Director of National Intelligence Dennis C. Blair

The director of U.S. national intelligence told the House Intelligence Committee the government has the right to kill Americans abroad.

Here are 10 problems with this:

1. Acts that are crimes under national and international law don’t cease to be crimes because you cross a border.

2. Acts that are crimes under national and international law don’t cease to be crimes because you engage in them frequently.  Assassinating non-Americans is just as illegal as assassinating Americans.  The leap here is not to victims of a different citizenship but to the legalization of murder.

3. Killing people has nothing whatsoever to do with gathering so-called intelligence.

4. Even in this age in which senators and house members petition and write public letters to the president imploring him to obey laws, rather than introducing legislation, issuing subpoenas, holding impeachment hearings, or defunding agencies, the fact remains that Congress, above all, IS the government, and it is just not the place of the director of national thuggery to come in and dictate what the law will or will not be.

5. Having made the globe a battlefield and sanctioned crimes including lawless imprisonment, torture, warrantless spying, indiscriminant bombings, and the use of white phosphorous, depleted uranium, and other sickening weapons, on the grounds that all is fair and legal in war, preventing Americans from becoming the innocent victims of the war is becoming harder and harder.  If active military can be on duty here, if we can be spied on, kidnapped, and imprisoned here.  If our most prominent foreign death camp can be relocated here, by what logic — and for how long — can government assassinations of Americans (without trial) be confined to elsewhere?

6. Typically when we assassinate people abroad, a lot of other innocent people are killed in the process.  Those are all murders.  That too will come home if there is not resistance soon, major resistance to this madness.

7. We are being asked to trust extrajudicial decisions on whether or not to murder, not just to allegedly wise judges who are in too big a hurry or find it logistically unfeasible to hold a trial, but to the very people who lied us into the wars that are motivating most of the international hostility toward our country and draining most of the resources Americans need at home.

8. No republic has ever survived putting this kind of power in the hands of a single ruler, with no independent legislature, no independent press, and no independent popular resistance.  And we’re almost there.

9. These people usually only admit to believing they have the barbaric “right” to do things that they have already done.

10. What are the chances the Director of Intelligence will never consider a president a threat to national security?

David Swanson is co-founder of AfterDowningStreet.org and author of the new book Daybreak: Undoing the Imperial Presidency and Forming a More Perfect Union by Seven Stories Press. You can order it and find out when tour will be in your town by visiting davidswanson.org/book.

The Obama administration announced Sunday it will subject the citizens of 14 nations who are flying to the United States to intensified screening at airports, including being subjected to full-body pat downs or body scanners.

Under the new rules, all citizens of Afghanistan, Algeria, Lebanon, Libya, Iraq, Nigeria, Pakistan, Saudi Arabia, Somalia and Yemen must receive a pat down and an extra check of their carry-on bags before boarding a plane bound for the United States, officials said. Citizens of Cuba, Iran, Sudan and Syria — nations considered “state sponsors of terrorism” — face the same requirement.

In a statement, the Transportation Security Administration (TSA), part of the giant Department of Homeland Security (DHS), said a majority of all other U.S.-bound international travelers — not just from the 14 countries — will also face random and threat-based enhanced screening.

But the agency denied that the new regulations amount to profiling. “TSA does not profile. As is always the case, TSA security measures are based on threat, not ethnic or religious background,” spokeswoman Kristin Lee said.

“We are only as strong as our weakest point,” said Cindy Farkus, the head of global security programs at the Transportation Security Administration. “We are always trying to stay ahead of where the emerging threats might be.”

But the Muslim Public Affairs Council (MPAC) told us that the new TSA guidelines were “a political solution to a security problem.” MPAC’s Communications Director, Edina Lekovic, urged the adoption of behavior-based screening rather than profiling, and called the TSA guidelines “a lazy solution that may make us feel good, but in fact merely creates blind spots that make us less safe.”

“These ‘blind spots’ can be identified and exploited by violent extremists. Furthermore, the new policy deeply undermines the Obama administration’s stated commitment to civil rights, equality before the law, and a much-needed effort to rebuild U.S.-Muslim world relations,” she added.

Lekovic also disclosed reports she has received from members of her constituency that TSA screeners at Washington DC’s Dulles airport have been instructed to carry out additional inspections of women wearing headscarves. These reports could not be immediately confirmed with the TSA.

According to the American Civil Liberties Union (ACLU), the government should “adhere to longstanding standards of individualized suspicion and enact security measures that are the least threatening to civil liberties and are proven to be effective. Racial profiling and untargeted body scanning do not meet those criteria.”

“We should be focusing on evidence-based, targeted and narrowly tailored investigations based on individualized suspicion, which would be both more consistent with our values and more effective than diverting resources to a system of mass suspicion,” said Michael German, national security policy counsel with the ACLU Washington Legislative Office and a former FBI agent.

“Overbroad policies such as racial profiling and invasive body scanning for all travelers not only violate our rights and values, they also waste valuable resources and divert attention from real threats.”

The organization said the government’s plan to subject citizens of certain countries to enhanced screenings is bad policy, because there is no way to predict the national origin of a terrorist and many terrorists have come from countries not on the list. It cited the case of the “shoe bomber,” Richard Reid, who was a British citizen, as were four of the London subway bombers.

“Singling out travelers from a few specified countries for enhanced screening is essentially a pretext for racial profiling, which is ineffective, unconstitutional and violates American values. Empirical studies of terrorists show there is no terrorist profile, and using a profile that doesn’t reflect this reality will only divert resources by having government agents target innocent people,” said German. “Profiling can also be counterproductive by undermining community support for government counterterrorism efforts and creating an injustice that terrorists can exploit to justify further acts of terrorism.”

Nihad Awad, national executive director for the Council on Islamic-American Relations (CAIR), said in a statement, “Under these new guidelines, almost every American Muslim who travels to see family or friends or goes on pilgrimage to Mecca will automatically be singled out for special security checks — that’s profiling.”

He added, “Under these new guidelines, almost every American Muslim who travels to see family or friends or goes on pilgrimage to Mecca will automatically be singled out for special security checks -– that’s profiling. While singling out travelers based on religion and national origin may make some people feel safer, it only serves to alienate and stigmatize Muslims and does nothing to improve airline security.”

“We all support effective security measures that will protect the travelling public from an attack such as that attempted on Christmas Day,” Awad said. “But knee-jerk policies will not address this serious challenge to public safety.”

MPAC’s government liaison, Alejandro Beutel, said, “The new TSA guidelines deliver a propaganda victory to Al-Qaeda and other violent extremist groups, since they rob targeted groups of people from their civil liberties based on their ethnicity and country of origin,” said “Call it whatever you want, but this is religious and ethnic profiling at its worst.”

A number of legal experts were also critical of the new measures.

Georgetown University law professor David Cole said, “The danger with nationality-based profiling is that it sweeps up vast numbers of innocent people, may alienate those we need to have on our side if we are to reduce al-Qaeda recruitment, and takes our eyes off folks, like Richard Reid and Zacarias Moussaoui, who are citizens of other countries that don’t fit the profile.”

Richard Reid, a self-admitted member of Al Qaeda, was convicted by a U.S. federal court of attempting to destroy a commercial aircraft in-flight by detonating explosives hidden in his shoes in 2001. Moussaoui, a French citizen, was convicted of conspiring to kill citizens of the US as part of the September 11, 2001, terrorist attacks.

In response to numerous calls for profiling from elected politicians, former Secretary of Homeland Security Michael Chertoff told National Public Radio, “I’m going to argue that this case illustrates the danger and the foolishness of profiling…I think it’s not only problematic from a civil rights’ standpoint, but frankly, I think it winds up not being terribly effective.”

He cited a Justice Department 2003 advisory report that concluded, “Racial profiling in law enforcement is not merely wrong, but also ineffective. Race-based assumptions in law enforcement perpetuate negative racial stereotypes that are harmful to our rich and diverse democracy, and materially impair our efforts to maintain a fair and just society.”

A number of transportation security authorities have recommended that the U.S. adopt the screening practices used by Israel’s airports and airlines. El Al airlines, one of the world’s safest carriers, has spent many years developing screening methods based on passengers’ behavior, rather than looks, dress, or country of origin.

Photo/Wikimedia

So much for the First Amendment.

Morris Davis, the retired Air Force Colonel who served as the Chief Prosecutor of the Military Commissions at Guantánamo from September 2005 until his resignation in October 2007, has just lost his job at the Congressional Research Service (a branch of the Library of Congress) for writing, in his personal capacity, an op-ed for the Wall Street Journal, in which he drew on his wealth of experience of the Commissions to criticize the Obama administration for its decision to prosecute some Guantánamo prisoners in federal courts, and others in Military Commissions.

Davis also wrote a letter to the Washington Post, in which he criticized former Attorney General Michael Mukasey for scaremongering about the administration’s decision to try Guantánamo prisoners in federal courts, and he was admonished for that too.

In a letter dated Nov. 20, Daniel P. Mulhollan, the director of CRS, told Col. Davis that he had not shown “awareness that your poor judgment could do serious harm to the trust and confidence Congress reposes in CRS,” and notified him that he would not be kept on after his one-year probationary period at CRS ends on Dec. 21.

The ACLU immediately stepped in, sending a letter on Friday to Dr. Jim Billington, the Librarian of Congress, arguing that “CRS violated the First Amendment when it fired Davis for speaking as a private citizen about matters having nothing to do with his job there, and that CRS must reinstate Davis to his position in order to avoid litigation.”

Aden Fine, staff attorney with the ACLU First Amendment Working Group, said, “The First Amendment protects Col. Davis’s right to speak and write as a private citizen about issues on which he has personal knowledge. Col. Davis didn’t give up his right to express his opinions and first-hand knowledge about a matter of such public importance when he left the military commissions system and went to work at CRS.”

In correspondence over the weekend, Col. Davis reinforced the ACLU’s views, explaining:

I am the head of the Foreign Affairs, Defense, and Trade Division at the Congressional Research Service (one of five CRS research divisions) at the Library of Congress.  My division does not now nor has it ever had responsibility for providing Congress with advice on military commissions; that responsibility resides with the American Law Division … The Library of Congress has a regulation on outside activities for staff and it “encourages” outside writing and speaking on topics outside the staff member’s area of responsibility and the Congressional Research Service has a similar policy … In short, it was clear that I was prohibited from expressing my opinions publicly on matters within my area of responsibility, but I believe I retained the same right as all citizens to express opinions on matter outside the scope of my official duties.

He added:

The First Amendment guarantees the right of free speech and the Supreme Court has long recognized that public employment does not override that right (although regulation of speech is permissible when related to an employee’s official duty … and as noted, I have absolutely no official duty connected to military commissions). It is ironic that our offices are located in the James Madison Building, which is named for the “Father of the Constitution” and the primary architect of the Bill of Rights who led the effort to secure the right of free speech. I suspect Mr. Madison would be surprised to learn that the right he cherished is denied those working in the building that bears his name.

Morris Davis and the ACLU are right, of course, and I hope that Davis is reinstated. Even aside from the fact that he should be entitled to express his personal opinions under his First Amendment rights, it is difficult to see how his published comments could possibly be construed as demonstrating “poor judgment” that “could do serious harm to the trust and confidence Congress reposes in CRS.”

In his Wall Street Journal article on November 10, for example, Col. Davis stated only that the administration’s decision to try some prisoners in federal court and others in Military Commissions was “a mistake.” As he explained, “It will establish a dangerous legal double standard that gives some detainees superior rights and protections, and relegates others to the inferior rights and protections of military commissions. This will only perpetuate the perception that Guantánamo and justice are mutually exclusive.”

And in his letter to the Washington Post, he chided former AG Mukasey for claiming that the decision to try prisoners in federal courts “comes down to a choice between protecting the American people and showcasing American justice,” and also for implying that the Commissions were “essential to keep detainees from returning to terrorism.” As he added, “The Geneva Conventions permit detaining the enemy during armed conflicts to prevent them from causing future harm. Criminal trials punish past misconduct. Suggesting that the choice is either criminal prosecution or freedom is false.”

Ironically (given his subsequent treatment), Col. Davis’s comments about the Commissions were actually rather constructive, as he pointed out that the administration “could legitimately choose to prosecute detainees in either forum — federal courts or military commissions — and satisfy its legal obligations,” noting only that “The problem is trying to have it both ways.” He also explained, “It is not as if double-standard justice is required to keep suspected terrorists off our streets. Those detainees who cannot be prosecuted can still be detained under rules the administration approves — likely in the next several months — for the indefinite detention of those who pose a threat to us during this ongoing armed conflict.”

Jut as ironic is the fact that Davis’s dismissal follows nearly a year at CRS in which he has, in fact, been the soul of discretion regarding his former role as the Chief Prosecutor of the Commissions, the politicization that drove him to resign, and the comments he made in February 2008 that led to the immediate resignation of William J. Haynes II, the Pentagon’s Legal Counsel, even though countless journalists (myself included) would dearly love to talk to him about these matters.

Arguably, no one knew more — or, at least, felt more keenly — the politicization of the Commission process in 2007, after the system was revived by Congress in the fall of 2006 (following a Supreme Court ruling in June 2006, which found that it violated both the Geneva Conventions and the Uniform Code of Military Justice).

Detailed accounts of Davis’ resignation — and his subsequent explanations of his reasons for doing so, which strike at the heart of the Bush administration’s torture regime, and its attempts to prosecute the victims of torture over Davis’s objections — can be found, in particular, in my article, “The Dark Heart of the Guantánamo Trials,” but to conclude this account with a concise explanation, it is worth noting the following passages taken from that article:

[I]n a blistering op-ed in the Los Angeles Times, two months after his resignation, Col. Davis stated, “I was the chief prosecutor for the military commissions at Guantánamo Bay, Cuba, until Oct. 4, the day I concluded that full, fair and open trials were not possible under the current system. I resigned on that day because I felt that the system had become deeply politicized and that I could no longer do my job effectively or responsibly.”

[Col. Davis] explained that the particular trigger for his decision was [a] memo … informing him that he had been placed in a chain of command under Haynes. Stating that he resigned “a few hours after” being informed of this, he mentioned that “Haynes was a controversial nominee for a lifetime appointment to the US 4th Circuit Court of Appeals, but his nomination died in January 2007, in part because of his role in authorizing the use of the aggressive interrogation techniques some call torture.” He added, “I had instructed the prosecutors in September 2005 [shortly after taking the job] that we would not offer any evidence derived by waterboarding, one of the aggressive interrogation techniques the administration has sanctioned.”

In February 2008, Col. Davis told Ross Tuttle of the Nation about a conversation he had with Haynes in August 2005:

“[Haynes] said these trials will be the Nuremberg of our time,” recalled Davis, referring to the Nazi tribunals in 1945, considered the model of procedural rights in the prosecution of war crimes. In response, Davis said he noted that at Nuremberg there had been some acquittals, which had lent great credibility to the proceedings.

“I said to him that if we come up short and there are some acquittals in our cases, it will at least validate the process,” Davis continued. “At which point, [Haynes's] eyes got wide and he said, ‘Wait a minute, we can’t have acquittals. If we’ve been holding these guys for so long, how can we explain letting them get off? We can’t have acquittals. We’ve got to have convictions.’”

This, I’m sure you’ll agree, is far more explosive than Col. Davis’s op-ed and letter regarding the Military Commissions, but even had he chosen to talk about these matters, he should have been free to do so. The fact that he has not is a loss for those of us who wish to see the Bush administration held accountable for its crimes (and who are keen to follow the chain of command from Haynes, via Susan Crawford, the Commissions’ Convening Authority, to Dick Cheney and David Addington), but it also provides another demonstration that, when it came to exercising his freedom of speech whilst employed by the CRS, Col. Davis had no intention of demonstrating “poor judgment” at all.

Andy Worthington, a regular contributor to The Public Record, is the author of The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison and the definitive Guantánamo prisoner list, published in March 2009. He maintains a blog at andyworthington.co.uk.

Yemen is struggling with the possible release of the largest group of detainees at the US detention center in Guantanamo Bay, Cuba.

The release of more than 90 Yemenis still being held at the facility may be delayed due to US fears that Yemen does not have the capacity to ensure the men will not rejoin al-Qaeda.

The US has cautioned that if Yemen does not build a rehabilitation center where former detainees can be coached to abandon all forms of radical ideology, it will transfer the men to Saudi Arabia, something Yemen strongly disagrees with.

[snip]

The biggest worry for the US, reports Al Jazeera’s Hashem Ahelbarra, is that Yemen cannot control detainees once they are released.

Washington believes Yemen has become al-Qaedas stronghold in the region, and even suspects the government in Sanaa of cutting deals with the group.

The letter also included a statement by his lawyer, Michael J. Mone Jr., to a Committee of the US House of Representatives, in which Mone explained that Jabbarov was a refugee, living in northern Afghanistan with his pregnant wife, infant son, elderly mother and other Uzbek refugees at the time of the US-led invasion in October 2001, and that he ended up in US hands “after he accepted a ride from a group of Northern Alliance soldiers he met at a roadside teahouse who said they would give him a ride to Mazar-e-Sharif. Unfortunately, instead of driving him to Mazar-e-Sharif, the soldiers took Oybek to Bagram Air Base where they handed him over to US forces, undoubtedly in exchange for a sizeable bounty.”

On Monday, the Irish Times revealed the identity of the second man, and although I respect his desire for privacy, and the chance to begin rebuilding his life after his long ordeal, as much as I recognize Oybek Jabbarov’s right to the same courtesies, I believe that, as with his countryman, it is useful to point out what is known of his story, as it is yet another example of an innocent man losing nearly eight years of his life in a cruel and experimental prison designed to hold human beings without any rights whatsoever.

As I explained in my article on Oybek Jabbarov, men like these two Uzbeks, just two of the many hundreds of innocent men who have been held in Guantánamo over the last seven years and nine months, were “mostly seized by the Americans’ opportunistic allies at a time when bounty payments for ‘al-Qaeda and Taliban suspects’ were widespread, and were then presumed guilty without any screening process by an administration drunk on its own exercise of unfettered executive power.”

The story of Shakhrukh Hamiduva

Unlike Oybek Jabbarov, whose lawyer fought tenaciously to establish his client’s innocence, and actively courted the media, Shakhrukh Hamiduva, the other man freed in Ireland, did not register on the media’s radar during his detention, although I mentioned him in my book The Guantánamo Files.

Nevertheless, his story — as accepted by a military review board that cleared him for release from Guantánamo in 2006 — bears striking similarities to that of his fellow countryman: a vulnerable refugee, preyed upon by unscrupulous Afghans following the US-led invasion, when substantial bounty payments were on offer for foreigners who could be presented to gullible US forces as “al-Qaeda or Taliban suspects.”

All that is known publicly of Shakhrukh Hamiduva is that he was born in Kokand, Uzbekistan in December 1983 (and that he was, therefore, probably under 18 years of age at the time of his capture), that he was one of the first prisoners to arrive at Guantánamo in January 2002, and that he gave the following account in December 2004 to his Combatant Status Review Tribunal (the one-sided military boards established to review — and largely endorse — the administration’s contention that everyone who had ended up in US custody was an “enemy combatant” who could be held without rights).

In his tribunal, Hamiduva explained that he left Uzbekistan because of religious persecution, and added that his father and five uncles had been jailed, and that another uncle had been killed. Nevertheless, he had to contend with a number of allegations whose provenance was not disclosed, but which were almost certainly produced as a result of the interrogations of other prisoners (or of Hamiduva himself), in circumstances that may well have involved coercion or bribery.

One allegation was that he had spent a year and a half in a training camp run by the Islamic Movement of Tajikistan, but he explained that he had spent that time at a refugee camp, which contained around 300 refugees. He also denied an allegation that he “willingly became a soldier in the Mujahideen Army,” and that he traveled to Afghanistan to “participate in jihad against the Russians and the Northern Alliance.”

In a statement provided to his Personal Representative (a military officer assigned to the prisoners for the tribunals instead of a lawyer), he explained that he had initially wanted to go to Turkey, but that he couldn’t get a passport because he was too young, so he decided to work with the Tajik authorities at the refugee camp instead.

This, he said, involved helping the refugees, and he added that the Tajik government then provided transportation to take him and other refugees to Afghanistan (actually deporting them, as they did with hundreds of Uzbek refugees in 1999, including Oybek Jabbarov and his family), where he helped some of them “to fix up things like cars or roofs” at a place in Kabul.

He also explained that, after five or six months, he hooked up with an Afghan “mentor,” who owned a garage and taught him to drive, and added that, after working for him for a while, he bought a car and started to work as a taxi driver, which was his occupation when he was captured.

Speaking of his capture, he said that he went to the United Nations in Pakistan (as there was no office in Afghanistan) to get help in returning to Uzbekistan. “They promised me they would be able to help me and send me back to my homeland, but nothing would happen to me and that I would be protected,” he said. “He [a UN official, presumably] gave me a piece of paper. I guess it was some kind of travel document so I would be able to travel along with.”

He explained that, after this visit, he returned to Afghanistan in his car with five or six Afghans from Mazar-e-Sharif, and added that he didn’t want any money from them; he just wanted them to give him directions. However, in the mountains he was stopped by armed Afghans who let his passengers go, but who took his car and handed him over to “the American general” — probably General Rashid Dostum, the Afghan Uzbek warlord who was working with US forces — at Mazar-e-Sharif.

He also explained to the tribunal that he told the Americans his story, and added that they saw his travel document and promised him that they would help him get home, but, after keeping him imprisoned for a month “in some kind of house” with about 15 Pakistanis, they were all transferred to the US prison in Kandahar, and after about a month and a half he was sent to Guantánamo.

Speaking of the nearly three years he had spent in the prison by the time of his CSRT, he told his tribunal, “They said that they were through with me and promise[d] to send me back to my homeland, that’s why I’m confused. When they brought me here for interrogation, I didn’t want to talk a lot to them … They didn’t treat me well here, that is why I didn’t tell them anything.” He added, “I just want to let you know that they torture me a lot here at the camp. They would not let me sleep through the night; they were tak[ing] me to interrogations. I saw them beating other detainees, breaking their arms and legs.”

When the tribunal asked why he was wearing orange (which meant he was uncooperative, as, by 2004, white uniforms had been introduced for “cooperative” prisoners, and tan for those who were somewhere in between), he explained, “I know that there are four levels of discipline. Every time I try to go one level up, they will do something to keep you in the level. I know that there are a lot of detainees who don’t want to talk to the interrogators and no matter what you tell them they are not going to change your level or change your clothes for that matter.

“I know that a lot of people have been tortured here at the camp … When I don’t exercise I feel very weak, that [is] why I try to exercise inside my cell but MPs don’t like it. That is the only [way] I can keep myself healthy here is by doing some exercise because when you get sick you don’t get any appointments here so what should I do? Every prison detainee should be allowed to exercise; I don’t understand why they don’t allow us.”

As with the story of Oybek Jabbarov, this is a disturbing account on a number of levels. With such limited information available, I have no idea if Shakhrukh Hamiduva, like Jabbarov, was threatened by Uzbek intelligence agents who were allowed to visit Guantánamo (although it seems likely), but enough information is readily available to demonstrate, yet again, that the phrase “the worst of the worst,” as used by senior Bush administration officials to refer to the supposed terrorists in Guantánamo, is more accurately applied to the kind of mistakes made by the administration, which in its myopic arrogance, was more than happy to detain randomly seized foreigners in Afghanistan, and to deprive them of any rights, even if they were under 18 years-old, and should, as juveniles, have been rehabilitated rather than being subjected to sleep deprivation, punished for trying to exercise in their cells, and forced to watch as other prisoners were beaten until they were hospitalized.

Andy Worthington, a regular contributor to The Public Record, is the author of The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison and the definitive Guantánamo prisoner list, published in March 2009. He maintains a blog at andyworthington.co.uk.

Fouad al-Rabia

On Thursday, US District Court Judge Colleen Kollar-Kotelly struck another decisive blow to the credibility of the Bush administration’s detention policies at Guantánamo (and the continuation of those same policies by Obama’s Justice Department) by granting the habeas corpus petition of Kuwaiti prisoner Fouad al-Rabia, a 50-year old aeronautical engineer and a father of four who had been accused of fundraising for Osama bin Laden and running a supply depot for al-Qaeda in Afghanistan’s Tora Bora mountains.

Announcing her ruling, Judge Kollar-Kotelly ordered the US government “to take all necessary and appropriate diplomatic steps” to arrange his release “forthwith.”

Why the courts are more qualified than the government to appraise the Guantánamo cases

The ruling brings to 30 the number of habeas petitions granted in the wake of the Supreme Court’s ruling, in June 2008, that the Guantánamo prisoners have constitutionally guaranteed habeas rights. Just seven petitions have been refused (a success rate for the prisoners of 81 percent), and as the government dithers about what to do with the remaining 225 prisoners, these statistics confirm yet again — as I have been arguing since President Obama took office — that the courts and the prisoners’ lawyers, with their long history of dealing with the cases, are better qualified than the government to understand the extent to which those held at Guantánamo were, for the most part, subjected to extremely dubious post-capture intelligence-gathering, based primarily on the “confessions” of other prisoners, or of the prisoners themselves, in situations where coercion or bribery were prevalent.

Just two days ago, the New York Times revealed that the government’s interagency Guantánamo Task Force, established on Obama’s second day in office to work out whether to charge or release the prisoners, was struggling with the kind of decisions that the courts are already making, and which they will continue to make, as ordered by the Supreme Court. The Times explained that “About 80 detainees have been approved for resettlement in other countries,” and that “About 40 other detainees, including the Sept. 11 defendants, have been referred for prosecution in either a military or civilian criminal court,” but that “The cases of more than 100 of the remaining detainees are undergoing a second review by the prosecution teams, who so far have been unable to reach a consensus about whether these prisoners should be transferred to other countries or prosecuted.”

The story of Fouad al-Rabia, which I explain below, ought to demonstrate to the government that much of its caution is misplaced, and that the same applies to its optimism. Al-Rabia was very probably one of the 40 or so prisoners scheduled to face a trial, and, in addition, the allegations against him were regarded as more serious by the government than those against many — if not the majority — of the 110 or so prisoners who are facing a second government review.

The supposed case against Fouad al-Rabia

In the fantasy world of the “War on Terror,” anyone who met Osama bin Laden was a terrorist fundraiser, and anyone who passed through the Tora Bora mountains to escape the war in Afghanistan in December 2001 was a member of al-Qaeda and/or the Taliban, who had been involved in the inconclusive “final showdown” between al-Qaeda and the US.

There were reasons to doubt both allegations, because thousands of people had met bin Laden innocently (briefly introduced to him at religious gatherings or business meetings), and also because thousands of people — civilians as well as soldiers — had fled Afghanistan for Pakistan via the city of Jalalabad at the time of “the battle of Tora Bora.”

In addition, because Osama bin Laden (as well as other senior al-Qaeda figures, and a number of senior Taliban officials who had supported him) had safely escaped from Tora Bora, it was also worth considering that the majority of those who were captured were either civilians, caught up in the chaos, or simple foot soldiers who had been too slow or insignificant to have had an opportunity to escape. Most of the “martyrs” — those who stayed to fight to the death — had achieved their aim, as their corpses littered the mountains after the battle reached its anti-climactic end in mid-December.

For Fouad al-Rabia, sold to US forces by Afghan soldiers who had, in turn, bought him off members of the US-backed Northern Alliance (the Taliban’s opponents), his long years at Guantánamo, and the relentless interrogations to which he was subjected, led inexorably to both sets of allegations being leveled against him.

In November 2008, al-Rabia was put forward for a trial by Military Commission (the “terror trials” introduced by Dick Cheney in November 2001, and revived by Congress in 2006, after the Supreme Court ruled them illegal) and was charged with conspiracy and providing material support for terrorism. The government alleged that he had worked as a fundraiser for Osama bin Laden in Kuwait and had traveled to Afghanistan on several occasions between June and December 2001 “for the purpose of meeting with bin Laden,” and also alleged that he had been “in charge of an al-Qaeda supply depot at Tora Bora,” where he “distributed supplies to al-Qaeda fighters.”

As I explained at the time (in a version of the story that I described in greater detail in my book The Guantánamo Files):

The problem with this story is that al-Rabia has not denied meeting bin Laden or being present at Tora Bora, but has, over the years, provided detailed explanations of how both events were entirely innocent. As a good Muslim, he took time out every year to visit those less fortunate than himself and provide humanitarian aid. In 2001, his attention was drawn to Afghanistan, and when he visited in June he met various Taliban officials and was also introduced to Osama bin Laden, who, he said, explained that his mission was to force US troops to leave the Arabian Peninsula. He said that he was shocked that, when he pointed out that this might allow Saddam Hussein to invade Kuwait again, “Bin Laden said no problem. Let Saddam come in and then something would happen and control would come back.”

Al-Rabia said that he then returned to Kuwait and gained approval for a humanitarian mission from the Kuwaiti Joint Relief Council, but explained that his return to Afghanistan coincided with the start of the US-led invasion in October 2001. Trapped, like many others, he traveled from city to city in search of an escape route, and eventually … ended up in Jalalabad and joined the exodus into the mountains. Because of his age and experience, he said he was compelled by a senior figure in al-Qaeda to look after the “issue counter,” where supplies — food and blankets, rather than weapons — were being handed out.

Overweight and suffering from a variety of ailments, al-Rabia said that he was finally allowed to leave the mountains, traveling with a Palestinian, Mahrar al-Quwari, who is also held at Guantánamo [but was approved for release by a military review board under the Bush administration]. He added, however, that, after staying with an Afghan family for a week, they were betrayed to the Northern Alliance. The US allies then sold them to other Afghans, who imprisoned them in Kabul before turning them over to US forces.

As I also explained, it struck me as highly unlikely that al-Rabia would have been shepherded off the mountains and ultimately betrayed, had he really been associated with al-Qaeda, but in court his lawyers provided an explanation of his experiences in Tora Bora that was even more damning for the government. As Carol Rosenberg described it in the Miami Herald, his lawyers argued at a four-day hearing last month that “the US military had worn Rabia down through relentless and abusive interrogation to the point where he falsely confessed that he ran a supply depot in the Battle of Tora Bora in Afghanistan in December 2001.”

Rosenberg also explained that one of his lawyers, David Cynamon, argued that US interrogators had “learned of Rabia’s Arabic honorific, Abu Abdullah al-Kuwaiti, and confused him with another Kuwaiti who had the same nickname.” Cynamon explained that a man with that particular nickname (literally, the Kuwaiti who is the father of Abdullah) “did handle logistics and supplies” at Tora Bora, but was killed by US bombing. Speaking to the Miami Herald on Thursday, Cynamon added, “The government’s so-called case against Mr. al Rabia was based almost entirely on false ‘confessions’ wrung out of him by months of clearly improper and abusive interrogation techniques taken right from the playbook of the North Koreans and Chinese Communists. Our government should be ashamed of itself — first for using such tactics, then for defending them in court. This is why the writ of habeas corpus matters.”

Following Judge Kollar-Kotelly’s ruling, the Justice Department provided no comment, and did not indicate whether it will appeal the decision, but I sincerely hope that the government follows the judge’s advice and repatriates al-Rabia — and another Kuwaiti, Khalid al-Mutairi, whose habeas petition was granted in July — as swiftly as possible, as he has clearly suffered more than enough.

The abuse of Fouad al-Rabia in Guantánamo

The judge’s full opinion has not yet been made available, but Carol Rosenberg explained that the government’s case had relied on the fact that “military-intelligence agents had accurately concluded that Rabia was at Tora Bora,” and that it had also attempted to make inferences about the supposed threat he posed by noting that, as a younger man, he had “obtained a master’s degree from the Daytona Beach campus of Embry Riddle Aeronautical University.” To me, it sounds innocuous enough that an aeronautical engineer should have studied in the States, but in Guantánamo, anyone who had spent time in the US was regarded as a potential member of a sleeper cell, and, as a result, al-Rabia was subjected to brutal treatment.

Three British men released in March 2004 — the so-called “Tipton Three,” whose story was dramatized in the film “The Road To Guantánamo” — explained that al-Rabia, like dozens of other prisoners, was subjected to prolonged sleep deprivation, in the program known euphemistically as “the frequent flier program.” This involved moving prisoners from cell to cell every few hours, over a period of days, weeks or even months, supposedly to wear down their resistance (although in reality, as a recognizable form of torture, it was more likely to cause severe mental anguish and allied physical side-effects). The men reported that al-Rabia was moved every two hours, leaving him “suffering from serious depression, losing weight in a substantial way, and very stressed because of the constant moves, deprived of sleep and seriously worried about the consequences for his children.”

Al-Rabia was also subjected to the malign policy whereby medical staff at Guantánamo were co-opted as part of the interrogation process. His lawyers explained that, although he suffered from serious stomach pains, he was told that he “couldn’t receive medication unless he cooperated” with the interrogators. It is not known if this contributed to the false confessions identified in court, but despite the litany of cruelty and incompetence outlined above, the most startling fact concerning al-Rabia’s long detention and his final exoneration is that those overseeing Guantánamo were told in the summer of 2002, by a senior CIA intelligence analyst, who, almost uniquely, was also an Arabic expert, that al-Rabia had been wrongly detained.

What the CIA knew, and how it was ignored by David Addington

In The Dark Side, Jane Mayer explained how the analyst had conducted interviews with a random sample of the prisoners, and how his conclusion — that one-third of the men held at the time “had no connection to terrorism whatsoever” — was brushed off by David Addington, Cheney’s Legal Counsel, when John Bellinger, the Legal Advisor to the National Security Council, and General John Gordon, the NSC’s senior terrorism expert, learned of the agent’s report and tried to reveal the information to President Bush, to ask him to urgently review the cases of the men held at Guantánamo. According to two sources who told Mayer about the meeting, Addington dismissed their concerns by declaring, imperiously, “No, there will be no review. The President has determined that they are ALL enemy combatants. We are not going to revisit it!”

This, as Mayer noted, was the crux of the government’s position, as articulated by those who were dictating the policy from the Office of the Vice President. Mayer wrote, “The President had made a group-status identification, as far as he was concerned. To Addington, it was a matter of presidential power, not a question of individual guilt or innocence.”

One of the men who particularly suffered because of Addington and Cheney’s counter-productive arrogance was Fouad al-Rabia, who is the man described by the CIA analyst in an interview with Mayer as follows:

One man was a rich Kuwaiti businessman who took a trip to a different part of the world every year to do charity work. In 2001, the country he chose was Afghanistan. “He wasn’t a jihadi, but I told him he should have been arrested for stupidity,” the CIA officer recalled. The man was furious with the United States for rounding him up. He mentioned that every year up until then, he had bought himself a new Cadillac, but when he was released, he said, he would never buy another American car. He was switching to Mercedes.

This is another small piece of evidence to add to the burgeoning file of complaints against Dick Cheney and David Addington (the one that begins with torture and calls for prosecution, but also includes a whole section on arrogance and incompetence), but it amazes me that no one in the Justice Department, under President Obama, investigated the CIA analyst’s report, and, instead, stuck to the allegations put forward by military prosecutors in the Bush administration’s Military Commission system (overseen by the Convening Authority Susan Crawford, a protégée of Dick Cheney and a close friend of David Addington), and advanced mindlessly towards another humiliation in court.

Andy Worthington, a regular contributor to The Public Record, is the author of The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison and the definitive Guantánamo prisoner list, published in March 2009. He maintains a blog at andyworthington.co.uk.

Even more crucially, the judges’ rulings were allowing justice to be seen to be done, unlike the secretive interagency Task Force established by Barack Obama on his second day in office, whose deliberations are, sadly, as inscrutable as those of Obama’s predecessor, even though the Task Force has at least taken the time to consult with lawyers and other experts.

As I recently reported in a series of three articles (here, here and here), despite persistent obstruction from the Justice Department, where Bush-era officials have been behaving as though Dick Cheney is still breathing down their necks, judges had, by the end of July, reviewed 33 cases, and in 28 of those had ruled that the government had failed to establish, “by a preponderance of the evidence,” that it was justified in holding the men.

The judges concluded that, amongst other failings, the government was relying on information provided by dubious informers, on multiple levels of hearsay that failed to stand up to outside scrutiny, and on a supposed “mosaic” of evidence from various sources that was also unconvincing.

Nevertheless, although these rulings confirmed what those, like myself, who have been studying Guantánamo in depth for many years, have always maintained — that the majority of the prisoners are either innocent men seized for bounty payments (or through the incompetence of U.S. forces and other government agencies) or low-level Taliban foot soldiers recruited to help the Taliban defeat Afghanistan’s Northern Alliance in an inter-Muslim civil war that had nothing to do with al-Qaeda or the 9/11 attacks — the courts still face a number of peculiar problems.

These problems have arisen not only because almost all of the government’s supposed evidence consists of the inherently dubious statements of informers, of multiple levels of hearsay and of feeble “mosaics” of intelligence (as mentioned above), but also because when the Supreme Court granted the prisoners constitutionally guaranteed habeas corpus rights in June 2008, the justices failed to provide a clear definition of the extent to which prisoners were required to be involved in al-Qaeda and/or the Taliban to have their habeas appeals refused.

The “gossamer thin” case against Adham Mohammed Ali Awad

The resultant confusion was on full display in August, when three rulings were made. In the first, on August 12 (PDF), Judge James Robertson denied the habeas appeal of Adham Mohammed Ali Awad, a Yemeni prisoner, even though he conceded that “The case against Awad is gossamer thin,” and added, “The evidence is of a kind fit only for these unique proceedings and has very little weight.”

This was Robertson’s first habeas ruling, and in the hands of another judge, the ruling may well have tipped the other way. Certainly, the case was as “gossamer thin” as Robertson declared. Awad, who was just 19 years old at the time, was seized in Mirwais Hospital in Kandahar, Afghanistan in late 2001. According to his own account, he had “traveled to Afghanistan in mid-September 2001 in order to visit another Muslim country for a few months,” but in early November 2001 “was injured and knocked unconscious during an air raid while walking through a market in Kandahar.”

When he woke up in the hospital, he said, he discovered that he had lost his right foot, “that he was heavily medicated, floated in an out of consciousness, slept constantly, and could barely sit up.” He added that he “remained in this condition until his capture.”

Over the long years of his detention, as I explained in a profile of Awad last year, the U.S. authorities have claimed that he “stated he went to Afghanistan to become a fighter,” have suggested that he received injuries “in a two-car collision, involving ten individuals, while trying to avoid coalition air strikes,” and have also claimed that he, “along with seven other Arabs suspected of being al-Qaeda, were reportedly armed with weapons and used a hospital as a safe haven to elude coalition forces.”

These allegations, which surfaced in the Unclassified Summary of Evidence during Awad’s Combatant Status Review Tribunal at Guantánamo in 2004, formed the basis of the government’s case in court, even though, by 2006, in a review board at Guantánamo, the authorities had dropped all mention of the car crash, Awad’s supposed al-Qaeda associates, and his involvement in the siege, and, instead, suggested only that he was “captured on 2 November 2001 when he was injured near the airport in Kandahar.”

Judge Robertson perceived that Awad’s case “relie[d] mostly on weaknesses and holes in the government’s evidence,” which, as noted above, he was swift to condemn for its “gossamer thin” nature, but although he noted that the government “relie[d] mostly on newspaper articles” for background information about the hospital siege, which took place from early December to late January and ended with the deaths of the seven al-Qaeda fighters, and although he gave “no weight” to the “only first hand evidence offered by the government” — an interview with a man (whose name was redacted), who “claimed that he led the group that had taken Awad into custody”, whose report he dismissed as “internally inconsistent” and “completely unreliable” — he nevertheless concluded that “it appears more likely than not that Awad was, for some period of time, ‘part of’ al-Qaeda.”

To reach this conclusion, Judge Robertson was required to accept the government’s supposed evidence that Awad had attended Osama bin Laden’s Tarnak Farms training camp, an allegation that was based on a variation of his name, “Waqas” (he was sometimes listed by the Pentagon as Waqas Mohammed Ali Awad), being found on a list associated with the camp.

Although Judge Robertson refused to accept the government’s claim that Awad trained at the camp, finding it to be “unsupported,” noting, “we do not know the purpose of the list or when it was written,” and adding that the translator “claimed only that it was ‘possibly’ a list of trainees,” he returned to the allegations of Awad’s presence at Tarnak Farms to substantiate his conclusion that “it appears more likely than not that Awad was, for some period of time, ‘part of’ al-Qaeda.”

He noted that the names of the other men killed in the siege and Awad’s purported alias, “Waqas,” were closely grouped together on the list, and inferred from statements provided by another man who was present in the hospital and was also taken to Guantánamo (a Saudi released in 2007) that Awad and “Waqas” were one and the same.

Missing throughout all this analysis was any reflection on whether it was true that Awad only arrived in Afghanistan in mid-September 2001, and if, therefore, it was likely that he would have been immediately recruited for training at an advanced facility in the few weeks before the US-led invasion began, which strikes me as close to impossible. Also missing was any recognition that, as the government claimed in 2006, Awad was seized before the siege began, or, if that was a typographical error (as was indicated in court), that he was injured on Dec. 2, when the siege began, and that he was booted out of the hospital by the al-Qaeda fighters inside (or, as the government put it, “Awad’s comrades gave him up because they could not care for his severely injured [redacted]“).

Even with the government’s spin, there is something suspicious about would-be al-Qaeda martyrs sending one of their own to be captured, rather than staying and being martyred instead, but rather than examining these questions, Judge Robertson ruled that “At the very least Awad’s confessed reasons for traveling to Afghanistan and the correlation of names on the list [redacted] clearly tied to al-Qaeda make it more likely than not that he knew the al-Qaeda fighters at the hospital and joined them in the barricade.”

Quite where this leaves Awad is unknown, as the government does not seem to have enough evidence for a trial, and may, therefore, consider him a suitable candidate for its proposal to legislate for new powers of “indefinite detention,” to be reviewed by Congress and judges, which are supposed to provide an acceptable veneer to what is nothing more than a continuation of the Bush administration’s despised policies.

To this end, what may disappoint Awad the most is that, although Judge Robertson described him as a “marginally literate” young man, who “has spent more than seven of his twenty-six years — since he was a teenager — in American custody,” and, moreover, stated, “It seems ludicrous to believe that he poses a security threat now,” he added, limply, “but that is not for me to decide.”

In doing so, he ignored an earlier ruling (PDF), in which Judge Ellen Segan Huvelle noted that the Authorization for Use of Military Force (the legislation passed in the week after 9/11 which authorized the President “to use all necessary and appropriate force” against those “he determines” to have been involved in any way in the 9/11 attacks) “does not authorize the detention of individuals beyond that which is necessary to prevent those individuals from rejoining battle,” and ignored another ruling, in the case of a Syrian prisoner, Abdul Rahim al-Ginco, in which Judge Richard Leon ruled that whatever relationship al-Ginco may have had with al-Qaeda was “utterly destroyed.”

In al-Ginco’s case, this was because he had been tortured by al-Qaeda as a spy, but it was also noteworthy that Judge Leon stated that al-Ginco’s prior experience of al-Qaeda — “five days at a guest house in Kabul combined with eighteen days at a training camp — does not add up to a longstanding bond of brotherhood.”

Instead, however, Judge Robertson raised and dismissed a little-voiced question — whether it is appropriate to continue holding men who were seized in connection with a specific conflict (the overthrow of the Taliban and the installation of a new government, which came to an end years ago) — by stating, “Combat operations in Afghanistan continue to this day and — in my view — the President’s ‘authority to detain for the duration of the relevant conflict’ which is ‘based on long-standing law-of-war principles’ has yet to ‘unravel.’”

Mohammed al-Adahi and the al-Qaeda mirage

One judge who may have dealt more robustly with the “gossamer thin” evidence in the case of Adham Mohammed Ali Aawad is Judge Gladys Kessler, who, on August 21, granted the habeas appeal of Mohammed al-Adahi, a Yemeni who was 39 years old when he was seized on a bus in Pakistan (PDF). I described the broad outline of al-Adahi’s story in my book The Guantánamo Files as follows:

Married with two children, al-Adahi had never left the Yemen until August 2001, when he took a vacation from the oil company where he had worked for 21 years to accompany his sister to meet her husband … As he told his tribunal, “In Muslim society, a woman does not travel by herself.” After flying to Karachi, they traveled to Kandahar, where his brother-in-law was living. Al-Adahi stayed in Afghanistan for a month, “to ease his sister’s transition to life in Afghanistan,” and then made his way back to Pakistan, where he was arrested by soldiers while traveling on a bus. “They were capturing everybody with Arabic features,” he said. “I gave them my passport and that shows that I’m an Arab. They said, ‘why don’t you follow us, we need you at the Center.’ From that point on they brought us over here.”

However, while this was a fair précis, the government believed that it could establish a case that al-Adahi was actually a member of al-Qaeda, for a number of reasons that appeared, on the surface at least, to be plausible. As Judge Kessler explained, “There is no question that the record fully supports the Government’s allegation that Petitioner had close familial ties to prominent members of the jihad community in Afghanistan.”

The brother-in-law, it appears, was “a prominent man in Kandahar,” who had fought the Russians in Afghanistan, and Judge Kessler also noted that it was “undisputed” that Osama bin Laden “hosted and attended [the] wedding reception in Kandahar,” that al-Adahi “was briefly introduced to bin Laden,” and that “A few days later, al-Adahi met bin Laden again and the two chatted briefly about religious matters in Yemen.”

However, Judge Kessler refused to accept the government’s contention that these familial ties and the two brief meetings with bin Laden proved that al-Adahi “was part of the inner circle of the enemy organization al-Qaeda,” and accepted instead that there was no reason to doubt that al-Adahi’s visit was, as he stated, to accompany his sister to her wedding (and also to receive medical treatment for a back problem). She noted also that he had not tried to hide the fact that he had met bin Laden, and that he had, in addition, stated that it was “common for visitors to Kandahar” to do so.

As in May, when she granted the habeas appeal of another Yemeni, Alla Ali Bin Ali Ahmed, Judge Kessler had serious doubts about the manner in which the government established its case, which focused primarily on its claim that its various allegations should be considered as part of a “mosaic” of intelligence, to be viewed as a whole, rather than being examined in isolation.

Dismissing this approach, she stated that, although she understood that “use of this approach is a common and well-established mode of analysis in the intelligence community … at this point in this long, drawn-out litigation the Court’s obligation is to make findings of fact and conclusions of law which satisfy appropriate and relevant legal standards as to whether the Government has proven by a preponderance of the evidence that the Petitioner is justifiably detained.”

She proceeded to stress that “the mosaic theory is only as persuasive as the tiles which compose it and the glue which binds it together,” and that, “if the individual pieces of a mosaic are inherently flawed or do not fit together, then the mosaic will split apart.” Having dealt with the government’s first “tile,” she methodically dismantled the others, refuting a claim that al-Adahi had “stayed at al-Qaeda and/or Taliban guesthouses during his stay in Afghanistan,” and demolishing the government’s “central accusation”: that al-Adahi’s brief attendance at al-Farouq (the main training camp for Arabs, associated with Osama bin Laden in the years before 9/11) helped to confirm that he occupied “some sort of ’structured’ role in the ‘hierarchy’ of the enemy force.”

Noting his claim that he “pursued training at al-Farouq to satisfy ‘curiosity’ about jihad, and because he found himself in Afghanistan with idle time,” she took particular exception to the government’s claim because, “After seven to ten days at al-Farouq, the camp leaders expelled al-Adahi for failing to comply with the rules.”

Referring, incredibly, to the case of Abdul Rahim al-Ginco, the Syrian who was tortured by al-Qaeda (and whose case the Justice Department had pursued in the habeas courts until it was thoroughly humiliated by Judge Richard Leon in June), the government’s lawyers attempted to claim that, because al-Adahi was not imprisoned and tortured as a spy after he was expelled (like al-Ginco), this proved that he was being given preferential treatment because of his ties to al-Qaeda.

However, Judge Kessler concluded instead that it was more likely that he “was being protected by a concerned family member” with considerable influence, and that “it most certainly is not affirmative evidence that al-Adahi embraced al-Qaeda, accepted its philosophy, and endorsed its terrorist activities.”

She was also dismissive of an allied claim — that al-Adahi was an instructor at al-Farouq in February 2000 — noting that the only source for this allegation was another prisoner at Guantánamo, for whom “the record contains evidence that [he] suffered from ’serious psychological issues,’” and dismissed another claim — that al-Adahi was a bodyguard for bin Laden — by pointing out that this claim had been made by another prisoner who “suffers from serious credibility problems that undermine the reliability of his statements.”

It seems probable, from references to a “report of torture by the Taliban” in the case of this witness, that he was Abdul Rahim al-Ginco, who, as Judge Kessler noted, admitted in August 2005 that he had “lied in the past.” She also noted that “interrogators had expressed concern that he was being manipulated by another detainee,” and quoted from a report stating that “before being placed next to that detainee [he] had never made any of the claims that he made to interrogators, including the accusation against al-Adahi.”

With the bulk of the government’s claims dismissed, it remained only for Judge Kessler to destroy the rest of the “mosaic” by noting that, with reference to the rest of al-Adahi’s time in Afghanistan after being expelled from al-Farouq, it was “only speculation” on the part of the government that injuries he received to his arm and leg in Kandahar were the result of combat, and not, as he stated, because of a motorcycle accident.

She also pointed out that, although the government attempted to pin “associational evidence” of militancy on a claim that al-Adahi “was captured while traveling in the company of Taliban fighters” on a bus in Pakistan, the only source for this was something al-Adahi himself had been told after his capture, when he “heard that there were members of the Taliban on the bus.”

Noting, in addition, that he was “unarmed” at the time of his capture, she concluded that “He appeared to be attempting to escape the chaos of that time by any means he could,” and granted his habeas appeal (although, as with all the cases of prisoners whose habeas appeals have been granted, the ruling provides no guarantee that he will actually be released).

Fawzi al-Odah: the Kuwaiti who trained for one day

On August 24, the government secured another shallow victory when Judge Colleen Kollar-Kotelly denied the habeas petition of Fawzi al-Odah, a Kuwaiti prisoner, agreeing with the government that it was “more likely than not” that he “became part of Taliban and al-Qaeda forces in Afghanistan” (PDF). Judge Kollar-Kotelly’s ruling was based on a dubious assemblage of information that relied more on inconsistencies in al-Odah’s account of his activities than it did on anything resembling concrete evidence, as she herself admitted, when she wrote that there were “significant reasons why the Government’s proffered evidence may not be accurate or authentic.”

She explained that some of it was produced “in circumstances that have not allowed the Government to ascertain its chain of custody, nor in many instances even to produce information about the origins of the evidence,” that other evidence was “based on so-called ‘unfinished intelligence,’ information that has not been subject to each of the five steps in the intelligence cycle (planning, collection, processing, analysis and production, and dissemination),” and that other evidence was “based on multiple layers of hearsay (which inherently raised questions about reliability), or is based on reports of interrogations (often conducted through a translator) where translation or transcription mistakes may occur.”

The basic facts of the case, as I explained in an article for the BBC’s website in December 2007, are as follows. Al-Odah, a 24-year old primary school teacher, whose father, a retired air force pilot, fought with US forces during the Gulf War in 1991,

took a short holiday from work and traveled to Afghanistan in August 2001 to teach the Koran and provide humanitarian aid. This was something he had done before, in other countries, and his family had had a history of providing humanitarian aid, establishing libraries and wells in various countries in Africa.

After establishing contact with the Taliban, which he said “was necessary because that was the government in Afghanistan at that time,” Mr. Odah said he had been “touring the schools and visiting families,” teaching the Koran and handing out money, until his activities had been curtailed following 9/11.

He said that in Kandahar the Taliban representative “told me that was a dangerous place because it was the capital for the Taliban,” and had advised him to go to Logar, in the east of the country, where he had stayed with a family for a month, and left his passport and belongings for safekeeping. “If the Afghans saw I had a passport indicating I was an Arab, and they saw the money and the camera I had, I would have been killed,” he added.

He had then moved to Jalalabad, where he had stayed with another family, who had given him an AK-47 assault rifle to protect himself, Mr. Odah said. He had then joined other people crossing the mountains to Pakistan, where he had handed himself in to the border guards, he added. Mr. Odah said he expected to be escorted to the Kuwaiti embassy, but had instead been handed over to US forces.

In dissecting al-Odah’s story, Judge Kollar-Kotelly took exception to apparent inconsistencies in his account of his journey to Afghanistan, suggestions that he had lied about his plans to teach, and about the length of time he intended to stay. She concluded, by comparing his route — to Dubai, and then to Karachi, Quetta, Spin Boldak and Kandahar — with the same route taken by jihadists that the record “supports a reasonable inference that al-Odah may have also been traveling to Afghanistan to engage in jihad, and not to teach the poor and needy for two weeks.”

She followed up by casting doubts on his claim that he innocently “sought to contact a Taliban official upon reaching Afghanistan and that he subsequently moved around the country at the direction of this official,” and on his explanation that he visited a training camp “supervised by the Taliban, where “he took one day of training on an AK-47 rifle.” Following the government’s lead, she suggested that it was “more likely than not” that the camp was in fact al-Farouq, and that al-Odah arrived there on September 10, 2001, the day before the 9/11 attacks, when the camp was closed down.

She also took exception to al-Odah’s apparent inability to explain why he had not left Afghanistan after the 9/11 attacks, why there was at least a month’s gap in his account of what happened afterwards, and why, three months after the attacks, he was captured, armed with an AK-47, having crossed the border into Pakistan from the Tora Bora region (where al-Qaeda and the Taliban had been engaged in combat with Afghan and US forces), in the company of a group of armed men who, according to “credible evidence” provided by the government, included one man “who had substantial ties to al-Qaeda.”

To be fair, it was understandable that Judge Kollar-Kotelly drew the inferences she did from the information provided, as her summing up made clear, when she explained that al-Odah “has admitted that he sought to meet with a Taliban official upon his arrival in Afghanistan; that he was subsequently brought by a Taliban official to a Taliban-operated training camp near Kandahar, Afghanistan; that he took one day of training with an AK-47 at this camp: that the Taliban official sent him to stay with an associate in Logar, Afghanistan, after September 11, 2001; that he surrendered his passport and other possessions to this individual; that he met with individuals who were armed and appeared to be fighters; that he accepted an AK-47 from these individuals; and that he traveled with his AK-47 into the Tora Bora mountains, remained there during the battle of Tora Bora, and was captured shortly thereafter by border guards while still carrying his AK-47.”

From this outline of events, the government certainly had a stronger case than it did with Adham Mohammed Ali Awad, but even if this analysis is correct, the end result is that, nearly eight years after the 9/11 attacks, the United States is still asserting that it has the right to hold a young man who spent just one day at a training camp, who did not flee Afghanistan after the 9/11 attacks (perhaps because he feared reprisals if he was found escaping), who traveled with other men to Kabul, and then to Logar and then to Tora Bora and his eventual capture, with no evidence that he ever used the weapon he was given, and no evidence that his training involved anything more than firing a few rounds from an AK-47 in a practice session.

The long shadow of Salim Hamdan’s freedom

Back in January, when Judge Leon refused the habeas appeal of Ghaleb al-Bihani, a Yemeni who had worked as a cook for Arab forces supporting the Taliban, I made a comparison with the case of another prisoner, Salim Hamdan, which demonstrated to me that, although justice was finally within reach for some of the prisoners at Guantánamo, seven years after the prison opened, it was both farcical and unjust that Hamdan, a man who had worked as a driver for Osama bin Laden, had been tried in a Military Commission in which he was convicted of material support for terrorism, had served a five-month sentence delivered by a U.S. military jury, and was now a free man in Yemen, while al-Bihani, who had never even met bin Laden, and who had, instead, worked as a cook before the 9/11 attacks and had subsequently failed to teleport himself out of the country after the US-led invasion began, continued to languish in Guantánamo, with no end to his detention in sight.

As the eighth anniversary of the 9/11 attacks approaches, I, like all those who oppose Guantánamo and everything it stands for, still hope that the small number of prisoners involved in the attacks, or in other terrorist attacks against the U.S., can be brought to justice, but I fail to see how rulings like those delivered last month in the cases of Adham Mohammed Ali Awad and Fawzi al-Odah contribute to that end.

I believe that, with just four months to go until President Obama’s deadline for closing Guantánamo expires, all concerned would do well to direct their attention towards the few dozen prisoners at Guantánamo who are alleged to have been directly involved in terrorism, and to stop trying to defend the detentions of all the other men still held; men who, at best, were foot soldiers in a specific conflict that, in contrast to Judge Robertson’s words, came to an end no later than November 3, 2004, when Hamid Karzai was elected as the President of post-Taliban Afghanistan.

When Salim Hamdan was freed from Guantánamo, I wrote that his release spelled the end of the Bush administration’s justification for holding prisoners who had no meaningful connection to al-Qaeda or international terrorism. Ten months on, I stand by those words, and note that, although judges have now granted the habeas appeals of 29 of the 36 prisoners whose cases they have considered, nothing about the cases of the other seven men prevents Hamdan’s freedom from casting a longer and longer shadow over their continued detention.

Andy Worthington, a regular contributor to The Public Record, is the author of The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison and the definitive Guantánamo prisoner list, published in March 2009. He maintains a blog at andyworthington.co.uk.

Spencer Ackerman has looked at the possibility that former SERE psychologist James Mitchell wrote the report, and the conflict of interest that arises from having the interrogator/torturer write the report upon which the approach to the subject will be based. While it’s a reasonable guess that Mitchell wrote the evaluation, I’m going to proceed as if I don’t know who wrote it.

Marcy Wheeler wrote a piece examining questions regarding the date of the evaluation (the copy we have was sent to John Yoo on July 24, 2002), the failure to mention Abu Zubaydah’s head injury, and the report’s claims that he allegedly wrote the Al Qaeda interrogation resistance manual. Hopefully, this article will contribute some plausible answers.

Why Was the Evaluation Written?

Every psychological evaluation has a presenting problem or reason for referral, e.g., does this child have a learning disability? is this patient psychotic? etc.

Regarding Abu Zubaydah, one would presume the presenting question most likely was, what psychological strengths or weaknesses does this person have that we can exploit in our interrogation cum torture plan? Unfortunately, numerous parts of the released assessment have been redacted, including its closing paragraphs, which is where one would find the concluding recommendations. In any case, we’ll see that the report appears to lack a presenting question, and that the recommendation is a foregone conclusion.

From internal and convergent evidence, it appears the recommendations included higher levels of coercive interrogation, including waterboarding. The date on the cover sheet of the report, addressed to John Yoo, July 24, 2002, is the same date that the Office of Legal Council gave oral approval for use of Enhanced Interrogation Techniques (EIT), including waterboarding (H/T Marcy Wheeler). The OLC memo of August 1 states that CIA Acting General Counsel John Rizzo had said that Zubaydah had become “accustomed to a certain level of treatment,” and CIA wanted to enter an “increased pressure phase.” (We’ll see that CIA had been pushing this line since at least mid-May.)

In any case, it was around late July or early August that the waterboarding of Zubaydah began in earnest, partial drowning, or waterboarding Abu Zubaydah 83 times. Towards the end of the psychological evaluation, less its last redacted paragraphs, the author — and it was an Agency or Agency contract psychologist, since only psychologists write these reports (and it was likely either James Mitchell or Bruce Jessen, who arrived in Thailand in July) — notes the following, allowing that Zubaydah is “well-versed” in Al Qaeda resistance techniques (emphasis added):

[redacted] subject believes in [sic] the ultimate destiny of Islam is to dominate the world. He believes that global victory is inevitable. Thus, there is the chance he could rationalize that providing information will harm current efforts but will represent only a temporary setback.

The remaining page or so of the report is redacted, but likely represents the work’s loaded conclusion, i.e., that Zubaydah may yet give up more information or cooperation if the amount of coercion (torture) is increased. The likely recommendation: waterboarding. And in fact, the legal memo authorizing the latter followed within a week after the evaluation landed on Yoo’s desk; the oral approval appears to have come even days earlier.

It is clear the evaluation was written specifically to get permission for waterboarding, and not to undertake a serious psychological evaluation of the prisoner. The report lacks details related to relevant past history that any psychologist would find important in a psychological evaluation, e.g., the quality of his family relationships, the existence of prior traumas, his actual work and school history, recent medical traumas or injuries, etc.

The man presented in the report, in a most amateurish fashion, cannot be in fact a real person. They present him as a superman-terrorist (he wrote the Al Qaeda resistance manual, ran the Al Qaeda training camps, was their “coordinator” of foreign communications, was their chief of counterintelligence, “no one came in and out of Peshawar, Afghanistan without his knowledge and approval,” but still had time to be involved in every major Al Qaeda operation, and still had time to direct the start-up of an Al Qaeda cell in Jordan!). Additionally, he was supposed to have developed the Al Qaeda interrogation resistance techniques (a claim later contradicted in the report — see below), and taught them to many others. A real busy guy.

The discussion of his personality at times sounds like it was cribbed from a printout of a computerized personality assessment. There are also a number of contradictions in the portrayal, e.g., Zubaydah “wrestles” with idea of killing civilians, but “celebrated” 9/11; he has the discipline, drive, creativity and pragmatism of a good leader, but is private and vigilant of others’ intentions, and doesn’t trust people, and oh, yes, wants to be one of the guys. Supposedly he felt anything outside of jihad was “silly.” But at the same time he chafed against the constrictions of “radical salafist environments” and was very independent minded.

Only for a moment does what is probably the real Abu Zubaydah emerge from the report: a man who wanted to go to college, become a computer expert or engineer, who felt homesick, who wanted a traditional career and family life.

When Was the Evaluation Written?

The report was almost certainly written in July 2002, not long before it was passed to the Office of Legal Counsel (OLC). It likely was part of a packet of material used to present the “Enhanced Interrogation Techniques,” including waterboarding, as potentially “safe” to use.

There are plenty of indications in the report that Zubaydah had been under observation and interrogated (tortured) for some time prior to the drafting of the report (emphasis added).

Of particular note has been subject’s ability to manage his mood and emotions during detention. [About four lines redacted] In addition, he showed strong signs of sympathetic nervous system arousal (possibly fear) when he experienced the initial “confrontational” dislocation of expectation during an interrogation session…. As has been observed during his recent detention, he was able to quickly bounce back from these most disconcerting moments and regain an air of calm confidence, and strong resolve in not parting with any other threat information.

By sympathetic nervous system arousal, the report’s author means rapid breathing and heartbeat, dilated pupils, raised blood pressure, a spike in adrenaline, muscle tension, increased sweating — noting “fear,” possibly Zubaydah experienced a panic attack.

What could have brought about this “‘confrontational’ dislocation”? (The term “dislocation of expectation” is commonly used in UK Special Forces and SERE training. H/T cinnamonape at Firedoglake, and also see usage at this link.)

Most likely it was the appearance of James Mitchell and his SERE-style torture methods, replacing the early “rapport”-based interrogation of Ali Soufan and the FBI interrogation team. What Mitchell or whomever is saying here is that when things got rough, Zubaydah was temporarily shaken and “talked” more, subsequently regaining his “calm” and not producing more of what the torturers wanted.

Mitchell arrived in Thailand sometime in April 2002, and FBI interrogator Ali Soufan left in mid-May, in protest over the implementation of Mitchell’s “learned helplessness” techniques. Already, Zubaydah had been subjected to forced nudity, sensory overload, shackling and sleep deprivation (and I’d guess, dietary manipulation, i.e., slow starvation), and perhaps other cruel treatment. (Soufan admitted that the FBI interrogation did not meet Geneva Common Article Three standards, either.) If my thesis is correct, the “dislocation” took place sometime before mid-May.

This appears to be corroborated by the fact that it was in mid-May, according to a narrative released by the Senate Intelligence Committee (H/T again to Marcy Wheeler) that the CIA first proposed ratcheting up the pressure on Zubaydah, including the use of the waterboard.

According to CIA records, because the CIA believed that Abu Zubaydah was withholding imminent threat information during the initial interrogation sessions, attorneys from the CIA’s Office of General Counsel met with the Attorney General, the National Security Adviser, the Deputy National Security Adviser, the Legal Adviser to the National Security Council, and the Counsel to the President in mid-May 2002 to discuss the possible use of alternative interrogation methods that differed from the traditional methods used by the U.S. military and intelligence community. At this meeting, the CIA proposed particular alternative interrogation methods, including waterboarding.

The frustration with Zubaydah — who by mid-May had recovered from his “dislocation” experience (or conversely, had simply nothing more to say, or was already beyond reasonable functioning) — places the portion of the psych evaluation narrative on this point a minimum of two months before the report was presumably written.

It also means the report could not have been written before mid-May. If the psychological evaluation was written to assess Abu Zubaydah’s ability to handle interrogation, or to assess what types of interrogation techniques might be most effective, then it would have been written much earlier. It looks as if they were interested in running an experiment, trying out certain (SERE) techniques, irregardless of the actual psychological characteristics of the individual involved. That’s why there was no earlier evaluation. The only purpose for this evaluation was CIA concern that they would not be caught doing something “illegal,” i.e., to cover their asses.

John Yoo’s July 14, 2002 letter to John Rizzo, “about what is necessary to establish the crime of torture,” may have been the impetus for the production of the “psychological evaluation.” Yoo pontificates about his  insistence that the crime of torture carry the “specific intent” to induce severe physical pain/suffering or prolonged mental harm. One way, Yoo says, that such intent can be reasonably rejected, and torturers protected from prosecution,  is to produce expert evidence “that the conduct would not result in prolonged mental harm”:

Thus, if an individual undertook any of the predicate acts for severe mental pain or suffering, or did so in the good faith belief that those acts would not cause the prisoner prolonged mental harm, he would not have acted with the specific intent necessary to establish torture. If, for example, efforts were made to determine what long-term impact, if any, specific conduct would have and it was learned that the conduct would not result in prolonged mental harm, any actions taken while relying on that advice would have be [sic] undertaken in good faith. Due diligence to meet this standard might include such actions as surveying professional literature, consulting with experts, or evidence gained from past experience.

One such “effort” was the “psychological evaluation,” which supposedly would show that the superman terrorist Zubaydah could mentally withstand waterboarding. The report was sent to Yoo (probably forwarded by Rizzo) ten days after the above letter. While inferential, it seems plausible, if not likely, the report was written for this purpose between July 14 and July 24, 2002. Even so, the plan to waterboard Zubayda had already been in the works since mid-May.

Abu Zubaydah and the Al Qaeda Resistance Manual

The contradictions regarding the portrayal of Abu Zubaydah’s life, noted in part one of this article, are most pronounced around his relationship to the vaunted “resistance” techniques of Al Qaeda fighters. The report retails alleged claims that Zubaydah actually wrote the manual. At another point, it states he is “familiar and probably well versed” in Al Qaeda resistance techniques (emphasis added). It’s easy to forget today that Zubaydah was later proven to never have been an Al Qaeda or Taliban member, nor “privy to the information the government alleged he had provided” (H/T Gitcheegumee).

As Marcy Wheeler has pointed out, the claims regarding Abu Zubaydah and the Al Qaeda manual coincide with the early stages of the torture program, when a Mitchell and Jessen review of said manual was used as a cover for the experiment of reverse-engineering SERE techniques into a physical torture program to use on supposed Al Qaeda prisoners.

As a recent article of mine pointed out, the ostensible Al Qaeda manual likely was part of a cover story originating with CIA/Special Operations officers, operating on orders from Cheney’s office, and sent down through the JPRA command, who used Mitchell and Jessen, and possibly other outsourcing companies, for implementation of a new torture program. It didn’t hurt that they all planned to make a lot of money in the process.

Once the torture program was well under way, the Al Qaeda manual meme faded away, and JPRA insinuated itself as the new, go-to agency for “war on terror” interrogators. In the end, a turf war ensued, with JPRA, Special Operations command, DIA and super-secret covert action arm, the Strategic Support Branch, on one side, and FBI, other existing intelligence groups (like the Naval Criminal Investigative Service) and, to a certain extent CIA, on the other. None of these groups really opposed all abusive interrogations (even the FBI had dirty hands), but were quick to criticize the ineffectiveness of the other group’s protocols.

The conflict still continues today. The latest plan of the Obama administration, introduced by its Interrogation Task Force just last Monday, to create an omnibus group of interrogation professionals and place its center at the FBI, represents a partial defeat of sorts for those who placed their bets on the “learned helplessness” paradigm. But it does not represent the end of torture, only the return to the CIA-oriented program based on isolation, sensory deprivation/overload, sleep deprivation, and fear. The latter are enshrined in Appendix M of Army Field Manual 2-22.3, the new “golden standard” for U.S. interrogations.

Did Abu Zubaydah write the Al Qaeda resistance manual or not? Almost certainly not, but the report’s own contradictions on this point are telling, as it points to carelessness in writing the report, as the product itself was not important, only its conclusion: Zubaydah should be waterboarded. The purpose of the report was to provide a guarantee — because a psychological professional signed off on it! — that it is “safe”.

This so-called “evaluation” is obscene, unprofessional, and I’m ashamed that my profession, which has helped so many people, has been dragged into the worst sort of crimes and unethical, illegal behavior. I support the call of Physicians for Human Rights for Congress and the White House to convene a non-partisan commission to investigate the role of medical and psychological professionals in “the design, justification, supervision, and use” of the torture program, and to prosecute those involved.

Originally published in slightly different form as a two-part series (one and two) at Firedoglake.com. This version contains some editorial corrections and additional material.

Jeffrey Kaye, a psychologist living in Northern California and a regular contributor The Public Record, has been blogging at Daily Kos since May 2005, and maintains a personal blog, Invictus. E-mail Mr. Kaye at sfpsych at gmail dot com.

Khalid Shaikh Mohammed, the alleged mastermind of the 9/11 attacks, was photographed shortly after his capture during a raid in Pakistan on March 1, 2003.

The lead story in today’s Washington Post, headlined “How a Detainee Became An Asset,” provides a one-sided and distorted account of the torture and abuse of Khalid Sheikh Muhammad (KSM) and demonstrates the urgent need for a blue ribbon bipartisan commission to create a comprehensive and authoritative narrative of the eight years of misgovernment of the Bush administration.

The prosecution of low-level CIA officials and government contractors for resorting to torture and abuse beyond the sordid guidelines of the Justice Department will allow the major players of the Bush administration as well as the lawyers of the Justice Department to escape retribution and judgment. Since President George W. Bush and Vice President Dick Cheney would never be held accountable, the entire nation would be better served by a full understanding of the war crimes that they authorized in our name.

Today’s article argues that the techniques of torture and abuse turned KSM into the CIA’s “preeminent source” on al-Qaeda. Citing an intelligence assessment by the CIA’s Counterterrorism Center, which was presumably prepared for Vice President Cheney, the Post article argues that waterboarding was the key to breaking KSM’s spirit and eliciting valuable intelligence on the “inner workings of al-Qaeda and the group’s plans, ideology, and operatives.”

This view contradicts the findings of the authoritative 2004 report on detainees and interrogations of the Office of the Inspector General (OIG) as well as the personal views of the Inspector General (IG) himself.

As the Post acknowledges, John Helgerson, the former IG who commissioned the 2004 study, said that the work of the OIG did not permit “definitive conclusions about the effectiveness of particular interrogation methods.” Helgerson acknowledged that waterboarding and sleep deprivation “elicited a lot of information,” but the OIG didn’t “do a careful, systematic analysis of the use of particular techniques with particular individuals and independently confirm the quality of the information that came out.”

As a result, Helgerson recommended (but the Post article chose to omit) the creation of an independent panel of experts to “systematically evaluate the quality of the intelligence gained as related to the specific techniques used, or not used, in particular cases. This would clarify the value of the information and the utility of various approaches.” This recommendation was one of ten recommendations in the 2004 IG report; unfortunately, the Justice Deparment (presumably due to the importuning of the CIA) chose to redact all ten IG recommendations from the declassified report.

There is ample testimony to challenge the view that torture and abuse worked. There were FBI agents at the site where KSM was held who testified that torture and abuse didn’t lead to eliciting valuable intelligence. And a CIA operative has noted that KSM was willing to talk before being tortured, noting that “tea and crumpets” were all that was needed. The former head of U.S. Army intelligence, Gen. John Kimmons, remarked in 2006 that “No good intelligence is going to come from abusive practices. I think history tells us that.

I think the empirical evidence of the last five years, hard years, tells us that.” And more recently, several veteran FBI and military interrogators called for an investigation of so-called “enhanced interrogation techniques (EIT),” because of their concerns about the legality, morality, and effectiveness of EITs.

It is important to remember that the 2004 IG report emphatically stated that the information elicited by torture and abuse “did not uncover any evidence that [any] plots were imminent.” Other CIA memoranda stated that information gained from detainees led to “arrests [that] disrupted attack plans in progress,” but did not attribute this information to the use of torture and abuse.

The IG study could not even determine if the 83 waterboardings given to Abu Zubaydah were the reason for his increased willingness to talk. The study noted, moreover, that torture was contrary to the Eighth Amendment against “cruel and unusual punishments;” the 1984 UN Torture Convention, which the United States took the lead in drafting and ratifying; and domestic law.

Finally, it is more important to remember that torture and abuse are evil.  Illegal, immoral, counter-productive, but most importantly evil. George Bush told a press conference in 2005 that “this country does not believe in torture,” but the fact is we conducted torture on those who were guilty and those who were innocent.

And Dick Cheney, who has fanatically been waging his own personal jihad in defense of torture and abuse, told Fox News in an interview that will air tomorrow that CIA interrogators were justified in exceeding even the broad authorizations provided by the Justice Department, suggesting that the ends justify the means. Perhaps the Washington Post could give front-page coverage to the 18-page memorandum that the CIA gave to the DoJ’s Office of Legal Counsel in 2004, which provides extraordinary details of the interrogations in plain, but sordid and sadistic, language.

Two years ago, then CIA director Michael Hayden released a collection of long-secret documents compiled in 1974 that detailed domestic spying, assassination plots, and other CIA misdeeds in the 1960s and early 1970s. In releasing the documents, known as the “family jewels,” Hayden told a group of historians who had been pressing for greater disclosure from the Agency, that the documents provided a “glimpse of a very different time and a very different agency.” He also stated that, when the government withholds information, myth and misinformation “fill the vacuum like a gas.”

In order to prevent the Washington Post and others from adding to the myths and misinformation of torture and abuse, it is time to appoint a blue ribbon commission to study all aspects of the CIA’s detentions and interrogations policies.

Melvin A. Goodman, a senior fellow at the Center for International Policy and adjunct professor of government at Johns Hopkins University, is The Public Record’s National Security and Intelligence columnist. He spent 42 years with the CIA, the National War College, and the U.S. Army. His latest book is Failure of Intelligence: The Decline and Fall of the CIA.