Former colleague and TIME contributor Adam Zagorin breaks news here on Battleland with exclusive reporting on the latest federal action over the infamous death of “the Iceman” at Iraq’s Abu Ghraib prison in 2003:
By Adam Zagorin
It has been nearly a decade since Manadel al-Jamadi, an Iraqi prisoner known as “the Iceman” — for the bungled attempt to cool his body and make him look less dead — perished in CIA custody at Abu Ghraib. But now there are rumbles in Washington that the notorious case, as well as other alleged CIA abuses, could be returning to haunt the agency. TIME has learned that a prosecutor tasked with probing the CIA — John Durham, a respected, Republican-appointed U.S. Attorney from Connecticut — has begun calling witnesses before a secret federal grand jury in Alexandria, Va., looking into, among other things, the lurid Nov. 4, 2003, homicide, which was documented by TIME in 2005.
TIME has obtained a copy of a subpoena signed by Durham that points to his grand jury’s broader mandate, which could involve charging additional CIA officers and contract employees in other cases. The subpoena says “the grand jury is conducting an investigation of possible violations of federal criminal laws involving War Crimes (18 USC/2441), Torture (18 USC 243OA) and related federal offenses.”
In 2009 — after President Barack Obama replaced President George W. Bush — new U.S. Attorney General Eric Holder tapped Durham to review roughly a dozen cases of alleged abuse against “war on terror” suspects that had gone dormant. Holder’s decision to expand the probe occurred shortly before the CIA released a five-year-old IG report detailing a litany of detainee abuse by the agency.
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Al-Jamadi’s death may be the best-known unresolved case that Durham was tasked with investigating. Despite worldwide publicity, including the publication of photographs of grinning U.S. military personnel posed over the victim’s body, only a single officer faced court-martial. But he was found innocent in connection with the death of al-Jamadi, a suspected terrorist. Navy SEALs injured al-Jamadi during his violent arrest and initial questioning, but an autopsy concluded that those events could not have killed him. In fact, al-Jamadi was observed being turned over by the SEALs at Abu Ghraib, kicking and screaming in English and Arabic, only to be placed in a cell with a CIA interrogator and contract linguist.
Official investigations ruled al-Jamadi’s death a homicide. Investigators concluded that while in CIA custody, the prisoner was hung on a wall before succumbing to asphyxiation and “blunt force injuries.” The CIA’s Inspector General referred the case to the Justice Department shortly after it happened for possible prosecution, but no action was taken.
Now Durham is seeking evidence about the Iceman’s death from, among others, current and former U.S. military personnel who served at Abu Ghraib, the notorious prison west of Baghdad, according to sources with knowledge of the investigation. And he is asking a lot of questions — like who took photographs of the body, and when. Durham, according to these sources, has also asked about civilian contractors at the site, mentioning one by name, and has probed the source of the multiple shoe prints apparently found on material used to wrap al-Jamadi’s body.
Perhaps most important, according to someone familiar with the investigation, Durham and FBI agents have said the probe’s focus involves “a specific civilian person.” Durham didn’t name names, but those close to the case believe that person is Mark Swanner, a non-covert CIA interrogator and polygraph expert who questioned al-Jamadi immediately before his death. Swanner, of Stafford County, Virginia, told investigators several years ago that he did not harm the prisoner. Both Swanner and his lawyer declined to comment. Citing its ongoing investigation, the Justice Department also declined to comment.
Unanswered questions surround the killing. According to official reports, investigators were unable to examine key evidence because the victim’s blood was removed from the floor of the death cell on orders of a U.S. military officer. The CIA allegedly removed a blood-stained hood that had been placed over the victim’s head. A CIA supervisor later admitted he destroyed it. Immediately after the killing, CIA and military personnel argued over who might be blamed; the corpse was iced to slow decomposition and stored in a shower room overnight, before being spirited away with an intravenous tube attached to one arm, creating the impression that al-Jamadi was still alive.
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It’s unclear what crimes, if any, Swanner and other possible defendants could be charged with. But any charges involving the CIA, much less accusations of war crimes and torture, could be explosive, and Durham’s inquiry amounts to a crawl through a political minefield.
Last month, Michael Mukasey, who served as U.S. Attorney General under Bush, declared it “absolutely outrageous” that the Justice Department was still looking into potential CIA wrongdoing. Seven former CIA directors wrote to Obama soon after Holder’s appointment of Durham and asked him to scrap the investigation. Former GOP Senator Rick Santorum recently slammed the effort as he launched his 2012 presidential bid. “This whole process should be terminated immediately,” Santorum said. “This is a political prosecution … that would be ended with a political solution, that is the 2012 elections.”
Even groups like the American Civil Liberties Union are unhappy, because Durham’s mandate focuses on CIA activity that exceeded guidelines drawn up by top Bush Administration lawyers. ACLU officials have argued that the guidelines were too lax.
Durham, respected for his toughness over decades of pursuing organized crime, was charged with taking his investigation wherever it will lead. But since his inquiry began, legal complications and congressional pressure have forced the Obama Administration to shelve plans to shut Guantánamo Bay prison in Cuba and to abandon federal civilian trials for the alleged 9/11 conspirators.
In January, Durham himself announced that a former top CIA counterterrorism official would not be prosecuted for ordering the destruction of videotapes documenting harsh CIA interrogations — material that a federal court had ordered the agency to turn over in response to Freedom of Information Act requests. Given all these decisions, even if there is sufficient evidence to warrant indictments, the case of the Iceman and other possible CIA-linked prosecutions could remain forever frozen in time.
Email Adam Zagorin at firstname.lastname@example.org