A DEADLY INTERROGATION
Can the C.I.A. legally kill a prisoner?
by JANE MAYER
Issue of 2005-11-14


At the end of a secluded cul-de-sac, in a fast-growing Virginia suburb
 favored by employees of the Central Intelligence Agency, is a handsome
 replica of an old-fashioned farmhouse, with a white-railed front porch. The
 large back yard has a swimming pool, which, on a recent October afternoon,
 was neatly covered. In the driveway were two cars, a late-model truck, and
 an all-terrain vehicle. The sole discordant note was struck by a faded
 American flag on the porch; instead of fluttering in the autumn breeze, it
 was folded on a heap of old Christmas ornaments.

The house belongs to Mark Swanner, a forty-six-year-old C.I.A. officer who
 has performed interrogations and polygraph tests for the agency, which has
 employed him at least since the nineteen-nineties. (He is not a covert
 operative.) Two years ago, at Abu Ghraib prison, outside Baghdad, an Iraqi
 prisoner in Swanner's custody, Manadel al-Jamadi, died during an
 interrogation. His head had been covered with a plastic bag, and he was
 shackled in a crucifixion-like pose that inhibited his ability to breathe;
 according to forensic pathologists who have examined the case, he
 asphyxiated. In a subsequent internal investigation, United States
 government authorities classified Jamadi's death as a "homicide," meaning
 that it resulted from unnatural causes. Swanner has not been charged with
 a crime and continues to work for the agency. 

After September 11th, the Justice Department fashioned secret legal
 guidelines that appear to indemnify C.I.A. officials who perform aggressive,
 even violent interrogations outside the United States. Techniques such as
 waterboarding -- the near-drowning of a suspect -- have been implicitly
 authorized by an Administration that feels that such methods may be
 necessary to win the war on terrorism. (In 2001, Vice-President Dick
 Cheney, in an interview on "Meet the Press," said that the government might
 have to go to "the dark side" in handling terrorist suspects, adding, "It's
 going to be vital for us to use any means at our disposal.") The harsh
 treatment of Jamadi and other prisoners in C.I.A. custody, however, has
 inspired an emotional debate in Washington, raising questions about what
 limits should be placed on agency officials who interrogate foreign terrorist
 suspects outside U.S. territory.

This fall, in response to the exposure of widespread prisoner abuse at
 American detention facilities abroad -- among them Abu Ghraib; Guant‡namo
 Bay, in Cuba; and Bagram Air Base, in Afghanistan -- John McCain, the
 Republican senator from Arizona, introduced a bill in Congress that would
 require Americans holding prisoners abroad to follow the same standards of
 humane treatment required at home by the U.S. Constitution. Prisoners
 must not be brutalized, the bill states, regardless of their "nationality or
 physical location." On October 5th, in a rebuke to President Bush, who
 strongly opposed McCain's proposal, the Senate voted 90Đ9 in favor of it. 

Senior Administration officials have led a fierce, and increasingly visible,
 fight to protect the C.I.A.'s classified interrogation protocol. Late last
 month, Cheney and Porter Goss, the C.I.A. director, had an unusual 
 forty-five-minute private meeting on Capitol Hill with Senator McCain, who
 was tortured as a P.O.W. during the Vietnam War. They argued that the
 C.I.A. sometimes needs the "flexibility" to treat detainees in the war on
 terrorism in "cruel, inhuman, and degrading" ways. Cheney sought to add an
 exemption to McCain's bill, permitting brutal methods when "such operations
 are vital to the protection of the United States or its citizens from
 terrorist attack." A Washington Post editorial decried Cheney's visit, calling
 him the "Vice-President for Torture." In the coming weeks, a conference
 committee of the House and the Senate will decide whether McCain's
 proposal becomes law; three of the nine senators who voted against the
 measure are on the committee.

The outcome of this wider political debate may play a role in determining the
 fate of Swanner, whose name has not been publicly disclosed before, and
 who declined several requests to be interviewed. Passage of the McCain
 legislation by both Houses of Congress would mean that there is strong
 political opposition to the abusive treatment of prisoners, and would put
 increased pressure on the Justice Department to prosecute interrogators
 like Swanner -- who could conceivably be charged with assault, negligent
 manslaughter, or torture. Swanner's lawyer, Nina Ginsberg, declined to
 discuss his case on the record. But he has been under investigation by the
 Justice Department for more than a year. 

Manadel al-Jamadi was captured by Navy SEALs at 2 a.m. on November 4,
 2003, after a violent struggle at his house, outside Baghdad. Jamadi
 savagely fought one of the SEALs before being subdued in his kitchen; during
 the altercation, his stove fell on them. The C.I.A. had identified him as a
 "high-value" target, because he had allegedly supplied the explosives used in
 several atrocities perpetrated by insurgents, including the bombing of the
 Baghdad headquarters of the International Committee of the Red Cross, in
 October, 2003. After being removed from his house, Jamadi was
 manhandled by several of the SEALs, who gave him a black eye and a cut on
 his face; he was then transferred to C.I.A. custody, for interrogation at Abu
 Ghraib. According to witnesses, Jamadi was walking and speaking when he
 arrived at the prison. He was taken to a shower room for interrogation.
 Some forty-five minutes later, he was dead. 

For most of the time that Jamadi was being interrogated at Abu Ghraib,
 there were only two people in the room with him. One was an Arabic-speaking
 translator for the C.I.A. working on a private contract, who has been
 identified in military-court papers only as "Clint C." He was given immunity
 against criminal prosecution in exchange for his cošperation. The other
 person was Mark Swanner.

In the spring of 2004, the fact of pervasive prisoner abuse at Abu Ghraib
 became public, on "60 Minutes II" and in a series of articles in these pages by
 Seymour M. Hersh. Photographs, taken by U.S. soldiers, that showed Iraqi
 prisoners being hooded, sexually humiliated, and threatened with dogs were
 published around the world. One of the most harrowing images was of
 Jamadi's severely battered corpse, which had been wrapped in plastic and
 put on ice; he became known in the media as the Ice Man. 

Around this time, John Helgerson, the C.I.A.'s inspector general, sent
 investigators to Iraq and San Diego to interview witnesses about the
 agency's role in Jamadi's death. These investigators determined that there
 was the possibility of criminality -- the threshold level required by the
 intelligence agency in order for the case to be referred to the Justice
 Department. The agency did so, and officials in the Justice Department then
 forwarded the case to the office of Paul McNulty, the U.S. Attorney for the
 Eastern District of Virginia, which has jurisdiction over C.I.A. headquarters.
 The dossier has been there for more than a year. A lawyer familiar with the
 case, who asked not to be named, said that the Swanner file seemed to be
 "lying kind of fallow." 

A spokeswoman for McNulty said that he would have no comment on the
 case, because it was still under investigation. (Last month, President Bush
 nominated McNulty to the position of Deputy Attorney General, the second
 most powerful job in the Justice Department.) No other official in the
 Justice Department would discuss on the record why, more than two years
 after Jamadi's death, no decision has been made about pressing charges
 against anyone. 

A government official familiar with the case, who declined to be named,
 indicated that establishing guilt in the case might be complicated, because
 of Jamadi's rough handling by the SEALs before he entered the custody of
 the C.I.A. Yet, in the past two years, several of the Navy SEALs who
 captured Jamadi and delivered him to C.I.A. officials have faced abuse
 charges in military-justice proceedings, and have been exonerated.
 Moreover, three medical experts who have examined Jamadi's case told me
 that the injuries he sustained from the SEALs could not have caused his
 death.

Fred Hitz, who served as the C.I.A.'s inspector general from 1990 to 1998,
 and who is now a lecturer in public and international affairs at Princeton
 University, said of Bush Administration officials, "I just think they're playing
 stall ball." He told me that he had no inside knowledge of the Swanner case,
 but he believes that, for numerous reasons, ranging from protecting
 national security to avoiding political embarrassment, Administration
 officials "would be opposed to any accountability in this case. They want it
 to disappear off the screen." (A spokesman for the C.I.A. said that its
 internal investigation into Jamadi's death was "nearly complete," making it
 "inappropriate to discuss any of the details.")

John Radsan, a lawyer formerly in the C.I.A's Office of General Counsel, says,
 "Along with the usual problems of dealing with classified information in a
 criminal case, this could open a can of worms if a C.I.A. official in this case
 got indicted -- a big fat can of worms about what set of rules apply to people
 like Jamadi. The sixty-four-thousand-dollar question is: What has been
 authorized? Can the C.I.A. torture people? A case like this opens up
 Pandora's box."


Since September 11, 2001, the C.I.A.'s treatment and interrogation of
 terrorist suspects has remained almost entirely hidden from public view.
 Human-rights groups estimate that some ten thousand foreign suspects are
 being held in U.S. detention facilities in Afghanistan, Iraq, Cuba, and other
 countries. A small but unknown part of this population is in the custody of
 the C.I.A., which, as Dana Priest reported recently in the Washington Post,
 has operated secret prisons in Thailand and in Eastern Europe. It is also
 unclear how seriously the agency deals with allegations of prisoner abuse.
 The C.I.A. tends to be careful about following strict legal procedures,
 including the briefing of the top-ranking members of the congressional
 intelligence committees on its covert activities. But experts could recall no
 instance of a C.I.A. officer being tried in a public courtroom for
 manslaughter or murder. Thomas Powers, the author of two books about
 the C.I.A., told me, "I've never heard of anyone at the C.I.A. being convicted
 of a killing." He added that a case such as Jamadi's had awkward political
 implications. "Is the C.I.A. capable of addressing an illegal killing by its own
 hands?" he asked. "My guess is not." Whereas the military has subjected
 itself to a dozen internal investigations in the aftermath of the Abu Ghraib
 scandal, and has punished more than two hundred soldiers for wrongdoing,
 the agency has undertaken almost no public self-examination. 

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.) 

One reason these C.I.A. officials may not be facing charges is that, in recent
 years, the Justice Department has established a strikingly narrow definition
 of torture. In August, 2002, the department's Office of Legal Counsel sent
 a memo on interrogations to the White House, which argued that a coercive
 technique was torture only when it induced pain equivalent to what a person
 experiencing death or organ failure might suffer. By implication, all lesser
 forms of physical and psychological mistreatment -- what critics have called
 "torture lite" -- were legal. The memo also said that torture was illegal only
 when it could be proved that the interrogator intended to cause the required
 level of pain. And it provided interrogators with another large exemption:
 torture might be acceptable if an interrogator was acting in accordance with
 military "necessity." A source familiar with the memo's origins, who declined
 to speak on the record, said that it "was written as an immunity, a blank
 check." In 2004, the "torture memo," as it became known, was leaked,
 complicating the nomination of Alberto R. Gonzales to be Attorney General;
 as White House counsel, Gonzales had approved the memo. The
 Administration subsequently revised the guidelines, using language that
 seemed more restrictive. But a little-noticed footnote protected the
 coercive methods permitted by the "torture memo," stating that they did
 not violate the "standards set forth in this memorandum." 

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."


By the summer of 2003, the insurgency against the U.S. occupation of Iraq
 had grown into a confounding and lethal insurrection, and the Pentagon and
 the White House were pressing C.I.A. agents and members of the Special
 Forces to get the kind of intelligence needed to crush it. On orders from
 Secretary of Defense Donald Rumsfeld, General Geoffrey Miller, who had
 overseen coercive interrogations of terrorist suspects at Guant‡namo,
 imposed similar methods at Abu Ghraib. In October of that year, 
 however -- a month before Jamadi's death -- the Justice Department's Office
 of Legal Counsel issued an opinion stating that Iraqi insurgents were covered
 by the Geneva Conventions, which require the humane treatment of
 prisoners and forbid coercive interrogations. The ruling reversed an earlier
 interpretation, which had concluded, erroneously, that Iraqi insurgents were
 not protected by international law.

As a result of these contradictory mandates from Washington, the rules of
 engagement at Abu Ghraib became muddy, and the tactics grew increasingly
 ad hoc. Jeffrey H. Smith, a former general counsel of the C.I.A., told me,
 "Abu Ghraib has its roots at the top. I think this uncertainty about who was
 and who was not covered by the Geneva Conventions, and all this talk that
 they're all terrorists, bred the climate in which this kind of abuse takes
 place." 

At Abu Ghraib, the confusion over interrogation and detention methods was
 compounded by the fact that C.I.A. officials worked side by side with U.S.
 military people. Colonel Janis Karpinski, a former commander of the 800th
 Military Police Brigade, which oversaw the administration of Abu Ghraib
 during the period of widespread abuse, has said that C.I.A. officers, along
 with contract interpreters and some military-intelligence officers, did not
 wear uniforms when they visited the prison, and it was not clear, even to
 her, what they were doing there. "I thought most of the civilians there were
 interpreters, but there were some civilians I didn't know," she told Seymour
 Hersh. "I called them disappearing ghosts... They were always bringing in
 somebody for interrogation, or waiting to collect somebody going out." C.I.A.
 officials, unlike members of the Army and the Navy, are not bound by the
 Uniform Code of Military Justice, which prohibits "cruelty toward, or
 oppression or maltreatment of" prisoners. 

Walter Diaz, a military policeman, was on guard duty at Abu Ghraib the
 morning that Jamadi was delivered to the prison. He told me, "The O.G.A."
 --  "other government agencies," initials commonly used to protect the
 identity of the C.I.A. -- "would bring in people all the time to interview them.
 We had one wing, Tier One Alpha, reserved for the O.G.A. They'd have maybe
 twenty people there at a time." He went on, "They were their prisoners.
 They'd get into a room and lock it up. We, as soldiers, didn't get involved.
 We'd lock the door for them and leave. We didn't know what they were
 doing." But, he recalled, "we heard a lot of screaming."

Considering this level of secrecy, it's doubtful that any details would have
 emerged about the C.I.A.'s role in Jamadi's death had it not been for a
 strange and tangential chain of events. Three months after Jamadi died,
 Jeffrey Hopper, a Navy SEAL who had been assigned to carry out joint
 operations with the C.I.A. in Baghdad, was accused of stealing another
 SEAL's body armor. Hopper, who had been nicknamed Klepto by the unit, was
 expelled from the Special Forces. When he was dismissed, he told authorities
 that he knew of far worse offenses committed by other SEALs, and he cited
 the abuse of several prisoners, including Jamadi. His accusations formed the
 basis of multiple charges against several SEALs, which led to the
 court-martial of Lieutenant Andrew Ledford, the commander of the platoon
 that captured Jamadi, for, among other things, allowing his troops to
 assault the prisoner. Last May, Ledford was acquitted of any wrongdoing;
 but during the hearings, which were open, a number of troubling facts spilled
 out, hinting at the C.I.A.'s role in Jamadi's death.

Seth Hettena, an Associated Press reporter based in San Diego, California,
 attended the hearings. The courtroom testimony, he reported, indicated
 that Jamadi, before arriving at Abu Ghraib, was interrogated "in a rough
 manner" by a combination of SEALs and C.I.A. personnel in "the Romper
 Room," a tiny space in the Navy camp at Baghdad International Airport.
 Swanner was among those present. One of the SEALs testified that after
 Jamadi was handcuffed a C.I.A. interrogator rammed "his arm up against the
 detainee's chest, pressing on him with all his weight." According to a recent
 report by John McChesney on National Public Radio, a C.I.A. guard who
 witnessed the scene later told investigators that, after stripping Jamadi and
 dousing him in cold water, a C.I.A. interrogator threatened to "barbecue" him
 if he didn't talk. Jamadi reportedly moaned, "I'm dying, I'm dying." The
 interrogator replied, "You'll be wishing you were dying."

Court testimony also established that Jamadi was "body-slammed" by the
 SEALs into the back of a Humvee before being delivered to Abu Ghraib.
 During this time, he was handcuffed. "Was he a threat?" a Navy prosecutor
 asked one of the SEALs on trial. "No, ma'am," the SEAL conceded.

Soon after the Associated Press published Hettena's Romper Room story,
 two unidentified officials, evidently from the C.I.A., appeared in the
 courtroom. From that point on, Hettena told me, the officials, who did not
 give their names, protested when the testimony touched on matters
 sensitive to the C.I.A. In many instances, reporters and other members of
 the public were required to leave the courtroom. On another occasion, an
 unidentified C.I.A. witness testified from behind a blue curtain. Several
 areas of questioning by defense lawyers for the SEALs were ruled off limits.
 When one of the defense lawyers, Matthew Freedus, asked a witness, "What
 position was Jamadi in when he died?," the C.I.A. representatives protested,
 saying that the answer was classified. The same objection was made when a
 question was asked about the role that water had played in Jamadi's
 interrogation.

By late last spring, the SEALs' reputations had been tarnished by the
 exposure of their rough treatment of Jamadi, but they were cleared of the
 gravest abuse charges. The question of who was responsible for Jamadi's
 death remained unanswered. Milt Silverman, one of the defense attorneys,
 told me, "Who killed Jamadi? I know it wasn't any of the SEALs. . . . That's
 why their cases got dismissed." Frank Spinner, a civilian lawyer who
 represented Ledford, said, "There's a stronger case against the C.I.A. than
 there is against Ledford. But the military's being hung out to dry while the
 C.I.A. skates. I want a public accounting, whether in a trial, a hearing before
 a congressional committee, or a public report. There's got to be something
 more meaningful than sticking the case in a Justice Department drawer."

Spinner and several of the other defense lawyers learned more about the
 C.I.A.'s role in Jamadi's death than they were supposed to know, owing to a
 classification error made by the agency. The C.I.A. sent hundreds of pages
 of material on Jamadi's death to the Navy; much of it was classified, and all
 of it was marked unclassified. The pages were passed on to the civilian
 lawyers, who read them carefully. The agency, after realizing its mistake,
 demanded that the lawyers return the classified material, and subsequently
 sealed virtually all the court records relating to the case. Some of the C.I.A.
 documents, however, were seen by a source familiar with the case, who
 shared their contents with me.


Manadel al-Jamadi arrived at Abu Ghraib naked from the waist down,
 according to an eyewitness, Jason Kenner, an M.P. with the 372nd Military
 Police Company. In a statement to C.I.A. investigators, Kenner recalled that
 Jamadi had been stripped of his pants, underpants, socks, and shoes,
 arriving in only a purple T-shirt and a purple jacket, and with a green plastic
 sandbag completely covering his head. Nevertheless, Kenner told C.I.A.
 investigators, "the prisoner did not appear to be in distress. He was walking
 fine, and his speech was normal." The plastic "flex cuffs" on Jamadi's wrists
 were so tight, however, that Kenner had trouble cutting them off when they
 were replaced with steel handcuffs and Jamadi's hands were secured behind
 his back.

Staff Sergeant Mark Nagy, a reservist in the 372nd Military Police Company,
 was also on duty at Abu Ghraib when Jamadi arrived. According to the
 classified internal documents, he told C.I.A. investigators that Jamadi
 seemed "lucid," noting that he was "talking during intake." Nagy said that
 Jamadi was "not combative" when he was placed in a holding cell, and that he
 "responded to commands." In Nagy's opinion, there was "no need to get
 physical with him."

Kenner told the investigators that, "minutes" after Jamadi was placed in the
 holding cell, an "interrogator" -- later identified as Swanner -- began "yelling at
 him, trying to find where some weapons were." Kenner said that he could see
 Jamadi through the open door of the holding cell, "in a seated position like a
 scared child." The yelling went on, he said, for five or ten minutes. At some
 point, Kenner said, Swanner and his translator "removed the prisoner's
 jacket and shirt," leaving him naked. He added that he saw no injuries or
 bruises. Soon afterward, the M.P.s were told by Swanner and the translator
 to "take the prisoner to Tier One," the agency's interrogation wing. The
 M.P.s dressed Jamadi in a standard-issue orange jumpsuit, keeping the
 sandbag over his head, and walked him to the shower room there for
 interrogation. Kenner said that Jamadi put up "no resistance."

On the way, Nagy noticed that Jamadi was "groaning and breathing heavily, as
 if he was out of breath." Walter Diaz, the M.P. who had been on guard duty
 at the prison, told C.I.A. investigators that Jamadi showed "no distress or
 complaints on the way to the shower room." But he told me that he, too,
 noticed that Jamadi was having "breathing problems." An autopsy showed
 that Jamadi had six fractured ribs; it is unclear when they were broken. The
 C.I.A. officials in charge of Jamadi did not give him even a cursory medical
 exam, although the Geneva Conventions require that prisoners receive
 "medical attention." 

"Jamadi was basically a 'ghost prisoner,' " a former investigator on the case,
 who declined to be named, told me. "He wasn't checked into the facility.
 People like this, they just bring 'em in, and use the facility for
 interrogations. The lower-ranking enlisted guys there just followed the
 orders from O.G.A. There was no booking process." 

According to Kenner's testimony, when the group reached the shower room
 Swanner told the M.P.s that "he did not want the prisoner to sit and he
 wanted him shackled to the wall." (No explanation for this decision is
 recorded.) There was a barred window on one wall. Kenner and Nagy, using a
 pair of leg shackles, attached Jamadi's arms, which had been placed behind
 his back, to the bars on the window.

The Associated Press quoted an expert who described the position in which
 Jamadi died as a form of torture known as "Palestinian hanging," in which a
 prisoner whose hands are secured behind his back is suspended by his arms.
 (The technique has allegedly been used in the Israeli-Palestinian conflict.)
 The M.P.s' sworn accounts to investigators suggest that, at least at first,
 Jamadi was able to stand up, without pain: autopsy records show that he
 was five feet ten, and, as Diaz explained to me, the window was about five
 feet off the ground. The accounts concur that, while Jamadi was able to
 stand without discomfort, he couldn't kneel or sit without hanging painfully
 from his arms. Once he was secured, the M.P.s left him alone in the room
 with Swanner and the translator.

Less than an hour later, Diaz said, he was walking past the shower room
 when Swanner came out and asked for help, reportedly saying, "This guy
 doesn't want to cošperate." According to the NPR report, one of the C.I.A.
 men told investigators that he called for medical help, but there is no
 available record of a doctor having been summoned. When Diaz entered the
 shower room, he said, he was surprised to see that Jamadi's knees had
 buckled, and that he was almost kneeling. Swanner, he said, wanted the
 soldiers to reposition Jamadi, so that he would have to stand more erectly.
 Diaz called for additional help from two other soldiers in his company,
 Sergeant Jeffery Frost and Dennis Stevanus. But after they had succeeded
 in making Jamadi stand for a moment, as requested, by hitching his
 handcuffs higher up the window, Jamadi collapsed again. Diaz told me, "At
 first I was, like, 'This guy's drunk.' He just dropped down to where his hands
 were, like, coming out of his handcuffs. He looked weird. I was thinking, He's
 got to be hurting. All of his weight was on his hands and wrists -- it looked
 like he was about to mess up his sockets."

Swanner, whom Diaz described as a "kind of shabby-looking, overweight white
 guy," who was wearing black clothing, was apparently less concerned. "He
 was saying, 'He's just playing dead,' " Diaz recalled. "He thought he was
 faking. He wasn't worried at all." While Jamadi hung from his arms, Diaz told
 me, Swanner "just kept talking and talking at him. But there was no answer."

Frost told C.I.A. investigators that the interrogator had said that Jamadi was
 just "playing possum." But, as Frost lifted Jamadi upright by his jumpsuit,
 noticing that it was digging into his crotch, he thought, This prisoner is
 pretty good at playing possum. When Jamadi's body went slack again, Frost
 recalled commenting that he "had never seen anyone's arms positioned like
 that, and he was surprised they didn't just pop out of their sockets."

Diaz, sensing that something was wrong, lifted Jamadi's hood. His face was
 badly bruised. Diaz placed a finger in front of Jamadi's open eyes, which
 didn't move or blink, and deduced that he was dead. When the men lowered
 Jamadi to the floor, Frost told investigators, "blood came gushing out of his
 nose and mouth, as if a faucet had been turned on."

Swanner, who had seemed so unperturbed, suddenly appeared "surprised" and
 "dumbfounded," according to Frost. He began talking about how Jamadi had
 fought and resisted the entire way to the prison. He also made calls on his
 cell phone. Within minutes, Diaz said, four or five additional O.G.A. officers,
 also dressed in black, arrived on the scene. 

Dr. Steven Miles, a medical ethicist at the University of Minnesota, who is
 writing a study of U.S. medical practices during the war on terrorism, has
 examined the Jamadi incident extensively. He recently recounted to me what
 happened that morning: "An Iraqi medical doctor working with the C.I.A.
 confirmed Jamadi's death. Captain Donald Reese, the commander of Abu
 Ghraib M.P.s, came to the shower room and heard Colonel Thomas M.
 Pappas, the commander of military intelligence at the prison, say, 'I am not
 going down for this alone.' "

C.I.A. personnel ordered that Jamadi's body be kept in the shower room until
 the next morning. The corpse was packed in ice and bound with tape,
 apparently in an attempt to slow its decomposition and, Miles believes, to
 try to alter the perceived time of death. The ice was already melting when
 Specialist Sabrina Harman posed for pictures while stooping over Jamadi's
 body, smiling and giving the thumbs-up sign. The next day, a medic inserted
 an I.V. in Jamadi's arm, put the body on a stretcher, and took it out of the
 prison as if Jamadi were merely ill, so as to "not upset the other detainees."
 Other interrogators, Miles said, "were told that Jamadi had died of a heart
 attack." (There is no medical evidence that Jamadi experienced heart
 failure.) A military-intelligence officer later recounted that a local 
 taxi-driver was paid to take away Jamadi's body.

Before leaving, Frost told investigators, Swanner confided that he "did not
 get any information out of the prisoner." C.I.A. officials took with them the
 bloodied hood that had covered Jamadi's head; it was later thrown away.
 "They destroyed evidence, and failed to preserve the scene of the crime,"
 Spinner, the lawyer for one of the Navy SEALs, said.

The next day, Swanner gave a statement to Army investigators, stressing
 that he hadn't laid a hand on Jamadi, and hadn't done anything wrong. "Clint
 C.," the translator, also said that Swanner hadn't beaten Jamadi. "I don't
 think anybody intended the guy to die," a former investigator on the case,
 who asked not to be identified, told me. But he believes that the decision to
 shackle Jamadi to the window reflected an intent to cause suffering. (Under
 American and international law, intent is central to assessing criminality in
 war-crimes and torture cases.) The C.I.A., he said, "put him in that position
 to get him to talk. They took it that pain equals cošperation."


The autopsy, performed by military pathologists five days later, classified
 Jamadi's death as a homicide, saying that the cause of death was
 "compromised respiration" and "blunt force injuries" to Jamadi's head and
 torso. But it appears that the pathologists who performed the autopsy were
 unaware that Jamadi had been shackled to a high window. When a description
 of Jamadi's position was shared with two of the country's most prominent
 medical examiners -- both of whom volunteered to review the autopsy report
 free, at the request of a lawyer representing one of the SEALs -- their
 conclusion was different. Miles, independently, concurred.

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."

Dr. Cyril Wecht, a medical doctor and a lawyer who is the coroner of
 Allegheny County, Pennsylvania, and a former president of the American
 Academy of Forensic Sciences, independently reached the same conclusion.
 The interpretation put forward by the military pathologists, he said, "didn't
 fit with their own report. They said he died of blunt-force trauma, yet there
 was no significant evidence of trauma to the head." Instead, Wecht believes
 that Jamadi "died of compromised respiration," and that "the position the
 body was in would have been the cause of death." He added, "Mind you, I'm
 not a critic of the Iraq war. But I don't think we should reduce ourselves to
 the insurgents' barbaric levels."

Walter Diaz told me, "Someone should be charged. If Jamadi was already
 handcuffed, there was no reason to treat the guy the way they did -- the way
 they hung him." Diaz said he didn't know if Swanner had intended to torture
 Jamadi, or whether the death was accidental. But he was troubled by the
 government's inaction, and by what he saw as the agency's attempt at a
 coverup. "They tried to blame the SEALs. The C.I.A. had a big role in this.
 But you know the C.I.A. -- who's going to go against them?" 


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.

Even more troubling is the possibility that, under the Bush Administration's
 secret interrogation guidelines, the killing of Jamadi might not have broken
 any laws. Jeffrey Smith says it's possible that the Office of Legal Counsel's
 memos may have opened too many loopholes for interrogators like Swanner,
 "making prosecution somehow too hard to do." Smith added, "But, even
 under the expanded definition of torture, I don't see how someone beaten
 with his hands bound, who then died while hanging -- how that could be legal.
 I'd be embarrassed if anyone argued that it was."

Senator Richard Durbin, a Democrat from Illinois, served on the Senate
 Intelligence Committee until January. Before his tenure ended, he looked at
 the full, classified set of photographs from Abu Ghraib. In a recent interview
 at his office in the Capitol, he said, "You can't imagine what it's like to go to
 a closed room where you have a classified briefing, and stand shoulder to
 shoulder with your colleagues in the Senate, and see hundreds and hundreds
 of slides like those of Abu Ghraib, most of which have never been publicly
 disclosed. I had a sick feeling when I left." He went on, "It was then that I
 began to have suspicions that something significant was happening at the
 highest levels of the government when it came to torture policy."

Since then, Durbin has been trying to close the loopholes that allow
 government personnel to engage in brutal interrogations. Last year, he
 introduced an amendment to the defense-authorization bill affirming that
 the C.I.A. was covered by U.S. laws forbidding torture and the cruel,
 inhuman, and degrading treatment of prisoners. But his effort met intense
 resistance from the Bush Administration, and the amendment did not pass.
 Durbin tried other legislative stratagems, without much success. Eventually,
 John McCain took up Durbin's cause -- which led to last month's confrontation
 with Cheney and Goss. The Abu Ghraib scandal seems not to have chastened
 Cheney or any other Administration officials; in fact, they are for the first
 time arguing openly and explicitly that C.I.A. personnel should be exempt
 from standards that apply to every other American. 

"I'm concerned that the government isn't going forward on these
 prosecutions," Durbin said of the C.I.A. cases. "It's really hard to follow the
 Administration's policies here. I think the world was very simple before
 9/11. We knew what the law was, and I understood it to apply to everyone in
 the government. Now there's real uncertainty. There's a shadow over our
 nation that needs lifting."