Correction/Update: This story reported that the suicides of three individuals in Glasgow were Kosovo nationals. Later reports have identified the individuals who died in the leap off the 15th story of an apartment building as Serguei Serykh, 43, his wife Tatiana and Mr. Serykh’s adult stepson. A BBC story on March 13 said the family had previously been granted political asylum in Canada, but had left after an some kind of dispute with authorities there. They had recently been denied an application for asylum in the UK, and on the day they died had received a letter that they would lose their apartment, although no order for removal had yet been filed. Extrapolating from a Globe and Mail report on March 10, it appears possible that Mr. Serykh suffered from a serious mental illness.

The suicides of these desperate individuals have brought organized protests in Scotland, with marchers calling for an end to the “enforced removal of refugee families,” according to the BBC report. A later article by the UK Guardian quotes the director of the Glasgow charity Positive Action in Housing, Robina Qureshi, as saying the family’s death could not be attributed to psychological issues, but UK asylum policy. “The Serykhs were considered credible in Canada,” Qureshi said. “Shouldn’t that be good enough for us? They were going to be out on the street, destitute. What would that do to your mental state?”

Jeffrey Kaye is a psychologist living in Northern California who writes regularly on torture and other subjects for The Public Record, Truthout and Firedoglake. He also maintains a personal blog, Invictus. His email address is sfpsych at gmail dot com

British resident Binyam Mohamed was tortured by the CIA while in Pakistani custody in April and May 2002. (Photo: art makes me smile; Edited: Jared Rodriguez / t r u t h o u t)

On February 10, the Court of Appeal brought to an end an 18-month campaign by foreign secretary David Miliband to prevent the publication of a short summary, prepared by two High Court judges, explaining how US agents had subjected the British resident Binyam Mohamed to what was described as “at the very least cruel, inhuman and degrading treatment,” and had provided this information to their British counterparts.

This was a major step towards holding government officials accountable for complicity in torture, but when a letter from Jonathan Sumption QC, acting for the government, was accidentally released to the media, it became apparent that, at Sumption’s request, a paragraph in the ruling, written by Lord Neuberger, the Master of the Rolls, had been removed. The paragraph in question was severely critical of the trustworthiness of the Security Services, and Sumption was concerned that it was “likely to receive more public attention than any other parts of the judgments.”

In a ruling today (PDF), the judges restored the paragraph, although they made it clear that no one had acted improperly, and that the government was perfectly entitled to ask for changes to be made to what was, at the time, a draft judgment. The judges wrote that they were concerned that “a damaging myth may develop that in this case a Minister of the Crown, or counsel acting for him, was somehow permitted to interfere with the judicial process. This did not happen, and it is critical to the integrity of the administration of justice that if any such misconception may be taking root is should be eradicated.”

Nevertheless, Lord Neuberger decided to restore his original paragraph, explaining that, although “Mr. Sumption’s concerns about the first draft paragraph 168 were justified,” these concerns were “to a significantly more limited extent than I had initially thought,” and that “it was right to revert to the first draft of paragraph 168.”

The restored paragraph is reproduced below, and the full, amended ruling can be found here:

168. Fourthly, it is also germane that the Security Services had made it clear in March 2005, through a report from the Intelligence and Security Committee, that “they operated a culture that respected human rights and that coercive interrogation techniques were alien to the Services’ general ethics, methodology and training” (paragraph 9 of the first judgment), indeed they “denied that [they] knew of any ill-treatment of detainees interviewed by them whilst detained by or on behalf of the [US] Government” (paragraph 44(ii) of the fourth judgment).

Yet, in this case, that does not seem to have been true: as the evidence showed, some Security Services officials appear to have a dubious record relating to actual involvement, and frankness about any such involvement, with the mistreatment of Mr Mohamed when he was held at the behest of US officials. I have in mind in particular witness B [the British agent who visited Mohamed while he was being held in Pakistan, under US supervision, in May 2002], but the evidence in this case suggests that it is likely that there were others. The good faith of the Foreign Secretary is not in question, but he prepared the certificates partly, possibly largely, on the basis of information and advice provided by Security Services personnel.

Regrettably, but inevitably, this must raise the question whether any statement in the certificates on an issue concerning the mistreatment of Mr Mohamed can be relied on, especially when the issue is whether contemporaneous communications to the Security Services about such mistreatment should be revealed publicly. Not only is there some reason for distrusting such a statement, given that it is based on Security Services’ advice and information, because of previous, albeit general, assurances in 2005, but also the Security Services have an interest in the suppression of such information.

Responses to the restoration of the paragraph were swift. Liberal Democrat foreign affairs spokesman Ed Davey said, “The implication that David Miliband had the wool pulled over his eyes is deeply embarrassing for the foreign secretary. However, the suggestion that he acted in good faith means the real questions need to be answered by others in Government. Did former Foreign Secretary Jack Straw sign off on the ‘coercive techniques’ referred to in the judgment?” Davey concluded by calling for an inquiry. “The suggestion that there were others in the security services involved in unacceptable practices makes the need for a full judicial inquiry irrefutable,” he said.

Cori Crider, the legal director of Reprieve, which has represented Binyam Mohamed since he was in Guantánamo, said, “The sun shone on open justice today. Throughout this process the judges have shown the utmost integrity and concern for the public interest — one hopes the UK justices’ brethren across the sea are taking notes.”

Kate Allen, the director of Amnesty International UK, also spoke out. “This whole affair has been bedevilled by attempts to block the truth about torture ever getting out,” she said, adding, “Today is another small victory against those who would like to keep these matters shrouded in darkness.”

To this I would add that the judges’ questions about the Security Services’ “dubious record” with regard to “frankness” concerning Binyam Mohamed should prompt a close examination of a story that emerged last year — but was little noticed at the time — indicating that the British government and the Security Services lied about not knowing what happened to Binyam Mohamed after his detention in Pakistan, when he was rendered by the CIA to Morocco.

This was outside the scope of the judicial review that led, finally, to the ruling by the Court of Appeal, but, as I explained in a series of articles last year — “UK Government Lies Exposed; Spy Visited Binyam Mohamed In Morocco,” “Government Bans Testimony On Binyam Mohamed And The British Spy,” and “What The British Government Knew About The Torture Of Binyam Mohamed” — it involves a Moroccan-born informer (a British resident identified as witness A), further revelations about witness B, revelations about unacknowledged visits to Mohamed while he was held in Morocco, where he was brutally tortured, and lies about the duration of the intelligence-sharing relationship between the US and the UK regarding Mohamed.

It’s time, I think, for another can of worms to be opened up to scrutiny.

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.

Photo/Wikimedia

The long-awaited report by the OPR (the Justice Department’s Office of Professional Responsibility) into the conduct of the lawyers in the OLC (Office of Legal Counsel), regarding their role in approving the use of torture, has finally been published (PDF).

The report largely focuses on two memos dated August 1, 2002, and a third dated March 14, 2003. Widely known as the “torture memos,” these notorious documents sought to redefine torture so that it could be used by the CIA (and by the US military in the March 2003 memo), and the report concludes that the primary author of the memos, John Yoo, an OLC lawyer who is now a law professor at Boalt Hall, the University of California’s School of Law in Berkeley, and the senior official who signed the August 2002 memos, Assistant Attorney General Jay S. Bybee, who is now a judge in the Ninth Circuit Court of Appeals, were guilty of “professional misconduct.”

As the report explained, in no uncertain terms:

Based on the results of our investigation, we concluded that former Deputy AAG John Yoo committed intentional professional misconduct when he violated his duty to exercise independent legal judgment and render thorough, objective, and candid legal advice.

We found that AAG Jay Bybee committed professional misconduct when he acted in reckless disregard of his duty to exercise independent legal judgment and render thorough, objective, and candid legal advice.

A footnote added, “Pursuant to Department policy, we will notify bar counsel in the States where Yoo & Bybee are licensed” — with the clear sub-text that these notifications would almost certainly lead to both men being disbarred, and that Bybee might find himself impeached. These actions might then have led to the possibility of prosecutions taking place for those who engineered America’s emergence, in the summer of 2002, as a nation that officially sanctioned the use of torture.

Unfortunately, as Newsweek reported three weeks ago, the devastating conclusions of the report — which took four years to complete — were swept aside by Associate Deputy Attorney General David Margolis, who downgraded the report’s conclusions. In a 69-page memo to Attorney General Eric Holder, dated January 5, 2010 (PDF), Margolis, a career official who has worked at the DoJ for 17 years and has a history of shielding officials from allegations of misconduct, asserted that Yoo and Bybee had only shown “poor judgment.” As a result, two slaps on the wrist are all that have emerged from an investigation into one of the darkest periods of modern American history.

This, of course, is disgraceful. One of the techniques approved by Yoo and Bybee was waterboarding, a form of controlled drowning that was referred to by the torturers of the Spanish Inquisition as “tortura del agua.” Even more significantly, both Barack Obama and Attorney General Eric Holder are on record as stating that waterboarding is torture. As I explained in an article last March:

In an interview with ABC News on January 11, [2009,] President-Elect Obama responded to a recent CBS interview with Dick Cheney, in which the then-Vice President had sounded his usual alarms abut the need for “extraordinary” policies to deal with terror suspects, by stating, “Vice President Cheney I think continues to defend what he calls extraordinary measures or procedures and from my view waterboarding is torture. I have said that under my administration we will not torture.”

Two days later, at his confirmation hearing, Eric Holder reinforced Obama’s opinion. Noting, as the New York Times described it, that waterboarding had been used to torment prisoners during the Inquisition, by the Japanese in World War II and in Cambodia under the Khmer Rouge, and adding, “We prosecuted our own soldiers for using it in Vietnam,” he stated unequivocally, “Waterboarding is torture,” and reiterated his opinion [on March 2, 2009], in a speech to the Jewish Council of Public Affairs in Washington. “Waterboarding is torture,” he said again, adding, “My Justice Department will not justify it, will not rationalize it and will not condone it.”

As a result of Margolis’ intervention, however, it now appears that, although torture was clearly authorized, no one is to be held accountable.

Moreover, although Margolis tried to claim in his memo that it was important to remember that Yoo and Bybee were working to prevent another major terrorist attack, which led him to claim,

Jay Bybee is now a federal judge on the U.S. Court of Appeals for the Ninth Circuit. Photo/Wikimedia

“Among the difficulties in assessing these memos now over seven years after their issuance is that the context is lost,” this is a pitiful argument. OPR lawyers are obliged to provide objective legal advice to the Executive branch on all constitutional questions, and, as OPR head Mary Patrice Brown explained in an earlier version of the report, “Situations of great stress, danger and fear do not relieve department attorneys of their duty to provide thorough, objective and candid legal advice, even if that advice is not what the client wants to hear.”

Even more significant is Mary Patrice Brown’s reference to “the client.” Although George W. Bush evades scrutiny in the report, former Vice President Dick Cheney is mentioned as putting “great pressure” on the OLC regarding revised memos issued in May 2005, and consultations with Cheney’s Legal Counsel, David Addington, and White House Deputy Counsel Tim Flanigan are mentioned in 2002. It is surely in the context of this relationship between the OLC and the White House that the report’s authors stated, damningly, “We also found evidence that the authors of the Bybee Memo and the Yoo Memo tailored their analysis to reach the result desired by the client.”

Anyone with any doubts regarding how closely Yoo worked with the White House should read Philippe Sands’ book Torture Team, which establishes that, following the 9/11 attacks, a “War Council” of lawyers met regularly to plan and implement the legal strategies they wanted for the “War on Terror” — largely without any outside consultation — and that this “War Council” consisted of just six men: Addington, White House Counsel Alberto Gonzales, Flanigan, Yoo, William J. Haynes II, the Pentagon’s General Counsel, and his deputy, Daniel Dell’Orto.

The report’s authors added that, “In many instances the authors [of the memos] exaggerated or misstated the significance of cited legal authority, failed to acknowledge or fairly present adverse authority, took inconsistent approaches to favor the desired result, and advanced convoluted or frivolous arguments.” They had no hesitation in concluding, as a result, that, when it came to tailoring their advice to a preordained outcome — rather than providing objective advice — Yoo and Bybee “violated their duty” under the OLC’s rules, “to provide a straightforward, candid and realistic assessment of the law.”

This was not all. Elsewhere in the report, the authors also expanded on the “numerous failures of scholarship and analysis,” which resulted in violations of the OLC’s rules. “While it may be that no single one of those failures, considered in isolation, would compel a finding of less than competent representation,” they wrote, “we concluded that the many instances of unsupported arguments, incomplete analysis, failure to discuss adverse authority, and mischaracterization of precedent compelled the conclusion that the authors of the Bybee Memo and the Yoo Memo failed to meet their obligations [under the OLC’s rules] and thus committed misconduct.”

Furthermore, the authors of the report also drew on damning criticisms made by Michael Mukasey, the Attorney General from November 2007 until Bush left office, and by other senior OLC officials, after Yoo and Bybee had left the department: in particular, Jack Goldsmith, the Assistant Attorney General from 2003 to 2004, who attracted the wrath of the White House by ordering the “torture memos” to be withdrawn; Daniel Levin, who served as Acting AAG from 2004 to 2005; and even Stephen Bradbury, the Acting AAG from 2005 to 2007 (and the senior appointed official overseeing the OLC until Bush left office), who managed to escape censure for his own role in the torture program, as the author of three vile memos endorsing “enhanced interrogation” in May 2005. As the authors explained, “Mukasey acknowledged that the Bybee Memo was ‘a slovenly mistake,’ even though he urged us not to find misconduct.” They also stated:

Our view that the memoranda were seriously deficient was consistent with the comments made by some of the former Department officials we interviewed, even though those individuals would not necessarily agree with some of our findings in this matter. Levin stated that when he first read the Bybee Memo, “[I had] the same reaction I think everybody who reads it has — ‘this is insane, who wrote this?’” Jack Goldsmith found that the memoranda were “riddled with error,” concluded that the key portions were “plainly wrong,” and characterized them as a “one-sided effort to eliminate any hurdles posed by the torture law.” Bradbury told us that Yoo did not adequately consider counter arguments in writing the memoranda and that “somebody should have exercised some adult leadership” with respect to Yoo’s section on the Commander-in-Chief powers [a section in which Yoo claimed that the President, as Commander-in-Chief, could override the federal law banning torture].

So what happens next? Both the New York Times and the Washington Post tried to claim at the weekend that the publication of the report spells the end of attempts to hold to account senior Bush administration officials and lawyers who turned American into a “Torture Nation.” The Post called it “the end of a 5-year internal battle” at the Justice Department, and the Times claimed that it “brings to a close a pivotal chapter in the debate over the legal limits of the Bush administration’s fight against terrorism and whether its treatment of Qaeda prisoners amounted to torture.”

This is nonsense, however. Margolis’ intervention may shield Yoo and Bybee in the short term, but he was unable to quash the report’s devastating findings, and it is clear that the DoJ will now find itself under close scrutiny. As soon as the report was issued, Rep. John Conyers (D-Mich.), the Chair of the House Judiciary Committee, who made the documents publicly available as soon as they were provided to him by the DoJ, stated:

For years, Bush administration officials who approved torture and abuse of detainees have hidden behind legal memos issued by the Department of Justice’s Office of Legal Counsel. Today’s report makes plain that those memos were legally flawed and fundamentally unsound. Even worse, it reveals that the memos were not the independent product of the Department of Justice, but were shaped by top officials of the Bush White House. It is nothing short of a travesty that prisoners in US custody were abused and mistreated based on legal work as shoddy as this. It is a blight on our national honor.

The Office of Legal Counsel has a proud tradition of providing independent, high-quality legal advice to the executive branch. Today’s report makes clear that the lawyers who wrote the torture memos did not live up that tradition, and dishonored their office and the entire Department of Justice. While the report concludes that the lawyers did not breach their minimum professional obligations, I certainly hold top lawyers at OLC to a higher standard than that, as all Americans should.

Conyers promised to hold hearings in the near future, but was beaten to it by Sen. Patrick Leahy (D-Vt.), of the Senate Judiciary Committee, who set a date for hearings on Friday (February 26). In a statement, Sen. Leahy explained:

The report from the Office of Professional Responsibility is a condemnation of the legal memoranda drafted by key architects of the Bush administration’s legal policy, including Jay Bybee and John Yoo, on the treatment of detainees. The deeply flawed legal opinions proffered by these former OLC officials created a “golden shield” that sought to protect from scrutiny and prosecution the Bush administration’s torture of detainees in US custody. In drafting and signing these unsound legal analyses, OLC attorneys sanctioned torture, contrary to our domestic anti-torture laws, our international treaty obligations and the fundamental values of this country.

I have serious concerns about the role each of these government lawyers played in the development of these policies. I have said before that if the Judiciary Committee, and the Senate, knew of Judge Bybee’s role in creating these policies, he would have never been confirmed to a lifetime appointment to the federal bench. The right thing to do would be for him to resign from this lifetime appointment.

As a United States Senator, as a former prosecutor, and as an American citizen, I am offended by the premeditated approach taken by former high-ranking officials in the Office of Legal Counsel in constructing the legal underpinnings of seriously flawed national security policies.

Clearly, then, we have not yet heard the end of this story, and unless the United States is to become a country in which torture was authorized, but no one was actually responsible, this is as it should be. It may take years, but those who authorized torture must be held accountable, and claims that cynical lawyers like John Yoo were responsible only for exercising “poor judgment” cannot be allowed to overrule the OPR Report’s far more damaging conclusions.

Note: As well as releasing the final report, “Investigation Into The Office of Legal Counsel’s Memoranda Concerning Issues Relating to the Central Intelligence Agency’s Use of ‘Enhanced Interrogation Techniques’ on Terrorist Suspects,” dated July 23, 2009, and Margolis’ memo, the DoJ also released two earlier versions of the report, the first dated December 22, 2008 (PDF) and the second dated March 4, 2009 (PDF), as well as John Yoo’s responses to the second draft (PDF) and the final report (PDF), and Jay Bybee’s responses to the second report (PDF) and the final report (PDF).

This report was originally published on the website of the Future of Freedom Foundation.

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.

Shaker Aamer photographed with his two children

On Friday, it emerged in a UK court that the Metropolitan Police is investigating allegations that MI5 was complicit in the torture, in US custody in Afghanistan, of Shaker Aamer, the last British resident still held at Guantánamo. In the High Court, Richard Hermer QC, counsel for Aamer, told Mr. Justice Sullivan that Met officers had visited his solicitors, Birnberg Peirce, on Wednesday.

“It became apparent they are now investigating allegations raised by Mr. Aamer into the alleged complicity of the UK security service in his mistreatment,” he said, adding that the police had made an application to the court “for release of relevant documents” relating to Aamer’s allegations that the confessions he made in US custody were obtained through torture.

This is another blow for the government, which recently gave up a short-lived struggle to prevent the release of the documents to Shaker Aamer’s lawyers, following a High Court ruling in his favour. Expressing  dissatisfaction with the government, Mr. Justice Sullivan stated on Friday, “These whole proceedings have been a gigantic waste of time and money,” and ordered the government to pay the costs of Aamer’s lawyers, granting an interim payment of £25,000 ($38,794).

As I have explained before, the emergence of torture allegations against Shaker Aamer — and his lawyers’ pursuit of relevant documents in the possession of the British government, allied to the claims that MI5 was complicit in the torture — reflects the case of Binyam Mohamed, the British resident who was freed from Guantánamo last February, after both the British and American governments realized that releasing him would, at least, take the edge off a mounting torture crisis that showed no sign of going away.

In Mohamed’s case, the High Court judges refused to back down, leading to an extraordinary ruling two weeks ago, in the Court of Appeal, ordering the government to release information revealing how US agents had tortured Mohamed in Pakistan, and how the British government knew about it, which foreign secretary David Milband had been trying to suppress for 18 months.

The police investigation into Shaker Aamer’s allegations is the third such case to be pursued by the Metropolitan Police, which is investigating claims relating to the interrogation of Binyam Mohamed in Pakistan by an agent identified only as “Witness B,” and also to allegations against MI6 that have been made by another unidentified man. There is, moreover, an overlap between two of these cases, because Shaker Aamer is a key witness in the allegations made by Binyam Mohamed.

In Shaker Aamer’s case, there is no guarantee that releasing him will do much to ease the discomfort of the security services and the government in light of increasing calls for an independent investigation into the full extent of British complicity in torture. These now have a momentum of their own, unprecedented in any country that was deeply involved in the “War on Terror,” and in marked contrast to the recent whitewash in the US of the Justice Department lawyers who wrote memos authorizing the use of torture.

On Saturday, it was reported that the British government’s human rights watchdog, the Equality and Human Rights Commission, had become involved, and that the Commission’s Chair, Trevor Phillips, had written to Justice Secretary Jack Straw, stating, as the Times described it, that “it can no longer ignore the growing body of allegations against MI5 and MI6.” In the letter, Phillips wrote that the government’s “blanket denials” were “an inadequate response,” and that “Not enough has been done to reassure the commission and the public that these allegations are unfounded.”

Entering into territory that has previously been almost the exclusive preserve of the Guardian (whose reporter, Ian Cobain, has worked tirelessly to expose evidence of British complicity in the torture of British citizens abroad), the Times added, “A dossier of 25 cases has now been built up, including complaints of ill treatment, illegal detention and torture.” The Times also devoted a two-page spread to these cases, and added that the Equality and Human Rights Commission was “concerned about mounting evidence that these actions were condoned by British agencies.”

Trevor Phillips explained, “Given the UK’s role as a world leader on human rights, it would be inexplicable for the Government not urgently to put in place an independent review process to assess the truth, or otherwise, of these allegations.” He also told the Times that he found it “inexplicable” that the government was a year late in providing a report to the United Nations Committee against Torture.

Given these developments, the plight of Shaker Aamer is unlikely to be a show-stopper. However, securing his release would certainly blunt some of the criticism, and would, moreover, demonstrate that the government is still capable of doing something right.

Shaker Aamer has been cleared for release from Guantánamo since 2007, but has not been freed, despite British requests for his return. The US authorities have cited ongoing security concerns, which makes a mockery of the whole process of clearing someone for release. However, beyond this obvious hypocrisy there are also fears that it suits both the British and the Americans to keep holding, for as long as possible, a man routinely described as the most influential prisoner in Guantánamo — not because he has any terrorist connections, but because he is extraordinarily eloquent and charismatic, and a passionate advocate for justice who has resisted the lawlessness and brutality of the “War on Terror” from the first day that he was sold to US forces by bounty hunters in December 2001. As a result, he may well know more about the dark workings of Guantánamo than any other prisoner, and this — added to his eloquence and outspokenness — undoubtedly makes him a threat.

Last September, former prisoner Moazzam Begg, one of Shaker Aamer’s closest friends, captured something of his personality in an excerpt from the last letter received by his wife in 2008, in which he wrote:

Yes I lost a lot of weight, yes I have a lot of sicknesses, yes I’ve got short sight, yes my bones are aching, yes I got white hair, yes I got old, but my heart is still young, my mind still strong — a lot stronger than ever. My soul’s got the biggest wings to fly and help others to fly. I am a lot wiser, a lot [more] patient, a lot [more] knowledgeable, a lot [more] merciful, a lot [more] loving and caring, a lot [more] helpful. I feel I can change the world to be a better place. I feel I can restore justice so we can have peace and love amongst each other.

Clearly, holding onto Aamer is not a delaying tactic that can prevail forever, and it would, therefore, make sense for the British government to exert the kind of pressure on its closest ally that it is undoubtedly capable of when necessary, and demand Shaker Aamer’s immediate return to the UK, to rejoin his British wife and his four children.

As his solicitor, Gareth Peirce, explained on Friday, “Mr. Aamer is a victim and key witness in [the police] investigation — and yet where is he? He is in Guantánamo where the police can’t go to interview him.”

She added, “It is of central importance that everything is done to have him returned to this country,” and also explained that, although the British government claimed that it was making “strenuous efforts” to have him returned, “There is no diplomatic pressure being exerted. There is none. The Americans are saying: ‘What pressure?’”

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.

British resident Binyam Mohamed was tortured by the CIA while in Pakistani custody in April and May 2002. (Photo: art makes me smile; Edited: Jared Rodriguez / t r u t h o u t)

The recent decision of the UK High Court to release a seven paragraph summary of the torture perpetrated by U.S. agents upon Binyam Mohammed in April and early May 2002 is welcome news.  The summary, written by a British court, was derived from  42 classified CIA documents delivered to the British legal authorities as part of an investigation into the actions of MI5 in the torture and interrogation of Binyam Mohamed and other prisoners held by Pakistan. These documents purportedly describe the torture of Mohamed, and indicate the collusion of U.S., British, and Pakistani authorities in the torture.

The seven paragraph summary was enlightening on a number of points, though the information that Mohamed had been tortured in a fashion similar to Abu Zubaydah, was first reported in a book by Mohamed attorney Clive Stafford Smith in 2006. In Britain, outrage is focused upon the actions of British intelligence agency MI5, which, despite an effort by the government to censor a damning portion of the seven paragraphs, focused, according to the UK Guardian, on the charge “that MI5 had treated basic rights with contempt and had lied to the parliamentary watchdog which provides its only oversight.”

In the United States, John F. Burns at the New York Times noted:

What was starkly new, however, was the Foreign Office’s conclusion that the treatment Mr. Mohamed endured, had it been carried out under the authority of British officials, would have breached international treaties banning torture. It was the first time that Britain has been so blunt about its disapproval of the interrogation techniques approved by former President George W. Bush and curtailed last year by President Obama.

“Although it is not necessary for us to categorize the treatment reported, it could readily be contended to be at the very least cruel, inhuman and degrading treatment by the United States authorities,” the document posted on the Foreign Office Web site said.

Burns failed to note that the summary paragraphs stated that Mohamed’s sleep deprivation had been “carefully observed” for its “effects.” The UK Guardian did not miss this point, noting:

It is also clear that the CIA, on whose behalf the Pakistanis were holding Mohamed, was ­monitoring the effects upon Mohamed.

The NYT story also buried the significance of the timeline in the torture case. As both blogger-investigative journalist Marcy Wheeler and blogger-psychologist-activist Stephen Soldz have pointed out in articles Wednesday, the use of CIA-style “enhanced interrogation” torture was directly “conducted by the United States authorities prior to 17 May 2002 as part of a new strategy designed by an expert interviewer.” This puts the use of these techniques approximately ten weeks or more before the John Yoo-drafted Bybee memo on August 1, 2002, supposedly authorizing such abuse.

What about the 42 Classified CIA Documents?

Lost in all the hullabaloo around the struggle to release the seven paragraph summary of Binyam’s torture is the fact that there has long been a battle over the 42 classified CIA documents themselves. Originally only seven of the 42 documents, heavily redacted, were released to Binyam Mohamed’s attorneys. After a legal battle, they finally obtained the full set. The British High Court then took in October 2008 what Clare Algar at Reprieve called “the unusual step of inviting the press to make an application for the publication of details of Binyam’s mistreatment which had been removed from its original judgment at the request of the Government.”

The press made their application, and also asked for the secret documents themselves, i.e., not just the redacted summary. In response, British Foreign Secretary David Milbrand shocked everyone by claiming that the U.S. had threatened to cut intelligence-sharing ties with Great Britain if the summarized information or the documents themselves were released. Evidently, this threat on behalf of the U.S. continued over from the Bush to the Obama administration.

The case was then duly litigated, leading to the release on February 10 of the seven paragraph summary. But the 42 classified documents, with all the possible information they hold on the process of the interrogation, on its planning, on the personnel involved, on the collaboration with British authorities, and on any possible experimentation based on the monitoring of the torture, remain classified and unavailable.

It is important to remember that what the documents call “sleep deprivation,” was really a set of joined techniques. As I described it in an article last June, “sleep deprivation” included standing sleep deprivation, shackling in forced positions, nudity (save for a diaper!), a near-starvation diet, suspension, and, initially at least, up to 240 hours of continuous sleep deprivation. They weren’t monitoring only sleep deprivation, they were monitoring a full torture program!

Is it possible they were using newly developed telemetric devices developed under a research program funded by the Army’s Ft. Detrick, whose association with the CIA in the development of biological and chemical weapons, including for use in interrogations, goes back to the 1950s? Such a study was underway in 2002, studying how to measure the physiological effects of “uncontrollable stress” on subjects who underwent SERE torture as part of the military’s Survival, Evasion, Resistance, Escape program. The study was entitled The Warfighter’s Stress Response: Telemetric and Noninvasive Assessment. While formulated for use on predicting “military performance” and assessing selection procedures for personnel, this research — and this remains speculative — could have been used to assess an individual’s response to real-life, and not just simulated torture. One of the researchers is linked to the CIA and its Science and Technology directorate, and was also an “expert” on the Intelligence Science Board panel that produced the “Educing Information” document upon which the Obama administration is relying for a purported reform of interrogation policy.

While it was important to fight for the release of the court’s summary, the fight to release the documents in this case must not end here. The 42 classified CIA documents represent a keystone in the U.S. government’s contemporary torture program. It is my hope that the UK Guardian, the New York Times, and other press interests will not leave off their legal battle to receive these documents, and that the UK High Court itself will see that a full disclosure of this evidence is in the best interests of justice.

It’s just possible that the release of the seven paragraphs themselves could augur a release of the full set of CIA documents. The U.S. will do everything it can to avoid this possibility. On the other hand, the summary in and of itself can represent a limited hangout of the torture program information, tantalizing, but without crucial follow-up. American citizens must call for a full, independent, open investigation into the torture program here, with complete access to records and right to subpoena, and refer the necessary cases for prosecution under due process of law.

The media narrative surrounding the release of the latest revelations on the Binyam Mohamed case is being devised even as I write. It is crucial that the demand for the release of the full set of CIA documents be made a primary component of that narrative.

This report was originally published at Firedoglake.com.

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.

Shaker Aamer photographed with his two children

In December, lawyers for Shaker Aamer, the last British resident in Guantánamo, won an important court case in which judges ordered the British government to release information in its possession regarding claims that MI5 agents were present in the US prison in Kandahar, Afghanistan, when Shaker Aamer was subjected to torture, prior to his transfer to Guantánamo.

Paul Cahalan of the Wandsworth Guardian, covering the borough that Shaker Aamer once called home (and where his British wife and four children live), wrote about this story at the time, and on Thursday he provided important updates, speaking to Shaker’s US lawyer, Brent Mickum and his London-based lawyer, Clive Stafford Smith, director of the legal action charity Reprieve.

Speaking about the recently released files, Brent Mickum told Cahalan that “nothing in those documents has changed my mind” about the torture to which Shaker was subjected in Afghanistan, and the false confessions that he made as a result. In fact, he said, the information “reinforced” Shaker’s claims.

Mickum also made reference to an extraordinary article by the US law professor Scott Horton, published in this month’s Harper’s Magazine, which thoroughly undermines the official narrative regarding the deaths of three prisoners in Guantánamo on June 9, 2006, who reportedly committed suicide. Following up on a report by the Seton Hall Law School, which revealed that the official report was, literally, incredible, and full of glaring omissions and a plethora of contradictions, Horton drew on accounts given by several US military personnel stationed in the guard towers that night, who were able to see into the cell block where the men reportedly hanged themselves, and who all stated that they saw no one hanging, and saw no bodies being moved from the cell block to the clinic, where they were pronounced dead. Instead, one of the men, Staff Sgt. Joe Hickman, reported the movements of a vehicle that traveled from the prison to a secret facility outside the perimeter fence — known to the Guantánamo personnel as “Camp No” — which returned shortly before the men’s deaths were announced.

Shaker Aamer’s role in this story — which appears to involve a chilling and far-reaching cover-up — concerns statements he made to his lawyers, describing how, on the night that the three men died with gags stuffed in their mouths, he too was gagged and beaten so mercilessly that he was lucky to survive.

Brent Mickum told Cahalan that Shaker Aamer was, effectively, being silenced to cover up “wrongdoing,” and referred to the Harper’s article, which, as Cahalan put it, said that “US government officials may have conspired to conceal evidence three Guantánamo detainees could have been murdered during interrogation,” by being suffocated. Cahalan also noted that the Harper’s article indicated that this “may explain why the US is reluctant to release Mr. Aamer, who has claimed he was part-suffocated while being tortured the same evening,” an explanation that I have also proposed.

Mickum also told Cahalan that “he had been denied basic access his client, who, after years of solitary confinement, has failing health,” and added that the recent release of the documents relating to Shaker’s torture in Afghanistan “compelled the UK Government to act” to secure his immediate release. He also said:

Before I saw these documents I stated unequivocally that the British Government is complicit in so far as it was present during his torture. Nothing that I have seen in those documents changes my mind. Generally speaking, and without revealing any detail from the documents, my overall impression of the documents is that they are exculpatory in nature, period [in other words, that they prove Shaker's innocence]. The documents are helpful to Shaker’s defense, in so far as they describe the general allegations against Shaker, which we are in a position to refute almost unequivocally, and they show that he was tortured. What I have seen confirms my position that there is no legitimate evidence against him and confirms my continuing belief that he is being held by the Americans to cover up my government’s wrongdoing.

He added:

And unfortunately I have to, at this point, believe the British are not really advocating strongly enough for their return. As long as he is in Guantánamo he can’t talk and I can’t talk. He is still being tortured down there. And if he ends up dying down there I have to say there is blood on the British hands. The British can only sit back for so long and say, “We did everything we could.” He never posed a threat and he doesn’t pose one now. What this is, is a PR problem for both of them. The British need to do the right thing.

Turning to the Harper’s article, Mickum said, “I have no reason to doubt the information provided by the sergeant [Joe Hickman] is true and what we know is that my client was subjected to being tortured by maybe seven individuals at the same time as three people were alleged to have committed suicide.” He added that he thought that it was “likely” that Shaker was also subjected to torture in “Camp No,” like the three men who died. “That account appears to square with what happened to my client,” he said. “They choked his airway and put a mask over him.”

Despite representing Shaker, Mickum explained that he had not been allowed to see him since May 2009, and expressed concerns about his health. “Anyone who has been kept in the conditions he has been maintained in has to be suffering and laboring highly,” he said, adding, “My client wants to meet with me and he wants to talk to me, he is not being allowed to meet me or not being allowed to talk to me.”

Just last month, Mickum tried to call Shaker, but was told that Shaker didn’t want to speak to him. “Based on my conversations with him when I was able to talk to him, I just know he wants to meet with me and wants to talk to me,” he said, adding, “This is a convenient way to keep this story from coming out, that’s all it is.”

Clive Stafford Smith gave a similar appraisal, explaining, as Cahalan described it, that the Harper’s article “added to his belief the US government was afraid of what Mr. Aamer may reveal.”

Stafford Smith added:

This is merely confirmation, fairly stark confirmation, that the reason they wanted not to send him home to his family in England, but rather to send him to [his native] Saudi Arabia was simply to gag him. I have known Shaker for some time, and because he is so eloquent and outspoken about the injustices of Guantánamo he is very definitely viewed as a threat by the US. Not in the sense of being an extremist but in the sense of being someone who can rather eloquently criticize the nightmare that happened there.

With reference to the particular nightmare that took place in June 2006, it may be that the authorities at Guantánamo have refused to allow Shaker to meet with Brent Mickum or even to speak with him since May 2009 because that was when they first got wind that a former insider — Staff Sgt. Joe Hickman, a man with a faultless 17-year record in the military, and experience in military intelligence — had decided to come forward to explain why the official suicide story was a cover-up.

To date, the US media has paid little attention to these startling and profoundly troubling allegations, and it is clear, from a Justice Department investigation that was started, and then abruptly halted, that the desire to maintain the official line extends far beyond Guantánamo itself.

As it is, frankly, beyond rational dispute that, whatever occurred on the night on June 9. 2006, the official story is fatally flawed, and an independent investigation should be opened, it therefore remains deeply troubling, as those scrutinizing Shaker’s case recognize, that he has been held incommunicado for the last nine months, and that there is still no sign of when he will be freed, even though a military review board under the Bush administration approved his release in 2007.

Take action for Shaker Aamer

Shaker Aamer features prominently in the new documentary film, “Outside the Law: Stories from Guantánamo,” directed by Polly Nash and Andy Worthington. The film is showing at Amnesty International’s Human Rights Action Centre on Tuesday February 16, and the National Film Theatre on Saturday February 27, and is then touring the UK. To book tickets for the Amnesty screening, see here, for the NFT see here, and see this page for details of the UK tour.

At the screenings, the speakers (including released prisoners Omar Deghayes and Moazzam Begg, plus Andy, Polly and other guests) will discuss what steps we can all take to put pressure on the British government to demand the return of Shaker Aamer to the UK, to be reunited with his family. To get involved now, please visit this Amnesty International action page, to find details of how you can write to David Miliband and Gordon Brown, asking them to demand Shaker’s return. Please also visit this page for a video of Shaker’s daughter Johina handing in a letter to Gordon Brown at 10 Downing Street on January 11, 2010.

The Wandsworth Guardian is also pressing for Shaker Aamer’s release. In another article in the paper on Thursday, readers were requested to join the Facebook group Save Shaker Aamer, to write to the Foreign Secretary, David Miliband, demanding that he meets the Save Shaker Aamer Campaign to discuss a way forward (write to: David Miliband, Foreign Office, King Charles Street, SW1A 2AH), and to write to their MPs asking them to sign the Early Day Motion (EDM) put forward in Parliament by Martin Linton MP, Shaker’s local MP. Readers can contact their MPs via WriteToThem.

Linton’s EDM (EDM 547) is available here, and currently has 57 MP’s signatures, which, as Mr. Linton told the Wandsworth Guardian, “needed to be 100 to send out a strong message.” He also said that he and the Save Shaker Aamer Campaign were not only pressing for a meeting with the Foreign Office, but planned to take Shaker’s case to Washington D.C., in a visit with Amnesty International, that is planned for March.

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.

Photo/Wikimedia

Adapted from an article previously published at The Seminal/FDL

Michael Isikoff and Daniel Klaidman scooped the media Friday with a Newsweek article that claimed to know the verdict of a Department of Justice watchdog report on the investigations into misconduct and unprofessional behavior by the Bush administration attorneys involved drafting the memos allowing the use of coercive interrogation techniques on prisoners. These techniques were largely derived from reverse-engineering torture inoculation procedures from the military’s Survival, Evasion, Resistance, Escape, or SERE programs.

According to Isikoff and Klaidman, the original verdict of the report, prepared by the Office of Professional Responsibility (OPR), was changed after the report was reviewed by the attorneys accused, and then reassessed by long-time DoJ honcho, David Margolis. The Newsweek article explains (emphasis added):

Previously, the report concluded that two key authors—Jay Bybee, now a federal appellate court judge, and John Yoo, now a law professor—violated their professional obligations as lawyers when they crafted a crucial 2002 memo approving the use of harsh tactics, say two Justice sources who asked for anonymity discussing an internal matter. But the reviewer, career veteran David Margolis, downgraded that assessment to say they showed “poor judgment,” say the sources….The shift is significant: the original finding would have triggered a referral to state bar associations for potential disciplinary action—which, in Bybee’s case, could have led to an impeachment inquiry.

In an initial assessment by bmaz at Emptywheel, for whom I owe the H/T for the Newsweek article:

Margolis is nearly 70 years old and has a long career at DOJ and is fairly well though of. Margolis was tasked by Jim Comey to shepherd Pat Fitzgerald’s Libby investigation. In short, the man has some bona fides….

Margolis is, however, also tied to the DOJ and its culture for over forty years, not to mention his service in upper management as Associate Attorney General during the Bush Administration when the overt acts of torture and justification by Margolis’ contemporaries and friends were committed. For one such filter to redraw the findings and conclusions of such a critical investigation in order to exculpate his colleagues is unimaginable.

But the involvement of Margolis in defanging the OPR report, and thereby assuring that governmental agencies or bar associations will not hold John Yoo, Jay Bybee and other Bush-era attorneys accountable for paving the way for legalistic torture, is perhaps not an incidental fact.

Dubious David

The role of Margolis, and the man himself, deserve a closer look. It does not take long to see that 40-plus year DoJ veteran David Margolis has some skeletons in his closet, and that his track record is not unblemished.

In a July 2000 letter to the New York Review of Books by by E.L. Doctorow, Peter Matthiessen, William Styron, Rose Styron, Kurt Vonnegut, singled out Margolis as “point man” on a DoJ “vendetta” against Cointelpro victim Leonard Peltier.

Three months ago, in March, I had a phone call from a lawyer who has never been involved in the Peltier case but was aware of my longtime concern. A friend in the Justice Department had just mentioned to him that the FBI was intensifying its anti-Peltier vendetta within the department, with Associate Deputy Attorney General David Margolis as the point man.

More recently, a 2008 Los Angeles Times story indicated that Margolis had changed DoJ policy and decided to withhold summaries of OPR investigations. The article noted that ” the resolution of most matters investigated by the OPR remains closely guarded, even in cases where courts have found evidence of serious prosecutorial misconduct.”

The LA Times continued:

Publishing the summaries “reassures the public that [the Department of Justice] takes its self-regulatory responsibilities seriously and puts prosecutors on notice that they face public embarrassment if they are caught engaging in wrongdoing,” said Bruce Green, a former federal prosecutor and a professor at Fordham Law School in New York.

Associate Deputy Atty. Gen. David Margolis said it was his decision to excuse the OPR from preparing summaries of cases that might be released to the public. He said the decision reflected a lack of resources, as well as concern about balancing public interests with the privacy rights of individual attorneys facing accusations.

A 1999 story involves then Assistant Attorney General Eric Holder and Margolis acting together to spike a serious investigation into the 1993 Waco disaster, and in particular after it was discovered the FBI and DoJ had lied for years about using military incendiary devices at the Branch Davidian siege. Holder was overseeing an investigation led by Republican Senator John Danforth into the Waco Branch Davidian government siege. Bill Clinton’s Attorney General Janet Reno had taken the investigation out of the hands of U.S. Attorneys in Texas and given to GOP stalwart Danforth, who later exonerated the FBI of any wrongdoing, and recommended indictment of the only whistleblower in the case, U.S. Attorney William Johnston.

From a 9/15/99 Washington Post story:

The Justice Department has removed the entire U.S. Attorney’s Office for the Western District of Texas from further work related to the 1993 siege of the Branch Davidian compound near Waco, Tex. The broad recusal is intended to avoid conflicts that could impede a fresh investigation being led by former senator John C. Danforth (R-Mo.), a senior Justice Department official said yesterday.

Deputy Attorney General Eric H. Holder Jr. said U.S. Attorney Bill Blagg, whose office handled the criminal trial of the Branch Davidians in 1994, requested that his Western District office be recused from further work on Waco. Holder said that it is routine to approve recusal requests and that David Margolis, the senior department official who handled the details of the matter, told him he had never turned down a recusal request….

One of the attorneys in Blagg’s office who is being recused is Assistant U.S. Attorney William Johnston, who recently sent Attorney General Janet Reno a strongly worded letter warning that she had been misled by people within her department about the Waco siege. Holder said the broad recusal had nothing to do with Johnston’s letter.

Holder, who is second-in-command at the Justice Department, has been overseeing the Danforth probe since last week, when Reno recused herself from the matter because she too anticipates being a witness in the Danforth inquiry.

I’d say that Margolis’s “clean” reputation has been meticulously assembled, and I’m sorry if there are progressives who fell for it. Until I investigated further, I had no reason to question it myself. It goes to show that received wisdom if often not wisdom at all, and that we need to have a curious mind when it comes to acceptance of good intentions by this particular government (or maybe any government).

Margolis Covers-up Earlier Interrogation Scandal?

More speculatively, and intriguing, given the claims involved, is Margolis’s involvement in the investigation of a forgotten FBI sting operation against NASA contractors in the early 1990s. Operation Lightning Strike was, according to a Washington Post article at the time, a “20-month Justice Department sting operation focusing on NASA’s Johnson Space Center in Houston… [resulting] in criminal fraud and bribery charges against nine men and one contractor.”

Later, in 1996, a defense committee was formed to support the “NASA-13″. The committee, in a petitionto the U.S. House of Representatives Government Reform and Oversight Committee claimed that the men caught up in the Operation Lightning Strike, some of whom were victims of “’frame-ups’ and torture, to obtain prosecutions.” David Margolis was mentioned as admitting that an OPR investigation into the case was begun in 1994 to look into “investigative and prosecutive misconduct.” However, no results from that report were ever made public. The involvement of Margolis in this case deserves further scrutiny, given it involved serious allegations about coercive interrogations and torture.

A defense committee press release was more specific about the abuses conducted by the FBI:

In a report submitted to Congress today, a team of defense attorneys representing the so-called “NASA-13,” requested the US. House of Representatives Government Reform and Oversight Committee to hold hearings and appoint a Special Prosecutor, not affiliated with the U.S. government, to investigate the “NASA-13″ cases in the light of scientific research competed by a team of NASA industry experts, defense attorneys and behavioral scientists. This report furnishes evidence that at least one of the NASA/IG Federal agents who conducted the NASA sting operation in Houston from 1991 to 1994 was in fact a highly qualified military intelligence interrogator, who with the FBI, employed a highly dangerous form of “psycho-technology” known in the behavioral science community as “Coercive Persuasion” or “CP”, a form of mind control.

The phenomenon of “CP” was first observed in the post-traumatic reactions of Korean War military and civilian POWs. Many of these prisoners had confessed to non-existent crimes and cooperated with the enemy after having been subjected to what was then called “brainwashing.”

Given that these claims are coming from a pre-9/11 era, they cannot be said to be derivative of recent news reports and scandals. I am not convinced about what actually went on in this case, but it is notable that the defense committee procured a letter from well-known psychologist, and former government Margaret Thaler Singer backing the claims of the defendants:

I have reviewed the Lightning Strike Victims Questionnaires and summary provided by the NASA-13 Defense Committee, and I concur with the committee’s assessment that there is substantial data in these highly consistent statements to confirm that a program of Coercive Influence was employed in the Interrogations of the Lightning Strike Suspects . The questionnaires uniformly reveal a systematic application of psychological techniques, in an organized programmatic way, within a constructed and managed environment, which was aimed at the participants sense of self and sense of reality, producing extreme anxiety and emotional distress….

Such programs can and regularly do produce psychiatric casualties. Practitioners of these programs attempt to hold the subject at the point of maximum stress, without inducing psychosis. My experience over the past four decades and in observing over 3,000 cases since participating in the evaluation of released Korean POW’s, unfortunately reveals that practitioners of these nefarious methods frequently exceed the limits with devastating results.

According to the defense committee, Department of Defense interrogators played key roles in the interrogations of the defendants, as aspect of the case that has also never been explained.

Now this may all be a lot of smoke, but when one adds in the latest role played by Mr. Margolis in spiking the initial results of misconduct on behalf of Yoo, Bybee, Addington, et al. (if we can believe the Newsweek leak), his appearance in this role does not seem so remarkable. Margolis appears to have a long history of involvement in government frame-up and/or obfuscation of internal misconduct by the FBI or Justice Department prosecutors.

Will we see the intrepid U.S. press look more deeply into this? One could wish this were true. Every once in a while the mainstream press shows what it’s capable of, as with the exposure of torture at Bagram under Obama’s administration, or with Scott Horton’s Harper’s revelations on the 2003 killings of three Guantanamo prisoners, covered-up as supposed “suicides”.

But the OPR report is shaping up to be one gigantic cover-up, assuming we ever get to see much of it, after the government censors get done with it.

The country is thick with torture and crime, and unable to free itself from thralldom to its governmental enablers. Let’s see how easily Holder, Obama, and Margolis get away with their cover-up of Yoo, Bybee, Gonzales, and Addington’s lies and alibis. Meanwhile, torture continues as official policy of the Obama administration in the guise of an appendix to the Army Field Manual. But outside of Emptywheel, some former interrogators, and a few others, no one seems to care.

And so it goes.

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.

Ahcene Zemiri was one of two Guantanamo prisoners released last week.

On Friday, perhaps as a sop to critics — myself included — who have been complaining about President Obama’s failure to close Guantánamo by his self-imposed deadline of January 22, 2010, the Justice Department announced in a press release that two Algerian prisoners had been released.

Releasing prisoners to Algeria has always been a dubious business, akin to Russian roulette, as I explained when two men were released by the Bush administration in July 2008, because there appears to be no way of knowing whether these men will be released on their return or imprisoned and subjected to trials that fail to meet internationally recognized standards of fairness and objectivity.

As a result, frustratingly little is known about the eight Algerians repatriated from Guantánamo between July 2008 and January 2009, although one indication of how the Algerian justice system deals with returned Guantánamo prisoners was provided in November 2009, when the BBC reported that, 15 months after two of these men were repatriated, they had been acquitted after a trial in which the prosecutor had called for prison sentences of 20 years.

The stories of the two men released last week deserve to be heard, because, as so often with Guantánamo, they reveal how shockingly misplaced is the still prevalent rhetoric regarding Guantánamo’s role as a repository for the “worst of the worst” terrorists. Just as disturbingly, their stories also reveal how two men, who were unconnected to terrorism, were nevertheless tortured in an attempt to make them admit that they were.

Ahcene Zemiri: wrong place, wrong time (in Canada and Afghanistan)

The first of the men released last week, Ahcene Zemiri (identified on his release as Hasan Zemiri), was born in Algiers on September 8, 1967, the youngest of ten children. At the age of 20, having completed his two years of mandatory military service, and finding no prospects for work in Algeria, he moved to France, where, for several years, he and his brother made money exporting electrical goods to Algeria.

In 1994, he moved to Canada, settling in Montreal, where he met his future wife, Karina. The couple married in May 1996, but life was difficult for Zemiri. Unable to find work, he hung out with other Algerian expatriates, including one man, Ahmed Ressam, whose future activities were to have a profound effect on Zemiri’s life. In December 1999, Ressam was seized as he arrived in the United States, and was charged with planning a terrorist attack on Los Angeles International Airport (the so-called “Millennium Plot.”). After a trial in 2005, he received a 22-year prison sentence.

Neither Zemiri nor the rest of his friends had any idea about the plot, but after his conviction, and before he was sentenced, when he was apparently exploited to make confessions in exchange for a sentence less than the 130 years that was proposed to him, Ressam claimed that Zemiri had lent him $3,500 and a camera in connection with the plot. Ressam recanted this claim in December 2006, sending a letter to the judge who had sentenced him, explaining that Zemiri had “no relation or connection to the operation I was about to carry out” and that he “didn’t know anything about it and he did not assist me in anything.” As Zemiri’s attorneys added, he also declared that his statements “had been misconstrued and were made under the severe psychological duress of an FBI interrogation and in the face of a lengthy prison sentence.” Nevertheless, the false claims were to haunt Zemiri for the next nine years.

First, Zemiri and his compatriots were repeatedly questioned by Canadian intelligence agents and the police. Zemiri himself was never arrested, but some of his friends were, and a few later fled the country. In early 2001, after being questioned about whether it would be safe for President Bush to visit Canada, Zemiri became convinced that he would be deported to Algeria, and that, if returned, his decade of globe-trotting in the West would not play well with Islamist groups in his homeland.

As a result, having been sold a rosy picture of Afghanistan by a friend, he decided to travel there with Karina, intending to establish himself and raise a family. Arriving in Jalalabad in August 2001, they lived in a house owned by an Algerian/Swedish family who had returned to Sweden, in an Algerian neighborhood that was relatively clean and safe. The house had electricity, water, and a walled compound, and although many Taliban lived in the area, it was also home to Europeans, Australians, Uzbeks and Chechens, and the offices of the UN, Médecins Sans Frontières and Oxfam were also nearby.

Nevertheless, the decision to relocate to Afghanistan was clearly a foolish dream. Zemiri “disliked Afghanistan,” as his attorneys stated in a court submission in October 2007. His wife explained that he had become used to Western society, and the poverty was too much for him. She “thought that he would make it a year, at most, before deciding that they should move elsewhere.”

The US-led invasion in October 2001 changed everything, of course, although the couple stayed put until the cities in northern Afghanistan fell, and the country was no longer safe for Arabs and other foreigners. Splitting up, for reasons of safety, Karina escaped to Pakistan, and then to Canada, where she gave birth to their son, Karim, on June 17, 2002, but her husband was less fortunate.

After hooking up with a group of around 200 mostly Arab men, who were seeking to leave the country, Zemiri — wearing the Hugo Boss suit that he had brought with him — found himself caught up on the fringes of the Taliban and al-Qaeda forces in Afghanistan’s Tora Bora mountains, who were preparing for a final showdown with the US military’s proxy Afghan army, until two Afghan guides showed up, offering, for a price, to lead the men to safety in Pakistan.

Around 60 of the group accepted, but as they made their way through a valley, they were spotted by a US plane, and targeted in a bombing raid. One of the men, Ghanim al-Harbi, a Saudi, later explained that “40 of the Arabs with me were killed and 20 were injured,” and many of the survivors, including Zemiri, ended up in Guantánamo.

With a broken arm, Zemiri made it to an Afghan village after the raid, but was sold to Northern Alliance troops just a few days later. Soon after, he was sold to US forces, and, according to the court submission, was held in Kabul — possibly, for a brief spell, in the CIA’s notorious “Dark Prison” — and Kandahar before being flown to Guantánamo in April or May 2002. In statements to his attorneys, he explained that, while in custody in Afghanistan, he was “subjected to brutal physical abuse,” stating that he was “repeatedly beaten by guards,” and that he “lost a tooth as a result of one such beating.”

In Guantánamo, despite maintaining his story (as he did throughout his detention), Zemiri came under suspicion because of Ahmed Ressam’s allegation. and was subjected to the “enhanced interrogation techniques” introduced by defense secretary Donald Rumsfeld, which, though nominally intended for use on Mohammed al-Qahtani (allegedly the 20th 9/11 hijacker), were actually applied to over a hundred prisoners.

As his attorneys explained, he was “tortured and/or subjected to cruel, inhuman and degrading treatment, including temperature manipulation, sleep deprivation, sound bombardment, and strobe lighting.” As they also explained, he was “splashed with fake menstrual blood, short-shackled, and forced to maintain a stress position for long periods of time.”

Despite this, Zemiri refused to accept that he was involved with either al-Qaeda or the Taliban, and also refused to accept Ahmed Ressam’s allegations, but it was not until Ressam wrote his letter, and another witness came forward, that, effectively, any case against him collapsed.

This second witness, Mokhtar Haouari, who was also convicted for playing a part in the “Millennium Plot,” wrote a letter from a prison in Lewisburg, Pennsylvania, where he is serving a 24-year sentence, which first came to light during a military review board at Guantánamo in 2005, when it was submitted by Zemiri’s attorneys. In it, Haouari, stated, “As for these allegations leveled against Mr. Zemiri by Ressam, well I know they are false. Mr. Zemiri and I were close friends, unlike Ressam, who was not either of our friend. I never, in 5 yrs of knowing Mr. Zemiri, heard him speak of jihad, anti-American feelings or so-called terrorist activities … He’s never been a threat to America or any other country. Ressam is trying to use Mr. Zemiri like he used myself and others to decrease his prison term. The government doesn’t care if his accusations are true or false as long as it brings about a conviction.”

Adil al-Jazeeri: a child of the mujahideen

The second man released last week, Adil Hadi al-Jazairi Bin Hamlili (also identified in Guantánamo as Adil al-Jazeeri), was 27 years old when he was seized outside a restaurant in Peshawar on June 17, 2003 with five other men who were later released. Although almost everything about his story is confusing, it is clear is that he arrived in Pakistan with several family members in 1985, during the mujahideen resistance to the Soviet occupation of Afghanistan, when he was just nine years old, and spent many years in Afghanistan, before relocating to Pakistan sometime in the 1990s, where he was married and had four children.

No explanation has ever been publicly provided for his capture, but it may be related to the interrogation of his distant cousin, Mustafa Hamlili (also transferred to Guantánamo, but released in July 2008), who was seized in a village near Peshawar in May 2002. In Guantánamo, al-Jazeeri claimed that the Pakistanis had told him that the FBI had ordered his capture, but he may have been seized because he was a convenient target for the Pakistanis to sell to US forces.

Certainly, it is noticeable that the younger Hamlili was an irritant to the Pakistani authorities, if his own words in Guantánamo are to be believed. At a military review board hearing in 2005, in response to an allegation that he had stolen a car with three Pakistani friends, had been imprisoned for a year and a half, and had then been expelled to Afghanistan, he explained that he had actually been expelled “because I did not have the legal papers.”

Whatever the truth was regarding his capture, it was obvious that allegations against him were taken seriously at some level in the US government, because, after a month in Pakistani custody, he was rendered to Afghanistan on July 13, 2003, and held for some time in a secret CIA prison near Kabul (either the “Dark Prison” or the “Salt Pit”), before being moved to Bagram. He was also one of ten supposedly significant prisoners — including the British resident Binyam Mohamed — who were flown to Guantánamo on September 20, 2004, after being held as “high-value detainees,” and then, it appears, being downgraded to “medium-value detainees.”

According to a news report published in 2006, the Pakistani authorities believed that he had “served as a contact between al-Qaeda and the Taliban and also as an aide to the former Afghan foreign minister Wakil Ahmad Mutawakkil in Kabul,” and although there may be something in this latter claim, as al-Jazeeri admitted in a review board that he had found a job with the Taliban working in their media and translation department, he refused to admit that he had any connection to al-Qaeda. Despite being presented with a barrage of allegations in his tribunal and review boards — including claims that he was involved with Algerian and Tunisian terrorist groups, and that he moved al-Qaeda fighters from Afghanistan to Pakistan — he refuted them all, saying that most were false statements that had been obtained under duress in Guantánamo, Bagram or Kabul.

Noticeably, however, he also pointed out that a few allegations were made prisoners who had some involvement with al-Qaeda. “All al-Qaeda members they lie,” he said, “and most of them they really apologized to me in Camp 5. [One] asked for my forgiveness because he had had to do so. He had to say something like this because he was under pressure.’”

Interviewed in 2006, his wife also denied the allegations. Speaking from “a crowded mud-brick house in the village of Regi,” near Peshawar, she insisted that her husband was innocent. “My husband had no links with al-Qaeda and if he had any links with al-Qaeda then al-Qaeda people would take care of us because we are living very miserable lives,” she said.

Presumably, the President’s Guantánamo Review Task Force would not have released al-Jazeeri had they too not concluded that somewhere along the line his story had been overblown. Certainly, he gave the authorities no cause for alarm during his five years in Guantánamo, when he was apparently a thoroughly cooperative prisoner throughout his imprisonment. It seems, therefore, as with Ahcene Zemiri, that, despite the promise of terrorist related activities — and the use of torture in an attempt to prove it — neither man, in the end, proved anything beyond Guantánamo’s most enduring truth: that when you round people up in a random manner, or on the basis of untested intelligence, and then fly them halfway around the world to an experimental prison intended to be outside the law, you end up with nothing.

I suppose, however, that both these men should count themselves fortunate that they don’t fit into a category of prisoner embraced by President Obama’s Guantánamo Review Task Force, and, it seems, by the President himself: those regarded as too dangerous to release, even though the supposed evidence against them would not stand up to any kind of independent scrutiny. These men — 47 in total, as the Task Force announced on Friday — will continue to be held indefinitely without charge or trial.

Compared to that, the Russian roulette of Algerian justice may not be so bad after all.

This report was originally published on the website of the Future of Freedom Foundation.

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.

Photo: isafmedia / Flickr

This report was originally published on Truthout.org.

Two reports coming out of Afghanistan illustrate the depth of hypocrisy and subterfuge characterizing the US/NATO intervention in that country. One could cite a myriad of such examples, so immoral and wrong as the US war there.

In the first report, a 2009 human rights assessment prepared by Canada’s Foreign Affairs Department, obtained by The Canadian Press and reported at CBC News, revealed a skyrocketing suicide rate among Afghan women:

“Self-immolation is being used by increasing numbers of Afghan women to escape their dire circumstances and women constitute the majority of Afghan suicides,” said the report, completed in November 2009….

The director of a burn unit at a hospital in the relatively peaceful province of Herat reported that in 2008 more than 80 women attempted suicide by setting themselves on fire, many of them in the early 20s.

It’s not as if the plight of Afghan women under the US-backed Karzai government hasn’t gotten some attention. The Afghanistan Independent Human Rights Commission (AIHRC) recorded 184 cases of self-immolation by Afghani women in 2007, versus 106 in 2006. In Herat alone, in the first six months of 2008, 47 women, desperate from an escape from a life of domestic servitude, violence, rape, injustice, and other crimes, set themselves on fire and ended up in the emergency room of the local hospital. Ninety percent died from their serious burns.

The police and judiciary do not launch any formal investigations to determine the causes and motivations of suicide and self-burning by women, according to the AIHRC.

As a result, men who force and provoke women to self-immolation and other forms of suicide remain immune from all legal and penal repercussions.

To delve into the statistics only reveals a more doleful picture: almost 90 percent (!) of Afghan women have been victims of violence, 60 percent of all marriages are forced. The US-backed regime has made some token moves to assist women, such as creating police task forces staffed by women officers. But the female officers aren’t allowed to do any outreach. Meanwhile, Afghan President Hamid Karzai infamously supported a law that allows for spousal rape. (Afghanistan is not alone in this, however, as Bahrain, too, “offers women no protection from spousal rape.”)

US/NATO-Backed Afghan Regime Practices Torture

As the US plans to transfer administrative control of its Bagram detention facility to the Afghanistan government, a separate scandal links the Afghan government to the torture and murder of a prisoner in its custody. According to a report by Human Rights Watch (HRW), Afghan citizen Abdul Basir was tortured while in custody of Afghani security forces last December, and killed when he was pushed or thrown out a window. His family was told he committed suicide. But HRW has posted pictures of the tortured marks on Basir’s body.

It wasn’t easy to try and get an investigation of Basir’s death in Afghanistan – from this brave new government (“elected” by massive fraud) that has guaranteed justice and due process to the Bagram prisoners, once they get their hands on them. According to HRW’s report on Basir’s death:

An NDS official told family members that Basir’s father, Zalmai, signed a statement confirming that Basir had committed suicide and that an autopsy was not required. The family told Human Rights Watch that NDS officials told them that if they buried the body, Basir’s brothers and father would be released.

However, concerned that the marks on Basir’s body may have been signs of torture, the family took the body to the Forensic Department of the Health Ministry where an autopsy was carried out. The findings have not been made public. The family reported that security agency officials later came to the house where the body was held and gave them a message to bury the body. When the family tried to take the body to parliament, they said, agency vehicles blocked their way.

While the Afghan defense ministry assures the world press that “all international conventions on prisoners’ rights would be implemented” once it gets control of Bagram, the many reports of arbitrary arrest, torture, and other ill-treatment by Afghan security forces suggest otherwise. In fact, there is nothing very trustworthy about either the Afghan government or its US/NATO backers, who have averted their eyes from anything that would besmirch the credentials of their war purposes in Afghanistan.

This leads the leaders of the Western alliance to some pretty strange places. Take Canadian Prime Minister Stephen Harper. Talking to interviewers for the French-language television network TVA about the many reports that prisoners captured by Canadian forces and turned over to Afghani authorities were tortured, even killed, Harper said:

“We are speaking here of a problem among Afghans. It’s not a problem between Canadians and Afghans. We’re speaking of problems between the government of Afghanistan and the situation in Afghanistan. We are trying to do what’s possible to improve that situation, but it’s not in our control.”

For Harper, the system of transferring prisoners to the Afghans “works very well,” though he admits there are “problems from time to time.” As an example of some of these problems, read the over 40 redacted emails (PDF) sent from former Canadian diplomat Richard Colvin to then-Foreign Affairs Minister Peter MacKay alleging the torture of detainees transferred by Canadians to Afghan prisons.

While trumpeted as a blow against the idea of turning Bagram into a second Guantanamo, the likelihood is that things will not get any better for the 700 plus prisoners at the US facility there. Nor does it speak to the ongoing management by Special Operations forces of a black site prison, also on the Bagram Air Base. US Special Operations forces are granted special privileges to hold prisoners in indefinite detention. Evidence of torture at the SO black site prison, published in both The New York Times and The Washington Post last November, has not produced any follow-up in terms of Congressional hearings or further investigations. Instead, the handover of the Department of Defense’s primary Bagram detention site appears likely to even further reduce oversight and investigation into the plight of prisoners there, once under Afghan jurisdiction, as the promises of the Afghanistan government are not to be trusted.

Meanwhile, the propaganda from Washington continues unabated. “Surge turning tide against Taliban, says McChrystal,” blared ABC news on Monday. But no amount of propaganda is going to fill up the moral bog that is the US war in Afghanistan. Whether its targeted assassinations, leading to rounds and never-ending rounds of assassination and bombings, as at Khost, or the counterinsurgency attacks that target school-age children, as at Ghazi Khan, the campaign in Afghanistan has nowhere to go but down.

Even its vaunted aim of improving the lives of Afghan women is proven to be a lie. As a statement by the Revolutionary Association of the Women of Afghanistan (RAWA) reported recently:

The US “War on terrorism” removed the Taliban regime in October 2001, but it has not removed religious fundamentalism which is the main cause of all our miseries. In fact, by reinstalling the warlords in power in Afghanistan, the US administration is replacing one fundamentalist regime with another. The US government and Mr. Karzai mostly rely on Northern Alliance criminal leaders who are as brutal and misogynist as the Taliban….

Last month, Malalai Joya, a former member of the Afghan parliament, told Michelle Goldberg of the Daily Beast that the situation for Afghan women is every bit as bad under Karzai as it was under the Taliban. Joya is also concerned that civilian casualties are fueling popular support for the Taliban.

Thus far, no significant antiwar movement has emerged to seriously challenge the Obama administration’s prosecution of the Afghanistan war. Meanwhile, the administration has clearly expanded its military operations to Pakistan, Yemen and Somalia. But support by the US electorate of this war policy appears shaky at best, as the population suffers under an unemployment rate approaching 20 percent, and an array of service cutbacks in many US states.

Whether protests against the economy will be linked to the bellicose policies of the Obama administration in its own version of Bush’s “war on terror” remains to be seen. But one doesn’t have to look very far to see that the premises of prosecuting a democratic, human rights war is no more tenable under Obama than it was under Bush.

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.

Establishing a case for murder — and the disclosure of a secret prison at Guantánamo

The key to the discovery of the murder of the three men — 37-year old Salah Ahmed al-Salami, a Yemeni, 30-year old Mani Shaman al-Utaybi, a Saudi, and 22-year old Yasser Talal al-Zahrani (photo, left), a Saudi who was just 17 when he was captured — is Army Staff Sgt. Joe Hickman, a former Marine who reenlisted in the Army National Guard after the 9/11 attacks, and was deployed to Guantánamo in March 2006, with his friend, Specialist Tony Davila. On arrival, Davila was briefed about the existence of “an unnamed and officially unacknowledged compound,” outside the perimeter fence of the main prison, and explained that one theory about it was that “it was being used by some of the non-uniformed government personnel who frequently showed up in the camps and were widely thought to be CIA agents.”

Hickman and Davila became fascinated by the compound — known to the soldiers as “Camp No” (as in, “No, it doesn’t exist”) — and Hickman was on duty in a tower on the prison’s perimeter on the night the three men died, when he noticed that “a white van, dubbed the ‘paddy wagon,’ that Navy guards used to transport heavily manacled prisoners, one at a time, into and out of Camp Delta, [which] had no rear windows and contained a dog cage large enough to hold a single prisoner,” had called three times at Camp 1, where the men were held, and had then taken them out to “Camp No.” All three were in “Camp No” by 8 pm.

At 11.30, the van returned, apparently dropping something off at the clinic, and within half an hour the whole prison “lit up.” As Horton explains:

Hickman headed to the clinic, which appeared to be the center of activity, to learn the reason for the commotion. He asked a distraught medical corpsman what had happened. She said three dead prisoners had been delivered to the clinic. Hickman recalled her saying that they had died because they had rags stuffed down their throats, and that one of them was severely bruised. Davila told me he spoke to Navy guards who said the men had died as the result of having rags stuffed down their throats.

As Horton also explains:

The presence of a black site at Guantánamo has long been a subject of speculation among lawyers and human-rights activists, and the experience of Sergeant Hickman and other Guantánamo guards compels us to ask whether the three prisoners who died on June 9 were being interrogated by the CIA, and whether their deaths resulted from the grueling techniques the Justice Department had approved for the agency’s use — or from other tortures lacking that sanction.

Complicating these questions is the fact that Camp No might have been controlled by another authority, the Joint Special Operations Command, which Bush’s defense secretary, Donald Rumsfeld, had hoped to transform into a Pentagon version of the CIA. Under Rumsfeld’s direction, JSOC began to take on many tasks traditionally handled by the CIA, including the housing and interrogation of prisoners at black sites around the world.

The construction of the “suicide” narrative, and the widespread cover-up

This is disturbing enough, of course, and should lead to robust calls for an independent inquiry, but the problem may be that almost every branch of the government appears to be implicated in the cover-up that followed the deaths.

As Horton describes it, an official “suicide” narrative was soon established, and widely accepted by the media, if not by former prisoners and the dead men’s families. With extraordinary cynicism, Rear Admiral Harry Harris, the commander at Guantánamo, not only declared the deaths “suicides,” but added, “I believe this was not an act of desperation, but an act of asymmetrical warfare waged against us.” What was not mentioned were the rags stuffed into the prisoners’ mouths, even though this knowledge was widespread throughout the prison. Horton adds that when Col. Mike Bumgarner, the warden at Guantánamo, held a meeting the following morning, “the news had circulated through Camp America that three prisoners had committed suicide by swallowing rags.”

He also states:

According to independent interviews with soldiers who witnessed the speech, Bumgarner told his audience that “you all know” three prisoners in the Alpha Block at Camp 1 committed suicide during the night by swallowing rags, causing them to choke to death … But then Bumgarner told those assembled that the media would report something different. It would report that the three prisoners had committed suicide by hanging themselves in their cells. It was important, he said, that servicemen make no comments or suggestions that in any way undermined the official report. He reminded the soldiers and sailors that their phone and email communications were being monitored.

Despite being “on-message,” Bumgarner let slip to two visiting reporters from a US provincial newspaper — the only ones who were not immediately hustled off the base — that each of the men who had died “had a ball of cloth in their mouth either for choking or muffling their voices.” As punishment for straying off the script, Bumgarner was soon suspended, and had his office searched by the FBI.

Just as cynical were the authorities’ attempts to silence the prisoners and their attorneys. The Naval Criminal Investigative Service (NCIS), which was assigned to investigate the deaths, confiscated every single piece of paper in the possession of the prisoners, and, a few weeks later, “sought an after-the-fact justification.” As Horton explains:

The Justice Department — bolstered by sworn statements from Admiral Harris and from Carol Kisthardt, the special agent in charge of the NCIS investigation — claimed in court that the seizure was appropriate because there had been a conspiracy among the prisoners to commit suicide. [The] Justice [Department] further claimed that investigators had found suicide notes and argued that the attorney-client materials were being used to pass communications among the prisoners.

It is now apparent that the authorities were desperate to ensure that no word of the events of June 9 was disclosed from prisoners to their attorneys. As David Remes, the attorney for 16 Yemenis, explained, the effect of the seizure “sent an unmistakable message to the prisoners that they could not expect their communications with their lawyers to remain confidential,” but as part of its mission to blame attorneys for the deaths, the authorities went so far as to claim that Clive Stafford Smith, the director of the legal action charity Reprieve, had persuaded another prisoner, the British resident Shaker Aamer, to call for the deaths from his cell. Speaking to the BBC’s Newsnight in October 2006, Zachary Katznelson, an attorney at Reprieve, explained that he was told by one of his clients in Guantánamo in August 2006 that interrogators were trying to blame Stafford Smith, saying that “it was Clive’s idea, Clive’s brainchild, that people had to commit suicide to bring attention to the base and to then force the government to close it.”

As Horton reveals, far from being the mastermind of a triple suicide, Shaker Aamer was himself beaten severely on the night of the deaths. As I have explained in previous articles, Aamer, an eloquent, charismatic man, who stood up relentlessly for the prisoners’ rights, was regarded as a leader within Guantánamo by both the prisoners and the prison authorities. Held in solitary confinement after the suppression of a short-lived Prisoners’ Council, convened in the summer of 2005, for which he was the Secretary, he was, nevertheless beaten severely for two and a half hours on the evening of June 9, around the same time that the three other men were in “Camp No.”

As Horton also notes:

The United Kingdom has pressed aggressively for the return of British subjects and persons of interest. Every individual requested by the British has been turned over, with one exception: Shaker Aamer. In denying this request, US authorities have cited unelaborated “security” concerns. There is no suggestion that the Americans intend to charge him before a military commission, or in a federal criminal court, and, indeed, they have no meaningful evidence linking him to any crime. American authorities may be concerned that Aamer, if released, could provide evidence against them in criminal investigations. This evidence would include what he experienced on June 9, 2006 …

In the years following the deaths in June 2006, every official response has been a whitewash. The NCIS reluctantly produced a report in August 2008, accompanied by a brief and unenlightening statement, which I discussed here, and in December 2009 the Seton Hall Law School produced a devastating analysis of the flawed report, which, as Scott Horton explains, “made clear why the Pentagon had been unwilling to make its conclusions public. The official story of the prisoners’ deaths was full of unacknowledged contradictions, and the centerpiece of the report — a reconstruction of the events — was simply unbelievable.”

As for the accounts of Sgt. Hickman and three other men (including Specialist Davila), Horton explains that they offered their accounts willingly and were not approached to do so. The trigger was Hickman, whose tour of duty ended in March 2007. As Horton describes it, however, “he could not forget what he had seen at Guantánamo. When Barack Obama became president, Hickman decided to act. ‘I thought that with a new administration and new ideas I could actually come forward,’ he said. ‘It was haunting me.’”

The cover-up continues

Hickman approached Mark Denbeaux of Seton Hall, and his son Josh (also a lawyer), and told his story, followed by the other three men. However, although the Denbeauxs approached the Justice Department, and had a meeting in February last year with Rita Glavin, the acting head of the Justice Department’s Criminal Division, John Morton, soon to be an assistant secretary at the Department of Homeland Security, and Steven Fagell, counselor to the head of the Criminal Division, little came of it. After hearing the whole sordid story, the officials thanked the Denbeauxs for “not speaking to reporters first and for ‘doing it the right way,’” and, two days later, Mark Denbeaux was called by Teresa McHenry, the head of the Criminal Division’s Domestic Security Section, who told him that she was starting an investigation and wanted to meet directly with Hickman.

Hickman met McHenry, and gave her the names and contact details of corroborating witnesses, but then the trail went cold. In April, “an FBI agent called to say she did not have the list of contacts” and “asked if this document could be provided again,” and soon after, Steven Fagell and two FBI agents interviewed Davila, who had left the Army, and asked him if he would travel to Guantánamo to identify the locations of various sites. “It seemed like they were interested,” Davila told Horton. “Then I never heard from them again.”

In late October, as Mark Denbeaux was preparing to unveil the Seton Hall report, there was brief communication with McHenry again, but on November 2, she called to say that the investigation was being closed:

“It was a strange conversation,” Denbeaux recalled. McHenry explained that “the gist of Sergeant Hickman’s information could not be confirmed.” But when Denbeaux asked what that “gist” actually was, McHenry declined to say. She just reiterated that Hickman’s conclusions “appeared” to be unsupported. Denbeaux asked what conclusions exactly were unsupported. McHenry refused to say.

Horton notes correctly that “the Justice Department has plenty of its own secrets to protect,” because it “would seem to have been involved in the cover-up from the first days, when FBI agents stormed Colonel Bumgarner’s quarters,” which was “unusual.” He also explains that, when the Justice Department sought court approval for the NCIS seizure of all the prisoners’ letters:

US District Court Judge James Robertson gave the Justice Department a sympathetic hearing, and he ruled in its favor, but he also noted a curious aspect of the government’s presentation: its “citations supporting the fact of the suicides” were all drawn from media accounts. Why had the Justice Department lawyers who argued the case gone to such lengths to avoid making any statement under oath about the suicides? Did they do so in order to deceive the court? If so, they could face disciplinary proceedings or disbarment.

In addition, Horton notes the role played by lawyers in the Justice Department’s Office of Legal Counsel, who, of course, “had been deeply involved in the process of approving and setting the conditions for the use of torture techniques, issuing a long series of memoranda [widely known as the ‘torture memos’] that CIA agents and others could use to defend themselves against any subsequent criminal prosecution.” Pointing a finger at Teresa McHenry, he explains that, “As a former war-crimes prosecutor, McHenry knows full well that government officials who attempt to cover up crimes perpetrated against prisoners in wartime face prosecution under the doctrine of command responsibility,” and quotes Rear Admiral John Hutson, the former judge advocate general of the Navy, who told him:

Filing false reports and making false statements is bad enough, but if a homicide occurs and officials up the chain of command attempt to cover it up, they face serious criminal liability. They may even be viewed as accessories after the fact in the original crime.

In conclusion, Horton suggests that everyone charged with accounting for what happened on June 9, 2006 — the prison command, the civilian and military investigative agencies, the Justice Department, and Attorney General Eric Holder — “face a choice between the rule of law and the expedience of political silence,” and, to date, have chosen the latter.

In passing, he mentions that the death of another prisoner in June last year — a 31-year old Yemeni named Muhammad Salih — also raises disturbing questions (as was reported by former prisoner Binyam Mohamed in an op-ed for the Miami Herald), and to this he could have added that the death of another Saudi, Abdul Rahman al-Amri, on May 30, 2007, also remains suspicious.

I urge you to read the whole report, as this précis has been little more than a way for me to try and grasp the main points presented in the article, which contains much more detailed and disturbing information, including shocking information about the autopsy (and information about the torture to which the men were clearly subjected), a touching meeting with Yasser al-Zahrani’s father, General Talal al-Zahrani, and a detailed reiteration of some other important facts — that none of the three men killed in June 2006 had any connection to terrorism, and that two had been cleared for release, but had not been told.

Despite studying Guantánamo on a full-time basis for nearly four years, this is one of the most chilling accounts of the prison that I have ever read, and one which should not only lead to an independent inquiry, but also to calls to press ahead with the closure of Guantánamo — and the repatriation of as many prisoners as possible — without further delay.

Scott Horton doesn’t ask another pertinent question — whether it is feasible that the three men died as a result of “enhanced interrogations” that went too far, or whether they were deliberately murdered. The panic that greeted the arrival of the corpses at the clinic on that dreadful day suggests the former, but on reflection it seems unlikely that three accidental deaths could occur in such a short space of time. As Guantánamo takes on a new name — the Death Camp — these doubts need to be addressed one way or another. Neither murder nor manslaughter is acceptable, of course, but neither is it acceptable for this disgraceful cover-up to continue.

As Yasser al-Zahrani’s father explained to Horton:

The truth is what matters. They practiced every form of torture on my son and on many others as well. What was the result? What facts did they find? They found nothing. They learned nothing. They accomplished nothing.

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.