No justice for all

Salon has obtained a previously unpublished 2003 Abu Ghraib photograph that shows Daniel Johnson, a civilian contractor, interrogating an Iraqi prisoner using what an Army investigation calls "an unauthorized stress position."

The Army investigated the circumstances behind the photograph, found "probable cause" that a crime had been committed, and referred the case to the Justice Department for prosecution. (Salon obtained the photo from someone who spent time at Abu Ghraib as a uniformed member of the military and is familiar with the Army investigation there.) But in early 2005, a Department of Justice attorney told the Army that the evidence in the case did not justify prosecution.

This failure to act by the Justice Department, which has sole jurisdiction over crimes committed by civilian contractors in Iraq, has prompted a Democrat on the Senate Judiciary Committee and human-rights organizations to question the seriousness with which the Bush administration is pursuing prisoner-abuse cases. At his January 2005 confirmation hearing, Attorney General Alberto Gonzales declared, "Abuse will not be tolerated by this administration. If confirmed, I will ensure that the Department of Justice aggressively pursues those responsible for such abhorrent actions."

Two soldiers -- who served as military policemen at Abu Ghraib and had already been sentenced and imprisoned for their mistreatment of detainees -- told Army investigators that Johnson had directed and participated in prisoner abuse. Johnson's role is highlighted in transcripts, obtained by Salon, of Army interviews with Pvt. Ivan Frederick II and Pvt. Charles Graner.

Frederick said in the interview with investigators that Johnson told him to cover a prisoner's mouth and nose to stop his breathing. The former military policeman at Abu Ghraib said that Johnson had also instructed him to inflict pain by squeezing pressure points on the same prisoner's face and body. Graner, who received immunity from further prosecution for his cooperation with Army investigators, said that he also "roughed up" this prisoner at Johnson's instigation.

Not a single civilian has been prosecuted for prisoner abuse in Iraq. Army investigations, however, have identified several civilian contractors as involved with the abuse of detainees at Abu Ghraib. The Johnson file is among 19 detainee-abuse cases referred to the U.S. Attorney's Office for the Eastern District of Virginia, which in 2004 was designated as the office in charge of prosecuting prisoner-abuse cases from Iraq and Afghanistan.

Among these 19 referrals, it is the photograph that makes the Johnson case unusual. In response to questions from Salon, Army Criminal Investigation Command (CID) spokesman Chris Grey said that his office had "investigated the circumstances surrounding the incident depicted in the photograph" and found "probable cause to believe a crime was committed by civilian contractors." He added in his written statement that the investigation "did not establish that any U.S. Soldiers were implicated in regard to this photograph." Grey went on to state that on March 8, 2005, an assistant U.S. attorney in Virginia told the Army that he had reviewed the Johnson case and found there was "insufficient evidence" to prosecute.

Now, more than a year later, the Justice Department insists the case is still open. In a statement about the case prompted by Salon, a spokesman for the U.S. Attorney's Office in the Eastern District of Virginia said that his office "had not made any final decisions about whether to ask a grand jury to consider charges against any individuals." The spokesman, who did not want his name used, went on to say, "We are conducting a thorough, professional and independent review, devoid of any political considerations."

A follow-up statement from the Eastern District of Virginia explained that two of the 19 prisoner-abuse cases referred to it have been dropped. The statement said that these decisions had been made on the recommendation of the Justice Department in Washington.

Outside the Justice Department, little is known about the decision-making in the investigations of alleged prison abuse in Iraq by civilians. "Unfortunately, we don't know much," admitted Illinois Democratic Sen. Richard Durbin, who had pointedly questioned Paul McNulty, who had been the U.S. attorney for the Eastern District of Virginia, about this failure to prosecute civilians. Durbin raised his questions at a Judiciary Committee hearing in early February about McNulty's soon-to-be-successful confirmation as deputy attorney general, the department's second-highest position.

When told about the existence of the Johnson photograph and the corroborating statements obtained by Salon, Durbin said that he would have pressed McNulty harder to explain why he had not pursued such a clear-cut case. "That is the first I have heard of anything that well documented," Durbin said in an interview. "If I had known about this case, trust me, this would have been on the table."

At his confirmation hearing, McNulty offered an explanation of the inaction of his office in prosecuting detainee-abuse cases. He said that his staff was struggling to find witnesses and victims. McNulty also complained about the difficulty sorting out complicated jurisdictional issues. "We are still working hard on those cases," McNulty told the Senate. "It may very well be that in the not-too-distant future charges will be brought."

In contrast to the slow-moving Justice Department, the Army has so far successfully prosecuted 10 soldiers from Abu Ghraib, most of whom appear in the abuse photographs from the prison previously published by Salon. This new photograph of Johnson and the allegations made by Frederick and Graner are similar to the evidence that the Army used in these 10 successful court-martial cases.

Scott Horton, who chairs the International Law Committee of the New York City Bar Association, said, "This case is just staggering, frankly. The reputation within the Justice Department is that the prosecuting process is being heavily politicized and the epicenter of this problem is the Eastern District of Virginia."

Army files identify Johnson as an interrogator with the military and homeland-security contracting firm CACI International, which had $1.6 billion in revenues in 2005. The documents state that the woman in the photograph is Etaf Mheisen, a civilian translator who worked for a subcontractor of the San Diego-based Titan Corp. The Army employed dozens of CACI interrogators and Titan translators at Abu Ghraib in 2003.

CACI contended in a written statement to Salon on March 27 that the photo does not show abuse and the company said that it "addressed this photograph directly with the United States Army in 2004." CACI went on to say that it "neither condones nor tolerates any abusive behavior by its current or former employees at any time."

Efforts to locate Johnson and to solicit further comment from CACI about this article were unsuccessful.

The photo of Johnson, Mheisen and the detainee on the white chair has not previously been made public. But it was apparently described in the August 2004 Army investigation into Abu Ghraib by Maj. Gen. George R. Fay. The Fay report describes a then-unreleased photograph of a prisoner "squatting on a chair which is an unauthorized stress position" while being interrogated by a CACI interrogator and a female Titan translator.

Titan, which is now a subsidiary of L-3 Communications, would not comment on this article, except to say that its records show that Mheisen worked for a subcontractor and was terminated in November 2005. Titan also claimed that Mheisen is a man, not a woman. But Army investigative materials and statements from soldiers who served at Abu Ghraib say Etaf Mheisen was indeed a woman as it clearly appears in the photo.

Next page: Johnson directed Frederick to get rougher