Justice Declined, Part II
The result of the second Justice Department investigation into the case of Manadel al-Jamadi was no different from the first.
With the end of the Bush administration, the CIA’s secret detention and interrogation program lost its staunchest defenders. In January 2009, a new president was sworn in who had promised an immediate investigation of the CIA’s interrogation program. On his second full day in office, President Barack Obama signed an executive order ending torture. Waterboarding, Obama believed, was torture, and clear lines needed to be drawn. “A democracy as resilient as ours must reject the false choice between our security and our ideals, and that is why these methods of interrogation are already a thing of the past,” the president said.
Throughout his presidency, Obama wrestled with his ingrained belief in transparency and accountability against his need as president to build trust with the CIA. The war against terrorism that the Bush administration had launched was not over and it was a fight he could not win without the agency’s help. But that trust ran both ways. In his memoir, Obama wrote that he had been assured that the CIA had ended its use of enhanced interrogation techniques during Bush’s second term in office. The agency, however, admitted years later that the use of those techniques ended on April 7, 2009, several months into his administration.
Obama went a step further. His administration released the legal memos that authorized the enhanced interrogation program. On August 1, 2002, a memo drafted by Justice Department attorneys John Yoo and his colleague, Jennifer Koester Hardy, approved the CIA’s enhanced interrogation program and gave extremely broad protections to agency interrogators. The 50-page legal opinion was named for Jay S. Bybee, the head of the Justice Department’s Office of Legal Counsel but it came to be known as the “torture memo.”
The torture 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, Yoo 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.
These were shaky legal grounds upon which to build what was one of the most controversial programs in CIA history. The memo, like everything else about the early days of the interrogation program, was rushed and poorly thought out. It nevertheless served as the magic get-out-of-jail-free card the CIA wanted. “It is practically impossible to prosecute someone who relied in good faith on an OLC opinion, even if the opinion turns out to be wrong,” a senior Justice Department prosecutor observed. Attorneys inside and outside the CIA began to refer to the memo as the agency’s “golden shield.”
The CIA lost the fight to keep the memos secret but it exacted important assurances in return. Obama signaled that CIA personnel who had relied on the Bybee memo would not face prosecution. The government had previously promised to cover the legal bills of any CIA employee prosecuted for following the advice in the golden shield. Now it promised to provide attorneys at no cost to any CIA employee hauled before Congress or an international tribunal. Flawed it was, the Bybee memo made it impossible to prosecute CIA interrogators who had followed the rules.
What about those that had gone beyond the techniques proscribed by the Bybee memo? These “unauthorized interrogation techniques” that had been documented in the Romper Room at Camp Jenny Pozzi and in the shower room of Abu Ghraib were not protected by the memo and may very well constitute torture. In August 2009, Obama’s attorney general, Eric Holder, decided a close look at “unauthorized interrogation techniques” was warranted. In August 2009, he assigned a special counsel to open a preliminary inquiry into the treatment of detainees interrogated by the CIA.
The special counsel he named, John Durham, had helped put away a governor of Connecticut and members of the Ku Klux Klan. Durham had investigated a corrupt FBI agent’s relationship with Boston mob boss James “Whitey” Bulger, which became the subject of the movie Black Mass. Plus, he was already investigating the CIA when Holder assigned him the job. In 2008, Holder’s predecessor, Attorney General Michael Mukasey, had given Durham the task of investigating the destruction of 92 videotapes of the interrogation of Abu Zubaydah. (Durham ultimately declined to press charges in that case.)
Almost as soon as Durham's inquiry into prison abuses had begun, seven former CIA directors urged President Obama to end it. “Attorney General Holder's decision to re-open the criminal investigation creates an atmosphere of continuous jeopardy for those whose cases the Department of Justice had previously declined to prosecute,” the directors wrote in a letter that was leaked to The Washington Post. The letter, which had been organized by Acting CIA General Counsel, John Rizzo, was the institutional voice of the CIA telling the DOJ in no unsubtle terms to lay off.
The attorney general had sought to mollify his critics inside and outside the CIA. "There are those who will use my decision to open a preliminary review as a means of broadly criticizing the work of our nation’s intelligence community,” Holder said. “I could not disagree more with that view. 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.”
For the next 20 months, Durham examined more than 100 cases involving CIA personnel. His team reviewed a “tremendous” volume of information, including “information and matters that had never been previously examined.” Durham’s team looked at CIA Inspector General investigations, a report from the Red Cross regarding the treatment of detainees formerly in CIA custody, the Office of Professional Responsibility’s report on the golden shield memo and “other sources.”
In May 2011, after nearly two years of preliminary inquiry, Durham submitted his findings to Attorney General Holder. He recommended closing 99 cases and conducting full criminal investigations for the two remaining cases, which both involved deaths in CIA custody. One was Gul Rahman, an Afghan militant who froze to death in 2002 in a secret CIA prison known as the Salt Pit. The other was the case of Manadel al-Jamadi, the Ice Man.
Durham spent another year re-investigating the Jamadi case in extreme secrecy. It has taken years of media reports, a lawsuit, and a United Nations inquiry to pry out even the most basic facts about Durham’s investigation into CIA interrogations. Durham assembled a team of 14 FBI agents and five career prosecutors. His team interviewed about 96 witnesses, in the United States and “abroad.” Those summoned to testify before a federal grand jury in Alexandria, Virginia included Dan Cerrillo and others from Foxtrot platoon. The Abu Ghraib guards who took photos of detainees were called in to testify. James Mitchell, who had helped design the CIA’s interrogation program, testified before Durham’s grand jury under a grant of immunity. His partner, Bruce Jessen, also testified.
One group of potential witnesses that apparently were never interviewed were former CIA detainees who had been held in the agency’s black prisons overseas. The UN’s Committee Against Torture said Durham’s failure to speak to the actual subjects of the CIA’s “enhanced interrogation” program “casts doubt as to whether that high-profile inquiry was properly conducted.” Without confirming or denying that Durham spoke to former CIA detainees, Deputy Assistant Attorney General David Bitkower told the UN committee that Durham had been seeking the truth.
Durham’s investigation into the death of the Ice Man delved into the actions of three current and former CIA officers. Durham looked at Mark Swanner, the CIA interrogator who was in the shower room with Jamadi when he died; Steve Stormoen, who oversaw the unauthorized “ghost” detention program in Abu Ghraib; and David Martine, who threw away the hood covering Jamadi’s head. Martine later told Newsweek how Durham pressed him about why he had disposed of the hood. “If the hood wasn’t important why did you keep it on your office shelf?” Martine recalled Durham asking him. “And if it was important, why did you throw it out?” It was a good question, Martine admitted. “He just kept pushing and pushing,” Martine said. “Why are you hiding things, and what else should you be telling us? I mean, I didn’t know what to say.”
So extreme was the secrecy surrounding Durham’s investigation that no one from the special counsel’s team would speak to outside investigators. He refused to speak to authorities in England, Lithuania, Poland, and Italy who were examining CIA rendition and detention activities in their jurisdictions. Durham also refused to talk to Senate investigators who were conducting their own exhaustive review of the origins of the CIA’s detention and interrogation program.
A UN report revealed a previously unreported detail about Durham’s case. Although Durham had access to the same information as the Senate’s investigators, he appeared to view them as rivals of a sort. Durham’s team reviewed the Senate’s monumental 2014 report prior to its release to determine whether it contained any new information that would change his previous analysis. He determined it did not.
Durham’s investigation also stifled the Senate’s inquiry into the interrogation program. The Senate Select Committee on Intelligence was effectively blocked from conducting interviews and had to rely mainly on documents provided by the CIA. Agency employees and contractors were facing potential legal jeopardy from Durham’s investigation and the CIA would not compel its workforce to appear before the Senate committee.
On August 30, 2012, Attorney General Holder announced that John Durham had closed his investigation. There would be no criminal charges filed. The DOJ issued the following statement:
“AUSA John Durham has now completed his investigations, and the Department has decided not to initiate criminal charges in these matters. In reaching this determination, Mr. Durham considered all potentially applicable substantive criminal statutes as well as the statutes of limitations and jurisdictional provisions that govern prosecutions under those statutes. Mr. Durham and his team reviewed a tremendous volume of information pertaining to the detainees. That review included both information and matters that were not examined during the Department’s prior reviews. Based on the fully developed factual record concerning the two deaths, the Department has declined prosecution because the admissible evidence would not be sufficient to obtain and sustain a conviction beyond a reasonable doubt.”
And that was that. Nearly nine years after the death of the Ice Man, the case was finally closed. Durham laid out his reasoning in the Jamadi case in a 50-page classified report that he submitted to Holder’s chief of staff in March 2012. What evidence was admissible? And what evidence wasn’t? We don’t know. It's classified.
According to a memoir by then-CIA Deputy Director Michael Morell, Durham said the agency should take his refusal to file charges as an exoneration. "Not only had two people died, but Durham told Director Petraeus and me that if the statute of limitations had not run out, he would likely have brought criminal charges in the two cases," Morell wrote.
The failure to hold anyone publicly accountable was seen as a gross injustice around the world. The UN special rapporteur on torture, Juan Mendez, a torture victim himself, denounced the decision to close the investigation without charges. Mendez called it an abrogation of the United States’ obligation under international law. “Unfortunately, there has been no serious investigation and recently the only investigation that was still going on, by Special Prosecutor Durham, was completely terminated with a decision not to prosecute even cases in which the torture victims had died,” Mendez said. “It is a very disappointing position because you can imagine how hard it is for the Special Rapporteur on Torture to go around the world saying you have to investigate, prosecute and punish when the first reaction is, “If the United States doesn’t do it, why should we?” The UN’s Human Rights Commission’s Committee Against Torture shared Mendez’s concerns.
In the face of fierce criticism, the Justice Department issued a follow-up statement. Durham’s review, the department said, was limited to whether any prosecutable offenses were committed. It did not include “the broader questions regarding the propriety” of the conduct.
Persistent doubts about the investigation weighed on former Attorney General Eric Holder. In 2015, not long after leaving office, Holder called for public release of the details of Durham’s investigation. Holder was ignored. Not only did the Justice Department decline Holder's request, it spent years fighting to keep Durham’s reports secret. Charlie Savage, a reporter at The New York Times, filed a Freedom of Information Act lawsuit to bring them to light. The newspaper lost the battle to make the reports public, with the exception of a few sentences that revealed next to nothing. Disclosing the names of covert personnel involved in the interrogation program, “could subject them to harassment or embarrassment as well as undue public attention,” Durham wrote. No one had seemed too concerned about harassing or embarrassing the SEALs who faced charges in the case.
During the Trump administration, John Durham was once again named a special counsel. He was tasked with investigating a subject near and dear to Donald Trump’s heart: the origins of the FBI’s investigation of the Trump campaign’s connections to Russia. Trump called him “Bull” Durham. “You have Bull Durham, who is supposed to be the toughest,” Trump said. “I’ve never met him. Never spoke to him. But he’s supposed to be the smartest and the best.”
In the case of the CIA, Durham had set the bar to prosecution impossibly high. In his investigation of the investigators, Durham set the bar so low that his prosecutions became a subject of mockery. He brought two cases to trial that both ended in acquittal. In his investigation of the CIA, Durham insisted that no information could be released. In his investigation of the investigators, Durham used court filings to raise allegations that he did not charge in court. He insinuated that Democrats had tried to frame Trump for colluding with Russia—a charge that he did not back up at trial. The back-to-back acquittals were a sign that jurors didn’t buy it. They were also a major embarrassment for both Durham and Trump. The former president promised that Durham would expose “the crime of the century” that was “10 times worse than Watergate.”
Forgotten in the Trump drama that never stopped consuming Washington was the 50-page report Durham wrote on the Jamadi case that few people have ever seen.
No one from the CIA has ever been held publicly accountable in the death of the Ice Man.