CACI’s Forgotten Role in Abu Ghraib (I)

(originally published in the Huffington Post)

This June, a federal court dismissed Iraqi torture victims’ suit against military contractor CACI for its role in their abuse at Abu Ghraib, because the “alleged conduct giving rise to their claims occurred exclusively on foreign soil.” CACI released a statement that, “[w]e are gratified by the court’s decision and hope this is the end of these baseless lawsuits,” and recently followed up with a motion to force the plaintiffs to pay its court costs.

I worked on those lawsuits for many years, ending in 2011. They were not baseless. CACI is remarkably lucky that none of the cases ever made it to trial. The country has largely forgotten the company’s role in Abu Ghraib; the trial would have been a powerful reminder.

Several of the military police (MPs) who were court-martialed for Abu Ghraib have testified that CACI employees Daniel Johnson and Steven Stefanowicz ordered them to abuse detainees. Charles Graner and Ivan Frederick, the two MPs generally regarded as the ringleaders of the Abu Ghraib abuses, gave detailed accounts of Stefanowicz’s and Johnson’s role during court martial testimony and interviews with the Army Criminal Investigative Division (CID).

Graner told CID investigators in 2005 that it was Stefanowicz who had first encouraged him to mistreat detainees: “[w]hen we had come to the block I had come in with a correctional officer’s mindset of care, custody and control… I’m going to do the least amount of work possible and get paid for it, because that’s what corrections officers do. And that lasted for about a day, and then I met Big Steve.” Stefanowicz, Graner said, taught him to deprive detainees of sleep, take their clothes off, and handcuff them in stress positions in preparation for interrogation. (Graner would later engage in these and other abuses without any prompting from Stefanowicz or any other interrogator).

Graner remembered Stefanowicz directing MPs to be particularly brutal towards one detainee nicknamed “Taxi Cab Driver,” whose real name was Amjad Ismail Waleed. Sabrina Harman corroborated Graner’s statements about Stefanowicz’s role in “Taxi Cab Driver’s” abuse, as did Waleed himself. At a deposition for Harman’s court martial, Waleed testified that “Steve used to tell them to torture the guy in room #1, and used to come and watch the torture and laugh, sometimes he spits, and hit me once or twice.” Waleed said that this had begun before Charles Graner’s unit arrived at Abu Ghraib.

Ivan Frederick testified during the court martial of Army dog handlers Santos Cardona and Michael Smith that Stefanowicz had told him to menace one detainee with military dogs: “I was told by his interrogator, Big Steve, that he was al-Qaida,” said Frederick. “He said, ‘Any chance you get, put the dogs on.” There is photographic evidence of that detainee, Ashraf al-Juhayshi, being menaced by a black dog, and of “Taxi Driver” handcuffed naked in a stress position with women’s underwear on his head, although Stefanowicz himself does not appear in any of the Abu Ghraib photographs. Stefanowicz was never called as a witness during the dog handlers’ courts martial, but both the prosecution and defense stipulated to his role in directing soldiers to threaten detainees with dogs.

Frederick also alleged under oath that Daniel Johnson had instructed him to cover a detainee’s mouth and nose to stop his breathing, and inflict pain on him using “pressure points.” Graner told military investigators that he witnessed Johnson instructing Iraqi guards to torture a prisoner by “smacking [the prisoner] on the bottom of his feet and then forcing him to walk.”

CACI has strenuously denied these allegations, as have Stefanowicz and Johnson through counsel. They point out that Graner and Frederick have an incentive to shift blame for their own illegal conduct. But investigations led by Major General Antonio Taguba, Major General George Fay, and the Army Criminal Investigative Division found soldiers’ allegations about CACI personnel credible.

Taguba found that Stefanowicz had lied to investigators, and told MPs “to facilitate interrogations by ‘setting conditions’ which were neither authorized and in accordance with applicable regulations/policy. He clearly knew his instructions equated to physical abuse.” Fay’s report found that Stefanowicz (identified as CIVILIAN-21 in the report) has threatened detainees with dogs, and made false statements to investigators. Fay found that Johnson (CIVILIAN-11) had encouraged Frederick to abuse detainees, threatened to use dogs on detainees, and placed a detainee in a stress position. Military criminal investigative division investigators later found probable cause that Johnson had violated the federal assault statute, and that Stefanowicz had violated the laws against conspiracy, assault, and making false statements.

Despite this, the Department of Justice never charged Stefanowicz, Johnson, or any other CACI employee for their role at Abu Ghraib. We still do not know why that is. There are some clues in government documents released under the Freedom of Information Act, but they are so heavily redacted that they raise more questions than they answer. I will explore them further in a follow-up to this post.

Let Non-Secret Courts Decide if NSA Surveillance is Constitutional

(originally published in The Huffington Post)

Deputy NSA Director John Inglis recently told Congress that analysts “try to be judicious” in analyzing telephone metadata so as not to waste their name studying phone records from “the pizza delivery man.” But there are other groups of American citizens whose telephone records likely interest the intelligence community far more than takeout restaurants: attorneys who represent Guantanamo detainees. Journalists. Whistleblowers. Human rights researchers.

Even before the recent leaks about the NSA program, many of these groups and individuals suspected they were under surveillance, and sued to stop it. Courts have dismissed most cases because of a catch 22: in order to sue, plaintiffs must prove that they were affected by NSA surveillance — but the proof is classified.

In 2007, a group of Guantanamo lawyers sued under the Freedom of Information Act (FOIA) for records that showed whether the government had intercepted communications relating to their representation of their clients. The government refused to provide any records, or even to say whether they existed, because “acknowledging the existence or nonexistence of the information” requested would reveal classified information. The court ruled that the government did not have to answer.

This February, the Supreme Court dismissed Amnesty International v. Clapper, a suit by nonprofit organizations, attorneys, and journalists against the Director of National Intelligence. Justice Samuel Alito held that the plaintiffs’ fears of unlawful surveillance were too “highly speculative” for the suit to proceed. Second Circuit Judge Dennis Jacobs went further: the plaintiffs, he wrote, were acting out a “fantasy of persecution” comparable to “pro se plaintiff’s allegation that the CIA is controlling him through a radio embedded in his molar.”

But based on recent disclosures, journalists’, attorneys’ and civil society groups’ fears of surveillance were, if anything, understated. The plaintiffs in Amnesty v. Clapper alleged that the NSA had likely intercepted their communications because their work required them to communicate regularly with non-U.S. citizens, some of whom had been accused of involvement with terrorism. If the government was eavesdropping on the plaintiffs’ sources, clients, and witnesses, it would sweep up their communications as well.

We now know that the NSA did not restrict itself to querying its databases about people in direct contact — “one hop” away — from foreign surveillance targets. NSA officials have acknowledged that they can analyze metadata of people “two hops” or “three hops” from the target: not only a terrorism suspect, but everyone who communicates with him, everyone who communicates with those people, and everyone who communicates with those people.

To give a personal illustration: I have interviewed and communicated electronically with former detainees, but I do not know if any of them were NSA targets. A “one hop” analysis might exclude me. But I am virtually certain that a “two hop” analysis would not, because I have been in direct communication with a large number of detainees’ counsel, national security journalists, and human rights investigators. This means that all of my family, friends, and professional contacts are “three hops” away.

What degree of surveillance this means in practice is unclear. A recently declassified order by the Foreign Intelligence Surveillance [FISA] Court gives some clues with respect to telephone metadata. According to the order, the “hop-limited results” of the initial NSA queries are processed into a “corporate store.” Metadata in the corporate store can be searched “for valid foreign intelligence purposes,” using “the full range of SIGINT [signals intelligence] analytic tradecraft.” It is quite plausible that “valid foreign intelligence purposes” would include investigations of leaks of classified information, given the number of leakers the Obama administration has prosecuted for espionage. It is also quite plausible that the “corporate store” includes a great deal of information about national security journalists’ telephone calls with sources.

It is hard to be certain what is actually occurring, because so much about these programs remains classified. President Obama has asserted that “none of the revelations show that government has actually abused these powers.” But when discussing other countries’ human rights records, the U.S. State Department describes widespread surveillance of journalists, civil society, and ordinary citizens as abusive in itself, because it leads to self-censorship. That is part of the reason we have a Fourth Amendment, which even the highly deferential FISA court has found the NSA violated at times. The administration should stop hiding behind secrecy and standing doctrine, and allow non-secret, adversarial courts to determine whether its surveillance programs violate the Constitution.

Prior publications

Some of my greatest hits, collected in one place for the sake of convenience:

1. Report of the Constitution Project’s Task Force on Detainee Treatment. The chapters I worked on most were: Chapter 3 (Iraq), Chapter 6 (Role of Medical Professionals in Detention and Interrogation Operations), Chapter 7 (True and False Confessions: The Efficacy of Torture and Brutal Interrogations), Chapter 10 (The Obama Administration), Appendix 1, and Appendix 2. The Task Force’s Findings and Recommendations are the closest equivalent to an executive summary.

2. Force Feeding: Guantanamo’s Shame, an op-ed published in the Los Angeles Times with my Task Force staff colleagues, Alka Pradhan and Kent Eiler.

3. Several recent weblog posts for the Constitution Project:

James Comey and OLC Torture Documents: A Chronology

The Very Secret Hearing

The Somewhat Less Secret Hearing

Senator Feinstein Criticizes Guantanamo Force Feeding

4. Return of the Renditioned, a September 2011 Foreign Policy piece on revelations about U.S. rendition to torture in the wake of the Arab Spring.

5. Sulayman the Malevolent, a Spring 2011 article in Middle East Report about former Egyptian mukhabarat head and Mubarak Vice President Omar Suleiman’s role in rendition and torture.

6. The Promises of Torturers: Diplomatic Assurances and the Legality of “Rendition,” my law school thesis, published in the Georgetown Immigration Law Journal in 2006. Link is to a purchase page, as there’s no free copy available online; if you email me I can probably send it though.

7. Torturous Passage, a very old article about rendition to torture from The American Prospect. 

There are a few very recent pieces from a Huffington Post blog, which I will likely just republish in their entirety for the sake of simplicity.