Jane Mayer has a disturbing new piece in the New Yorker. It's about the death of Manadel al-Jamadi, the dead prisoner whose corpse was photographed, packed in ice, at Abu Ghraib; and the difficulty of prosecuting anyone for his death. About how he died: the CIA apparently released several hundred pages about his detention by mistake. An independent medical examiner, who was briefed on this material and examined the autopsy report, said that the fact that Jamadi was strung up by his wrists, with a bag over his head and six broken ribs, led to his death:
"One of those examiners, Dr. Michael Baden, who is the chief forensic pathologist for the New York State Police, told me, "What struck me was that Jamadi was alive and well when he walked into the prison. The SEALs were accused of causing head injuries before he arrived, but he had no significant head injuries—certainly no brain injuries that would have caused death." Jamadi’s bruises, he said, were no doubt painful, but they were not life-threatening. Baden went on, "He also had injuries to his ribs. You don’t die from broken ribs. But if he had been hung up in this way and had broken ribs, that’s different." In his judgment, "asphyxia is what he died from—as in a crucifixion."
Baden, who had inspected a plastic bag of the type that was placed over Jamadi’s head, said that the bag "could have impaired his breath, but he couldn’t have died from that alone." Of greater concern, he thought, was Jamadi’s position. "If his hands were pulled up five feet—that’s to his neck. That’s pretty tough. That would put a lot of tension on his rib muscles, which are needed for breathing. It’s not only painful—it can hinder the diaphragm from going up and down, and the rib cage from expanding. The muscles tire, and the breathing function is impaired, so there’s less oxygen entering the bloodstream." A person in such a state would first lose consciousness, he said, and eventually would die. The hood, he suggested, would likely have compounded the problem, because the interrogators "can’t see his face if he’s turning blue. We see a lot about a patient’s condition by looking at his face. By putting that goddam hood on, they can’t see if he’s conscious." It also "doesn’t permit them to know when he died." The bottom line, Baden said, is that Jamadi "didn’t die as a result of any injury he got before getting to the prison.""
'Asphyxia -- as in a crucifixion'. In my survey of possible future headlines, crucifixion was one notorious episode of torture that I missed. Silly me not to anticipate that it might pop up.
Unfortunately, it looks unlikely that the people responsible for Jamadi's death will ever be brought to justice, even though the New Yorker names them. That's because Jamadi was in the custody of a CIA agent; and it's unclear what, if anything, the CIA is not allowed to do to detainees:
"The Bush Administration has resisted disclosing the contents of two Justice Department memos that established a detailed interrogation policy for the Pentagon and the C.I.A. A March, 2003, classified memo was "breathtaking," the same source said. The document dismissed virtually all national and international laws regulating the treatment of prisoners, including war-crimes and assault statutes, and it was radical in its view that in wartime the President can fight enemies by whatever means he sees fit. According to the memo, Congress has no constitutional right to interfere with the President in his role as Commander-in-Chief, including making laws that limit the ways in which prisoners may be interrogated. Another classified Justice Department memo, issued in August, 2002, is said to authorize numerous "enhanced" interrogation techniques for the C.I.A. These two memos sanction such extreme measures that, even if the agency wanted to discipline or prosecute agents who stray beyond its own comfort level, the legal tools to do so may no longer exist. Like the torture memo, these documents are believed to have been signed by Jay Bybee, the former head of the Office of Legal Counsel, but written by a Justice Department lawyer, John Yoo, who is now a professor of law at Berkeley.
For nearly a year, Democratic senators critical of alleged abuses have been demanding to see these memos. "We need to know what was authorized," Carl Levin, a Democrat from Michigan, told me. "Was it waterboarding? The use of dogs? Stripping detainees? . . . The refusal to give us these documents is totally inexcusable." Levin is a member of the Senate Intelligence Committee, which is supposed to have an oversight role in relation to the C.I.A. "The Administration is getting away with just saying no," he went on. "There’s no claim of executive privilege. There’s no claim of national security — we’ve offered to keep it classified. It’s just bullshit. They just don’t want us to know what they’re doing, or have done.""
Nor does the CIA seem to have any interest in policing its own:
"The C.I.A. has reportedly been implicated in at least four deaths of detainees in Afghanistan and Iraq, including that of Jamadi, and has referred eight potentially criminal cases involving abuse and misconduct to the Justice Department. In March, Goss, the C.I.A.’s director, testified before Congress that "we don’t do torture," and the agency’s press office issued a release stating, "All approved interrogation techniques, both past and present, are lawful and do not constitute torture. . . . C.I.A. policies on interrogation have always followed legal guidance from the Department of Justice. If an individual violates the policy, then he or she will be held accountable."
Yet the government has brought charges against only one person affiliated with the agency: David Passaro, a low-level contract employee, not a full-fledged C.I.A. officer. In 2003, Passaro, while interrogating an Afghan prisoner, allegedly beat him with a flashlight so severely that he eventually died from his injuries. In two other incidents of prisoner abuse, the Times reported last month, charges probably will not be brought against C.I.A. personnel: the 2003 case of an Iraqi prisoner who was forced head first into a sleeping bag, then beaten; and the 2002 abuse of an Afghan prisoner who froze to death after being stripped and chained to the floor of a concrete cell. (The C.I.A. supervisor involved in the latter case was subsequently promoted.)"
And besides, the Justice Department, which would prosecute any such cases, has its own conflicts of interest:
"According to Jeffrey Smith, the former general counsel of the C.I.A., now a private-practice lawyer who handles national-security cases, a decision to prosecute Swanner "would probably go all the way up to the Attorney General." Critics of the Administration, such as John Sifton, a lawyer for Human Rights Watch, question whether Alberto Gonzales, who became Attorney General last year, has too many conflicts of interest to weigh the case against Swanner fairly. Sifton said, “It’s hard to imagine the current leadership pursuing these guys, because the head of the Justice Department, Alberto Gonzales, is centrally implicated in crafting the policies that led to the abuse.” He suggested that the prudent thing for Gonzales to do would be to "recuse himself from such a decision, and leave it to a deputy, or a career officer."
But there are political conflicts here, too. It is in the office of Paul McNulty — whose nomination to become Gonzales’s deputy will soon be presented to Congress, and who was a Republican congressional staff member before being named a U.S. Attorney — that the Jamadi case has stalled. And Alice Fisher, the new head of the Justice Department’s criminal division, got that job only under a recess appointment; during her confirmation hearings, Fisher, who previously handled counter-terrorism cases for the department, refused to provide all the information requested about her knowledge of C.I.A. prisoner abuse, and Congress did not approve her nomination."
If this account of the "breathtaking" directives on CIA treatment of detainees is accurate -- if they do 'dismiss virtually all national and international laws regulating the treatment of prisoners, including war-crimes and assault statutes', and claim that 'Congress has no constitutional right to interfere with the President in his role as Commander-in-Chief, including making laws that limit the ways in which prisoners may be interrogated' -- then everyone who had anything to do with those memos should be drummed out of our government. (And yes, I do include the President and Vice President, if they were involved.) We claim to be a nation of laws, not a tyranny; and we claim to stand for freedom and human rights, not beating people to death. Whatever these directives say, the administration should allow Congress to see them and judge their content for themselves. We have three branches of government, not one; and we claim to believe in checks and balances, not unlimited executive power.
We have long since passed the point where the Bush administration could credibly appeal to anyone, Republican or Democrat, to trust them on these issues. The Congress should investigate the CIA's treatment of detainees. And if they will not, then anyone who cares at all about our country and its values should vote out those members of Congress who oppose such an investigation.
As citizens of a democracy, we get the government we deserve. Let's try to deserve better than this.