AMY GOODMAN: On Thursday, Senator John McCain spoke out against the torture and said the Abu Ghraib scandal has enormously harmed the country.

SEN. JOHN McCAIN: Torture does not work. The Israeli Supreme Court in 1999 said that the Israelis could not torture or practice cruel or inhumane people on the people they take prisoner. The Israeli defense officials who I have discussed this with say that it doesn’t work and they use psychological techniques, and so, (1) it doesn’t work, (2) it’s so damaging to us in an image fashion, and (3) the next conflict we’re in this government will use that same rationale to inflict serious injury to Americans who may become captive.

AMY GOODMAN: That was Senator John McCain, who survived torture as a prisoner during the Vietnam War. Last week former President Jimmy Carter criticized the administration’s detainee policies.

JIMMY CARTER: The insistence by our government that the C.I.A. or others have the right to torture prisoners in Guantanamo and around the world is just one indication of what this administration has done that’s a radical departure from past policies.

AMY GOODMAN: Former President Jimmy Carter on the Today Show. Meanwhile, Senate Majority Leader Bill Frist said Thursday he has no concerns about how detainees are being treated in secret overseas prisons. He said, quote, “I am not concerned about what goes on, and I’m not going to comment about the nature of that.” However, Dr. Frist questioned how classified information about the C.I.A.’s secret prisons appeared in the pages of the Washington Post. He said, quote, “My concern is with leaks of information that jeopardize your safety and security, period. That is a legitimate concern,” Frist said.

Well, today we’re going look at whether C.I.A. agents are being allowed to kill detainees in their custody. In the issue of The New Yorker magazine, investigative reporter Jane Mayer examines the death of Manadel al-Jamadi. He suffocated two years ago during a C.I.A. interrogation at the Abu Ghraib prison. His head had been covered with a plastic bag. He was shackled in a crucifixion-like pose that inhibited his ability to breathe. The U.S. government classified Jamadi’s death as a homicide, but the C.I.A. officer who interrogated Jamadi has never been charged with a crime and continues to work with the agency. Jane Mayer joins us now from our studio in Washington D.C. She is a staff writer for The New Yorker magazine. Welcome to Democracy Now!, Jane.

JANE MAYER: Thanks a lot. Great to be here.

AMY GOODMAN: It’s good to have you with us. Can you lay out the story of what happened to this man?

JANE MAYER: He was captured by Navy Seals in his house in Baghdad. He was a suspect in blowing up a number of things, including the Red Cross headquarters, so we’re not talking about a boy scout here, but he was captured in a fight and turned over to the C.I.A. And when he walked into Abu Ghraib prison on November 4, 2003, he was walking and talking, and 45 minutes later he was dead. And so, what I was trying to do was pull back the curtain. None of us really know exactly what’s happening behind those doors, where people are being interrogated in secret locations by unnamed people. So what I was able to do was put together a paper trail, looking at documents that had come out in a related trial and see what it is they were doing in this case, and what they were doing was lethal in this case. So, anyway, it was just a way to try to shed some light on what’s really been a secret practice.

As you know, many people on the Hill have been unable to get their hands on the instructions for what kinds of interrogation techniques we do use, and the White House keeps saying, “We don’t torture,” but obviously they’re fighting very hard to keep some kind of loophole open there to be able to do something that they describe as 'just short of torture,' which is cruel, inhumane and degrading things. And what happened in this case was a man was — he was stripped and then had his hands shackled behind his back and then attached to a window up above his head, and eventually, because of the bag on his head and because he had several broken ribs, he was unable to breathe. He eventually just died of asphyxiation.

JUAN GONZALEZ: Your article identifies the only C.I.A. agent who was in the room at the time, Mark Swanner, and also a translator —

JANE MAYER: Right.

JUAN GONZALEZ: — that was also in the room. And it also mentions that an Inspector General’s report raised issues of possible criminality in this case, but that nothing has happened.

JANE MAYER: Isn’t that interesting? Yes. The Inspector General at the C.I.A. is actually said to be a very independent and quite, you know, conscientious investigator of some of the problems inside the agency. And he had — did a very thorough report, sent it on to the Justice Department saying that there was the possibility of criminal behavior in this case. That was more than a year ago that that report reached the Justice Department, and there it has, according to one of the lawyers I talked to, lain fallow, as they say, and nothing has gone forward. And I think the reason is, and I was interviewing a lot of people who know about the law and the C.I.A. were saying that to open — to prosecute this case would open a complete can of worms. It would mean that they would have to examine in court, in an open courtroom probably, what it is that the C.I.A. really is allowed to do to people when they interrogate them. What are these rules? What do they mean when they say it’s not torture, but it is cruel, inhumane and degrading? And this would just be, you know, shining a klieg light on that.

AMY GOODMAN: Jane Mayer, the picture we’ve seen repeatedly, one of them from Abu Ghraib, this is Jamadi, the man who was wrapped in plastic, dead?

JANE MAYER: Yes, and they put him on ice so that his body wouldn’t decompose, so he is sort of known — among at least the reporters, as 'the iceman.' Yeah. It was a picture that came out along with the other disclosures when all of the revelations broke about Abu Ghraib, and it was a picture that, you know, I think contributed mightily to the black eye that the country got, because, you know, it was clear that somebody had died in U.S. custody. And it’s still clear, and it’s still clear that nobody has been charged in connection with this death, at least not inside the C.I.A. Actually, a bunch of Navy Seals were put on trial in connection with charges of abusing Jamadi, and they were exonerated. So the question then was raised: If the Seals didn’t kill him, who did? And the Seals’ defense lawyers are pointing the finger at the C.I.A.

JUAN GONZALEZ: Now, Senator John McCain obviously has been leading an effort in Congress and the Senate to basically ban even the C.I.A.'s involvement in this kind of abusive behavior, but at the same time the senator also voted in the Senate vote yesterday that would basically prevent detainees at a place like Guantanamo from being able to appeal in the federal courts their cases. It's a bit of a contradiction, it seems, in the senator’s stance in some of these issues.

JANE MAYER: Yeah, I agree. I do think that there — and it looked like a backdoor way for the administration really to get around the McCain legislation. They’ve just found another way to skin the cat. I mean, there’s a lot of confusion about what the C.I.A. does, and what it ought to be allowed to do, but I can tell you this, I mean, I think that the administration has tried to make it sound like this is something that has always been true in times of war, that we’ve been able to use powers like this, and it’s not so. The C.I.A. has never been in the business of holding prisoners or interrogating prisoners like this, and certainly not in using lethal force or, you know, forms of torture. This is — it really is a brave new world, because basically after 9/11 when Dick Cheney said, you know, “We need to be working on the dark side,” he was — the administration believed that there needed to be a new paradigm that would require them to use kinds of techniques and act in ways that had never been used before. The C.I.A. is bound by U.S. law, and so what they came up with was the notion that somehow if they did these things to foreign prisoners in non-U.S. territory, they could go through a loophole in the law that nobody else ever thought existed, and that’s what they’re fighting about.

AMY GOODMAN: We’re talking to Jane Mayer, who writes for The New Yorker magazine. Her latest piece is “A Deadly Interrogation: Can the C.I.A. Legally Kill a Prisoner?” Michael Ratner, President of the Center for Constitutional Rights, commented on the Lindsey Graham, that’s the Republican Senator’s measure that would override the Supreme Court decision that grants detainees the right to appeal. The Times reporting nearly two hundred of the roughly five hundred detainees currently held at Guantanamo have appeals pending. The approved amendment would nullify all of them. This is Michael Ratner.

MICHAEL RATNER: This is saying that people who are fighting for their rights in Guantanamo, who have been kept there for four years, who have been detained, who have been tortured and who have so far had the rights to attorneys and who won the right to have attorneys in the Supreme Court, Congress is now saying, 'Courts can no longer hear any case out of Guantanamo. The people are going to be kept, the detainees, simply at the behest of the President. He can do what he wants with them. If he's going to torture them, he can do that. No lawyers will have access. No courts will be able to review those detentions.’ It’s something that really has not happened since the Civil War in the United States.

AMY GOODMAN: Michael Ratner, President of the Center for Constitutional Rights. Our guest, Jane Mayer, writing for The New Yorker. Jane?

JANE MAYER: I was just going to say, I think under-girding this is, while the administration hasn’t said it outright, they do believe that torture works. I spoke last night with John Yoo, who used to be a lawyer in the Office of Legal Counsel in the Justice Department, who wrote many of the guidelines on what can and can’t be done. And he was speaking here in Washington and I talked to him for a little bit, and he said, “You know, torture works.” He said that we have a lot of information that we’ve gotten from terrorists by using these kinds of techniques. You know, what’s interesting is almost every other expert that I’ve ever interviewed, people from the C.I.A., people from the F.B.I., they say you get unreliable information out of torture, and it doesn’t work. In addition to the moral questions, it’s not practical. But that’s not what John Yoo thinks, and John Yoo was a very important member of the administration on this, so I think that is really what is beneath all of this.

JUAN GONZALEZ: And he’s often a commentator on the Lehrer NewsHour and isn’t quite as explicit when he’s talking on the Lehrer NewsHour as he was when he was talking to you.

JANE MAYER: No, it was kind of amazing to have him say it outright. He’s a law professor now, so maybe he can speak more freely, but, you know, I have to believe that Vice President Cheney thinks torture works and that these methods work somehow, and they also think — and the other thing that is under-girding this fight is the White House at this point believes that the President needs to have completely unfettered executive power to wage the war in any way he sees fit, and that none of the international laws or any of the constraints that might have been imposed by Congress are constitutional, as far as they’re concerned. So this is really a lot about a theory of executive power that is, you know, imperial power practically.

JUAN GONZALEZ: Any sense in your investigation of the impact on the career military officers or others within the government, their response to these extreme new measures that have been adopted by the Bush administration in recent years?

JANE MAYER: Well, I mean, we had, you know, the case of Ian Fishbeck, who was a — I can’t remember his rank — lieutenant or captain, who came out and said, “You know, the problem with all of this is it’s creating confusion on the ground.” People don’t know, the people who are stuck actually having to interrogate these prisoners don’t know what the rules are, and they don’t know where the limits are, and, of course, if they step over them they are in jeopardy of being prosecuted themselves. All the Lynndie Englands, all the lower level people are the ones who get in trouble. The people who have created this confusion have, so far, been indemnified, and very purposefully so. I mean, they’ve written sort of guidelines that make it almost impossible for them to get in trouble.

AMY GOODMAN: How high up does this go? I mean, we know about Alberto Gonzales, as White House Chief Counsel, writing the memo that says the Geneva Conventions don’t apply, and it turns out actually David Addington, who has now replaced Scooter Libby as Chief of Staff of Dick Cheney, was involved in the writing of that memo. He has since been elevated. Your reports talking about the autopsy being performed by military pathologists, according to Jeffrey Smith, the former General Counsel of the C.I.A., now private practice lawyer, “A decision to prosecute Swanner would probably go all the way to the Attorney General.”

JANE MAYER: Well, I mean, the issue is that at the top of the Justice Department, Alberto Gonzales is the person who played a major part in creating these interrogation rules, so it would be very hard for him to actually bring prosecutions against people for following rules that he helped create. Now, in the case of Swanner, it’s unclear whether he was following rules or if this was an unauthorized interrogation, but in any case, to raise all those issues is to shine light on top of, you know, Gonzales and others in the Justice Department. So it’s very hard for them to bring prosecutions in a case like this without a lot of political damage being done.

AMY GOODMAN: And that issue, you said of, well, 'torture works.' Torture also doesn’t work, aside from the moral reasons, just in the last few days the New York Times reporting the Bush administration was warned in February 2002 that intelligence reports alleging ties between Iraq and al-Qaeda were likely fabricated by a member of al-Qaeda in U.S. detention. However, the Bush administration ignored the Defense Intelligence Agency warning that the detainee Ibn al-Shaykh al-Libi was lying. His faulty claims were repeatedly used to justify the invasion of Iraq, and it turns out al-Libi may have been speaking to interrogators after he was tortured. He was captured in November 2001 in Afghanistan.

JANE MAYER: He was — actually, he’s an interesting case. He was somebody who was rendered by — he was taken — there was a fight over him between the F.B.I. and the C.I.A. And the F.B.I. wanted to treat him like a criminal, read him his rights and interrogate him in the sort of usual fashion we do in this country. The C.I.A. got a hold of him and took him away, and they took him to unknown other countries where he was interrogated in ways that were considerably rough, apparently. There were rumors that he had kind of lost his grip on sanity at some point along the way, and he then came up with this information that worked its way into Colin Powell’s U.N. address, which, as we know, later became — was not true. It was one of the great regrets of Powell’s life was that he gave that speech, apparently, without checking the information more. So there can be really damage done by false intelligence, and that means damage done by methods that create false intelligence, like using force in a way that makes the information unreliable. I mean, in the case of Jamadi, just take a look in this story that I was writing this week. Jamadi died before he told them anything. So, I mean, it was completely self-defeating what happened in this case.

AMY GOODMAN: Jane Mayer, we want to thank you for being with us, writes for The New Yorker Magazine. Her latest piece is called “A Deadly Interrogation: On Torture and the C.I.A.: Can the C.I.A. Legally Kill a Prisoner?”