The leak investigations have not yielded any firm results yet. (One CIA official, Mary McCarthy, was fired earlier this year, apparently for leaking, but it’s unclear whether that involved Priest’s article.) But whatever the intentions of those who complained about Priest’s story, one consequence is clear: In contrast with Europe, the focus in the US moved from the existence of secret prisons to the Post’s disclosure of them. The debate was once again deferred.


Carlotta Gall, the Times reporter who uncovered the two homicides at Bagram Air Base in Afghanistan in early 2003, was struck at the time by “the reluctance to believe bad acts of American troops when we’re at war.” That reluctance has largely disappeared, but a certain caution remains regarding officials in Washington.

This June, the Supreme Court ruled in Hamdan v. Rumsfeld that the military commissions the president had set up for al Qaeda suspects hadn’t been approved by Congress and thus were illegal. At least that is what made the headlines. Almost all papers, the Los Angeles Times being an exception, played the ruling narrowly. Take The Washington Post: “High Court Rejects Detainee Tribunals.”

What was only slowly recognized was that the court had also concluded that abusive interrogation policies were in fact illegal. The majority opinion, written by Justice John Paul Stevens, said that contrary to the Bush administration’s assertions, all captured combatants in US custody are entitled to protection under what’s known as Common Article 3 of the Geneva Conventions. While not granting them full prisoner-of-war protections, Article 3 says even fighters such as captured al Qaeda members are entitled to a minimum standard of treatment, including protection from “outrages upon personal dignity.”

By now, two years after Abu Ghraib, there is plenty of evidence that subjecting some detainees to “outrages upon personal dignity” has been exactly the policy of the administration. In November 2005, ABC News published a partial list of the CIA’s “enhanced interrogation tactics,” including such things as water boarding, the “attention slap,” and the cold-cell treatment, in which prisoners are kept naked, nearly freezing, and continuously doused with water.

Lieutenant General Schmidt, who had overseen the report on FBI allegations of abuse at Guantanamo, later testified that Rumsfeld had been “personally involved,” and was being given “weekly updates” on the interrogation of one detainee, who was kept near-freezing and led around naked on a leash. Interrogation logs later showed that the detainee’s heart rate became so slow during his “cold” treatment that he nearly died. Another prisoner in CIA custody in Afghanistan died of hypothermia.

“It all goes back to President Bush’s order, in February 2002, that detainees would not be covered by Common Article 3 of Geneva. That was the key,” says Marty Lederman, the constitutional scholar and former administration lawyer. Bush made that declaration publicly. It was oddly fitting, then, that when the Supreme Court ruled that Bush’s 2002 executive order was in fact illegal — a conclusion the White House implicitly acknowledged this summer when it began lobbying to effectively shield interrogators and officials from potential violations of the War Crimes Act — there were few headlines about that either.

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Eric Umansky is an assistant managing editor of ProPublica.