From the New Yorker:
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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; Guantánamo 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 90–9 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 coöperation. 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.”
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