Late last month, the Department of Justice Office of Inspector General issued a positive report on the FBI's involvement in detainee interrogations in Afghanistan, Guantánamo Bay and Iraq.
I applaud the OIG's recognition of a handful of career Justice attorneys and FBI officials who challenged abusive interrogation techniques - and warned correctly that torture would likely taint any legal proceedings against suspected terrorists. But praise for OIG's demi-candor in an atmosphere of absolute secrecy obscures the whitewash that the report really is. The report finds, "We believe the FBI should be credited for its conduct and professionalism in detainee interrogations." But to reach this conclusion, the OIG omits one of the earliest and most obvious cases of torture and FBI misconduct - that of "American Taliban" John Walker Lindh.
In 2001 (a period covered by the report), Lindh, an American citizen, was found shot in the leg and barely alive. U.S. soldiers threatened him with death, blindfolded him, duct-taped him naked to a board, scrawled expletives on him, and posed with him for pictures - before holding him in an unlit metal shipping container for two days. Yet, the OIG report states in its executive summary: "We found no instances in which an FBI agent participated in clear detainee abuse of the kind that some military interrogators used at Abu Ghraib prison."
I know otherwise because I was the Justice Department ethics advisor in the Lindh case. In 2001, I told the Criminal Division, which was advising the FBI in Afghanistan, that Lindh could not be interrogated without his counsel. That was on a Friday. The Criminal Division called back on Monday and said that the FBI had interrogated him anyway. They wanted to know what to do. I advised that the interview would have to be sealed and used only for national security purposes or intelligence-gathering, not criminal prosecution. Again, my advice was ignored.
Three months later, I inadvertently learned of a discovery order, which had been deliberately concealed from me, for all Justice Department correspondence related to Lindh's interrogation. When I went to comply, my e-mails had been purged from the file. With the help of technical support, I recovered them from my computer, turned them over to my boss, took home a copy in case they "disappeared" again, and resigned.
As the criminal case barreled toward trial, the Justice Department continued to assert that Lindh was never represented by counsel and that his rights had been "carefully, scrupulously guarded." I did not believe the Justice Department would have the temerity to make public statements contradicted by its own court filings if my e-mails had indeed reached the court. So I blew the whistle, which unleashed a cascade of retaliation.
Unbeknownst to me until a few weeks ago, the White House had decided not to turn over any documents to Lindh's defense lawyers. The Defense Department, apoplectic that its new policy on the torture of captives in the war on terrorism was going to be exposed, leaned on the Justice Department to offer Lindh a deal. On the eve of the suppression hearing that was going to expose his mistreatment, Lindh pleaded guilty to two relatively minor charges that landed him in prison for 20 years. As part of the plea bargain, he had to sign a statement swearing that he had "not been intentionally mistreated" by his U.S. captors, and waiving any future claim of torture.
In 2002, my lawyer made it abundantly clear to the OIG that I took several steps to thwart efforts to conceal material regarding Lindh's interrogation from the court. In January 2003, Inspector General Glenn Fine, who issued the recent FBI report, told my attorney that the OIG had looked into my whistleblower allegations and was not going to pursue them. (OIG did not look too searchingly because it did not even bother to interview me, the complainant.) To add insult to injury, OIG turned my case over for criminal prosecution, which eventually closed with no charges ever being brought. But the Justice Department was not through with me yet. It put me on the "No-Fly List" and referred me to the state bars in which I'm licensed as an attorney, based on a secret report - by the OIG - to which I did not have access.
Needless to say, the current OIG report does not mention FBI agent Christopher Reimann, who admits that when informing Lindh of his right to counsel, he ad-libbed, "Of course, there are no lawyers here . . . " When OIG catalogs a gruesome list of "techniques" used on detainees in Afghanistan - including abusive handling, harsh restraints, deprivation of clothing, blindfolding, humiliation and isolation - it does not reference Lindh. In fact, the report makes no mention of John Walker Lindh at all.
While I applaud the handful of people identified in the report who repeatedly challenged harsh interrogation tactics, I question the motive of the OIG report in propping them up as revisionist evidence that the Justice Department's and FBI's role in torture was somehow "not so bad." It must be remembered that the same Justice Department's Office of Legal Counsel, which writes legal opinions considered binding on federal agencies and departments, authored the infamous torture memo that gave Justice's imprimatur to such conduct in the first place. No OIG report has been issued on that.