art 7 art

THE ICE MAN

NEW YORK, APRIL 28, 2004—Journalists at CBS headquarters were preparing a sensational and damning exclusive. They had sat on the story for several weeks. They, together with Seymour Hersh, the journalist who exposed the My Lai massacre in Vietnam, were to reveal that night some shocking news: pictures of abuse committed by U.S. troops in Baghdad at Abu Ghraib, a jail once used by Saddam Hussein as a center for torture and execution.

One of those pictures showed Specialist Sabrina Harman, twenty-six, the daughter of a homicide detective from Arlington, Virginia. She was standing before the bruised torso of a man. He was slumped in a shower—dead—covered in ice and wrapped in tape. She had a fixed grin and was giving the thumbs-up. The morning after the picture was taken, the dead man had an intravenous drip inserted into his arm. This was so, as he was carried out, other prisoners would not realize he was dead. He was carried like this out of the prison and taken later to a U.S. military mortuary at Camp Sayther, at Baghdad Airport.1

In the days that followed the story of abuse at Abu Ghraib would dominate the front pages of newspapers across the world; the photographs became iconic images of the dark side of America's wars in Iraq and against terror.2

On May 5, George Bush addressed the Iraqi people, in an interview in the White House Map Room with a correspondent of Alhurra Television, the U.S.-funded Arabic satellite channel. “First, people in Iraq must understand,” he said, “that I view those practices as abhorrent. They must also understand that what took place in that prison does not represent America that I know.” Referring to “the actions of these few people,” Bush promised a full investigation. In a democracy, mistakes would be made. “But in a democracy, as well, those mistakes will be investigated and people will be brought to justice …. We're a society that is willing to investigate, fully investigate in this case, what took place in that prison.”3

The dead prisoner was an Iraqi called Manadel al-Jamadi. He was, it emerged, suspected of involvement in a bomb attack that had destroyed the Red Cross headquarters in Baghdad on October 27. Unlike the other prisoners shown naked in the Abu Ghraib gallery, al-Jamadi had been in the custody of the CIA and had been captured in a nighttime raid by a unit of the U.S. Special Forces, the Navy SEALs. Military pathologists determined his death was “homicide.” Despite Bush's promises of a full investigation, for at least two and a half years after his death the CIA made no official comment on his death, and no prosecution was brought against the agency interrogators involved.

Al-Jamadi had died under CIA interrogation on November 4, 2003, at the height of the abuses at Abu Ghraib. It was at this time, between October and December 2003, that members of the 372nd Military Police Company were said by the subsequent official inquiry of Army Major General Antonio M. Taguba, ordered by the U.S. commander in Iraq, to have committed “sadistic, blatant, and wanton” criminal and intentional acts that included:

Other credible allegations, he said, included:

Few were to realize that within Tier 1, which was under the control of the 372nd, was a section Alpha devoted to CIA prisoners.5

In a damage-limitation exercise, the defense secretary, Donald Rumsfeld, would emphasize again and again that it was only a small group that had carried out these acts. “You know,” he said, “what was going on in the midnight shift in Abu Ghraib Prison halfway across the world is something that clearly someone in Washington, D.C., can't manage or deal with” (my emphasis).6 By 2006, Rumsfeld was still talking of “what was done by that midnight watch group of people at Abu Ghraib, and was so terrible in terms of its effect in the world” (my emphasis).7

Rumsfeld and others maintained strongly that what happened at Abu Ghraib was abuse, not torture. It was not part of the interrogation process. It also went against military training doctrines. He stressed that “all of our rules, all of our procedures, all of our training is against abuse of people that are detained.”8 The abuses were also something at complete odds to what the president wanted. “The president from the beginning had a policy of humane treatment and torture was not allowed,” said Rumsfeld. “We had a policy that reflected the president's policy. It went right down.” Subsequent Pentagon inquiries found that some of the abuses did occur as part of interrogation. There were orders, for example, to use military working dogs to intimidate the prisoners. The Military Police accused of abuse, General Taguba found, were also “actively requested” by both Military Intelligence interrogators and those from the other government agencies (OGA), a military euphemism for the CIA, “to set physical and mental conditions for favorable interrogation of witnesses.”9 A further inquiry in 2004 by Major General George Fay concluded:

CIA detention and interrogation practices led to a loss of accountability, abuse, reduced interagency cooperation, and an unhealthy mystique that further poisoned the atmosphere at Abu Ghraib.10

Neither the CIA nor Military Intelligence gave any formal orders to the Military Police to carry out abuse. The inquiries all found that the real worst of the worst abuses at Abu Ghraib, like sexual abuse of prisoners, had not been ordered by anyone in the military chain of command.

What did emerge, however, was a series of orders and legal opinions from political leaders in Washington, D.C., that exposed how the defini-tions of prisoner abuse—and of torture itself—had been redefined in the quest to defeat terrorism. Of themselves, these memos did not provide instructions to carry out what was seen at Abu Ghraib. Yet those in Washington did establish a new legal framework in which the traditional rules for dealing with prisoners did not apply. This new framework applied in Abu Ghraib, but also defined the conduct of American men and women in prisons and interrogation centers across the world. It defined the government's attitude toward conduct in America's own jails, but also to conduct in many of the foreign jails involved in the CIA's rendition program. Both soldiers and CIA officers had to navigate in this new environment, often without being equipped with an effective compass to guide them. Abu Ghraib, then, changed the terms of the debate. The extent of the depravity exposed on Tier 1 posed a series of searching questions about what had been going on, often covertly, in America's name. And, as this process of questioning gathered pace, the consequences for the CIA were just as great as those for the Pentagon and its military. The working logic of the war on terror had begun to be laid bare.

THE story of America's invasion of Iraq and the details of the scandal at Abu Ghraib are not central to this book's account of America's secret rendition program and its network of secret prisons. And yet the scandal's revelation in April and May 2004 was significant, because it defined a moment in time, a low-water mark in the response of policy-makers to 9/11. It was the beginning of a backlash in which so much was revealed and so much had to change.

In Iraq, the scandal could not have emerged at a worse moment. Since the beginning of April, fighting of unparalleled atrocity and lethality had erupted. The U.S. Army was fighting a war on two fronts: against an insurgency in the Sunni Triangle, backed by foreign militants, and against the Shia militias of the Mehdi Army in Baghdad and the holy city of Najaf. A spate of kidnappings had been launched. And now Abu Ghraib would focus the anger of many Iraqis against American forces.

I was in Iraq at that time, reporting from the southern city of Basra, and saw the effect caused by these pictures of abuse. I had heard tales of abuse from former Iraqi prisoners. In February, one alleged victim from Baghdad had drawn detailed diagrams for me of the type of torture he had endured at a U.S. military holding center at Baghdad's airport. At the time, few would believe these allegations. The man I interviewed was a Sunni from a district of Baghdad known to be hostile to the American presence. How could I be sure his allegations were not invented? How could I level such serious charges without any more detailed proof? (The irony of victimization is that the more people are victimized and made to suffer, the less one is inclined to believe their accounts of such treatment.)11 So, with so much else going on, I never wrote up his story. Yet now we were seeing actual photographs, acknowledged as genuine, that were appearing on television. We had concrete proof that these stories were true. Down south, many hardened Shia had little sympathy with the victims of torture. “They're all from Fallujah and terrorists; what kind of treatment do they expect?” one told me. But, all the same, these very people realized that these revelations would harden attitudes in Sunni areas and potentially prolong the insurgency, and possibly cause a civil war.

For myself, I also realized it was time to publish the first part of my research that showed the wider network of abuse tolerated as part of the rendition program and authorized at a high level. By satellite telephone from Basra, I filed my long piece for the New Statesman that described in detail what the magazine headlined as “America's Gulag.” It described the existence of a secret airline run by the CIA to transport prisoners. The same day as my article was published, the Swedish documentary that revealed the identity of one of the fleet's planes, the Gulfstream V, was broadcast.

If all these scandals and such articles and broadcasts affected the CIA rendition program, it is hard to gauge. But whether by coincidence or by reaction, in the weeks following Abu Ghraib, there were some changes. On May 29, the German car salesman, Khaled el-Masri was finally released from the CIA jail in Afghanistan. At the same time the former London resident Binyam Mohamed was transferred from another CIA prison in Afghanistan to the military base at Bagram Airport. He was finally a ghost prisoner no more. At last he had access to the Red Cross and, after his two years in captivity, they could inform his family of where he was. In September, a total of fourteen prisoners, all apparently former CIA ghost prisoners, including Binyam, were transferred from Bagram to Guan-tanamo.12 It seemed the CIA was clearing out its stable.

In its specifics, and though hardly publicized at the time, there was much too that could be learned from the Abu Ghraib scandal about the CIA's wider program of prisoner detentions. By the end of 2003, with an insurgency now raging, Iraq had become a major outpost of the war on terror. The CIA was forced to mobilize more and more of its resources into the country, diverting them from other quarters. Acquiring intelligence became vital, particularly from prisoners. And so the CIA became increasingly involved in the interrogation both of Iraqi prisoners and of foreign militants who were captured in Iraq. By the middle of 2004, the United States had handled more than forty-three thousand prisoners in Iraq.13 The CIA brought to Iraq not only its interrogation teams that had been trained for the war on terror, but also the new methods and rule books it had developed since 9/11. The exposure of what happened at Abu Ghraib helped reveal those methods.

Abu Ghraib, more than anything, threw attention and criticism onto the military. But just as the activities of the Military Policemen raised wider questions, so the death of al-Jamadi and his photograph provided an uncomfortable glimpse into the wider world of CIA interrogations, and into the agency's detention of prisoners without trial or formal legal procedures. While the U.S. military may have been criticized most strongly, its prisoners at least were formally logged and registered and given access to the Red Cross. The CIA's prisoners were held in secret and without access to any outsiders. Al-Jamadi was an example of a ghost prisoner. And his case provided the first public glimpse since 9/11 of an alleged homicide in CIA hands.

The month when al-Jamadi died, November 2003, was the height of the panic over the relatively new Iraq insurgency. Six months after the “liberation” of the country, the rebels were gaining in strength, and many Americans who believed their presence had been welcomed were shocked at its ferocity. The UN headquarters had been blown up on August 19, and on October 27, the Red Cross headquarters had been reduced to rubble. Most distressing of all was that Saddam Hussein was still at large, and there was little concrete intelligence about where he might be hiding.

Three agencies were competing to interview prisoners. First there was the CIA-directed Iraqi Survey Group, which handled most of the high-value prisoners and, although set up to help hunt for WMD, had been ordered also to help with the hunt for Saddam. Then there was a Special Operations covert fusion group—Task Force 121—that included the CIA.14 TF 121 had been set up in Afghanistan to hunt for Osama bin Laden, but had been brought over to Iraq to be the key agency directing the hunt for Saddam. Finally there were the military's own intelligence assets, concentrated at Abu Ghraib but also deployed on the ground.15

In the race to find Saddam, the pressure drove each of the agencies to pull out the stops to find useful intelligence. The Military Police said they were told by both Military Intelligence and the CIA to prepare the prisoners for interrogation.16

At this time the CIA's fleet of planes became frequent visitors to the former Saddam International Airport in Baghdad. “We used to see these Gulfstreams and executive jets on the tarmac,” Brigadier General Janis Karpinski told me. “We assumed they were hired by TV journalists. Only later did we find out they were OGA.”17 Two days after the Red Cross bombing, and five days before the raid on al-Jamadi's house, a CIA Gulf-stream flew into Baghdad from Kabul. CIA planes arrived too at the time of other crucial investigations and interrogations. Within a day of Saddam Hussein's arrest on December 13, both the Gulfstream V and the Boeing 737 had arrived in Baghdad.18

IT was about 2:00 A.M. on November 4, when a convoy of Humvees and blacked-out Chevy Suburbans approached the three-story apartment block where al-Jamadi lived. SEAL Dan Cerrillo was first in, and he rushed the door, striking al-Jamadi with it, and then striking him on the face with two fists.19 The pair struggled ferociously, and his stove fell on him. Then he was grabbed and thrown into the back of a Humvee.

The SEALs took al-Jamadi back to their Navy camp near Baghdad Airport, Camp Jenny Pozzi. The commander of the SEAL platoon, Lieutenant Andrew Ledford, was later put on trial at a court-martial in San Diego, accused of allowing al-Jamadi to be severely beaten. He was cleared by the jury of the charge of improper conduct.20 But in testimony, witnesses testified that al-Jamadi was punched, kicked, and struck by the SEALs at the camp, among other places in a tiny space known as the Romper Room. Al-Jamadi was stripped, and water was poured all over him.21 Among those there were the SEALs and CIA officers, the latter including an interrogator and polygraph expert named Mark Swanner22 and “Clint C,” a private contract translator for the agency.

One CIA interrogator, recalled a SEAL, had pushed “his arm up against the detainee's chest, pressing on him with all his weight.” A CIA guard also testified he heard an agency interrogator threaten to “barbecue” al-Jamadi if he didn't begin to talk. Al-Jamadi apparently moaned, “I'm dying, I'm dying,” to which the interrogator responded, “You'll be wishing you were dying.”23

As he was taken away to a waiting Humvee, the court heard, al-Jamadi was “body-slammed” into the vehicle by SEALs, who confessed he had presented no threat. On arrival at Abu Ghraib, al-Jamadi was still walking freely. Jason Kenner, an MP on duty, said al-Jamadi had been stripped of his underwear, and was naked but for a purple T-shirt and a purple jacket. He had a green plastic sandbag over his head. But he was walking and spoke normally.24 Al-Jamadi was put in a holding cell at first. His remaining clothes were taken off, and he appeared to have no injuries, said Kenner. Then, the MPs were told to put the prisoner into an orange jumpsuit and take him to Tier 1-Alpha, the wing of Abu Ghraib used by the OGA. The “Alpha” section, which typically held about twenty prisoners, was part of the overall Tier 1 that was policed by the 372nd Military Police Company, the unit held responsible for the worst Abu Ghraib abuses. Al-Jamadi did not resist the transfer. At Tier 1-A, his interrogation took place in a shower room.

Several MPs had noticed that al-Jamadi was having trouble breathing. An autopsy later found that he had had six broken ribs. Swanner told the Military Police not to let al-Jamadi sit down, but instead to raise his wrists behind his back and attach the metal handcuffs to the wall behind him. He could stand up but if his knees buckled, then he would be left hanging from the wall. One account described this as a form of torture known as “Palestinian hanging.”25 With his ribs now broken, it must have been excruciatingly painful if he bent down. Once attached, al-Jamadi was left alone with Swanner and the translator Clint. A little later, the MPs were summoned by Swanner, and they found al-Jamadi hanging slumped from the wall, with his knees bent. Every time the soldiers attempted to raise him, he flopped down again. Walter Diaz, an MP present, recalled: “All his weight was on his hands and wrists—looked like he was going to mess up his sockets.”26 Swanner allegedly told Diaz that the prisoner was faking it, “playing dead”; another MP, Sergeant Jeffrey Frost, said Swanner had said he was “playing possum.” Frost was unconvinced and lifted al-Jamadi's hood, and found his face bruised and lifeless. The men lowered al-Jamadi to the floor, and “blood came gushing out of his nose and mouth, as if a faucet had been turned on,” said Frost.27 Within forty-five minutes of arriving in the shower block, al-Jamadi was now clearly dead. It was just before 7:00 A.M.

In detailed investigations into al-Jamadi's death, The New Yorker's Jane Mayer, Seth Hettena of the Associated Press, and John McChesney of National Public Radio quoted witnesses who recounted how CIA officials took away the prisoners' bloodied hood, thus destroying the evidence. After being kept overnight on ice, al-Jamadi's body was taken out of the prison with a fake intravenous drip attached, in an effort to avoid alarming anyone.

An autopsy was not conducted for another five days. Military pathologists called his death a homicide caused by “blunt force trauma to the torso complicated by compromised respiration.” But much later, al-Jamadi's autopsy results were looked at again by two medical examiners, Dr. Michael Baden and Dr. Cyril Wecht, on behalf of one of the accused SEALs. Both rejected the conclusion that blunt force injuries to his head had played any part in his death. Instead, both said he died because of “compromised respiration” caused by the combination of broken ribs and the painful position in which he was held. Dr. Baden, then the chief forensic pathologist for the New York State Police, told Mayer that “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.” Dr. Wecht, former president of the American Academy of Forensic Sciences, drew the same conclusion, telling her that “the position the body was in would have been the cause of death.”28

At the time of this writing, neither Swanner nor any other CIA official had faced any criminal charges in connection with al-Jamadi's death.29 An investigation by the CIA inspector general's office had been passed to the Department of Justice, where the file awaited any action. Proving the cause of death or the extent of injuries inflicted by the CIA officers in particular would be hard. But a summary of the basic facts give a fairly brutal picture of rough justice: Al-Jamadi was arrested without any charge, was subjected to no initial medical examination (as required by international law), and his arrest was not registered officially. He was then physically beaten as part of the interrogation procedure. After his death, his body was dispatched out of the prison, in disguise. Al-Jamadi was a full-fledged ghost prisoner: dealt with—and finally disposed of—outside the rule of law.

IN June 2004, a month after the Abu Ghraib scandal and al-Jamadi's picture were first broadcast and published, the world was still struggling to comprehend what had occurred. In Washington, political and military leaders denied that any such abuse had been ordered.30

But then the so-called “torture memos,” legal opinions endorsed by the Department of Justice, were made public, in a series of disclosures beginning that month. These showed how the official rules for dealing with prisoners had been redefined. And they showed why the Geneva Conventions had been abandoned so that prisoners could be intensely questioned.31

Back in early 2002, in the early stages of the war on terror, and when the camp at Guantanamo was just opening up, the then White House chief counsel, Alberto Gonzales, was considering all the legal issues. What he understood clearly was the central importance in this war on terror of the capture and interrogation of prisoners. The United States was facing a new enemy, whose intentions and plans were unclear. Defeating that enemy—the terrorists—required first and foremost good intelligence. And the most ready source of that intelligence was from captured prisoners. So it was essential to have a rule book that would allow good and effective intelligence gathering. Yet there was a problem. The Geneva Convention on prisoners of war placed clear limits on interrogation.32 Essentially there was a ban on almost all types of aggressive questioning, and on any kinds of incentives provided to those who talked. It states: “No physical or mental torture, nor any other form of coercion, may be inflicted on prisoners of war to secure from them information of any kind whatever.” Similar protection existed for captured civilians from “physical or moral coercion … in particular to obtain information from them.”

The solution then was clear to Gonzales: Abandon those Geneva Conventions. In a memo to President Bush on January 25, 2002, Gonzales had spelled this out: “The nature of [a 'war' against terrorism] places a high premium on … factors such as the ability to quickly obtain information from captured terrorists and their sponsors … and the need to try terrorists for war crimes …. In my judgement, this new paradigm renders obsolete Geneva's strict limitations on questioning of enemy prisoners” (emphasis added).33

On February 7, 2002, the president wrote to Vice President Cheney, Rumsfeld, Secretary of State Colin Powell, and others, confirming that he accepted the legal conclusion of the Department of Justice, which had endorsed Gonzales's reasoning, and determined that the Geneva Conventions did not apply to “either Taliban or Al Qaeda prisoners.” Based on this, he declared that Taliban detainees were “unlawful combatants [and] because Geneva does not apply to our conflict with Al Qaeda, Al Qaeda detainees also do not qualify as prisoners of war.”34

If the United States could escape from the Geneva straitjacket, then the president could set his own standards of what would constitute torture, and would therefore be illegal. Although the United States remained bound to oppose torture itself, the definition of torture could be relaxed. A definition of what constituted acceptable conduct, in response to a request for advice from the CIA, was later sketched out by the Department of Justice, in a memo on August 1, 2002, by Assistant Attorney General Jay S. Bybee. Torture as defined in U.S. law, he said, “covers only extreme acts.” He added:

Where the pain is physical, it must be of an intensity akin to that which accompanies serious physical injury such as death or organ failure. Severe mental pain requires suffering not just at the moment of infliction but it also requires lasting psychological harm, such as seen in mental disorders like post-traumatic stress disorder …. Because the acts inflicting torture are extreme, there is a significant range of acts that though they might constitute cruel, inhuman, or degrading treatment or punishment fail to rise to the level of torture.35 (emphasis added)

Bybee's memo was important, because it provided an excuse to authorize all kinds of stressful questioning procedures. When this memo was made public in June 2004, it caused an outcry and was withdrawn, the Department of Justice said. But a new, more moderate memo still contained some of the same thinking. While the requirement stated in Bybee's memo that physical torture needed to amount to an “intensity akin to that which accompanies serious physical injury such as death or organ failure” was withdrawn, the policy confirmed that the United States now believed that mental torture was only legally torture if it was severe enough to cause long-term harm. A footnote to the new memo confirmed the revised policy would have made no difference to the attorney general's previous verdicts on what interrogation techniques were considered legal.36

More broadly, Bybee's thinking was just one part of a series of reexaminations of the basic principles by which America should treat its enemies. With Geneva swept aside, the agencies that handle prisoners, the military and the CIA, were now navigating in clear blue water—choosing a course with no obvious landmarks to steer by.

In the military, the new post-Geneva policies began to be applied two weeks before the president formally ruled on February 7 that America's new enemies were excluded from Geneva protections. On January 19, 2002, Donald Rumsfeld ordered the U.S. Joint Chiefs of Staff to inform commanders in Afghanistan that Taliban and Al Qaeda captives should only be treated humanely “to the extent necessary and appropriate with military necessity.”37 The president had set the tone for how this policy would be applied when, in a press conference on January 28, he referred to the Guantánamo prisoners as “enemy combatants,” and praised the valiant efforts made by U.S. troops “to make sure that these killers—these are killers—were held in such a way that they were safe.” Although the decision to drop Geneva was widely discussed, few realized that the real aim of this move was to open the field for harsher questioning. A press notice issued by the White House listed the types of Geneva rights that would be denied to Guantánamo inmates, among them the ability to purchase food, soap, and tobacco; have a monthly advance of pay; or “receive scientific equipment, musical instruments, or sports outfits.” No mention of the right not to be subject to “physical or moral coercion” to talk.38

The definition of acceptable interrogation had long been set out for the Army in its field manual (FM 34-52). It included a list of seventeen approved techniques.39 But in December 2002 Rumsfeld authorized a set of enhanced techniques specifically for use in Guantánamo, some of which required his personal approval when used.40 Some were rescinded the following January 15, but by then these practices, including sleep deprivation and forced standing, had already been passed on to Afghanistan, where Special Forces teams were engaged in hunting remnant Taliban and Al Qaeda forces.41 Deployed alongside them were members of the 205th Military Intelligence Brigade and its 215th Battalion (Alpha Company), the same unit that later ended up at Abu Ghraib, and that was accused by General Taguba of asking the Military Police brigade under investigation by him to “set the conditions” for interrogation. It was interrogators from the 215th's Alpha Company who were later found responsible for the deaths of two prisoners in Bagram, Afghanistan: a taxi driver named Di-lawar on December 10, 2002, and Mullah Habibullah on December 4. According to military prosecutors the former died after having been repeatedly assaulted, and the interrogators had kept him awake for days “by shackling him in a standing position with hands suspended above shoulder level for a prolonged period of time.”42 A military lawyer in Bagram, in a secret report written on January 24, 2003, confirmed that interrogators in Afghanistan were using the same Rumsfeld-approved techniques first seen at Guantánamo.43

The commander of the Alpha Company in Bagram was a decorated officer, Captain Carolyn A. Wood. After a brief return to Fort Bragg, she was drafted with her company to go to Iraq. According to the report by Vice Admiral Albert Church following his investigation ordered by Rumsfeld into military interrogation methods, it was she who drafted an interrogation policy for Abu Ghraib in August 2003 that was “based in part on interrogation techniques being used at the time by units in Afghanistan.”44

IF the military had its new rules after 9/11, what had emerged now of the rules for the CIA? In a normal conflict, the rules of the Geneva Conventions would apply as much to the CIA (or KGB, or any secret agency) as to any part of the military. A prisoner of war should be treated according to the rules of war, regardless of what agency might carry out the interrogation. But if, in the new war on terror, the Geneva Conventions did not apply to the Pentagon, as the president had ruled, then they certainly did not apply to the CIA. Like the military, the CIA would have to rely on its own new “blue water” definitions of what might be acceptable limits of legal interrogation. One point missed from public debate was the decision to exclude the CIA from the president's directive to the military to follow Geneva's provisions where possible. As one February 2002 official memo noted: “CIA lawyers believe that, to the extent that [the Geneva Convention on Prisoners of War] protections do not apply as a matter of law but those protections are applied as a matter of policy, it is desirable to circumscribe that policy so as to limit its application to the CIA. The other lawyers involved do not disagree with or object to the CIA's view.”45

The details of what exact methods the CIA was now entitled to use were for long to remain classified. Two memos, one written in August 2002, and another in March 2003, were said to define the “enhanced” interrogation techniques permitted for CIA use, including some quite shocking.46 Among those techniques was said to be “water boarding,” the simulated drowning of a prisoner.47 At the San Diego trial of the SEAL commander, Lieutenant Ledford, two CIA representatives appeared in court to ensure that none of these secrets were revealed. When defense lawyers asked a witness “what position was al-Jamadi in when he died,” the CIA objected that this information was classified, as they did when asked about the role of water in al-Jamadi's interrogation. The hearing was frequently conducted behind closed doors, with reporters and the public told to leave.48 Effectively, Ledford was on trial for what his men did prior to the CIA interrogation. What actually happened at the interrogation was kept secret. Not surprisingly, the jury found Ledford not guilty.

Most observers and witnesses did generally report that the CIA's interrogations in Iraq and Guantánamo were often far more professional and subtle than those of military interrogators.49 They were far less prone to the kind of randomly violent abuses and frustrated lashing-out committed by some poorly trained army interrogators. Whatever the CIA did was more deliberate. It emerged that the CIA came not only to resort to torture by proxy (through the rendition program) but, in some specific cases, to make calculated use of what many would regard as severe torture itself. Legal authority for using new intensive methods of interrogation was requested and granted after the CIA struggled to get useful information from several key high-value prisoners held at undisclosed locations. It was after the capture of Abu Zubaydah in Pakistan in March 2002, and when he had become unhelpful despite an initial period of cooperation, that the CIA was said to have requested and won clearance to use techniques like “water boarding.”50 Water boarding was also allegedly authorized for the interrogation of Khalid Sheikh Mohammed, who was captured in 2003.51 One declassified military memorandum showed how the use of water treatment, described as “use of a wet towel and dripping water to induce the misperception of suffocation,” was, though refused for use in Guantánamo, considered to be permissible legally “if not done with the specific intent to cause prolonged mental harm, and absent medical evidence that it would.”52

ALL these revelations about the new paradigm that defined America's treatment of its enemies came to light in the months after Abu Ghraib. Faced with worldwide horror about what had happened at the Iraqi prison, it was as if the events caused a shock that in turn caused a sudden realization by many involved in the war on terror that unconstrained warfare—even against an evil foe like Al Qaeda—would be counterproductive. The images of Abu Ghraib came to express what was wrong in the war on terror. They were the catalyst that began a backlash against all the tactics that had been employed since 9/11. In this new atmosphere of public self-criticism, those internal critics of the conduct of the war felt able at last to come forward and speak publicly. They could now argue convincingly that public comment was needed to prevent further outrages.53

As the backlash continued, two rulings by the U.S. Supreme Court on June 28, 2004, that gave detainees at Guantánamo the right to file lawsuits under habeas corpus provided a crucial opportunity for these stories of abuse to emerge.54 The Court said the president could declare both a U.S. citizen and a foreign citizen to be an “enemy combatant,” but detentions of both could be challenged in U.S. federal courts. The ruling did not make it plain if such rights are to be extended beyond the United States and Guantánamo to other U.S.-controlled prisons, for example, in Afghanistan. Sandra Day O'Connor, one of the justices, declared that “a state of war is not a blank check for the president.” After this ruling, detainees at Guantánamo, like Binyam Mohamed and the Australian national Mamdouh Habib, began to have access to their own, independent lawyers, and were at last able to recount their stories of rendition and torture.55 After Abu Ghraib, the accounts of detainees like these who had protested their torture were at last taken seriously.

The discovery of prisoners in military custody at Guantánamo like Binyam, who had previously been interrogated in Egyptian or Moroccan hands, provided confirmation that the foreign torture cells of Cairo or Damascus and the U.S. jails at Guantánamo and Bagram were part of one interconnected gulag, in which prisoners were swapped both between countries and between the CIA and the U.S. military. It became clear too that evidence obtained in these foreign jails was being used against prisoners at Guantánamo: In other words, the rendition process was not just to send prisoners back home to be jailed but had an intrinsic purpose of interrogation. For example, under torture in Cairo, Habib had confessed to being a member of Al Qaeda in Afghanistan; now he faced the same accusation at Guantánamo.56

If September 11 produced an “autumn of anger” that justified a relaxation of standards and a resort to torture, as investigations got underway into the abuses of Abu Ghraib, at Bagram, and at Guantánamo, a “spring of doubt” set in. Military and intelligence officials were beginning to wonder if the mission had been betrayed. Would they be left taking the rap for misconceived methods and tactics that could eventually lose the war on terror?