Published June 30, 2011
WASHINGTON – The Justice Department inquiry into CIA interrogations of terrorist detainees has led to a full criminal investigation into the deaths of two people while they were in custody in Iraq and Afghanistan, Attorney General Eric Holder announced Thursday.
The attorney general said that he accepted the recommendation of a federal prosecutor, John Durham, who since August 2009 has conducted an inquiry into CIA interrogation practices during the Bush administration. Holder said Durham looked at the treatment of 101 detainees in U.S. custody since the Sept. 11, 2001, terrorist attacks and concluded that only these two deaths warranted criminal investigation. Holder said Durham found some of the 101 had never been held by the CIA.
Holder did not identify the two death cases. But former and current U.S. officials who requested anonymity to discuss an ongoing investigation said Durham was looking at the deaths of Gul Rahman and Manadel al-Jamadi.
Rahman died in the early hours of Nov. 20, 2002, after being shackled to a cold concrete wall in a secret CIA prison in northern Kabul, Afghanistan, known as the Salt Pit. He was suspected of links to the terrorist group al-Qaida. Rahman is the only detainee known to have died in a CIA-run prison.
Al-Jamadi died in 2003 at the Abu Ghraib prison in Iraq. The death has been known to the public for years and a military autopsy declared al-Jamadi's death a homicide.
This month, a former Abu Ghraib prison guard at the time of al-Jamadi's death, Lynndie England, was ordered to testify in a grand jury probe in Alexandria, Va. A subpoena signed by Durham for England's appearance says her testimony is needed in a probe of federal criminal laws involving war crimes, torture and other offenses. The Associated Press obtained a copy of the subpoena.
England, an Army reservist serving as a military policeman at Abu Ghraib, was among 11 soldiers found guilty of wrongdoing in the mistreatment of prisoners at Abu Ghraib prison in 2003 and 2004. Photographs showed England holding a restraint around a man's neck, and giving a thumbs-up and pointing at the genitals of naked, hooded men, a cigarette dangling from her mouth.
England's attorney, Roy Hardy, said that England testified along with former MPs Chip Frederick and Sabrina Harman before the grand jury earlier this month.
Another person who testified told the AP that prosecutors asked about a hood placed over al-Jamadi's head that later disappeared and who shackled al-Jamadi's arms behind his back and bound them to a barred window. This witness requested anonymity to avoid being connected publicly with the case.
On his last day as CIA director, Leon Panetta emphasized the wide scope of Durham's preliminary review.
"After extensive examination of more than 100 instances in which CIA had contact or was alleged to have had contact with terrorist detainees," the prosecutor "has determined that no further law enforcement action is appropriate in all but two discrete cases," Panetta, who will be sworn in Friday as the new defense secretary, said in a statement.
Panetta added that "both cases were previously reviewed by career federal prosecutors who subsequently declined prosecution."
"I welcome the news that the broader inquiries are behind us," Panetta said. "We are now finally about to close this chapter of our agency's history."
Rep. Mike Rogers, R-Mich., the chairman of the House Intelligence Committee, said he welcomes the Justice Department's decision to end criminal investigations "against the vast majority of CIA interrogators."
However, the American Civil Liberties Union faulted Durham's review as failing to scrutinize senior officials.
"Durham's mandate was far too narrow," said Hina Shamsi, director of the American Civil Liberties Union's National Security Project. "Durham was tasked principally with investigating interrogations that went beyond the bounds set by the Justice Department. However, the central problem was not with interrogators who disobeyed orders, but with senior officials who authorized a program of torture."
The outlines of al-Jamadi's death have long been known.
A CIA officer at Abu Ghraib was sanctioned for not having a doctor examine al-Jamadi when he arrived at the prison badly injured from a struggle with Navy SEALs.
That officer, whom the AP is identifying only as Steve because he worked undercover, was a focus of the CIA's internal investigation. Steve ran the detainee exploitation cell at Abu Ghraib and had done similar work with the agency in Afghanistan. Steve later retired from the CIA. The AP also has identified another CIA officer with the agency's Special Activities Division connected to al-Jamadi's death. He remains undercover.
Rahman's identity was not known until revealed by an AP investigation.
Former CIA officials say Rahman was acting as a conduit between militant Gulbuddin Hekmatyar and al-Qaida. Hekmatyar's insurgent group is believed to be allied with al-Qaida. The former officials said the CIA had been tracking Rahman's cell phone at the time of his Oct. 29, 2002, capture and were hoping the suspected militant would provide information about Hekmatyar's whereabouts.
But Rahman never cracked under questioning, refusing to help the CIA find Hekmatyar. Former CIA officials described him as one of the toughest detainees to pass through the CIA's network of secret prisons.
The young CIA officer running the prison at the time was never formally reprimanded in the case and remains working undercover for the agency.
The same day in August 2009 that the government complied with a court order to make public a CIA inspector general's report that said the agency had used some "unauthorized, improvised, inhumane" tactics in terrorist interrogations, Holder directed Durham to look into claims of abuse during CIA interrogations. At the time, Durham was already investigating the destruction of CIA interrogation videos showing waterboarding of terrorist suspects. That part of Durham's investigation ended last November, when Durham cleared the CIA's former top clandestine officer and others of any charges for destroying the agency videotapes of waterboarding, which evokes the sensation of drowning.
AP Intelligence Writer Kimberly Dozier in Washington and AP writer Vicki Smith in Morgantown, W.Va., contributed to this report.