A New Secrecy Issue at GTMO

A new secrecy issue has arisen during the Military Commission hearings in Guantanamo.

Judge Pohl, presiding over the Military Commission prosecution of Al Nashiri, alleged to be the Mastermind behind the Cole bombing in 2000, had ordered that the details of his treatment while in CIA custody be shared with the defense. The order required that the information be available to the defense under the same requirements as the other classified evidence already provided to them.
The prosecution has recently argued that Judge Pohl’s order should be set aside and the details of the treatment of Al Nasir remain secret from the al-Nashiri defense team. The prosecution’s basis for setting the order aside was because the Senate Intelligence Committee summary might reveal some of those same information and perhaps obviating the need for the disclosures to the defense or at least permit a new review by Judge Pohl after the Senate Intelligence Committee response plays its way out.
Currently there is no announced determination of when the Senate Summary will be released. It is currently undergoing a classification review by the Department of Justice. At present there is no date for the report to be released or any knowledge of the extent if any that the report may contain the information that the defense has sought and has previously been granted by Judge Pohl.
Al Nashiri is scheduled to be the first Military Commission trial of any of the detainees brought to Guantanamo after the CIA Dark sites were closed. The trial is currently scheduled to begin in January.
The prosecution is seeking the death penalty and the defense intends to have the jury consider the extent to which the government treated its client before he arrived in Guantanamo. That treatment, according to the New York Times report by Charles Savage that “the C.I. A. inspector general called his the ‘most significant’ case of a detainee who was brutalized in ways that went beyond the tactics approved by the Bush administration, including being threatened with a power drill.” An expert on treatment of torture called by the defense has already stated that Al-Nashiri had been subjected to physical, psychological and sexual torture The defense considers the manner in which he was tortured during his detention in the CIA dark sites to be relevant to whether or not the death penalty should be impose.presiding over the Military Commission prosecution of Al Nashiri, alleged to be the Mastermind behind the Cole bombing in 2000, had ordered that the details of his treatment while in CIA custody be shared with the defense. The order required that the information be available to the defense under the same requirements as the other classified evidence already provided to them.
The prosecution has recently argued that Judge Pohl’s order should be set aside and the details of the treatment of Al Nasir remain secret from the al-Nashiri defense team. The prosecution’s basis for setting the order aside was because the Senate Intelligence Committee summary might reveal some of those same information and perhaps obviating the need for the disclosures to the defense or at least permit a new review by Judge Pohl after the Senate Intelligence Committee response plays its way out.
Currently there is no announced determination of when the Senate Summary will be released. It is currently undergoing a classification review by the Department of Justice. At present there is no date for the report to be released or any knowledge of the extent if any that the report may contain the information that the defense has sought and has previously been granted by Judge Pohl.

The prosecution is seeking the death penalty and the defense intends to have the jury consider the extent to which the government treated its client before he arrived in Guantanamo. That treatment, according to the New York Times report by Charles Savage that “the C.I. A. inspector general called his the ‘most significant’ case of a detainee who was brutalized in ways that went beyond the tactics approved by the Bush administration, including being threatened with a power drill.” An expert on treatment of torture called by the defense has already stated that Al-Nashiri had been subjected to physical, psychological and sexual torture The defense considers the manner in which he was tortured during his detention in the CIA dark sites to be relevant to whether or not the death penalty should be imposed.

Professor Mark Denbeaux, Director
Center for Policy & Research
 

Abu Ghraib Closed by Iraqi Government

Earlier today, the Iraqi government announced that it has shut down the Abu Ghraib prison. According to Iraqi officials, the closure is due to growing concerns that Sunni insurgents in the area may have the capabilities to launch an attack against the prison, possibly freeing some of the roughly 2,400 prisoners. Those prisoners have now been moved to more secure locations in central and northern Iraq. It is unclear at this point whether Abu Ghraib will reopen if the Iraqi government is able to secure the area. Continue reading

Senate Panel Votes to Reveal CIA Report

On Thursday, the Senate Intelligence Committee voted to declassify the executive summary and conclusions from its report on the CIA’s Detention and Interrogation Program. Senator Dianne Feinstein (D-CA), charwoman of the committee, released a written statement, stating that “[t]he report exposes a brutality that stands in stark contrast to our values as a nation…. This is not what Americans do.” Continue reading

John Rizzo Speaks On Time With CIA

Last week, John Rizzo, the former acting General Counsel for the CIA, spoke at the Center on National Security at Fordham Law School about his new book, Company Man. Rizzo spent most of the time addressing the widespread perception that the 9/11 attacks occurred as a result of failures within the CIA and other intelligence agencies within the U.S. government. Continue reading

Lawyers Permitted to Photograph Guantanamo Detainee KSM’s Scars

In a piece published in yesterday’s Miami Herald, noted Guantanamo journalist Carol Rosenberg announced that military judge James Pohl will allow defense attorneys to photograph the scars on the wrists and ankles of accused 9/11 mastermind Khalid Sheik Mohammed (“KSM”) and his co-defendant Walid bin Attash. This is a significant development, as it could be used in the trial of KSM and his alleged 9/11 co-conspirators to demonstrate that the men were subjected to torture while they were being held in U.S. custody at Guantanamo Bay Detention Center. Continue reading

Judge Claims No Jurisdiction Over Force-Feeding at Guantanamo

Yesterday, multiple news outlets reported that despite efforts by defense attorneys for Guantanamo Bay detainees, federal courts do not have the power to stop Guantanamo personnel from force-feeding the detainees.  U.S. District Court Judge Gladys Kessler handed down a quick decision stating that federal courts simply do not have the jurisdiction or authority to order the military to stop using force-feeding tactics in response to hunger strikes implemented by detainees to protest their detention status at Gitmo.

The decision was handed down quickly in part because the court and attorneys on both sides wanted an answer before the beginning of Ramadan, the traditional Muslim holy month that requires Muslims to fast during daylight hours.  One of the main concerns was that force-feeding detainees during fasting hours would violate this core tenant of the Islamic religion.  As I noted when I first wrote about this lawsuit, in the past the military has agreed not to force-feed detainees during these hours so that detainees could observe their holy month.  In fact, in the response to the suit filed by the pentagon, the government stated that barring any emergency situations, they would agree to only force-feed detainees after sunset.  So even though we’re going to keep shoving tubes into detainees’ (that we have already admitted are not being charged with crimes) orifices while they are strapped down to chairs, we’re at least going to let them maintain the last shred of religious dignity they might have left.  Take from that what you will.

The basis for the lawsuit was not just religious.  Detainees and human rights advocates have long claimed that force-feeding is akin to torture, especially when implemented on detainees who are of sound mind and have made conscious decisions to partake in the hunger strikes.  The legal brief submitted by defense attorneys called the process “dishonorable” and “degrading.”

Although Judge Kessler admitted that the courts could not rule on the issue, she made her personal opinion known in her decision by echoing many of the above concerns, calling the force-feeding process “painful” and “degrading.”  She not-so-subtly called on the Obama administration to take action where the courts could not and shut down force-feeding itself.  Judge Kessler singled out President Obama for a speech given back on May 23rd, which some of you may recall:

“Look at the current situation, where we are force-feeding detainees who are holding a hunger strike.  Is that who we are?  Is that something that our founders foresaw?  Is that the America we want to leave to our children?  Our sense of justice is stronger than that.”

This coming from the same president that promised to close down Guantanamo Bay when he was first elected, and yet here we are.  I understand that it’s not that simple and that there’s a lot of politics behind the decision to keep it open.  There are a lot of politicians (and members of the public) who want to keep Guantanamo open and it’s not exactly President Obama’s unilateral decision to make.  But his administration has a chance to make a statement here and restore some level of civility to a system that’s drawn an awful lot of criticism for alleged human rights violations in recent years.  Shutting down force-feeding isn’t going to erase those incidents, but it could go a long way toward easing the tension surrounding Guantanamo Bay, at least in the short-term.  Most importantly, it would show the world that we DO respect human rights.  And as of late the world has plenty of reasons to question whether we actually do.

Sidenote – My blogging compatriots have gone into detail on what exactly the force-feeding process entails, and you can read about it here.  Seeing it in print is disturbing enough, but if you still want a better picture of the process, you’re in luck.  Over the weekend, Yasiin Bey, better known as hip-hop artist Mos Def, took the plunge and agreed to undergo the force-feeding procedure in London.  I don’t recommend clicking that link if you’re squeamish.  Keep in mind that there are 106 prisoners partaking in the hunger strikes at the moment, and 45 of them undergo this 2-hour process twice a day.

Chris Whitten, Research Fellow
Center for Policy and Research

Guantanamo Detainees Request Independent Medical Services

Last month, 13 Guantanamo detainees wrote an open letter requesting independent medical examinations and advice. The detainees, who are using their hunger strike as a means of communication and to gain global attention, said that they did not trust military doctors whom they accused of putting their duties to their superiors above their duties to their patients, in violation of the ethics of their profession. In response, more than 150 doctors, including some from the US, have signed an open letter to President Obama, urging the administration to allow Guantanamo detainees to receive new treatment. The letter, which was published in Lancet, stated:

“Without trust, safe and acceptable medical care of mentally competent patients is impossible. Since the detainees do not trust their military doctors, they are unlikely to comply with current medical advice. That makes it imperative for them to have access to independent medical examination and advice, as they ask, and as required by the UN and World Medical Association.”

The question is whether or not the actions taken by the Guantanamo medics are ethical. According to the World Medical Association, force-feeding hunger strikers of sound mind is never ethically acceptable. The WMA has stated: “Even if intended to benefit, feeding accompanied by threats, coercion, force or use of physical restraints is a form of inhuman and degrading statement.” Therefore, the means by which the medical staff is keeping the detainees alive violates international law, and to some, constitutes torture. However, it is a doctor’s duty to provide life-sustaining treatment. Unlike Cruzan v. Dir. Missouri Dep’t Health which held that competent adults have the right to refuse forced feeding, even if death will result, Washington v. Harper held that prison officials could override a prisoner’s objection to forcibly being administered medication, assuming that it’s in the prisoner’s best medical interest. So what other viable treatment options do these physician’s have, given that the detainees remain on hunger strike? While the means to force feed someone are gruesome and painful, wouldn’t it be even worse if we allowed our detainees to starve themselves to death?

President Obama has stated that America should never practice torture and that Guantanamo should be closed. The only way that will happen is if we have healthy detainees, fit to either stand trial or to be sent elsewhere. If this is truly what he wants, the best place to start is by ending this hunger strike. In this case, he should start listening to his detainees and allow for independent medical examinations. The detainees’ aren’t going to stop their hunger strike, and the medical examiners aren’t going to stop force-feeding them.  If no one is going to give, the President should force somebody’s hand.

Alexandra Kutner, Research Fellow
Center for Policy and Research

Chemical Weapons Use by Syrian Government Leads to Direct U.S. Military Aid to Rebels

Syria, a country scarred by decades of violent repression, erupted into civil war in mid-2011. Students were tortured for anti-government sentiments and live ammunition was routinely fired into crowds of protesters. The Human Rights Watch revealed in July 2012 that the Syrian government maintained at least 27 torture centers. In time, an insurgency arose, resorting to militant means to overthrow the Assad government.

The US has been reluctant to intervene in Syria’s affairs, though the plea for help has grown stronger with each passing month. Despite the $515 million in humanitarian assistance delivered to the Syrian opposition, Congress has been pressuring the Obama administration to provide munitions (including missiles) and to declare of a no-fly zone. The most notable opposition derives from Republican Sen. McCain: “This is not only a humanitarian issue. It is a national security issue. If Iran succeeds in keeping Bashar al Assad in power, that will send a message throughout the Middle East of Iranian power.” In addition, Democratic Sen. Casey urges that even provision of heavy weaponry may not be enough support for the Syrian opposition.

On June 13, 2013, intelligence confirmed the use of chemical weapons by the Assad government on at least four occasions. The weapons have reportedly killed between 100 and 150 people. In response, President Obama announced that the Assad regime had crossed the “red line” the US had drawn and authorized direct military aid to rebel forces. The White House Deputy National Security Adviser for Strategic Communications stated, “The President has said that the use of chemical weapons would change his calculus, and it has.”

So begins a new chapter in the Syrian civil war: Hope. A chapter the U.S. will help write.

Chelsea Perdue, Research Fellow
Center for Policy and Research

CIA whistleblower/leaker John Kiriakou foils government plot to retaliate against him

John Kiriakou, the former CIA clandestine officer who was recently sent to Loretto Federal Corrections Institute on charges of leaking the identity of a fellow CIA officer, has written a letter to the public about his experiences in prison. Kiriakou maintains that his prosecution for the leak was in retaliation for his whistleblowing on the Enhanced Interrogation Techniques (or EITs) which most now consider to be torture.

While the letter is a very interesting view into life in a federal prison, the event that takes pride of place is an incident in which the prison’s internal security personnel attempted to trick Kiriakou into getting into a fight with another inmate. However, it would seem that tricking a former operative of the US Clandestine Service is not as easy as they thought.

According to Kiriakou, the Special Investigative Service (or SIS), which investigates crimes or other breaches at the prison, pulled Kiriakou into their office to tell him that another inmate was the uncle of the Times Square Bomber, and had received orders from Pakistan to kill Kiriakou. Instead of being intimidated, Kiriakou, who had by this time made friends with just about everyone in the prison, simply walked up to the guy and talked to him. As it turns out, the SIS had told the other inmate (who had nothing to do with the Times Square Bomber) that Washington had ordered Kiriakou to kill him. Kiriakou postulates that the purpose of this plot was to get them to fight and thus produce an excuse to send them both to solitary.

Needless to say, if this story is true, it is should be a scandal. Even if the SIS were operating entirely independently and hatched this half-baked plot on their own, the use of a federal office to not only incite violence, but also to endanger a former CIA officer would be an unforgivable breach of the public trust. So far, little has been reported on this, or anything else related to Kiriakou’s  time in prison.

Paul W. Taylor, Senior Fellow
Center for Policy & Research

“If the detainee dies you’re doing it wrong.”

One of the most quotable phrases coming out of Bush’s Global War on Terrorism now appears to be highly questionable. Then-CIA lawyer Jonathan Fredman was quoted by Senator Carl Levin, Chair of the Senate Armed Services Committee, as having said that the standard of detainee treatment during interrogations was “basically subject to perception. If the detainee dies you’re doing it wrong.”

This quote continues to be used in articles and books, but reporting by Stuart Taylor, Jr. (no relation) in the National Journal and by Benjamin Wittes of Lawfare sheds light on the shaky ground on which it rests. First, Fredman has denied the veracity of the quote for about as long as it has been public. The quote comes from the minutes of a staff meeting at Guantanamo in which Fredman was asked about the legal limits placed on interrogation by the federal anti-torture statute. However, much of the minutes are of questionable reliability, and in some cases patently absurd (for example, a barely understandable quote that appears to claim that Turkey considers any interrogation that “results in the subject betraying his comrades” to be torture).

It is important to note, however, that not even Fredman himself denies all of the statements attributed to him in the minutes. Perhaps the most telling of the statements which he  apparently has not denied include his reference to standard set by the Office of Legal Council, that the torture statute only bars physical pain so severe that it may cause permanent damage to major organs, or mental pain so severe that it may permanently alter the personality or senses of the detainee.

So, whatever exculpatory effect the questionability of the oft-quoted statement may have, it is important that these minutes, like any internal document that is not vetted and edited, be read with a critical eye.

Paul Taylor, Senior Research Fellow
Center for Policy & Research