No justice for all

Army investigators found "probable cause" that a civilian interrogator abused a detainee at Abu Ghraib. Why has the Department of Justice failed to prosecute him -- or any of the other 18 civilians suspected of criminal acts?

Published April 14, 2006 12:31PM (EDT)

Salon has obtained a previously unpublished 2003 Abu Ghraib photograph that shows Daniel Johnson, a civilian contractor, interrogating an Iraqi prisoner using what an Army investigation calls "an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

CACI said in its statement that the prisoner in the photograph with Johnson and Mheisen was "suspected of smuggling a gun to a detainee at Abu Ghraib, who used it to shoot American soldiers."

That statement refers to a Nov. 24, 2003, event at the prison in which an Iraqi policeman allegedly smuggled a pistol to a detainee. The prisoner and a U.S. soldier were both wounded in the subsequent shootout when the prisoner opened fire.

Frederick, in one of the transcripts obtained by Salon, describes the interrogations of the Iraqi policeman, which was directed by Johnson. Mheisen is said to have stood by during the abuse, unfazed, while she translated.

In his questioning by CID on Nov. 3, 2004, Frederick said that the photograph of the detainee with Johnson and Mheisen was taken on "one of the nights that he was interrogating him," though he could not say exactly which night. Frederick, who had been sentenced to eight years in prison before this CID interview, said that his role during the interrogation was to wait for a cue from Johnson and then rough up the prisoner if he would not cooperate.

"Me and Johnson had a verbal agreement," Frederick recounted. "I was standing outside the door. Now the way it worked was he [Johnson] would be questioning the guy and if he didn't answer, Johnson would say he was going to have me come in the room. That was my key to come into the room."

Frederick said that, on Johnson's instruction, he was supposed to get more and more violent whenever the policeman would not cooperate. "It started off with a show of force," Frederick said, explaining that he would "stomp in the room, get real close to [the policeman], breathe real hard. I believe I slapped the wall or bed real hard just to make a commotion."

Johnson soon directed Frederick to get rougher. "I would put my hand over his mouth and pinch his nose," so he could not breathe, Frederick said. He added that Johnson twice personally interfered with the prisoner's breathing in similar fashion. At Johnson's request, Frederick said that he also pressed pain-inducing pressure points around the detainee's cheek, nose and chin, ear and wrist.

According to Frederick, Johnson was, "very aggressive and confident in his skills ... He yelled and screamed a lot. He walked around like he was the man." Frederick went on to say, "To me, he was a little bit on the side that he didn't care and would pull all the stops if he had to."

Graner, sentenced to 10 years in prison for abuse at Abu Ghraib, gave a similar interview to CID in April 2005 after he had been convicted. Graner said that under Johnson's direction, he and Frederick had on one occasion "basically roughed up" the prisoner. Graner identified the captive as "the Iraqi corrections officer who allegedly brought in the weapon."

During one of those "roughing-up" sessions by Frederick and Graner, the detainee's forehead was split open. Despite the wound, Graner said, Johnson would not allow a medic to administer stitches. Instead, Graner did the sutures himself, a procedure that was depicted in previously published Abu Ghraib photographs. [See photos 18-33 in the "Lacerations" chapter of the Abu Ghraib Files.]

These statements by Frederick and Graner amplify the 2004 Fay report. That report, which never refers to civilian contractors by name, says that a CACI interrogator "encouraged" Frederick to abuse a captured Iraqi policeman after a shooting incident in the prison. The Army inquiry goes on to state that this civilian contractor "failed to prevent" Frederick from covering the prisoner's mouth and nose during an interrogation. The report also mentions that during a separate interrogation, possibly with another prisoner, the same CACI interrogator had a detainee threatened with a snarling military working dog.

The Fay report recommended that the Army consider referring the CACI interrogator, apparently Johnson, to the Department of Justice for prosecution. It says that the female Titan translator (presumably Mheisen) should be considered for prosecution for failing to report detainee abuse. The Fay report also suggested that three other civilian contractors who worked at Abu Ghraib be considered for prosecution based on separate allegations of detainee abuse.

A former top Justice Department prosecutor in the Clinton administration reviewed the photographs and corroborating information at Salon's request. "I have a pretty hard time trying to figure out how they don't have enough evidence to prosecute," he concluded. The attorney, who did not want his name used because he did not know all the facts in the case, stressed that it would be particularly odd if the Justice Department did not bother to interview key witnesses or use its subpoena power. "That is evidence any prosecutor would subpoena once they crawled out of the crib," he said. "Your job is to find out the truth. The question is whether the prosecutor did anything to investigate this case."

The lack of any Justice Department prosecutions of civilians arising from incidents in Iraq galls human-rights advocates. Jean Alyward, a senior associate for government affairs at Human Rights First, asks rhetorically, "If a wayward contractor is able to use abusive tactics in his interrogations of detainees without any reprimand, what message does this send to military members and other U.S. personnel?"

The answer to that question now rests with Attorney General Gonzales and Charles "Chuck" Rosenberg, a respected career prosecutor who replaced McNulty in the Eastern District of Virginia as the U.S. attorney in charge of detainee-abuse cases from Iraq. It remains unclear whether Rosenberg will pursue cases like that of Daniel Johnson -- cases that have been in suspended animation since the Army referred them to the Justice Department.

-- With additional reporting by Michael Scherer

By Mark Benjamin

Mark Benjamin is a national correspondent for Salon based in Washington, D.C. Read his other articles here.

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Abu Ghraib Iraq War Military Contractors Torture