Two Dead Detainees May Get Justice. The Other 99 Will Not.
Eric Holder just released an announcement revealing that John Durham has recommended criminal investigation of two detainees tortured to death. But cases of the remaining 99 detainees whose treatment Durham investigated will be dismissed.
On January 2, 2008, Attorney General Michael Mukasey appointed Assistant United States Attorney John Durham of the District of Connecticut to conduct a criminal investigation into the destruction of interrogation videotapes by the Central Intelligence Agency. On August 24, 2009, based on information the Department received pertaining to alleged CIA mistreatment of detainees, I announced that I had expanded Mr. Durham’s mandate to conduct a preliminary review into whether federal laws were violated in connection with the interrogation of specific detainees at overseas locations. I made clear at that time that the Department would not prosecute anyone who acted in good faith and within the scope of the legal guidance given by the Office of Legal Counsel regarding the interrogation of detainees. Accordingly, Mr. Durham’s review examined primarily whether any unauthorized interrogation techniques were used by CIA interrogators, and if so, whether such techniques could constitute violations of the torture statute or any other applicable statute.
In carrying out his mandate, Mr. Durham examined any possible CIA involvement with the interrogation of 101 detainees who were in United States custody subsequent to the terrorist attacks of September 11, 2001, a number of whom were determined by Mr. Durham to have never been in CIA custody. He identified the matters to include within his review by examining various sources including the Office of Professional Responsibility’s report regarding the Office of Legal Counsel memoranda related to enhanced interrogation techniques, the 2004 CIA Inspector General’s report on enhanced interrogations, additional matters investigated by the CIA Office of Inspector General, the February 2007 International Committee of the Red Cross Report on the Treatment of Fourteen “High Value Detainees” in CIA Custody, and public source information.
Mr. Durham and his team reviewed a tremendous volume of information pertaining to the detainees. That review included both information and matters that had never previously been examined by the Department. Mr. Durham has advised me of the results of his investigation, and I have accepted his recommendation to conduct a full criminal investigation regarding the death in custody of two individuals. Those investigations are ongoing. The Department has determined that an expanded criminal investigation of the remaining matters is not warranted.
As I noted at the time I announced the expansion of Mr. Durham’s authority, the men and women in our intelligence community perform an incredibly important service to our nation, and they often do so under difficult and dangerous circumstances. They deserve our respect and gratitude for the work they do. However, I concluded based on information available to me then, and continue to believe now, that the Department needed to thoroughly examine the detainee treatment issue. I am confident that Mr. Durham’s thorough review has satisfied that need. [my emphasis]
We know one of these detainees is Manadel al-Jamadi. I haven’t heard the identity of the second; I’m betting it more likely to be Major-General Abed Hamed Mowhoush (though I’m trying to verify whose custody he was in when he died) than it is to be Gul Rahman. Update: Adam Goldman reports that the second detainee is Gul Rahman. That is rather surprising news, as it may implicate the chain of command.
But note the implication here?
Durham only considered investigating the death by torture of those killed in CIA custody. Which seems to suggest detainees killed while in military custody would not be investigated.
Oh well. I suppose as Americans we should be content that 2% of the people we torture to death might get justice.
Update: Thanks to Eric Jaffa for pointing out the murder/torture error in my last line.
Update: al-Jamadi’s name fixed.
Imagine if that statistic were acceptable elsewhere. Babies dropped onto the floor at birth, papers accurately graded in school or college, airline pilots navigating or adhering to the no-alcohol rule before flight. The list goes on, in increasingly grisly detail, but the USAG is happy with the appearance of accountability. Who wants to bet that even these two cases will go anywhere or reveal any new information?
Note that this confirms it has been nothing more than a “preliminary review” all this time. Only now even suggesting a criminal investigation. Amazing since a preliminary review is a long ingrained process at DOJ with a 90 time frame.
There is that slight problem with murder not being subject to a statute of limitations, though virtually all other crimes have the benefit of one.
As with AARP’s campaign to normalize cuts to Social Security – as well as its normalizing the idea that government cannot and will not provide security to the aged, regardless of circumstances – the longer such “reviews” take and the fewer consequences they yield, the more the underlying behavior – once major felonies or capital crimes – becomes normal when performed by actors the government favors.
It’s not subject to SOL, but it is subject to double jeopardy. If you are worried about others following up on the murder that has been reported and subjected to pictorial preservation, one of your better shots at making some of it go away is to have a cratered case after jeopardy technically attached.
Damn, what a cynic I’ve become.
I’m assuming that you meant:
Which is a point that immediately occurred to me as well. This has been nothing but a (so-far inconclusive and secret) “preliminary review” from August 24, 2009 through June, 2011, or (rather than for the ordinary “long-ingrained DOJ process of 90 days”) for almost two years.
Note also the careful parsing of Attorney General Holder’s statement here, which seems to have been written to obscure whether or not John Durham, after his two years of work with “a tremendous volume of information,” in fact recommended full criminal investigations of more than the two deaths – from among 101 detainees whose “enhanced interrogations” were reviewed – to which (apparently) Eric Holder himself, or President Obama, has decided to limit formal DOJ criminal investigations and possible future prosecutions:
Remembering that, if John Durham did so recommend full DOJ criminal investigations of some or all of “the remaining matters” alluded to in today’s statement, Durham’s mandate from Attorney General Holder over the last two years was to review, quoting Holder, only those CIA employees or contractors who did not “[act] in good faith and within the scope of the legal guidance given by [John Yoo of] the Office of Legal Counsel regarding the interrogation of detainees.”
Thus, if John Durham was in fact overruled this month (beyond the two deaths) by Eric Holder or Barack Obama, Durham could only have been recommending full criminal investigations (including with regard to the deaths of Manadel al-Jamadi and Gul Rahman), again quoting Holder, in cases where “[Yoo-]unauthorized interrogation techniques were used by CIA interrogators, and . . . such techniques could constitute violations of the torture statute or any other applicable statute.”
But (re Gul Rahman) I thought that water dousing, and “exposure of a prisoner to extreme cold in order to affect his physical condition” were “approved” forms of torture (qua interrogation). I believe Scott Horton made this point in an article on the Rahman case last year.
But, again, the legal mysteries and intricacies on these matters elude my understanding (and are a reason why, I believe, the public turns off their attention on such things, even when the press or government allows even a small piece of the truth to surface).
No, as I’ll point out shortly, water dousing wasn’t approved formally by OLC until August 2004. It was “approved” in the “Bullet Points” document which was pretty clearly designed to provide cover for the killings, including Rahman’s. But that was Jennifer Koester w/o formal OLC cover.
Yes, I remember that you had pointed this out before, so I have roused my lazy ass to look up the cite. I assume you will update:
http://emptywheel.firedoglake.com/2010/07/15/jay-bybee-admits-cia-had-no-approval-for-water-dousing-diapering/
Notwithstanding your and bmaz’ point about the length of Durham’s inquiry, there IS a chance that one reason for the delay was to make sure he could get testimony from those up the chain in the Rahman case (though that doesn’t explain the delay in the Jamadi case).
Stephen Kappes left the CIA just over a year ago. One possible reason to have done so is to be able to plead the Fifth. Given that Rahman’s murder was given oral approval along the way, it implicates the chain of command. So it may well mean Durham had to make sure he could get testimony from him (Kappes was definitely in the chain of command) and possibly Phil Mudd (though I think he was in the chain of command on the Nashiri death threats).
Yes, I indeed meant 90 days. I was on the way out the door to an arbitration and was a little sloppy. You probably understand this, but for the rest, if you paid attention to the designating language, both from Mukasey in 2008 and Holder in 2009, it was crystal clear that Durham’s jurisdiction was for a “preliminary review” only. A Preliminary Review is a formal process in the Justice Department and is a 30 day process with extensions possible up to a total of 90 days after which you have to either open it as full investigation or close the case out. At the end of initial 30 days, you have to write a report in order to justify the extension, and if your extension granted is for less than 60 days, maybe another interim report to get the remaining available time. Up to a total of 90 days, and then it is fish or cut bait.
Fish or cut bait, that is, unless you are simply running a dog and pony show as political gloss, and legal cover to keep those pesky Europeans from trying to exercise their quaint little concept of universal jurisdiction, or even direct jurisdiction for torture and detention crimes we committed on their soil. I guess in that case, a “preliminary review” can last however long suits Mr. Obama’s little politicized craven fancy and Attorney General Holder will just blithely mislead the American people into thinking this is all admirable DOJ standard operating procedure. It is not, it is complete bullshit.
I’m guessing they’d say that “each” individual case of the 101 detainees constituted a separate “preliminary review” with its own 30-90 day process allowance.
And further, Durham probably directed his crew to only mark their timesheets on an individual case when they were actively doing something with it.
This is commonplace on projects in IT where project activity time bears little or no resemblance to calendar time, and drives most customers right up the friggin’ wall.
As in:
Well, they can spew whatever horsepucky they want; there is a process in the DOJ and a way it is historically adhered to, and that shit don’t cut it.
And, as Leopold alluded to above, as I tried to as well, I am absolutely convinced the “torture tape” scope was far broader than most think or the DOJ would like you to believe. To say otherwise is to play three card monte with the facts, at least from what I know and believe.
Torture / Murder / Treason, ya eric those other 99 were nobodies right ?
This is another sick crew, morally bankrupt but well paid.
What about the three asymmetrical “suicides’ in gitmo?
You remember hands tied behind their backs after they stuffed socks down their throats then hung themselves. It happened at camp “no” you know. Now the three missing thoraxes stymie the investigation. eric is a such a low life covering up murder he doesn’t measure up to the runoff from my manure pile.
eric is another war criminal in the finest Nazi tradition.
Andy Worthington had a “glimmer of hope” for Durham:
In the US, on the International Day in Support of Victims of Torture, A Glimmer of Hope Amidst the Hypocrisy; Andy Worthington; 6/29/11
Depending on what all the fine print is on custody, I’m split on whether it would be Mowhoush. He died during his military sleeping bag/pound broken rib suffocation torture, the one that one of the torturers had to get fresh coffee for before they started IIRC (and I never do these days – so take it fwiw). That one would get even more murkier bc the CIA was, by some accounts, taking him and letting the MEK torture him, then returning him for military torture. Providing material support, much?
In addition, again IIRC and with all the caveats, once upon a time one of the sons had filed suit here in the US with respect to his own torture and his father’s death. While the Gen, who had voluntarily turned himself over to the military because they had taken his sons (including a minor IIRC) hostage, was being torture in his death session torture, a part of that torture included someone conducting a mock execution on the Gen’s son, so that as he was dieing he thought his son was as well.
I can see Durham getting the ok to pursue the Gen’s killing as a way of cratering the civil suit and creating all kinds of classified info and pending litigation brick walls, but not really doing anything with it – so much military, MEK, etc. involvement and putting out there the whole CIA involvement with the terrorist group MEK and reopening the issue of who did what – like with Jamadi, if his other is Mowhoush he’s gone specifically for the “empty seat” cases, where they can point at the miltiary seats left empty in the proceedings and pretty much guarantee some walks.
If it involves someone not being contemporaneously beaten and tortured by military or non-CIA operatives like MEK or Afghani “security” then it might be something closer to a true case for real results.
I’m not holding my breath.
Lichtblau (at the NYT) says it is al-Jamadi and Gul Rahman.
Yup, had already updated w/the AP report.
For those who haven’t seen the update, AP has reported that the 2nd detainee is Gul Rahman, which is pretty surprising but also rather intriguing as that one COULD and SHOULD go up the chain of command.
My heart skipped a noticeable beat.
It’s worse than you can imagine, I imagine.
This would also suggest that employees of mercenary corporations — excuse me, I mean “independent contractors” — also got a free pass.
Has anyone hazarded an informed guess as to why these two cases were chosen? I believe al-Jamadi was “the ice man.” So the criterion there could be that it was a high-profile case.
From History Commons, who cites the Washingtonian
Perhaps we can understand a bit more about Kappes’s sudden May 2010 departure, but I’ve not put together any timelines on this.
And, one wonders, where is Paul P. these days, Zirbel’s superior at the Salt Pit? (Zirbel himself was promoted three times after Rahman’s death.)
And one wonders, how many of those other 100 or so cases where “expanded criminal investigation of the remaining matters is not warranted” are not warranted because of advance or after-the-fact declinations noted way back here and in this article by John Sifton? If some of our legal minds could further explain this aspect of the situation, as it may bear upon the current decision to “investigate”. (And please, remember that some of us are not conversant with legalese.)
Let’s see where these investigations go, use whatever we can from this to push the issues forward, all while putting no faith in the government, or Durham as its agent in this matter, to do the right thing.
And where might these investigations lead (of the Rahman case I’m talking here, alluding to Marcy’s comment about implicating the chain of command), Scott Horton noted:
I’d add that within CIA, there’s also former CIA Deputy Director for Operations, James Pavitt, and his boss, Tenet.
The point about DoD, btw, is worth following up, as I’ve long said that DoD has gotten a near free-ride on accountability (even the Levin committee report, so excellent in so many ways, stopped short of making recommendations). And that FOIA I made on the DoD IG report on drugging detainees, it’s a year old now and I’m still waiting. If “Iron Man” waited five years to get his own self-submitted documents FOIA’d, god knows how long before I’ll see anything from DoD on that score.
For those keeping score, looks like Mitchell and Jessen can breathe a little easier tonight… or can they?
FYI, ACLU now has a statement up on the Durham investigation announcement:
ACLU Says DOJ Investigation into CIA Interrogation Program too Narrow
Jameel Jaffer: “The narrow investigation that Attorney General Holder announced today is not proportionate to the scale and scope of the wrongdoing.”
Hina Shamsi: “… the central problem was not with interrogators who disobeyed orders, but with senior officials who authorized a program of torture. The Justice Department must conduct an investigation that is broad enough to reach the senior officials who were most responsible for developing this program.”
Why now?
More updated news via Carrie Johnson at NPR:
OT – Via Mark Hosenball at Reuters:
Again, I’m curious why these two cases in particular may have been chosen for prosecution. Any guesses?
still so incredibly disturbing that Rahman was buried in an unmarked grave by CIA and that his family still cannot recover his body because no one will say where he was buried. Recall this from last year:
and
Read more http://www.newyorker.com/online/blogs/newsdesk/2010/04/salt-pit-update.html#ixzz1QoIizJ7i
Perhaps this investigation will, at the very least, determine where he was buried, and then his family will finally get to give him a proper burial.
Ugh! That “read more” and the link was dropped in by accident due to the cut and paste. sorry
OK- am I misremembering or how does this comport with the IG’s “still horrifying after whitewashing and with redactions” report – wasn’t it to the effect that no one died from the CIA torture program (to which we all pointed to the Rahman Salt Pit killing).
So this would be proof that the IGs reports are completely unreliable, right?
@25 – one guess might be that they are not only both high profile, but also both allow for a lot of finger pointing at the empty chair. IIRC one of the things we’ve heard floated on Rahman was that it was Afghan security who the CIA can try to push responsibility off on for the ultimate death and with Jamadi you have the military and CIA cross finger pointing. At a guess, it’s also likely that neither had the kind of connections that walk the treatment that was meted out back directly to the AG’s and President’s and Principal’s offices – so they can be more “cleanly” prosecuted without putting criminal act approvals emanating from the DOJ into the spotlight.
I think they’ve picked cases they can safely play hide the ball with, while at the same time giving Holder a fig leaf with “uh huh, we did too investigate and prosecute” he can wear when he’s applying soup kitchen salve to the burn-y spots on his soul.
I think you’re remembering what Helgerson told some of the Gang of Four (from memory, I think Harman and Goss).
Epu’d – that could be it.
Also, I think the decision to pursue the Rahman case was a direct result of the investigation of the torture tape destruction case. The CIA stopped videotaping interrogations two weeks after Rahman’s death.
Also: “An AP Freedom of Information Act request for Rahman’s autopsy report was rejected – a decision upheld on appeal by the Justice Department in November.”
New post up about this.
This decision not to prosecute obvious torture is enough to make any decent law abiding person ashamed to be an American. It is a dark day for the Republic when DOJ endorses the Nuremburg defense. It is absurd on its face and it’s disgusting. We will work to hold the many Bush Administration and Obama Administration criminals in the United States accountable in another international forum where the rule of law still means something. It plainly does not mean anything in the United States today. Eric Holder’s announcement is a disgrace to DOJ, to our constitution, and to all those who believe that torture is evil and cannot be permitted to go unpunished. This decision guarantees that new torture plots conceived at the highest levels of this government will move forward in the future with impunity and bipartisan support.
Well said, sadly.
Well, that was the conclusion of the two cases now being investigated for criminal prosecution, was it not? Apparently, the grounds for warranting can change.
As you noted, it will be interesting to see how chain-of-command issues are dealt with. Putting on my rose-colored glasses, I wonder if Durham is choosing these two cases– which he thinks easiest to prosecute?– as a proxy for all the others.
Bob in AZ