In the wake of the US Senate’s scathing report on the CIA rendition, detention and interrogation (RDI) program, the military commission system is grappling with influence by outside government agencies, calling the entire process into question.
At the end of February, just as the most recent military commission pretrial hearing in the 9/11 case began, US Army military judge Col. James L. Pohl quickly called for recess after defendants claimed they recognized a courtroom translator as a former CIA employee from the secret prisons in which they were detained.
Minutes into the hearing, Ramzi bin al-Shibh, one of the alleged 9/11 plotters, said of the translator in his defense team, “[T]he problem is I cannot trust him because he was working at the black site with the CIA and we know him from there.” Shortly after, Cheryl Bormann, defense attorney for another alleged 9/11 plotter, Walid bin Attash, told the judge, “My client relayed to me this morning that there is somebody in this courtroom who was participating in his illegal torture” and later added that he “was visibly shaken.” She said this was either “the biggest coincidence ever” or “part of the pattern of infiltration by government agencies into the defense teams.”
Chief prosecutor US Army Brig. Gen. Mark Martins did not deny the allegations about the courtroom translator but did say, “I can assure there is no attempt to have someone be put into defense teams in some untoward way, but we do want to collect the facts and understand what the situation is.”
Miami Herald reporter Carol Rosenberg explained, “War court translators are provided by one of two Defense Department contractors paid by the Pentagon unit that runs the war court, called the Office of the Convening Authority for Military Commissions. It’s run by retired Marine Maj. Gen. Vaughn Ary, a former military lawyer. The contractors are Leidos and All World.” The contractors provide translators to defense teams, but attorneys can object to these assigned linguists.
While defense lawyers can interview translators, and review their resume and biography before bringing them on their teams, there is virtually no way for them to know whether a translator has worked covertly in the CIA. US Navy commander Walter Ruiz, defense lawyer for Mustafa al-Hawsawi, an alleged financier of the 9/11 attacks, explained to Truthout, “If on that resume or bio, they [translators] do not disclose their affiliation [with the CIA] and, when they are asked, they deny anything, there’s nothing beyond that we can do.”
Another element, Ruiz added, is “these types of agents, or these kinds of operatives, sign non-disclosure agreements so they’re not required to provide that kind of information, even if asked directly. So there’s really no practical way to know if there is that kind of involvement in their background, unless they volunteer it,” which rarely happens. Not only does this establish a conflict of interest – between lawyers defending suspected terrorists in court and translators who were complicit in torturing those defendants – but this sort of government intrusion instills mistrust within defense teams, making it harder for them to perform their duties in the military commissions process.
Other examples of government intrusion into military commissions hearings include the Pentagon requiring judges to stay at Guantánamo until trials finish, and FBI infiltration in defense teams. Last December, retired US Marine Maj. Gen. Vaughn Ary, the convening authority in charge of the Guantánamo military commissions, sent a memo to Deputy Defense Secretary Robert Work asking that he require military commission judges to move to Guantánamo Bay “to accelerate the pace of litigation.” The next month, on January 7, 2015, the deputy defense secretary adopted the rule. Defense lawyers in both the USS Cole and 9/11 cases objected to the rule. Judge Pohl, citing “unlawful command influence,” halted the 9/11 hearing until the order was lifted. The Pentagon later rescinded the order.
In 2014, 9/11 defense attorneys discovered that a member of Bin al-Shibh’s defense team, a defense security officer, had been interrogated by the FBI. The agency required the unnamed security officer, a private contractor with SRA International Inc., to sign a “special relationship” agreement with the FBI, thus, turning them into an informant. US Air Force Lt. Col. Sterling R. Thomas, one of the defense lawyers for one of the alleged 9/11 plotters, Ammar al-Baluchi (also known as Ali Abdul Aziz Ali), said in a press release, “The US government’s breach of the integrity of the defense teams is outrageous.” Defense security officers review defense teams’ legal material and ensure that they are properly marked as unclassified or classified per the protective order’s classification rules. The matter is still not resolved.
The numerous instances of government intrusion into the military commissions process have undermined trust, confidentiality and transparency, thereby calling its legitimacy into question.
“There’s a decided chilling effect that goes on,” Ruiz said. “Confidentiality is the benchmark of our profession. It’s an essential component for what we do and it’s one of the ethical duties that the bar has the least tolerance for when an attorney violates it. So you see a great number of lawyers get disbarred or significantly reprimanded when they violate client confidences. In an atmosphere where you got an all-out assault on confidentiality and privilege through whether it’s hidden devices, infiltration by agents, where you have personnel who formerly, whether personally or were not, with the CIA intruding into a process that is supposed to be an independent one, that, of course, chills your ability to act.”
Rather than seeking true accountability, the military commissions process has served to protect government secrets about US national security policy during the war on terror. According to Ruiz, the military commission system was “created to protect state secrets and some very uncomfortable truths about the way we were now operating after the 9/11 attacks. Guantánamo is a method and means of maintaining control over information that is unpleasant.” He added, “There are powerful interests that do not want full transparency and do not want full accountability.”
Senate Torture Report Confirms Abuses
The latest hearing comes months after the December 2014 declassification of a portion of the Senate report on the CIA’s detention program, which has detained more than 100 people. The report’s numerous revelations (many of which were already known) include torture’s ineffectiveness in preventing terrorist attacks and capturing Osama bin Laden, and the brutal techniques inflicted on detainees. Torture techniques included, “(1) the attention grasp, (2) walling, (3) facial hold, (4) facial slap, (5) cramped confinement, (6) wall standing, (7) stress positions, (8) sleep deprivation, (9) waterboard, (10) use of diapers, (11) use of insects, and (12) mock burial.” CIA interrogators threatened to harm detainees’ children, and rape and kill their mothers. Over 20 percent of detainees were “wrongfully held,” meaning that the CIA had “insufficient information” to justify detaining them.
The Senate report confirmed that the CIA had two black sites in Guantánamo that it ran from September 2003 to April 2004. Additionally, the Senate report confirmed that the CIA ran a dark dungeon in Afghanistan, known as the “Salt Pit” prison (codenamed COBALT), with harsh and decrepit conditions. One detainee, Gul Rahman, was beaten and tortured in the Salt Pit, and later died there of hypothermia due to the cold conditions.
Also confirmed in the Senate report was the strategic purpose for torture: exploitation. While torture is notoriously ineffective for getting accurate intelligence, it is useful for eliciting false confessions, which often come in handy for governments. In footnote 857, the Senate report mentions the case of Ibn Shaykh al-Libi, a Libyan national who was rendered by the CIA to Egypt, where, under torture, he falsely claimed that the Iraqi government was helping al-Qaeda with biological and chemical weapons. This claim was later used by the Bush administration to justify the Iraq war, even though al-Libi recanted the statement in February 2003 and admitted he said it to stop the torture. Investigative journalist Marcy Wheeler pointed out that exploitation was also used “to help recruit double agents and to produce propaganda,” as in the case of Hassan Ghul, who agreed to infiltrate al-Qaeda for the United States after he was tortured. Or Sami al-Hajj, the Al Jazeera journalist who was held in Guantánamo for six years, who said the US government wanted him to spy for it to find ties between the network and al-Qaeda.
Some detainees were subjected to “rectal feeding,” a euphemism for anal rape. This was largely unknown in the public before the Senate report’s release. The practice involves “feeding” detainees through their rear ends. Ostensibly a medical procedure, rectal feeding was used as a form of behavior control for uncooperative detainees. Abd al-Rahim al-Nashiri, who is currently being tried in a military commission for allegedly masterminding the USS Cole bombing, was rectally fed after he launched a hunger strike. Khaled Sheikh Mohammed, the professed mastermind of the 9/11 attacks and another defendant in the 9/11 case, was also subjected to rectal feeding. Majid Khan’s “lunch tray” contained “hummus, pasta with sauce, nuts, and raisins” and was rectally fed to him involuntarily. Khan is a Pakistani citizen and former Baltimore resident who was held in CIA black sites before being transferred to Guantánamo in 2006. In 2012, Khan pleaded guilty to five war crimes, including murder and spying, in a plea bargain with the US government.
The Senate report included details about Mustafa al-Hawsawi’s torture in CIA black sites and a passage casting doubt on his alleged role in the 9/11 attacks. He was waterboarded, subjected to other forms of torture and, according to the report, “later diagnosed with chronic hemorrhoids, an anal fissure, and symptomatic rectal prolapse” because of the torture he experienced. Al-Hawsawi was detained for some time in the notorious Salt Pit prison. According to the report, CIA officials acknowledged that al-Hawsawi “does not appear to the [sic] be a person that is a financial mastermind” and the agency had little evidence against him at the time. Based on this and other information, Ruiz explained that al-Hawsawi “is not the core of the leadership of al-Qaeda or some financier or anything even close to that. That’s been grossly overplayed.”
Torture: “Suppressing the Truth”
In a press statement, James Connell III, civilian defense attorney for alleged 9/11 plotter Ammar al-Baluchi, said, “Torture affects the government’s whole case…. It touches everything: pretrial confinement, tainted interrogations, the reliability of witness statements, and ultimately whether or not the United States can sentence Mr. al Baluchi to death.”
The military commission system established by the Bush administration and continued by President Obama, with minor tweaks, bars evidence obtained through torture, but does allow coerced evidence. However, the line between torture and coercion is blurry and can be manipulated. There is also a protective order prohibiting defense attorneys from disclosing classified information to unauthorized parties, such as the press and international or nongovernmental organizations. Much of the classified information relates to how the six military commissions defendants were treated, abused and tortured during their years in CIA secret prisons. The order essentially gags sensitive information about the CIA torture program from being made public. Moreover, it undermines the right to redress for torture victims, since the military commissions defense lawyers cannot disclose many of those details to international bodies.
The existing classification restrictions surrounding the RDI program only facilitate further concealment of war crimes committed by agents of our government. These restrictions further violate our domestic commitment under the Convention Against Torture and the universal prohibition against silencing victims of torture. These self-serving restrictions also prohibit us from faithfully discharging our duties and defending these men in a manner consistent with our most cherished values…. Quite simply, the classification of the RDI program is suppressing evidence, suppressing the truth, and ultimately will suppress any real justice. This suppression violates our law and degrades our well-established jurisprudence regarding the defense of death penalty cases. We thus appeal to you to declassify the RDI program as to our clients who face death penalty prosecution. Declassification of the RDI program as to our clients should permit the defense to develop our cases, in domestic and international fora, as mandated by US Supreme Court precedent.
Ruiz told Truthout that the president has not responded to the attorneys’ letter. Nor has the rest of the Senate report on the CIA torture program been declassified.
Despite Releases, Indefinite Detention Continues
Recently, President Obama has amped up the pace of prisoner releases from Guantánamo. In 2014, 29 detainees were released to various countries, such as five to Qatar, as part of the prisoner swap for Bowe Bergdahl; three to the Republic of Georgia; six to Uruguay; four to Afghanistan and five to Kazakhstan. This year, so far, five detainees have been released – four to Oman and one to Estonia.
As a result, detainees have significantly decreased. At the beginning of November 2014, there were 136 Guantánamo detainees. Currently, there are 122 detainees remaining. Of those, 55 are cleared for release to other countries and around three dozen are in indefinite detention without charge or trial, which violates international human rights law. In June 2013, the chief prosecutor told reporters that the indefinite detainees will be “detained until the end of hostilities” against al-Qaeda, the Taliban and “associated forces.” The Obama administration designated 29 detainees for trial or military commission but chief prosecutor Martins said only 20 could be “realistically prosecuted.” Six detainees are being tried in military commissions, while three were already convicted and are still serving sentences.
Despite the Obama administration’s steady release of prisoners, the policies that made Guantánamo controversial – namely indefinite detention and military commissions – remain firmly in place.