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President Barack Obama’s promise of a more open government faces a new test this week as his administration weighs whether to release details of a May 2004 internal CIA report about the agency’s use of torture, including how at least three detainees were killed in Afghanistan and Iraq.

The secret findings of CIA Inspector General John Helgerson led to eight criminal referrals to the Justice Department for homicide and other misconduct, but those cases languished as Vice President Dick Cheney reportedly intervened to constrain Helgerson’s inquiries.

Heavily redacted portions of Helgerson’s report were released to the American Civil Liberties Union in May 2008 in response to a Freedom of Information Act request, but the ACLU appealed the Bush administration’s extensive deletions and the Obama administration agreed to respond to that appeal by Friday.

As with other recent battles over openness, the CIA is opposing any significant release of new information arguing that it would jeopardize sources and methods. Obama will have to decide whether to overrule CIA objections as he did in April when he released four Justice Department memos justifying torture.

However, more recently – in May and June – Obama has sided with U.S. officials wanting to keep evidence of detainee abuse away from the public. In May, Obama refused to release photos of U.S. military mistreatment of prisoners, and in June, he allowed the CIA to resist releasing documents relating to its destruction of 92 interrogation videotapes.

The ACLU’s appeal of the redactions from Helgerson’s report will test whether Obama’s retreat on openness includes concealing evidence of homicides.

In her 2008 book The Dark Side and in an earlier investigative report for The New Yorker, reporter Jane Mayer wrote that Helgerson was investigating at least three deaths of prisoners held by the CIA in Afghanistan and Iraq. One of those prisoners was Manadel al-Jamadi, who was captured by Navy SEALs outside Baghdad in November 2003.

"The CIA had identified him as a ‘high-value’ target, because he had allegedly supplied the explosives used in several atrocities perpetrated by insurgents, including the bombing of the Baghdad headquarters of the International Committee of the Red Cross, in October, 2003," Mayer wrote in a November 2005 issue of the New Yorker. 

She added: "After being removed from his house, Jamadi was manhandled by several of the SEALs, who gave him a black eye and a cut on his face; he was then transferred to CIA custody, for interrogation at Abu Ghraib. According to witnesses, Jamadi was walking and speaking when he arrived at the prison. He was taken to a shower room for interrogation. Some forty-five minutes later, he was dead."

Suffocated

At the time of his death, Jamadi's head was covered with a hood; he was shackled in a crucifixion-like pose that inhibited his ability to breathe; and according to forensic pathologists who have examined the case, he suffocated.

The CIA interrogator implicated in his death was Mark Swanner, who was never charged with a crime despite a recommendation by investigators working for Helgerson that the Justice Department launch a criminal investigation into the matter. 

Helgerson also "had serious questions about the agency's mistreatment of dozens more, including Khalid Sheikh Mohammed," Mayer wrote in her book, adding that there was a belief by some "insiders that [Helgerson's investigation] would end with criminal charges for abusive interrogations."

Mayer described Helgerson’s report as being "as thick as two Manhattan phone books" and containing information, according to an unnamed source, "that was simply sickening."

"The behavior it described, another knowledgeable source said, raised concerns not just about the detainees but also about the Americans who had inflicted the abuse, one of whom seemed to have become frighteningly dehumanized," Mayer wrote. "The source said, 'You couldn't read the documents without wondering, 'Why didn't someone say, "Stop!'"" 

In an interview with Harper's magazine last year, Mayer said Helgerson "investigated several alleged homicides involving CIA detainees" and forwarded several of those cases "to the Justice Department for further consideration and potential prosecution."

"Why have there been no charges filed? It's a question to which one would expect that Congress and the public would like some answers," Mayer said. "Sources suggested to me that... it is highly uncomfortable for top Bush Justice officials to prosecute these cases because, inevitably, it means shining a light on what those same officials sanctioned."

One possible reason that the Justice Department investigations went nowhere was that Vice President Cheney intervened and demanded that Helgerson meet with him privately about his investigation. Mayer characterized Cheney's interaction with Helgerson as highly unusual.

Cheney's "reaction to this first, carefully documented in-house study concluding that the CIA's secret program was most likely criminal was to summon the Inspector General to his office for a private chat," Mayer wrote.

“The Inspector General is supposed to function as an independent overseer, free from political pressure, but Cheney summoned the CIA Inspector General more than once to his office.”

"Cheney loomed over everything," one former CIA officer told Mayer. "The whole IG's office was completely politicized. They were working hand in glove with the White House." 

Retaliation

There were also questions whether Helgerson’s critical report prompted bureaucratic retaliation. In October 2007, former CIA Director Michael Hayden ordered an investigation into Helgerson's office, focusing on internal complaints that the inspector general was on "a crusade against those who have participated in controversial detention program."

If Obama more fully declassifies Helgerson’s report, the new information also might undercut Cheney’s claim that the harsh interrogation of "high-value" detainees produced valuable intelligence, thwarted pending terrorist plots against the United States and saved "hundreds of thousands of lives."

In addition to showing the inconclusive nature of the value of the intelligence gleaned through torture, the report will likely show that Helgerson warned top CIA officials that the interrogation techniques administered to detainees might violate some provisions of the international Convention Against Torture.

"Further rattling the CIA was a request in May 2005 from Senator Jay Rockefeller, the ranking Democrat on the Senate Intelligence Committee, to see over a hundred documents referred to in the earlier Inspector General's report on detention inside the black prison sites," Mayer wrote in The Dark Side. "Among the items Rockefeller specifically sought was a legal analysis of the CIA's interrogation videotapes.

"Rockefeller wanted to know if the intelligence agency's top lawyer believed that the waterboarding of [alleged al-Qaeda operative Abu] Zubaydah and [alleged 9/11 mastermind] Khalid Sheikh Mohammed, as captured on the secret videotapes, was entirely legal.

“The CIA refused to provide the requested documents to Rockefeller. But the Democratic senator's mention of the videotapes undoubtedly sent a shiver through the Agency, as did a second request he made for these documents to [CIA Director Porter] Goss in September 2005."

CIA destroyed the 92 interrogation videotapes in November 2005.

Helgerson's report has been sought by members of Congress and civil liberties organizations for some time. Justice Department torture memos released in April contain several footnotes to the inspector general's report noting the watchdog's concerns about the fact that interrogators strayed from the legal limits set forth in the memos on how specific interrogation methods could be used.

For example, a footnote in a May 2005 Justice Department legal opinion says Helgerson found that, "in some cases," the "waterboard was used with far greater frequency than initially indicated...and also that it was used in a different manner."

Jason Leopold has launched his own Web site, The Public Record, at www.pubrecord.org.

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