Tortured Justice:

The Case Studies

- Former FBI Agent Dan Coleman (as reported by Jane Mayer in "Outsourcing Torture," New Yorker, February 14, 2005)

Nearly 800 men have been imprisoned at Guantánamo since 2002.[52] The vast majority have been released without charge. Approximately 280 detainees remain, roughly 80 of whom the government says it intends to charge.[53]

At this writing, however, only one man has been convicted, and charges have been sworn against just fourteen others. Australian David Hicks was sentenced to nine months in prison following a guilty plea in March 2007. Omar Khadr and Salim Ahmed Hamdan are engaged in pretrial proceedings, and their trials are expected to begin in 2008. Charges against four others, Mohammed Jawad, Ahmed Mohammed Ahmed al Darbi, Ibrahim Mahmoud al Qosi, and Ali Hamza Ahmed Sulayman al Bahlul have been referred. Charges against Mohammed Kamin and Ahmed Khalfan Ghailani were sworn in March 2008. The six remaining men, Khalid Sheikh Mohammed, Mohammed al-Qahtani, Walid Muahmmed Salih Mubarek bin Attash, Ramzi Binalshibh,

Ali Abdul Aziz Ali, and Mustafa Ahmed Adam al-Hawsawi have been jointly charged with participating in the planning and execution of the September 11 attacks.[54]

Human Rights First has identified at least 68 detainees who allege abuse in custody. (See Appendix B). Our findings are based primarily on CSRT and ARB transcripts, news accounts from credible media sources, interviews with attorneys representing detainees, and the Detainee Abuse and Accountability Project, undertaken jointly by Human Rights First, the Center for Human Rights and Global Justice at NYU School of Law, and Human Rights Watch.[55]

The following case studies focus on six men, three of whom have already been charged. Some of the abuses described have been documented in military investigations and prisoner interrogation logs, and some have been publicly acknowledged by administration officials.

Khalid Sheikh Mohammed, the reputed al Qaeda mastermind of some 31 terrorist plots, was apprehended in Pakistan in March 2003 and transferred to Guantánamo from secret CIA custody in September 2006.[56] At Guantánamo, he was deemed a "high-value" detainee and held without charge for 16 months. In February 2008, prosecutors referred charges against Mohammed and five other Guantánamo detainees allegedly linked to the September 11 attacks. The charges, for which prosecutors are seeking the death penalty, include conspiracy, murder, attacking civilians, terrorism, and providing material support for terrorism. Mohammed is accused of proposing the September 11 attacks to Osama bin Laden, obtaining bin Laden's funding and approval for the attacks, training the hijackers, and generally overseeing the operation.[57]

Mohammed's trial is expected to be the centerpiece of the military commission proceedings at Guantánamo Bay. Why, then, has there been so much delay? The initial delay can be attributed to the Bush Administration itself, which concealed Mohammed in CIA custody for three-and-a-half years rather than produce him for prosecution. CIA Director Michael Hayden has acknowledged that CIA interrogators waterboarded Mohammed.[58] As a "high-value" detainee, Mohammed also was subjected to other "enhanced" techniques, the details of which have been withheld as classified from public view. Reportedly, however, interrogators placed Mohammed in positions of stress and duress, induced hypothermia, subjected him to prolonged sleep deprivation, threatened to harm his children, and engaged in other unspecified techniques up to 100 times over a two-week period.[59]

Although government officials insist that Mohammed disclosed critical intelligence,[60] it has also been reported that he wove in numerous falsehoods, making it difficult for interrogators to distinguish fiction from fact.[61] Some interrogators have suggested that the use of torture and cruel treatment undermined their ability to develop a rapport with Mohammed and in fact destroyed his credibility.[62] One CIA official reportedly characterized many of Mohammed's claims as "'white noise' – designed to send the U.S. on wild goose chases or to get him through the day's interrogation session."[63]

Within three weeks of his capture, reports suggested that Mohammed had provided the names and descriptions of about twelve al Qaeda members planning terrorist attacks.[64] However, official statements regarding Mohammed's interrogations sent to Washington reportedly began with the caveat: "the detainee has been known to withhold information or deliberately mislead."[65] One former CIA analyst has said: "It's difficult to give credence to any particular area of this large a charge sheet that he confessed to, considering the situation he found himself in. K.S.M. [Khalid Sheikh Mohammed] has no prospect of ever seeing freedom again, so his only gratification in life is to portray himself as the James Bond of jihadism."[66]

The Bush Administration was responsible for yet more delay after Mohammed's delivery to Guantánamo: the CIA's use of torture, and Mohammed's own questionable credibility left prosecutors needing time to shore up their case. FBI and military interrogators known as the "Clean Team" are said to have spent months at Guantánamo questioning Mohammed, his co-defendants, and potential witnesses again, this time with non-confrontational, rapport-building techniques. The charges that followed are supposedly based in part on information provided during that time.[75]

But swearing charges is just the initial step in any prosecution, and a trial is still a long way off. Additional delays undoubtedly will follow as the parties argue over the reliability of the suspects' more recent statements, and the military commission judge is charged with determining whether the FBI's rapport-building methods can overcome the taint of the CIA's harsh interrogation techniques. Would Mohammed and the others have responded to FBI interrogators without having been tortured beforehand by the CIA? If the military commission judge answers "no," then she will have to decide whether waterboarding constitutes torture under the MCA, or whether it falls into the category of mere coercion or CID. Further complications will ensue if the CIA continues to shield as classified the other interrogation methods it used on Mohammed or the identity of the interrogators, a position which is entirely permissible under the MCA.[76]

It remains to be seen how military judges will reach resolution on these issues or whether the military commission system itself will retain any semblance of credibility after the pretrial hearings in Mohammed's case. But if the case does eventually proceed to trial, the gravity of Mohammed's alleged offenses may be overshadowed by legal battles over classified evidence, waterboarding, and the other harsh interrogation techniques he endured.

In the meantime, the statements Mohammed made under torture already may have been used during CSRTs as a basis for holding other detainees without charge, and could be used again if these detainees are ever tried. Among others, Mohammed is reported to have provided information about at least three other "high-value" detainees awaiting trial at Guantánamo, and about Ali Saleh Khallah al-Marri, the only enemy combatant being held on U.S. soil. (See textbox above). The MCA's rules on hearsay and classification allow the introduction of Mohammed's statements at these detainees' trials without calling Mohammed as a witness or even necessarily identifying him by name as the source of information.

Mohammed al-Qahtani, the alleged "20^th hijacker" in the September 11 attacks, was sent to Guantánamo in February 2002, where he was held without charge for six years.[80] In February 2008, al-Qahtani was charged as one of six co-conspirators with participating in the planning and execution of the September 11 attacks.[81] Al-Qahtani is the only one of the six who was not held in secret CIA custody and who is not classified as a "high-value" detainee.

Guantánamo officials reportedly did not discover al-Qahtani's true identity until July 2002, upon which he was marked for intensive interrogation.[82] According to the Department of Defense, during the summer and fall of 2002, al-Qahtani resisted standard interrogation techniques, prompting military officials to question whether "there may be more flexibility in the type of techniques we use on him."[83] On October 11, 2002, Major General Michael E. Dunlavey, Commander of Joint Task Force 170, sought approval from the chain-of-command for an interrogation plan, known as the "First Special Interrogation Plan," that included 19 techniques outside the U.S. Army Field Manual. Military interrogators began using these techniques on al-Qahtani soon after they received preliminary approval.[84] Some details of the interrogation regime were revealed in 2005 with the release of an executive summary to a report regarding allegations of abuse at Guantánamo. Further details were disclosed when al-Qahtani's military interrogation log was leaked from Guantánamo.[85]

By the fall of 2002, al-Qahtani had been "subjected to intense isolation for over three months" and "was evidencing behavior consistent with extreme psychological trauma (talking to non-existent people, reporting hearing voices, crouching in a cell covered with a sheet for hours on end)."[86] He was interrogated for 18 to 20 hours each day for 48 of the next 54 days and was subjected to at least ten additional techniques, including sleep deprivation, forced standing and other stress positions, and sexual and other physical humiliation.[87] The latter included strip-searches, forced nudity in front of a female interrogator, placing pictures of women in swimsuits around his neck and a thong on his head, and forcing him to wear a bra. By October 2002, a dog had been used to intimidate him.[88] In addition, al-Qahtani was allegedly led around by a leash tied to his chains and told to bark like a dog and growl at pictures of terrorists.[89] In order to keep his body functioning during physically coercive interrogations, officials reportedly gave him enemas and administered intravenous fluids and drugs. At one point, al-Qahtani's heart rate fell to 35 beats per minute, but he was subjected to more questioning less than 48 hours after being revived.[90]

The Defense Department maintains that al-Qahtani disclosed valuable intelligence about recruitment, logistics and planning for the September 11 attacks. Specifically, the agency asserts that al-Qahtani provided information about 30 of Osama bin Laden's bodyguards, clarified Jose Padilla's and Richard Reid's relationship with al Qaeda and their activities in Afghanistan, and provided additional information about Adnan El Shukrijumah, a suspected al Qaeda operative.[91] In March 2006, however, al-Qahtani repudiated all of his previous statements through a lawyer, claiming they were extracted as a result of torture.[92] During his ARB hearing in October 2006, al-Qahtani again said he had repeatedly lied under interrogation and had "adopt[ed] the story that the interrogators wanted to hear." He further stated: "Once this torture stopped, I explained over and over that none of what I said was true."[93]

Before the government swore charges against al-Qahtani in February 2008, many people – including key Guantánamo insiders – believed his prosecution would be impossible because of the abuse he endured. This list of people included Colonel Brittain P. Mallow, former commander of the Criminal Investigative Task Force (CITF), and Mark Fallow, CITF's former deputy commander.[94] Whether or not al-Qahtani's trial eventually proceeds, the six-year delay can be attributed largely to the use of coercive methods approved by the Bush Administration in his case. Former Secretary of Defense Rumsfeld himself specifically authorized those techniques.[95]

It remains to be seen whether the government's case against al-Qahtani has changed in any significant respect in recent months. Al-Qahtani has civilian counsel, so he may not have been re-interrogated by the "Clean Team." Nonetheless, his case may turn in part on new statements elicited by this team from other detainees.

In the alternative, if the government has not collected additional evidence from al-Qahtani or other detainees, prosecutors may attempt to rely on statements he made under abuse. The MCA provides some cover for interrogators' coercive tactics. If the military commission judge decides that al-Qahtani was subjected to coercion or CID, but not torture, his statements might be admissible against him. Nonetheless, while the MCA may shortcut the admissibility problem, it does not legitimize the abusive interrogation methods. In fact, the MCA's provisions on coerced evidence only increase the risk that al-Qahtani's trial and appeal will be dominated by debate over the abusive conduct of his interrogators, rather than his alleged criminal acts.

Whether or not al-Qahtani is eventually tried, the statements he made under torture may well have been introduced during the CSRT hearings of at least three other detainees, each of whom continues to be held without charge at Guantánamo. Additional statements made by al-Qahtani also may have been introduced during the CSRTs of Osama bin Laden's alleged bodyguards and could be introduced against some or all of these detainees during their military commission trials. (See textbox on p.14). The MCA's rules on hearsay and classification allow the introduction of al-Qahtani's statements without requiring him to testify, or even necessarily requiring the prosecutor to identify him by name as the source of information, thus potentially allowing prosecutors to conceal that the statements were elicited under coercion.

Abu Zubaydah is an alleged al Qaeda leader and close associate of Osama bin Laden. He was apprehended in 2002 following a firefight in Pakistan, during the course of which he was shot three times, suffering serious injuries. After receiving medical attention at a hospital in Lahore, Zubaydah was transported to a secret detention facility in Thailand where he was interrogated.[96]

Initially, FBI agents questioned Zubaydah employing standard methods.[97] Official government sources have said they obtained useful intelligence on al Qaeda using these techniques. Reportedly, Zubaydah confirmed Khalid Sheikh Mohammed's role in the September 11 attacks and provided information leading to Jose Padilla's arrest in May 2002.[98] At the same time, however, CIA officials reportedly believed that more information could be elicited from Zubaydah more quickly using "aggressive" techniques.[99] Thus, the CIA sought and received authorization to use some alternative methods. In the words of President Bush:

We knew that Zubaydah had more information that could save innocent lives, but he stopped talking. As his questioning proceeded, it became clear that he had received training on how to resist interrogation. And so the CIA used an alternative set of procedures. .I cannot describe the specific methods used. .But I can say the procedures were tough, and they were safe, and lawful, and necessary.[100]

In February 2008, CIA Director Michael Hayden publicly acknowledged that CIA interrogators waterboarded Zubaydah.[103] Based on one press account, which cites current and former intelligence and law enforcement officials, Zubaydah also was stripped naked, exposing his injuries, subjected to so much air-conditioning that he "seemed to turn blue," and blasted with rock music.[104] Additionally, according to CIA sources, Zubaydah "was slapped, grabbed, made to stand long hours in a cold cell, and finally handcuffed and strapped feet up to a water board until after 0.31 seconds he begged for mercy and began to cooperate."[105] Another account adds that Zubaydah was threatened with death, denied medication, and subjected to loud and continuous noise and harsh lights.[106] Current and former intelligence officials have said that the CIA suspended the use of harsh techniques on Zubaydah in June or July 2002.[107]

The CIA videotaped at least several hundred hours of Zubaydah's interrogations, but the tapes were destroyed in November 2005 at the behest of Jose Rodriguez, the CIA's former director of clandestine operations.[108] (See textbox above). Rodriguez's decision to destroy the tapes is the subject of ongoing congressional and criminal investigations. Director Hayden has asserted that the tapes were destroyed to protect the identities of the interrogators and because they no longer had intelligence value. Many others, however, believe they were destroyed to shield the interrogators – and senior government officials who authorized their behavior – from prosecution for criminal conduct captured in the recordings.[109]

Although Zubaydah has been held at Guantánamo since September 2006, military prosecutors have still not filed any charges against him, most likely because the accuracy of his statements – and the legitimacy of the process by which they were extracted – remain in dispute.[110] The CIA insists that Zubaydah provided reliable information regarding members of the al Qaeda leadership, including Khalid Sheikh Mohammed, and reliable threat information that "disrupted a number of attacks."[111] However, Zubaydah himself claims he lied to satisfy his interrogators. The following exchange occurred during his CSRT hearing:

President:   In your previous statement, you were saying specific treatments. Can you describe a little bit more about what those treatments were?

Detainee:    [REDACTED]

President:   I understand.

Detainee:    And they not give me chance all this [REDACTED]

President:   So I understand that during this treatment, you said things to make them stop and then those statements were actually untrue, is that correct?

Detainee:    Yes.[112]

Dan Coleman, a retired FBI agent who worked on Zubaydah's case, also believes Zubaydah lied. Coleman says the CIA's harsh techniques, together with Zubaydah's own mental problems, cast doubt on Zubaydah's importance to al Qaeda and on his credibility. "I don't have confidence in anything he says, because once you go down that road, everything [he] say[s] is tainted," said Coleman in reference to the coercive techniques. "He was talking before they did that to him, but they didn't believe him. The problem is they didn't realize he didn't know all that much."[113]

That prosecutors still have not charged Zubaydah may indicate that they cannot do so without relying on his statements obtained under abuse. The MCA's provisions on coerced and classified evidence provide prosecutors with one avenue. As long as the military commission judge assigned to Zubaydah's case defines waterboarding as coercion or CID, rather than as torture, his statements might be admissible at trial. In addition, the MCA permits prosecutors to shield as classified the details of other interrogation methods used on Zubaydah. However, while the MCA may cure the admissibility problem, it does not legitimize the CIA's methods in the eyes of the public. Without public trust in the proceedings, the legitimacy of Zubaydah's trial will be in question, and justice will be undermined.

The CIA's cruel treatment of Zubaydah also may infect the trials of other Guantánamo detainees. Reportedly, five detainees were arrested based on information provided by or related to Zubaydah.[114]

Mohamedou Ould Slahi allegedly steered Ramzi Binalshibh and three of the September 11 terrorist hijackers to Osama bin Laden.[115] He has been detained at Guantánamo for close to five years without charge.

A military investigation into the treatment of detainees at Guantánamo confirmed that, from July to September 2003, interrogators subjected Slahi to environmental manipulation, changing the air conditioner to cause extreme temperatures, threatened to interrogate and detain his mother at Guantánamo, and threatened his family if he failed to cooperate.[116] Slahi also alleges that he was held in isolation, beaten, and sexually humiliated.[117] An intelligence memorandum from August 2003 reports that an interrogator told Slahi:

[B]eatings and physical pain are not the worst thing in the world. After all, after being beaten for a while, humans tend to disconnect the mind from the body and make it through. However, there are worse things than physical pain. Interrogator assured Detainee that, eventually, he will talk, because everyone does. But until then, he will very soon disappear down a very dark hole. His very existence will become erased. His electronic files will be deleted from the computer, his paper files will be packed up and filed away, and his existence will be forgotten by all. No one will know what happened to him and, eventually, no one will care.[118]

Lieutenant Colonel V. Stuart Couch, the military prosecutor originally assigned to Slahi's case, stated that he first suspected that Slahi had been abused when he was provided with a sudden and unexplained increase in intelligence reports on the case. Before then, Lt. Col. Couch says he had little evidence against Slahi.[119] Lt. Col. Couch then made repeated requests to intelligence agencies asking about the circumstances surrounding Slahi's interrogation.[120] When he finally expressed his concerns about interrogation methods in 2004, then-Chief Prosecutor Colonel Robert Swann countered that statements made under torture could be admitted during military commissions because the U.N. Convention Against Torture did not apply to those proceedings.[121] In addition, at that time, military commission rules did not prohibit the admission of evidence obtained by torture.

Eventually Lt. Col. Couch and a U.S. military Criminal Investigation Task Force agent concluded that Slahi had been tortured, following which Lt. Col. Couch withdrew from the prosecution. (See textbox above). "Here was somebody I felt was connected to September 11, but in our zeal to get information, we had compromised our ability to prosecute him," Lt. Col. Couch said. But Lt. Col. Couch has not completely given up on the possibility that Slahi can be prosecuted. "I'm hoping there's some non-tainted evidence out there that can put the guy in the hole."[130]

Although military officials maintain that Slahi's statements have been corroborated by independent information, their reliability is still in dispute. Slahi described his responses to torture in a letter to his lawyers: "I yessed every accusation my [interrogators] made."[131] Prior to stepping down in October 2007, Former Chief Military Prosecutor Colonel Morris Davis stated that Slahi remains eligible for a military commission trial, but also acknowledged that concerns over Slahi's treatment raised by Lt. Col. Couch have delayed the prosecution.[132] Even if Slahi is never prosecuted, he could be detained indefinitely as an enemy combatant. And the decision to designate him as an enemy combatant presumably was made at least in part on the basis of his own coerced statements.

Binyam Mohamed reportedly was arrested in Karachi, Pakistan in April 2002. He was transferred to Guantánamo in September 2004, where he is currently held without charge.

Following his arrest in Pakistan, Mohamed maintains he was rendered to Morocco and then transferred to CIA custody in Afghanistan. He further states that he repeatedly lied in response to torture and abuse.[133]

Mohamed alleges that U.S. personnel in Pakistan suspended him from his cell with a leather strap tied around his wrists, barely permitting him to stand, and threatened him with physical abuse and rendition to countries where he could be tortured.[134] Mohamed's lawyer, Clive Stafford Smith, says the torture was documented by CIA officers who photographed Mohamed's injuries. In December 2007, Smith urged authorities to preserve the photos.[135]

During his detention in Morocco, Mohamed claims he was forbidden from going outside and never saw the sun; was hung by his ankles and beaten; had his penis mutilated; was subjected to loud music and noise, interrupting his sleep over the course of almost 18 months straight; and was forcibly administered drugs in apparent response to his hunger strike. In response to the torture, Mohamed says he attempted to tell his interrogators what he thought they wanted to hear, confessing falsely to some of their accusations.[136]

Mohamed says he was transferred to CIA custody in January 2004 and held at a detention facility in Kabul, Afghanistan – known as the "Dark Prison" – until May 2004. CIA agents in Afghanistan allegedly subjected Mohamed to sensory deprivation, sleep deprivation and isolation; bombarded him with loud rap music and horror movie noises for almost three consecutive weeks; held him in complete darkness most of the day; and deprived him of food.[137] U.S. government interrogators in Afghanistan allegedly informed Mohamed that he and Jose Padilla were suspected of plotting to detonate a radioactive bomb in New York, and punished Mohamed when he did not confirm their version of events. Mohamed claims he was later told to sign a statement that included admissions regarding his alleged conspiracy with Padilla.[138] (See textbox above).

On December 5, 2005, John D. Altenburg, a retired Army major general and then-appointing authority for military commissions, referred charges against Mohamed for conspiring with al Qaeda members – including Osama bin Laden, Khalid Sheikh Mohammed, Abu Zubaydah and Jose Padilla – to attack civilians, attack civilian objects, commit murder, destroy property and commit acts of terrorism. The U.S. government alleged that Mohamed and Padilla conspired to construct a "dirty bomb," blow up high-rise apartment buildings, and blow up gas tankers to "free the prisoners in Cuba."[139] The charges against Mohamed were nullified when the Supreme Court struck down the first military commission process in Hamdan.

It is unclear whether the government has sufficient evidence to recharge Mohamed. Smith told Human Rights First: "There isn't a case against Binyam Mohamed unless they use torture evidence, whether it was tortured out of him or someone else."[140]

Additionally, in a December 2007 letter to the British Foreign Secretary David Milliband, Smith wrote: "I have been privy to materials that allegedly support the finding that Mr. Mohamed should be held. And while I cannot discuss some here (due to classification rules), I can state unequivocally that I have seen no evidence of any kind against Mr. Mohamed that is not the bitter fruit of torture."[141]

At this writing, prosecutors may be searching for untainted evidence against Mohamed in order to shore up their case. Mohamed's family reports having received recent visits from FBI agents, who asked questions about his arrest.[146] Whether or not prosecutors will succeed remains to be seen. In the meantime, the British government continues to engage in talks with U.S. authorities in an attempt to secure Mohamed's release.[147]

Even if Mohamed is never tried, he could be detained indefinitely as an enemy combatant, likely based in part on the statements he made under abuse. In addition, Mohamed's statements may play a role in other

important military commission proceedings. The original charge sheet against him named eight co-conspirators, including Khalid Sheikh Mohammed. If Mohamed made statements under torture about any of these detainees, his statements may have been introduced during their CSRTs as a basis for detaining them. Given the MCA's rules on classified evidence, Mohamed's statements could also be introduced at their trials without calling Mohamed as a witness or even identifying him by name.

Omar Khadr, a twenty-one-year-old Canadian citizen, was detained at Bagram Air Base, Afghanistan, before being transferred to Guantánamo in October 2002.[148] He was 16 years old when he was taken to Guantánamo. Now in his sixth year of confinement, Khadr has spent more than a quarter of his life there.

In November 2007, Khadr was arraigned on charges of murder, attempted murder, providing material support for terrorism, and spying. He is accused of killing an American soldier with a hand grenade during combat with U.S. forces in Afghanistan in 2002.[149] If Khadr's trial proceeds, he will be the first juvenile in recent history to be tried for war crimes by any western nation, including the United States.

Khadr alleges he was repeatedly subjected to torture and cruel treatment during multiple interrogation sessions at Bagram and Guantánamo.[150] He states that military personnel in Bagram denied him pain medication for bullet wounds he sustained in battle with U.S. forces and that interrogators "tied his hands above the door frame and made him stand for hours at a time," "threw cold water on him," and "forced him to carry heavy buckets of water" while he was still recovering from his injuries. He also claims that interrogators kept him hooded, brought barking dogs into the interrogation room, threatened him with rape and transfer to other countries where he would be raped, and forbid him from using the bathroom, forcing him to urinate on himself.[151]

At Guantánamo, Khadr contends that interrogators forced him to lie on his stomach with his hands and feet shackled behind his back for hours at a time, making him urinate on himself, and that military police then dragged him through a mixture of urine and Pine Sol. Khadr further claims that he spent a month in isolation, confined to a room kept cold "like a refrigerator," and interrogators pulled his hair, spit in his face, repeatedly lifted him up and dropped him to the floor, and threatened him with extradition to countries where he would be raped. Interrogators also allegedly "short-shackled" his hands and feet to a bolt in the floor and threatened him with sexually violent acts.[152]. Short-shackling is the process of binding detainees at the wrist and ankle with metal or plastic handcuffs and then binding their wrists to their ankles while forcing them to lie on the ground or sit on the floor.

In a February 2008 affidavit, Khadr states: "I did not want to expose myself to any more harm, so I always just told interrogators what I thought they wanted to hear. Having been asked the same questions so many times, I knew what answers made interrogators happy and would always tailor my answers based on what I though would keep me from being harmed."[153]

Following the abuse, Khadr claims he "heard voices when no one was around," had a "persistent twitch . on the left side of his face," and had "difficulty sleeping."[154] A psychological analysis of Khadr's conditions, conducted in March 2005, found "a high probability that he suffers from a significant mental disorder, including but not limited to post-traumatic stress disorder and depression. In addition, he appears to be having both delusions and hallucinations." The psychologist added that "Khadr's continued subjection to the threat of physical and mental abuse place him at significant risk for future psychiatric deterioration which may include irreversible psychiatric symptoms and disorders. ."[155]

What justice would look like in Khadr's case, and whether it can be achieved through a military commission trial, is the subject of much dispute. Khadr's lawyers argue that the MCA does not provide jurisdiction over juvenile cases and that killing an enemy soldier during armed combat does not even constitute a crime triable by military commission.[156] If Khadr is prosecuted at all, his lawyers say he should be tried in a civilian court pursuant to various safeguards designed to protect juveniles, as outlined in the Juvenile Justice Act.

Assuming, however, Khadr's dismissal motions on these grounds are denied, his trial is scheduled to begin sometime in 2008. Depending on the judge's definition of torture, the statements Khadr says he made under coercion may be admissible against him under the MCA. And the government has already signaled its intention to introduce Khadr's statements against him at trial. Court documents released in March 2008 reveal that the government has granted one of Khadr's interrogators immunity from prosecution for any abuse of Khadr in

exhange for the interrogator's cooperation at trial.[157] The danger that Khadr could be convicted based at least in part on coerced evidence is compounded by other aspects of his case, including that prosecutors withheld an exculpatory witness from Khadr for months. In addition, defense lawyers claim that, during pretrial discovery, they were provided with an account of the firefight preceding Khadr's arrest that may have been altered to implicate Khadr.[158]