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Tortured Justice:Endnotes
[1] President George W. Bush, "President Discusses
Creation of
Military
Commissions to Try Suspected Terrorists,"
White House Press Briefing, September 6, 2006,
(emphasis added),
http://www.whitehouse.gov/news/releases/2006/09/
20060906-3.html.
[2] Sanchez-Llamas. v. Oregon, 126 S. Ct. 2669, 2681 (2006).
[3] Michael Hirsh, John Barry and Daniel Klaidman,
"A Tortured Debate,"
Newsweek, June 21, 2004,
http://www.newsweek.com/id/54093.
[4] Dan Eggen and Walter Pincus, "FBI, CIA Debate
Significance of Terror Suspect," Washington Post,
December 18, 2007,
http://www.washingtonpost.com/wp-dyn/content/
article/2007/12/17/AR2007121702151.html.
[5] "Because in the beginning, while, like I say,
he was friendly –
and he was willing to talk
about philosophy, he was unwilling to
give us any – ny actionable intelligence."
Former CIA
agent John Kiriakou,
interview
by Brian Ross, "CIA – Abu
Zubaydah," ABC News
transcript, Tape #1, December 10, 2007,
http://abcnews.go.com/images/Blotter/
brianross_kiriakou_transcript1_blotter071210.pdf.
[6] 18 U.S.C. §§ 2340-2340A (2006).
[7] Memorandum from Assistant Attorney General Jay S. Bybee,
Office of Legal Counsel,
to Alberto R. Gonzales, Counsel to the
President, "Standards of Conduct for
Interrogation
under 18 U.S.C. §§ 2340-2340A," August 1, 2002,
http://www.humanrightsfirst.org/us_law/etn/gonzales/memos_dir/
memo_20020801_JD_%20Gonz_.pdf
(hereafter "Bybee memorandum"). The Bybee
memorandum also served as the
legal basis
for another memorandum, authored by
Assistant Attorney General
John Yoo,
which reportedly details the permissible
interrogation methods.
Memorandum from
John C. Yoo, Deputy Assistant Attorney General,
Office of
Legal Counsel, to Alberto R. Gonzales,
Counsel to the President, August 1, 2002,
http://news.findlaw.com/wp/docs/doj/bybee80102ltr.html;
Memorandum from
Daniel Levin, Acting Assistant
Attorney General, Office of Legal Counsel to William J.
Haynes II, General Counsel of the Department of Defense,
"Re: Memorandum for
William J. Haynes II,
General
Counsel of the Department of Defense, from John Yoo,
Deputy Assistant Attorney General,
Office of Legal Counsel,
Re: Military
Interrogation of Alien Unlawful Combatants
Held Outside the
United States
(March 14, 2003),"
February 4, 2005,
http://balkin.blogspot.com/Levin.Haynes.205.pdf.
[8] Memorandum from William E. Moschella, Assistant
Attorney General, to Senator Patrick J. Leahy,
"Obligations of the United States under Article
16 of the U.N. Convention Against Torture,"
April 4, 2005, (on file with Human Rights First);
Memorandum from President George W. Bush
to the
Vice President, et al., "Humane Treatment of al Qaeda
and Taliban Detainees," February 7, 2002,
http://www.gwu.edu/~nsarchiv/NSAEBB/NSAEBB127/
02.02.07.pdf
(hereafter "President Bush, February 2002 Memorandum"),
stating that the U.S. government considered the
Geneva Conventions inapplicable to captured
members of al-Qaeda, and failing to mention
parallel U.S. treaty obligations under the U.N.
Convention Against Torture and the International
Covenant of Civil and Political Rights.
[9] John Kiriakou, interview by Brian Ross, Tape #1,
(admitting that the CIA used "enhanced techniques,"
including the attention slap, waterboarding and sleep
deprivation of 40 hours plus). In 2005, ABC News
reported that the CIA's interrogation
program
consisted of six "enhanced interrogation
techniques," describing
them as follows:
"(1) The Attention Grab: The interrogator forcefully grabs the
shirt front of the prisoner and shakes him.
(2) Attention Slap: An open-handed
slap aimed at causing pain and triggering fear.
(3) The Belly Slap: A hard
open-handed slap to the stomach. The aim is to
cause pain, but not internal injury.
Doctors consulted advised against using a punch,
which could cause lasting internal
damage. (4) Long Time Standing: This technique is
described as among the most effective.
Prisoners are forced to stand, handcuffed and
with their feet shackled to an eye
bolt in the floor
for more than 40 hours. Exhaustion and sleep deprivation are
effective in yielding confessions. (5) The Cold Cell:
The prisoner is left to stand
naked in a cell kept
near 50 degrees. Throughout the time in the cell the prisoner is
doused with cold water. (6) Water Boarding:
The prisoner is bound to an inclined board,
feet raised and head slightly below the feet.
Cellophane is wrapped over the prisoner's
face and water is poured over him. Unavoidably,
the gag reflex kicks in and a terrifying
fear of
drowning leads to almost instant pleas to
bring the treatment to a halt." Brian
Ross and
Richard Esposito, "CIA's Harsh Interrogation
Techniques Described," ABCNews.com,
November 18, 2005,
http://abcnews.go.com/WNT/Investigation/story?id=1322866.
Additionally, relying on intelligence sources familiar
with a secret CIA report, James Risen
in 2006
reported that: "Prisoners have been forced
into coffin-like boxes, forced into
cells
where they are alternately denied all
light and put in brightly lit rooms and denied
sleep for
long periods. They are subjected to long hours of
extremely loud rap music –
Eminem is one favorite –
and they are forced to stand or squat in 'stress positions' for
hours at a time." James Risen, State of War:
The Secret History of the CIA and the Bush
Administration (New York: Free Press, 2006), p. 32.
[10] Douglas Jehl, "Report Warned C.I.A. on
Tactics In Interrogation," New York Times, November 9, 2005,
http://www.nytimes.com/2005/11/09/politics/09detain.html;
Dana Priest, "Covert CIA Program Withstands New Furor,"
Washington Post, December 30, 2005,
http://www.washingtonpost.com/wp-dyn/
content/article/2005/12/29/AR2005122901585.html.
[11] Memorandum from Daniel Levin, Acting
Assistant Attorney General to James B. Comey,
Deputy Attorney General, "Re: Legal Standards
Applicable Under 18 U.S.C. §§ 2340-2340A,"
December 30, 2004, fn. 8,
http://www.humanrightsfirst.org/us_law/etn/pdf/
levin-memo-123004.pdf.
Testifying before Congress in February 2008,
Assistant Attorney General Steven Bradbury described
the term "severe physical suffering,"
outlined in the December 2004 memorandum, as suffering that
"has to take account of both the intensity
of the discomfort or distress involved and the duration, and
something can be quite distressing or
uncomfortable even frightening – but if it doesn't involve severe
physical pain and it doesn't last very long,
it may not constitute severe physical suffering."
Prepared
Statement of Principal Deputy Assistant Attorney
General Steven Bradbury, House Committee on the
Judiciary Subcommittee on Constitution,
Civil Rights and Civil Liberties,
Justice Department's Office of Legal Counsel, 110th
Cong., 2nd sess., 2008.
[12] Detainee Treatment Act of 2005, Pub. L. No. 109-148, §1003(a).
[13] Hamdan v. Rumsfeld, 126 S. Ct. 2749, 2793-98 (2006).
[14] David Ignatius, "A Way Out of Guantánamo Bay,"
Washington Post, July 7, 2006,
http://www.washingtonpost.com/wp-dyn/content/
article/2006/07/06/AR2006070601548.html.
[15] Executive Order no. 13440, "Interpretation of the
Geneva Conventions Common Article 3 as Applied to a
Program of Detention and Interrogation Operated by
the Central Intelligence Agency, July 20, 2007,"
Federal Register, 72, no. 141, 40705-09 (July 24, 2007),
http://a257.g.akamaitech.net/7/257/2422/01jan20071800/
edocket.access.gpo.gov/2007/pdf/07-3656.pdf. See also CIA
Director General Michael V. Hayden, "Statement to Employees by
Director of the Central Intelligence Agency, General Michael V.
Hayden on the Executive Order on Detentions and Interrogations,"
CIA Press Statement, July 20, 2007,
https://www.cia.gov/news-information/press-releases-statements/
press-release-archive-2007/statement-on-executive-order.html;
Greg Miller, "Bush Signs New CIA Interrogation Rules,"
Los Angeles Times, July 21, 2007.
[16] "No one has ever claimed that the Army Field
Manual exhausts
all the lawful interrogation techniques
that the American republic can
use to defend itself," said
Hayden. CIA Director General Michael Hayden,
interview by
Charlie Rose, "Transcript: Charlie Rose interviews Michael
Hayden," International Herald Tribune (October 22, 2007),
October 23, 2007, http://www.iht.com/articles/2007/10/23/
america/23hayden.php?page=1.
The new Army Field Manual, issued September 6, 2006
specifically
prohibits the general application of physical pain.
Department of the
Army, Field Manual No. 2-22.3:
Human Intelligence Collector Operations
(Washington, DC:
Department of the Army, September 6, 2006), secs.
5.73-76 (hereafter "Army Field Manual 2-22.3").
[17] Attorney General Michael Mukasey, Senate Committee on
the Judiciary, Oversight of the U.S. Department of Justice, 110th
Cong., 2nd sess., 2008.
[18] Staff Judge Advocate Diane Beaver's legal analysis
accompanied the request. According to her reading, the
requested techniques, including stress positions, isolation
and use of phobias, did not violate federal law. Memorandum
from Diane E. Beaver, Staff Judge Advocate, Department of
Defense, Joint Task Force 170, to General James T. Hill,
Commander, Joint Task Force 170, "Re: Legal Brief on
Proposed Counter-Resistance Strategies," October 11, 2002;
Memorandum by Jerald Phifer, Director J2, Department of Defense,
Joint Task Force 170, to General James T. Hill, Commander, Joint
Task Force 170, "Re: Request for Approval of Counter-Resistance
Strategies," October 11, 2002; Memorandum by Diane E. Beaver,
Staff Judge Advocate, Department of Defense, Joint Task Force
170, to General James T. Hill, Commander, Joint Task Force 170,
"Re: Legal Review of Aggressive Interrogation Techniques,"
October 11, 2002. Memoranda available in The Torture Papers:
The Road to Abu Ghraib, eds. Karen J. Greenberg and
Joshua L. Dratel
(New York: Cambridge University Press, 2005),
pp. 229-235, 227-228, 226.
[19] Memorandum from William J. Haynes II, General Counsel,
Department of Defense, to Donald Rumsfeld, Secretary of Defense,
"Counter-Resistance Techniques," November 27, 2002;
Memorandum from Jerald Phifer, to General James T. Hill,
"Re: Request for Approval of Counter-Resistance Strategies,"
October 11, 2002. Memoranda available in The Torture Papers,
pp. 236-237, 227-228.
[20] Memorandum from Alberto J. Mora, Navy General
Counsel, to Navy Inspector General, "Re: Statement
for the Record: Office of General Counsel Involvement
in Interrogation Issues," July 7, 2004, p.14, http://www.aclu.org/
safefree/torture/29228res20040707.html#attach
(hereafter "Mora memo"); Bill Dedman, "Battle Over Tactics
Raged at Gitmo" MSNBC.com, October 23, 2006,
http://www.msnbc.msn.com/id/15361458/; FBI e-mail from
[redacted] to Gary Bald, Frankie Battle, and Arthur Cummings,
"Fwd: Impersonating FBI at GTMO," December 5, 2003,
http://www.aclu.org/torturefoia/released/FBI.121504.3977.pdf;
Jane Mayer, "Outsourcing Torture," New Yorker, February 14, 2005,
http://www.newyorker.com/archive/2005/02/14/050214fa_fact6.
[21] Memorandum from Donald Rumsfeld, Secretary of
Defense, to Commander USSOUTHCOM, "Counter-Resistance
Techniques (U)," January 15, 2003,
http://www.washingtonpost.com/
wp-srv/nation/documents/011503rumsfeld.pdf;
Mora memo, p. 15;
Jane Mayer, "The Memo,"
New Yorker, February 27, 2006,
http://www.newyorker.com/archive/
2006/02/27/060227fa_fact;
Daniel J. Dell'Orto, Principle Deputy General
Counsel of the Department of
Defense, "Press Briefing by White House Counsel
Judge Alberto Gonzales,
DoD General Counsel William Haynes, DoD Deputy
General Counsel Daniel
Dell'Orto and Army Deputy Chief of Staff for
Intelligence General Keith Alexander,"
White House Press Briefing, June 22, 2004,
http://www.whitehouse.gov/news/
releases/2004/06/20040622-14.html.
[22] Memorandum from Rumsfeld, Secretary of Defense, to the
Commander, US Southern Command, "Counter-Resistance
Techniques in the War on Terrorism (S)," April 16, 2003;
Working Group Report on Detainee Interrogations in the
Global War on Terrorism: Assessment of Legal, Historical,
Policy, and Operational Considerations, (Department of
Defense, April 4, 2003).
Memoranda available in The
Torture Papers, pp. 360-265, 286-359.
The Working
Group report, which relied in part on the reasoning
articulated in the Bybee memorandum, was signed by
Rumsfeld and "briefed" to military officials, including
Major Geoffrey Miller. Major Miller
subsequently was
assigned to Iraq to advise officials on interrogating
Iraqi detainees. Many of these techniques became part of U.S.
interrogation policy and practice in Iraq. Mayer, "The Memo."
[24] Rasul v. Bush, 542 U.S. 466 (2004) (holding that
detainees at Guantánamo Bay must have access to
federal courts to challenge the legality of their detention);
Hamdi v. Rumsfeld, 542 U.S. 507 (2004) (holding that a U.S.
citizen held as an "enemy combatant" must be given a
meaningful
opportunity to contest the factual basis for that
detention before a
neutral decision-maker).
[25] Memorandum from Paul Wolfowitz, Deputy
Defense Secretary, to the Secretary of the Navy, "Order
Establishing Combatant Status Review Tribunal," July 7, 2004,
http://www.defenselink.mil/news/Jul2004/d20040707review.pdf.
The term "enemy combatant" is defined as "an individual who
was part of or supporting Taliban or al Qaeda forces,
or associated
forces that are engaged in hostilities
against the United States or
its coalition partners.
This includes any person who has committed a
belligerent act or has directly supported hostilities in
aid of enemy armed forces."
[26] Memorandum from Deputy Secretary of Defense to the
Secretaries of Military Departments, et al., "Re: Implementation of
Combatant Status Review Tribunal Procedures for Enemy
Combatants Detained at U.S. Naval Base Guantánamo Bay,
Cuba," July 14, 2006, Enclosure (1), p. 6, G(7), G(11),
http://www.defenselink.mil/news/Aug2006/
d20060809CSRTProcedures.pdf.
[27] Detainee Treatment Act of 2005,
Pub. L. No. 109-148, §1005(b)(1).
In fact, the government has specifically
declared that CSRT panels
may rely on evidence obtained by torture.
Appearing before the
Supreme Court in Boumediene v. Bush,
Deputy Associate Attorney
General Brian Boyle stated: "If in fact
information came to the
CSRT's attention that was obtained through
a non-traditional
means, even torture by a
foreign power, I don't think that there
is anything in the due process clause even
assuming they
were [U.S.] citizens. . .that
would prevent the CSRT from
crediting that
information for purposes of sustaining the enemy
combatant class." Brian D. Boyle, Principle Deputy
Associate
Attorney General, Oral Argument
Transcript, Dec. 2, 2004, Khalid v. Bush,
No. 04-1142; Boumediene v. Bush, et al., 04-1166, at
84:7-84:22, cited in Memorandum of
Petitioners Zemiri and Al-Marri in
Opposition to Motion to Dismiss, In re
Guantanamo Detainee Cases,
No. 04-2046 (D.D.C. Jan. 13, 2005),
http://www.pegc.us/archive/Zemiri_v_Bush/
zemiri_reply_20050113.pdf.
[28] U. S. Department of Defense,
"Combatant Status Review Tribunal Summary,"
November 2, 2007,
http://www.defenselink.mil/news/Nov2007/
CSRTUpdate-Nov2-07.pdf
(summary of tribunal statistics
between July 30, 2004 and June 15, 2007).
[29] In re Guantánamo Detainee Cases,
355 F. Supp. 2d 443, 468-69 (D.C. Cir. 2005)
(finding that CSRT decisions substantially relied upon
classified evidence and that no detainee was ever
permitted access to classified information).
[30] Lt. Col. Stephen Abraham, who served in the
Office for Administrative Review of Detention of
Enemy Combatants from 2004 to 2005, has filed
affidavits in two cases outlining the "fundamental flaws"
in the CSRT process. Declaration of
Lt. Col. Stephen Abraham, U.S. Army Reserve,
filed in Al-Odah, et al v. United States,
No. 06-1196, June 15, 2007,
http://www.scotusblog.com/movabletype/archives/
2007/06/final_push_for.html; Declaration of Lt. Col.
Stephen Abraham, U.S. Army Reserve, filed in Hamad v. Gates,
07-1098, November 13, 2007,
http://www.scotusblog.com/wp/
wp-content/uploads/2007/11/
sub-new-abraham-declaration.pdf.
See also William Glaberson, "Reserve Officer Criticizes
Process of Identifying 'Enemy Combatants' at Guantánamo,"
New York Times, June 23, 2007,
http://www.nytimes.com/2007/06/23/
washington/23combatant.html;
Carol D. Leonnig and Josh White, "An Ex-Member
Calls Detainee Panels Unfair," Washington Post,
June 23, 2007,
http://www.washingtonpost.com/
wp-dyn/content/article/2007/06/22/
AR2007062202230.html.
[31] "Brief on Behalf of Former Federal Judges
as Amici Curiae in Support of Petitioners,"
in al Odah, et al. v. United States and
Boumediene, et al. v. Bush, Nos. 06-1195, 06-1196;
In re Guantánamo Detainee Cases, 355 F. Supp. 2d at 473
("it can be reasonably inferred that the
CSRT panels did not sufficiently consider
whether the evidence upon which the
tribunal relied in making its 'enemy combatant'
determinations was coerced from the detainees").
[32] 18 U.S.C. §2441(d)(1)(A); 18 U.S.C. §2340(2).
[33] Rochin v. California, 342 U.S. 165, 172 (1952).
[34] City of Revere v. Mass. Gen. Hospital,
463 U.S. 239, 244 (1983) (finding that
"the due process rights of a [pre-trial detainee]
are at least as great as the Eighth Amendment
protections available to a convicted prisoner")
(citing Bell v. Wolfish, 441 U.S. 520, 535 (1979)).
[35] Vice President Dick Cheney, interview by
Terry Moran, Nightline, ABCNews.com, December
18, 2005, http://www.washingtonpost.com/wp-dyn/
content/blog/2008/02/06/BL2008020602244.html.
[36] Detainee Treatment Act of 2005, Pub. L.
No. 109-148, §1005(e)(2)(C)(ii).
[37] Boumediene, et al. v. Bush, and
Al-Odah, et al. v. United States, Nos. 06-1195 & 06-1196.
[38] The administration contends that the
Constitution does not apply to detainees at
Guantánamo because it is outside the jurisdiction
of the United States. Boumediene v. Bush,
476 F.3d 981 (D.C. Cir. 2007).
[39] That position was based on the U.S.
reservation to Article 16 of CAT, which defines
"cruel, inhuman or degrading treatment" as
conduct prohibited by the Fifth, Eighth, and
Fourteenth Amendments, the protections of
which the administration interpreted as
inapplicable to "aliens overseas." Alberto
Gonzales to Senator Dianne Feinstein,
"Responses of Alberto R. Gonzales,
Nominee to be Attorney General to the
Written Questions of Senator Dianee
Feinstein," p. 10 (on file with Human
Rights First); Letter from William E.
Moschella, Assistant Attorney General,
to Senator Patrick J. Leahy, "Re:
Obligations of the United States under Article
16 of the U.N. Convention Against Torture,"
April 4, 2005 (on file with Human Rights First).
[40] Hamdan v. Rumsfeld, 126 S. Ct. 2749,
2791-97 (2006); Rasul v. Bush, 542 U.S. 466
(2004); Hamdi v. Rumsfeld, 542 U.S. 507 (2004).
[41] Hamdan, 126 S. Ct. at 2791-97.
[42] Military Commissions Act of 2006, 10
U.S.C. § 948r (c-d); 10 U.S.C. § 949a (b)(2)(C)
(further providing that "[a] statement of the
accused that is otherwise admissible shall
not be excluded from trial by military
commission on grounds of alleged coercion or
compulsory self-incrimination so long as the
evidence complies with the provisions of
section 948r of this title"). Proponents of the
coerced evidence provisions argued that the
evidentiary standards applied in courts-martial
and civilian criminal courts were too rigorous
and inapplicable to the battlefield and that all
terrorism suspects would claim they had been
abused. Attorney General Alberto Gonzales,
Senate Armed Services Committee, The Future of
Military Commissions in Light of the Supreme Court
Decision in Hamdan v. Rumsfeld, 109th Cong., 2nd
sess., 2006; Colonel Morris D. Davis, "In Defense
of Guantánamo Bay," 117 Yale L.J. Pocket Part 21
(2007), http://thepocketpart.org/2007/08/13/davis.html.
Opponents of the provisions pointed out
that permitting the use of coerced evidence
during criminal trials was unheard of in our nation's
history. Senator John McCain, author of the DTA's
prohibition of cruel treatment, said: "I think that if you
practice illegal, inhumane treatment and allow that to be
admissible in court, that would be a radical
departure from any practice [of] this nation." Tom Regan,
"Top Military Lawyers Oppose Bush Plan,"
Christian Science Monitor, August 4, 2006,
http://www.csmonitor.com/2006/0804/dailyUpdate.html.
[43] 10 U.S.C. § 948r(b).
[44]Brigadier General Thomas Hartmann,
Senate Committee on the Judiciary, The Legal
Rights of Guantanamo Detainees: What Are
They, Should They Be Changed, and Is an
End in Sight?, 110th Cong., 1st sess., 2007;
Josh White, "Evidence From Waterboarding
Could Be Used in Military Trials," Washington Post,
December 12, 2007, http://www.washingtonpost.com/
wp-dyn/content/article/2007/12/11/AR2007121102110.html.
Reportedly the Bush Administration has cabled U.S.
embassies throughout the world with instructions to
emphasize that statements obtained through torture
will be inadmissible at military commission trials, but that
statements obtained through CID may come in to evidence.
Josh White, Walter Pincus and Julie Tate, "Rules for Lawyers
Of Detainees Are Called Onerous," Washington Post,
February 13, 2008, http://www.washingtonpost.com/
wp- dyn/content/article/2008/02/12/AR2008021203042.html.
[45] Attorney General Michael Mukasey,
Senate Committee on the Judiciary, Oversight
of the U.S. Department of Justice, 110th Cong.,
2nd sess., 2008; Dan Eggen, "White House
Pushes Waterboarding Rationale," Washington
Post, February 13, 2008, http://www.washingtonpost.com/
wp-dyn/content/article/2008/02/12/AR2008021202691_pf.html.
[46] Assistant Attorney General Steven Bradbury,
House Committee on the Judiciary Subcommittee on
Constitution, Civil Rights and Civil Liberties, Justice
Department's Office of Legal Counsel, 110th Cong., 2nd sess.,
2008. Testifying before the Senate Intelligence
Committee a week earlier, CIA Director Michael
Hayden also defended waterboarding: "We used it
against these three high-value detainees
because of the circumstances of the time. Very
critical to those circumstances was the belief that
additional catastrophic attacks against the
homeland were imminent." CIA Director Michael
Hayden, Senate Intelligence Committee, Current
and Projected National Security Threats, 110th
Cong., 2nd sess., 2008; Dan Froomkin, "We
Tortured and We'd Do It Again," Washington Post,
February 6, 2008, http://www.washingtonpost.com/
wp-dyn/content/blog/2008/02/06/BL2008020602244.html.
[47] Brigadier General Thomas Hartmann,
Department of Defense Press Briefing,
February 11, 2008, http://www.defenselink.mil/
transcripts/transcript.aspx?transcriptid=4142.
[48] 10 U.S.C. § 949a (b)(2)(E). The relevant language reads:
(E)(i) Except as provided in clause (ii), hearsay
evidence not otherwise admissible under the
rules of evidence applicable in trial by general
courts-martial may be admitted in a trial by military
commission if the proponent of the evidence makes
known to the adverse party, sufficiently in
advance to provide the adverse party with a fair
opportunity to meet the evidence, the intention of the
proponent to offer the evidence, and the particulars
of the evidence (including information on the
general circumstances under which the evidence
was obtained). The disclosure of evidence under
the preceding sentence is subject to the
requirements and limitations applicable to the
disclosure of classified information in
section 949j(c) of this title.
(ii) Hearsay evidence not otherwise
admissible under the rules of evidence applicable in trial by
general courts-martial shall not be admitted in a trial by
military commission if the party opposing the
admission of the evidence demonstrates that the
evidence is unreliable or lacking in probative value.
[49] 10 U.S.C. § 949d (f)(2)(B). The relevant
language reads:
PROTECTION OF SOURCES, METHODS, OR ACTIVITIES-
The military judge, upon motion of trial counsel,
shall permit trial counsel to introduce otherwise
admissible evidence before the military commission,
while protecting from disclosure the sources, methods,
or activities by which the United States acquired the
evidence if the military judge finds that (i) the sources,
methods, or activities by which the United States
acquired the evidence are classified, and (ii) the evidence is
reliable. The military judge may require trial counsel to
present to the military commission and the defense, to
the extent practicable and consistent with national
security, an unclassified summary of the sources, methods, or
activities by which the United States acquired the evidence.
[50] Mil. Comm. R. Evid. 304, Discussion.
[51] U.S. v. Singleterry, 29 F.3d 733, 737
(1st Cir. 1994) (citing Opper v. U.S. 348 U.S. 84, 93 (1954)).
[52] Department of Defense, "Detainee Transfer
Announced," U.S. Department of Defense Press
Release, December 28, 2007, http://www.defenselink.mil/
releases/release.aspx?releaseid=11591.
[53] Department of Defense, "Defense Department
Takes Custody Of A High-Value Detainee," U.S.
Department of Defense Press Release, March 14, 2008,
http://www.defenselink.mil/releases/release.aspx?releaseid=11758;
Department of Defense, "Military Commission Charges Referred,"
U.S. Department of Defense Press Release, January 31, 2008,
http://www.defenselink.mil/releases/release.aspx?releaseid=11655.
[54] Five other detainees (Sufyian Barhoumi, Jabran
Said Bin al Qahtani, Ghassan Abdullah al Sharbi, Binyam
Ahmed Muhammed, and Muhammad Abdul Zahir) were
charged under the 2002 military commission scheme,
which was held unconstitutional in Hamdan. Their cases
were suspended and have not been reinstated under
the 2006 MCA. U.S. Department of Defense, Military
Commissions, "Web Archives," http://www.defenselink.mil/
news/commissionsarchives.html (charges for these five
detainees are not reinstated and are missing from the current
"Commission Cases" webpage, http://www.defenselink.mil/
news/commissions.html).
[55] Center for Human Rights and Global Justice at
NYU School of Law, Human Rights Watch and
Human Rights First, By the Numbers: Findings of the
Detainee Abuse and Accountability Project (New York: April 2006),
http://www.humanrightsfirst.info/pdf/06425-etn-by-the-numbers.pdf.
[56] President George W. Bush, "President Discusses
Creation of Military Commissions to Try Suspected Terrorists."
[57] U.S. Department of Defense, Military Commissions
Charge Sheet for Khalid Sheikh Mohammed, Walid
Muhammad Salih Mubarak Bin 'Attash, Ramzi Binalshibh,
Ali Abdul Aziz Ali, Mustafa Ahmed Adam al Hawsawi, and
Mohamed al Kahtani, February 11, 2008, http://www.defenselink.mil/news/
Feb2008/d20080211chargesheet.pdf (charged with
conspiracy, attacking civilians, attacking civilian objects,
intentionally causing serious bodily injury, murder in
violation of the law of war, destruction of property in
violation of the law of war, hijacking or hazarding a
vessel or aircraft, terrorism, and providing material support for terrorism).
[58] CIA Director Michael Hayden, Senate (Select)
Intelligence Committee, Current and Projected National
Security Threats, 110th Cong., 2nd sess., 2008.
[59] Ron Suskind, The One Percent Doctrine
(New York: Simon & Schuster, 2006), pp. 228-230;
Brian Ross and Richard Esposito, "CIA's Harsh Interrogation
Techniques Described." Mohammed is currently being held,
along with fourteen other "high-value" detainees, in a secret
location in Guantánamo known as Camp 7. Lawyers
who are permitted to speak with Camp 7 detainees
require top-secret security clearance and screenings and are
forbidden from revealing where the detainees were
held by the CIA or how they were interrogated. Carol
Rosenberg, "First 9/11 Death Penalty Defendant Gets
Military Lawyer," Miami Herald, February 12, 2008.
[60] Office of the Director of National Intelligence,
Summary of the High Value Terrorist Detainee Program,
September 2006, www.dni.gov/announcements/
content/TheHighValueDetaineeProgram.pdf; President
George W. Bush, "President Discusses Creation of
Military Commissions to Try Suspected Terrorists."
[61] Suskind, The One Percent Doctrine, pp. 229-230;
Associated Press, "Khalid Sheikh Mohammed's Words
Provide Glimpse into the Mind of a Terrorist," USA Today,
March 16, 2007, http://www.usatoday.com/news/world/
2007-03-16-ksm-psych_N.htm; Elaine Shannon and
Michael Weisskopf, "Khalid Sheikh Mohammed Names
Names," Time, March 24, 2003, http://www.time.com/
time/nation/article/0,8599,436061,00.html (reporting
that "some officials remain skeptical that at least some
of the information he is feeding interrogators is intentionally
misleading." However, some of his disclosures were
corroborated, leading one counter-terrorism official to
characterize the intelligence as, "valuable, credible, specific
information").
[62] Suskind, The One Percent Doctrine, pp. 229-230.
See infra Chapter 5 for a discussion of the effects of
torture and cruel treatment on detained suspects.
[63] Katherine Schrader, Associated Press, "Officials:
Mohammed Exaggerated Claims," Washington Post,
March 15, 2007, http://www.washingtonpost.com/wp-dyn/
content/article/2007/03/15/AR2007031501478.html.
[64] Shannon and Weisskopf, "Khalid Sheikh
Mohammed Names Names."
[65] Jane Mayer, "The Black Sites," New Yorker, August 13, 2007,
http://www.newyorker.com/reporting/2007/08/13/070813fa_fact_mayer/.
[66] Ibid (quoting former CIA analyst Bruce Riedel).
According to another account, a CIA source said that
Mohammed later recanted some of the information he
provided under interrogation. Risen, State of War, p. 33.
[67]Al-Marri v. Wright, 487 F.3d 160, 165 (4th Cir. 2007).
[68] Declaration of Mr. Jeffrey N. Rapp, Director, Joint Intelligence
Task Force for Combating Terrorism, Al-Marri v. Hanft, 378 F.
Supp 2d.673, No. 2:04-02257 (D.S.C. April 5, 2006), para. 8, 12-15,
http://www.washingtonpost.com/wp-srv/nation/documents/
jeffreyrapp_document.pdf. The Defense Department official notes:
"This statement is derived from specific intelligence sources.
This declaration does not identify the specific
source of such information."
[69] Al-Marri v. Wright, 487F.3d 160
(4th Cir. June 2007).
[70] President George W. Bush, "President
Discusses Creation of Military Commissions to
Try Suspected Terrorists."
[72] Motion to Declare Interrogation Methods
Applied Against Petitioner Constitute Torture,
Majid Khan v. Robert Gates, No. 07-1324,
(D.C. Cir. Dec. 6, 2007).
[73] Motion to Declare Interrogation Methods Applied
Against Petitioner Constitute Torture,
Majid Khan v. Robert Gates, No. 07-1324,
(D.C. Cir. Dec. 6, 2007). A United States appeals
court has referred the motion to a merits panel.
Order, Majid Khan v. Robert Gates, No. 07-1324
(D.C. Cir. Feb 14, 2008), http://pacer.cadc.uscourts.gov/
cgi-bin/image_pdf.pl?casenum=07-1324&dt=
200802&histid=1099104&view=yes&puid=01203972801.
[74] President George W. Bush, "President Discusses
Creation of Military Commissions to Try Suspected Terrorists."
[75] Josh White, Dan Eggen, and Joby Warrick,
"U.S. to Try 6 On Capital Charges Over 9/11 Attacks,"
Washington Post, February 12, 2008, http://www.washingtonpost.com/
wp-dyn/content/story/2008/02/11/ST2008021101227.html.
[76] At this writing, a military commission judge has
permitted lawyers for Salim Ahmed Hamdan to submit written
questions to Mohammed asking whether Hamdan took
part in the September 11 suicide plot and other attacks.
The lawyers, however, are not permitted to inquire about
interrogation techniques used on Mohammed. On
Reconsideration Ruling on Motion to Stay and for Access to
High Value Detainees, United States v. Salim Ahmed Hamdan,
March 14, 2008, http://www.defenselink.mil/news/Mar2008/
d20080314hamdanruling.pdf.
[77] Letter from Marc D. Falkoff to Administrative Review Board,
"Re: ARB Hearing for Abd Al Malik Abd al Wahab, ISN 037,"
April 30, 2005 (on file with Human Rights First).
[78] Letter from Marc D. Falkoff to Administrative Review Board,
"Re: ARB Hearing for Faruq Ali Ahmed, ISN 032,"
February 5, 2005 (on file with Human Rights First).
[79] Letter from Marc D. Falkoff to Administrative Review Board,
"Re: ARB Hearing for Uthman Abdul Rahim Mohammed Uthman,"
June 1, 2005 (on file with Human Rights First).
[80] Office of the Assistant Secretary of Defense (Public Affairs),
"Guantánamo Provides Valuable Intelligence Information," U.S.
Department of Defense News Release, June 12, 2005, http://www.fas.org/
irp/news/2005/06/dod061205.html.
[81] U.S. Department of Defense, Military Commissions Charge
Sheet for Khalid Sheikh Mohammed, Walid Muhammad Salih
Mubarak Bin 'Attash, Ramzi Binalshibh, Ali Abdul Aziz Ali, Mustafa
Ahmed Adam al Hawsawi, Mohamed al Kahtani, February 11, 2008.
[82] Adam Zagorin and Michael Duffy, "Inside the Interrogation of
Detainee 063", Time, June 12, 2005,
http://www.time.com/time/magazine/article/0,9171,1071284,00.html.
[83] Daniel J. Dell'Orto, White House Press Briefing, June 22, 2004.
[84] Bill Dedman, "Can the '20th Hijacker' of Sept. 11 Stand Trial?"
MSNBC.com, October 24, 2006, http://www.msnbc.msn.com/id/15361462/.
[85] Lt. Gen. Mark Schmidt and Brig. Gen. John Furlow,
Final Report, Investigation into FBI Allegations of Detainee
Abuse at Guantánamo Bay, Cuba Detention Facility, (U.S.
Department of Defense, June 9, 2005), p.14,
http://www.defenselink.mil/news/Jul2005/d20050714report.pdf
(hereafter "Schmidt-Furlow Report"). Al-Qahtani's entire
interrogation log was made public by Time Magazine
in 2006 (hereafter "Interrogation Log"),
http://www.time.com/time/2006/log/log.pdf.
[86] Zagorin and Duffy, "Inside the Interrogation of
Detainee 063;" Corine Hegland, "Guantánamo's Grip,"
National Journal, February 3, 2006,
http://nationaljournal.com/about/njweekly/stories/2006/0203nj1.htm.
[87] Tim Golden and Don Van Natta Jr., "Most
Guantánamo Prisoners of No Strategic Value,"
New York Times, June 21, 2004.
[88] Schmidt-Furlow Report, pp. 7-8, 20
(describes acts of sexual humiliation), 14-15, 27
(concludes that using a dog was unauthorized
when used in October 2002).
[89] Schmidt-Furlow Report, p. 19; Adam Zagorin
and Michael Duffy, "Inside the Interrogation of
Detainee 063," Time, June 12, 2005, http://www.time.com/
time/magazine/article/0,9171,1071284,00.html;
Interrogation Log, p. 47.
[90] Interrogation log, p. 27.
[91] Office of the Assistant Secretary of Defense
(Public Affairs), "Guantánamo Provides Valuable
Intelligence Information," U.S. Department of
Defense News Release, June 12, 2005,
http://www.fas.org/irp/news/2005/06/dod061205.html;
Daniel J. Dell'Orto, White House Press Briefing,
June 22, 2004.
[92]Adam Zagorin, "20th Hijacker'
Claims That Torture Made Him Lie," Time,
March 3, 2006,
http://www.time.com/time/nation/article/
0,8599,1169322,00.html.
[93] Verbatim transcript of Administrative
Review Board hearing for ISN 063 [al-Qahtani],
Enclosure (5), p. 8, http://www.dod.mil/pubs/foi/
detainees/csrt_arb/ARB_Transcript_2000-2099.pdf.
[94] Dedman, "Can the '20th Hijacker' of
Sept. 11 Stand Trial?"
[95] The report concluded that the "creative, aggressive, and
persistent interrogation of the subject of the first Special
Interrogation Plan resulted in the cumulative effect being
degrading and abusive treatment." It also stated that the
impact of 48 of 54 consecutive days of 18 to 20-hour
interrogations, paired with 160 days of segregation from other
detainees, was "particularly troubling."
Schmidt-Furlow Report, p. 20.
[96]Suskind, The One Percent Doctrine, p. 89;
David Johnston, "At a Secret Interrogation,
Dispute Flared Over Tactics," New York Times,
September 10, 2006, http://www.nytimes.com/
2006/09/10/washington/10detain.html. During the
next several years, Zubaydah was likely
transferred to several other secret CIA detention
facilities around the world, possibly including facilities in
Poland, Diego Garcia and Africa. The interrogations
continued in these facilities. Council of Europe,
Parliamentary Assembly, Committee on Legal Affairs
and Human Rights, Secret detentions and illegal
transfers of detainees involving Council of Europe
member states: second report, prepared by
Rapporteur Dick Marty, June 7, 2007,
http://assembly.coe.int/CommitteeDocs/2007/
EMarty_20070608_NoEmbargo.pdf.
[97] David Johnston, "At a Secret Interrogation,
Dispute Flared Over Tactics," New York Times,
September 10, 2006,
http://www.nytimes.com/2006/09/10/washington/10detain.html;
Katherine Eban, "Rorschach and Awe," Vanity Fair.com,
July 17, 2007,
http://www.vanityfair.com/politics/
features/2007/07/torture200707;
Risen, State of War, pp. 20-23; Suskind,
The One Percent Doctrine, p. 115
(reporting that "test[ing] boundaries" began in May 2002).
[98] Johnston, "At a Secret Interrogation,
Dispute Flared Over Tactics."
[99]Richard Esposito and Brian Ross,
"Coming in From the Cold: CIA Spy Calls
Waterboarding Necessary But Torture,"
ABCNews.com, December 10, 2007
(discussing interview with John Kiriakou
featured on World News With Charles
Gibson and Nightline); Johnston, "At a
Secret Interrogation, Dispute Flared Over Tactics."
[100] President George W. Bush, "President
Discusses Creation of Military Commissions to
Try Suspected Terrorists."
[101] H.R. 4951, 108th Cong., (2004)
(To require the videotaping of interrogations
and other pertinent actions between a
detainee or prisoner in the custody or
under the effective control of the armed
forces of the United States pursuant to
an interrogation, or other pertinent
interaction, for the purpose of gathering
intelligence and a member of the armed
forces of the United States, an intelligence
operative of the United States, or a
contractor of the United States).
[102] Army Field Manual 2-22.3, sec. 9-29.
[103] CIA Director Michael Hayden, Senate (Select)
Intelligence Committee, Current and Projected
National Security Threats, 110th Cong., 2nd sess., 2008.
[104] Johnston, "At a Secret Interrogation,
Dispute Flared Over Tactics."
[105] Brian Ross, "Sources Tell ABC News Top
al Qaeda Figures Held in CIA Secret Prisons,"
ABCNews.com, December 5, 2005,
http://abcnews.go.com/WNT/Investigation/story?id=1375123.
[106] Suskind, p. 115. See also Eban,
"Rorschach and Awe;" Mayer,
"The Black Sites," (reporting that Zubaydah
informed the ICRC that he had been placed
in a "dog box" – a small cage –
for lengthy periods of time).
[107] Mark Mazzetti and David Johnson,
"Inquiry Begins Into Destruction of Tapes,"
New York Times, December 9, 2007,
http://www.nytimes.com/2007/12/09/
washington/09zubaydah.html?_r=1&oref=slogin.
[108] Mark Mazzetti and Scott Shane,
"Destruction of C.I.A. Tapes Cleared by
Lawyers," New York Times, December 11, 2007,
http://www.nytimes.com/2007/12/11/
washington/11intel.html?ex=1355029200&en=
260ed8b0c9e0df0d&ei=5088&partner=rssnyt&emc=rss.
[109] Mark Mazzetti, "C.I.A. Destroyed
Tapes of Interrogations," New York Times,
December 6, 2007, http://www.nytimes.com/
2007/12/06/washington/06cnd-intel.html;
Warren Richey, "Destroyed CIA Tapes
Spur Probes," Christian Science Monitor,
December 10, 2007,
http://www.csmonitor.com/2007/1210/
p03s03-usju.html?page=1.
[110] In February 2008, Zubaydah's lawyers
filed a petition for his release in the D.C.
Circuit Court of Appeals, arguing that his
"prolonged, indefinite and restrictive detention"
violates both domestic and international law.
Amended Petition for Relief Under the Detainee
Treatment Act of 2005, and, in the Alternative, for
Writ of Habeas Corpus, Zayn Al Abidin Muhammad
Husayn v. Robert M. Gates, No. 07-1520, (D.C. Cir.
Feb. 21, 2008).
[111] Esposito and Ross, "Coming in From the Cold:
CIA Spy Calls Waterboarding Necessary But Torture."
[112] Verbatim Transcript of Combatant Status
Review Tribunal Hearing for ISN 10016
[Abu Zubaydah], March 27, 2007, p. 24,
http://www.defenselink.mil/news/transcript_ISN10016.pdf.
[113] Eggen and Pincus, "FBI, CIA Debate
Significance of Terror Suspect." Journalist
Ron Suskind reported that Zubyadah
suffered from multiple personality disorder,
calling into question his general credibility.
The Washington Times cited a counterterrorism
official who disagrees with Suskind's
account of Zubyadah's mental state, however,
questioning the veracity of Suskind's
information, calling Zubaydah "'crazy like a fox,'"
and maintaining that Zubaydah did provide
important information. Ron Suskind, "The
Unofficial Story of the al-Qaeda 14," Time,
September 10, 2006,
http://www.time.com/time/magazine/article/
0,9171,1533436,00.html; Suskind, The
One Percent,Doctrine, pp. 95, 100-101;
Bill Gertz and Rowan Scarborough,
"Inside the Ring," Washington Times, June 23, 2006,
http://www.gertzfile.com/gertzfile/ring062306.html.
[114] Mazzetti and Johnston, "Inquiry
Begins Into Destruction of Tapes."
Zubaydah was also the primary
source for the material witness warrant
issued for the arrest of Jose Padilla in
May 2002. When Padilla was finally
prosecuted in federal court in 2007,
his lawyers claimed that Zubaydah had
implicated Padilla while suffering from
gunshot wounds and possibly without
adequate medication.
Jose Padilla's Motion to Suppress
Physical Evidence And Issue Writs Ad
Testificandum, U.S. v. Jose Padilla, et al.,
No. 04-60001, (S.D.FLA May 2006), at
3-4, http://jurist.law.pitt.edu/
ControvertWarrantSuppressEvidenceMotion.pdf.
But the Justice Department contended
there was no evidence that Zubaydah
had been tortured. Emily Bazelon and
Dahlia Lithwick, "If the CIA Hadn't
Destroyed those Tapes, What Would
Be Different?" Slate, December 10, 2007,
http://www.slate.com/id/2179607/.
[115] National Commission on Terrorist
Attacks Upon the United States, The 9/11
Commission Report (New York: W.W. Nortan
and Company, 2004), pp. 165-66,
http://www.9-11commission.gov/report/
911Report_Ch5.pdf; Dana Priest and Scott Higham,
"At Guantánamo: A Prison Within a Prison,"
Washington Post, December 17, 2004,
http://www.washingtonpost.com/ac2/wp-dyn/
A5918-2004Dec16?language=printer.
[116] Jess Bravin, "The Conscience of the
Colonel," Wall Street Journal, March 31, 2007;
Schmidt-Furlow Report, pp. 21-25.
[117] Bravin, "The Conscience of the Colonel."
[118] Schmidt-Furlow Report, p. 25.
[122] Col. Morris D. Davis, "AWOL
Military Justice," Los Angeles Times,
December 10, 2007,
http://www.latimes.com/news/printedition/asection/
la-oe-davis10dec10,1,743034.story.
See also Col. Morris D. Davis, "Military
Commissions: Fair or Foul?," Los Angeles Times,
December 26, 2007, http://www.latimes.com/
news/opinion/la-oew-morris26dec26,0,7831090.story.
[123] E-mail from Capt. John Carr to
Col. Fred Borch, "Re: Meeting with
Colonel Borch and Myself, 4:00 p.m.
Today, Col. Borch's Office,"
March 15, 2004, (on file with Human Rights First);
E-mail from Maj. Robert Preston to
Capt. Teresa Davenport, "Re:
Meeting with Colonel Borch and Myself,
4:00 p.m. Today, Col. Borch's Office,"
March 11, 2004, (on file with
Human Rights First). See also Jess Bravin,
"Two Prosecutors Quit in Protest,"
Wall Street Journal, August 1, 2005.
A Defense Department Inspector General
investigation, however, did not
substantiate the allegations. Office of
Assistant Inspector General for
Investigations, PROJECT: Military Commission
(MILCOM), (April 30, 2004), p. 30,
http://www.dodig.osd.mil/fo/foia/ERR/
r_REDACTED-MILCOM-ROIonly.pdf.
[124] E-mail from Capt. John Carr to
Col. Fred Borch, "Re: Meeting with
Colonel Borch and Myself," March 15, 2004.
[125] Ibid.; E-mail from Maj. Robert
Preston to Capt. Teresa Davenport,
"Re: Meeting with Colonel Borch and
Myself," March 11, 2004. Maj. Preston's
e-mail adds: "I sincerely
believe that this process is wrongly
managed, wrongly focused and a blight on the
reputation of the armed forces." Later he states:
"I lie a wake worrying about this every night.
I find it almost impossible to focus on my part
of the mission – after all, writing a motion
saying that the process will be full and fair
when you don't really believe it will be is
kind of hard – particularly when you
want to call yourself an officer and a lawyer.
This assignment is quite literally ruining my life."
[126] Jess Bravin, "Dispute Stymies
Guantanamo Terror Trials," Wall Street Journal,
September 26, 2007.
[127] Josh White, "Pressure
Alleged in Detainee Hearings,"
Washington Post, October 21, 2007,
http://www.washingtonpost.com/wp-dyn/
content/article/2007/10/20/AR2007102001002.html;
William Glaberson, "Claim of Pressure for Closed
Guantánamo Trials," New York Times, October 22, 2007,
http://www.nytimes.com/2007/10/20/us/
nationalspecial3/20gitmo.html.
[128] Ben Fox, "Ex-Prosecutor to Serve as
Defense Witness in Terror Case,"
Washington Post, February 22, 2008,
http://www.washingtonpost.com/wp-dyn/
content/article/2008/02/21/AR2008022102662.html.
[129] Jane Sutton, "Ex-Guantanamo
prosecutor to leave U.S. military,"
Reuters, March 25, 2008,
http://www.reuters.com/article/reutersEdge/
idUSN3P38816520080325.
[130] Bravin, "The Conscience of
the Colonel."
[131] Ibid;. Letter from Mohamedou Ould
Slahi to Nancy Hollander and Sylvia Royce,
November 9, 2006, http://online.wsj.com/
public/resources/documents/couch-
slahiletter-03312007.pdf.
[132] Bravin, "The Conscience of
the
Colonel."
[133] Mohamed alleges that he was first
taken to Landi prison in Pakistan and held
there from April 13-20, 2002, where he
was not interrogated. He was taken a
week later to the I.C.I. unit, a Karachi
interrogation center. Memorandum from
Attorney Clive Stafford Smith,
"Binyam Mohammed al-Habashi,"
August 1, 2005 (on file with Human Rights First);
Brief of Binyam Mohammed as Amicus
Curiae in Support of Petitioner, Hamdan v. Rumsfeld,
126 S. Ct. 2749 (2006) (No. 05-184) at 3,
http://www.hamdanvrumsfeld.com/
MohammedAmicusFinal.pdf. See also
Written evidence submitted by Reprieve:
British Involvement in Renditions and Torture,
As part of the House of Commons
Foreign Affairs – Fourth Report, Case 2:
Binyam Mohammed Al-Habashi, March 2006,
http://www.publications.parliament.uk/pa/cm200506/
cmselect/cmfaff/573/573we25.htm.
[134] Memorandum from Attorney
Clive Stafford Smith, "Binyam Mohammed
al-Habashi;" Brief of Binyam Mohammed as
Amicus Curiae in Support of Petitioner,
Hamdan v. Rumsfeld, 126 S. Ct. 2749 (2006)
(No. 05-184) at 3.
[135] Andrew Selsky, Associated Press,
"Gitmo Inmate's Lawyer Urges U.S. on
Photos," USA Today, December 10, 2007,
http://www.usatoday.com/news/topstories/
2007-12-10-3587204980_x.htm. Smith
maintains that U.S. officials continued to abuse
Mohamed after his arrival at Guantánamo Bay,
and Mohamed's mental health has deteriorated
as a result. Robert Verkaik, "UK Guantánamo
Detainee Near Suicide After Years of Torture,
Doctors Warn," The Independent, December 18, 2007,
http://www.independent.co.uk/news/world/americas/
uk-guantanamo-detainee-near-suicide-after-years-
of-torture-doctors-warn-765686.html.
[136] Brief of Binyam Mohammed as Amicus
Curiae in Support of Petitioner, Hamdan v. Rumsfeld,
126 S. Ct. 2749 (2006) (No. 05-184) at 7-9,
http://www.hamdanvrumsfeld.com/MohammedAmicusFinal.pdf;
Memorandum from Attorney Clive Stafford Smith,
"Binyam Mohammed al-Habashi," pp. 13-20..
[137] Brief of Binyam Mohammed as
Amicus Curiae in Support of Petitioner,
Hamdan v. Rumsfeld, 126 S. Ct. 2749 (2006),
(No. 05-184), at 10,
http://www.hamdanvrumsfeld.com/
MohammedAmicusFinal.pdf;
Memorandum from Attorney
Clive Stafford Smith,
"Binyam Mohammed al-Habashi," pp. 20-22.
[138] Memorandum from Attorney Clive Stafford Smith,
"Binyam Mohammed al-Habashi," pp. 22-24.
[139] United States of America v. Binyam Ahmed Muhammad,
U.S. Department of Defense Charge Sheet,
Military Commission Case No. 05-0009,
November 4, 2005, para 14,
http://www.defenselink.mil/news/Nov2005/
d20051104muhammad.pdf;
United States v. Binyam Ahmed Muhammad,
U.S. Department of Defense Referral, Military
Commission Case No. 05-0009, December 12, 2005,
http://www.defenselink.mil/news/Dec2005/
d20051220muhammadreferral.pdf.
Mohamed had an initial hearing before a
military commission on April 6, 2006. For a brief
description, see Priti Patel, "Muhammad Challenges
the Commissions; His Lawyer Raises an Ethical
Objection and Pleads the Fifth," Human Rights
First Blog, April 6, 2006,
http://www.humanrightsfirst.org/us_law/
detainees/gitmo_diary/post-040606-patel.asp.
[140] Clive Stafford Smith, phone
interview by Human Rights First, March 13, 2007.
[141] Carol Rosenberg, "Lawyer Seeks
Britain's Help in Preserving Guantánamo
Evidence," Miami Herald, December 10, 2007;
Selsky, "Gitmo Inmate's Lawyer Urges U.S. on Photos."
[142] Jess Bravin, "As Justices Weigh Military
Tribunals, A Guantánamo Tale," Wall Street Journal,
March 28, 2006, p. A1 (a useful
comparison of the two men's treatment in the U.S.
legal and extra-legal systems); Deputy Attorney
General James Comey, interview by Wolf Blitzer,
"Justice Department Briefing on Jose Padilla,"
CNN.com Transcript, June 1, 2004,
http://transcripts.cnn.com/TRANSCRIPTS/
0406/01/se.02.html.
[143] Motion to Dismiss for Outrageous
Government Conduct, U.S. v. Padilla, et al.,
No. 04-6001 (S.D.Fla Oct. 04, 2006), at 2-5;
"Expected Testimony Regarding Jose Mr. Padilla,"
Stuart Grassain, M.D., U.S. v. Padilla, et al.,
No. 04-60001 (S.D.Fla March 07, 2007) at 11.
According to psychiatric assessments, the
totality of abuse Padilla suffered, especially his
prolonged confinement, had a significant impact
on his mental health. Padilla's lawyers
questioned his mental competency and moved to
dismiss his case based upon his allegations of
torture and abuse. But their motion was denied.
Order Denying Defendant Padilla's Motion to
Dismiss for Outrageous Government Conduct,
U.S. v. Jose Padilla, et al., No. 04-60001
(S.D.Fla April 9, 2007),
http://www.discourse.net/archives/docs
/Padilla-motion-denied.pdf.
[144] Deputy Attorney General
James Comey, interview by Wolf
Blitzer, June 1, 2004.
[145] Superseding Indictment,
U.S. v. Hassoun, No. 04-60001
(S.D.Fla Nov. 17, 2005) at 3,
news.findlaw.com/nytimes/docs/
padilla/uspad111705ind.pdf;
Department of Justice,
"Jose Padilla Charged With Conspiracy
To Murder Individuals Overseas,
Providing Material Support To Terrorists,"
U.S. Department of Justice Press Release,
November 22, 2005,
http://www.usdoj.gov/opa/pr/2005/
November/05_crm_624.html.
[146] Robert Verkaik, "Guantánamo
'Show Trial' Looms for UK Resident",
The Independent, February 16, 2008,
http://www.independent.co.uk/news/uk
/home-news/guantanamo-show-
trial-looms-for-uk-resident-782988.html.
[148] O.K. v. Bush, 377 F. Supp.
2d 102, 103 (D.D.C. 2005).
[149] Charges and Specifications,
U.S. v. Khadr, April 5, 2007,
http://www.defenselink.mil/news/Apr2007/
KhadrReferral.pdf.
[150] Decl. of Muneer I. Ahmad, Counsel for
Petitioner O.K. v. Bush, 377 F. Supp. 2d 102,
No. 04-1136 (D.D.C. 2005), Exhibit A to Motion for
Preliminary Injunction; Affidavit of Omar
Ahmed Khadr, Defense Motion To Compel Discovery
(Documents Relating to Investigation and Prosecution of
Sgt [Redacted], USA), U.S. v. Omar Khadr, No. 0766 by
Military Commission (Motion Session March 13, 2008),
http://www.defenselink.mil/news/Mar2008/
d20080313khadrmotions.
[151] Ibid, para. 16-17; Affidavit of Omar
Ahmed Khadr, Defense Motion To Compel Discovery
(Documents Relating to Investigation and Prosecution of
Sgt [Redacted], USA), U.S. v. Omar Khadr, No. 0766 by
Military Commission (Motion Session March 13, 2008),
http://www.defenselink.mil/news/Mar2008/d20080313khadrmotions.
[153] Affidavit of Omar Ahmed Khadr, Defense Motion To Compel Discovery (Documents Relating to Investigation and Prosecution of Sgt [Redacted], USA), U.S. v. Omar Khadr, No. 0766 by Military Commission (Motion Session March 13, 2008), http://www.defenselink.mil/news/Mar2008/d20080313khadrmotions.
[155] Decl. of Eric W. Trupin, Ph.D., O.K. v. Bush, 377 F. Supp. 2d 102, No. 04 -1136 (D.D.C. 2005), Exhibit B to Motion for Preliminary Injunction, at para. 19. Dr. Eric Trupin found that Khadr's symptoms are "consistent with those exhibited by victims of torture and abuse." Ibid, para 24. Trupin further explained that "[i]f left untreated, post-traumatic stress disorder, particularly in juveniles, may cause irreparable damage." Ibid, para. 21. Based on Khadr's symptoms and previous accounts of attempted suicide, Trupin labeled Khadr "at a moderate to high risk for suicide." Ibid, para. 23.
[156] Defense Motion For Dismissal
Due to Lack of Jurisdiction Under the
MCA in Regard to Juvenile Crimes of a
Child Soldier, U.S. v. Omar Khadr,
No. 0766 by Military Commission
(Motion Session Feb 4-8, 2008),
http://www.nimj.org/documents/
Khadr%20Child%20Soldier%
20Motion%20to%20Dismiss.pdf.
[157] Defense Motion To Compel Discovery
(Documents Relating to Investigation and
Prosecution of Sgt [Redacted], USA),
U.S. v. Omar Khadr, No. 0766 by Military
Commission (Motion Session March 13, 2008),
http://www.defenselink.mil/news/
Mar2008/d20080313khadrmotions.pdf.
[158] William Glaberson, "Witness Names to Be Withheld From Detainee," New York Times, December 1, 2007; William Glaberson, "Decks Are Stacked in War Crimes Cases, Lawyers Say," New York Times, November 8, 2007; Carol Rosenberg, "Detainee arraigned, says he was abused," Miami Herald, March 14, 2008,
http://www.miamiherald.com/news/nation/story/456004.html.
[159] Malloy v. Hogan, 378 U.S. 1, 8 (1964).
[160] Schneckloth v. Bustamante, 412 U.S. 218, 225 (1973); Lego v. Twomey, 404 U.S. 477, 489 (1972) (where the voluntariness of a confession is challenged, "the prosecution must prove by at least a preponderance of the evidence that the confession was voluntary"). See also Colorado v. Connelly, 479 U.S. 157, 168 (1986) (affirming Lego); Hutto v. Ross, 429 U.S. 28, 30 (1976) (The test is whether the confession was "'extracted by any sort of threats or violence, (or) obtained by any direct or implied promises, however slight, (or) by the exertion of any improper influence.'"), citing Bram v. United States, 168 U.S. 532, 542-43 (1897).
[161] Ashcraft v. Tennessee, 322 U.S. 143, 155-56 (1944).
[162] Uniform Code of Military Justice, 10 U.S.C. § 831, Art. 31.
[163] Army Regulation §190-8 ¶2-1.a(1)(d) ("Prisoners may be interrogated in the combat zone. The use of physical or mental torture or any coercion to compel prisoners to provide information is prohibited. Prisoners may voluntarily cooperate with PYSOP [Psychological Operations] personnel in the development, evaluation, or dissemination of PYSOP messages or products. Prisoners may not be threatened, insulted, or exposed to unpleasant or disparate treatment of any kind because of their refusal to answer questions").
[164] Schneckloth, 412 U.S. at 226
(assessment includes evaluation of the
characteristics of the accused and the details of the
interrogation); Haynes v. Washington, 373 U.S. 503, 513 (1963).
[165] Brooks v. Florida, 389 U.S. 413, 414-15 (1967) (confession involuntary where defendant was held in solitary confinement for 14 days, fed minimal food rations, forced to be naked, and saw no one from outside prison); Haynes v Washington, 373 U.S. 503, 514-15 (1963) (confession violated due process where secured after holding defendant for up to seven days in incommunicado detention and promising access to wife and counsel upon confession); Chambers v. Florida, 309 U.S. 227, 237-40 (1940) (confession deemed compelled where petitioners were held incommunicado and interrogation, which was conducted with "relentless tenacity," lasted for five days ending with an all night interrogation session); United States v. Koch, 552 F.2d 1216, 1219-20 (7th Cir. 1977) (statements were involuntary where defendant confessed only after being placed in solitary confinement in a "boxcar" cell and told he would be transferred to regular segregation if he cooperated); Townsend v. Henderson, 405 F.2d 324, 327-29 (6th Cir. 1968) (an inmate's alleged confession was inadmissible because it was involuntarily made to the warden while in solitary confinement and without notice of his constitutional rights regarding custodial interrogation).
[166] Clewis v. Texas, 386 U.S. 707, 711-12 (1967) (confession deemed involuntary where defendant was interrogated intermittently for 38 hours, and his faculties were impaired by inadequate sleep, food, and sickness); Ashcraft v. Tennessee, 322 U.S. 143, 153 (1944) (confession coerced where defendant was held incommunicado and interrogated for 36 hours without any respite from questioning and with no sleep); Chambers, 309 U.S. at 237-238 (interrogation lasted for five days ending with an all night interrogation session).
[167] Beecher v. Alabama, 389 U.S. 35, 38-39 (1967) (confession involuntary when police shot suspect in the leg and fired a gun near his head, threatening him with death if he did not tell "the truth.").
[168] White v. Texas, 310 U.S. 530 (1940) (confession involuntary where defendant was repeatedly interrogated for 6-7 days and whipped on several successive nights); Brown v Mississippi, 297 U.S. 278, 283-86 (1936) (confessions coerced from one defendant who was whipped and hung by a rope to a tree and two others who were stripped naked and whipped).
[169] Malinski v. New York, 324 U.S. 401, 405 (1945) (confession involuntary where defendant held for three days incommunicado, and was kept naked in a hotel room for three hours, then provided a blanket for seven more hours); Brooks v. Florida, 389 U.S. at 414-15.
[170] See infra Chapter 2 for a discussion of the MCA.
[171] Rogers v. Richmond, 365 U.S. 534, 540-41 (1961). See also Rochin v. California, 342 U.S. 165, 173 (1952) ("Coerced confessions offend the community's sense of fair play and decency"); Lyons v. Oklahoma, 322 U.S. 596, 605 (1944). ("A coerced confession is offensive to basic standards of justice, not because the victim has a legal grievance against the police, but because declarations procured by torture are not premises from which a civilized forum will infer guilt.")
[172] Jackson v. Denno, 378 U.S. 368, 386 (1964) (quotations omitted), citing Blackburn v. Alabama, 361 U.S. 199, 206-07 (1960).
[173] Ibid, quoting Spano v. New York, 360 U.S. 315, 320-21 (1959).
[174] Chambers, 309 U.S. at 240-41.
[175] Jackson, 378 U.S. at 385-86 (noting "the probable unreliability of confessions that are obtained in a manner deemed coercive.").
[176] Rochin, 342 U.S. at 173 (coerced confessions "are inadmissible under the Due Process Clause even though the statements contained in them may be independently established as true. Coerced confessions offend the community's sense of fair play and decency.").
[177] Stein v. New York, 346 U.S. 156, 200 (1953) (Frankfurter, J., dissenting).
[178] Convention Against Torture, Art. 15, June 26, 1987. The Committee against Torture has made clear that the prohibition applies to both statements of the accused and third-parties and that it applies "to any court or non-court proceedings, particularly penal or administrative proceedings." P.E. v. France, Communication No. 193/2001, ¶¶ 3.2 & 3.3 (Dec. 19, 2002).
[179] Article 7 provides in part: "No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment." See also Article 9 ("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."); Article 10 ("All persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person."). The Human Rights Committee notes that Article 10 applies to "prisons, hospitals – particularly psychiatric hospitals – detention camps or correctional institutions or elsewhere. States parties should ensure that the principle stipulated therein is observed in all institutions and establishments within their jurisdiction where persons are being held." Human Rights Committee, General comment 21 to Article 10.
[180] General Comment 20, para. 12. The Human Rights Committee adds: "[I]t is not sufficient for the implementation of article 7 to prohibit such treatment or punishment or to make it a crime. States parties should inform the Committee of the legislative, administrative, judicial and other measures they take to prevent and punish acts of torture and cruel, inhuman and degrading treatment in any territory under their jurisdiction." General Comment 20, para. 8. See also Paul v. Republic of Guyana, Communication No. 728/1996, ¶ 9.3 (Dec. 12, 2001). In addition, Article 14(3)(g) of the ICCPR provides that a criminal suspect is entitled "not to be compelled to testify against himself or to confess guilt." The Human Rights Committee warns that abusive methods are often used in compelling people to confess, and that "the law should require that evidence provided by means of such methods or any other form of compulsion is wholly unacceptable."
[181] Common Article 3(1)(d).
[182] Hamdan,126 S. Ct. at 2796-98 (Stevens, J., plurality).
[183] Protocol I, Art. 75(4)(f).
[184] 18 U.S.C. § 2441 (1997).
[185] Trial of Sawada, Case No. 25, 5 Law Reports of Trials of War Criminals at 1, 2 (1948). United Nations guidelines for prosecutors similarly require them to refrain from prosecuting cases based on evidence obtained from torture and cruel treatment. Eighth United Nations Congress on the Prevention of Crime and the Treatment of Offenders, Guidelines on the Role of Prosecutors, Havana, Cuba, Aug. 27-Sept. 7, 1990, Guideline 16 ("When prosecutors come into possession of evidence against suspects that they know or believe on reasonable grounds was obtained through recourse to unlawful methods, which constitute a grave violation of the suspect's human rights, especially involving torture or cruel, inhuman or degrading treatment or punishment, or other abuses of human rights, they shall refuse to use such evidence against anyone other than those who used such methods, or inform the Court accordingly, and shall take all necessary steps to ensure that those responsible for using such methods are brought to justice.").
[186] 18 U.S.C. § 2441(d) (2006).
[187] Rebecca Lemov, The World as Laboratory: Experiments with Mice, Mazes and Men (New York: Hill and Wang, 2005), p. 192. See also Rebecca Lemov, "The American Science of Interrogation," Los Angeles Times, October 22, 2005; Alfred McCoy, "Cruel Science: CIA Torture and U.S. Foreign Policy," New England Journal of Public Policy, 19, no. 2, Winter 2005, p. 216.
[188] Robert J. Lifton, "Home by Ship: Reaction Patters of
American Prisoners of War Repatriated from
North Korea," American Journal of Psychiatry
April 1954, pp. 733-34; Lemov, "The American
Science of Interrogation;" Joost A.M. Meerloo,
The Rape of the Mind: The Psychology of Thought
Control, Menticide, and Brainwashin, (1956),
Ch. 1, p. 9, http://www.ninehundred.net/control/.
Joost states that the systematic and repetitive
use of cruel treatment, exposure to severe
temperatures, food deprivation and intimidation
over the course of weeks render people
suspicious of their own memories and highly
susceptible to providing false confessions. He
describes the case of U.S. Marine
Col. Frank H. Schwable, whose was tortured by the
Chinese during the Korean War. Col. Schwable
signed a confession stating that the United States
waged bacteriological weapons in the Korean War,
but he later disavowed the confession. Ibid, pp. 8-10.
[189] Lemov, The World as Laboratory: Experiments with Mice, Mazes and Men, p. 198.
[190] Lawrence E. Hinkle, Jr., "The Physiological State of the Interrogation Subject as it Affects Brain Function," The Manipulation of Human Behavior, ed. Albert D. Biderman and Herbert Zimmer (New York: John Wiley and Sons, Inc., 1961) p. 43, cited in Steven M. Kleinman, "KUBARK Counterintelligence Interrogation Review: Observations of an Interrogator," Educing Information: Interrogation: Science and Art: Intelligence Science Board Study Report on Educing Information, Phase 1 (Washington, DC: National Defense Intelligence College Press, September 2006), p. 132.
[191] Lemov, "The American Science of Interrogation."
[192] A thorough discussion of the devastating
psychiatric effects of many of the CIA's enhanced
interrogation techniques may be found in
Human Rights First and Physicians for Human Rights,
Leave No Marks: Enhanced Interrogation
Techniques and the Risk of Criminality
(New York: Human Rights First and Physicians for Human Rights, August 2007),
http://www.humanrightsfirst.info/pdf/
07801-etn-leave-no-marks.pdf.
[193] Randy Borum, "Approaching Truth: Behavioral Science Lessons on Educing Information from Human Sources," Educing Information: Interrogation: Science and Art: Intelligence Science Board Study Report on Educing Information, Phase 1 (Washington, DC: National Defense Intelligence College Press, September 2006), pp. 26, 42. It is worth noting, however, that Borum also found that almost none of the interrogation techniques employed by U.S. forces over the past 50 years were derived from scientific research or submitted to systematic analysis.
[194] Ibid, p. 42. In assessing the claims from some interrogators that coercion has been effectively used to obtain useful information from resistant sources, Col. Steven Kleinman characterizes them as "at best, anecdotal in nature and would be, in the author's view, unlikely to withstand the rigors of sound scientific inquiry." Kleinman, "KUBARK Counterintelligence Interrogation Review: Observations of an Interrogator," fn 71.
[195] Borum, "Approaching Truth: Behavioral Science Lessons on Educing Information from Human Sources," p. 42.
[196] The scientific community is not
universal in its condemnation of these
practices. Some who have studied the
issue suggest that it has not been
scientifically determined whether
coercive interrogation techniques
elicit more or less reliable information
than "rapport-based" techniques.
M. Gregg Bloche and Jonathan H. Marks,
"Doctors and Interrogators at Guantánamo Bay,
" New England Journal of Medicine 353 (July 7, 2005) pp. 6-8,
http://www.zmag.org/content/showarticle.cfm?ItemID=8163.
In addition, psychiatrists and psychologists played key roles
in coercive interrogations at Guantánamo Bay and in
CIA interrogations of "high value" detainees, often
working as part of "Behavioral Science Consultation
Teams" (BSCTs). For a description of the role of the
psychiatrists and psychologists in interrogations, see
Jane Mayer, "The Experiment," New Yorker, July 11 & 18, 2005,
http://www.newyorker.com/archive/2005/07/11/050711fa_fact4;
Drake Bennet, "The War in the Mind," Boston Globe, November 27, 2005,
http://www.boston.com/news/globe/ideas/articles/
2005/11/27/the_war_in_the_mind/. See also
U.S. Department of Defense, Office of the Inspector
General, Review of DoD-Directed Investigations of Detainee Abuse,
Report No. 06-Intel-10, August 25, 2006, p. 25,
http//www.dodig.mil/fo/foia/DetaineeAbuse.html
(hereafter "DoD, Review of Detainee Abuse").
[197] Borum, "Approaching Truth: Behavioral Science Lessons on Educing Information from Human Sources," p. 42.
[198] Kleinman, "KUBARK Counterintelligence Interrogation Review: Observations of an Interrogator," p.128.
[199] Steven M. Kleinman, phone interview by Human Rights First, March 16, 2007. Kleinman writes in the Intelligence Science Board report that "the scientific community has never established that coercive interrogation methods are an effective means of obtaining reliable intelligence information. In essence, there seems to be an unsubstantiated assumption that 'compliance' carries the same connotation as 'meaningful cooperation' (i.e., a source induced to provide accurate, relevant information of potential intelligence value)." Kleinman, "KUBARK Counterintelligence Interrogation Review: Observations of an Interrogator," p. 126.
[200] Steven A. Drizin and Richard A. Leo, "The Problem of False Confessions in the Post-DNA World," 82 N.C. L. Rev. 891, pp. 948-49, (describing studies that found more than 90% of normal interrogations last less than two hours but that the average length of interrogations that induced false confessions was 16.3 hours).
[201] Bennett, "The War in the Mind." The article describes an experiment that Professor Kassin set up in which college students and police investigators were asked to judge video and audio-taped prisoner confessions. Although the police were more confident in their judgments than the college students, they were more often wrong. See also Saul M. Kassin and Lawrence S. Wrightman, "Confession Evidence," in The Psychology of Evidence and Trial Procedure, eds. Saul M. Kassin and Lawrence S. Wrightman (Beverly Hills: Sage Publications 1985), pp. 67, 76-80 (reviewing anecdotes and cases histories of false confessions and attributing many of them to coercion).
[202] Drizin and Leo, "The Problem of False Confessions," pp. 921-22 (noting that police and prosecutors rarely consider that a suspect who confessed falsely may be innocent, that prosecutors levy more and higher charges against those who have confessed, that defense lawyers are more likely to advise their clients who have confessed to seek plea bargains, and that judges are conditioned not to believe claims of innocence and rarely suppress confessions).
[203] Ibid, pp. 59-61. The article also refers to a previous study with similar results: a 1998 study found that of sampled false confessors who chose to take their case to trial, 73 percent were wrongfully convicted.
[204] Kleinman," KUBARK Counterintelligence Interrogation Review: Observations of an Interrogator," p. 132.
[205] Mayer, "The Experiment;" M. Gregg Bloche and
Jonathon H. Marks, "Interrogation:
Doing Unto Others as They Did Unto Us,"
New York Times, November 14, 2005,
http://www.nytimes.com/2005/11/14/opinion/
14blochemarks.html?_r=1&scp=1&sq=
interrogation:+doing+unto+others&oref=slogin;
Lemov, The World as Laboratory: Experiments with
Mice, Mazes and Men, pp.195-199.
[206] Lemov, "The American Science of
Interrogation." The 1983 CIA Manual on
Human Resource Exploitation Training,
which was used by the CIA and elite
military forces to train Latin American
military units in the mid-1980s, indicates that
coercive techniques are justified and
"reserved for those subjects who have
been trained or who have developed
the ability to resist non-coercive techniques."
Central Intelligence Agency, Human Resources
Training Manual (1983), sec. K-4. This manual
was the subject of hearings concerning
U.S. involvement in human rights abuses in
Latin America. For further information, see
"Prisoner Abuse: Patterns from the Past,"
National Security Archive, National Security
Archive Electronic Briefing Book No. 122
(Washington DC: George Washington
University, May 12, 2004),
http://www.gwu.edu/~nsarchiv/NSAEBB/NSAEBB122/index.htm.
[207] Central Intelligence Agency, KUBARK,
Counterintelligence Interrogations,
(Central Intelligence Agency, July 1965),
p. 85; CIA, Human Resources Exploitation
Training Manual, secs. F-2, K-6-7, L-3, L-4, L-5.
[208] CIA, KUBARK,Counterintelligence Interrogations, p. 84; Central Intelligence Agency, Human Resources Exploitation Training Manual, sec. L-7. The Human Resources Exploitation Training Manual raises under the heading, "Objections to Coercion," the view of some psychologists "that the subject's ability to recall and communicate information accurately is as impaired as his will to resist." CIA, Human Resources Exploitation Training Manual, sec. L-7. In addition, the KUBARK manual cautions, "direct physical brutality creates only resentment, hostility, and further defiance." CIA, KUBARK,Counterintelligence Interrogations, p. 91. See also Kleinman, "KUBARK Counterintelligence Interrogation Review: Observations of an Interrogator," pp. 128-130 (noting that despite criticism of KUBARK manual for its discussion of coercion, the manual does not characterize coercion as a "necessary" or "viable" means of obtaining reliable and useful information).
[209] Many articles describe both the similarities between techniques used in SERE training and techniques reportedly used on certain detainees, as well as evidence of ties between SERE officials and CIA and military interrogators, including tutorials on SERE techniques. See, e.g., Eban, "Rorschach and Awe;" Mark Benjamin, "Torture Teachers," Salon.com, June 29, 2007, http://www.salon.com/news/feature/2006/06/29/torture/index_np.html; Mayer, "The Experiment;" Kleinman, "KUBARK Counterintelligence Interrogation Review: Observations of an Interrogator," pp. 97-98. As early as September 2002, military intelligence officers at Guantánamo were briefed on "techniques and methods used in resistance (to interrogation) training at SERE schools," and received further SERE training thereafter. DoD, Review of Detainee Abuse, pp. 25-26. Kleinman explains there are three "intractable" problems with adopting SERE techniques for the purpose of interrogating terrorism suspects. First, SERE instructors employ illegal coercive techniques in portraying enemy interrogators. Second, SERE instructors emphasize the re-creation of stressful situations as opposed to the teaching of in-depth questioning required for intelligence interrogation. Third, SERE instructors do not have the requisite language training and subject matter knowledge necessary for intelligence interrogation. Kleinman, "KUBARK Counterintelligence Interrogation Review: Observations of an Interrogator," p. 98. FBI agents at Guantánamo complained of the use of SERE tactics. One FBI document summarizing abusive interrogation issues notes: "FBI personnel assigned to the Military Tribunal effort involving GTMO detainees has during the review of discovery material seen, on a few rare occasions, documentation of SERE techniques being noted in interviews conducted by Military personnel. In these instances, the material was called to the attention of military's Criminal Investigative Task Force (CITF), and Office of Military Commissions (OMC) personnel." Federal Bureau of Investigation, "Detainee Interview (Abusive Interrogation Issues)," May 6, 2004, (on file with Human Rights First). A redacted version is available at http://www.aclu.org/torturefoia/released/FBI_4194.pdf. The same document also states that, in late 2002 and into mid-2003, the FBI's Behavioral Analysis Unit objected to U.S. military interrogation techniques, particularly the use of SERE techniques, and that the FBI's concerns were briefed to Maj. Gen. Geoffrey Miller, then-commander at Guantánamo.
[210] Dedman, "Can the '20th Hijacker' of Sept. 11 Stand Trial?"
[211] FBI e-mail from [redacted] to Gary Bald,
Frankie Battle, and Arthur Cummings, "FW:
Impersonating FBI at GTMO," December 5, 2003,
http://www.aclu.org/torturefoia/released/FBI.121504.3977.pdf.
[212] Army Field Manual 2-22.3, secs. 5-75, 8-18. The manual also states: "All captured or detained personnel, regardless of status, shall be treated humanely, and in accordance with the Detainee Treatment Act of 2005 and DoD Directive 2310.1E, 'Department of Defense Detainee Program,' and no person in the custody or under the control of DoD, regardless of nationality or physical location, shall be subject to torture or cruel, inhuman, or degrading treatment or punishment, in accordance with and as defined in U.S. law." Ibid, sec. 5-74.
[214] U.S. Department of the Army,
Field Manual 34-52: Intelligence Interrogation
(Washington, DC: Department of the Army,
September 1992), p. 1-8,
http://www4.army.mil/ocpa/reports/ArmyIGDetaineeAbuse/
FM34-52IntelInterrogation.pdf.
[215] Lt. Gen. John Kimmons, "Department of
Defense News Briefing with Deputy Assistant
Secretary Stimson and Lt. Gen. Kimmons from
the Pentagon," U.S. Department of Defense
Press Briefing, Transcript, September 6, 2006,
http://www.defenselink.mil/transcripts/
transcript.aspx?transcriptid=3712. See also
Jackson Diehl, "Pistachios at Guantánamo,"
Washington Post, July 23, 2007,
http://www.washingtonpost.com/wp-dyn/content/
article/2007/07/22/AR2007072200882.html
(quoting Guantánamo officials' views that relationship
building approaches and positive incentives worked
more effectively than harsh methods). The military's top
lawyers have also questioned the efficacy of many of the
abusive techniques authorized at Guantánamo.
U.S. Navy Judge Advocate General Bruce MacDonald, for
example, stated before the Senate Judiciary Committee in
August 2006: "I would just offer that, having visited
Guantánamo and talked to our interrogators at
Guantánamo, that they strongly believe that coercion and
torture doesn't work, and that it doesn't get you the
actionable intelligence that we need. They're
engaged in a much longer process of building
trust with the detainees through fair treatment in the
hopes, that as General Myers just said, of getting
them to come forward with information of their own
accord, and they have been successful."
Rear Admiral Bruce MacDonald, Hearing in Senate
Judiciary Committee, The Authority to Prosecute
Terrorists Under The War Crimes Provisions of Title 18,
109th Cong., 2nd sess., 2006. See also Memorandum
from Maj. Gen. Thomas J. Romig, U.S. Army, the Judge
Advocate General, to General Counsel of the
Department of the Air Force, "Draft Report and
Recommendations of the Working Group to Assess
the Legal, Policy and Operational Issues Related to
Interrogation of Detainees Held by the U.S. Armed
Forces in the War on Terrorism," March 3, 2003,
http://www.humanrightsfirst.org/us_law/etn/pdf/
jag-memos-072505.pdf ("Some of these techniques
do not comport with Army doctrine as set forth in the
Field Manual (FM) 34-52 Intelligence Interrogation,
and may be of questionable practical value in obtaining
reliable information from those being interrogated").
[216] Intelligence Authorization Act for Fiscal Year 2008, HR 2082, 110th Cong., 2nd sess., section 327; David M. Herszenhorn, "Bill Curbing Terror Interrogators is Sent to Bush, Who Has Vowed to Veto It," New York Times, February 14, 2008, http://www.nytimes.com/2008/02/14/washington/14cong.html; President George W. Bush, President's Radio Address, March 8, 2008, http://www.whitehouse.gov/news/releases/2008/03/20080308.html.
[217] FBI Memorandum from CIRG to Inspection, "Counterterrorism Division, GTMO, Inspection Special Inquiry," July 13, 2004.
[218] FBI e-mail from [redacted] to T.J. Harrington, "Instruction to GTMO Interrogators, May 10, 2004, http://www.senate.gov/~Levin/newsroom/supporting/2005/DOJ.032105.pdf. The agent also reported in the memo that at least some high-level officials from Guantánamo agreed that, at best, the military's coercive interrogation produced the same information that was previously elicited by the FBI through non-coercive methods (describing video telephone conference with Maj. Gen. Geoffrey Miller, FBI, CITF, [redacted] and the Pentagon Detainee Policy Committee). In response to the Abu Ghraib scandal and disclosure of the U.S. military's interrogation policy at Guantánamo, one FBI agent wrote: "The BAUs [Behavioral Analysis Units] are officially on record via ECs to FBIHQ regarding our concern about DoD interrogation techniques and our position recommending 'rapport based' doctrine regarding detainee interviews and interrogations at GTMO." FBI e-mail from [redacted] to [redacted], "GTMO Related E-mails, Notes, etc.," May 10, 2004, http://www.aclu.org/torturefoia/released/FBI_4142.pdf. Another FBI e-mail communication addresses a CNN report on Brig. Gen. Janice Karpinski's allegation that Maj. Gen. Geoffrey Miller had informed her he was going to "gitmo-ize" the Abu Ghraib prison. The e-mail states: "I am not sure what this means. However, if this refers to intell gathering as I suspect, it suggests he has continued to support interrogation strategies we not only advised against, but questioned in terms of effectiveness." FBI e-mail from [redacted] to [redacted], "Current Events," May 13, 2004, http://www.aclu.org/torturefoia/released/FBI_4140.pdf.
[219] Jack Cloonan, phone interview by Human Rights First, July 19, 2005.
[220] Jack Cloonan, interview by Frontline, October 18, 2005. Former Navy General Counsel Alberto Mora has also criticized the coercive techniques employed at Guantánamo, stating that "[t]he weight of expert opinion held that the most effective interrogation techniques to employ against individuals with the psychological profile of the al Qaeda or Taliban detainees were 'relationship-based,' that is, they relied on the mutual trust achieved in the course of developing a non-coercive relationship to break down the detainee's resistance to interrogation. Coercive interrogations..were counter-productive to the implementation of relationship-based strategies." Mora memo, p. 6, http://www.aclu.org/safefree/torture/29228res20040707.html#attach (describing Dr. Michael Gelles' analysis of the scientific and academic literature on coercive and non-coercive interrogation in a 2004 memorandum to the Navy's inspector general).
[221] Michael Gelles, "The Role of Psychologists in the Global War on Terror: Professional and Ethical Considerations," (speech at Yeshiva University Symposium, New York, NY, June 22, 2007 (notes on file with Human Rights First). See also Charlie Savage, "Split Seen on Interrogation Techniques," Boston Globe, March 31, 2005, http://www.boston.com/news/world/
latinamerica/articles/2005/03/31/
split_seen_on_interrogation_techniques/.
[222] Savage, "Split Seen on Interrogation Techniques," (emphasis added). See also Gelles, "The Role of Psychologists in the Global War on Terror: Professional and Ethical Considerations."
[223] A useful description of the FBI interview and interrogation process may be found in Ariel Neuman and Daniel Salinas-Serrano, "Custodial Interrogations: What We Know, What We Do, and What We Can Learn From Law Enforcement Experiences," Educing Information: Interrogation: Science and Art: Intelligence Science Board Study Report on Educing Information, Phase 1 (Washington, DC: National Defense Intelligence College Press, September 2006), pp. 198-202. Neuman and Salinas-Serrano further describe the interview and interrogation training for Federal Law Enforcement, which includes all criminal investigators other than those with the FBI, DEA and U.S. Postal Service. Ibid, pp. 202-207.
[224] Mayer, "Outsourcing Torture."
[225] Jack Cloonan, (former FBI special agent), phone interview by Human Rights First, July 19, 2005. See also Jack Cloonan, interview by Frontline, "Frontline: The Torture Question," PBS Online, October 18, 2005, http://www.pbs.org/wgbh/pages/frontline/torture/interviews/cloonan.html ("This is the type of stuff, again, that we dealt with in the usual setting that the bureau found themselves in, in ... a regular interview, because each one of these defendants, if you will, had legal representation. And those lawyers played a very vital role in gaining their subjects' cooperation with the United States government. Each one of them was seduced by our legal system that many people poke fun at, thinks cumbersome. If you could listen to these guys, and they'll tell you – I'm referring to Al Qaeda members – 'You mean to tell me that the United States government will give me the legal representation?' 'Correct.' 'You mean to tell me that if I cooperate with you, that you will at least possibly protect me against retaliation?' 'Yes.' 'You mean that you could unite me with my family?' 'Yes.'").
[226] Interview with source from the Office of Military Commissions.
[227] Chief Warrant Officer 4 L.J. "Jim" Powlen, "Criminal Investigation Task Force," Military Police, PB 19-07-1, www.wood.army.mil/mpbulletin/pdfs/Spring%2007%20pdfs/Powlen.pdf; Brig. Gen. Eric Patterson, "CITF: Criminal Investigation Task Force – OSI," TIG Brief: The Inspector General, November – December 2003, http://findarticles.com/p/articles/mi_m0PAJ/is_6_55/ai_112482127. CITF's mission is to refer cases for military commission prosecutions and identify those detainees who should be released or transferred to their home countries. Patterson, "CITF: Criminal Investigation Task Force – OSI." CITF is composed of military personnel and agents from the U.S. Secret Service, FBI, Department of Homeland Security, DoD Counterintelligence Field Activity, National Security Agency and U.S. Army Intelligence Command.
[228] The U.S. Southern Command established Joint Task Force 170 to oversee and conduct interrogations of detainees at Guantánamo for the Department of Defense in support of "operation enduring freedom." A separate unit, Joint Task Force 160, was created to oversee detention operations. The two units were eventually merged into Joint Task Force GTMO. "Guantánamo Bay – Camp X-Ray," GlobalSecurity.org, http://www.globalsecurity.org/military/facility/guantanamo-bay_x-ray.htm. Thomas Berg, who was a staff judge advocate for JTF 160 until October 2002, provides a useful description of the relationship between the two units, one that became increasingly tense as the different objectives of the two units became clear. Lt. Col. Thomas Berg, interview by Frontline, "Frontline: The Torture Question," PBS Online, October 18, 2005, http://www.pbs.org/wgbh/pages/frontline/torture/interviews/berg.html ("We're supposed to protect the prisoners. We're supposed to preserve their pocket trash, for example, for forensic purposes in the event anyone ever goes to trial. It's very much a law enforcement scenario. The intel people come along, and they're there to quickly exploit intelligence. They're not concerned about the forensics, whether evidence is properly preserved or chain of custody is done or any of those things, because they want quick intel, and that's it. That's what they're coming for.").
[229] Dedman, "Battle Over Tactics Raged at Gitmo," (quoting Randy Carter, chief of operations for CITF at the interrogation booths at Guantánamo: "'I told ICE¾Interrogation Control Element¾I do not want any of our interrogation or interviews in the same trailer as the intel collectors are. . . .We are not to partake of any of their tactics, we are not to witness any of their tactics. We can't have the foolishness from those folks in the mix.'").
[230] The techniques were divided into categories. "Category II" included, for example, stress positions, isolation, use of phobias to induce stress, removal of clothing, nudity, 20-hour interrogations and use of falsified documents or reports. "Category III" included,techniques such as, threats of death and severe pain to the prisoner and his family, exposure to cold weather, and forms of waterboarding. "Category IV" techniques included "extraordinary rendition," or as it was described in the list of proposed techniques, sending a prisoner to another country for interrogation. The FBI memorandum found that the U.S. Constitution prohibited the following techniques: "Interrogator posing as an interrogator from a foreign nation with a reputation of harsh treatment of detainees;" "Use of stress positions (such as standing) for a maximum of 4 hrs;" "Use of falsified documents or reports;" "Hooding detainee;" "Use of 20-hour interrogation segments;" "Removal of all clothing;" "Use of individual phobias (such as fear of dogs) to induce stress;" "Use of scenarios designed to convince detainee that death or severe pain is imminent for him or his family;" "Exposure to cold weather or water (with medical monitoring)"; and "Use of wet towel and dripping water to induce the misperception of drowning." FBI Memorandum from [redacted] (BAU) at Guantánamo bay, forwarded to Marion Bowman, legal counsel, FBIHQ, "Legal Analysis of Interrogation Techniques," November 27, 2002 (on file with Human Rights First).
[232] Dedman, "Can '20th Hijacker' Ever Stand Trial?" See also Mora memo, pp. 2-9 (describing concerns and objections of NCIS staff).
[233] Dedman, "Gitmo Interrogations Spark Battle Over Tactics." Current policy requires all CITF personnel to conduct detainee interviews in compliance with Army regulations, the Detainee Treatment Act, the Geneva Conventions and standard law enforcement techniques. E-mail from Susan Leonard, Public Affairs Officer, DoD Criminal Investigative Task Force to Avi Cover, Human Rights First, June 15, 2007.
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