New drama rocks the Guantanamo military commissions. The potential release of the Senate Intelligence Committee’s report on the CIA torture program could influence the commissions’ future and will bring previously unknown details about the torture program to the public. Meanwhile, the Supreme Court rejected a constitutional challenge to indefinite detention.
Currently, 154 men remain held in Guantanamo. Of those, 79 are cleared for released and around four dozen are designated by the Obama administration for indefinite detention because they are considered too difficult to prosecute – due to inadmissible, insufficient, or torture-obtained evidence – and too dangerous to release. Indefinite detention without charge or trial violates international human rights law. However, President Obama has embraced the practice of indefinite detention for Guantanamo detainees ever since stepping into office in 2009. His plan to close Guantanamo amounts to shifting the system of indefinite detention elsewhere. The Obama administration’s legal team recently told Congress that if Guantanamo detainees were relocated to a prison in the United States, they would have no right to asylum or repatriation on US soil.
Three men who were on the indefinite detainee list were recently taken off by a parole board and are now cleared for release – Mahmud Mujahid, a 34-year-old Yemeni, and Ali Ahmad al-Razihi, also a 34-year-old Yemeni; and Ghaleb Nassar al-Bihani, a 35-year-old Yemeni. That same parole board upheld the indefinite detention status of another Yemeni man, Abdel Malik al-Rahabi, meaning he will remain in Guantanamo indefinitely.
President Jose Mujica of Uruguay recently announced he would welcome up to six prisoners from the Guantanamo prison to his country, as long as the United States agreed that they would live freely. “We are never going to be the jailor for the United States,” he told the Wall Street Journal. “But we are prepared to take in the people over there and allow them to live in our country, like any citizen.” Meanwhile, the Yemeni government, via presidential decree, is looking into building a rehabilitation center for Islamic militants, which could speed up the return of Yemeni Guantanamo detainees to their country. Of those cleared for release, 56 are Yemenis.
About 20 can be “realistically prosecuted,” according to an estimate given by Guantanamo chief prosecutor Brig. Gen. Mark Martins to reporters last June. Right now, 6 people are being prosecuted in Guantanamo’s military commission system. The five alleged 9/11 plotters – Khalid Sheikh Mohammed, Ammar al-Baluchi, Walid bin Attash, Ramzi bin al-Shibh and Mustafa al-Hawsawi – and Abd al-Rahim al-Nashiri, the suspected mastermind of the USS Cole bombing off the coast of Yemen in 2000.
A few Republican lawmakers want to build a new secret prison for Khalid Sheikh Mohammed and other former CIA black site detainees at Guantanamo. Republicans in the House Armed Services Committee entered $69 million for the new “high-value detainee complex” in its defense spending bill “that earmarked a total of $93 million for new construction at the prison camps in Cuba,” reported Miami Herald journalist Carol Rosenberg.
The House recently approved that bill, the 2015 National Defense Authorization Act, which authorizes $521.3 billion in new defense spending and includes the new construction earmark. However, the House rejected an amendment, proposed by Rep. Adam Smith (D-Washington), that would have outlawed indefinite detention within the United States and its territories. The amendment failed by 191-230 votes. Smith also offered an amendment that would have closed the Guantanamo Bay detention facility by 2016, but that failed, as well, by 177-247 votes. Thus, indefinite detention remains in the 2015 NDAA.
Defense lawyers learned that the FBI interrogated a Defense Security Officer working with Bin al-Shibh’s defense team and required them to sign a “special relationship” agreement with the FBI, thus turning the officer into an informant.
Meanwhile, in the Senate, the Armed Services Committee recently passed a bill that would allow the transfer of Guantanamo detainees to US soil “for detention, trial and incarceration, subject to stringent security measures and legal protections, once the president has submitted a plan to Congress for closing Guantánamo and Congress has had an opportunity to vote to disapprove that plan under expedited procedures.” Committee chairman Sen. Carl Levin (D-Michigan), who was instrumental in inserting that language, praised the bill, saying the committee “made major progress” and “created a path to close Guantanamo.” However, Senate Republicans, such as Sen. Lindsey Graham (R-South Carolina), remain steadfast in their opposition to closing Guantanamo.
In any event, even if the Obama administration were to close the Guantanamo detention facility, it would still retain its inhumane and abusive indefinite detention powers. Congress and the Supreme Court have upheld that power, rather than challenge it.
April Military Commission Hearings
Last December, the Guantanamo military commissions ended early after repeated outbursts by Ramzi bin al-Shibh, to determine Bin al-Shibh’s mental competency.
In April, the military commission for the 9/11 case intended to pick up where it had left off in December until something else happened. Before the April hearing began, defense lawyers, including Jim Harrington, learned that the FBI interrogated a Defense Security Officer, working with Bin al-Shibh’s defense team, and required them to sign a “special relationship” agreement with the FBI, thus turning the officer into an informant. “The US government’s breach of the integrity of the defense teams is outrageous,” said Air Force Lt. Col. Sterling Thomas, a member of Ammar al-Baluchi’s defense team.
Defense Security Officers assist each defense team with properly classifying legal materials and ensure compliance with the classification rules issued under the military commission’s protective order. Under the protective order, defense attorneys are prohibited from disclosing classified information, including certain details of how their clients were treated or abused in CIA black sites, to unauthorized parties, such as the press and international bodies.
US Navy Commander Walter Ruiz, defense attorney for Mustafa al-Hawsawi, told Truthout that the FBI investigation created a “chilling effect” within the defense teams. “It’s very damaging and has a very negative chilling effect. And that’s because just the specter of people digging around, trying to find things that are worthy of investigation is unsettling. Even if there’s nothing there.” The FBI investigation also leads to “trust issues within defense teams,” according to Ruiz. He said that “confidentiality and [attorney-client] privilege are benchmarks of defense functions” because “in order to provide a solid defense, you need to be able to have that kind of confidentiality that your strategy and your decision-making isn’t subject to disclosure. That’s independent of any allegations of wrongdoing. That’s just being able to operate and carry forth the defense.” Moreover, government spying on the defense “destroys the relationship” between defense attorneys and their clients, as defendants are less willing to trust their defense team once they learn that one of them is an FBI informant. Ruiz also added that the FBI spying harms the “legitimacy” and “integrity” of the military commissions process.
As a result, commission judge US Army Col. James L. Pohl appointed a special review team separate from the prosecution to investigate what was going on.
Defense lawyers learned that the FBI interrogated a officer working with Bin al-Shibh’s defense team and required them to sign a “special relationship” agreement with the FBI, thus turning the officer into an informant.
Recently, the FBI closed its preliminary investigation into the 9/11 defense team. Brian Fallon, a Justice Department spokesman, told that, according to a recent court filing, the FBI received information last November “that a nonattorney member of Bin al-Shibh’s defense team may have been involved in facilitating unauthorized communications with Bin al-Shibh and unknown individuals located abroad.” He said, “The alleged facilitation of these communications may have constituted a federal crime and compromised national security.” However, no charges were filed and little details of the investigation have been made public. The 9/11 case will resume in June.
The USS Cole bomber case occurred the week after the 9/11 case. That week, the military commissions judge, Army Col. James Pohl, ordered the CIA to declassify details of Abd al-Rahim al-Nashiri’s detention in CIA black sites, such as names of personnel who handled the defendant, locations of the secret prisons, and interrogators’ statements, summaries, logs, notes and reports. Al-Nashiri is the alleged mastermind of the USS Cole bombing off the coast of Yemen in 2000, which killed 17 American sailors and injured 39.
After being captured in Dubai in November 2002, al-Nashiri was held and tortured in CIA black sites in Afghanistan, Thailand, Poland, Morocco and Romania. While in CIA custody, al-Nashiri was brutally interrogated with waterboarding, threats to his mother and subjected to mock execution with a pistol and power drill.
New details of al-Nashiri’s treatment in CIA custody emerged in the last hearing. Testifying in the military commission, Dr. Sondra Crosby, a Boston University medical school professor and member of Physicians for Human Rights who reviewed Top Secret records and discussed with al-Nashiri what happened to him, said, “I believe that Mr. al Nashiri has suffered torture – physical, psychological and sexual torture.” Crosby said, “He suffers from chronic pain. He suffers from anal-rectal complaints” and “difficulty defecating, hemorrhoids, pain in sitting for a long time,” which, according to her, are typical of “survivors of sexual assault.” She also pointed out al-Nashiri’s “red flags” of post-traumatic stress disorder (PTSD) and torture, such as scars on his wrists, legs and ankles, mood swings from “irritability, anger, extreme emotional intensity to silence,” and “other physical complaints, headaches, chest pain, joint pain, stomach pain.”
Senate Investigates CIA’s Torture Program
One issue that could influence future developments in the military commissions is the impending declassification of portions of Senate Intelligence Committee’s investigation on the CIA’s rendition, detention and interrogation (RDI) program during the Bush years. The entire 6,600-page report, which took five years and $40 million to complete, will not be declassified but rather portions of it – an executive summary, conclusions and findings amounting to 480 pages. Meanwhile, the other 6,120 pages will remain classified. A group of 30 retired generals sent a letter to President Obama urging him to declassify the Senate’s report on the CIA torture program.
The CIA misled policymakers and the media on how effective its interrogation program was, in order to justify it.
The White House granted the CIA power to declassify portions of the Senate report through the agency’s own internal review process. Considering that the report is allegedly full of scathing criticism of the CIA’s detention program, full transparency is far from guaranteed. This has led some to call for someone within the government to leak the entire report to the public.
Martins asked Pohl to hold off on the order, so as to give the Obama administration time to declassify the Senate report. Richard Kammen, al-Nashiri’s defense lawyer, told The New York Times that “he was drafting a motion to oppose any attempts to reverse the judge’s order.”
Defense attorneys in the military commissions have repeatedly criticized the protective order’s gag on what they can say about how their clients were treated. They also argue that the CIA’s torture of their clients in secret prisons is mitigating evidence. The declassification of portions of the report could potentially strengthen the defense lawyers’ case and free what they can say to the press and international organizations.
The report will not be released to the public until months in the future, though. The CIA says it needs more time to review the report, to coordinate with other agencies and foreign governments and implement “security measures to ensure the safety of US personnel and facilities overseas,” according to a motion it filed in a FOIA (Freedom of Information Act) lawsuit brought by the ACLU. It did seek permission to provide a progress report on June 20 but even then, the CIA says, it would still need additional time. However, some experts told McClatchy, “There are key portions of the report that could be quickly reviewed and released without disclosing sensitive information such as the identities of intelligence sources, which could endanger lives or compromise ongoing counterterrorism operations.”
A CIA Inspector General report issued in 2004 said, “Unauthorized, improvised, inhumane, and undocumented detention and interrogation techniques were used” by the agency.
Bits and pieces of the report have already been leaked to the press. McClatchy reported some of the Intelligence Committee’s findings. Torture was far more widespread in the CIA’s interrogation program than the agency admitted to policymakers and the press. A majority of the 100 detainees held in CIA black sites were tortured. The CIA used interrogation techniques that were not approved by the Department of Justice. Conditions of the secret prisons and brutality of torture were worse than the CIA admitted. The CIA misled policymakers and the media on how effective its interrogation program was, to justify it. The agency even went as far as impeding oversight by the White House, Congress and its own Inspector General. CIA internal documents also reveal its culpability in the death of one Afghan detainee by hypothermia. According to McClatchy, “In the case of the death of Gul Rahman, an Afghan who was shackled, doused with cold water and left in a cold cell partially clothed until he died of hypothermia, the CIA’s internal documents reviewed by the Senate confirm the agency’s culpability, the two sources said. Rahman died at a secret detention facility in Afghanistan known as the Salt Pit. His identity was kept secret for seven years.”
Previous reports, by the media and human rights groups, have shed light on some aspects of the CIA torture program. A CIA Inspector General report issued in 2004 said, “Unauthorized, improvised, inhumane, and undocumented detention and interrogation techniques were used” by the agency and questioned the efficacy of those techniques. The report also noted that “a number of Agency officers expressed unsolicited concern about the possibility for recrimination or legal action resulting from their participation” in the CIA’s rendition program and “feared that the Agency would not stand behind them if this occurred.” Additionally, “One officer expressed concern that one day, Agency officers will wind up on some ‘wanted list’ to appear before the World Court for war crimes . . . Another said, ‘Ten years from now we’re going to be sorry we’re doing this . . . [but] it has to be done.’ ” The International Committee of the Red Cross (ICRC) released a report on the treatment of 14 “high value” detainees in CIA black sites. It revealed that torture techniques included waterboarding, prolonged stress positions, beatings, kickings, confinement in a box, prolonged nudity, sleep deprivation and use of loud music, cold temperatures and water, prolonged shackling, threats, including with a handgun and power drill, forced shaving, and deprivation of food.
Torture has long proved to be an ineffective method of interrogation. People will say anything – regardless of its truth – to stop the torture inflicted on them. For example, Abu Zubaydah, a Guantanamo detainee who was held and tortured in CIA black sites, told a Combatant Status Review Tribunal in Guantanamo that he made false statements to US interrogators to stop the torture. According to The Washington Post, “not a single significant plot was foiled as a result of Abu Zubaida’s tortured confessions.”
International and domestic US law both forbid torture. The UN Convention Against Torture, a treaty ratified by the United States and many other countries, outlaws the use of torture. Defenders of torture would argue that torture was necessary to prevent another terrorist attack. But the Convention Against Torture clearly states, “No exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency, may be invoked as a justification of torture.”
Force-feeding not only violates medical ethics but has also been condemned as a form of torture by human rights advocates.
Aside from being illegal and ineffective, torture inflicts immense human suffering. The effects of torture can be seen in Shaker Aamer, the last British resident detained in Guantanamo. In testimony provided to forensic psychiatrist Dr. Emily Keram, Aamer described how he was subjected to sleep deprivation, humiliation, beatings, exposure to cold, manipulation of food and water, stress positions, and threats of sexual assault against his young daughter by American interrogators in Bagram, Kandahar and Guantanamo. He said, “The nakedness made me feel animal-like. I was not a human being anymore. I meant nothing to them. I lost my dignity, my pride, being a man. I had to take off my underwear and hand it to them. You lose your humanity. You are an animal. You know if you don’t do it, they will do it by force, and it will be a lot worse.” His main goal was ” ‘How can I minimize the torture? I just want to sleep.’ I never had a goal more than that. It was never my goal to get out of the facility and be freed. My goal was just to lessen the torture.” But “No matter what you said, they still wanted more. So they kept torturing me no matter what. The degree of the torture would change. Maybe they would let me sit for a brief period of time, and then it would get worse again.”
Some interrogators, like Sal in Kandahar, pretended to be nice to Aamer, but later switched to cruelty. “Sal talked to me as if I were a human being. Then Sal would say he was going to screw my five-year-old daughter; he was going to do this and that to my daughter sexually; how my daughter would scream and scream. I thought about attacking Sal and getting killed. But I wouldn’t do anything aggressive. Force is the weapon of the coward,” said Aamer. This dual kind-cruel treatment “destroys you completely,” says Aamer. “Your thinking is paralyzed. Your feeling is paralyzed. And the interrogator says, ‘I am trying to help you.’ You don’t know what to love and what to hate because it’s all happening at the same time. You don’t know anything anymore. You can’t tell apart good and bad, kind and evil. You lose the sense of the meaning of kindness.” According to Aamer, “The worst thing about torture is that you don’t know how to think, what to do, how to feel. You know you have your mind, but you don’t now how to react, which is horrible because you feel vulnerable. It’s terrible.”
Despite the US military’s media blackout on disclosing hunger strike information, Guantanamo prisoners continue to go on hunger strike and strikers are force-fed. Force-feeding not only violates medical ethics but has also been condemned as a form of torture by human rights advocates. In a letter to his lawyers at Reprieve, a not-for-profit legal organization, Yemeni prisoner Emad Hassan revealed that hunger-strikers are still brutally punished in Guantanamo. “One Yemeni is 80 pounds, and he was brought to his feeding by the Forced Cell Extraction (FCE) team, Guantánamo’s official riot police. Yesterday the FCE team beat him when they came into and out of his cell. He is 80 pounds with one broken arm. He cannot walk, just crawl from his bed to the faucet or toilet once he needs to use it! How can someone with this condition fight 8 armored guards?” he said in the letter. Hassan was cleared for release in 2007, never charged with a crime, and has been on hunger strike since that year. He explained, “The culmination of six or seven years of force-feeding is now taking its toll. A couple of months ago I had been given a kind of feeding formula . . . The formula made me vomit from 10 pm to 7 am – pieces of fat kept coming out whenever I vomited . . . they have begun this cruel process with [another detainee] – at 6 am he was holding a cup with vomit in it after six brutal hours of feeding. Every day is like that. If this isn’t torture . . . surely this is what normal people call it? By normal, I mean the normal people outside the prison, because there is no normality here.” According to Reprieve’s estimate, “approximately 17” Guantanamo prisoners are on hunger strike.
” ‘Rendition’ usually involves multiple human rights violations, including abduction, arbitrary arrest and detention, and unlawful transfer without due process of law.”
Recently, US District Judge Gladys Kessler ordered the Justice Department to hand over more than 30 videos showing the force-feeding of Syrian prisoner Abu Wa’el Dhiab (whose real name is Jihad Ahmed Mustafa Diyab), along with some of the man’s medical records, to his lawyers. That same judge forbade the military to force-feed Diyab, a long-time hunger striker, in an order issued last week but recently lifted, even as she criticized the force-feeding, saying it caused “agony.” Kessler said she faced “an anguishing Hobson’s choice”: Keep the order in place, which would risk Diyab dying, or lift it to keep him alive but endure “unnecessary” suffering at the hands of the US military. She chose the latter. Diyab was cleared for release in 2010.
In addition to torture, the CIA utilized extraordinary rendition to send detainees to secret prisons. Extraordinary rendition is the practice of detaining and interrogating individuals suspected of terrorist ties in other countries without due process. Human rights groups, like the American Civil Liberties Union (ACLU), have routinely criticized extraordinary rendition, pointing out that it violates basic international human rights standards. According to Amnesty International, ” ‘Rendition’ usually involves multiple human rights violations, including abduction, arbitrary arrest and detention, and unlawful transfer without due process of law. It also violates a number of other human rights safeguards: for example, victims of ‘rendition’ have no possibility of challenging their detention, or the arbitrary decision to transfer them to another country. ‘Rendition’ is a key element in the global system of secret transfers and arbitrary detention. This system is designed to detain people, often for obtaining intelligence from them, free from any legal restriction or judicial oversight.”
Article 9 of the International Covenant on Civil and Political Rights, which the United States is a party to, states: “Everyone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention. No one shall be deprived of his liberty except on such grounds and in accordance with such procedure as are established by law,” and “Anyone who is arrested shall be informed, at the time of arrest, of the reasons for his arrest, and shall be promptly informed of any charges against him.”
Dozens of foreign governments participated in the CIA’s rendition program. A report by the Open Society Foundation found that 54 foreign governments, spanning five continents, helped the CIA’s torture program: Afghanistan, Albania, Algeria, Australia, Austria, Azerbaijan, Belgium, Bosnia-Herzegovina, Canada, Croatia, Cyprus, the Czech Republic, Denmark, Djibouti, Egypt, Ethiopia, Finland, Gambia, Georgia, Germany, Greece, Hong Kong, Iceland, Indonesia, Iran, Ireland, Italy, Jordan, Kenya, Libya, Lithuania, Macedonia, Malawi, Malaysia, Mauritania, Morocco, Pakistan, Poland, Portugal, Romania, Saudi Arabia, Somalia, South Africa, Spain, Sri Lanka, Sweden, Syria, Thailand, Turkey, United Arab Emirates, United Kingdom, Uzbekistan, Yemen, and Zimbabwe. The CIA also operated in a black site in Diego Garcia, a British-“owned” coral atoll in the Indian Ocean that hosts a US Navy base.
These countries assisted in different ways, “including by hosting CIA prisons on their territories; detaining, interrogating, torturing, and abusing individuals; assisting in the capture and transport of detainees; permitting the use of domestic airspace and airports for secret flights transporting detainees; providing intelligence leading to the secret detention and extraordinary rendition of individuals; and interrogating individuals who were secretly being held in the custody of other governments. Foreign governments also failed to protect detainees from secret detention and extraordinary rendition on their territories and to conduct effective investigations into agencies and officials who participated in these operations,” according to the report.
Under rendition, detainees were commonly sent to countries with dismal human rights records where they were likely to be tortured. Some of them are countries the United States regularly condemns for human rights abuses, such as Libya and Syria. A notable case of this is that of Maher Arar, a [Syrian] man of dual Syrian and Canadian citizenship. Based on inaccurate and prejudiced intelligence provided the Royal Canadian Mounted Police, US authorities detained Arar while he was in transit at New York City’s John F. Kennedy airport on September 26, 2002. For almost two weeks, US officials interrogated him until the Immigration and Naturalization Service found him to be a member of al-Qaeda and demanded his removal from the United States. On October 8, 2002, Arar “was flown by the CIA to a detention center in Amman, Jordan, where he was blindfolded and beaten by Jordanian guards,” the Open Society Foundation report said. The next day, he was sent to Syria, “was detained for more than ten months in a tiny grave-like cell seven feet high, six feet long, and three feet wide, beaten with cables, and threatened with electric shocks, among other forms of torture” by Syrian Military Intelligence (SMI).
“Bush’s 4th term continues: No-lawyer interrogations; Secret renditions; Snatch & grab on sovereign soil; Indefinite detention.” – Ari Fleischer
Kidnapping, torture and secret prisons are nothing new in CIA history. The CIA’s 1963 manual for counterintelligence interrogation reveals this. Initially declassified in 1997, psychologist Jeff Kaye recently obtained an update of the document. The manual instructs interrogators on various methods of interrogation, including torture. They include fear, threats, food or sleep deprivation, sensory deprivation, solitary confinement, pain, hypnosis, drugs and other torture techniques to “exploit” a subject, ensure compliance with interrogators, and “bring a superior outside force to bear upon the subject’s resistance.” Although not mentioned in the 1963 document, Kaye and author H.P. Albarelli pointed out that in the early 1950s, the CIA kidnapped a 29-year-old Bulgarian operative code-named “Kelly,” but whose real name was Dimitrov. The CIA harshly interrogated him with drugs and hypnosis in a secret CIA interrogation center at Fort Clayton, Panama.
While the Obama administration closed the CIA’s black site system in 2009, it did continue the practice of rendition. In December 2012, the Obama administration secretly arrested and detained three European men of Somali origin in Djibouti before they faced trial in the United States for alleged support of al-Shabaab. In December 2011, Mohamed Ibrahim Ahmed, an Eritrean citizen, was interrogated by two teams of American agents, one “dirty” and one “clean.” The “dirty” team, reported The Washington Post “ignored the suspect’s right to remain silent or have a lawyer, according to court proceedings,” while the “clean” team “was careful to notify him of his Miranda rights and obtain confessions for trial.” Once that was done, Ahmed was sent to a “US federal court in Manhattan to face terrorism charges.” Continued the Post, “His American attorneys sought to toss out his statements on the grounds that they were illegally coerced, but the defendant pleaded guilty before a judge could rule on that question.” Two simultaneous US raids in Libya and Somalia last October led former Bush Press Secretary Ari Fleischer to gloat on Twitter, “Bush’s 4th term continues: No-lawyer interrogations; Secret renditions; Snatch & grab on sovereign soil; Indefinite detention.”
Supreme Court Upholds Indefinite Detention
On the last day of 2011, President Obama signed the 2012 National Defense Authorization Act (NDAA) into law, which contains sections that allow for the indefinite detention of US citizens suspected of “substantial support” for al-Qaeda, the Taliban and “associated forces,” a term referring to co-belligerents of al-Qaeda. Recently, the United States Supreme Court dismissed the Hedges v. Obama lawsuit against the 2012 NDAA, thereby rejecting a constitutional legal challenge against indefinite detention. This act by the Supreme Court is unsurprising. Federal courts have typically rejected lawsuits for damages done by post-9/11 counterterrorism policies.
In a Truthdig column condemning the Supreme Court’s dismissal, Hedges wrote that the decision “means the nation has entered a post-constitutional era. It means that extraordinary rendition of US citizens on US soil by our government is legal. It means that the courts, like the legislative and executive branches of government, exclusively serve corporate power – one of the core definitions of fascism. It means that the internal mechanisms of state are so corrupted and subservient to corporate power that there is no hope of reform or protection for citizens under our most basic constitutional rights.”