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05.05.09

The Bush Administration Homicides

The Justice Department may not be prosecuting the torture-memo writers, but John Sifton asks, what about those who killed an estimated 100 detainees during interrogations?

For five years as a researcher for Human Rights Watch and reporter, John Sifton helped investigate homicides resulting from the Bush administration's torture policy. His findings include:

• An estimated 100 detainees have died during interrogations, some who were clearly tortured to death.

• The Bush Justice Department failed to investigate and prosecute alleged murders even when the CIA inspector general referred a case.

• Sifton’s request for specific information on cases was rebuffed by the Bush Justice Department, though it was “familiar with the cases.”

• Attorney General Eric Holder must now decide whether to investigate and prosecute homicides, not just cases of torture.

A simple fact is being overlooked in the Bush-era torture scandal: the number of cases in which detainees have been tortured to death. Abuse did not only involve the high-profile cases of smashing detainees into plywood barriers (“walling”), confinement in coffin-like boxes with insects, sleep deprivation, cold, and waterboarding. To date approximately 100 detainees, including CIA-held detainees, have died during U.S. interrogations, and some are known to have been tortured to death.

The bottom line is that many detainee homicides in Iraq and Afghanistan were the direct result of approval and orders from the highest levels of government, and that high officials in the government are accomplices.

A review of homicide cases, however, shows that few detainee deaths have been properly investigated. Many were not investigated at all. And no official investigation has looked into the connection between detainee deaths and the interrogation policies promulgated by the Bush administration.

Yet an important report by the Senate Armed Services Committee, declassified in April 2009, explains in clear terms how Bush-era interrogation techniques, including torture, once authorized for CIA high-value detainees, were promulgated to Guantánamo, Iraq, and Afghanistan, where (as reporter Jason Leopold recently noted at The Public Record) the policies have led to homicides.

The killings, at least some of them, have hardly been kept secret. As early as May-June 2003, The New York Times and Washington Post reported on deaths of detainees in Afghanistan. Two detainees at Bagram air base died after extensive beatings by U.S. troops in December 2002—a case reported by The New York Times and that was also the subject of the Oscar-winning documentary Taxi to the Dark Side. Another death involved a man beaten to death by a CIA contractor at a base in Asadabad, in eastern Afghanistan, in June 2003.

In September 2004, the Crimes of War Project, working with investigative journalist Craig Pyes, uncovered a torture murder in Gardez, Afghanistan, in March 2003. Jamal Naseer, a soldier in the Afghan Army, died after he and seven other soldiers were mistakenly arrested. Those arrested with Naseer later said that during interrogations U.S. personnel punched and kicked them, hung them upside down, and hit them with sticks or cables. Some said they were doused with cold water and forced to lie in the snow. Nasser collapsed about two weeks after the arrest, complaining of stomach pain, probably an internal hemorrhage.

In May 2005, as a researcher for Human Rights Watch, I reported on several other cases of torture homicides, including a case in which the military claimed a detainee had died because he was “ bitten by a snake.”

To the best of my knowledge, the first death of a U.S. detainee in custody occurred in August 2002—an Afghan detainee named Mohammad Sayari killed by four U.S. military personnel. I first learned about the Sayari case in 2005, reading through a Department of Defense document obtained via a Freedom of Information Act case by the American Civil Liberties Union. The document contained a short description of the incident: A captain and three sergeants “murdered Mr. [Sayari] after detaining him for following their movements in Afghanistan.” The section of the document detailing the result of the investigation was redacted.

More than three years after the murder, human-rights groups and I pressed the military for an explanation. The Army revealed that commanders had declined to prosecute any of the four men implicated in the case, although one of the four soldiers received an “administrative reprimand.” In 2006, additional documents obtained by the ACLU disclosed that the Army investigation had found probable cause to recommend charges of murder and conspiracy against the four Special Forces soldiers. According the investigation, the four soldiers had captured the detainee, a civilian noncombatant, and shot him, presumably after interrogating him. (Investigators also recommended dereliction-of-duty charges against three of the men and a charge of obstruction of justice against the highest-ranking, a captain, who admitted to destroying evidence of the crime.) Inexplicably, without a court martial, the case was closed. The captain received a letter of reprimand for “destroying evidence.”

In February 2006, a review by Human Rights First determined that almost 100 detainees died in U.S. custody in Afghanistan and Iraq facilities as of 2005, and that almost half of the cases were clearly homicides. Several cases discussed in the report were clear cases of torture homicides.

To take one example, in December 2003, a 44-year-old Iraqi man named Abu Malik Kenami died in a U.S. detention facility in Mosul, Iraq. As reported by Human Rights First, U.S. military personnel who examined Kenami when he first arrived at the facility determined that he had no preexisting medical conditions. Once in custody, as a disciplinary measure for talking, Kenami was forced to perform extreme amounts of exercise—a technique used across Afghanistan and Iraq. Then his hands were bound behind his back with plastic handcuffs, he was hooded, and forced to lie in an overcrowded cell. Kenami was found dead the morning after his arrest, still bound and hooded. No autopsy was conducted; no official cause of death was determined. After the Abu Ghraib scandal, a review of Kenami’s death was launched, and Army reviewers criticized the initial criminal investigation for failing to conduct an autopsy; interview interrogators, medics, or detainees present at the scene of the death; and collect physical evidence. To date, however, the Army has taken no known action in the case.

Another infamous case from Iraq involved a CIA “ghost” detainee named Manadel al-Jamadi, who was tortured to death by a CIA interrogation team at Abu Ghraib prison in November 2003. Pictures of Abu Ghraib guards Charles Graner and Sabrina Harman posing with al-Jamadi’s dead body, the so-called Ice Man, were among the most notorious of the Abu Ghraib photographs published in April 2004. A CIA officer named Mark Swanner and an interpreter led the team that interrogated al-Jamadi. Nine Navy personnel were also implicated. An autopsy conducted by the U.S. military five days after al-Jamadi’s death found that the cause: “blunt force injuries complicated by compromised respiration.” Reporting by The New Yorker’s Jane Mayer and NPR’s John McChesney revealed that al-Jamadi was strung up from handcuffs behind his back, a torture tactic sometimes called a “Palestinian hanging.” After an investigation, the CIA referred the case to the Department of Justice for possible criminal prosecution of the CIA personnel involved, but no charges were ever brought. Prosecutors accused 10 Navy personnel of the crime; nine were given nonjudicial punishments, such as rank reductions and letters of reprimand, and a 10th was acquitted.

The government is not unaware of these homicides. In April 2006, a colleague of mine at Human Rights Watch and I met with Department of Justice criminal-division officials and requested information and updates on this case and several others. Justice officials were familiar with these cases, but our pleas for information were rejected.

There may be other CIA homicides yet uncovered. One case of concern involves a detainee in the CIA’s detention program named Hassan Ghul, a Pakistani who was arrested in northern Iraq in January 2004. Ghul’s interrogation was discussed in one of the May 10, 2005, Office of Legal Counsel memos signed by OLC head Steven Bradbury. Ghul’s name is mostly redacted but appears by mistake in one part of the memo.

I am starting to suspect that Ghul might be dead. After all, his name was redacted from the OLC memo, unlike that of other CIA detainees now at Guantánamo. Why would the CIA be afraid of mentioning Ghul? CIA doctors appear to have determined that Ghul was in poor health when he was captured, in fact, too unhealthy to be waterboarded. Unlike other former CIA detainees, human-rights groups have not confirmed that he was rendered to Pakistan or to a third country. Did the CIA perhaps torture Ghul to death? We do not know. He has now completely disappeared.

The CIA appears to have had some close calls with detainees dying. The May 10, 2005, Bradbury memo suggests that one of the CIA’s detainees—likely Abu Zubaydah or Khalid Sheikh Mohammad—stopped breathing or lost consciousness at one point during their waterboarding: According to the CIA’s Office of Medical Services, in their “limited experience... extensive sustained use of the waterboard can introduce new [possibly lethal] risks.” (To the best of our knowledge, the only “experience” the CIA has with waterboarding being used extensively or in a sustained manner, is with Abu Zubaydah and Khalid Shaikh Mohammad). The memo explains: “Most seriously, for reasons of physical fatigue of psychological resignation, the subject may simply give up, allowing excessive filling of the airways and loss of consciousness. An unresponsive subject should be righted immediately, and the integrator should deliver a sub-xyphoid thrust to expel the water. If this fails to restore normal breathing, aggressive medical intervention is required....” The memo also notes that CIA doctors present during waterboarding sessions stood by with necessary equipment to perform a tracheotomy if necessary: “[W]e are informed that the necessary emergency medical equipment is always present—although not visible to the detainee—during any application of the waterboard.”

It would be overly simplistic to suggest that every detainee death in U.S. custody and every act of abuse was part of an authorized and ordered interrogation program designed and run from the highest levels of the Bush administration. Some deaths in Iraq and Afghanistan appear to have involved military or CIA personnel going “off the rails” and engaging in abusive conduct beyond what even White House lawyers had in mind when they crafted their “enhanced interrogation” policies. And some torture techniques were already in use in Afghanistan and spread there earlier than they were even formally approved.

Yet directly or directly, abuse spread and worsened—detainees started dying. Unlike torture, however, homicide is an uncomplicated crime. A criminal homicide occurs when a person or set of persons simply causes the death of another without legal justification. There is little nuance, little room for escape. Once a person is dead, the killer and those assisted him, those who solicited his crime or aided or abetted it, are accomplices.

The bottom line is that many detainee homicides in Iraq and Afghanistan were the direct result of approval and orders from the highest levels of government, and that high officials in the government are accomplices. Any meaningful investigation of those homicides would reveal the initial authorizations and their link to the homicides.

Homicide presents legal issues impossible to ignore. Attorney General Eric Holder and the Department of Justice cannot conclude their deliberations about Bush-era torture policies without closely investigating the homicide cases tied to them. One cannot speak glibly of “policy differences” and “looking forward” and “distraction” when corpses are involved.

Xtra Insight: Scott Horton: Justice Department Probe Slams Bush Lawyers Over Torture Ethics

John Sifton is a private investigator and attorney based in New York. His  firm, One World Research, carries out research for law firms and human-rights groups, including in South Asia, the Middle East, and North Africa. He has conducted extensive investigations into the CIA interrogation and detention program.