a full millennium before that. According to the Bible, King David conquered the Canaanite city and established it as his capital, but over centuries of destruction and rebuilding all traces of that period were lost. In 1867, a British military officer named Charles Warren set out to find the remnants of David’s kingdom. He expected to search below the famed Temple Mount, known to Muslims as the Haram al-Sharif, but the Ottoman authorities denied his request to excavate there. Warren decided to dig instead on a slope outside the Old City walls, observing that the Psalms describe Jerusalem as lying in a valley surrounded by hills, not on top of one.

On a Monday morning earlier this year, I walked from the Old City’s Muslim Quarter to the archaeological site that Warren unearthed, the ancient core of Jerusalem now known as the City of David. In the alleys of the Old City, stone insulated the air and awnings blocked the sun, so the streets were cold and dark and the mood was somber. Only the pilgrims were up this early. American church groups filed along the Via Dolorosa, holding thin wooden crosses and singing a hymn based on a line from the Gospel of Luke: “Jesus, remember me when you come into your kingdom.” Narrow shops sold gardenia, musk, and amber incense alongside sweatshirts promoting the Israel Defense Forces.

I passed through the Western Wall Plaza to the Dung Gate, popularly believed to mark the ancient route along which red heifers were led to the Temple for sacrifice. Outside the Old City walls, in the open air, I found light and heat and noise. Tour buses lined up like train cars along the ridge. Monday is the day when bar and bat mitzvahs are held in Israel, and drumbeats from distant celebrations mixed with the pounding of jackhammers from construction sites nearby. When I arrived at the City of David, workmen were refinishing the wooden deck at the site’s entrance and laying down a marble mosaic by the ticket window.

Post
.TV·

= Subscribers only.
Sign in here.
Subscribe here.

A documentary about climate change, domain names, and capital

Article
The Black Axe·

= Subscribers only.
Sign in here.
Subscribe here.

Eleven years ago, on a bitter January night, dozens of young men, dressed in a uniform of black berets, white T-­shirts, and black pants, gathered on a hill overlooking the Nigerian city of Jos, shouting, dancing, and shooting guns into the black sky. A drummer pounded a rhythmic beat. Amid the roiling crowd, five men crawled toward a candlelit dais, where a white-­robed priest stood holding an axe. Leading them was John, a sophomore at the local college, powerfully built and baby-faced. Over the past six hours, he had been beaten and burned, trampled and taunted. He was exhausted. John looked out at the landscape beyond the priest. It was the harmattan season, when Saharan sand blots out the sky, and the city lights in the distance blurred in John’s eyes as if he were underwater.

John had been raised by a single mother in Kaduna, a hardscrabble city in Nigeria’s arid north. She’d worked all hours as a construction supplier, but the family still struggled to get by. Her three boys were left alone for long stretches, and they killed time hunting at a nearby lake while listening to American rap. At seventeen, John had enrolled at the University of Jos to study business. Four hours southeast of his native Kaduna, Jos was another world, temperate and green. John’s mother sent him an allowance, and he made cash on the side rearing guard dogs for sale in Port Harcourt, the perilous capital of Nigeria’s oil industry. But it wasn’t much. John’s older brother, also studying in Jos, hung around with a group of Axemen—members of the Black Axe fraternity—who partied hard and bought drugs and cars. Local media reported a flood of crimes that Axemen had allegedly committed, but his brother’s friends promised John that, were he to join the group, he wouldn’t be forced into anything illegal. He could just come to the parties, help out at the odd charity drive, and enjoy himself. It was up to him.

John knew that the Black Axe was into some “risky” stuff. But he thought it was worth it. Axemen were treated with respect and had connections to important people. Without a network, John’s chances of getting a good job post-­degree were almost nil. In his second year, he decided to join, or “bam.” On the day of the initiation, John was given a shopping list: candles, bug spray, a kola nut (a caffeinated nut native to West Africa), razor blades, and 10,000 Nigerian naira (around thirty dollars)—his bamming fee. He carried it all to the top of the hill. Once night fell, Axemen made John and the other four initiates lie on their stomachs in the dirt, pressed toge­ther shoulder to shoulder, and hurled insults at them. They reeked like goats, some Axemen screamed. Others lashed them with sticks. Each Axeman walked over their backs four times. Somebody lit the bug spray on fire, and ran the flames across them, “burning that goat stink from us,” John recalled.

Article
Who Is She?·

= Subscribers only.
Sign in here.
Subscribe here.

I couldn’t leave. I couldn’t get up—­just couldn’t get up, couldn’t get up or leave. All day lying in that median, unable. Was this misery or joy?

It’s happened to you, too, hasn’t it? A habit or phase, a marriage, a disease, children or drugs, money or debt—­something you believed inescapable, something that had been going on for so long that you’d forgotten any and every step taken to lead your life here. What did you do? How did this happen? When you try to solve the crossword, someone keeps adding clues.

It’s happened to us all. The impossible knowledge is the one we all want—­the big why, the big how. Who among us won’t buy that lotto ticket? This is where stories come from and, believe me, there are only two kinds: ­one, naked lies, and two, pot holders, gas masks, condoms—­something you must carefully place between yourself and a truth too dangerous to touch.

Article
Murder Italian Style·

= Subscribers only.
Sign in here.
Subscribe here.

The Catholic School, by Edoardo Albinati. Farrar, Straus and Giroux. 1,280 pages. $40.

In a quiet northern suburb of Rome, a woman hears noises in the street and sends her son to investigate. Someone is locked in the trunk of a Fiat 127. The police arrive and find one girl seriously injured, together with the corpse of a second. Both have been raped, tortured, and left for dead. The survivor speaks of three young aggressors and a villa by the sea. Within hours two of the men have been arrested. The other will never be found.

Cost of renting a giant panda from the Chinese government, per day:

$1,500

A recent earthquake in Chile was found to have shifted the city of Concepción ten feet to the west, shortened Earth’s days by 1.26 microseconds, and shifted the planet’s axis by nearly three inches.

A federal judge in South Carolina ruled in favor of personal-injury lawyer George Sink Sr., who had sued his son, George Sink Jr., for using his own name at his competing law firm.

Subscribe to the Weekly Review newsletter. Don’t worry, we won’t sell your email address!

HARPER’S FINEST

Happiness Is a Worn Gun

By

“Nowadays, most states let just about anybody who wants a concealed-handgun permit have one; in seventeen states, you don’t even have to be a resident. Nobody knows exactly how many Americans carry guns, because not all states release their numbers, and even if they did, not all permit holders carry all the time. But it’s safe to assume that as many as 6 million Americans are walking around with firearms under their clothes.”

Subscribe Today