However, in the Federal District Court in Peoria, Illinois, Judge Michael M. Mihm accepted a request from a-Marri’s lawyers to take into account the nearly eight years he has already spent in US custody, including the five years and eight months that he spent in almost complete isolation as part of the Bush administration’s aberrant “War on Terror” policies.

I have been covering al-Marri’s story in depth since June 2007, writing up the painful details of his torture and noting, with incredulity, the rulings of the courts who backed the Bush administration’s policies, but it was not until President Obama issued a Presidential memorandum on his second day in office, stating that it was “in the interests of the United States that the executive branch undertake a prompt and thorough review of the factual and legal basis for al-Marri’s continued detention, and identify and thoroughly evaluate alternative dispositions,” that his long and unjust isolation came to an end, and he was reintroduced to the justice system that had been prepared to try him back in June 2003.

It was at that point that President Bush declared him an “enemy combatant” and moved him to the US Naval Consolidated Brig in Charleston, South Carolina, where he was held until February this year, and where, in his first 16 months of chronic isolation, he was subjected to the type of “enhanced interrogation techniques” that were prevalent at the time in Guantánamo (as I explained at length in an article last December, “The Last US Enemy Combatant: The Shocking Story of Ali al-Marri”).

Al-Marri’s long years of extra-legal detention and torture — like those endured by two other Americans, Yasser Hamdi and Jose Padilla — are a black mark on America’s recent history, and it has always amazed me that even Americans who were — and are — content to let foreigners suffer in Guantánamo and other “War on Terror” prisons did not feel a shiver of apprehension when fellow Americans were subjected to the same treatment on US soil. Putting aside the ”terrorist” rhetoric, it should have been abundantly clear all along that this was the kind of tyranny that the Founding Fathers of the United States expressly set out to prevent.

In court on Thursday, al-Marri’s lawyers also urged the judge to reduce their client’s sentence because “he no longer harbored a desire to attack the United States,” and this is clear from a statement that al-Marri made in court (reproduced in full here). In what the New York Times described as “eight minutes of tearful testimony,” al-Marri told the judge, “I am sorry for providing assistance for those who would do this country harm,” and stated that he was “a changed person from the 2001 al-Marri,” explaining:

My religious beliefs — refined through years of thoughtful prayer and study during my incarceration — I realize prohibit me from engaging in violence toward any man. I forcefully reject any sort of violence for religious, political or other reasons. I say this to the court and I also state this to the representatives of my country who are present with us today. I know that the news people are here so I know my word will be received by those with whom I associated with in 2001. You have my word.

Al-Marri also spoke about the punishment of missing his children growing up, but it was the words about how he has changed that, for me, rang out most noticeably from the proceedings, overshadowing the prosecution’s claims that a psychologist claimed that al-Marri was “likely to engage in hostile acts towards the United States,” and setting a seal on this long and deeply unpleasant story of how, in response to a terrorist attack, the Bush administration sank to the level of those it sought to defeat, in the most appropriate setting for this conclusion: a federal court.

As President Obama prepares once more to revive the tainted Military Commissions at Guantánamo, I hope he has paid attention to the proceedings in Peoria on October 29, 2009, and has realized how hollow are the words of David B. Rivkin Jr., a lawyer who served in the Reagan and Bush Sr. administrations, who, as the Times described it, “questioned the Obama administration’s decision to try Mr. Marri in criminal court instead of the military commissions favored by the administration of President George W. Bush.”

Stating that the sentence “underscores how ‘ill suited’ conventional courts are for dealing with these issues,” Mr. Rivkin proceeded to complain that criminal courts are “a crapshoot,” with wildly varying sentences, and claimed that the Military Commissions “arrive at a better judgment, being comprised of warriors, as to what level of danger the person poses.”

With federal courts having a proven track record of dealing effectively with terrorist cases, and with just three results after eight years of the Military Commissions — each of which, in various ways, was regarded as compromised or inadequate — it is, frankly, difficult to perceive the logic in the world of “warriors” inhabited by Mr. Rivkin, and far more comprehensible to acknowledge the words of Jonathan Hafetz, a staff attorney at the ACLU. For many years, Mr. Hafetz led the challenge to al-Marri’s detention as an “enemy combatant,” and, as the Times noted, he called the sentence “a powerful reminder that America’s civilian courts can deliver justice even in the most challenging circumstances.”

This story 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.

Abu Zubaydah

This story was originally published on Truthout.

Abu Zubaydah, the first high-value detainee captured after 9/11, is expected to finally gain access to diaries he wrote during the years while he was being brutally tortured at secret black-site prisons by CIA interrogators.

A federal court judge has ordered the government to turn over unredacted volumes of the diaries and other “specified” writings to defense attorneys representing Zubaydah.

Although the order issued by US District Court Judge Richard Roberts on September 30 was filed under seal, Zubaydah’s attorney, Brent Mickum, said in an interview that while he could not discuss the substance of the ruling, it was his opinion that the order “should have been made public from the get-go” because “there’s nothing in [the order] that should be considered classified.”

In his motion, Mickum asked for original copies of the diaries to be released. It is not known whether Roberts’ order required the government to produce original versions of Zubaydah’s diaries. However, it is believed that Roberts’ order applies to three volumes of diaries Zubaydah wrote between 2002 and 2006, the time he spent in CIA custody and was tortured.

Those volumes, identified as seven, eight and nine, “were drafted while [Zubaydah] was in CIA custody,” according to court papers filed by Mickum last January. “Volumes 10 and 11 were completed in [Department of Defense] custody at Guantanamo, after September 2006; only these last two volumes, written after [Zubaydah] was transferred from CIA to DoD custody, were given to counsel in late 2008 by [Zubaydah] because they were in his possession.”

Mickum said he already has access to volumes one through six and 11 and 12. Though volumes one through six are unclassified, they have been designated by the government as “protected” and are not publicly available.

In a public summary describing his order, Roberts wrote that Mickum’s motion for “a preservation order and additional relief will be granted in part and denied in part, and [his] motion for an order requiring the [government] to return unredacted versions of [Zubaydah's] diaries and other specified writings to him will be granted in part and denied in part.”

The diaries have been the subject of legal wrangling for years. Justice Department attorneys in both the Bush and Obama administrations have argued that releasing unredacted copies of the diaries would constitute a threat to national security because they contain names of government employees, including an FBI agent, and names of individuals who assisted in translating the diaries from Arabic to English, plus information about ongoing counterterrorism efforts.

Mickum has filed numerous motions in federal court accusing the government of improperly classifying the diaries – even after portions have already surfaced in public documents – and abusing the classification process related to other materials in Zubaydah’s case.

For example, last August Mickum filed court papers seeking additional copies of Zubaydah’s medical records and an in-person medical evaluation, both of which Mickum says he needs in order to “challenge the lawfulness” of Zubaydah’s detention. The court previously ordered the release of medical records related to the more than 200 seizures Zubaydah has suffered since being transferred to Guantanamo in 2006.

The Justice Department balked and filed its opposition in the matter under seal. Mickum objected to the government’s “ongoing abuse of the classification system” in a motion he filed in federal court in June. The court hasn’t ruled on that motion yet although it has been fully briefed on the matter.

Mickum said he has not been able to mount a meaningful defense because the government continuously denies his requests for documents related to Zubaydah’s time in CIA custody.

“The government is preventing us from working up the case,” Mickum said. “They are trying to keep things closely guarded.”

A Justice Department spokesman would not return calls for comment regarding Judge Roberts’ ruling.

Zubaydah has written 11 volumes of his diary in a “slender bound notebook” and has started work on volume 12, according to court papers in the case filed last January. He wrote the first six volumes before his March 2002 arrest in Pakistan.

The government’s case against Zubaydah is based heavily on entries contained in the first six volumes of his diaries, according to court papers. But the materials were designated by the government as “protected,” even though the diaries are unclassified and both the defense team and Zubaydah have access to volumes one through six.

In a July 14 motion opposing the government’s attempt to “protect” volumes one through six, Mickum said he is not permitted to inform Zubaydah “which passages the government relied upon” in the charges it prepared against him as outlined in the “factual return.”

“The Government has redacted every reference to the unclassified volumes of [Zubaydah's] diary from the unclassified factual return,” Mickum’s motion states. “By removing every reference to the diary, the Government leaves very few of the relevant allegations against [Zubaydah] to be seen by the eyes of the public. Moreover, what is left is an incredibly misleading picture. For example, for several pages of the factual return, virtually the only words that are left unredacted are the names: Abu Hafs al-Masri, [al-Qaeda-in-Iraq leader] Abu Mas’ab al-Zarqawi, [self-professed 9/11 mastermind] and Khalid Sheik Mohammed, known al-Qaeda operative. What the public does not see if that the only reason these people are mentioned in [the government's] factual return is that they are alleged to have been in the same city as [Zubaydah]. The Government does not even allege [Zubaydah] had direct, or even indirect, contact with them.

“What possible explanation can the Government offer to justify that the diaries are unclassified but the quotations from the diaries upon which the government relies in the factual return are classified? There is none. By doing so, the Government simply demonstrates its disregard for the fact that the authority to designate unclassified information as protected properly belongs to the court.

“It is understandable that the Government would want to avoid the public criticism that may follow from an honest discussion of who [Zubaydah] was and how the Government mistreated him, but this is not a legitimate basis for sealing information [in his] case. [This is about] the Government’s simple desire to keep information about [Zubaydah] and the case against him secret, primarily to cover up evidence contradicting its own public misstatements about [Zubaydah] as well as potential evidence of further as-yet-undisclosed government wrongdoing.”

Mickum said diaries Zubaydah kept while in CIA custody will go a long way toward establishing the brutal treatment Zubaydah was subjected to – far surpassing what the public has learned thus far from declassified \Justice Department legal memos documenting the brutal methods, such as sleep deprivation and beatings, used by CIA interrogators against Zubaydah.

He added that the diaries contain a “list of names, dates and activities” that will assist the defense in generating leads and prove that Zubaydah was not a senior member of al-Qaeda.

But by designating the material as “protected,” the government “severely hinders [the defense team's] ability to prepare [Zubaydah's] defense and vindicate his constitutional entitlement to habeas corpus at numerous levels.”

Mickum opined that the government would force him to have potential witnesses sign an agreement stating that they would be bound by a protective order if he were to discuss the diaries with them. Mickum said that was impractical as his investigations “are taking place all over the world” and it would also have a “chilling effect” on foreign witnesses. “Counsel are right now seeking the cooperation of witnesses in foreign countries who can corroborate the substance of [Zubaydah's] defense, much of which is articulated in his diary,” Mickum’s July 14 court filing says. “The Government’s attempt to designate the diary as protected, if granted, would preclude counsel from conducting such crucial investigations.”

Zubaydah began keeping a diary in 1992, after he suffered a severe head injury while fighting communist insurgents in Afghanistan. The injury left “significantly impaired both his long- and short-term memory,” states Mickum’s January 14 court motion.

“He cannot remember his father’s name and dimly recalls that he looked like a movie star in the Arab world (whose name he cannot remember). He cannot remember the name of his business partner with whom he ran a news agency prior to his arrest. Long after his 1992 injury, once [Zubaydah] had recovered the ability to speak and write, he began to keep a diary. It is his memory. Without it, he is lost.”

Dan Coleman, a former FBI agent who analyzed the diaries, said he was convinced that Zubaydah was “certifiable” and was not a high-level official in al-Qaeda as top Bush administration officials had claimed. Rather, Coleman said, Zubaydah was more like heavyweight boxing champ Joe Louis, who worked as a greeter in Las Vegas at the end of his life.

According to author Ron Suskind, Zubaydah’s diaries were written in the voices of three people – Hani 1, Hani 2 and Hani 3, which, Suskind wrote in his book, “The One Percent Doctrine,” helps establish that Zubaydah was mentally ill.

Furthermore, Suskind wrote, “Zubaydah was a logistics man, a fixer, mostly for a niggling array of personal items, like the guy you call who handles the company health plan, or benefits, or the people in human resources. There was almost nothing ‘operational’ in his portfolio. That was handled by the management team. He wasn’t one of them.”

Suskind’s account closely matches what Jack Cloonan, a former FBI special agent assigned to the agency’s elite Bin Laden unit, told me in a recent interview. Cloonan said the CIA and the Bush administration were flat wrong in designating Zubaydah as a top official in al-Qaeda. Zubaydah “wasn’t privy to a lot of what I would consider to be a lot of really good operational details,” getting most of his information secondhand, Cloonan said.

Mickum denies that Zubaydah was privy to any operational details of al-Qaeda.

“My client was never, ever, even a member of al-Qaeda, much less a high-level operative,” Mickum told Truthout. “The camp he was alleged to have assisted was closed in 2000 by the Taliban. Leaders of the camp known as Khalden closed it rather than allowing it to fall under the control of Osama bin Laden and al-Qaeda because they disagreed with al-Qaeda’s missions and attacks on innocent civilians.” Cloonan agreed, for the most part, with Mickum’s characterization of Zubaydah.

“We thought [Zubaydah] would be best described as a logistical officer who managed a series of safe houses and was a great travel agent,” Cloonan said. “But to cast him and describe him as the al-Qaeda emir or leader for the subcontinent or worse … I think was a mistake…. Based on his age and ethnicity, [he] would [n]ever be brought into the inner circle of al-Qaeda.”

There was also the question of Zubaydah’s personality. “My partner had a chance to look at a lot of Abu Zubaydah’s diaries, poems and other things that he has written and he said that after reading this you just come away with the feeling that this is a guy who can’t be trusted or be given huge amounts of responsibility,” Cloonan said. “He just seemed mentally unstable…. “I’m not at all suggesting that Abu Zubaydah wasn’t valuable. Anytime you get one of these guys and get their cooperation, I think [it] is a win. You can get information that’s really valuable from people who are further down the food chain. It’s how you get the information and whether you’re getting real cooperation or simply compliance because somebody’s either waterboarding you or gets you on sleep deprivation.

“We know, and the science tells us, that people cannot recall details accurately, they can’t look at pictures, they will make things up if deprived of the bare essentials of life over the course of time. I don’t understand how you could sleep deprive somebody for 11 days and expect this person to provide you with accurate information.

“Even if they wanted to they’re probably so debilitated at this point they need to be rehabilitated before they ever give you anything.”

Zubaydah’s 2002 torture sessions were videotaped. But CIA officials destroyed the tapes and a special prosecutor was appointed to investigate whether federal laws were broken when the tapes were purged.

As I previously reported, CIA interrogators provided top agency officials in Langley with daily “torture” updates of Zubaydah. The extensive back-and-forth between CIA field operatives and agency officials in Langley likely included updates provided to senior Bush administration officials.

In justifying his torture, the Bush administration had maintained that Zubaydah was the No. 3 official in al-Qaeda and had information about pending terrorist attacks against the US. But documents, news reports, books and former FBI interrogators familiar with Zubaydah said he was a low-level figure in the terrorist organization and was mentally ill.

CIA interrogators waterboarded Zubaydah 83 times in one month, according to recently released documents, and placed him inside a coffin-like box for hours at a time. The Bush administration claimed it obtained actionable intelligence by torturing Zubaydah – an assertion contradicted by a CIA inspector general’s report on the agency’s torture and detention program.

CIA documents from a Combatant Status Review Tribunal in March 2007 revealed that Zubaydah’s torturers eventually apologized to him and said they concluded he was not a top al-Qaeda lieutenant as the Bush administration and intelligence officials had claimed.

“They told me sorry we discover that you are not number three [in al-Qaeda], not a partner, even not a fighter,” Zubaydah said during his tribunal hearing.

Mickum said volumes seven, eight and nine of Zubaydah’s diaries would shed further light on his brutal treatment while “in CIA custody and recount his torture and damaging exculpatory admission made by [Zubaydah's] torturers and other CIA officials.”

The diaries “are critically important to show what [Zubaydah] was doing during this time frame and contain exculpatory evidence.”

Public court filings also state that Zubaydah “created other relevant writings and drawings, none of which have been returned to him.” Although Mickum said he could not describe the drawings because they remain classified, but it appears likely that they may depict Zubaydah’s torture.

“You’ll just have to use your imagination as to what they might be,” Mickum said. Zubaydah’s “really good.”

But according to the American Civil Liberties Union, “U.S. policy continues to fall short of ensuring full compliance with the treaty.”

For example, the organization said that an appendix to the Army Field Manual (AFM) can still facilitate cruel treatment of prisoners and detainees at home and abroad.

The Convention Against Torture and Other Forms of Cruel, Inhuman or Degrading Treatment (CAT) is the most comprehensive international human rights treaty dealing exclusively with the issues of torture and abuse. It came into effect in 1987, and has been ratified by 146 countries.

The treaty was initially signed by the Ronald Reagan administration in 1988 and was ratified by the Senate on Oct. 21, 1994, but with reservations, understandings and declarations (RUDs) that failed to make the treaty fully applicable.

The administration of former President George W. Bush exploited these RUDs to justify abusive interrogation policies, including the use of waterboarding, stress positions, extreme isolation and sleep deprivation.

In 2006, the Committee Against Torture, which reviews country compliance with CAT, criticised the U.S. for failure to uphold the treaty and called for full compliance.

After taking office, President Barack Obama issued an executive order prohibiting torture. But under an appendix to the 2006 revised U.S. Army Field Manual – the most recent edition – practices considered incompatible with CAT and international law are still allowed. These include force-feeding, psychological torture, sleep and sensory deprivation.

And under Appendix M to the AFM, detainees can be “separated” or held in isolation from other detainees for 30 days, or longer with authorisation, and allowed only four hours of continuous sleep per night over 30 days, which can be prolonged upon approval.

Jamil Dakwar, director of the ACLU Human Rights Programmr, told us, “The president’s first nine months in office have signaled a policy shift on human rights and commitment to the rule of law. Certainly his speech to the U.N. and his Nobel Peace Prize have raised the bar of expectation as to his commitment to advancing human rights at home and abroad.”

But, he added, “There is still much more to do, including honouring and expanding U.S. human rights commitments and fully incorporating them into domestic policy. U.S. credibility abroad and commitment to human rights at home will be judged by deeds, not by words.”

“What is needed now is taking concrete actions to translate these commitments to a robust human rights policy. A new presidential executive order to reconstitute the Inter-Agency Working on Human Rights would be an important step forward,” Dakwar said.

“To fulfill its human rights requirements, the administration must also fully investigate crimes of torture committed in violation of U.S. and international law and withdraw the Army Field Manual’s Appendix M,” he added.

Since his inauguration, President Obama has helped restore U.S. standing on human rights by issuing executive orders to close the Guantánamo detention centre, prohibiting CIA prisons and enforcing the ban on torture, joining the U.N. Human Rights Council, signing the Convention on the Rights of Persons with Disabilities (CRPD), and prioritising the ratification of the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW).

While welcoming these steps, the ACLU is calling for additional concrete measures to reassert U.S. leadership on human rights, including the full investigation of torture crimes, abandoning the Guantánamo military commissions and renouncing the practice of holding detainees indefinitely without charge or trial.

The ACLU’s Dakwar told us he “expected the administration to announce concrete plans to implement and enforce ratified human rights treaties and the resurrection of the Interagency Working Group on Human Rights – disbanded during the Bush administration – to coordinate and promote human rights within domestic policy.”

He said, “There is hope and expectation within the human rights community that the president will make the announcement on resurrection of the Inter-Agency Working Group on Human Rights as soon as Dec. 10 – international human rights day and the day he will be receiving the Nobel Peace Prize.”

He noted that shortly after the U.S. elections, the ACLU and more than 50 U.S.-based human rights, civil rights, civil liberties and social justice organizations launched the Campaign for a New Domestic Human Rights Agenda, which identified concrete goals for pushing the administration and Congress to strengthen the U.S.’s commitment to human rights at home.

The campaign have four primary objectives. First is re-creation of the Interagency Working Group on Human Rights, first initiated in 1998 by President Clinton through an executive order, but effectively disbanded by the Bush administration in 2001. The call is for a new executive order to be issued with an improved and strengthened mandate.

Second is transformation of the U.S. Civil Rights Commission into a U.S. Civil and Human Rights Commission. The current commission was created in the 1950s with the mandate of monitoring and enforcing compliance with U.S. civil rights law.

In recent years, it has grown dysfunctional and been largely discredited. Currently there is a push to re-form the commission. The Leadership Conference for Civil Rights has taken the lead on the reform effort, and, along with the Campaign, has called for a new commission with a mandate to monitor the U.S.’s compliance with its human rights (as well as civil rights) commitments.

Third is implementation of recommendations by the U.N. Committee on the Elimination of Racial Discrimination (CERD) and to create a plan of action to enforce them at the domestic level.

Lastly, the Campaign is calling for implementation and coordination of human rights on the state and local level, particularly in partnership with state and local human rights and civil rights commissions.

Rage Against the Machine protesting Guantanamo Bay at the Reading festival. Photo: Chiaki Nozu/Filmmagic.com/Getty Images

Well, that took a while. Nearly a year after George W. Bush’s Republican party was voted out of office, and at least five years after reports first surfaced that music was being used in “War on Terror” facilities in Iraq, Afghanistan and Guantánamo as part of a package of “enhanced interrogation technique,” — which, in any world other than the reality-defying one inhabited by Dick Cheney and Donald Rumsfeld, would have been defined as torture — several noted musicians have spoken out to condemn the practice.

As was reported widely yesterday, REM, Pearl Jam, Trent Reznor, Tom Morello, and other artists including Jackson Browne, Billy Bragg, Michelle Branch, T-Bone Burnett, David Byrne, Rosanne Cash, Marc Cohn, Steve Earle, the Entrance Band, Joe Henry, Bonnie Raitt, Rise Against, and The Roots launched a formal protest against the use of music as torture.

In a statement, Tom Morello said, “Guantánamo is known around the world as one of the places where human beings have been tortured — from water boarding, to stripping, hooding and forcing detainees into humiliating sexual acts — playing music for 72 hours in a row at volumes just below that to shatter the eardrums. Guantánamo may be Dick Cheney’s idea of America, but it’s not mine. The fact that music I helped create was used as a tactic against humanity sickens me — we need to end torture and close Guantánamo now.”

REM added, “We signed onto the campaign in complete support of President Obama and the military leaders who have called for an end to torture and to close Guantánamo. As long as Guantánamo stays open, America’s legacy around the world will continue to be the torture that went on there. We have spent the past 30 years supporting causes related to peace and justice — to now learn that some of our friends’ music may have been used as part of the torture tactics without their consent or knowledge, is horrific. It’s anti-American, period.”

In a phone call, Rosanne Cash told the Washington Post, “I think every musician should be involved. It seems so obvious. Music should never be used as torture.” Cash said she reacted with “absolute disgust” when she heard about it, adding, “It’s beyond the pale. It’s hard to even think about.”

The protest was timed to coincide with a Freedom of Information Act request filed by the National Security Archive, an independent research institute in Washington D.C., which is seeking the declassification of all records related to the use of music in interrogation practices. It also coincided with a recent call by veterans and retired Army generals to shut Guantánamo, and TV and radio ads, which were launched this week by the National Campaign to Close Guantánamo, led by Tom Andrews, a former congressman from Maine.

Nevertheless, with the exception of Tom Morello (of Rage Against The Machine), whose music was used for torture, and who has been complaining about it since 2004, and Trent Reznor (Nine Inch Nails), whose music was also used, and who expressed his outrage last year when he first heard about it, few musicians have taken the issue on board before now.

Last July, when David Gray spoke out about his disgust that his music was used for torture, and the British-based legal charity Reprieve began campaigning about it, there was little interest. Christopher Cerf, who wrote the music for Sesame Street, (a music torture favorite) complained, but last December, when I wrote a detailed article about it, “A History of Music Torture in the ‘War on Terror,’” I surveyed a generally indifferent industry, in which some of those whose music had been used were indifferent (Bob Singleton, for example, who wrote the theme tune to Barney the Purple Dinosaur, another music torture favorite), others (Metallica) were ambivalent, and others (Drowning Pool, for example) were positively gleeful about it.

From many others (including AC/DC, Aerosmith, Christina Aguilera, the Bee Gees, Neil Diamond, Don McLean, James Taylor, Limp Bizkit, Marilyn Manson, Meatloaf, Pink, Prince, Queen, the Red Hot Chili Peppers, Britney Spears and Bruce Springsteen) there came nothing but an inappropriate silence, and even Eminem, whose anti-Bush credentials were clear from his songs “Mosh” and “White America,” remained quiet, even though, as the British torture victim Binyam Mohamed explained about his time in the CIA’s “Dark Prison” in Kabul in early 2004:

It was pitch black, and no lights on in the rooms for most of the time … They hung me up for two days. My legs had swollen. My wrists and hands had gone numb … There was loud music, Slim Shady and Dr. Dre for 20 days. I heard this non-stop over and over, I memorized the music, all of it, when they changed the sounds to horrible ghost laughter and Halloween sounds.  It got really spooky in this black hole … Interrogation was right from the start, and went on until the day I left there. The CIA worked on people, including me, day and night. Plenty lost their minds. I could hear people knocking their heads against the walls and the doors, screaming their heads off … Throughout my time I had all kinds of music, and irritating sounds, mentally disturbing. I call it
brainwashing.

Don’t get me wrong: it’s good that so many diverse groups and individuals are now making their voices heard, as part of a push to close Guantánamo as soon as possible (and to try to hold President Obama to his promise to close the prison by January 22, 2010), but it would have had more impact before last November, when the torturers were still in the White House.

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

Fouad al-Rabia

In four years of researching and writing about Guantánamo, I have become used to uncovering shocking information. But for sheer cynicism, I am struggling to think of anything that compares to the revelations contained in the unclassified ruling in the habeas corpus petition of Fouad al-Rabiah, a Kuwaiti prisoner whose release was ordered last week by U.S. District Court Judge Colleen Kollar-Kotelly.

In the ruling, to put it bluntly, it was revealed that the US government tortured an innocent man to extract false confessions and then threatened him until he obligingly repeated those lies as though they were the truth.

The background: Lies hidden in plain sight for five years

To establish the background to this story, it is necessary for me to return to my initial response to the ruling a week last Friday, before these revelations had been made public, when, based on what I knew of the case from the publicly available documents, I explained that I was disappointed that the Obama administration had pursued a case against al-Rabiah, alleging that he was a fundraiser for Osama bin Laden and had run a supply depot for al-Qaeda in Afghanistan’s Tora Bora mountains, for two particular reasons.

The first was because a CIA analyst had interviewed al-Rabiah at Guantánamo in the summer of 2002 and had concluded that he was an innocent man caught at the wrong time and in the wrong place; and the second was because, although al-Rabiah had said that he had met bin Laden and had been present in the Tora Bora mountains, he had provided an innocent explanation for both occurrences. He had, he said, been introduced to bin Laden on a trip to Afghanistan to investigate proposals for a humanitarian aid mission, and he had been at Tora Bora — and compelled to man a supply depot — because he was one of numerous civilians caught up with soldiers of al-Qaeda and the Taliban as he tried to flee the chaos of Afghanistan for Pakistan, and had been compelled to run the depot by a senior figure in al-Qaeda.

These appeared to be valid explanations, especially as al-Rabiah, a 42-year old father of four children, had no history of any involvement with militancy or terrorism, and had, instead, spent 20 years at a management desk job at Kuwait Airways, and had an ownership interest in some health clubs. Moreover, he had a history of legitimate refugee relief work, having taken a six-month approved leave of absence from work in 1994-95 to do relief work in Bosnia, having visited Kosovo with the Kuwaiti Red Crescent in 1998, and having made a trip to Bangladesh in 2000 to delivery kidney dialysis fluid to a hospital in the capital, Dhaka.

As a result, it appeared to me a week last Friday that Judge Kollar-Kotelly granted al-Rabiah’s habeas petition because neither his meeting with bin Laden nor his presence in Tora Bora indicated that he was either a member of, or had supported al-Qaeda or the Taliban.

However, now that Judge Kollar-Kotelly’s ruling has been issued, I realize that the account given by al-Rabiah during his Combatant Status Review Tribunal at Guantánamo in 2004 — on which I based my account of his activities — was a tissue of lies, and that the truth, hidden for over six years, is that, like torture victims groomed for show trials throughout the centuries, he made up false stories under torture, and repeated them obediently, fearing further punishment and having been convinced that he would never leave Guantánamo by any other means.

An introduction to the torture revelations, and an endorsement of al-Rabiah’s explanations about his time in Afghanistan

In her ruling, Judge Kollar-Kotelly methodically dissected the government’s case to reveal the chilling truth. After noting, initially, that the “evidentiary record” was “surprisingly bare,” because the government “has withdrawn its reliance on most of the evidence and allegations that were once asserted against al-Rabiah, and now relies almost exclusively on al-Rabiah’s ‘confessions’ to certain conduct,” she added, with a palpable sense of disbelief:

Not only did al-Rabiah’s interrogators repeatedly conclude that these same confessions were not believable — which al-Rabiah’s counsel attributes to abuse and coercion, some of which is supported by the record — but it is also undisputed that al-Rabiah confessed to information that his interrogators obtained from either alleged eyewitnesses who are not credible and as to whom the Government has now largely withdrawn any reliance, or from sources that never even existed … If there exists a basis for al-Rabiah’s indefinite detention, it most certainly has not been presented to this Court.

In dealing with al-Rabiah’s background, and his reasons for traveling to Afghanistan, Judge Kollar-Kotelly was required to consider his own assertion that, after a preliminary ten-day visit in July 2001 to identify areas where humanitarian aid might be delivered, he returned in October 2001 “to complete a fact-finding mission related to Afghanistan’s refugee problems and the country’s non-existent medical infrastructure,” against the government’s claim that he was “‘not an aspiring aid worker caught up in the front lines of the United States war against al-Qaeda’ but instead was someone who traveled to Afghanistan in October 2001 as a ‘devotee of Osama bin Laden who ran to bin Laden’s side after September 11th.’”

Concluding that “the evidence in the record strongly supports al-Rabiah’s explanation,” Judge Kollar-Kotelly noted that he had officially requested leave prior to his departure, and quoted from two letters sent to his family. In the first, on October 18, 2001, he explained that “for ten days he assisted with the delivery of supplies to refugees and that he was able to take video ‘reflecting the tragedy of the refugees,’ but that he was unable to leave Afghanistan through Iran (the route he took to enter the country) because the borders had been closed.” As a result, he “wrote in his letter that he and an unspecified number of other persons decided ‘to drive four trucks to Pakistan making our way to Peshawar,’” and he also asked his brother to notify his boss at Kuwait Airlines that he was having difficulties returning to Kuwait on time.

After noting that “The evidence in the record establishes that al-Rabiah did, in fact, travel across Afghanistan towards Peshawar, ultimately getting captured (unarmed) by villagers outside of Jalalabad … on approximately December 25, 2001” (with Maher al-Quwari, a Palestinian who also ended up in Guantánamo), Judge Kollar-Kotelly quoted from a second letter sent to his family, in which — ironically, in light of what was to come — he wrote that he was “detained by the American troops and thanks to God they are good example[s] of humanitarian behavior.” He added that he was “detained pending verification of [his] identity and personality,” and that the “investigation and verification procedures may last for a long time due to the great number of detained Arabs and other persons” who had been fleeing the situation in Afghanistan, which “turned upside down between one day and night and every Arab citizen has become a suspect.”

Discrediting the government’s unreliable witnesses

Moving on to the government’s key allegations — about Osama bin Laden and Tora Bora — Judge Kollar-Kotelly dismissed the allegations regarding al-Rabiah’s supposed activities in Tora Bora, which were made by another prisoner who claimed that he “was told that al-Rabiah was in charge of supplies at Tora Bora,” by noting that, “Although his allegations are filled with inconsistencies and implausibilities, the Government continues to rely on him as an eyewitness.” She also noted that, although the witness had identified al-Rabiah as the man under discussion, from his kunya (nickname), Abu Abdullah al-Kuwaiti, the government had conceded that another Abu Abdullah al-Kuwaiti, an actual al-Qaeda operative named Hadi El-Enazi, was present in Tora Bora, and also noted that an interrogator had expressed doubt about the supposed eyewitness at the time (much of the ruling is redacted, but this seemed to involve a claim that al-Rabiah’s oldest son was with him in Afghanistan, when this was demonstrably not the case).

Judge Kollar-Kotelly also dismissed two other sets of allegations by the supposed eyewitness. Noting further “inconsistencies and impossibilities” in his accounts, she stated that “the Court has little difficulty concluding that [his] allegations are not credible,” and explained that, to reach this conclusion, she had also drawn on statements provided by al-Rabiah’s lawyers, which further undermined his reliability, “based on, among other things, undisputed inconsistencies associated with his allegations against other detainees,” and his medical records, which obviously indicated mental health problems (although the description was redacted). “At a minimum,” she added, “the Government would have had to corroborate [his] allegations with credible and reliable evidence, which it has not done.”

Osama bin Laden, it then transpired, appeared in allegations made by a second prisoner, who “alleged that al-Rabiah attended a feast hosted by Osama bin Laden,” where he “presented bin Laden with a suitcase full of money.” This source also alleged that al-Rabiah “served in various fighting capacities in the Tora Bora mountains,” and that he “funneled money to mujahadeen in Bosnia in 1995.”

After noting that the government had dropped “almost all” of these allegations, except for the one relating to Bosnia, Judge Kollar-Kotelly stated, witheringly, “the only consistency with respect to [these] allegations is that they repeatedly change over time.” For particular condemnation, she singled out one claim that the feast had taken place in August 2001 (when al-Rabiah was in Kuwait, before his return to Afghanistan in October 2001), amongst other more outlandish claims, including an absurd allegation that al-Rabiah had trained the 9/11 hijackers.

As with the first supposed eyewitness, Judge Kollar-Kotelly noted that there were “multiple exhibits in the record demonstrating [his] unreliability as a witness” (although, sadly, the exact number of prisoners against whom he had made verifiably false allegations was redacted), and concluded that, although the many “inconsistencies and impossibilities” in his statements “raise, at a minimum, a serious question about [his] mental capacity to accurately make allegations against al-Rabiah,” the government “did not address them at the Merits Hearing” in August.

After dismissing a third supposed eyewitness, because he had withdrawn his allegation (which was redacted) several months after making it, Judge Kollar-Kotelly dismissed a fourth, even though it was “undisputed” that al-Rabiah actually had contact with him in Afghanistan. Despite redactions, it seems that this man was Maher al-Quwari, and that his statement involved second-hand hearsay about al-Rabiah being seen with a gun. While this was sufficiently weak for the judge not to accept it without further corroboration, she also made a point of discounting it because the supposed witness only “made this allegation while he was undergoing a cell relocation program at Guantánamo called the ‘frequent flier program,’ which prevented a detainee such as [redacted] from resting due to frequent cell movements.”

While the description of a “cell relocation program” sounds relatively benign, Judge Kollar-Kotelly made a point of noting that it was, in fact, a program of sleep deprivation, adding that, “According to a report published by the Senate Armed Services Committee concerning the treatment of detainees in United States custody, sleep deprivation was not a technique that was authorized by the Army Field Manual.” Although she also noted that “sleep deprivation became authorized at Guantánamo by the Secretary of Defense on April 16, 2003, the guidance issued by the Commander of USSOUTHCOM on June 2, 2003 prohibited the use of sleep deprivation for more than ‘four days in succession,’” whereas the supposed witness’s “allegation against al-Rabiah was made after one week of sleep deprivation in the program, and he did not repeat this allegation either before or after the program.”

False confessions obtained through torture

Despite ruling out all of the government’s supposed eyewitnesses, and noting that the government had withdrawn “most of its reliance on these witnesses” by the time of the Merits Hearing, Judge Kollar-Kotelly added that “it is very significant that al-Rabiah’s interrogators apparently believed these allegations at the time they were made, and therefore sought to have al-Rabiah confess to them” — despite the well-chronicled unreliability of the first two supposed witnesses, the withdrawing of the statement made by the third, and the fact, easily perceived by the judge, that the fourth made his statement only after being subjected to sleep deprivation that exceeded established guidelines and that was, therefore, not only unreliable, but also abusive.

The judge also noted the significance of the evidence in the record indicating that al-Rabiah “subsequently confided in interrogators [redacted] that he was being pressured to falsely confess to the allegations discussed above,” and also the significance of the fact that, although “al-Rabiah’s interrogators ultimately extracted confessions from him,” they “never believed his confessions based on the comments they included in their interrogation reports.”

After noting — again with a palpable sense of incredulity — that “These are the confessions that the Government now asks the Court to accept as evidence in this case,” Judge Kollar-Kotelly proceeded to demolish them all, breaking them down into three periods: the first, when “there were no allegations directed toward al-Rabiah and al-Rabiah provided no confessions”; the second, when the supposed eyewitnesses “made their now-discredited allegations and al-Rabiah was told of the allegations against him, but al-Rabiah nevertheless made no confessions”; and the third (which, shockingly, continued “until the present”), when “al-Rabiah confessed to the now-discredited allegations against him, as well as to other ‘evidence’ that interrogators told him they possessed, when, in fact, such evidence did not exist.”

In the first phase, Judge Kollar-Kotelly noted that there was no indication “that interrogators believed al-Rabiah had engaged in any conduct that made him lawfully detainable,” and explained that, “To the contrary, the evidence in the record during this period consists mainly of an assessment made by an intelligence analyst that al-Rabiah should not have been detained.” As discussed in my previous article, this analyst was “a senior CIA intelligence analyst, who, almost uniquely, was also an Arabic expert,” but although I wrote that “it amaze[d] me that no one in the Justice Department, under President Obama, investigated the CIA analyst’s report,” the truth, as revealed in the unclassified ruling, is even bleaker.

It transpires that Justice Department officials had read the report, but tried to discredit the analyst’s verdict, “arguing that it represented the opinion of only one analyst,” ignoring his well-chronicled expertise, and obliging the judge to point out that, “according to the Government’s own evidence, ‘[i]ntelligence analysts undergo rigorous tradecraft training [and] employ specific analytical tools to assist them in sorting and organizing various pieces of information,” and are also “trained to recognize and mitigate biases, not only in the information presented to them, but their own cognitive biases as well.”

In the second phase, despite extensive redactions to the ruling, it is clear that al-Rabiah was repeatedly interrogated, although he “express[ed] frustration to FBI agents that he was repeatedly asked, among other questions, whether he had ever seen Osama bin Laden, and remark[ed] that his answer was ‘no’ and would continue to remain ‘no.’” What happened next, in a “new three-pronged approach,” is unknown, as the details are severely redacted, but it “did not result in any confessions. Al-Rabiah repeatedly denied the allegations against him.”

After this, apparently following some kind of advice given to the lead interrogator (by an unknown party whose identity and suggestions were redacted), the interrogators “began using more aggressive interrogation tactics.” Again, the details are redacted, but enough information is available from passages that were not redacted earlier in the ruling to indicate that these “tactics” included sleep deprivation (the “frequent flier program”), which, as I explained in my previous article, led three British men released in March 2004 — the so-called “Tipton Three,” whose story was dramatized in the film “The Road To Guantánamo” — to explain that al-Rabiah was moved every two hours, over an unspecified period of time (but one that clearly exceeded the four-day recommendation by a substantial margin), leaving him “suffering from serious depression, losing weight in a substantial way, and very stressed because of the constant moves, deprived of sleep and seriously worried about the consequences for his children.”

Possibly in reference to the use of sleep deprivation (although it could also have been another “enhanced interrogation technique”), Judge Kollar-Kotelly explained that, “Once it became authorized, it could not be used on a detainee until ‘the SOUTHCOM Commander ma[de] a determination of “military necessity” and notif[ied] the Secretary [of Defense] in advance’ of its use,” and also made a point of noting that “the Government was unable to produce any evidence that [the interrogator] obtained authorization to use the [redacted] technique with al-Rabiah despite requests by the Court at the Merits Hearing for such evidence.”

Although the other techniques are not described, they undoubtedly included some or all of the following — prolonged isolation, the use of extreme heat and cold, short-shackling in painful stress positions, forced nudity, forced grooming, religious and sexual humiliation, and the use of loud music and noise — because this whole package of techniques, including sleep deprivation, was approved for use at the highest levels of the Bush administration, as a Senate Committee explained in the detailed report in April this year that was cited by the judge. The program was based on reverse engineering techniques taught in US military schools (the SERE program — Survival, Evasion, Resistance, Escape) to train recruits to resist interrogation if captured by enemy forces.

These techniques were acknowledged to be illegal and, moreover, were intended to produce false confessions, but this did not prevent senior Bush officials from pushing for their implementation, and, in al-Rabiah’s case, they duly led to his conversion from an innocent man who refused to falsely confess to allegations produced by unreliable witnesses into a modern-day version of the victims of the Spanish Inquisition, the seventeenth century “witches” of Salem and elsewhere, the victims of Stalin’s show trials, or the captured US pilots on whom the North Koreans had practiced the techniques adopted by the SERE schools: a broken man prepared not only to falsely confess to any lies put before him, but also prepared to learn these confessions and repeat them as his masters saw fit.

As the ruling makes clear, between redactions, “The following day marked a turning point in al-Rabiah’s interrogations,” and “From that point forward, al-Rabiah confessed to the allegations that interrogators described to him.” Despite the extensive redactions, the following passage from the ruling makes clear the full horror of his confessions:

Al-Rabiah’s confessions all follow the same pattern: Interrogators first explain to al-Rabiah the “evidence” they have in their possession (and that, at the time, they likely believed to be true). Al-Rabiah then requests time to pray (or to think more about the evidence) before making a “full” confession. Finally, after a period of time, al-Rabiah provides a fill confession to the evidence through elaborate and incredible explanations that the interrogators themselves do not believe. This pattern began with his confession that he met with Osama bin Laden, continued with his confession that he undertook a leadership role in Tora Bora, and repeated itself multiple other times with respect to “evidence” that the Government has not even attempted to rely on as reliable or credible.

In the following pages of the ruling, which are again fill of redactions, it is nevertheless possible to glimpse the progress of this game that was not only grim and cynical, but also potentially deadly (because, as a prisoner put forward for a trial by Military Commission, it was always possible that the government would have pressed for the death sentence had al-Rabiah been convicted).

For page after page the distressing truth peeks out: al-Rabiah “did not know what to admit” when his interrogators explained that his “full confession did not incorporate a description concerning a suitcase full of money that he allegedly gave bin Laden”; they “began to question the truthfulness of his confessions almost immediately”; they “began ‘grilling’ al-Rabiah concerning [redacted]”; al-Rabiah “was interrogated [redacted] during which he made a full confession regarding his activities at Tora Bora”; interrogators “pressed for additional details concerning Tora Bora”; they “became increasingly convinced that his confessions [redacted]”; they “concluded in one interrogation report [redacted]”; “One week later, his interrogator concluded [redacted]”; “After several additional interrogation sessions, al-Rabiah’s interrogators concluded simply [redacted].”

Readers can fill in the gaps through the judge’s response to the redacted passages. “Incredibly,” she wrote, “these are the confessions that the Government has asked the Court to accept as truthful in this case.”

Al-Rabiah explains his cooperation with the interrogators; threats and punishment described

Judge Kollar-Kotelly then dismissed further allegations, which again, were mostly redacted but included the following ironic gem: “The Government has not even attempted to explain how someone with no known connection to al-Wafa [a Saudi charity regarded, during Guantánamo’s “witch-hunt” phase, with particular suspicion] and who had never even been to Afghanistan longer than a few weeks could ascend to such an honored position, and no credible explanation is contained in the record.”

She then moved on to al-Rabiah’s own explanations of how he came to make false confessions, noting that he had stated that, shortly after his arrival at Guantánamo, “a senior [redacted] interrogator came to me and said, ‘There is nothing against you. But there is no innocent person here. So, you should confess to something so you can be charged and sentenced and serve your sentence and then go back to your family and country, because you will not leave this place innocent.”

This is deeply disturbing, of course, as it indicates that at least one senior interrogator recognized that the Bush administration’s refusal to recognize that there were innocent men at Guantánamo — and it has been clear for many years that hundreds of innocent men were held, who had no connection whatsoever to any form of militancy, let alone terrorism — had set in motion a system in which, whether voluntarily or not, all the innocent men at Guantánamo were expected to make false confessions, either so that they could continue to be labeled as “enemy combatants” on release, to maintain the illusion that Guantánamo was full of “the worst of the worst,” or, as in al-Rabiah’s case, so that they could be tricked and transformed into terrorist sympathizers and facilitators.

For some (and it has been confirmed by a former interrogator that at least 100 prisoners in Guantánamo were subjected to SERE-derived “enhanced interrogation”), confessions clearly came easily, and without the use of abuse or torture, but for others, including al-Rabiah, “pressure” was involved. Judge Kollar-Kotelly drew on a declaration from March this year, in which he explained that his confessions arose out of “scenarios offered … by [his] interrogators … which [he] believed to be the story they wanted [him] to tell and which [he] felt pressured to adopt” (emphasis added). As he also explained:

[M]y interrogators told me they knew I had met with Osama bin Laden, that other detainees had said I met with Osama bin Laden, that there was nothing wrong with simply meeting Osama bin Laden, and that I should admit meeting him so I could be sent home … In about August 2004, shortly before my CSRT hearing [the tribunal at which al-Rabiah repeated his approved confessions in detail], my interrogators told me the CSRT was just a show that would allow the United States to “save face.” My interrogators told me no one leaves Guantánamo innocent, and told me I would be sent home to Kuwait if I “admitted” some of the false things I had said in my interrogations. The interrogators also told me that I would never go home again if I denied these things, because the United States government would never admit I had been wrongly held.

In a key passage, he spelled out what being “pressured” meant. As the judge explained, he stated that “he made his confessions to reduce the abuse meted out by his interrogators ‘to obtain confessions that suited what [they] thought they knew or what they wanted [him] to say.’ He maintained his confessions over time because ‘the interrogators would continue to abuse me anytime I attempted to repudiate any of these false allegations.’” As she also noted:

There is substantial evidence in the record supporting al-Rabiah’s claims. The record is replete with examples of al-Rabiah’s interrogators emphasizing a stark dichotomy — if he confessed to the allegations against him, his case would be turned over to [redacted] so that he could return to Kuwait; if he did not confess, he would not return to Kuwait, and his life would become increasingly miserable.

Through the veil of redactions, it is clear that al-Rabiah attempted, on more than one occasion, to withdraw his confessions, but that his interrogators threatened to withdraw something (food? comfort items?) as a result, and Judge Kollar-Kotelly also noted that punishment, as well as the threat of punishment, was meted out to him. “The record,” she wrote, “also supports al-Rabiah’s claims that he was punished for recanting.” Examples provided by the judge were redacted, but the following passage, in which she discussed further abuse as a result of the interrogators’ frustrations regarding al-Rabiah’s inability to invent a coherent false narrative, was not. She wrote:

The record contains evidence that al-Rabiah’s interrogators became increasingly frustrated because his confessions contained numerous inconsistencies or implausibilities. As a result, al-Rabiah’s interrogators began using abusive techniques that violated the Army Field Manual and the 1949 Geneva Convention Relative to the Treatment of Prisoners of War. The first of these techniques included threats of rendition to places where al-Rabiah would either be tortured and/or would never be found.

These threats were made on at least four occasions, and, as the judge explained, “were also reinforced by placing al-Rabiah into the frequent flier program,” discussed above. It is also apparent that the threats continued throughout this period, as the judge also noted that “al-Rabiah’s interrogators continued to threaten him [redacted].”

After making a point that, as explained in the Army Field Manual, “prohibited techniques [are] not necessary to gain the cooperation of interrogation sources,” and, in fact, that the use of these methods is likely to “yield unreliable results, may damage subsequent collection efforts, and can induce the source to say what he thinks the interrogator wants to hear,” Judge Kollar-Kotelly added that, “Underscoring the impropriety of these techniques is the fact that [redacted], al-Rabiah’s lead interrogator, was disciplined for making similar threats during the same period toward a Guantánamo detainee who was also one of the alleged eyewitnesses against al-Rabiah … for which he was disciplined” (the details, predictably, were redacted).

Judge Kollar-Kotelly’s devastating conclusions

Judge Kollar-Kotelly added, pointedly, “These abusive techniques did not result in any additional confessions from al-Rabiah, although he continued to parrot his previous confessions with varying degrees of consistency,” and then reached her devastating conclusion:

The Court agrees with the assessment of al-Rabiah’s interrogators, as well as al-Rabiah’s counsel in this case, that al-Rabiah’s confessions are not credible. Even beyond the countless inconsistencies associated with his confessions that interrogators identified throughout his years of detention, the confessions are also entirely incredible. The evidence in the record reflects that, in 2001, al-Rabiah was a 43 year old who was overweight, suffered from health problems, and had no known history of terrorist activities or links to terrorist activities. He had no military experience except for two weeks of compulsory basic training in Kuwait, after which he received a medical exemption. He had never traveled to Afghanistan prior to 2001. Given these facts, it defied logic that in October 2001, after completing a two-week leave form at Kuwait Airlines where he had worked for twenty years, al-Rabiah traveled to Tora Bora and began telling senior al-Qaeda leaders how they should organize their supplies in a six square mile mountain complex that he had never previously seen and that was occupied by people whom he had never met, while at the same time acting as a supply logistician and mediator of disputes that arose among various fighting factions.

It remained only for Judge Kollar-Kotelly to replay some of the more obvious discrepancies in al-Rabiah’s “confessions” to demolish the government’s claims that they should be accepted as “reliable and credible,” and to refute the government’s argument that, “even if al-Rabiah’s confessions in 2003 were the product of abuse or coercion … the taint … would have dissipated” by the time of his CSRT in 2004, when he provided the painstakingly detailed and superficially plausible false confession that was the only publicly available account of his activities until Judge Kollar-Kotelly’s ruling was released.

Taking exception to the government’s argument “for both factual and legal reasons,” the judge took particular note of the role played by al-Rabiah’s lead interrogator, “who extracted al-Rabiah’s confessions and punished his recantations,” noting that he “continued to make ‘appearances’ at al-Rabiah’s interrogations at least as late as [redacted] — after al-Rabiah’s testimony in his CSRT proceedings.” She also explained, “Such ‘appearances’ appear to have been terrifying events for al-Rabiah given the description included in a [redacted] interrogation report” (the details of which were, again, redacted).

On a legal basis, she dismissed the government’s argument by explaining that, although “it is certainly true in the criminal context that coerced confessions do not necessarily render subsequent confessions inadmissible because the coercion can be found to have dissipated,” there needs to be evidence of “a ‘clean break’ between the coercion and the later confessions,” which is simply not available in al-Rabiah’s case. “If anything,” she concluded, “the evidence suggests that there was not a ‘clean break’ between the coercion and his later statements because there is evidence that [redacted] continued to appear at al-Rabiah’s interrogation sessions through at least September 2004” (the date redacted in the paragraph above).

As a final stab at the government, she mentioned a statement made by al-Rabiah in May 2005, and submitted to his first annual Administrative Review Board (the military panels that reviewed the bases for prisoners’ ongoing detention), which had not surfaced until the Merits Hearing, in which al-Rabiah attempted to set the record straight, “recant[ing] all of his previous confessions with the sole exception of one admission that he saw [but did not meet] Osama bin Laden during his July 2001 trip to Afghanistan.”

After dealing with a few more ingenious but flawed claims by the government, it remained only for Judge Kollar-Kotelly to recap the whole sorry saga, and to deliver the final words to restore Fouad al-Rabiah’s liberty:

During the merits Hearing, the Government expressly relied on “Occam’s Razor,” a scientific and philosophic rule suggesting that the simplest of competing explanations is preferred to the more complex … The Government’s simple explanation for the evidence in this case is that al-Rabiah made confessions that the Court should accept as true. The simple response is that the Court does not accept confessions that even the Government’s own interrogators did not believe. The writ of habeas corpus shall issue.

Final words

Judge Kollar-Kotelly’s ruling will, hopefully, be recalled in years to come as one of the most significant examples of a judge attempting to redress some of the most egregious injustices perpetrated in Guantánamo’s long, dark history. The shocking sub-text to this story is that al-Rabiah is not the only prisoner to have been brutalized into making false confessions, and then being required to repeat them. Ahmed al-Darbi, a Saudi put forward for a trial by Military Commission, made similar claims in a statement posted here, and, as I mentioned above, it is also clear that SERE-derived “enhanced interrogation techniques” were applied to at least 100 prisoners in Guantánamo between 2002 and 2004, above and beyond those like Mohammed al-Qahtani and Mohamedou Ould Slahi, whose stories are well-known. Many of these men — all the Europeans, other Arabs who had the misfortune to speak good English or to have visited the United States — have been released, their false confessions (like those made by the “Tipton Three” after months of abuse, before their lawyers proved one of them was working in a shop in England when he was supposedly videotaped at a training camp) filed away, used to justify their lifelong label as “enemy combatants,” but not leading, as with Fouad al-Rabiah, to a court appearance where the supposed evidence will ever be tested.

Al-Rabiah was fortunate to meet a judge with an inquiring and diligent mind, and an acute awareness of the many problems with the gathering and interpretation of information at Guantánamo, but others have not yet had an opportunity to do the same, and although further habeas petitions are forthcoming, and others are scheduled to face either trials by Military Commission or federal court trials, where similar patterns of false allegations followed by torture and false confessions may be detected, it troubles me that the 50 or so prisoners identified by officials last week as being candidates for indefinite detention — described by the New York Times as those who “are a continuing danger to national security but who cannot be brought to trial for various reasons, like evidence tainted by harsh interrogations” — may also have been caught up in a cynical cycle of false allegations, torture and false confessions.

As David Cynamon, one of Fouad al-Rabiah’s attorneys, explained to me in an email exchange:

To date, the debate about torture in the US has been skewed by the fact that the admitted victims of torture are also admitted al-Qaeda leaders, like Khalid Sheikh Mohammed. This gives the Cheneys and Wall Street Journal types the argument that torture was justified to get valuable information from these hardened terrorists. I know this argument is wrong, but it’s being made, with some effect. But what happens when you declare the Geneva Conventions “quaint,” and lift all limits, is that pretty quickly the abusive interrogation techniques are not being limited to the KSMs but are being applied to innocent prisoners like Fouad al-Rabiah, who have no valuable intelligence because they have no connection with al-Qaeda or the Taliban. Instead, they are tortured in support of a cynical and misguided dictum that there can be no innocent men in Guantánamo.

It is hard to believe that the US could ever have sunk so low. And that the new Administration is keeping us down there. The Obama Department of Justice, with Attorney General Holder piously proclaiming that this Administration repudiates torture, and follows the rule of law, in fact is following the Bush playbook to the letter. In this case, the DoJ defended the abusive and coercive interrogation techniques used against Fouad. Thank God, though, that we have an independent judiciary. The importance of the writ of habeas corpus and independent judges has never been more clear.

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 by johnnyalive via flickr

A close reading of the CIA’s Inspector General Report and the Senate Intelligence Committee’s narrative on the Office of Legal Counsel (OLC) torture memos reveals a more detailed picture of the CIA’s involvement in the construction of those documents.

What emerges is consistent with recent charges of CIA experimentation on prisoners, and of the overall experimental quality of the torture program itself.

It also points to a crucial piece of “analysis” by the CIA’s Office of Technical Services, a memo which may or may not include damning medical and psychological evidence of the damaging effects of SERE techniques, and which the IG report maintains was utilized “in substantial part” in the drafting of the August 1, 2002 Bybee memos. If one is looking for a smoking gun in the torture scandal, in my opinion, one doesn’t have to look much further than this.

The quote below is from the April 22, 2009 Senate Intelligence Committee narrative of the Office of Legal Counsel’s opinions on the CIA’s interrogation program. Please keep in mind as you read the quote and the added bolded emphasis, that recent documentation has shown that for years the CIA and Special Operations had researchers studying the effects of SERE training.

Moreover, the research had been published in peer-reviewed journals, in part because the research was also meant to add to the psychiatric community’s understanding of the mechanisms of Post-traumatic Stress Disorder. Some of the research had also been published in the June 2000 edition of Special Warfare, “The Professional Bulletin of the John F. Kennedy Special Warfare Center and School.”

So, keeping this all in mind, consider the following from the Intel Committee’s narrative (emphasis added):

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

The CIA’s Office of General Counsel subsequently asked OLC to prepare an opinion about the legality of its proposed techniques. To enable OLC to review the legality of the techniques, the CIA provided OLC with written and oral descriptions of the proposed techniques. The CIA also provided OLC with information about any medical and psychological effects of DoD’s Survival, Evasion, Resistance and Escape (SERE) School, which is a military training program during which military personnel receive counter-interrogation training.

While the fact that the OLC accepted at face value the CIA’s statements regarding the safety or the effects of the interrogation procedures they were proposing is no surprise to anyone who has read the torture memos — and evidence of the unprofessionalism and bias of the memo’s authors — the degree to which the conspiracy (by CIA or OLC, or both) to withhold evidence of the real effects of the “Enhanced Interrogation Techniques” (EITs) by the CIA has never been made more concrete than now.

To my knowledge, we do not have the specific document wherein the CIA provides the “medical and psychological effects” of SERE school. I have been told that this document is still classified. But it seems possible that the CIA did pass on the details of the research that was available to it, including the debilitating effects of SERE techniques, which sent stress hormone levels, according to one research report, “some of the greatest ever documented in humans.” Another report cited “neuroendocrine changes… [that] may have significant implications for subsequent responses to stress.”

One of the authors of these reports, Charles A. Morgan, III, M.D., who has identified himself in certain settings as a “Senior Research Scientist” on the CIA’s Behavioral Science Staff, has criticized my coverage of CIA experiments on the psychological and physiological effects of SERE training upon human subjects. While he could not specify what aspects of this coverage he felt were “inaccurate and misleading,” he did insist:

The research conducted by our research team at the National Center for Post Traumatic Stress Disorder is not, and never has been, conducted for any other purpose than to help us understand the pathophysiology of stress disorders and we might better help in the treatment of veterans.

In making his mea culpa, Dr. Morgan never mentions that some of this research was funded (over $400,000) by the Army and the Office of Naval Research. He doesn’t mention his acquaintance with “great people who do military interrogations.” He also forgets to cite his book contribution, where he states (emphasis added):

The SERE training environment affords the military services the opportunity to collaborate with various other government agencies in exploring old and new techniques in gathering human intelligence.

Of course, he neither confirms nor denies his affiliation with the CIA, an affiliation which I have traced to the CIA’s Science and Technology directorate, through his association (large PDF) with the Intelligence Technology Innovation Center, which is “a research organization under the CIA’s authority” that “answers directly to the CIA’s Science and Technology directorate.”

But most of all, Dr. Morgan’s arrows fall way short of his target, as I have never accused him of personal involvement in the reverse-engineering of SERE techniques for use in the torture program. What is disturbing is his seeming lack of concern over the possiblity that the research he helped conduct was either used to further experiments upon torture victims in the CIA’s clandestine prisons, or contrariwise, was withheld from Office of Legal Counsel lawyers who relied upon CIA advice concerning the effects of techniques derived from the SERE schools.

What is indisputable is that by virtue of his position, Dr. Morgan had access to CIA officials just at the time that another department of the CIA, one to which he is affiliated, was, according to the CIA’s own Office of Inspector General Report (large PDF) involved in vetting the SERE techniques for use in interrogations. The other department was the Office of Technical Services (OTS), part of the CIA’s Science and Technology Directorate. This, by the way, is the same division that was responsible for the MKULTRA experiments of the 1950s and 1960s. From the OIG report:

…CTC [CIA's Counter-Terrorism Center], with the assistance of the Office of Technical Service (OTS), proposed certain more coercive physical techniques to use on Abu Zubaydah….

CIA’s OTS obtained data on the use of the proposed EITs and their potential long-term psychological effects on detainees. OTS input was based in part on information solicited from a number of psychologists and knowledgeable academics in the area of psychopathology….

OTS also solicited input from DoD/Joint Personnel Recovery Agency (JPRA) regarding techniques used in its SERE training and any subsequent psychological effects on students. DoD/JPRA concluded no long-term psychological effects resulted from use of the EITs, including the most taxing technique, the waterboard, on SERE students. The OTS analysis was used by OGC [DoD's Office of General Counsel] in evaluating the legality of techniques.

OTS’s solicitation of information on SERE from JPRA elicited some sort of feedback from JPRA, which supposedly told OTS that SERE training caused no long-term effects. The IG Report does not say if this was in the form of a memo and only speaks of OTS’s analysis. In any case, we should not confuse any OTS “analysis” with the information provided by JPRA itself to the Office of General Counsel, which produced a number of memorandum and attachments in late July 2003. Marcy Wheeler has been analyzing the timing of these JPRA items, including the fact that one of these key documents is missing.

The CIA IG Report is relating a story whose emphasis differs from that produced in the narrative of the Senate Armed Services Committee investigation (PDF) into SERE torture. In the latter, JPRA is the main culprit in providing cover for the supposed safety of using SERE techniques. Yet, in the OIG account it looks like the CIA used DOD/JRRA as a cover for the safety of techniques that it knew were in fact harmful from their own analysis of the “data.” Moreover, it was the OTS analysis that was used — “in substantial part” — as the basis of the August 1, 2002 memo approving the “Enhanced Interrogation Techniques” (EITs).

That legal opinion was based, in substantial part, on OTS analysis and the experience and expertise of non-Agency personnel and academics concerning whether long-term psychological effects would result from use of the proposed techniques.

Moreover, the CIA’s Office of Medical Services was frozen out of “the initial analysis of the risk and benefits of EITs,” and not even provided with a copy of the OTS report given to the White House Office of Legal Counsel. Such compartmentalization of information is indicative of a covert operation, such as a Special Access Program (SAP). This SAP would have included personnel in CIA’s CTC, OTS, OGC, and Directorate of Operations, also portions of DOD (JPRA and Special Operations Command), and probably the White House’s OLC, Office of the Vice President, and National Security Council.

It seems highly likely that the CIA report to the OLC on the medical and psychological effects of the SERE school program, mentioned in the Senate Intelligence Committee narrative quote above, is in fact the OTS report, which came from the same CIA directorate to which Dr. Morgan belongs. This does not speak to Morgan’s foreknowledge of what would be used, nor to the amount of his involvement. But it does speak to the likelihood that the government research he conducted (with others) was available and likely used by his associates in the CIA.

To what purpose was this information used? It seems Dr. Morgan has serendipitously given us the answer himself: “exploring old and new techniques in gathering human intelligence.” The CIA appears to have used torture to conduct what Physicians for Human Rights, in a “white paper” (PDF) recently published, called “possible unethical human experimentation, [which] urgently needs to be thoroughly investigated.” The government should declassify the OTS report, and bring the process of investigating the CIA’s role in the torture conspiracy fully into public purview.

This report was originally published on 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.

A U.S. soldier undergoing SERE training.

Professor Shane O’Mara at Trinity College Institute of Neuroscience in Dublin has written an article which has caught the attention of the mainstream media.

Associated Press reporter Pamela Hess described Prof. O’Mara’s article,”Torturing the Brain: On the folk psychology and folk neurobiology motivating ‘enhanced and coercive interrogation techniques’” (PDF), as showing that the CIA’s “severe interrogation techniques appear based on… a layman’s idea of how the brain works as opposed to science-based understanding of memory and cognitive function.” (Bmaz who blogs at Emptywheel also reported on this.)

What neither Ms. Hess nor Professor O’Mara apparently realized is that in conducting his research for his review on how the CIA’s “enhanced interrogation techniques” caused debilitating damage to the brain and nervous system — producing confabulation more readily than information — one of the scientific papers O’Mara relied upon was itself produced by a CIA researcher. Such close participation between CIA and military researchers and the world of stress research adds a sinister dimension to the production of the OLC memos, which Professor O’Mara otherwise believes were based on naive “folk” beliefs and a faulty neuropsychobiological model.

But this is not the case. The CIA was well-aware of the type of research he cites — because it was a major contributor to such research!

As I reported last week, CIA Experiments on US Soldiers Linked to Torture Program (later picked up by Truthout), I showed how a Yale psychiatrist, and researcher for the National Center for Post-traumatic Stress Disorder, had received hundreds of thousands of dollars to do research on the psychological and physiological effects of stress produced by SERE techniques. The researcher, Charles A. Morgan, III, has identified himself, in certain settings, as a CIA behavioral scientist.

(SERE stands for Survival, Evasion, Resistance and Escape, and is the name for the military survival schools that provide select members of the armed forces with “stress inoculation” training by subjecting them to a reduced amount of torture and captivity. The CIA’s EITs were famously reverse-engineered by SERE psychologists from the techniques utilized during SERE training.)

In the AP article, Hess writes, “A 2006 Intelligence Science Board report on interrogation also noted possible negative effects of certain methods.” But Hess doesn’t mention, nor does she likely know, that one of the primary members on the ISB board that produced the report was the same Dr. Morgan.

… in the Information Science Board (ISB) document, Educing Information [PDF] — which was heavily drawn upon by President Obama’s task force on interrogations, for recommendations on the interrogations issue — Dr. Morgan is identified as a member of the 11-person “Government Experts Committee,” and listed as affiliated with the Intelligence Technology Innovation Center (ITIC). According to Intelligence Online, ITIC is “a research organization under the CIA’s authority,” which “answers directly to the CIA’s Science and Technology directorate.”

Research on SERE Techniques and the OLC Memos

The “CIA Experiments” article described some of the research Dr. Morgan and his associates have conducted using SERE trainees, many of them Special Forces personnel. (Professor O’Hara cites one of Morgan’s articles himself — see footnote 9 to his paper.) In a June 2000 article, “Assessment of Humans Experiencing Uncontrollable Stress: The SERE Course,” in Special Warfare (PDF), Morgan and his Special Operations psychologist co-author cite “recorded changes in cortisol levels” among individuals subjected to SERE techniques as “some of the greatest ever documented in humans.” As Professor O’Mara notes in his own essay, a “substantial increase in cortisol levels has a deleterious effect on memory.” The same article described testosterone levels falling in male subjects to below castration levels.

Another article by Morgan and his team looked at dissociative psychological effects of SERE techniques upon human subjects. (Dissociation produces symptoms such as depersonalization, derealization, psychic or emotional numbing, and general cognitive confusion.)

RESULTS: In study 1, 96% of subjects reported dissociative symptoms in response to acute stress. Total scores, as well as individual item scores, on the dissociation scale were significantly lower in Special Forces soldiers compared to general infantry troops. In study 2, 42% of subjects reported dissociative symptoms before stress and 96% reported them after acute stress.

Professor O’Mara’s essay is an excellent brief review of the relevant literature on stress, as it pertains to the kinds of torture conducted by the CIA, and its effects upon memory, and the presumed ability to produce accurate information. It easily deserves wide dissemination. But evidence of CIA participation in the very research that was suppressed in the OLC memos shows that the conclusions drawn in the torture memos were not simply due to “bad faith” lawyering. As I wrote in my original article:

The frenzied search for data on waterboarding, sleep deprivation, isolation, confinement in a small box, etc., to submit to OLC attorneys making legal determinations on whether proposed interrogation techniques constituted torture, was a kabuki organized by the CIA. The OLC attorneys involved — John Yoo, Stephen Bradbury, Jay Bybee, and others — were witting or unwitting partners in suppression of CIA research on torture (as future investigations will disclose). Given the participation of members of the Office of the Vice President, particularly David Addington and Vice President Cheney himself, in the promulgation of the torture program, and the composition of the memos, it seems likely they were also involved in the suppression of this material. As a result, the memos produced authorizing the “enhanced interrogation techniques” were composed as the result of fraud and bad faith, the result of a criminal conspiracy to implement illegal torture techniques.

In this earlier article, I had taken Dr. Morgan at his word, as reported in a 2007 New York Times article, that he was incredulous at how SERE techniques could have migrated over to the torture program. But, as I recently discovered (H/T to fellow psychologist Brad Olson), the CIA scientist had a different take on the uses of SERE research in an essay in the 2006 book, Military Psychology, Clinical and Operational Applications (p. 252):

The SERE platform offers a unique opportunity to evaluate old and new assessment techniques under conditions that are more realistic than traditional laboratories….

The SERE training environment affords the military services the opportunity to collaborate with various other government agencies in exploring old and new techniques in gathering human intelligence.

The O’Mara essay and AP article appear only a few weeks after Physicians for Human Rights released a “white paper” highlighting evidence of illegal human experimentation on U.S.-held “terrorism” prisoners undergoing torture. The allegations of torture experimentation are consistent with reports of CIA experimentation upon Abu Zubaydah, and of the Pentagon running an interrogation “Battle Lab” at Guantanamo. In his book, Oath Betrayed: America’s Torture Doctors, bioethicist Steven Miles calls Mohammed al-Khatani’s interrogation an experiment: “The peculiar content and structure of this document makes sense if it is the log of research on coercive interrogation….” (p. 176).

Experimentation upon subjects to further “scientific” understanding of the effects of torture is also not new. In the 1950s, the CIA and Pentagon funded top psychologists and psychiatrists in research upon the effects of SERE training. These researchers established a protocol for psychological torture, based on torture tactics that induced “debility, dependency, and dread.” (See West LJ., Medical and psychiatric considerations in survival training. In: Report of the Special Study Group on Survival Training (AFR 190 16). Lackland Air Force Base, Tex: Air Force Personnel and Training Research Centers; 1956.) This protocol was later incorporated into an early 1960s CIA (KUBARK) interrogation manual.

It is not enough to understand what research the Office of Legal Counsel attorneys failed to include in their infamous torture memos. One must understand why this research was not included, and who was involved in that. The evidence points to a deliberate attempt to implement and then hide a torture program, whose very basis for existence may have been, in part, to study the effects of torture upon involuntary subjects, in order to implement (or hide) an updated protocol for coercive interrogation.

Only a full, wide-ranging, and open investigation — including not only politicians, academics, lawyers, and blue-ribbon, distinguished experts, but representatives of human rights organizations, church and labor leaders, and other important societal participants — will, given full subpoena power, be able to get to the bottom of this sinister program that seized hold of the governmental apparatus, and steered it towards brutality and a catastrophic breakdown of law.

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.

Photo by U.S. Army Sgt. Sara Wood.

As rumors swirl, suggesting that a number of the remaining 13 Uighur prisoners in Guantánamo (Muslims from China’s Xinjiang province) may soon be relocating to the tiny Pacific island state of Palau, a court case related to nine of these men threatens to hurl a number of other prisoners in Guantánamo, who have also been cleared for release, into a new maelstrom of uncertainty, by removing long-standing injunctions preventing their return to countries where they face the risk of torture.

The trigger for this sudden shifting of legal protections for some of the most vulnerable prisoners in Guantánamo (from countries with notoriously poor human rights records, including Algeria, Libya, Tunisia and Uzbekistan) was the response to a ruling last October, by District Court Judge Ricardo Urbina, after the government (reeling from a shocking court defeat in June) conceded that it could no longer claim that the Uighurs were “enemy combatants.”

Judge Urbina ruled that they should be relocated to the US mainland, because the government conceded that it was unsafe to return them to China, because no other country had been found that would accept them, and because continuing to hold them in Guantánamo was unconstitutional.

The government disagreed, and appealed Judge Urbina’s ruling, and when the Court of Appeals came to review the case, a panel of three judges — including Judge A. Raymond Randolph, a man noted for endorsing every Bush administration policy regarding the “War on Terror” that was subsequently overturned by the Supreme Court — reversed Judge Urbina’s ruling, deciding that the courts had no business interfering in immigration policies that were the preserve of the Executive.

The judges were seemingly unmoved that this would leave the Uighurs (and, very possibly, others in Guantánamo) with no means of leaving the prison, and that it stripped the Supreme Court’s ruling in June 2008, granting the prisoners habeas corpus rights, of all practical meaning, if it was not possible for judges to order their release. In the judges’ words, however, “the political branches have the exclusive power … to decide which aliens may, and which aliens may not, enter the United States, and on what terms.”

In response to the ruling, the Uighurs’ lawyers filed a petition with the Supreme Court (a writ of certiorari, essentially a petition asking for a judicial review). A date in June was set for a hearing, amid fears from the lawyers that the government would find other countries to take the Uighurs before that date, so that the Supreme Court could be persuaded not to review the Circuit Court’s ruling, and to rule on whether it was indeed acceptable that the Executive should be able to gut the lower courts’ habeas rulings of all meaning by refusing to allow judges to order the prisoners’ release.

In the end, the government managed only to dispose of four of the Uighurs before the deadline (sending them to Bermuda), but the Supreme Court then decided to refrain from hearing the case until October, perhaps to give the government time to resolve the issue itself.

This case, Kiyemba v. Bush (which became Kiyemba v. Obama) is now known as “Kiyemba I,” because, in response to the ruling by the Court of Appeals, the Uighurs’ lawyers submitted an appeal on their clients’ behalf, also filed as Kiyemba v. Obama, and now known as “Kiyemba II.” In the brief, they asked the Court of Appeals to reconsider its opinion en banc (in other words, with all the judges ruling, instead of just a panel of three), and also sought assurances that the courts would be able to act if the government proposed sending their clients to countries where they faced the risk of torture.

However, not only did the court refuse to reconsider its ruling, but the judges also refused the Uighurs’ request for the court’s assistance “to prevent their transfer to a country where they are likely to be subjected to further detention of to torture” (PDF), drawing on Munaf v. Geren, a case from 2008 in which “two American citizens held in the custody of the United States military in Iraq petitioned for writs of habeas corpus, seeking to enjoin the Government from transferring them to Iraqi custody for criminal prosecution in the Iraqi courts.”

In Munaf, although “The Court held the district court had jurisdiction over the petitions,” it also ruled that “it could not enjoin the Government from transferring the petitioners to Iraqi custody,” because “that concern is to be addressed by the political branches, not the judiciary.”

The court added that strenuous efforts had been made by the US government not to transfer prisoners to countries where they might face torture, and “The upshot is that the detainees are not liable to be cast around willy-nilly without regard to their likely treatment in any country that will take them,” but in any case, as the judges also explained, “the district court may not question the Government’s determination that a potential recipient country is not likely to torture a detainee,” because “The judiciary is not suited to second-guess such determinations.”

With that decision, effectively, the case was lost. The Uighurs’ lawyers announced their intention to appeal this second ruling to the Supreme Court, and it is currently anticipated that the Supreme Court will address both “Kiyemba I” and “Kiyemba II” sometime next month.

However, the fallout from the Court of Appeals’ insistence that no court is empowered to prevent the government from sending prisoners wherever it wishes has had a disturbing knock-on effect on other cases (as many as 150 of the remaining 225 prisoners, according to SCOTUSblog), in which lawyers have, since 2005, persuaded the courts to order the government to provide 30 days’ notice in advance of any proposed transfer, and, in some cases, including that of Ahmed Belbacha, an Algerian who had lived in the UK, have secured injunctions preventing any attempt to repatriate their clients.

Belbacha’s case is, in many ways, emblematic of the issues at stake. Although he was cleared for release from Guantánamo by a military review board in February 2007, he is terrified of returning to Algeria, where he fears persecution both by the government and by the Islamists whose threats forced him to flee his homeland in the first place. His case has attracted widespread support from human rights organizations, and has also received international media coverage.

Since the Court of Appeals made its ruling in “Kiyemba II,” lawyers have been aware that the 30-day notices and injunctions were under threat, but it was not until September 8, when the court issued its mandate regarding “Kiyemba II”, which formally implements its ruling, that the way was paved for the government, if it wishes, to lawfully repatriate prisoners who, like Belbacha, would rather remain in Guantánamo than return home.

As a result, Belbacha’s lawyers have filed a motion with the Court of Appeals asking the judges “to hold this case in abeyance pending the Supreme Court’s disposition of a petition for certiorari that the petitioners in Kiyemba intend to file.”

The judges may well respond by reiterating that they are secure in assurances from the government that “the detainees are not liable to be cast around willy-nilly without regard to their likely treatment in any country that will take them,” but with just four months to go until the deadline is reached for Obama’s promised closure of Guantánamo, it is, I believe, legitimate to entertain fears that the administration may wish to repatriate cleared prisoners to countries it regards as safe (following “intense diplomatic negotiations,” or some such explanation), but which the prisoners and their lawyers still regard as a profound threat.

This report was first published on 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.

Abu Zubaydah

The Bush administration gave its initial clearance for CIA interrogators to brutalize an al-Qaeda “high-value detainee” through verbal guidance and didn’t follow up with a formal legal opinion until “months later,” the CIA’s former inspector general said.

In an interview with the German magazine Der Spiegel, ex-CIA Inspector General John Helgerson confirmed what has long been suspected, that the abusive interrogation of al-Qaeda operative Abu Zubaydah in 2002 began well before the Justice Department’s Office of Legal Counsel cobbled together a controversial legal opinion justifying acts that are commonly regarded as torture.

Der Spiegel’s reporter posed a question to Helgerson that assumed Zubaydah’s torturous interrogation had predated the Aug. 1, 2002, legal memo from OLC attorneys John Yoo and Jay Bybee. “Did the lawyer who signed the memorandum simply authorize a technique months after this technique had already been applied?” reporter Britta Sandberg asked Helgerson.

Helgerson told Sandberg that “basically” her assumption was correct and added, “There was some legal advice given orally to the CIA that had then been followed up by memorandums months later.”

Though human rights groups had long speculated that the torture of Zubaydah began prior to the Yoo-Bybee memo, some experts were surprised by Helgerson’s use of the word “months,” suggesting the abusive interrogations may have started soon after a wounded Zubaydah was captured in Pakistan on March 28, 2002, and then flown to a CIA “black site” in Thailand. Two weeks earlier, on March 13, 2002, Yoo and Bybee prepared a legal memorandum for George W. Bush that said he could ignore a law that prohibited the transfer of prisoners to countries that engage in torture.

This altered chronology also undercuts assertions by defenders of the interrogation program, the likes of Vice President Dick Cheney, that the policy was carefully crafted and implemented only after legal issues were carefully weighed by the OLC, which advises presidents about interpreting laws, in this case those that prohibit torture.

Exactly what the OLC’s oral legal advice was – and whether it was inappropriately influenced by White House political desires – may be answered by a still classified report prepared by the Justice Department’s Office of Professional Responsibility, an internal ethics unit, according to Justice Department sources who have been briefed on the contents of the report. These sources added that the legal guidance Helgerson referred to came from OLC.

The watchdog unit has spent five years probing whether Yoo, Bybee and another OLC lawyer Steven Bradbury provided poor legal advice in authorizing CIA interrogators to use the near-drowning of waterboarding and other interrogation methods to glean information about terrorist plots from prisoners.

The report’s findings are said to conclude that Yoo acted as an advocate for administration policy and massaged his legal advice to fit the wishes of his Bush administration superiors, rather than carefully analyzing the law as an independent-minded lawyer, according to these sources.

Clues to a Chronology

Early clues about when torture was begun on Zubaydah surfaced earlier this year, in a Freedom of Information Act lawsuit the American Civil Liberties Union filed against the CIA in connection with the agency’s destruction of 92 interrogation videotapes in 2005.

In court documents, the CIA disclosed that it began videotaping interrogations of Zubaydah and Abd al-Rahim al-Nashiri, the alleged mastermind of the 2000 attack on the USS Cole, in April 2002, four months before Yoo and Bybee drafted their torture memo.

The agency also acknowledged that 12 of those videotapes showed the two detainees being subjected to harsh techniques. However, the agency refused to disclose documents to the ACLU that would have indicated whether the torture took place prior to the Aug. 1, 2002, legal memo.

Then, in May a newly declassified timeline released by the Senate Select Committee on Intelligence fleshed out the details a bit more.

According to the Intelligence Committee, in April 2002, while Zubaydah was still hospitalized and recovering from gunshot wounds, the CIA’s Office of General Counsel began to discuss with John Bellinger, legal adviser to the National Security Council, and the OLC, about “the CIA’s proposed interrogation plan for Abu Zubaydah and legal restrictions on that interrogation.”

The CIA believed that as early as April 2002, just a few weeks after he was captured, Zubaydah was withholding “imminent threat information during the initial interrogation sessions” – a position that drew objections from FBI interrogators who believed they had successfully obtained actionable intelligence from Zubaydah through rapport-building and other non-violent techniques.

It was around this time, in April and May of 2002, that meetings were arranged involving high-ranking Bush administration officials, including then White House Counsel Alberto Gonzales, Michael Chertoff, who at the time was the head of the Justice Department’s Criminal Division, and National Security Adviser Condoleezza Rice to discuss an “alternative” set of interrogation methods, including waterboarding.

“The CIA’s Office of General Counsel subsequently asked OLC to prepare an opinion about the legality of its proposed techniques,” the Intelligence Committee timeline states.

For his part, Zubaydah told the International Committee of the Red Cross that his treatment grew nastier as his detention progressed, although he offered no specific timeline. He did recall that CIA interrogators said he was their first subject, “so no rules applied. It felt like they were experimenting and trying out techniques to be used later on other people.”

Just a month after Zubaydah’s capture, in its April 27, 2002, issue, Newsweek published a story about the “imminent threat information” that he supposedly gave up to his interrogators. The article, “How Good Is Abu Zubaydah’s Information?” said the Bush administration “issued two domestic terrorism warnings” based on the information Zubaydah provided to “U.S. interrogators.”

But none of the alleged threats, including plots to attack banks in the Northeast or U.S. shopping malls, materialized or were ever shown to have been anything approaching an actual operation. If Zubaydah had been tortured this early in his captivity, it could be evidence of how torture often elicits unreliable information, a point that FBI and other experienced interrogators also have noted.

Information Doubted

In an interview, Jack Cloonan, a former FBI special agent assigned to the agency’s elite Bin Laden unit, said Abu Zubaydah “wasn’t privy to a lot of what I would consider to be a lot of really good operational details,” getting most of his information second-hand.

“We thought he would be best described as a logistical officer who managed a series of safe houses and was a great travel agent,” Cloonan said. “But to cast him and describe him as the al-Qaeda emir or leader for the subcontinent or worse to that effect I think was a mistake. … Based on his age and ethnicity, [he] would [n]ever be brought into the inner circle of al-Qaeda.”

There was also the question of Zubaydah’s personality. “My partner had a chance to look at a lot of Abu Zubaydah’s diaries, poems and other things that he has written and he said that after reading this you just come away with the feeling that this is a guy who can’t be trusted or being given huge amounts of responsibility,” Cloonan said. “He just seemed mentally unstable. …

“I’m not at all suggesting that Abu Zubaydah wasn’t valuable. Anytime you get one of these guys and get their cooperation I think is a win. You can get information that’s really valuable from people who are further down the food chain. It’s how you get the information and whether you’re getting real cooperation or simply compliance because somebody’s either waterboarding you or gets you on sleep deprivation.

“We know and the science tells us that people cannot recall details accurately, they can’t look at pictures, they will make things up if deprived of the bare essentials of life over the course of time. I don’t understand how you could sleep deprive somebody for 11 days and now expect this person to provide you with accurate information.

“Even if they wanted to they’re probably so debilitated at this point they need to be rehabilitated before they ever give you anything.”

Cloonan’s description of Zubaydah backs up what author Ron Suskind reported in his book The One Percent Doctrine.

Suskind said Zubaydah was not the “high-value detainee” the CIA had claimed. Rather, Zubaydah was a minor player in the al-Qaeda organization, handling travel for associates and their families. However, George W. “Bush was fixated on how to get Zubaydah to tell us the truth,” Suskind wrote, adding that Bush asked one CIA briefer, “Do some of these harsh methods really work?”

And after Zubaydah was subjected to coercive interrogation techniques, including waterboarding, he spoke about a wide range of plots against a number of U.S. targets, such as shopping malls, the Brooklyn Bridge and the Statue of Liberty. Yet, Suskind wrote, the information Zubaydah provided under duress was not credible.

According to Suskind, Zubaydah’s captors soon discovered that their prisoner was mentally ill and knew nothing about terrorist operations or impending plots. That realization was “echoed at the top of CIA and was, of course, briefed to the President and Vice President,” Suskind wrote.

Hyping the Case

Still, in public statements, Bush portrayed Zubaydah as “one of the top operatives plotting and planning death and destruction on the United States” and added: “So, the CIA used an alternative set of procedures” to get Zubaydah to talk.

The President did not want to “lose face” because he had stated his importance publicly, Suskind wrote.

In the book, State of War, New York Times reporter James Risen wrote that days after Zubaydah was captured, CIA Director George Tenet went to the White House to provide Bush with a daily intelligence briefing as well as details of “the Zubaydah case.”

“Bush asked Tenet what information the CIA was getting out of Zubaydah,” Risen wrote. “Tenet responded that they weren’t getting anything yet, because Abu Zubdaydah had been so badly wounded that he was heavily medicated. He was too groggy from painkillers to talk coherently. Bush turned to Tenet and asked: ‘Who authorized putting him on pain medication?’”

Risen’s source for the information told him it’s possible that this was simply “jocular banter” between Bush and Tenet. But Risen wrote that it’s also a possibility that the “comment meant something more.”

“Was the president of the United States implicitly encouraging the director of Central Intelligence to order the harsh treatment of a prisoner? If so, this episode offers the most direct link yet between Bush and the harsh treatment of prisoners by both the CIA and the U.S. military,” Risen wrote. “If Bush made the comment in order to push the CIA to get tough with Abu Zubaydah, he was doing so indirectly, without the paper trail that would have come from a written presidential authorization.”

CIA documents from a Combatant Status Review Tribunal in March 2007 revealed that Zubaydah’s torturers eventually apologized to him and said they concluded he was not a top al-Qaeda lieutenant as the Bush administration and intelligence officials had claimed.

“They told me sorry we discover that you are not number three [in al-Qaeda], not a partner, even not a fighter,” Zubaydah said during his tribunal hearing.

The new ruling brushes off the charges by 212 Iraqis who said they or their late husbands were abused by U.S. personnel at Abu Ghraib. The suit charged private security firm CACI International Inc., of Arlington, Va., of crimes inside the Baghdad hellhole.

But in a 2-1 ruling, the D.C. Court of Appeals said CACI “is protected by laws barring suits filed as the result of military activities during a time of war,” the Associated Press reported. This opinion was written by Judge Laurence Silberman, a Reagan appointee, and supported by Judge Brett Kavanaugh, a Bush appointee.

“During wartime, where a private service contractor is integrated into combatant activities over which the military retains command authority, a tort claim arising out of the contractor’s engagement in such activities shall be pre-empted,” Silberman wrote.

If so, with about as many U.S.-led contract mercenaries as regular army involved in the Iraq conflict, this decision preposterously exempts some 150,000 fighters from legal action for any crimes they commit. It gives a shoot-to-kill pass to privateers such as Blackwater, whose operatives on one occasion are said to have gunned down 17 unarmed Iraqi civilians.

“This abuse and torture of these prisoners detained during war time constituted war crimes and torture in violation of the Geneva Conventions of 1949, the U.S. War Crimes Act, the Convention against Torture, and the U.S. Federal Anti-torture Statute—felonies, punishable by death if death results as a violation thereof,” said Francis Boyle, an international law authority at the University of Illinois, Champaign-Urbana.

“Judges Silberman and Kavanaugh have now become Accessories After the Fact to torture, war crimes and felonies in violation of United States federal law and international criminal law,” Boyle asserted. (See if they are ever prosecuted!)

Dissenter Judge Merrick Garland, appointed by President Bill Clinton, argued the law does not protect independent contractors, particularly when they are accused of acting outside the rules or instructions of their military overseers. But where Silberman said most of the claims were limited to “abuse” or “harm,” not war crimes or torture, according to Courthouse News Service, Garland “found the claims much more alarming.”

“The plaintiffs in these cases allege they were beaten, electrocuted, raped, subjected to attacks by dogs, and otherwise abused by private contractors working as interpreters and interrogators at Abu Ghraib prison,” Garland said.

“No act of Congress and no judicial precedent bars the plaintiffs from suing the private contractors—who were neither soldiers nor civilian government employees,” he wrote.

“Neither President Obama nor President Bush nor any other Executive Branch official has suggested that subjecting the contractors to tort liability for the conduct at issue here would interfere with the nation’s foreign policy or the Executive’s ability to wage war,” Garland pointed out.

“To the contrary, the Department of Defense has repeatedly stated that employees of private contractors accompanying the Armed Forces in the field are not within the military’s chain of command, and that such contractors are subject to civil liability,” he wrote.

Judge Silberman was named to the Federal bench in 1985 by President Ronald Reagan and in 2008 received the Presidential Medal of Freedom, the nation’s highest civilian award, from (surprise!) President George W. Bush, the man who launched the Afghan and Iraq aggressions.

Silverman was supported in his opinion by Kavanaugh, a former legal aide to President Bush who was later appointed by Bush to the Federal bench. In July, 2007, Senators Patrick Leahy, D-Vt., and Dick Durbin (D-Ill.) accused Kavanaugh of “misleading” the Senate during his nomination.

In a statement issued at the time opposing the appointment, Sen. Durbin prophesied, “By every indication, Brett Kavanaugh will make this judgeship a gift that keeps on giving to his political patrons who have rewarded him richly with a nomination coveted by lawyers all over America.” And that, of course, is exactly what happened. Here’s what aroused Durbin’s concern:

“For example, he (Kavanaugh) would not tell us his views on some of the most controversial policy decisions of the Bush administration–like the issues of torture and warrantless wiretapping. He would not comment. He would not tell us whether he regretted the role he played in supporting the nomination of some judicial nominees who wanted to permit torture as part of American foreign policy… It would have been so refreshing and reassuring if Brett Kavanaugh could have distanced himself from their extreme views. But a loyal White House counsel is not going to do that. And that is how he came to this nomination.” And that is how he came to dismiss the torture charges against contractor CACI. Surely, Kavanaugh’s decision in the CACI case is proof he misled the Senate and merits impeachment.

In Jan., 2005, The New York Times reported testimony suggesting that guards and/or interrogators at Abu Ghraib were urinating on detainees, pouring phosphoric acid on them, sodomizing them with a baton, tying ropes to their penises and dragging them across the floor, and jumping on their wounds. Some prisoners were hung with their hands tied behind their back until they died. It should be remembered that the Abu Ghraib inmates were suspects, imprisoned without due process or trials. Abu Ghraib’s commanding officer Brig. General Janis Karpinski estimated that 90 percent of them were innocent.

According to an article by Jeffrey Toobin in the September 21 issue of The New Yorker, President Obama already has the chance to nominate judges for 21 seats on the federal appellate bench—more than 10 percent of the 179 judges on those courts, and at least half a dozen more seats should open in the next few months.

In an interview with the editorial board of the Detroit Free Press last year, Obama said the role of our courts “is to protect people who don’t have a voice…the vulnerable, the minority, the outcast, the person with the unpopular idea, the journalist who is shaking things up…And if somebody doesn’t appreciate that role, then I don’t think they are going to make a very good justice.”

Surely, hundreds of foreign prisoners tortured in an illegal war made by the U.S., or their survivors, are supplicants entitled to a fair hearing, not non-persons to be brushed aside as judges Silberman and Kavanaugh have done this past week. Their ruling that, essentially, injured parties cannot sue the Warfare State and its contractors, drives a tank through the Constitution. Americans had better pray Obama’s judicial choices will aspire to a higher standard.

Sherwood Ross formerly worked for The Chicago Daily News and other major dailies and as a columnist for wire services. He currently runs a public relations firm for “worthy causes”. Reach him at sherwoodr1@yahoo.com