Failures of Imagination
By Eric Umansky
Carlotta Gall was curious. It was early December 2002, and Gall, the Afghanistan correspondent for The New York Times, had just seen a press release from the U.S. military announcing the death of a prisoner at its Bagram Air Base. Soon thereafter the military issued a second release about another detainee death at Bagram. “The fact that two had died within weeks of each other raised alarm bells,” recalls Gall. “I just wanted to know more. And I came up against a blank wall. The military wouldn’t release their names; they wouldn’t say where they released the bodies.”
Gall started calling the governors of provinces, she says, “asking if a family had received a body back from Bagram in their province.” None had, but Gall did learn that U.S. forces had detained some suspects near the eastern border town of Khost.
She visited Khost and left empty-handed, but a few weeks later, she got another tip and traveled back. The body of one of the detainees had been returned, a young taxi driver known as Dilawar. Gall met with Dilawar’s family, and his brother handed Gall a death certificate, written in English, that the military had issued. “It said, ‘homicide,’ and I remember gasping and saying, ‘Oh, my God, they killed him,’” says Gall. “I hadn’t really been thinking that before.”
The press release announcing Dilawar’s death stated that the taxi driver had died of a heart attack, a
conclusion repeated by the top U.S. commander in Afghanistan, then-Lieutenant General Daniel McNeill, whom Gall later cited as saying that Dilawar had died because his arteries were 85 percent blocked. (“We haven’t found anything that requires us to take extraordinary action,” McNeill declared.) But the death certificate, the authenticity of which the military later confirmed to Gall, stated that Dilawar — who was just twenty-two years old — died as a result of “blunt force injuries to lower extremities complicating coronary artery disease.”
Gall filed a story, on February 5, 2003, about the deaths of Dilawar and another detainee. It sat for a month, finally appearing two weeks before the U.S. invasion of Iraq. “I very rarely have to wait long for a story to run,” says Gall. “If it’s an investigation, occasionally as long as a week.”
Gall’s story, it turns out, had been at the center of an editorial fight. Her piece was “the real deal. It referred to a homicide. Detainees had been killed in custody. I mean, you can’t get much clearer than that,” remembers Roger Cohen, then the Times’s foreign editor. “I pitched it, I don’t know, four times at page-one meetings, with increasing urgency and frustration. I laid awake at night over this story. And I don’t fully understand to this day what happened. It was a really scarring thing. My single greatest frustration as foreign editor was my inability to get that story on page one.”
Doug Frantz, then the Times’s investigative editor and now the managing editor of the Los Angeles Times, says Howell Raines, then the Times’s top editor, and his underlings “insisted that it was improbable; it was just hard to get their mind around. They told Roger to send Carlotta out for more reporting, which she did. Then Roger came back and pitched the story repeatedly. It’s very unusual for an editor to continue to push a story after the powers that be make it clear they’re not interested. Roger, to his credit, pushed.” (Howell Raines declined requests for comment.)
“Compare Judy Miller’s WMD stories to Carlotta’s story,” says Frantz. “On a scale of one to ten, Carlotta’s story was nailed down to ten. And if it had run on the front page, it would have sent a strong signal not just to the Bush administration but to other news organizations.”
Instead, the story ran on page fourteen under the headline "U.S.Military Investigating Death of Afghan in Custody." (It later became clear that the investigation began only as a result of Gall’s digging.)
Gall, who is British, chalks up the delay to reluctance to “believe bad things of Americans,” and in particular to a kind of post-9/11 sentiment. “There was a sense of patriotism, and you felt it in every question from every editor and copy editor,” she says. “I remember a foreign-desk editor telling me, ‘Remember where we are — we can smell the debris from 9/11.’”
As it happens, two years later the Times uncovered military investigative files on the Bagram case detailing just how big a story had been buried. The files, the Times reported on May 20, 2005, offered “ample testimony that harsh treatment by some interrogators was routine and that guards could strike shackled detainees with virtual impunity.” The beatings and other interrogation tactics — prisoners deprived of sleep, threatened with dogs, and sexually humiliated — were later used at Abu Ghraib. Dilawar, who officials later acknowledged was innocent, had been repeatedly hit with a “common peroneal strike” — a blow just above the knee. The result, a coroner later testified, was that his legs had “basically been pulpified.” The Times also reported that officers who had overseen the Bagram prison at the time were promoted; another, who had lied to investigators, was transferred to help oversee interrogations at Abu Ghraib and awarded a Bronze Star.
The skepticism back in 2003 about Gall’s findings wasn’t limited to the Times. The evidence of homicides got only a short mention on CNN and a brief write-up inside The Washington Post. The biggest follow-up came not in any American paper but in the Sunday Telegraph of London.
“There was no great urge to follow up,” Gall says. “Nobody went to the doorstep of the pathologist or anything like that, until of course Abu Ghraib. And I don’t know why.”
Reporters and news organizations deserve enormous credit for exposing the abuse and torture of detainees during the U.S. war on terror, more than other institutions or individuals. Without Carlotta Gall, The New Yorker’s Seymour Hersh, The Washington Post’s Dana Priest, and many other reporters, we might well never have learned of the abuse and torture that have occurred in Afghanistan, Abu Ghraib, and elsewhere.
But just as sweeping attacks against “the media” are too reductive, so too are plaudits. And when the record on torture coverage is examined in detail, an ambiguous picture emerges: in the post-9/11 days, some reporters offered detailed accusations and reports of abuse and torture, only to be met with skepticism by their own editors. Stories were buried, played down, or ignored — a reluctance that is much diminished but still bubbles up with regard to the culpability of policymakers.
What is true and what is significant are two different matters. Everybody agrees that journalists are supposed to ascertain the truth. As for deciding what is significant, reporters and editors make that judgment, too, all the time — what story leads on the front page, or gets played inside, what story gets followed up. And when it comes to very sensitive material, like torture, many journalists would prefer to rely on others to be the first to decide that something is significant. To do otherwise would mean sticking your neck out.
When stories about abuse did finally get attention, what was new was often less the revelations themselves than how they were presented and the prominence they were given. Simply put, a scandal wasn’t a scandal or a scoop a scoop until it was played as one. But after the September 11 attacks, most news organizations were reluctant to go there. “Being fair is one thing; being excessively worried that we might not be portraying the military in a fair light is another,” says Roger Cohen. “For a while there, we lost that balance.”
Newsroom ambivalence is not the only impediment to covering this difficult story, of course. For one thing, with the exception of Senator John McCain’s 2005 antitorture amendment — the coverage of which turned out to have been shallow and excessively focused on personalities — Congress has shown a studied lack of interest in torture. There have been no sustained congressional hearings, and a proposed independent investigation has long been blocked by the congressional leadership.
Complicating matters has been the Bush administration’s savvy defense. It has pushed back against calls for an independent, overarching investigation of abuses. Instead, there have been a dizzying number of fractured, limited-authority reports, all of which reporters have diligently sought to cover. But many of the reports are classified and ultimately heavily redacted, and none of them have looked specifically at the connection between policymakers and abuse. Indeed, the stonewalling has been part of a larger, smarter strategy: rather than defending its policies of abuse, the administration has denied the policies exist.
Things changed after the Abu Ghraib photos were published; news outlets flooded the zone, to borrow a phrase, with a near endless number of investigative pieces exploring just how policy contributed to abuse. At the same time, the administration’s strategy of denial was often aided by longstanding journalistic shortcomings; for example, the tendency to treat both sides of an issue equally, without regard to where the facts might lie.
There is a final factor that has shaped torture coverage, one that is hard to capture. In most big scandals, such as Watergate, the core question is whether the allegations of illegal behavior are true. Here, the ultimate issue isn’t whether the allegations are true, but whether they’re significant, whether they should really be considered a scandal.
Though the administration has decided not to defend publicly the need for “coercive” interrogations, others have. Their argument is that the policy of abusive interrogations is not only acceptable but necessary to protect the United States. At the same time, polls on torture are notoriously sensitive to phrasing. It’s the mixed results themselves, though, that may be telling. Americans appear to be ambivalent about the occasional need for torture. And with ambivalence, perhaps, comes a preference for not wanting to know.
Within this context, any article, no matter how straightforward or truthful, that treats abuse as a potential scandal — even by simply putting allegations on the front page — is itself making a political statement that “we think this is important,” and, implicitly, wrong. To make such a statement takes chutzpah. Between the invasion of Afghanistan in fall 2001 and the revelations about Abu Ghraib in spring 2004, chutzpah was in particularly short supply.
THE BLIND EYE PERIOD
Dana Priest, the Washington Post national security reporter who has been widely recognized for her aggressive coverage of the secret U.S. detainee system, did not start covering the story with the notion that detainees were being abused. It was the fall of 2002, recalls Priest, “and my focus was on whether the government caught big al Qaeda guys, who they are, etc. Then we started getting this idea — in this very uncritical way — how do you get guys to tell you things?”
Barton Gellman, another reporter at the Post, was also looking into the subject of interrogations for a long story assessing the U.S. fight against al Qaeda. “I started asking officials how they were doing in capturing high-value targets and how were these people — who were willing to die for their cause — willing to tell you anything,” says Gellman. “I would get silences and coughs and circumlocutions. So I started to wonder. And eventually you get people in the right mood . . . .”
What Gellman got was tough but unspecific talk by officials about the lengths to which the Bush administration was willing to go to extract information from detainees. Priest was hearing similar things, but “it was almost not journalistic; you didn’t have enough details.” Then, she recalls, “Bart and I found each other. That’s when we were able to put it together.”
With Gellman working on his assessment of the counterterrorism effort, Priest took the lead on the detainee story. The resulting piece was extraordinary. Published on December 26, 2002, with a co-byline, it had revelation after revelation about the U.S. treatment of Taliban and al Qaeda suspects. It detailed a “brass-knuckled quest for information” that included “stress and duress” interrogation techniques — keeping prisoners in painful positions for hours, for example — as well as extraordinary renditions, the practice of shipping suspects to countries where they could be tortured. Citing “Americans with direct knowledge and others who have witnessed the treatment,” the paper reported that “captives are often ‘softened up’ by MPs and U.S. Army Special Forces troops who beat them up and confine them in tiny rooms.”
The article contained both denials from officials that torture was allowed but also quotes from officials all but boasting of abuse. One official “directly involved” in renditions confidently explained, “We don’t kick the [expletive] out of them. We send them to other countries so they can kick the [expletive] out of them.” Priest and Gellman wrote, “Each of the current national security officials interviewed for the article defended the use of violence against captives as just and necessary. They expressed confidence that the American public would back their view.”
Among those few whose job it is to follow such things, the story caused waves. “It ruined my Christmas,” recalls John Sifton, a counterterrorism researcher at Human Rights Watch. Sifton has spent the last four years probing the secret U.S. detainee network, and his digging has served as the basis for countless stories in the press. It was the Post’s story that first set him going, and he spent the holidays holed up drafting a letter to President Bush.
The story also caught the eye of the American Civil Liberties Union. “These were assertions by senior officials,” says Jameel Jaffer, a staff lawyer. “They basically confirmed rendition. There wasn’t shame in it at all. They wanted credit for it.” Later that year, the ACLU decided to file Freedom of Information Act requests. “It was a response to Dana Priest and Gellman as well as Carlotta Gall,” says Jaffer. “We thought it was clear something nefarious was going on.”
Outside of a handful of human rights organizations, however, the Post’s piece didn’t cause much of a stir. “After working so long on the story, all I remember was getting my editors to promise not to do it on Christmas,” says Priest. “So it was published the day after. Nobody noticed it. People were paying attention to other things, like protecting the U.S. It took on a much more important life a year after it ran — after Abu Ghraib broke.”
Apart from the holiday timing, one explanation for the lack of attention might lie with the Post’s own play of the revelations. The story ran on page 1, but the headline did not exactly leave the clear impression that the U.S. had condoned violence against prisoners: "U.S. Decries Abuse but Defends Interrogations". As for the witnesses speaking of regular beatings, that was mentioned in the thirty-first paragraph.
The lack of follow-up was also partly a function of just how difficult reporting on this murky subject is. “There just aren’t many Dana Priests out there that can pierce the wall of secrecy that these things operate in,” says Gellman.
What’s striking, though, isn’t simply the lack of follow-up but that so few tried. Unlike the ACLU, for example, almost no reporters filed FOIA requests about the detainee system. (The one apparent exception was an enterprising reporter at The New York Sun named Josh Gerstein, who actually beat the ACLU to the punch but had his FOIA request dismissed on a technicality.)
The ACLU’s requests resulted in the organization’s being given thousands of pages of investigative files containing information that, once divulged, prompted numerous front-page stories. The Post simply let Priest and Gellman’s story stand without significant follow-up until after Abu Ghraib. (Three months after the Priest/Gellman story, in March 2003, The New York Times published a piece broadly similar to the Post’s. With softer wording, it was quickly forgotten.)
The failure to file FOIA requests is “something I find terribly embarrassing,” says Gellman, who points out that the administration’s general antipathy toward FOIA means requests are harder to carry through and often result in little being disclosed. Gellman also stresses that the detainee-abuse story unfolded “just as the Iraq war was becoming inevitable. Iraq took up my life for the next year, as I know it did for many other reporters.”
BEFORE ABU GHRAIB
It was Iraq, of course, and the revelations about Abu Ghraib, that finally elevated reports of prisoner abuse to a major story. But the story did not break as simply or as quickly as is often remembered.
In the summer of 2003, Charles Hanley, a special correspondent for The Associated Press, was preparing to make his second post-invasion trip to Iraq. Doing research and scouting for potential stories, Hanley came across a little-noticed Amnesty International report charging that “very severe” human rights abuses were occurring at U.S. prisons there. “It was a very murky, strange article,” he remembers. “I couldn’t even determine who the writer was.” But it suggested that the Amnesty allegations were based at least in part on leaks from the International Committee for the Red Cross, whose work is well regarded and whose findings are supposed to be confidential.
His interest piqued, Hanley, who shared a Pulitzer Prize in 2000 for his reporting on GIs who had massacred civilians during the Korean War, started poking around when he arrived in Baghdad that September. Journalists weren’t allowed to visit Abu Ghraib or other prisons. “I knew the only way I could get the story was from released detainees,” Hanley says. Going through the Red Crescent, Hanley eventually spoke with six former detainees, each of whom had been freed without charges. They all gave similar accounts of their captivity.
The prisoners didn’t talk of outright torture, but of humiliation and abuse: water withheld; being shackled for hours in painful positions or bound and made to lie in the sand, even during summer days when the temperature would approach 120 degrees. “I interviewed them independently, and their stories all corroborated each other’s and were consistent with the Red Cross’s leak,” says Hanley.
Weeks before he published the allegations, Hanley e-mailed the military a series of questions. “I asked if prisoners were being tied up and thrown in the sun. I asked how many prisoners had died in custody. You know, how much time do you need to figure that out?” In the month that Hanley worked on the story, the military never responded. “There was just no reaction from them, including no denial,” he recalls. If it was intentional, he says, it was “a very smart strategy.”
Lacking a response from U.S. officials — as well as prominent billing by the AP — Hanley’s story garnered almost no notice when it appeared in November 2003, except overseas. The most prominent attention, Hanley recalls, was in Stern, the German weekly. “After I published,” he says, “I assumed other people would follow up. That’s what really surprised me.”
Later on, Hanley was surprised to learn that until April 2004 — when the Abu Ghraib photos were published — nobody else had done much reporting about abuse at U.S. prisons in Iraq. On the one hand, “reporters in Baghdad were overwhelmed. You can’t blame particular reporters,” he says. “But it’s a certain mindset. I think there were an awful lot of editors at papers who would react negatively to a bunch of Iraqis saying something so nasty about the American military.”
Shortly after the Abu Ghraib pictures broke, Hanley returned to his notebook and was struck by a remark of one of the prisoners, who had told him, “‘If only somebody could get photos of what’s happening.’”
“You know, you can’t ignore those photos,” Hanley says. “You can’t find an excuse not to confront it.”
When the photos did surface, they couldn’t be ignored. But they weren’t immediately treated as big news, either. The now-deceased 60 Minutes II broke the story, airing the photos on April 28, 2004. As Dan Rather, the segment’s correspondent, noted, CBS had held the story for two weeks at the request of Richard Myers, chairman of the joint chiefs of staff, who, citing the major fighting in Fallujah, a Shiite uprising in Najaf, and two American civilians being held hostage in Iraq, had argued that the photos would further inflame matters in the region. The network aired the piece after learning that The New Yorker’s Seymour Hersh also had the photos.
What came next was less a media storm than scattered sprinkles. The New York Times covered the story of the photos on page 15, the Los Angeles Times on page 8, and The Washington Post on page 24, though none chose to publish the photos themselves. The photos should have made for compelling TV coverage, but there was no avalanche of coverage there either. Only NBC and, obviously, CBS had segments on the photos the day after.
But the reaction abroad, particularly in the Middle East, was intense. With headlines blaring across the world, and near-endless coverage on Arab networks such as Al Jazeera, President Bush made his first public comments about the abuse two days after the photos aired.
And that is what, finally, lent Abu Ghraib big-story status: not allegations of abuse or even the photos confirming them, but revulsion abroad and the president’s reaction to it. "Bush Denounces Troops’ Treatment of Prisoners," proclaimed the Los Angeles Times in its first front-page story on Abu Ghraib, on May 1, 2004.
The floodgates then opened, and what was revealed was far more than random acts of sadism toward detainees at Abu Ghraib. Now that the story had “been ratified as important,” as the writer Michael Massing put it in The New York Review of Books, journalists pushing for significant coverage of abuse were no longer sticking their necks out. They were part of the pack.
Reporters quickly began looking at the larger picture — especially the relationship between policy and abusive interrogation techniques — and ended up writing some remarkable stories. Indeed, most of what we now know about detainee abuse was uncovered — or simply flogged with previously absent vigor — during the first few months after Abu Ghraib.
The bar was set by Seymour Hersh’s New Yorker story on May 10, 2004, which had details of a military investigation “not meant for public release” into the Abu Ghraib abuses that cited unclear interrogation policies and lax oversight. Two weeks later, The New York Times uncovered a few of the techniques that had been approved for the CIA, among them “water boarding,” a centuries-old method in which prisoners are strapped down and made to feel they’re drowning.
In June, The Wall Street Journal and The Washington Post detailed yet more memos of the administration’s decision to remove restrictions on abusive interrogations. One memo, written by administration lawyers, redefined “torture,” saying it must rise to “to the level of death, organ failure, or the permanent impairment of a significant body function.” Another memo concluded that “the prohibition against torture must be construed as inapplicable to interrogations undertaken pursuant to [the] commander in chief’s authority.”
Less than three weeks after CBS’s Abu Ghraib report, Newsweek published a long investigative feature mapping out the policy decisions that had justified detainee abuse. As Newsweek put it, while the White House almost certainly did not order the specific abuses photographed at Abu Ghraib, a series of memos cited by the magazine led it to conclude that President Bush, “along with Secretary of Defense Rumsfeld, and Attorney General John Ashcroft, signed off on a secret system of detention and interrogation that opened the door to such methods.”
Newsweek’s May 24, 2004, piece was a remarkable bit of reporting. It was also an example of how a “scoop” can result less from new disclosures than the fresh eyes with which old information is viewed. Chief among the magazine’s seeming revelations was a January 2002 memo, “obtained by Newsweek,” detailing the president’s conclusion that Taliban and al Qaeda suspects were not covered by the Geneva Conventions. The memo, written by Alberto Gonzales, then White House counsel, and later endorsed by the president, contained language that would become infamous. Gonzales wrote that the “new paradigm” of the fight against al Qaeda rendered “quaint” and “obsolete” Geneva protections. (Gonzales’s analysis was summarily dismissed this summer by the U.S. Supreme Court in Hamdan v. Rumsfeld.)
Newsweek was certainly right to flag the memo. But the truth is that the president’s decision that the U.S. wouldn’t be bound by the Geneva accords had been publicly announced in February 2002, albeit in hedged and even misleading language. The president had said then that al Qaeda detainees weren’t covered by Geneva protections but should still be treated “humanely and, to the extent appropriate and consistent with military necessity, in a manner consistent with the principles” of the Geneva Conventions. (Though it wasn’t publicly known then, the president had exempted the CIA from even that loose “humane” edict.) At the time, Rumsfeld dismissed any criticism of the decision as “isolated pockets of international hyperventilation.”
The Gonzales memo became the big revelation in Newsweek’s piece, with the memo’s jarring language being quoted endlessly by pundits and talking heads. It was a discussion a long time in the making: Gonzales’s memo was first uncovered and quoted not by Newsweek after Abu Ghraib but by the Washington Times — two years earlier.
Back then, there was little outrage. The paper’s piece focused on how Secretary of State Colin Powell objected to the lack of protections for al Qaeda and Taliban suspects and, according to “administration sources,” was “bowing to pressure from the political left.” Gonzales’s conclusions that the Geneva protections were “quaint,” quoted in the original Washington Times piece, were not again cited until Newsweek did so two years later.
'CALIFORNIA AVOCADO FREESTYLE'
Whether they looked at old information anew or delivered genuine revelations, what the post-Abu-Ghraib stories clarified is that the administration had specifically approved a kind of “torture-lite” for the CIA and the military special forces. They also made clear that the military’s rules for interrogations had morphed from a clear stance — no abuse — into a mishmash of ever-changing rules and directives, and that as a result, abuse coursed through the system.
The interrogations at Guantanamo were, as one military investigator testified, “a California Avocado Freestyle kind of a thing.” The investigator explained, “It was hard to go beyond the guidance because there was almost no guidance.”
And the abusive tactics, as another investigation concluded, mysteriously migrated from Afghanistan to Guantanamo, and then to Iraq. The results have become clear: roughly a dozen prisoners have died of abusive treatment. No soldier or officer has been sentenced to more than five months for any of the deaths. Four of the deaths, said to involve the CIA, have resulted in just one criminal case, involving not a CIA employee but an agency contractor.
The rules for the military had become so hodge-podge and confusing that the administration itself seemed unclear on whether the Geneva Conventions covered detainees in Iraq. A month after the Abu Ghraib revelations were published, Rumsfeld said the protections are “basic rules” for handling prisoners but yet also did “not precisely apply.”
In the wake of Abu Ghraib, reports from the International Committee for the Red Cross, which usually shares its findings only with the country holding the prisoners, were leaked to The New York Times and The Wall Street Journal. One report, written months before Abu Ghraib broke, warned of cases “tantamount to torture” and said abuse appeared to be a “practice tolerated by” the military. The report had been sent to administration officials.
In mid-May, the Post published a series on the “path to Abu Ghraib” and detailed evidence suggesting “a wider circle of involvement in aggressive and potentially abusive interrogations of Iraqi detainees, encompassing officers higher up the chain of command.” Guards told of being ordered by intel officers to “Loosen this guy up for us,” as one of them reportedly put it. “Make sure he has a bad night.”
The press also began to detail how military lawyers and the FBI had fought against the interrogation policies. With a media pack now pushing for answers, the administration changed course. Rather than slyly boasting about the brass-knuckle approach it was taking, it denied that abuse was more than the work of “a few bad apples” (as the mantra would go).
The difference in tone was striking. “If you don’t violate someone’s human rights some of the time,” one official had told the Post in 2002, “you probably aren’t doing your job.” Now, in 2004, the White House repeatedly reminded anyone who would listen that the president had ordered prisoners to be treated in a “humane” manner.
In shaping the debate, the administration moved not only to distance itself publicly from those of its policies that abrogated the restrictions on abusive treatment, but also to keep those policies from being uncovered. Appearing in congressional hearings soon after the so-called torture memos were leaked, then-Attorney General John Ashcroft refused to discuss, release, or even acknowledge the memos and insisted that the administration had never approved torture. (The insistence that the U.S. didn’t engage in “torture” would often trip up many reporters, who weren’t aware that the administration defined “torture” exceedingly narrowly.) With the administration now refusing to acknowledge its policies of coercive interrogations, the debate on torture was reframed as a debate about whether there was a need for a debate.
The argument by the White House and its allies that there wasn’t a need for a debate was aided by many news organizations’ habit of presenting both sides of a story as if they were equal, regardless of the underlying reality. The result was a kind schizophrenic coverage: aggressive investigative pieces showed the extent to which policy had underwritten many abuses, while political and other stories passed along the administration’s assertions that abuse was the work of a few bad apples, without offering key context — namely that the facts suggested those assertions were untrue.
As the administration blocked attempts to create an overarching, independent investigation into abuses, a head-snapping number of reports of varying quality and focus by military officers — Taguba, Schlesinger, Schmidt, Fay, Hood, Church, and Green, among others — surfaced. None of them were tasked with looking at the role policy played in abuse. The reports did provide clues anyway — the details, if not the official conclusions, of the Taguba and Schlesinger reports were particularly strong. But the administration also worked to keep the details from the public.
“We’ve been very eager to write more about policymakers’ connection to abuse,” says R. Jeffrey Smith, a Washington Post investigative reporter. “But that’s been very hard. Some of the Pentagon’s reports have been very superficial. Some of the backup material for the reports is classified. I dare say some of it has been suppressed. The reports that we’ve seen have had huge redactions.”
Writing stories about the reports was made even more difficult by the investigations’ occasionally self-contradictory, even Kafka-esque, conclusions. Take the so-called Schmidt Report, which was released in July 2005. Overseen by Lieutenant Gen. Mark Schmidt, an Air Force pilot, the report looked into FBI memos detailing abusive interrogations at Guantanamo.
Schmidt concluded that tactics once approved for Guantanamo by Rumsfeld — one prisoner was stripped naked, led around on a leash, and doused with cold water seventeen times during one interrogation — were indeed “abusive” and “degrading.” Nevertheless, Schmidt concluded — and emphasized in his executive summary — that the tactics were still “humane” and thus legal. Yet it was also Schmidt who would later tell the Army Inspector General’s Office that the administration had never defined “humane.” (The parsing seems to have been motivated by Schmidt’s preference for not crossing onto the turf of policymakers. Regarding the appropriateness of the interrogation methods, Schmidt’s report states that Rumsfeld’s “approval of each of the techniques clearly establishes the ultimate legitimacy of that technique.”)
The almost absurdist conclusions — there was abuse but it was “humane,” although we don’t know what “humane” means, and because techniques were approved, they can’t be wrong — were hard to convey within the confines of “objective” coverage. But it wasn’t impossible. The Washington Post, as it often seemed to do, rose to the occasion and added analytic muscle to its coverage. The paper’s main story on the report appeared on page 1 with the headline, "Abu Ghraib Tactics Were First Used at Guantanamo." More typical, though, was the coverage by The New York Times, which put the same report’s conclusions on page 21: "Report Discredits FBI Claims of Abuse at Guantanamo Bay."
The administration’s bad-apple argument has also had an unwitting ally: TV news. The evidence of the connections between policies and abuse was just a few dry memos, many of which weren’t even available to the public in full. By contrast, the “bad apples” were being paraded in and out of courts-martial. Their stories were not only repulsive but also, in a way, enthralling, filled with reality-show-quality sex and violence.
The result was that the various torture memos were covered on all three networks on only one day — June 8, 2004 — when Ashcroft made an appearance before a Senate committee and refused to discuss them. By contrast, the trial of Lynndie England — who had led a naked prisoner around on a leash — was a regular staple on network and cable news programs.
That focus not only distorted the larger story but also constricted it. Some journalists came to the courts-martial expecting to hear a kind of mini-trial of the overall debate: Was the abuse the result of official administration policies or a few sadistic soldiers?
What was little appreciated is how — in the words of Tim Golden, a New York Times investigative reporter — courts-martial “are a very imperfect method for finding the larger truth about why these abuses took place.” The reasons for that are partially structural. The military has no central prosecutor’s office, meaning courts-martial are brought on a case-by-case basis with no ability to follow investigations across cases. Military prosecutors can’t do what their civilian counterparts are famous for: slowly building a large case by trying to flip the low-level perpetrators and nab the big fish.
Over the last two years, Golden has published an impressive series of stories detailing, at a minimum, the indirect role played by officers and policies in the deaths of the two Afghans in Bagram — the killings his colleague Carlotta Gall first detailed in 2003. Among other files, Golden cited a secret Army memo concluding that during the time when the two men were killed, interrogators at the base had adopted harsh techniques that Rumsfeld had approved for use at Guantanamo. The GIs involved in the killings eventually faced courts-martial. But as Golden noted in his story:
"Although military lawyers said the Bagram prosecutors were aware of [the] memorandum, the document was never cited in court. Nor do the prosecutors or Army investigators appear to have asked intelligence officers at Bagram to specify what those harsher methods were, when they were used, who authorized them or whether they had any effect on the treatment of the two men who died."
Only one junior officer faced court-martial in the matter. His case was dismissed before trial.
Some of the courts-martial that went to trial did provide an opportunity to connect dots, but reporters often took a pass. The daily dispatches from the courts-martial, by both TV news and in the papers, usually stuck to the small picture, rarely noting that some of the abuses that led to charges had at one point, though not specifically in the courts-martial cases, been approved by Rumsfeld.
Joanne Mariner, head of Human Rights Watch’s counterterrorism program, points to a trial last spring involving a guard at Abu Ghraib who was charged with using dogs to intimidate prisoners. “You don’t see headlines in The New York Times that Rumsfeld approved techniques that others are now facing courts-martial for,” says Mariner. “It doesn’t lend itself to daily coverage. What you need is more analytic capacity to add things up. It requires larger context.”
As a result of the administration’s stonewalling, the abuse story has been deprived of the oxygen it needs to move forward and stay in the headlines. There are still occasional revelations, but without the typical next steps — congressional hearings, investigations, resignations — the scoops themselves start to lose their pop and the story grows cold. The abuse story has become what Mark Danner, writing in The New York Review of Books, memorably dubbed a “frozen scandal.” Revelations are only followed by more revelations, and readers’ attention, and a news organization’s resources, ultimately drift to other stories. The pack moves on.
“Democrats don’t have the ability to hold hearings unless the party in power, the GOP, agrees. And Republicans have been loath to do that,” says The New Yorker’s Jane Mayer, who has written some of the finest big-picture stories connecting policymakers to torture. “There’s been none of the usual fact-finding with subpoena power,” she says.
“What reporters keep pointing to is that contrary to the administration’s repeated assertions of ‘a few bad apples,’ there is an official policy of renditions, of interrogations using abusive techniques like water boarding,” Mayer adds. “These are political choices that have been made and those who made them should be made to stand up and explain them, so the public can make an informed decision.” Reporting — fine as much of it has been — can’t replace congressional oversight. “Journalists will do incredible work and it just drops into a great black void,” Mayer says. “I have subpoena envy.”
While some stories fall into a void, others never get done. “When Congress is actively engaged in oversight, there’s a synergy with the press,” says Steven Aftergood, who heads the Federation of American Scientists’ Project on Government Secrecy. “It’s a powerful mechanism for disclosure that nourishes press coverage. Without the Congress there’s a kind of negative synergy. Congressional inaction serves as a signal to leave this alone. And, frankly, taking a pass is perfectly understandable. These are very hard stories to cover, and sources are very hard to come by.”
Consider the circuitous path into the open taken by one of the military’s best investigations into abuses. Overseen by Major General Antonio Taguba, the report said that the chain of command bore some responsibility for abuses at Abu Ghraib. Initially classified, the report was disclosed in part by The New Yorker’s Seymour Hersh. But its classified annex, containing thousands of pages of testimony detailing the scope of the abuse, stayed out of public view — until the ACLU uncovered it through an FOIA lawsuit. Congress itself never pushed to obtain the annex. “If Congress had asked for it, that would have done the trick,” says Aftergood. “But Congress didn’t want to know.”
It is impossible to quantify the effect of congressional inaction and the administration’s efforts to quash details about abusive interrogation tactics. But the Pew Research Center for the People and the Press did ask a question in a poll that might give a glimpse. In October 2005 — eighteen months after the disclosures of memos redefining torture, and after the appearance of official reports concluding that much of the abuse photographed at Abu Ghraib had indeed been based on tactics approved elsewhere in the system — respondents were asked what they thought caused the “cases of prisoner mistreatment in Iraq and Guantanamo Bay.” About a third said it was “mostly the result of official policies.” Nearly half said it was “mostly the result of misconduct” by individuals.
The debate finally focused on the policy of detainee treatment — rather than on the need for such a debate — in the fall of 2005. The shift was brought on by Senator John McCain and his proposed amendment banning torture.
The administration’s position was still pushed sotto voce. While quietly opposing the McCain amendment, the White House again refused to publicly defend its policies. President Bush continued to insist that the U.S. did not engage in torture and treated prisoners humanely.
But while Bush, Cheney, and other administration officials chose not to engage, the debate developed by proxy, with the writer Charles Krauthammer, among others, insisting that the McCain standard was too stringent. And the administration’s backstage maneuvers were detailed in early November, when The Washington Post reported on page 1 that the vice president was waging an “intense and largely unpublicized campaign” against restrictions on detainee treatment and had lobbied senators to exempt the CIA from McCain’s amendment.
The White House began threatening to veto the measure, although the president wouldn’t comment publicly, and Scott McClellan, then White House spokesman, simply labeled the amendment “unnecessary and duplicative.” But forced into the open, few senators were willing take a stand for inhumane treatment, and McCain’s bill passed by the veto-proof margin of ninety to nine. (The exemption for the CIA was rejected, too.)
Faced with defeat, the president invited McCain to the White House, where Bush signed the measure and offered vague praise for the ban. “We’ve been happy to work with him to achieve a common objective,” he said.
The McCain vote, of course, garnered front-page coverage around the country and on the networks. "President Backs McCain on Abuse," declared The New York Times. What was mostly missed, however, were two key facts. First, the amendment, worthy as it was, wasn’t as strong as advertised. It contained no enforcement clause: soldiers or CIA agents couldn’t abuse prisoners, the bill stated, but it didn’t provide for any penalties if they did. The amendment, in other words, was mostly a statement of principle, without teeth.
What’s more, McCain’s amendment was undercut by another little-noticed amendment that was passed as part of the same defense appropriations bill. Sponsored by Senators Lindsey Graham, Carl Levin, and John Kyl, the amendment — which was combined with McCain’s measure to become the Detainee Treatment Act (DTA) — states that testimony gained through “coercion” can be used in military tribunals. Unlike the McCain amendment, which merely reaffirms existing laws, the Graham-Levin-Kyl measure muddies what had been clear waters. The amendment’s portion of the DTA also severely restricts detainees’ access to U.S. courts and strips them of the right to habeas corpus. It limits detainee cases to a single hearing in front of an appeals court, at which detainees have no clear right to present the facts of their case.
Cheney and his allies “took their opponents to the cleaners,” Marty Lederman, a law professor at Georgetown who served in the Justice Department until 2002, wrote at the time on a blog called Balkanization. “The Graham amendments . . . are far more beneficial to their detention and interrogation policies than the McCain amendment is detrimental.”
But that’s not how the matter has played in the media. The triumph of the McCain amendment was a compelling story, a personality play in which the little-liked Cheney was brought to heel by the much-adored maverick senior senator from Arizona. The Graham-Levin-Kyl amendment — a legalistic, obscure, and at least nominally bipartisan effort — had no such drama. And it got no equivalent coverage. The morning after that amendment passed, only one major paper, The New York Times, gave it front-page treatment, and it simply wasn’t mentioned on the network news.
“I don’t think the media were connecting the dots,” says Marc Falkoff, a law professor at Northern Illinois University who represents seventeen Yemenis detained at Guantanamo. “They never realized” that the McCain bill “gave the detainees a right, but without a remedy.”
The undercutting pattern continued with the president’s “signing statement,” in which he asserted that he didn’t consider his administration to be bound by the McCain ban but instead would interpret it “in a manner consistent with the constitutional authority of the president.” With the statement’s practical implications unclear — Was the president reserving his right to ignore the ban? Was he giving fair warning of what he was already doing? — and the whole notion of signing statements a confusing, unfamiliar, and often headache-inducing legal topic, most news outlets, with the notable exception of The Boston Globe, ignored it. (Coverage of the signing statements did eventually pick up after bloggers and others harped on them.)
If the ramifications of the signing statement are murky, the practical effect of the combined McCain and Graham-Levin-Kyl amendments — stripping the ability of prisoners to challenge their treatment — may be less so. Falkoff says that when he last visited the prison, in April 2006, one of his clients showed up badly beaten. “One eye was swollen shut, the other a deep black and blue. Contusions all over his body, cuts on his head and legs,” recalls Falkoff. “He couldn’t swallow and could barely talk.” The client had been forcibly “extracted” from his cell. The offense meriting the move “was that he stepped over a line that they painted in his isolation cell.
“It’s good that McCain is very clear about it being illegal to abuse detainees,” Falkoff continues. “But for Gitmo detainees the DTA is a net negative. They could torture and beat the shit out of any of our clients and there’s nothing we can do about it after the DTA.”
Though it’s still being litigated, the Supreme Court’s Hamdan decision in June seems to have reined in the DTA’s habeas-stripping provisions. But two other lawyers representing detainees at Guantanamo told me that treatment had indeed become tougher after the DTA, especially the guards’ treatment of detainees on hunger strikes. Hunger strikes have been occurring at Guantanamo for years. It was only early this year, after the DTA was passed, that the military began particularly aggressive force-feedings involving larger than normal tubes, which often resulted in bleeding.
In early November 2005, as McCain’s anti-abuse ban and the Graham-Levin-Kyl amendment were winding their way through the Senate, the Washington Post’s Dana Priest published another seminal piece on the U.S. detention system, this time on the CIA’s network of secret prisons.
The story gave a “rough estimate” of “more than 100” suspects who have been moved through the system, with some being rendered to foreign intelligence services — which held the prisoners “with CIA financial assistance and, sometimes, direction” — and others held directly by the CIA, including some at a “Soviet-era compound in Eastern Europe.”
Contrary to international law, those held at the secret prisons were not registered with the International Red Cross or acknowledged as being held. They were, and remain, ghost prisoners. The policy, as Priest detailed, had started haphazardly as a way of holding only the top al Qaeda suspects, but it morphed into something different. “We never sat down, as far as I know, and came up with a grand strategy,” one “former senior intelligence” officer told her. “Everything was very reactive. That’s how you get to a situation where you pick people up, send them into a netherworld and don’t say, ‘What are we going to do with them afterwards?’”
The Post seemed to suggest that the existence of the prison system itself was breaking news: "CIA Holds Terror Suspects in Secret Prisons." Additional coverage — and outrage in Washington — followed. ABC News, for example, referred to the “revelation today, first in The Washington Post, about a network of top-secret prisons run by the CIA.”
It’s true that the existence of a “number of secret detention centers overseas” was first revealed by the Post — but the revelation came three years earlier. Priest and her colleague Bart Gellman reported that fact in their little-noticed story over Christmas 2002, the one that detailed “stress and duress” techniques and beatings. That story even listed specific locations, saying there were secret prisons at the U.S. Bagram Air Base in Afghanistan and another at a base on the British island of Diego Garcia in the Indian Ocean. In October 2004, Human Rights Watch also released a report on the ghost prisoners. And journalists abroad had reported on the locations of other CIA prisons, one in Jordan, another in Morocco, and yet another in Thailand.
Priest’s 2005 piece had more detail than anything previously published on the subject — discussion from former intelligence officials about how the program started; and particularly the reference to the existence of prisons in Eastern European countries — but the story’s revelations were actually modest in comparison to the amount of vituperation they stirred up.
As for extraordinary renditions, the first small glimpse into that policy came just a month after 9/11. At the time, the Post’s Rajiv Chandrasekaran was reporting from Pakistan and saw a reference in a local paper to an al Qaeda suspect who had been flown away in the middle of the night by the U.S. Chandrasekaran ran the plane’s tail number, which had been published, through an FAA database and quickly suspected that a CIA front was involved. “I tried finding the number for the company listed and couldn’t get anything,” Chandrasekaran recalls. “I thought, Why the hell would they fly in the middle of the night? That was it. It was all I had time to do back then.”
The following spring, in early 2002, Chandrasekaran was stationed in Indonesia and saw a squib in a local paper about an Arab handed over to foreigners at a military air base. “I went to the guy’s neighborhood, talked to Indonesia intel sources, and one opened up to me,” he remembers. Written with Peter Finn, the resulting front-page story — "U.S. Behind Secret Transfer of Terror Suspects" — revealed how a prisoner who, without a court hearing or a lawyer, “was hustled aboard an unmarked, U.S.-registered Gulfstream V jet parked at a military airport in Jakarta and flown to Egypt.”
“After September 11, these sorts of movements have been occurring all the time,” one U.S. diplomat told the Post. “It allows us to get information from terrorists in a way we can’t do on U.S. soil.”
Coming just six months after 9/11, Chandrasekaran says the article “got very little interest. A year, two years later, I started getting calls saying, ‘Oh, that’s interesting.’ And that includes my own paper.”
Bob Drogin, an intelligence reporter at the Los Angeles Times, remembers trying to follow these stories and making “an utterly unsuccessful effort to crack into the rendition business. It’s reporters abroad who’ve done the best job on this stuff. It’s just the nature of where the story is.”
Indeed, by the summer of 2004, soon after the Abu Ghraib photos surfaced, European journalists from outlets like The Financial Times, the London Independent, The Ottawa Citizen, and Calla Fakta (Cold Facts), a Swedish TV program, were driving the coverage of renditions. A British reporter named Stephen Grey began to track CIA flights by their tail numbers. Grey eventually detailed some 300 flights of a single jet to forty-nine different destinations in the British publication, New Statesman. Grey, a freelancer who in the past year had written about renditions for The New York Times, says that before publishing his piece he tried to get U.S. networks interested. One show was particularly interested, but eventually the idea fell through. “They said, ‘Can’t you find somebody who’s innocent; we’d much prefer that,’” says Grey, who won’t name the show he was referring to. “The nub of the story wasn’t innocence; it was that people were sent to places where they were likely tortured.” (A number of American outlets did eventually contribute pieces of the puzzle, including regional dailies like The Oregonian, The Boston Globe, and the Chicago Tribune.)
When Priest’s story on the secret prisons was splashed across the Post’s front page, it resulted in an enormous amount of attention, consternation, and, of course, a backlash. Although the Post had declined to name the Eastern European countries in which some of the prisons were located — a decision prompted by “the request of senior U.S. officials [who] argued that the disclosure might disrupt counterterrorism efforts in those countries and elsewhere and could make them targets of possible terrorist retaliation” — the reaction against the Post by the administration and Congress was swift and overwhelming.
Joining others in calling for a leak probe, Senate Majority Leader Bill Frist declared himself “not concerned about what goes on” at the prisons but very concerned about the leak. The CIA also requested that the Justice Department start an investigation, and the House Intelligence Committee started its own.
“The House and Senate majority leaders held a joint news conference calling for a bicameral investigation,” says Priest. “That was the weirdest day.” The article, as Priest puts it, was “my attempt to go back again, with deeper sourcing and a better understanding of the discrete elements and motives behind all this.” As to why this particular piece, of all the stories she has written on the detention system, got so much attention, Priest suspects that “it was the fact that the prisons were in Europe and that those were democracies. They’re like us.”
The leak investigations have not yielded any firm results yet. (One CIA official, Mary McCarthy, was fired earlier this year, apparently for leaking, but it’s unclear whether that involved Priest’s article.) But whatever the intentions of those who complained about Priest’s story, one consequence is clear: in contrast with Europe, the focus in the U.S. moved from the existence of secret prisons to the Post’s disclosure of them. The debate was once again deferred.
Carlotta Gall, the Times reporter who uncovered the two homicides at Bagram Air Base in Afghanistan in early 2003, was struck at the time by “the reluctance to believe bad acts of American troops when we’re at war.” That reluctance has largely disappeared, but a certain caution remains regarding officials in Washington.
This June, the Supreme Court ruled in Hamdan v. Rumsfeld that the military commissions the president had set up for al Qaeda suspects hadn’t been approved by Congress and thus were illegal. At least that is what made the headlines. Almost all papers, the Los Angeles Times being an exception, played the ruling narrowly. Take The Washington Post: "High Court Rejects Detainee Tribunals."
What was only slowly recognized was that the court had also concluded that abusive interrogation policies were in fact illegal. The majority opinion, written by Justice John Paul Stevens, said that contrary to the Bush administration’s assertions, all captured combatants in U.S. custody are entitled to protection under what’s known as Common Article 3 of the Geneva Conventions. While not granting them full prisoner-of-war protections, Article 3 says even fighters such as captured al Qaeda members are entitled to a minimum standard of treatment, including protection from “outrages upon personal dignity.”
By now, two years after Abu Ghraib, there is plenty of evidence that subjecting some detainees to “outrages upon personal dignity” has been exactly the policy of the administration. In November 2005, ABC News published a partial list of the CIA’s “enhanced interrogation tactics,” including such things as water boarding, the “attention slap,” and the cold-cell treatment, in which prisoners are kept naked, nearly freezing, and continuously doused with water.
Lieutenant General Schmidt, who had overseen the report on FBI allegations of abuse at Guantanamo, later testified that Rumsfeld had been “personally involved,” and was being given “weekly updates” on the interrogation of one detainee, who was kept near-freezing and led around naked on a leash. Interrogation logs later showed that the detainee’s heart rate became so slow during his “cold” treatment that he nearly died. Another prisoner in CIA custody in Afghanistan died of hypothermia.
“It all goes back to President Bush’s order, in February 2002, that detainees would not be covered by Common Article 3 of Geneva. That was the key,” says Marty Lederman, the constitutional scholar and former administration lawyer. Bush made that declaration publicly. It was oddly fitting, then, that when the Supreme Court ruled that Bush’s 2002 executive order was in fact illegal — a conclusion the White House implicitly acknowledged this summer when it began lobbying to effectively shield interrogators and officials from potential violations of the War Crimes Act — there were few headlines about that either.
Eric Umansky, formerly a columnist for Slate, is currently a Gordon Grey fellow in the Graduate School of Journalism at Columbia University. CJR gratefully acknowledges support for this article from the Investigative Fund of the Nation Institute.