Military Commissions Stuck on Torture

At the end of October, in the latest installment of the Guantanamo military commissions, pretrial hearings for the five men accused of plotting the 9/11 terrorist attacks that killed nearly 3,000 people resumed. These and other hearings, as well as additional developments, reveal how far the United States government has gone to conceal evidence of human rights abuses, particularly torture. Moreover, it shows that the chapter on torture has not been closed.

Currently, 164 detainees, mostly low-level fighters captured overseas, remain in the detention facility at the US naval base in Guantanamo Bay, Cuba. Of those, 84 are cleared for release, around four dozen are designated for indefinite detention – seen as too difficult to prosecute, because there is not enough evidence to try them or evidence is inadmissible because it was produced through torture, but also too tricky to release – and a handful are being tried in military commissions. About 20 can be “realistically prosecuted,” according to chief prosecutor Brig. Gen. Mark Martins. Indefinite detention, the practice of incarcerating an individual without trial, violates international human rights standards, yet is still embraced by the Obama administration.

The military stopped providing daily updates of the six-month hunger strike in September, saying the strike was mostly over. However, the Miami Herald has continued counting. The numbers continue to hover around a dozen. As of this writing, 15 prisoners are on hunger strike, all of whom are being force-fed.

As part of its plan to close the Guantanamo prison, the Obama administration is in talks with the Yemeni government to build a detention facility outside Sana’a, the capital of Yemen, to hold Yemeni prisoners. The plan would affect Yemeni prisoners in Guantanamo only. More than half of the detainees – 89 of 164 – are from Yemen, and 55 are cleared for release. The governments are debating funding issues and whether the facility should include a rehabilitation center or be purely a prison. Recently, the Senate voted down two competing bills regarding restrictions on transferring Guantanamo detainees to US soil. One tightened restrictions, and the other eased them.

Among the topics discussed in the October pretrial hearings were the issue of torture, who ordered the search of Mustafa al-Hawsawi’s cell and legal bins (no closure on that issue), al-Qaeda funding, when the case will go to trial, and a motion to end force-feeding brought by Navy Cmdr. Walter Ruiz, al-Hawsawi’s defense attorney. The trial is expected to start in September 2014.

Torture Dominates Military Commissions

The topic of torture dominated the latest pretrial hearings. At issue were the US government’s obligations under the Convention Against Torture, an international treaty banning torture, to which the United States is a party.

Supporters of the CIA’s interrogation program, such as former Vice President Dick Cheney and conservative political commentator Joe Scarborough, argue that torture was necessary to obtain information that could prevent another terrorist attack on American soil. However, the convention 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.” Torture is recognized as a war crime and a crime against humanity by the International Criminal Court. Moreover, along with slavery, genocide, wars of aggression and crimes against humanity, torture is seen as violating customary international law – aspects of international law derived from custom for which no derogation is permitted.

Under the CIA’s Rendition, Detention and Interrogation (RDI) program, all five defendants were held in secret prisons, known as “black sites,” to be interrogated. The US government committed acts of torture – euphemistically known as “enhanced interrogation techniques” – as part of the interrogations. Khalid Sheikh Mohammed, the infamous key mastermind of 9/11, was waterboarded 183 times in March 2003 and gave several false and misleading statements during that time. Walid bin Attash was subjected to stress positions and forced nudity. Ramzi bin al-Shibh also was subjected to stress positions and forced nudity, along with torture with electric shocks, sleep deprivation and forms of sexual violence.

J. Connell III, attorney for Ammar al-Baluchi, told Truthout that “medical records from Guantanamo Bay demonstrate that, shortly after he arrived at Guantanamo, Mr. al-Baluchi complained that he had received a head injury while he was in CIA custody.” This information was declassified and arose during the hearing.

Little is known about how Mustafa al-Hawsawi was treated, but he spent years in CIA black sites. Last September, Connell visited Camp 7, the top-secret detention facility where high-value detainees, including the alleged 9/11 plotters, are. He was the first defense attorney to do so. Connell and his defense team took pictures and notes of what they observed, but he recently told Truthout that they came back classified.

Defense lawyers argued that the court’s protective order places immense restrictions on what they and their clients can say about the details of the defendants’ interrogation by the CIA, particularly torture. The lawyers are given clearance to access classified information, while their clients are not. Details of how the men were treated under US custody in CIA black sites – including their “thoughts and experiences” of US interrogation – are classified. The government argues that, while the defendants were detained in CIA black sites, they were “exposed” to “sources and methods” of interrogation, hence, the rationale to keep that information classified. The defendants can tell their attorneys how they were treated, and the attorneys can listen. But if lawyers receive classified information pertaining to the case, they cannot share nor discuss it with their client. More importantly, the attorneys cannot share information about how their clients were treated with any outside party, including the media, a human rights organization or international court.

Ruiz explained the protective order to Truthout: “Any information that I have received from Mr. al-Hawsawi about what may or may not have happened, I cannot share with any outside or independent organization that could help us. … I am gagged and precluded from sharing, cooperating and attempting to develop information that I could later use on his behalf. That’s a really huge restriction in our ability for us to defend him.”

The consequences of discussing that information are dire. Cheryl Bormann, defense attorney for Walid bin Attash, explained to Lesley Stahl on “60 Minutes” that “I would be prosecuted and imprisoned for, I believe, up to 30 years.” Similarly, former CIA analyst John Kiriakou is in prison for blowing the whistle on the Bush administration’s torture program. Kiriakou leaked classified information about a CIA operative involved in an RDI program to the press, for which he was convicted of violating the Intelligence Identities Protection Act and sentenced to 30 months at the Federal Correctional Institution in Loretto, Pennsylvania. He is the first person from the CIA to blow the whistle on torture and be imprisoned for a leak. Kiriakou has been sending letters about his life in prison.

However, restrictions on “leaking” information are not limited to “secrets.” The court’s protective order goes so far as to gag information about torture that is already public. Should defense attorneys read a report about how their client was treated, that information becomes classified once the lawyers handle it – and, as a result, cannot be discussed with the client. In the hearing, Bormann pointed out that the “protective order is more restrictive on us than the CIA is on José Rodriguez,” the former head of the CIA’s Counterterrorism Center and former deputy director of operations who wrote a book titled Hard Measures that celebrated brutal interrogations. The book, as Bormann pointed out, is laden with detailed facts about detainees’ interrogations, even as the defendants and lawyers are gagged from discussing similar information. As he promoted his book, Rodriguez lauded the efficacy and morality of the CIA’s torture program. Unlike Kiriakou, Rodriguez is not in prison and can live freely after writing a book that defended torture.

Defense lawyers argued that these restrictions conflict with the United States’ obligations under the Convention Against Torture. In the hearing, Ruiz repeatedly emphasized that the Convention Against Torture “prohibits any government from classifying information for the explicit purpose of hiding evidence of crimes” or preventing embarrassment. Victims of, or anyone who alleges, torture have the right, under international law, to petition national and international institutions, such as the Inter-American Commission on Human Rights (IACHR), to redress abuses they suffered. As Connell told Truthout, “A victim, or even a person who alleges torture, under international law, has to have the right to make their voices heard. Otherwise, the right against being tortured doesn’t mean anything.”

Thus, the accused, or lawyers on their behalf, can write to the IACHR or other international bodies to protest their treatment – but they can’t actually describe it. Because information relating to how the defendants were treated in CIA black sites is classified, “I’m not allowed to provide it to the IACHR or any international body,” Connell said.

Coincidentally, a few days after the commission hearing, the IACHR held a hearing relating to Guantanamo and torture. At the hearing, the IACHR demanded the United States explain the alleged abuses it committed in Guantanamo during a hearing on October 28. One of the commissioners, Rodrigo Escobar Gil, said, “The information we have indicates that there was a general and systematic violation of human rights” in Guantanamo. He said force-feeding during the hunger strike constituted “cruel and inhumane treatment.”

Also at the hearing was United Nations Special Rapporteur on Torture Juan Mendez, who provided independent expert testimony. He insisted that the US government allow IACHR and other human rights bodies to freely visit Guantanamo and meet privately with detainees (activities that are not currently allowed). In a letter to IACHR Executive Secretary Emilio Alvarez Icaza, Mendez said he considers “the practice of indefinite detention, and other conditions applied to detainees in Guantanamo such as solitary confinement, as well as the use of forced feeding, as forms of ill-treatment that in some cases can amount to torture.” He also urged the Obama administration to expedite the transfer of detainees and close the Guantanamo prison.

The defense lawyers argued the protective order’s restrictions undermine US obligations under the Convention Against Torture and effectively “silence” the defendants from speaking out about the torture they experienced. They urged the judge, Army Col. James Pohl, to either drop the death penalty or dismiss the case. Pohl, however, seemed perplexed as to what he could do. Even if the protective order were eliminated, the information in question would still be classified and the lawyers forbidden from disclosing it to outside parties. That’s because the judge does not have the authority to declassify information – that power comes from the executive branch. Defense lawyers asked the CIA to declassify information relating to their case, but the agency refused. So, the lawyers wrote a letter to President Obama, urging him to declassify details of the CIA’s torture and rendition program.

The government’s position, articulated by prosecutor Clay Trivett, is that this case is not about torture. “We’re trying these five men for the summary execution of 2,976 people,” Trivett said. He added that the defense’s problem is not with the protective order but, rather, with the “original classification authority.” While the torture may become relevant at some point in the military commission, “the defense has all of the tools necessary to present whatever those issues are to the court,” he countered. Additionally, Trivett argued that the Convention Against Torture is not self-executing and requires additional legislation to have full legal effect in the United States. The United States recognizes the convention, but if the accused want to redress their alleged torture, Trivett said, they have other venues to do so, such as US courts, the International Committee of the Red Cross and Department of Defense. There is no need to address their rights under the Convention Against Torture in this venue, Trivett asserted.

For two days, lawyers debated the binds placed on the defense by classifying the details of torture. Pohl suggested a possible “way forward.” The court could focus the protective order’s “classified information” language to that obtained during the military commission proceedings. This would remove prior independent observations and experiences of the accused from its orbit. The defense seemed interested, but the government rejected it. Trivett argued that the defendants’ observations are classified because they were exposed to sensitive “sources and methods,” hence the government’s objection to changing the “classified information” language. But all sides did agree that the president has the authority to declassify information and resolve the dispute. “If the president of the United States wants to declassify this information, he certainly can. And we would not be having this discussion,” Pohl said.

The defense lawyers are not the only ones “who object to the protective order,” as lawyer and researcher Katherine Hawkins points out. The Constitution Project’s Task Force on Detainee Treatment said the protective order’s restrictions violate “the public’s First Amendment right of access to those proceedings, the detainees’ right to counsel, and counsel’s First Amendment rights.” “Ongoing classification of these practices,” the Constitution Project added, “serves only to conceal evidence of wrongdoing and make its repetition more likely.” Recently, the European parliament called on the US “to stop using draconian protective orders which prevent lawyers acting for Guantanamo Bay detainees from disclosing information regarding any detail of their secret detention in Europe” in a resolution it passed.

There was no ruling on the torture motion. However, Pohl recently ordered the US government to release all correspondence with the ICRC regarding treatment of the accused in Guantanamo. Last June, defense lawyers argued for disclosing the correspondence, while the prosecution urged to keep it confidential. The correspondence provides additional information about the conditions of confinement in Guantanamo.

The “Clean Team”

Evidence obtained through torture is not allowed in the military commission. However, coerced evidence is permitted. In late 2006, FBI and military interrogators, known as the “clean team,” interrogated the five suspects to collect “virtually the same information the CIA had obtained” from them during their years in CIA black sites, according to a February 2008 Washington Post report. The goal was to collect statements that were “clean” from torture. “To ensure that the data would not be tainted by allegations of torture or illegal coercion, the FBI and military team won the suspects’ trust during the past 16 months by using time-tested rapport-building techniques,” the Post reported. The government is using these statements as evidence in the 9/11 case.

However, Bormann challenged the “clean team” statements’ validity on “60 Minutes.” “It’s like Alice going down the rabbit hole, right,” Bormann saidd. “You torture them for three years. You keep them in captivity after you stopped torturing them, in a place like Guantanamo Bay. And then you send in agents from the same government that tortured them for three years to take statements. And then, if you’re Gen. Martins, you say, ‘Well those are now clean.’ Guess what? They’re not.”

Martins told Stahl, “The people do not forfeit their chance for accountability because someone may have crossed a line or have coerced or subjected to harsh measures somebody who is in custody.” He continued, “The point that I reject, and that the law rejects, is that there can be no voluntary statements following an instance of coercion. … There can be such statements.”

Yet, in the 2008 Post report, retired Navy Rear Adm. John D. Hutson, a former judge advocate general, said, “There’s something in American jurisprudence called ‘fruit of the poisonous tree’: You can clean up the tree a little, but it’s hard to do so.” The legal metaphor “fruit of the poisonous tree” describes how evidence obtained illegally or in violation of a defendant’s constitutional rights is inadmissible in court. “Once you torture someone,” Hutson said, “it is hard to un-torture them. The general public is going to be concerned about the validity of the testimony.”

In an email to Truthout, Connell added, “If a statement is truly independent of prior coercion, that statement can be used in court. The problem is that after years of secret detention, it will be difficult for the prosecution to establish that the most recent interrogation is truly independent of what came before.”

Ultimate Irony

All of this points to the ultimate irony of the Guantanamo military commissions. Persons who are not US citizens and are suspected terrorists can be tried by the United States government for war crimes and for supporting terrorism in these commissions. However, if the US government tortures those individuals, the military commission system provides a vehicle to conceal evidence of those abuses through byzantine layers of classification, even though torture is a war crime and violation of domestic law. This creates a warped system of “justice” in which one side is tried for egregious crimes, while the other covers up its own, evades accountability, and acts as the arbiter of justice. As Bormann proclaimed in the hearing, “You can’t gag somebody and then want to kill them.” But in the military commissions, that’s exactly what’s happening.