10. "They Accomplished Nothing"
One of the most intriguing aspects of this case concerns the use of Camp No. Under George W. Bush, the CIA created an archipelago of secret detention centers that spanned the globe, and authorities at these sites deployed an array of Justice Department–sanctioned torture techniques — including waterboarding, which often entails inserting cloth into the subject's mouth — on prisoners they deemed to be involved in terrorism. The presence of a black site at Guantánamo has long been a subject of speculation among lawyers and human-rights activists, and the experience of Sergeant Hickman and other Guantánamo guards compels us to ask whether the three prisoners who died on June 9 were being interrogated by the CIA, and whether their deaths resulted from the grueling techniques the Justice Department had approved for the agency's use — or from other tortures lacking that sanction.
Complicating these questions is the fact that Camp No might have been controlled by another authority, the Joint Special Operations Command, which Bush's defense secretary, Donald Rumsfeld, had hoped to transform into a Pentagon version of the CIA. Under Rumsfeld's direction, JSOC began to take on many tasks traditionally handled by the CIA, including the housing and interrogation of prisoners at black sites around the world. The Pentagon recently acknowledged the existence of one such JSOC black site, located at Bagram Airfield in Afghanistan, and other suspected sites, such as Camp Nama in Baghdad, have been carefully documented by human-rights researchers.
In a Senate Armed Services Committee report on torture released last year, the sections about Guantánamo were significantly redacted. The position and circumstances of these deletions point to a significant JSOC interrogation program at the base. (It should be noted that Obama's order last year to close other secret detention camps was narrowly worded to apply only to the CIA.)
Regardless of whether Camp No belonged to the CIA or JSOC, the Justice Department has plenty of its own secrets to protect. The department would seem to have been involved in the cover-up from the first days, when FBI agents stormed Colonel Bumgarner's quarters. This was unusual for two reasons. When Pentagon officials engage in a leak investigation, they generally use military investigators. They rarely turn to the FBI, because they cannot control the actions of a civilian agency. Moreover, when the FBI does open an investigation, it nearly always does so with great discretion. The Bumgarner investigation was widely telegraphed, though, and seemed intended to send a message to the military personnel at Camp Delta: Talk about what happened at your own risk. All of which suggests it was not the Pentagon so much as the White House that hoped to suppress the truth.
In the weeks following the 2006 deaths, the Justice Department decided to use the suicide narrative as leverage against the Guantánamo prisoners and their troublesome lawyers, who were pressing the government to justify its long-term imprisonment of their clients. After the NCIS seized thousands of pages of privileged communications, the Justice Department went to court to defend the action. It argued that such steps were warranted by the extraordinary facts surrounding the June 9 "suicides." U.S. District Court Judge James Robertson gave the Justice Department a sympathetic hearing, and he ruled in its favor, but he also noted a curious aspect of the government's presentation: its "citations supporting the fact of the suicides" were all drawn from media accounts. Why had the Justice Department lawyers who argued the case gone to such lengths to avoid making any statement under oath about the suicides? Did they do so in order to deceive the court? If so, they could face disciplinary proceedings or disbarment.
The Justice Department also faces questions about its larger role in creating the circumstances that led to the use of so-called enhanced interrogation and restraint techniques at Guantánamo and elsewhere. In 2006, the use of a gagging restraint had already been connected to the death on January 9, 2004, of an Iraqi prisoner, Lieutenant Colonel Abdul Jameel, in the custody of the Army Special Forces. And the bodies of the three men who died at Guantánamo showed signs of torture, including hemorrhages, needle marks, and significant bruising. The removal of their throats made it difficult to determine whether they were already dead when their bodies were suspended by a noose. The Justice Department itself had been deeply involved in the process of approving and setting the conditions for the use of torture techniques, issuing a long series of memoranda that CIA agents and others could use to defend themselves against any subsequent criminal prosecution.
Teresa McHenry, the investigator charged with accounting for the deaths of the three men at Guantánamo, has firsthand knowledge of the Justice Department's role in auditing such techniques, having served at the Justice Department under Bush and having participated in the preparation of at least one of those memos. As a former war-crimes prosecutor, McHenry knows full well that government officials who attempt to cover up crimes perpetrated against prisoners in wartime face prosecution under the doctrine of command responsibility. (McHenry declined to clarify the role she played in drafting the memos.)
As retired Rear Admiral John Hutson, the former judge advocate general of the Navy, told me, "Filing false reports and making false statements is bad enough, but if a homicide occurs and officials up the chain of command attempt to cover it up, they face serious criminal liability. They may even be viewed as accessories after the fact in the original crime." With command authority comes command responsibility, he said. "If the heart of the military is obeying orders down the chain of command, then its soul is accountability up the chain. You can't demand the former without the latter."
The Justice Department thus faced a dilemma; it could do the politically convenient thing, which was to find no justification for a thorough investigation, leave the NCIS conclusions in place, and hope that the public and the news media would obey the Obama Administration's dictum to "look forward, not backward"; or it could pursue a course of action that would implicate the Bush Justice Department in a cover-up of possible homicides.
Nearly 200 men remain imprisoned at Guantánamo. In June 2009, six months after Barack Obama took office, one of them, a thirty-one-year-old Yemeni named Muhammed Abdallah Salih, was found dead in his cell. The exact circumstances of his death, like those of the deaths of the three men from Alpha Block, remain uncertain. Those charged with accounting for what happened — the prison command, the civilian and military investigative agencies, the Justice Department, and ultimately the attorney general himself — all face a choice between the rule of law and the expedience of political silence. Thus far, their choice has been unanimous.
Not everyone who is involved in this matter views it from a political perspective, of course. General Al-Zahrani grieves for his son, but at the end of a lengthy interview he paused and his thoughts turned elsewhere. "The truth is what matters," he said. "They practiced every form of torture on my son and on many others as well. What was the result? What facts did they find? They found nothing. They learned nothing. They accomplished nothing."