Justice declined Part I
Prosecutors in Alexandria, Virginia declined to prosecute CIA personnel in the death of Manadel al-Jamadi. And we don't know why.
There were two Justice Department reviews of the actions of CIA personnel in the case of the Ice Man, Manadel al-Jamadi. In this excerpt from my book, I tell the story of what happened to the first one:
In the summer of 2004, in the wake of the Abu Ghraib prison scandal, Attorney General John Ashcroft announced that a special task force had been set up to handle cases of detainee abuse.
The task force was located across the Potomac in the US Attorney’s office in Alexandria, Virginia. Over the next four months, the task force received 19 referrals. Ten were from the Defense Department. The nine remaining cases were from the CIA. By 2008, the CIA’s Inspector General would refer five more cases to the task force in Alexandria. Among the cases under review by the prosecutors in Alexandria, Virginia was Jamadi’s death.
The task force reported to Paul J. McNulty, the US Attorney for the Eastern District of Virginia. Then Deputy Attorney General James Comey, the future FBI director, had personally asked McNulty to take on the assignment of reviewing cases of CIA detainee abuse. Comey believed that the attorneys in McNulty’s office had the experience and the aggressiveness to do the job. McNulty’s office was prosecuting Zacarias Moussaoui, a member of al Qaida who would plead guilty to conspiring to kill US citizens.
McNulty assembled a team of six experienced prosecutors to serve on what one Senator referred to as the Detainee Treatment Task Force. “We took those referrals in whatever shape and condition they were in, and they were very thin in the sense of the information given to us, and we began to work,” McNulty told the Senate Judiciary Committee in 2006 when they considered his nomination to be deputy attorney general.
The cases were a mess, McNulty explained. There were issues of access to victims. In two cases, the alleged victims, both Iraqis, couldn’t be found. Same with witnesses. "We wanted to make these cases," a former Justice official told the Los Angeles Times. "We looked at them as hard as we could, and they just weren't there.”
None of those problems, however, applied to the case of the Ice Man, Manadel al-Jamadi. Senator Ted Kennedy questioned McNulty about why his office had not brought charges in the Jamadi case. “Mr. McNulty, I am somewhat surprised to hear you say that these cases, these detainee cases came to you with a thin record,” Kennedy said. “The case of Manadel al-Jamadi, who died in CIA custody at Abu Ghraib, was investigated extensively by the military.” Two CIA employees were implicated in Jamadi’s death. Kennedy continued, “So, what is the difficulty in building the case? Is the CIA cooperating and to what extent does it cooperate, first of all, and then what is the difficulty in building the case?”
McNulty said the CIA was cooperating and the Jamadi case was still under review. “It's an ongoing investigation. What's interesting about that case is that there were a number of Navy SEALs charged in the military context, and they were acquitted,” McNulty said. The acquittal the previous year of SEAL Lieutenant Andrew Ledford, the head of the platoon that captured Jamadi, underscored the problems with evidence in these cases. “So, you see that sometimes in these cases it's very difficult, as I know you know, because of the nature of the evidence. In that particular case, those SEALs had custody over that individual prior to his delivery into the hands of anyone else.”
A problem in the Jamadi case was the issue of jurisdiction. Criminal law is usually territorial. One of the first things prosecutors must show is that a crime occurred in a place that falls under a court’s jurisdiction. Jamadi’s homicide had occurred overseas, which meant that prosecutors had to exert “extraterritorial jurdisdiction” to charge someone in the Iraqi’s death.
Military law applied to the SEALs and other men and women in uniform no matter where they were. In 2000, the Military Extraterritorial Jurisdiction Act gave federal courts jurisdiction over civilians employed by or accompanying the armed forces overseas. But this didn’t apply to CIA personnel since they worked for an independent federal agency, not the Defense Department.
The Patriot Act, which was quickly signed into law after 9/11, extended federal criminal jurisdiction to crimes, like assault that states traditionally regulate, when the crimes occur in a federal enclave — for example, United States military bases. Although the law was to was designed to strengthen criminal laws to fight terrorism. The Patriot Act was seen as a possible vehicle for charging CIA personnel.
Only one case was prosecuted under this authority. David Passaro, a CIA contractor, was indicted on charges of assaulting a detainee who died in a forward base in Afghanistan. Passaro challenged his indictment on jurisdictional grounds, but was ultimately convicted and sentenced to 100 months in prison.
Another hurdle was the Bybee memo. Written in 2002, this Justice Department memo approved the CIA’s enhanced interrogation program and gave extremely broad protections to agency interrogators. The memo defined torture as act likely to inflict “death, organ failure, or serious impairment of bodily functions.” Even if interrogators crossed that line, they could avoid prosecution by invoking a defense of necessity (torture was necessary to save lives from an imminent terrorist attack). Or they could claim self-defense (the interrogators were acting to save the country and themselves). Finally, the memo concluded that the torture law didn’t bind CIA operatives because it violated the president’s authority as commander in chief and prevented the president “from gaining the intelligence he believes necessary to prevent attacks on the United States.” Put simply, the memo set a very high bar for torture, gave protection to interrogators who crossed that line, and concluded that the torture law didn’t apply if you were following the president’s orders.
The Bybee memo made it extremely difficult to prosecute someone in the CIA for what happened in the Romper Room or the Abu Ghraib shower room. Torture and war crimes, however, were not the only charges that applied in the Jamadi matter. My FOIA lawsuit forced the CIA to reveal the existence of a possible criminal coverup. Even if the Bybee memo protected CIA interrogators for their actions leading up to Jamadi’s death, it offered no protection for the actions they allegedly took to cover it up. What charges the federal prosecutors in the Alexandria, Virginia look at? What reasons did they give for declining to prosecute? We don’t know the answers. The Department of Justice won’t say.
We do know that the task force in Alexandria, Virginia had been hesitant to prosecute the Jamadi case from the get-go. In February 2005, before the CIA Inspector General had completed its investigation into Jamadi’s death, the prosecutors in the U.S. Attorney’s office in the Eastern District of Virginia told the CIA that they were not inclined to prosecute the case, according to a CIA memo released under FOIA. The decision wasn’t final, however, and the task force continued its investigation for another year. On November 9, 2006, the task force formally declined to prosecute anyone in the Jamadi case.
McNulty declined to speak with me. “It has been nearly 20 years since I was involved in overseeing those cases and my memory has certainly faded,” McNulty told me in an email. Rob Spencer, who ran the criminal division in the US Attorney’s office in Alexandria, Virginia, declined to comment, as did Chuck Rosenberg who replaced McNulty as US Attorney. The declination memo, written to explain why no one from the agency was ever prosecuted in the Jamadi case, has never been released.
The closest thing to an explanation was an account from John Rizzo, the acting general counsel of the CIA. Rizzo received a briefing from the prosecutors after they decided not to prosecute. In his book Company Man, he translated what he called their “legalistic code words” into plain English. “Look, these were incidents that took place a long time ago, in isolated, war-torn locales, where we have no body to examine and no reasonable evidence or available witnesses,” Rizzo said the prosecutors told him. That might have been true in some of the incidents at issue, but it didn’t apply to the Jamadi case. The body had been carefully examined by the Armed Forces Institute of Pathology. There was “reasonable evidence” and plenty of available witnesses.
John Rizzo used lawyerly evasions, vague language, and the passive voice to avoid accepting blame on the part of the CIA. According to Rizzo, Jamadi “wasn’t even in CIA custody” since he was held in US military facilities. The military gave the CIA “access” to the prisoner after which “things evidently got out of control.” You have to admire Rizzo’s gall. It was unfortunate that CIA personnel threatened detainees with mallets and watched one of them die in a torture position. But it was the military’s problem.
The narrative in this case was that SEALs shared blame for Jamadi’s death. “There was no question that he was physically abused and that he died as a result,” Rizzo said. “Not as clear was who—CIA or military—delivered the fatal blows.” The SEALs were a convenient fall guy and the narrative superseded the facts. Never mind that the Armed Forces Institute of Pathology concluded that Jamadi had suffocated in a torture position that was “part and parcel” of the homicide. “The SEALs did it, too” became the official government line in the Jamadi case. In its response to the UN Human Rights Commission’s Committee Against Torture, the US State Department stated, “There were no charges of homicide because it could not be determined whether Navy or other personnel had caused his death.” This narrative found its way into The New York Times reported in December 2006 that prosecutors in Alexandria, Virginia “concluded that Mr. Jamadi probably sustained severe injuries when he was in military custody before he was turned over to the intelligence agency and that therefore the civilians could not be prosecuted for his death.”
If both the SEALs and the CIA were to blame, why were the men of Foxtrot Platoon the only ones held accountable?
Christopher E. Anders, a lawyer for the ACLU, pointed out the disparity in outcomes between the SEALs and the CIA. "Justice should be blind, but it is now clear that enlisted men and women in a soldier’s uniform are being convicted while CIA agents and civilian contractors who allegedly participated in the same crimes remain free,” said Christopher E. Anders, a lawyer for the ACLU. “The military has already investigated and prosecuted many of its rank and file members and yet it seems that the Justice Department is incapable, or unwilling, to do the same for CIA agents. CIA agents should not be getting a free pass from the Justice Department.”
Except they were.