One of the topics covered — in light of the Court of Appeal’s recent ruling in the case of British resident and torture victim Binyam Mohamed — was, “Is it right to use information obtained through torture?” The other questions were, “Should marriage survive infidelity?” (following on from the John Terry story that has dominated the news) and “Is it time for the worldwide Anglican Church to divide?” and this latter topic — which focused primarily on infighting between various factions of the Anglican communion regarding gay rights and women’s rights — caused the most heated confrontations.

The torture question asked on the show was a refinement of the original question that was pitched to me — “Is torture ever justified?” — but my conclusion is the same. Torture — defined by the UN Convention Against Torture as “any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person” — is illegal, with no exceptions (see Article 2.2 of the Convention, which stipulates, “No exceptional circumstances whatsoever, whether a state of war or a threat or war, internal political instability or any other public emergency, may be invoked as a justification of torture”). Moreover, those who authorize it, or are complicit in it, must be prosecuted.

Furthermore, the use of torture is morally corrosive, reducing us to the level of those we claim to oppose, has a devastatingly counter-productive effect on the intelligence services’ ability to recruit informers, is dismissed, in the strongest terms possible, by skilled interrogators who regard it with disdain (see the former FBI interrogators quoted here), and, in addition, is essentially useless. Although those subjected to torture may produce worthwhile information, they will also tell any lies necessary to bring the torture to an end, and working out what is true and what is not therefore involves countless wild goose chases, diverting attention from genuine threats (as happened in the US in 2002 and 2003, following the torture of two particular “high-value detainees,” Abu Zubaydah and Khalid Sheikh Mohammed).

Perhaps even more significantly, relying on information extracted through torture also leads to the seizure of other people based on material which is almost entirely unreliable, with potentially devastating results for those named, who end up getting a knock on the door in the middle of the night, often, for example, based on little more than the fact that they attended the same mosque as a “terror suspect” (a process I call, “guilt by mosque”).

In the specific context of the question on Nicky Campbell’s show, there is, it is claimed, a grey area concerning information provided to Western intelligence agencies by regimes that are known to practice torture — or, indeed, that use it systematically (Pakistan, Uzbekistan, and various north African regimes including Algeria, Egypt and Libya, to name but a few). The British government denies collusion in torture, despite mounting evidence to the contrary in the case of Binyam Mohamed, and in the cases of several British citizens seized and interrogated in Pakistan, and other countries — with the active collusion of the British intelligence services — where torture is commonplace.

This terrible story is gradually being exposed, particularly in the British courts, but when it comes to using information obtained through torture, the government open admits that it does not rule out using it. In its 2008 report (PDF, p. 16), the Foreign and Commonwealth Office stated, “The use of intelligence possibly derived through torture presents a very real dilemma, given our unreserved condemnation of torture and our efforts to eradicate it,” but added, “Where there is intelligence that bears on threats to life, we cannot reject it out of hand.”

To some people, this argument appears to be acceptable, but it still involves dealing with the troubling and almost certainly insurmountable problems which I ran through above; namely, that, when the countries in question use torture on a regular or even systematic basis, the information is almost entirely unreliable, and therefore should not be used. Moreover, as the torture apologists also forget, while they try to brush away the UN Convention Against Torture and allied treaties and agreements, a case can be made that knowingly making use of information obtained through torture may in itself involve complicity in war crimes.

On “The Big Questions,” I had the opportunity to address many of these questions, along with Steve Hewitt, Senior Lecturer in American and Canadian Studies at the University of Birmingham’s College of Arts and Law, in the face of largely specious arguments made by apologists for torture, especially Jonathan Foreman, of Standpoint magazine, who raised the spectral example of the “ticking time bomb” scenario, so favored by the writers of Fox’s 24, which has no basis in reality. Foreman also attempted to claim that prolonged sleep deprivation is not torture, and flippantly compared it to the sleepless nights endured by the parents of young children, even though numerous sources, including the US State Department and the US military’s Army Field Manual, confirm that it is torture.

Foreman also attempted to claim that no torture had taken place at Guantánamo, and on this latter point, I was particularly pleased to have been able to explain that, in fact, Susan Crawford, a protégée of former Vice President Dick Cheney and the senior Pentagon official responsible for overseeing the trials at Guantánamo (the Military Commissions), refused to press charges against one particular prisoner at Guantánamo, Mohammed al-Qahtani, because, as she explained in January 2009, “We tortured Qahtani. His treatment met the legal definition of torture.” Had I had the opportunity, I would also have explained that the types of “enhanced interrogation techniques” used on al-Qahtani were, to varying degrees, also applied to over a hundred other prisoners at Guantánamo.

In conclusion, I thought that, in general, the debate came down squarely against the use of torture — as it should, of course — and although no firm conclusion was reached regarding information obtained from regimes that systematically torture, was pleased that both the topic — and the profound problems associated with it — were aired in a mainstream public forum. I remain disturbed, however, that the long struggle to eradicate the evils of torture should be so lightly dismissed by armchair apologists for its use, who, in closing, might want to reflect not on what torture does to its victims, but on what it does to those who practice it.

This is a quote from New Yorker journalist Jane Mayer, in an article on the CIA’s “black sites” that was published in August 2007. In it, a former CIA official described what happened to one of Khalid Sheikh Mohamed’s interrogators:

During interrogations, the former agency official said, officers worked in teams, watching each other behind two-way mirrors. Even with this group support, the friend said, Mohammed’s interrogator “has horrible nightmares.” He went on, “When you cross over that line of darkness, it’s hard to come back. You lose your soul. You can do your best to justify it, but it’s well outside the norm. You can’t go to that dark a place without it changing you.” He said of his friend, “He’s a good guy. It really haunts him. You are inflicting something really evil and horrible on somebody.”

Andy Worthington is the author of The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison (published by Pluto Press, distributed by Macmillan in the US, and available from Amazon — click on the following for the US and the UK). To receive new articles in your inbox, please subscribe to my RSS feed (and I can also be found on Facebook and Twitter). Also see my definitive Guantánamo prisoner list, updated in January 2010, details about the new documentary film, “Outside the Law: Stories from Guantánamo” (co-directed by Polly Nash and Andy Worthington, and launched in October 2009), and, if you appreciate my work, feel free to make a donation.

In one short session, the Court of Appeal brought an end to a transatlantic game of cat and mouse that for the last year and a half has prevented two High Court judges from making public a seven-paragraph summary of an intelligence briefing, supplied by the US intelligence services to their British counterparts, which provided information about Mohamed’s treatment after his capture in Pakistan in April 2002.

Disclosure of the summary, which was written by the High Court judges, Lord Justice Thomas and Mr. Justice Lloyd Jones, had been opposed by the British foreign secretary, David Miliband, since August 2008, when the judges delivered a stern rebuke to the British government, ruling that, “by seeking to interview BM [Binyam Mohamed] in the circumstances found and supplying information and questions for his interviews, the relationship between the United Kingdom Government and the United States authorities went far beyond that of a bystander or witness to the alleged wrongdoing.” However, Miliband argued that releasing any information publicly would damage the valuable intelligence sharing relationship between the UK and the US, and the judges, with some reluctance, accepted his claims.

However, the judges ordered 42 documents in the possession of the British government to be released to Mohamed’s lawyers, on the basis that they were vital to his defense in a planned trial by Military Commission, in which he might face the death penalty. In the months that followed, further wrangling over the disclosure of these documents was transferred to the US courts, where the Justice Department tried in vain to keep them away from Mohamed’s legal representatives.

By November 2008, however, these last-ditch attempts had failed, and, as a result, the central allegation against Mohamed — that he was involved in a “dirty bomb” plot (noticeably, one that never existed) — was dropped by the Justice Department, his planned trial by Military Commission was also dropped, and on February 23, 2009, he was flown back to the UK as a free man.

The manner in which Mohamed’s case was fast-tracked to the top of the pile of cases being reviewed by President Obama’s interagency Guantánamo Review Task Force strongly suggests that both the US and UK governments hoped that releasing Mohamed would seal the lid on further embarrassing disclosures about his torture — not only in Pakistan, but also in Morocco, where he was sent by the CIA for 18 months, and in the CIA’s own “Dark Prison” near Kabul.

However, instead of backing down, the High Court judges refused to let go of the case, arguing that, although it was appropriate for the contents of the 42 documents to remain secret, it was in the interests of “open justice” for their own summary of those documents to be made available to the public.

David Miliband disagreed, maintaining, as he had in August 2008, that releasing the summary would threaten the intelligence-sharing relationship between the US and the UK, with dire consequences for national security, even though the judges maintained that their summary contained “nothing secret or of an intelligence nature,” as it merely comprised “admissions by officials of the United States Government as to BM’s [Mohamed’s] treatment by them.”

Throughout 2009, the case rumbled on, as the judges maintained pressure on the government, and in November, the most revealing information to date was disclosed, when two previously redacted paragraphs in an earlier ruling were reinstated. These, as I noted at the time, were extremely significant, because they revealed that the judges had referred to the memos released by the Obama administration last April, written by lawyers in the Justice Department’s Office of Legal Counsel in 2002 and 2005, which purported to redefine torture and approved the use of banned techniques by the CIA.

The judges had also noted that “the techniques described were those employed against [Abu] Zubaydah,” the supposed “high-value detainee,” captured in Pakistan on March 28, 2002, who was, officially, the first prisoner to be subjected to ten “enhanced interrogation techniques,” which included physical violence, stress positions, sleep deprivation, and waterboarding.

The Court of Appeal judges order the release of the torture summary

On Wednesday, after 18 months of obstruction on the part of the government, the judges in the Court of Appeal — Sir Igor Judge, the Lord Chief Justice; Lord Neuberger, the Master of the Rolls; and Sir Anthony May, President of the Queen’s Bench — finally dismissed Miliband’s claims, and, as the Guardian described it, “shattered the convention that the courts should not question claims by the executive relating to national security.”

In the ruling, Sir Igor Judge said that the case raised issues of “fundamental importance,” of “democratic accountability and ultimately the rule of law itself.” He added that the reasons for publishing the summary were “compelling,” because they concerned the involvement of British agents in the “abhorrent practice of torture,” and because the information contained in the summary helped to “vindicate Mr. Mohamed’s assertion that UK authorities had been involved in and facilitated the ill-treatment and torture to which he was subjected while under the control of USA authorities.”

Finally accepting defeat, Miliband made the summary available on the website of the Foreign and Commonwealth Office. The seven paragraphs are reproduced below:

It was reported that a new series of interviews was conducted by the United States authorities prior to 17 May [2002] as part of a new strategy designed by an expert interviewer.

v) It was reported that at some stage during that further interview process by the United States authorities, BM [Binyam Mohamed] had been intentionally subjected to continuous sleep deprivation. The effects of the sleep deprivation were carefully observed.

vi) It was reported that combined with the sleep deprivation, threats and inducements were made to him. His fears of being removed from United States custody and “disappearing” were played upon.

vii) It was reported that the stress brought about by these deliberate tactics was increased by him being shackled in his interviews.

viii) It was clear not only from the reports of the content of the interviews but also from the report that he was being kept under self-harm observation, that the interviews were having a marked effect upon him and causing him significant mental stress and suffering.

ix) We regret to have to conclude that the reports provide to the SyS [the British intelligence services] made clear to anyone reading them that BM was being subjected to the treatment that we have described and the effect upon him of that intentional treatment.

x) The treatment reported, if it had been administered on behalf of the United Kingdom, would clearly have been in breach of the undertakings given by the United Kingdom in 1972 [in the 1972 torture convention]. Although it is not necessary for us to categorise the treatment reported, it could readily be contended to be at the very least cruel, inhuman and degrading treatment by the United States authorities.

As can be seen, the summary describes a range of techniques, which, in the judges’ opinion, “could readily be contended to be at the very least cruel, inhuman and degrading treatment by the United States authorities,” including “continuous sleep deprivation,” combined with “threats and inducements,” including the threat of “disappearing.” As the judges also explained, “the stress brought about by these deliberate tactics” was “causing him significant mental stress and suffering,” to the extent that he was being “kept under self-harm observation.”

The evidence demonstrates that torture began before it was sanctioned by the Justice Department in August 2002

That such tactics were being used by US agents in April 2002, four months before the ten previously banned techniques — including sleep deprivation and waterboarding — were approved by lawyers in the Office of Legal Counsel, should come as no surprise. As I pointed out in an article last April, “CIA Torture Began In Afghanistan 8 Months Before DoJ Approval,” lawyers for Rafiq Alhami, a Tunisian prisoner in Guantánamo, demonstrated in court submissions that the CIA was torturing prisoners in Afghanistan from December 2001.

In a lawsuit, Alhami stated that he was held in three CIA “dark sites,” where “his presence and his existence were unknown to everyone except his United States detainers,” and where, at various times, he was “stripped naked, threatened with dogs, shackled in painful stress positions for hours, punched, kicked and exposed to extremes of heat and cold.” He also stated that his interrogators “sprayed pepper spray on his hemorrhoids, causing extreme pain.”

Nevertheless, Alhami’s statements, which reflect similar statements made by other prisoners held in secret CIA prisons at this time, were largely ignored last April, and it is to be hoped, therefore, that the official confirmation of Binyam Mohamed’s torture in April and May 2002 will put pressure on Attorney General Eric Holder to investigate how it came to pass that prisoners were tortured — or, at least, subjected to cruel, inhuman and degrading treatment — so many months before the OLC provided what senior Bush officials referred to as their “golden shield,” providing a twisted rationale for the torture and abuse that followed in the memos issued on August 1, 2002.

According to a recent article in Newsweek, the conclusions of a long-awaited internal report into the behavior of the OLC lawyers who drafted the “torture memos” — conducted by the Office of Professional Responsibility (OPR) — have been fatally watered down in the report’s final version, so that the primary authors, John Yoo and Jay S. Bybee, are no longer regarded as having “violated their professional obligations as lawyers” when they drafted the memos, and have only been mildly reprimanded for showing “poor judgment.”

Even if this is the case, however, it fails to explain who was responsible for authorizing the infliction of cruel, inhuman and degrading treatment before August 1, 2002, and this is a question that needs to be answered. As Marcy Wheeler explained on Firedoglake:

[The] abuse was inflicted by “an expert interviewer” implementing “a new strategy.” That “expert interviewer” and that “new strategy” almost certainly were associated with [James] Mitchell and [John “Bruce”] Jessen [the psychologist facilitators of a torture program based on reverse-engineering the military’s SERE program, which teaches US personnel to resist torture by subjecting them to banned techniques], who were at that moment pitching using their “new strategy” with Abu Zubaydah. So this is not just proof that the US was engaging in torture before they got their … memo authorizing such torture. But it was proof that they were using Mohamed, in addition to Abu Zubaydah, as guinea pigs to test out that torture.

How Binyam Mohamed’s torture was revealed in a US court

Further disturbing evidence of the use of torture emerged through close scrutiny of a statement issued by David Miliband in the wake of the ruling by the Court of Appeal. Miliband noted that “At the heart of this case was the principle that if a country shares intelligence with another, that country must agree before its intelligence is released,” and that “This ‘control principle’ is essential to the intelligence relationship between Britain and the US.”

With some satisfaction, he added that the government had “fought the case to preserve this principle,” and that “today’s judgment upholds it,” explaining that the court only ordered the release of the summary “because in its view their substance had been put into the public domain by a decision of a US court in another case,” and that “Without that disclosure, it is clear that the court of appeal would have overturned the divisional court’s decision to publish the material.”

This is an accurate assessment, although it glosses over the importance of the material that “had been put into the public domain by a decision of a US court in another case.” The case in question was the successful habeas corpus petition, in November 2009, of an Algerian prisoner in Guantánamo, Farhi Saeed bin Mohammed. In her ruling, made available in December (PDF), Judge Gladys Kessler expressed serious doubts about the reliability of allegations made by other prisoners, as she had in previous cases, and as the judges in general have throughout the habeas process. These doubts have contributing significantly to the 32 out of 41 rulings that have resulted in the judges concluding that the government failed, by a preponderance of evidence, to establish that the prisoners in questions were involved with either al-Qaeda or the Taliban.

In the case of Farhi Saeed bin Mohammed, one of the dubious witnesses identified by Judge Kessler was Binyam Mohamed. As she described it, Mohamed’s statements, placing bin Mohammed at a training camp in Afghanistan,

cannot be relied upon, because he suffered intense and sustained physical and psychological abuse while in American custody from 2002 to 2004. Petitioner [bin Mohammed] argues that while Binyam Mohamed was detained in locations in Pakistan, Morocco, and Afghanistan, he was tortured and forced to admit to a host of allegations. When he arrived at Guantánamo Bay, Binyam Mohamed implicated Petitioner in training activities … However, after being released from Guantánamo Bay, he signed a sworn declaration claiming that he never met Petitioner until they were both detained at Guantánamo Bay, thereby disavowing the statements he made at Guantánamo Bay about training with Petitioner.

Judge Kessler also made some important points about torture, refuting the government’s claims that Mohamed had made statements voluntarily at Guantánamo, and concluding that the effects of the torture he endured from 2002 to 2004 had not dissipated by the time of the later statements. This is undoubtedly an important precedent for future cases, but with specific reference to Binyam’s court case in the UK, the significance of Judge Kessler’s ruling relates to the government’s refusal — or inability — to challenge the assertions made about Binyam Mohamed’s torture.

In response to bin Mohammed’s claims about Binyam Mohamed’s statements, Judge Kessler noted, “The Government does not challenge Petitioner’s evidence of Binyam Mohamed’s abuse,” and at another point, after running through the whole horrendous story of Mohamed’s abuse in Pakistan, Morocco and the “Dark Prison,” as recounted in statements to his lawyer, Clive Stafford Smith, she noted that “The Government does not challenge or deny the accuracy of Binyam Mohamed’s story of brutal treatment.”

Further evidence of a British cover-up

It is somewhat ironic that information that the British government tried so hard to suppress was actually disclosed in greater detail in a judicial ruling in a US court, which made its protestations worthless, but this is not the last piece of shocking evidence to emerge from the Court of Appeal ruling.

Just hours after the ruling was announced, the Guardian reported that one of the judges, Lord Neuberger, the Master of the Rolls, had included in the ruling a statement regarding the behavior of the British security services that was so critical that Jonathan Sumption QC, representing the government, had written to the court, warning that the paragraph in question was “likely to receive more public attention than any other parts of the judgments.”

As referred to in Sumption’s letter, which came to light following intervention by lawyers and media organizations including the Guardian, Lord Neuberger’s statements included assertions that MI5 did not respect human rights, had not renounced participation in “coercive interrogation” techniques, deliberately misled MPs and peers on the intelligence and security committee, which is supposed to be able to scrutinize its activities, and had a “culture of suppression” in its dealings with Miliband and the court.

With reference to the MI5 officer known as Witness B, who interrogated Binyam Mohamed in Pakistan in May 2002 (and is now the subject of a police investigation), Neuberger apparently indicated that he did not believe that he was acting alone and that he believed that his conduct was “characteristic of the service as a whole,” and also noted that MI5’s culture of suppression “penetrates the service to such a degree” that, as the Guardian explained, “it undermines any government assurance based upon information that comes from MI5 itself.”

At the government’s request, Lord Neuberger dropped his comments from the final ruling, without advising any of the other parties involved in the case. However, after Sumption’s letter was disclosed, Lord Neuberger conceded that it was “over-hasty” to withdraw it without allowing other voices to be heard, and provided objectors with a deadline of 4 pm on Friday to make representations, to enable him to decide whether to reinstate his judgment.

Throughout this whole tawdry saga, Binyam Mohamed was not present, but it must come as some relief to him, after his long ordeal, to realize that, one year after his release, his torture by US agents in April 2002 will cause questions to be raised regarding the authorization of prolonged sleep deprivation and threats to make him “disappear,” and that the British security services face questions about their entire way of operating, in the wake of the 9/11 attacks, when the UK zealously embraced its role as America’s closest foreign ally.

As published exclusively on Truthout, as “Details of British Resident’s Brutal Torture by CIA Officers Released.” A quote from Marcy Wheeler was added to the original.

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Andy Worthington is the author of The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison (published by Pluto Press, distributed by Macmillan in the US, and available from Amazon — click on the following for the US and the UK). To receive new articles in your inbox, please subscribe to my RSS feed (and I can also be found on Facebook and Twitter). Also see my definitive Guantánamo prisoner list, updated in January 2010, details about the new documentary film, “Outside the Law: Stories from Guantánamo” (co-directed by Polly Nash and Andy Worthington, and launched in October 2009), and, if you appreciate my work, feel free to make a donation.

For other articles relating to Binyam Mohamed, see the following: Urgent appeal for British resident Binyam Mohamed, “close to suicide” in Guantánamo (December 2007), Guantánamo: Torture victim Binyam Mohamed sues British government for evidence (May 2008), Binyam Mohamed’s letter from Guantánamo to Gordon Brown (May 2008), Guantánamo trials: critical judge sacked, British torture victim charged (June 2008), Binyam Mohamed: UK court grants judicial review over torture allegations, as US files official charges (June 2008), Binyam Mohamed’s judicial review: judges grill British agent and question fairness of Guantánamo trials (August 2008), High Court rules against UK and US in case of Guantánamo torture victim Binyam Mohamed (August 2008), In a plea from Guantánamo, Binyam Mohamed talks of “betrayal” by the UK (September 2008), US Justice Department drops “dirty bomb plot” allegation against Binyam Mohamed (October 2008), Meltdown at the Guantánamo Trials (October 2008), Guilt By Torture: Binyam Mohamed’s Transatlantic Quest for Justice (November 2008), A History of Music Torture in the “War on Terror” (December 2008), Is Robert Gates Guilty of Perjury in Guantánamo Torture Case? (December 2008), British torture victim Binyam Mohamed to be released from Guantánamo (January 2009), Don’t Forget Guantánamo (February 2009), The Betrayal of British Torture Victim Binyam Mohamed (February 2009), Hiding Torture And Freeing Binyam Mohamed From Guantánamo (February 2009), Binyam Mohamed’s Coming Home From Guantánamo, As Torture Allegations Mount (February 2009), Binyam Mohamed’s statement on his release from Guantánamo (February 2009), Who Is Binyam Mohamed? (February 2009), Seven Years of Torture: Binyam Mohamed Tells His Story (March 2009), Binyam Mohamed’s Plea Bargain: Trading Torture For Freedom (March 2009), Guantánamo, Bagram and the “Dark Prison”: Binyam Mohamed talks to Moazzam Begg (March 2009), Obama’s First 100 Days: Mixed Messages On Torture (May 2009), UK Government Lies Exposed; Spy Visited Binyam Mohamed In Morocco (May 2009), Daily Mail Pulls Story About Binyam Mohamed And British Spy (May 2009), Government Bans Testimony On Binyam Mohamed And The British Spy (May 2009), More twists in the tale of Binyam Mohamed (in the Guardian, May 2009), Outsourcing torture to foreign climes (in the Guardian, May 2009), Binyam Mohamed: Was Muhammad Salih’s Death In Guantánamo Suicide? (June 2009), Miliband Shows Leadership, Reveals Nothing About Torture To Parliamentary Committee (June 2009), US Torture Under Scrutiny In British Courts (July 2009), Former prisoners launch the Guantánamo Justice Centre in London (August 2009), What The British Government Knew About The Torture Of Binyam Mohamed (August 2009), Former Guantánamo Prisoner Binyam Mohamed Speaks (Video) (September 2009), UK Judges Order Release Of Details About The Torture Of Binyam Mohamed By US Agents (October 2009), UK Judge Approves Use of Secret Evidence in Guantánamo Case (November 2009), UK Judges Compare Binyam Mohamed’s Torture To That Of Abu Zubaydah (November 2009).

I also explained the use of a secret facility within Bagram as part of a network of secret CIA prisons in Afghanistan, and asked pointed questions about the whereabouts of a number of men, known to have been held in secret prisons in Afghanistan, who are not on the list and whose apparent disappearance has never been explained — and also covered this topic in another recent article, “UN Secret Detention Report Asks, ‘Where Are The CIA Ghost Prisoners?’”

In this second article based on the prisoner list, I look specifically at Bagram as a prison in a war zone, examining the murky relationship between the US and Afghan authorities regarding the detention of prisoners in wartime, asking whether the prison under President Obama conforms to the Geneva Conventions, and exposing new information about a network of secret prisons in forward operating bases and other locations around the country.

For those who fear that there are hundreds of prisoners in Bagram who have been have been held for many years, it should be noted that the limited information provided by the list is somewhat reassuring. Of the 645 prisoners listed, all but a hundred or so were seized in the last two years. There is a caveat, however. Based on the numbering system used, it appears that a total of 3,000 prisoners have been held at Bagram since the last of the regular prisoners was transferred to Guantánamo in November 2003, but although some have been freed — as part of an essentially inscrutable review process — it is not known how many others have been transferred either to Afghan custody (under a similarly inscrutable arrangement) or to Block “D” of Kabul’s main prison, Pol-i-Charki.

Refurbished by US forces in early 2007, Block “D” is where 45 of the 46 Afghan prisoners repatriated from Guantánamo since August 2007 have ended up. The one exception is Mohamed Jawad, released last August, who won his habeas corpus petition in a US court, but the other 45 have been subjected to equally opaque policies regarding their continued detention, and decisions about whether they should be tried or released, and, if the former, whether trials should be based on anything other than dubious “evidence” recycled from Guantánamo. The overriding question about Block “D” — which lawyers are hoping to test in US courts following the recent transfer of four Afghans from Guantánamo — is whether Block “D” is under Afghan or American control.

Despite these small reassurances about Bagram, I would not like to give the impression that all is well with the prison. The length of time that the majority of the 645 men have been held may appear to be quite reasonable — between one and two years — but this is supposed to be a prison in a war zone, and those detained should be screened on capture to make sure that they have not been seized by mistake, and then held for the duration of hostilities. Instead, there is every indication that prisoners are, in general, seized according to the defining characteristics of the “War on Terror,” as played out in both Iraq and Afghanistan — indiscriminate dragnets and raids based on often dubious intelligence — which not only fail to win “hearts and minds,” but also demonstrate a unilateral (and illegal) reworking of the Geneva Conventions.

The Geneva Conventions and the prevention of torture

If there is any doubt about a wartime prisoner’s status — because he is not wearing a uniform, for example — he is entitled to an Article 5 competent tribunal, held close to the time and place of capture, at which he can call witnesses. The US military pioneered these tribunals from Vietnam onwards, and was preparing to undertake them in December 2001, when the prisons at Kandahar and Bagram opened, until the orders came from on high that, in the “War on Terror,” they were unnecessary. In its extraordinary arrogance and contempt for the law, the Bush administration decided that no screening was required, and that it was sufficient for the President to declare that, on capture, all the men were “enemy combatants,” who could be held indefinitely without any rights whatsoever.

The purpose — as became apparent at Guantánamo, when President Bush declared that the Geneva Conventions did not extend to those held in the “War on Terror” — was not to keep men off the battlefield for the duration of hostilities, but to provide the lawless conditions in which they could be interrogated for “actionable intelligence.” The result, as has been chronicled as Guantánamo, at Bagram, at Abu Ghraib and in the secret prison network, was a torture regime, purportedly sanctioned by memos written by lawyers in the Justice Department’s Office of Legal Counsel, which claimed to redefine torture for the use by the CIA, or, in the case of the military, through “enhanced interrogation techniques” approved by defense secretary Donald Rumsfeld for use at Guantánamo, which later migrated to Iraq.

In many ways, these techniques were first conceived at Bagram, where the use of sleep deprivation and brutal stress positions (the “strappado” technique, or “Palestinian hanging”) was widespread, and the regime was so brutal that, in 2002, at least two prisoners (and possibly as many as five) were murdered in US custody.

Despite official claims that the conditions at Bagram have improved in the years since, a BBC report in June 2008, based on interviews with men held in the prison between 2002 and 2008, found that only two “said they had been treated well,” while the rest complained that “they were beaten, deprived of sleep and threatened with dogs.” In “Undue Process” (PDF), a Human Rights First report published in November 2009, a distinction was made between those held in Bagram’s early years, and those held since 2006, when, as the report noted, ex-detainees “described significantly better treatment than those captured earlier, but some still told of being assaulted at the point of capture and being held in cold isolation cells for several weeks after their capture.”

Moreover, in October 2009, during a panel discussion following the launch of the new Guantánamo documentary, “Outside the Law: Stories from Guantánamo,” former prisoner Omar Deghayes explained how his Pakistani brother-in-law was recently captured on a visit to Afghanistan and ended up in Bagram. As Omar described it, his brother-in-law’s wife, who was allowed to talk to her husband through a videophone system established by the International Committee of the Red Cross in early 2008, reported “how horribly and badly tortured he was, how he had marks on his eyes and was really badly battered.”

Importing Guantánamo-style reviews to Bagram

In an attempt to stifle dissent — and, it seems, as part of a cynical maneuver to encourage the Court of Appeals to reverse the habeas victories last March of the three foreign prisoners rendered to Bagram from other countries — the Obama administration announced last September that it was introducing a new review process for the Bagram prisoners. Submitted in court documents relating to the government’s appeal (PDF), the proposals allowed, for the first time, prisoners to call witnesses in their defense.

This was an improvement, because, until 2007, there was no formal review process at all, and as District Court Judge John D. Bates noted last March, when he granted the habeas corpus petitions of the three foreign prisoners rendered to Bagram, the system that was then put in place — consisting of Unlawful Enemy Combatant Review Boards — “falls well short of what the Supreme Court found inadequate at Guantánamo” (the Combatant Status Review Tribunals, the one-sided review process convened in 2004-05, which the Supreme Court found inadequate in Boumediene v. Bush, the June 2008 ruling granting the prisoners constitutionally guaranteed habeas corpus rights).

With incredulity, Judge Bates noted that the Bagram prisoners are not even allocated a personal representative from the military, as happened during the CSRTs at Guantánamo, and also noted that, although they are allowed to represent themselves:

Detainees cannot even speak for themselves; they are only permitted to submit a written statement. But in submitting that statement, detainees do not know what evidence the United States relies upon to justify an “enemy combatant” designation — so they lack a meaningful opportunity to rebut that evidence. [The government’s] far-reaching and ever-changing definition of enemy combatant, coupled with the uncertain evidentiary standards, further undercut the reliability of the UECRB review. And, unlike the CSRT process [which was followed by annual review boards], Bagram detainees receive no review beyond the UECRB itself.

In what appeared to be a direct response to Judge Bates’ damning criticisms, the Obama administration announced that, under the new rules, each prisoner would be assigned a US military official to represent him (as happened at Guantánamo), and that prisoners would also have the right to call witnesses and present evidence when it is “reasonably available” (as also happened at Guantánamo, even though no foreign witness was ever summoned to Cuba to testify).

It was also announced that the boards would determine whether prisoners should be held by the United States, turned over to Afghan authorities or released, but although the proposals included a promise that, “For those ordered held longer, the process will be repeated at six-month intervals,” the unilateral flight from the Geneva Conventions was confirmed not only in the decision to export Guantánamo’s discredited tribunal system to Bagram, but also in a section detailing how prisoners would be treated on capture.

As the submission explained, new prisoners would be subjected, on capture, not to Article 5 tribunals, but to cursory reviews by “the capturing unit commander” and by the commander of Bagram to ascertain that they “meet the criteria for detention.” Moreover, the DoD insisted that it was not merely holding prisoners “consistent with the laws and customs of war,” but was also holding those who fulfill the criteria laid down in the Authorization for Use of Military Force (the founding document of the “War on Terror,” approved by Congress within days of the 9/11 attacks), which authorized the President to detain those who “planned, authorized, committed or aided the terrorist attacks that occurred on September 11, 2001,” or those who supported them.

This is depressingly close to the “new paradigm” of warfare introduced by Bush and Cheney, and it is, perhaps, no surprise that, as criticisms began to mount, the administration strategically announced that it was in the process of transferring control of Bagram to the Afghan government. It remains to be seen how swiftly the proposed transfer will occur, but it is unsurprising that the announcement has been made, for two reasons: firstly, because it diverts attention from current US policy, and secondly, because, as with the Status of Forces Agreement (SOFA) in Iraq, it allows the US government to abdicate all responsibility for the mistakes it has made. Signed in November 2008, the SOFA in Iraq has led to the transfer of thousands of prisoners in US control to the custody of the Iraqi government, even though what awaits them is not a review of whether their detention by US forces was a mistake, but the chaos of the Iraqi judicial system.

Secret prisons

This is disturbingly cynical, of course, but what makes it even worse is a reasonable assumption that the transfer of Bagram to Afghan control will not include the transfer of any prisoners regarded as significant. For these men, the likelihood is that the US government will retain control of a secretive “black jail” within Bagram airbase, exposed by the Washington Post and the New York Times in November 2009, and will continue to seize men in nighttime raids, sending them either to this facility, or to one of nine “Field Detention Sites” on military bases, “often on the slightest suspicion and without the knowledge of their families,” as Anand Gopal reported in a ground-breaking exposé last week, which revealed the extensive torture and abuse of those held.

Gopal’s account is not the only insight into the dark realities of current US detention policies in Afghanistan, beyond Bagram, beyond the Geneva Conventions, and, it seems, beyond the law. Late last year, a reliable Afghan source informed a lawyer friend of mine that there were, at the time, about two dozen secret facilities in Afghanistan, including three or four in Herat, four or five in northern Afghanistan, and three or four in Kabul. According to this source, the majority were US facilities, although a few were run by the National Directorate of Security (NDS), the Afghan government’s domestic intelligence agency, and a few others were run by the Afghan Army. The source added, “They are all worse than Bagram. All contain a mix of combatants, criminals, and totally innocent persons. The main difference is that those at the US prisons are fed better. No one has any rights.”

In addition, just last week, in response to my recent articles, a military insider let me know that, “Not only were there facilities in Bagram, but in Kandahar and Salerno as well. Saw them first-hand between 2006 and 2009, but was told not to speak of the jails.” These, it was noted, were “unsanctioned facilities,” which were off-limits to the International Committee of the Red Cross.

As eight years of Bush, Cheney and Rumsfeld should have taught us, once you abandon the Geneva Conventions, all that lies beyond is secrecy and torture. The Obama administration has certainly tinkered with the Bush administration’s legacy, but as the stories of Bagram, the “dark jail” and the network of secret facilities demonstrates, tinkering threatens only to drive the dark truths further underground, and what is needed is the courage to thoroughly repudiate the brutal practices at the heart of the “War on Terror.”

Andy Worthington is the author of The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison (published by Pluto Press, distributed by Macmillan in the US, and available from Amazon — click on the following for the US and the UK). To receive new articles in your inbox, please subscribe to my RSS feed (and I can also be found on Facebook and Twitter). Also see my definitive Guantánamo prisoner list, updated in January 2010, details about the new documentary film, “Outside the Law: Stories from Guantánamo” (co-directed by Polly Nash and Andy Worthington, and launched in October 2009), and, if you appreciate my work, feel free to make a donation.

A slightly edited version of this article was published exclusively on Truthout. Cross-posted on Uruknet.

The 226-page report, published on Wednesday in an advance unedited version, is the culmination of a year-long Joint Study by the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment, the Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism, the Working Group on Arbitrary Detention, and the Working Group on Enforced or Involuntary Disappearances. It will be presented to the UN Human Rights Council in March.

The advance unedited version of the report is available here: UN Secret Detention Report.

In an introduction, the UN experts established that:

a person is kept in secret detention if State authorities acting in their official capacity, or persons acting under the orders thereof, with the authorization, consent, support or acquiescence of the State, or in any other situation where the action or omission of the detaining person is attributable to the State, deprive persons of their liberty; where the person is not permitted any contact with the outside world (“incommunicado detention”); and when the detaining or otherwise competent authority denies, refuses to confirm or deny or actively conceals the fact that the person is deprived of his/her liberty, hidden from the outside world, including, for example, family, independent lawyers or non-governmental organizations, or refuses to provide or actively conceals information about the fate or whereabouts of the detainee.

After running through the historical background to secret detention — both in a legal context, and through numerous examples from the twentieth century — the report focuses primarily on secret detention in the last nine years, providing a detailed account of US policies in the wake of the terrorist attacks of September 11, 2001, and also running through the practice of secret detention in 25 other countries, including Algeria, China, Egypt, India, Iraq, Iran, Israel, Libya, Pakistan, Russia, Saudi Arabia, Sri Lanka, Sudan, Syria, Uganda and Zimbabwe.

These sections contain valuable summaries, explaining how, in many cases, terrorism is used as a cover for secret detention policies of a political nature. However, the heart of the report is a detailed analysis of the Bush administration’s “War on Terror” policies.

Of particular concern to the authors of the Joint Study — beyond the overall illegality of the entire project conceived and executed by the Bush administration — is the fate of dozens of men held in secret prisons run by the CIA, or transferred by the CIA to prisons in other countries. Based on figures disclosed in one of the Office of Legal Counsel’s notorious “torture memos” (PDF), written in May 2005 by Assistant Attorney General Stephen Bradbury, the CIA had, by May 2005, “taken custody of 94 prisoners [redacted] and ha[d] employed enhanced techniques to varying degrees in the interrogations of 28 of these detainees.”

The 28 men subjected to “enhanced techniques” are clearly the “high-value detainees” — including Khalid Sheikh Mohammed, the alleged mastermind of the 9/11 attacks, Abu Zubaydah and twelve others — who were transferred to Guantánamo in September 2006, but no official account has ever explained what happened to the other 14 “high-value detainees,” or, indeed, to the majority of the other 66 men.

The report also establishes that, at a minimum, many dozens of other prisoners were rendered to prisons in other countries.

In tracking these men, the report traces the development of the US secret detention program, drawing on new research into flight records to demonstrate that rendition flights, carefully disguised in the records, flew to Poland, Romania and Lithuania. The report also touches on the existence of a secret facility within Guantánamo, exposed by Scott Horton for Harper’s Magazine last week, which prompted the experts to note that they were “very concerned about the possibility that three Guantánamo detainees (Salah Ahmed Al-Salami, Mani Shaman Al-Utaybi and Yasser Talal Al-Zahrani) might have died during interrogations at this facility, instead of in their own cells, on 9 June 2006.”

Also mentioned are two little-reported facilities in the Balkans — Camp Bondsteel in Kosovo and Eagle Base in Tuzla, Bosnia-Herzegovina — and a claim that Diego Garcia in the Indian Ocean (a British territory leased to the US) was used in 2005-06 to hold Mustafa Setmariam Nasar, a joint Syrian-Spanish national.

Accounting for other prisoners, the report focuses on a number of secret prisons in Afghanistan; in particular, the “Dark Prison,” the “Salt Pit,” and a secret facility within Bagram airbase. Of the 94 men mentioned by Stephen Bradbury — minus the 14 transferred to Guantánamo in September 2006 — the report establishes that eight were released, that 23 others were transferred to Guantánamo (mostly in 2004), that four escaped from Bagram in July 2005, that four others are still in Bagram (three of whom are awaiting a US appeals court ruling on their successful habeas corpus petition last March), and that five others were returned to Libya in 2006.

These five include Ibn al-Shaykh al-Libi, the CIA’s most notorious “ghost prisoner,” who falsely confessed, under torture in Egypt, that there were connections between al-Qaeda and Saddam Hussein, which were subsequently used to justify the invasion of Iraq. After multiple renditions to other countries (which I exposed last June), al-Libi’s return to Libya came to a dark end last May, when he died under mysterious circumstances.

Discussing the other prisoners, whose current whereabouts are unexplained, the experts noted, “It is probable that some of these men have been returned to their home countries, and that others are still held in Bagram.” As I explained in an article last week, following the publication of the first ever list of prisoners held in Bagram (PDF), it appears that a handful of these men may indeed be in Bagram, but not all of them, and it is, therefore, imperative that the publication of this list leads to pressure on the Obama administration to reveal details of all the “disappeared” detainees.

The report also examines the cases of 35 men rendered by the CIA to Jordan, Egypt, Syria and Morocco, between 2001 and 2004. As with the “ghost prisoners” in Afghanistan, many of these men later surfaced in Guantánamo, or were freed, but the whereabouts of others — particularly those in Syria, and, probably, other completely unknown men rendered to Egypt — have never been disclosed, even though some of the prisoners rendered to Syria were flown there as long ago as 2002, and, in at least two cases, were only teenagers at the time.

There are also sections on secret detention in Ethiopia, Djibouti and Uzbekistan, and the experts also criticized other countries for their involvement in the program, including Australia, Canada, Germany, Italy, Kenya and the UK. According to Reuters, throughout the report, 66 countries in total are implicated in one way or another in secret detention practices — either independently, or as part of the US-led “War on Terror.”

In concluding their review of US detention policies since 9/11, the experts welcomed President Obama’s commitment to revoke and repudiate many of the Bush administration’s policies, including the closure of all CIA black sites, but requested clarification “as to whether detainees were held in CIA ‘black sites’ in Iraq and Afghanistan or elsewhere when President Obama took office, and, if so, what happened to the detainees who were held at that time.” They were also “concerned that the Executive Order which instructed the CIA ‘to close any detention facilities that it currently operates’ does not extend to the facilities where the CIA detains individuals on ‘a short-term transitory basis,’” and, in the light of suggestions by Scott Horton that the secret facility at Guantánamo may have been run by the Joint Special Operations Command (JSOC), noted that the order “does not seem to extend to detention facilities operated by” JSOC.

These were not their only concerns. Although they welcomed the implementation in August 2009 of a new policy whereby the International Committee of the Red Cross must be notified of all prisoners’ names within two weeks of capture, they noted that “there is no legal justification for this two-week period of secret detention,” because the Geneva Conventions allow only a week, and also because of their fears that some prisoners are being held who were not captured on the battlefield, and who may, as I noted in an article in September, in fact be prisoners who have been rendered to facilities outside of the military’s control (at Bagram in Afghanistan and Camp Nama in Iraq). The experts explained that they had “noted with concern news reports which quoted current government officials saying that ‘the importance of Bagram as a holding site for terrorism suspects captured outside Afghanistan and Iraq has risen under the Obama administration, which barred the Central Intelligence Agency from using its secret prisons for long-term detention.’”

The experts’ final concern was with Bagram’s new review system for prisoners. They noted that the decision to replace the existing system, which the judge in the habeas cases last March described as a process that “falls well short of what the Supreme Court found inadequate at Guantánamo,” was still inadequate. As they explained:

[T]he new review system fails to address the fact that detainees in an active war zone should be held according to the Geneva Conventions, screened close to the time and place of capture if there is any doubt about their status, and not be subjected to reviews at some point after their capture to determine whether they should continue to be held.

They were also “concerned that the system appears to specifically aim to prevent US courts from having access to foreign detainees captured in other countries and rendered to Bagram,” and, despite welcoming the release of the names of 645 prisoners at Bagram (an annotated version is here), urged the US government “to provide information on the citizenship, length of detention and place of capture of all detainees currently held within Bagram Air Base.”

While the report spreads its net wide, the US administration’s response to its findings about the Bush administration’s legacy of “disappeared” prisoners, and its focus on the gray areas of Obama’s current policies, is particularly anticipated. So far, however, there has been silence from US officials, and only the British, moaning about “unsubstantiated and irresponsible” claims, have dared to challenge their well-chronicled complicity in the secret detention policies underpinning the whole of the “War on Terror, which do not appear to have been thoroughly banished, one year after Barack Obama took office.

Andy Worthington is the author of The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison (published by Pluto Press, distributed by Macmillan in the US, and available from Amazon — click on the following for the US and the UK). To receive new articles in your inbox, please subscribe to my RSS feed (and I can also be found on Facebook and Twitter). Also see my definitive Guantánamo prisoner list, updated in January 2010, details about the new documentary film, “Outside the Law: Stories from Guantánamo” (co-directed by Polly Nash and Andy Worthington, and launched in October 2009), and, if you appreciate my work, feel free to make a donation.

As published exclusively on Truthout.

For a sequence of articles dealing with the use of torture by the CIA, on “high-value detainees,” and in the secret prisons, see: Guantánamo’s tangled web: Khalid Sheikh Mohammed, Majid Khan, dubious US convictions, and a dying man (July 2007), Jane Mayer on the CIA’s “black sites,” condemnation by the Red Cross, and Guantánamo’s “high-value” detainees (including Khalid Sheikh Mohammed) (August 2007), Waterboarding: two questions for Michael Hayden about three “high-value” detainees now in Guantánamo (February 2008), Six in Guantánamo Charged with 9/11 Murders: Why Now? And What About the Torture? (February 2008), The Insignificance and Insanity of Abu Zubaydah: Ex-Guantánamo Prisoner Confirms FBI’s Doubts (April 2008), Guantánamo Trials: Another Torture Victim Charged (Abdul Rahim al-Nashiri, July 2008), Secret Prison on Diego Garcia Confirmed: Six “High-Value” Guantánamo Prisoners Held, Plus “Ghost Prisoner” Mustafa Setmariam Nasar (August 2008), Will the Bush administration be held accountable for war crimes? (December 2008), The Ten Lies of Dick Cheney (Part One) and The Ten Lies of Dick Cheney (Part Two) (December 2008), Prosecuting the Bush Administration’s Torturers (March 2009), Abu Zubaydah: The Futility Of Torture and A Trail of Broken Lives (March 2009), Ten Terrible Truths About The CIA Torture Memos (Part One), Ten Terrible Truths About The CIA Torture Memos (Part Two), 9/11 Commission Director Philip Zelikow Condemns Bush Torture Program, Who Authorized The Torture of Abu Zubaydah?, CIA Torture Began In Afghanistan 8 Months before DoJ Approval, Even In Cheney’s Bleak World, The Al-Qaeda-Iraq Torture Story Is A New Low (all April 2009), Ibn al-Shaykh al-Libi Has Died In A Libyan Prison , Dick Cheney And The Death Of Ibn al-Shaykh al-Libi, The “Suicide” Of Ibn al-Shaykh al-Libi: Why The Media Silence?, Two Experts Cast Doubt On Ibn al-Shaykh al-Libi’s “Suicide”, Lawrence Wilkerson Nails Cheney On Use Of Torture To Invade Iraq, In the Guardian: Death in Libya, betrayal by the West (in the Guardian here), Lawrence Wilkerson Nails Cheney’s Iraq Lies Again (And Rumsfeld And The CIA) (all May 2009) and WORLD EXCLUSIVE: New Revelations About The Torture Of Ibn al-Shaykh al-Libi (June 2009), The Logic of the 9/11 Trials, The Madness of the Military Commissions (November 2009), UK Judges Compare Binyam Mohamed’s Torture To That Of Abu Zubaydah (November 2009). Also see the extensive archive of articles about the Military Commissions.

For other stories discussing the use of torture in secret prisons, see: An unreported story from Guantánamo: the tale of Sanad al-Kazimi (August 2007), Rendered to Egypt for torture, Mohammed Saad Iqbal Madni is released from Guantánamo (September 2008), A History of Music Torture in the “War on Terror” (December 2008), Seven Years of Torture: Binyam Mohamed Tells His Story (March 2009), When Torture Kills: Ten Murders In US Prisons In Afghanistan (July 2009), US Torture Under Scrutiny In British Courts (July 2009), What The British Government Knew About The Torture Of Binyam Mohamed (August 2009), Torture in Bagram and Guantánamo: The Declaration of Ahmed al-Darbi (September 2009), UK Judges Order Release Of Details About The Torture Of Binyam Mohamed By US Agents (October 2009), “Model Prisoner” at Guantánamo, Tortured in the “Dark Prison,” Loses Habeas Corpus Petition (December 2009), Dark Revelations in the Bagram Prisoner List (January 2010), and also see the extensive Binyam Mohamed archive.

And for other stories discussing torture at Guantánamo and/or in “conventional” US prisons in Afghanistan, see: The testimony of Guantánamo detainee Omar Deghayes: includes allegations of previously unreported murders in the US prison at Bagram airbase (August 2007), Guantánamo Transcripts: “Ghost” Prisoners Speak After Five And A Half Years, And “9/11 hijacker” Recants His Tortured Confession (September 2007), The Trials of Omar Khadr, Guantánamo’s “child soldier” (November 2007), Former US interrogator Damien Corsetti recalls the torture of prisoners in Bagram and Abu Ghraib (December 2007), Guantánamo’s shambolic trials (February 2008), Torture allegations dog Guantánamo trials (March 2008), Sami al-Haj: the banned torture pictures of a journalist in Guantánamo (April 2008), Former Guantánamo Prosecutor Condemns “Chaotic” Trials in Case of Teenage Torture Victim (Lt. Col. Darrel Vandeveld on Mohamed Jawad, January 2009), Judge Orders Release of Guantánamo’s Forgotten Child (Mohammed El-Gharani, January 2009), Bush Era Ends With Guantánamo Trial Chief’s Torture Confession (Susan Crawford on Mohammed al-Qahtani, January 2009), Forgotten in Guantánamo: British Resident Shaker Aamer (March 2009), A Child At Guantánamo: The Unending Torment of Mohamed Jawad (June 2009), Torture In Guantánamo: The Force-feeding Of Hunger Strikers (June 2009), As Judge Orders Release Of Tortured Guantánamo Prisoner, Government Refuses To Concede Defeat (Mohamed Jawad, July 2009), Torture And Futility: Is This The End Of The Military Commissions At Guantánamo? (September 2009), A Truly Shocking Guantánamo Story: Judge Confirms That An Innocent Man Was Tortured To Make False Confessions (Fouad al-Rabiah, September 2009), UK Court Orders Release Of Torture Evidence In The Case Of Shaker Aamer, The Last British Resident In Guantánamo (December 2009), Shaker Aamer: UK Government Drops Opposition To Release Of Torture Evidence (December 2009), Afghan Nobody Faces Trial by Military Commission (January 2010), Murders at Guantánamo: Scott Horton of Harper’s Exposes the Truth about the 2006 “Suicides” (January 2010), Two Algerian Torture Victims Are Freed from Guantánamo (January 2010), and the extensive archive of articles about the Military Commissions.

Greenwald then proceeded to explain how, in May 2008, Carter had condemned the Bush administration’s Military Commissions (the trial system for Guantánamo prisoners) as “fundamentally and fatally flawed,” arguing that “the rule of law will prevail only if they are perpetually blocked,” and cited a trial in a “civilian court” (his emphasis) of accused terrorists in France that involved “a combination of open and sealed (i.e., classified) evidence to prove the defendants’ guilt in a six-day trial,” which he regarded as the only viable model for the United States to follow.

How disappointing, then, that, just a month after Carter joined the Obama administration, the President announced, in a major national security speech, that the Commissions were back on the table, and Carter then watched, two weeks ago, as Attorney General Eric Holder announced that, although Khalid Sheikh Mohammed and four other men accused of involvement in the 9/11 attacks would face a federal court trial in New York, five other prisoners — previously charged in the Bush administration’s Military Commissions — would face what is apparently a second tier of justice based solely on the government’s belief that their cases are weaker: trials in the revamped Military Commissions, which have been brought back from the dead with the help of Congress.

Greenwald also noted that, in another post in April 2008, Carter expressed dismay at the Bush administration’s decision to charge Ahmed Khalfan Ghailani, a “high-value detainee” held for over two years in secret CIA prisons before his transfer to Guantánamo in September 2006, in a Military Commission “for acts committed before Sept. 11 — to wit, his alleged participation in the bombing of the US Embassy in Tanzania [in 1998].” Carter focused on the following passage in a Washington Post report: “Almost all of his alleged ‘war crimes’ occurred before the Sept. 11 attacks, and most predated the nation’s fight against terrorism. Four co-conspirators in the Tanzania bombing were convicted in US federal courts. Ghailani, too, was indicted in the United States, but federal authorities have opted to try him before the commission, composed entirely of military officers.”

Rounding on the Bush administration, Carter stated:

I’ll be very interested to see how the Bush administration’s lawyers argue their way around the provision of Article 1 that reads, “No Bill of Attainder or ex post facto Law shall be passed”. Setting aside the myriad objections to the military commissions generally, and this case specifically, I think this is going to present a major hurdle for the government.

I’m also concerned about the deliberate decision to take this case away from federal prosecutors … In my opinion, our default choice for the prosecution of suspected terrorists should be federal court … The substantive and procedural due process granted by federal courts has strategic value — it confers legitimacy on the outcome. That legitimacy matters for the struggle against terrorism, and I think it’s crucial that we evaluate our prosecutorial decisions with that strategic calculus in mind.

As Greenwald noted, bringing the story up to date:

While the Obama administration commendably sent Ghailani to New York to be tried in a civilian court, it just announced two weeks ago that Abd al-Rahim al-Nashiri, whose case originated as a criminal investigation with the FBI, would now be turned over to a military commission for prosecution in connection with the 2000 bombing of the USS Cole — raising all of the serious objections Carter voiced to the Ghailani case.

There’s more to Greenwald’s article — regarding Carter’s opposition to the use of the “state secrets” privilege, his concerns regarding the distinction between conventional wars of the past and the “War on Terror” when claiming presidential power, and his willingness to prosecute Bush administration officials and lawyers for war crimes, all of which have also been ignored by President Obama — but I’d like now to move onto the second departure from the administration: that of Greg Craig, the former White House Counsel, who resigned on November 13.

Craig is no darling of the left, as is apparent from complaints about his business dealings, including his relationship with Karl Rove, George W. Bush’s former Senior Advisor and Deputy Chief of Staff. However, on national security issues, his departure set the seal on the demise of a period of principled optimism that marked the first few months of the Obama administration, and that has degenerated into chaos and confusion ever since. A former foreign policy advisor to Senator Edward Kennedy and to Secretary of State Madeleine Albright, who served as special counsel in the White House of President Bill Clinton, and directed the team that defended Clinton against impeachment, Craig not only brought a wealth of political experience to Barack Obama’s administration, but was also the main driver of the policies designed to overturn and repudiate the Bush administration’s detention and interrogation policies in the “War on Terror.”

As Massimo Calabresi and Michael Weisskopf explained two weeks ago in an article in Time, “The Fall of Greg Craig,” Barack Obama “tasked Craig with dismantling Bush’s interrogation and detention policies” just four days after the Presidential election, and he took to his new job with extraordinary vigor, “creating one of the largest White House counsel’s offices ever, with dozens of high-powered lawyers, compared with only a handful who served under Bush in early 2001 … Craig’s office was an instant power center in the White House, able to produce answers, memos and ideas seemingly overnight while other parts of the Administration were still getting up and running.”

Despite opposition from the intelligence agencies, Craig drafted the Executive Orders, issued on President Obama’s second day in office, which, singlehandedly, sent a message to the world that the extra-legal horrors of the Bush administration had apparently come to an end. The orders set a one-year deadline for the closure of Guantánamo and called time on the CIA’s use of torture and secret prisons, and President Obama also announced that he was suspending the Military Commissions. Human rights activists were overjoyed, and, as Time noted, “Craig was delivering much of the change Obama had promised during the campaign.”

On March 15, Craig’s insistence on repudiating the Bush administration’s policies and providing the transparent government that Barack Obama had promised was delivered to full effect when, as a result of a long-standing court case initiated by the ACLU, a court deadline was reached regarding the release of classified memos, issued in 2002 and 2005 by the Justice Department’s Office of Legal Counsel, which purported to justify the use of torture. When Craig notified the President that the Justice Department planned to make the memos public three days later, Obama asked for a one-month extension to consider his options.

According to Time, when Gen. Michael Hayden, the former Director of the CIA, learned of the administration’s intention to release the memos, he “went ballistic,” calling Craig on March 18 and asking him, “What are you doing?” Hayden claimed that, if Obama released the memos, “al-Qaeda would be able to train its warriors to resist the techniques described in their contents.” Craig was apparently unperturbed. “The President is never going to authorize any of those techniques,” he replied, prompting the following response from Hayden: “Lemme get this right. There are no conditions of threat this nation might face that would prompt you to interrupt the sleep cycle of somebody who may have lifesaving information?” As Time described it, “There was a long silence. Craig would not concede the point.”

This showdown may well have been the high point of Greg Craig’s endeavors to reset America’s moral compass, confirming the President’s commitment to non-abusive interrogation techniques, in the face of Hayden’s extraordinary insistence that sleep deprivation — a clear component of the torture techniques favored by the Bush administration — ought to continue to be part of the agency’s operations.

As Time explained, Hayden refused to back down, and rallied CIA opposition to Craig’s plans. Former Director George Tenet called his former aide John Brennan, the Assistant to the President for Homeland Security and Counterterrorism, and John Deutch, a CIA Director under President Clinton, called Deputy National Security Adviser Tom Donilon. National Security Council aide Denis McDonough, a former Senate staffer who has “daily access to the President,” was also recruited, and on April 15, as the court’s extension came to an end, Obama “invited eight officers of the CIA’s Counterterrorism Center to make their case against release” at a meeting in the Oval Office. That evening, Obama called Rahm Emanuel, his Chief of Staff, to discuss the memos, and discovered that Emanuel was already discussing it “with about a dozen national-security and political advisers.” After joining the meeting, Obama “asked each to state a position and then convened an impromptu debate, selecting Craig and McDonough to argue opposing sides.”

As Time explained, “Craig deployed one of Obama’s own moral arguments: that releasing the memos ‘was consistent with taking a high road’ and was ‘sensitive to our values and our traditions as well as the rule of law.’ Obama paused, then decided in favor of Craig, dictating a detailed statement explaining his position that would be released the next day.”

What happened next signaled the start of the Obama administration’s retreat from the moral high ground, which led to the sidelining of Craig, and, finally, his resignation. Former Vice President Dick Cheney went on the attack, pollsters noted a drop in Obama’s support among independents, and, as a result, Rahm Emanuel “quietly delegated his aides to get more deeply involved in the process.”

Craig, however, remained focused on how to close Guantánamo, as he was, according to Time, “under pressure to eliminate … indefinite detention without charge or trial and the use of military commissions.” On April 17, he assembled officials from a range of government departments, and explained his plan: to bring some prisoners from Guantánamo to the US to face federal court trials, and also to bring others to settle in the United States. The latter were the Uighurs, Muslims from China’s Xinjiang province whose release into the United States had been ordered in October 2008 by Judge Ricardo Urbina, after the Bush administration declined to challenge their habeas corpus petitions.

Craig, like Judge Urbina, recognized that, because they could not be repatriated (because of fears that the Chinese government would torture them), because no other country could be found that would take them, and because their continued imprisonment in Guantánamo was unconstitutional, they would have to be brought to the United States. According to Time, defense secretary Robert Gates, Secretary of State Hillary Clinton and other senior officials “approved Craig’s plan to release two Uighurs in northern Virginia” as part of “a global game to empty the prison. If the two settled without incident, six more would be let into the US. That in turn would help the State Department persuade other countries to take Gitmo detainees. The hope was that those remaining could be tried in federal courts.”

At the meeting on April 17, security measures were planned for monitoring the Uighurs in their new home, and Craig also called for the development of “a plan to convince Congress and the public that it was a good idea.” The Uighurs’ lawyers had apparently agreed that their clients could be tagged, to play down security fears, and a Defense Department official told Time that the planned arrival of the Uighurs in the US “was a matter of days, not weeks.”

It was a fine and principled plan, and, had it happened, it would, I believe, have made the closure of Guantánamo by January 2010 possible. However, what happened instead is that another Cheney-baiting court case, concerning the release of photos showing the abuse of prisoners by US forces, reared up to derail the administration. On April 16, Craig had explained that the photos would have to be released, and at that point Robert Gates was supportive, and Rahm Emanuel was only concerned about locating a good time to release the information to cause minimal damage. A week later, however, when the government announced its plans to release the photos, senior military figures warned that soldiers in the field would face reprisals, Gates flip-flopped, and Republicans seized on another opportunity to attack the administration.

The uproar over the photos was then revived on April 24, when news of the Uighur resettlement plan was leaked. Senate minority leader Mitch McConnell “launched three weeks of near daily attacks on the idea of letting the Uighurs loose in the US,” and although Dick Durbin, a staunch supporter of Obama and the Majority Whip in the Senate, thought the government could win the fight in Congress, cowardice finally prevailed.

By May 8, when Craig was summoned to a meeting with Obama, the tide had turned. “I don’t like my options,” the President said, in relation to the abuse photos, and although Craig explained that his legal team had found no alternative to releasing the photos, Obama directed him to find a way, which he did, by withdrawing approval and paving the way for a legal struggle that reached the Supreme Court this fall. In a one-line ruling on November 30, the Supreme Court reversed the lower court’s ruling that the pictures be released, citing a provision in the Homeland Security funding bill signed into law on October 28, which authorized the Pentagon to block the release of the pictures, as well as any others which might “endanger” US soldiers or civilians.

Objectively, the refusal to release the photos in May was a distressing volte-face on the part of the administration, but behind the scenes it is now clear that the combined Republican assaults on Obama’s national security credentials led the administration to withdraw completely from Craig’s principled position regarding the Bush administration’s detention policies, compromising on issues that, as Craig had astutely recognized, were not open to compromise or negotiation if they were to succeed in overturning the Bush administration’s toxic legacy.

By the second week of May, Obama had killed the Uighur plan. As Time described it, “Craig never got a chance to argue the case to the President,” and an aide explained, “It was a political decision, to put it bluntly.” Thereafter, Craig was sidelined. The administration failed to fight back when Congress rose up in revolt, threatening to impose its own ban on the release of the photos, withholding funding for the closure of Guantánamo, legislating to prevent prisoners being brought to the US mainland, and interfering in the transfer of prisoners to any other country.

On May 21, Craig, like Phillip Carter, was obliged to watch as President Obama delivered the national security speech in which he not only announced his intention to revive the Military Commissions, but also — presumably to the absolute horror of Craig and Carter — explained that he would continue to hold some prisoners without charge or trial; those who, as he put it, “cannot be prosecuted yet who pose a clear danger to the American people.” By doing so, Obama ignored the sub-text that, if you cannot prosecute someone, it is because the information you are using does not rise to the level of evidence, or is otherwise tainted by torture, and is therefore inherently unreliable.

Six months on, as Greg Craig finally tendered his resignation, the price of subscribing to the Bush administration handbook, instead of standing up to bullying lawmakers and a renegade ex-Vice President, has become distressingly clear.

When it comes to finding new homes for cleared prisoners who cannot be repatriated, the administration finally managed to dispose of ten of the Uighurs, in Bermuda and Palau, although seven still remain at Guantánamo, nearly 14 months after Judge Urbina ordered their release, and dozens of other cleared prisoners face indefinite detention at the US government’s pleasure, because other countries — unenthused by Obama’s inability to bring even a single man to settle on the US mainland — have not rallied sufficiently to the cause.

Moreover, although the administration finally announced federal court trials for the five men accused of involvement with the 9/11 attacks on November 13 (the same day that Greg Craig resigned), Obama and Attorney General Eric Holder not only had to fight back against a wave of Republican fearmongering that has only grown in strength throughout the year, but also lost whatever credibility this should have given them — in the eyes of those whose allegiance is to the rule of law — by announcing that five others would face trials by Military Commission. They also conceded that Guantánamo would not close by January 2010, and let slip that some of those still held — those described by Obama in May as prisoners who “cannot be prosecuted yet who pose a clear danger to the American people” — would likely remain imprisoned forever without charge or trial.

Forgive me if I have oversimplified matters, but it appears to me that the failure to deliver a single, coherent system of justice to the remaining prisoners in Guantánamo, the failure to close the prison by Greg Craig’s deadline, the failure to kill the Military Commissions once and for all, and the acceptance, rather than the elimination of indefinite detention without charge or trial (which is at the very heart of the Guantánamo regime established by George W. Bush) demonstrate what happens when tough battles on points of principle give way to cowardice and political maneuvering, as exemplified in the poisonous compromises embraced six months ago by the Obama administration.

Andy Worthington is the author of The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison (published by Pluto Press, distributed by Macmillan in the US, and available from Amazon — click on the following for the US and the UK). To receive new articles in your inbox, please subscribe to my RSS feed (and I can also be found on Facebook and Twitter). Also see my definitive Guantánamo prisoner list, published in March 2009, details about the new documentary film, “Outside the Law: Stories from Guantánamo” (co-directed by Polly Nash and Andy Worthington, and launched in October 2009), and, if you appreciate my work, feel free to make a donation.

As published exclusively on the website of the Future of Freedom Foundation. Cross-posted on The Public Record and Campaign for Liberty.

For the last 15 months, Mohamed has watched as two British High Court judges have tried to release to the public information conveyed by the US intelligence services to their British counterparts regarding his torture in Pakistan, prior to his rendition to Morocco.

In this, they have been thwarted, time and again, by the British foreign secretary, David Miliband, who has repeatedly argued that the disclosure of a seven paragraph, 25-line summary of these documents, compiled by the judges themselves, would threaten Britain’s intelligence-sharing relationship with the United States.

Binyam Mohamed was still in Guantánamo, facing a trial by Military Commission, when the judges first attempted to make their summary available to the public last August. In the months that followed, the US Justice Department dropped its claim that he was involved in a “dirty bomb plot,” the Military Commission charges were also dropped, and in February this year, in a clear attempt by both the British government and the Obama administration to keep a lid on the leaking torture story, he was fast-tracked to the top of the pile of cases being reviewed by the Obama administration’s interagency Task Force, and released in the UK.

Undaunted, however, the judges — Lord Justice Thomas and Mr. Justice Lloyd Jones — refused to back down, challenging the foreign secretary regarding the release of the information on four occasions between October 2008 and October 2009, and, in an apparently unprecedented move, asking the British media to become involved. Last Friday they issued a sixth judgment on the case (PDF), declaring that the treatment of Mohamed “could never properly be described as ‘a secret’ or an ‘intelligence secret’ or ‘a summary of classified intelligence,’” and, moreover, restoring two passages from their fifth judgment, which were removed at the request of the Foreign and Commonwealth Office.

These passages, it transpires, were restored at the insistence of the Special Advocates (lawyers appointed by the government to deal with secret evidence in court on Mohamed’s behalf), who have long maintained that the government has no grounds for hiding “information which pointed to the commission of serious criminal offences” on the basis of national security, and who told the foreign secretary that the previous redactions “were more extensive than was required.”

Although four other passages — and the elusive summary — remain redacted, the two reinstated after the FCO dropped its objections are significant, as they refer to the notorious memos issued by the Justice Department’s Office of Legal Counsel in August 2002 and May 2005, publicly released by the Obama administration in April this year, which purported to authorize the use of torture by the CIA.

The first passage stated, “One of those memoranda dated August 1 2002, from Mr. J.S. Bybee, Assistant Attorney-General, to Mr. John Rizzo, acting General Counsel of the CIA, made clear that the techniques described were those employed against Mr. Zubaydah, alleged to be a high-ranking member of al-Qaeda.”

The second stated, “As the paragraphs relate to the actions of the United States itself, disclosure of the redacted paragraphs is consistent with the publication of the CIA interrogation technique memoranda [referred to in the paragraph above] and does not publicize any information about foreign States.”

The judges proceeded to express their displeasure with the government’s insistence that the other four passages remained redacted, noting that “The entire content of the four passages [was] already in the public domain,” and adding, “No contention has or could be advanced to the contrary.”

They also reiterated their reasons for stating that their summary of the documents conveyed by US intelligence to their British counterparts should be made publicly available, pointing out, as they have many times before, that “What is contained in those seven paragraphs gives rise to an arguable case of torture or cruel, inhuman or degrading treatment,” and that they contain “nothing secret or of an intelligence nature,” as they merely comprise “admissions by officials of the United States Government as to BM’s [Mohamed’s] treatment by them.”

This whole process is clearly nothing less than a long, slow circling around the dark truth of Binyam Mohamed’s torture by US agents in Pakistan (with the knowledge of the British authorities) before he was even sent to Morocco, and in this context, the judges’ decision to compare the still-undisclosed details of Mohamed’s treatment with the publicly available details of the treatment of Abu Zubaydah marks another small but extremely important step towards bringing into the open what the judges (and the Special Advocates) clearly regard as information that has no business being hidden.

As Clive Stafford Smith, Mohamed’s lawyer, explained in the Guardian:

I have had a copy of the infamous Bybee memo [PDF] for months, and this allows us to consider which of the “enhanced interrogation techniques” the British government would rather keep under wraps. As identified by Bybee, the 10 techniques are:

(1) attention grasp, (2) walling, (3) facial hold, (4) facial slap (insult slap), (5) cramped confinement, (6) wall standing, (7) stress positions, (8) sleep deprivation, (9) insects placed in a confinement box, and (10) the waterboard.

As Mohamed has never mentioned that he was subjected to waterboarding, and as it appears from the OLC memos that CIA operatives never actually placed insects into Abu Zubaydah’s “confinement box,” despite being authorized to do so, it seems that we are looking, instead, at some, or all of the other eight techniques.

Perhaps this, then, is the reason that the British government remains so desperate not to have the details disclosed of what it knew about Mohamed’s treatment in Afghanistan, because it was complicit in the techniques that were being developed for the CIA’s “high-value detainee” program, whose first official guinea pig was Abu Zubaydah.

To be fair, most of these techniques later migrated to Guantánamo anyway, as part of defense secretary Donald Rumsfeld’s desire not to be excluded from the torture game by his old chum Dick Cheney. But what the British judges did last Friday was to take us back to April 2002.

Looking back to that feverish time, shortly after the capture of both Zubaydah and Mohammed, and nearly four full months before Jay Bybee and John Yoo attempted to redefine torture so that the CIA could indulge in its practice, the British judges have made two important points.

Firstly, they have reminded us that torture was, in fact, taking place long before it was supposedly authorized, with disturbing ramifications for those who ordered its use, which have not been adequately addressed by the Obama administration, and which are not addressed at all in Eric Holder’s decision to investigate only those agents who exceeded the indefensible guidelines for “enhanced interrogation” that were laid down by Bybee and Yoo in August 2002.

Secondly, by comparing the treatment of Binyam Mohamed with that of Abu Zubaydah, the judges have also reminded us that the use of torture was not confined to a select group of 14 “high-value detainees” — including Zubaydah and Khalid Sheikh Mohammed — who were moved to Guantánamo in September 2006, but also to 80 other prisoners that the OLC acknowledged were held in secret CIA prisons, and the many dozens of others who had their torture outsourced to proxy torturers in countries including Egypt, Jordan, Morocco and Syria.

Binyam Mohamed was unfortunate enough to face both options — proxy torture in Morocco both before and after he received his own dose of “enhanced interrogation” at the hands of Americans — but last Friday, the tenacious judges in the UK’s High Court at least took one step further towards ensuring that information about these torture programs cannot be concealed by those who authorized it, or were complicit in it, on the spurious basis that disclosure would damage national security.

Andy Worthington is the author of The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison (published by Pluto Press, distributed by Macmillan in the US, and available from Amazon — click on the following for the US and the UK). To receive new articles in your inbox, please subscribe to my RSS feed (and I can also be found on Facebook and Twitter). Also see my definitive Guantánamo prisoner list, published in March 2009, details about the new documentary film, “Outside the Law: Stories from Guantánamo” (co-directed by Polly Nash and Andy Worthington, and launched in October 2009), and, if you appreciate my work, feel free to make a donation.

As published exclusively on Truthout.

For other articles relating to Binyam Mohamed, see the following: Urgent appeal for British resident Binyam Mohamed, “close to suicide” in Guantánamo (December 2007), Guantánamo: Torture victim Binyam Mohamed sues British government for evidence (May 2008), Binyam Mohamed’s letter from Guantánamo to Gordon Brown (May 2008), Guantánamo trials: critical judge sacked, British torture victim charged (June 2008), Binyam Mohamed: UK court grants judicial review over torture allegations, as US files official charges (June 2008), Binyam Mohamed’s judicial review: judges grill British agent and question fairness of Guantánamo trials (August 2008), High Court rules against UK and US in case of Guantánamo torture victim Binyam Mohamed (August 2008), In a plea from Guantánamo, Binyam Mohamed talks of “betrayal” by the UK (September 2008), US Justice Department drops “dirty bomb plot” allegation against Binyam Mohamed (October 2008), Meltdown at the Guantánamo Trials (October 2008), Guilt By Torture: Binyam Mohamed’s Transatlantic Quest for Justice (November 2008), A History of Music Torture in the “War on Terror” (December 2008), Is Robert Gates Guilty of Perjury in Guantánamo Torture Case? (December 2008), British torture victim Binyam Mohamed to be released from Guantánamo (January 2009), Don’t Forget Guantánamo (February 2009), The Betrayal of British Torture Victim Binyam Mohamed (February 2009), Hiding Torture And Freeing Binyam Mohamed From Guantánamo (February 2009), Binyam Mohamed’s Coming Home From Guantánamo, As Torture Allegations Mount (February 2009), Binyam Mohamed’s statement on his release from Guantánamo (February 2009), Who Is Binyam Mohamed? (February 2009), Seven Years of Torture: Binyam Mohamed Tells His Story (March 2009), Binyam Mohamed’s Plea Bargain: Trading Torture For Freedom (March 2009), Guantánamo, Bagram and the “Dark Prison”: Binyam Mohamed talks to Moazzam Begg (March 2009), Obama’s First 100 Days: Mixed Messages On Torture (May 2009), UK Government Lies Exposed; Spy Visited Binyam Mohamed In Morocco (May 2009), Daily Mail Pulls Story About Binyam Mohamed And British Spy (May 2009), Government Bans Testimony On Binyam Mohamed And The British Spy (May 2009), More twists in the tale of Binyam Mohamed (in the Guardian, May 2009), Outsourcing torture to foreign climes (in the Guardian, May 2009), Binyam Mohamed: Was Muhammad Salih’s Death In Guantánamo Suicide? (June 2009), Miliband Shows Leadership, Reveals Nothing About Torture To Parliamentary Committee (June 2009), US Torture Under Scrutiny In British Courts (July 2009), Former prisoners launch the Guantánamo Justice Centre in London (August 2009).

The sentences for the Americans were delivered in absentia, as the US refused to extradite any of the men and women involved, but, as the first legal ruling anywhere in the world on the program of “extraordinary rendition” at the heart of the Bush administration’s “War on Terror,” the verdict is enormously significant. In the words of Armando Spataro, the Italian prosecutor who led the five-year investigation that culminated in the trial and the ruling, “It’s clear that the kidnapping of Abu Omar was a great mistake. It did serious damage in fighting terrorists because we don’t need torture, we don’t need renditions, we don’t need secret prisons.”

In a revealing interview after the ruling was delivered, former CIA officer Sabrina deSousa, one of those convicted, told ABC News that the United States “broke the law” in kidnapping Abu Omar and that “we are paying for the mistakes right now, whoever authorized and approved this.” She said the US “abandoned and betrayed” her and her colleagues, and pointed out that those who should have been held to account were the senior Bush administration officials who approved the program in the first place. As she explained, “Everything I did was approved back in Washington.”

DeSousa’s role in Abu Omar’s rendition does not appear to be in doubt. Although she stated that she was “on a ski trip on the actual day of the kidnapping,” Italian prosecutors said that she “helped organized the kidnapping using her diplomat cover at the US Consulate in Milan,” and this was confirmed by “several former US intelligence officials,” who spoke to ABC News. Nevertheless, although the former CIA station chief in Milan, Robert Seldon Lady, received an eight-year sentence, his was the most senior head to roll, and it is significant that Jeffrey Castelli, the CIA station chief in Rome, described by “several former CIA officers” as the “architect” of the kidnapping, was acquitted by the court, which “ruled that he and two others had diplomatic immunity because they worked out of the US Embassy in Rome.” As a result, deSousa undoubtedly had a point when she complained that “her status as a State Department diplomat should have protected her, but that the US refused to invoke diplomatic immunity.” Five senior Italian officials — including Nicolo Pollari, the former head of Italy’s military intelligence service, and his deputy — also escaped convictions, because the judge accepted that the evidence against them was subject to official secrecy restrictions.

Speaking to ABC News, US officials blamed the CIA for the “sloppy” tradecraft that led to the agents being identified. Former CIA officer Bob Baer stated, with obvious incredulity, “They were using e-mail, they were calling home, the Italians were able to connect their credit cards with true names and true addresses.” Contrasting his own activities during the Reagan administration, Baer added, “When we did a rendition, we did it in international waters. The Bush administration threw all caution to the wind.” Baer also pinpointed how the rendition program had become an aberrant project without adequate supervision. “He was the wrong guy,” he said, adding, “It was not worth putting the reputation of the United States on the line going after somebody like this.” Disturbingly, of course, Abu Omar was not the only “wrong guy” rendered to torture by the CIA. There were many others, some of whose stories have still not come to light, and whose whereabouts remain unknown, but one other enlightening example (of a man who was also rendered to Egypt) is the case of Muhammad Saad Iqbal Madni, who was subjected to “extraordinary rendition” and torture in January 2002 based on little more than a whim.

In his regular column for Harper’s Magazine, lawyer Scott Horton contrasted the Italian ruling with the recent ruling in the US Court of Appeals for the Second Circuit in the case of Maher Arar, an innocent Syrian-Canadian national who, in October 2002, was rendered by the US to Syria, where he was held for a year and tortured in the notorious Palestine Branch prison. On November 2, the Court of Appeals dismissed Arar’s case against government officials (including FBI Director Robert Mueller, former Homeland Security Secretary Tom Ridge and former Attorney General John Ashcroft) for their role in his kidnapping, “extraordinary rendition” and torture. As the Washington Post explained, “The appeals court said it cannot let Arar sue the US government without Congress enacting legislation that spells out exactly how a case as unusual as his can be brought and what potential remedy exists. Otherwise, the court said, allowing the lawsuit would ‘offend the separation of powers and inhibit this country’s foreign policy.’”

Describing the contrast between these rulings, Scott Horton explained:

[T]he outcomes could not have been more different. In the New York case, the Court of Appeals bowed to government pressure to refuse to hear the torture victim’s appeal. The decision, rendered by a group of largely Republican judges, is filled with breezy language openly acknowledging that the case turned on an extraordinary rendition, and suggesting that this was simply a policy choice for the government. The Italian court proved zealously independent of government influence from the beginning of the case down to judgment. It viewed extraordinary rendition linked to torture as a particularly grave crime, taking careful note of the historical precedents that supported that perspective. While the court accepted that state secrecy concerns restricted the court’s consideration of certain evidence, it nevertheless proceeded and rested its conclusions on evidence that was not protected. Similarly, the Italian court gave claims of immunity narrow applicability, so that only a handful of defendants could rely upon them. The court took the view that these highly technical defenses would give government actors some comfort, but it rejected the idea that they could escape accountability for a serious crime altogether.

The most telling difference focuses on the rights of the torture victim. The New York court concluded that the victim’s claims were overwhelmed by the government’s interest in protecting political actors against embarrassment. The Italian court insisted not only on the punishment of the perpetrators but also on the compensation of the torture victim. The Milan court sentenced the defendants to pay compensation to Abu Omar and his wife of €1.5 million ($2.3 million).

Quite a contrast, indeed — and one that should shame those in the US judicial system who continue to defend the Bush administration’s crimes, and, it should be noted, in the Obama adminstration itself, where senior officials continue to do all in their power to prevent senior Bush administration officials from being held accountable for their actions.

In a dissenting opinion in the Arar ruling, Judge Guido Calabresi captured the full significance of these failings, when he wrote, “I believe that when the history of this distinguished court is written, today’s majority decision will be viewed with dismay,” adding, “If anything, this decision is a loss to all Americans and to the rule of law.”

Andy Worthington is the author of The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison (published by Pluto Press, distributed by Macmillan in the US, and available from Amazon — click on the following for the US and the UK). To receive new articles in your inbox, please subscribe to my RSS feed (and I can also be found on Facebook and Twitter). Also see my definitive Guantánamo prisoner list, published in March 2009, details about my film, “Outside the Law: Stories from Guantánamo” (co-directed by Polly Nash, and launched in October 2009), and, if you appreciate my work, feel free to make a donation.

The judges were Lord Justice Thomas and Mr. Justice Lloyd Jones, and their attempt to inform the public came in a judgment that followed a judicial review of Mohamed’s case during the summer of 2008, which was itself triggered by the British government’s refusal to release 42 documents in its possession regarding his detention in Pakistan.

August 2008: The quest to reveal information about US torture begins

In their judgment last August, the judges made it clear that they were appalled by the global torture program in which they had found themselves unexpectedly immersed. In one of the most extraordinary stories in the “War on Terror,” Mohamed, a British resident picked up in Pakistan in April 2002, had been rendered by CIA agents to Morocco in July 2002, where he had spent 18 months being tortured, had then been rendered to Afghanistan, to the “Dark Prison” outside Kabul, a secret prison run by the CIA, where he had spent another four months, and had then been flown to Guantánamo, where he remained while the judges grappled with the largely classified evidence of a global web of kidnapping and torture.

In a remarkable ruling, the judges roundly condemned the British government for sending an agent to Pakistan to interview Mohamed in May 2002, when he was being held incommunicado (which was illegal), and for providing and receiving intelligence about him for at least eight months after his disappearance from Pakistan, even though the British intelligence services claimed not to know where he was being held, and should not have been involved without receiving cast-iron assurances about his welfare. In the judgment, they stated explicitly that, “by seeking to interview BM [Mohamed] in the circumstances found and supplying information and questions for his interviews, the relationship between the United Kingdom Government and the United States authorities went far beyond that of a bystander or witness to the alleged wrongdoing.”

As I explained in an article last November:

The judges also seized on an admission, made on behalf of the foreign secretary, David Miliband, that Mohamed had “established an arguable case” that, until his transfer to Guantánamo, “he was subject to cruel, inhuman and degrading treatment by or on behalf of the United States,” and was also “subject to torture during such detention by or on behalf of the United States,” and ruled that, because the information obtained from Mohamed was “sought to be used as a confession in a trial [by Military Commission at Guantánamo] where the charges … are very serious and may carry the death penalty,” and that it is “a long-standing principle of the common law that confessions obtained by torture or cruel, inhuman or degrading treatment cannot be used as evidence in any trial,” the British government was required to hand over the evidence — 42 documents in total — to his lawyers.

In the end, however, the judges stopped short of ordering the government to release the 42 documents — and also stopped short of including in their judgment a seven paragraph summary of these documents — bowing to pressure from David Miliband, who, in the absence of any other straws to which to cling, urged them not to order disclosure of the documents because of national security concerns; specifically, that to do so might damage the intelligence-sharing relationship between the UK and the US.

Developments in the US, and an unusual request from the British judges

Much has changed in the 14 months since this initial judgment. Last October, in the United States, the Justice Department responded to similar pressure to release the documents, applied by a judge in Mohamed’s habeas corpus petition, by dropping the central allegation against him — that he was involved, with US citizen Jose Padilla, in a plot to detonate a radioactive “dirty bomb” in New York — and, in November, the Defense Department shelved Mohamed’s proposed trial by Military Commission, which focused on the same spurious claims.

To anyone who had been studying the case closely, this was a relief, as, back in June 2002, before Mohamed’s rendition to Morocco, and just a month after Padilla’s capture (and before his long isolation and torture on the US mainland), Paul Wolfowitz, the deputy to US defense secretary Donald Rumsfeld, admitted that “there was not an actual plan” to set off a “dirty bomb” in America, that Padilla had not begun trying to acquire materials, and that intelligence officials had stated that his research had not gone beyond surfing the Internet.

Despite these developments in the US, the British judges found themselves engaged in a far more intractable struggle with their own government. In two hearings that followed their August judgment, the foreign secretary produced correspondence from US State Department officials, clearly threatening the intelligence-sharing arrangement between the US and the UK should the documents be released.

In a first letter, dated August 21, 2008, John Bellinger, the US State Department’s Legal Adviser, stated that disclosure of the documents — or of the information they contained — was “likely to result in serious damage to US national security and could harm existing intelligence sharing arrangements between our two governments,” and in a second letter, dated September 5, 2008, Stephen Mathias, the State Department’s Assistant Legal Adviser, went one step further, suggesting that there would be “serious and lasting damage to the US-UK intelligence sharing relationship,” should the documents — or the information they contained — be disclosed.

Even so, the judges were reluctant to give up, and, in November, took the highly unusual step of soliciting responses from the media regarding their decision to bow to pressure from the government and not release their summary of the documents, by stressing that “the issue is one of considerable importance in the context of open justice,” and noting that, in the opinion of the Special Advocates (lawyers assigned to represent Mohamed in the closed sessions of the judicial review, which included most of the cross-examination of the British agent who had interviewed him in Pakistan), the government’s Public Interest Immunity Certificate (the document urging non-disclosure) “failed to address, in the light of allegations made by BM [Mohamed], the abhorrence and condemnation accorded to torture and cruel, inhuman or degrading treatment.”

In seeking to reopen their judgment, the judges recognized that the requirements of “open justice” needed to be offset against two factors in the government’s favor. The first, as they described it in their most recent judgment last Friday (PDF), was the “principle of control over evidence,” and, as they explained:

There can be no doubt that there is a general principle or convention that intelligence information received by one State from another will not be released into the public domain or otherwise used without the consent of the state supplying it.

However, as they also noted, although States would “normally be expected to resist the making of a court order for disclosure,” the “principle of control over evidence … cannot be considered an absolute principle,” because “court ordered disclosure is well understood by the Governments of the United States and the United Kingdom to be an exception to the principle of control.”

The second factor that needed to be considered was the explicit threat provided by the United States, regarding the intelligence sharing relationship between the US and the UK, and it is on this point that, since the election of Barack Obama as the 44th President of the United States, the British government has, to be blunt, struggled to establish that the new administration has made the same threats as the Bush administration.

The key question of how the Obama administration regards the disclosure of US torture

In response to the judges’ request for input from the media regarding the seven paragraph summary, the journalist David Rose made a submission on November 30, in which he “pointed out that the position had changed significantly with the election of ‘a US President avowedly determined to eschew torture and inhuman and degrading treatment,’” and added that the new administration was “unlikely to protest at further confirmation that its predecessor saw the inhuman and degrading treatment of detainees as acceptable.”

On December 18, the foreign secretary responded, stating that “the situation has not changed since the election of Barack Obama.” He added, “The concern relates to the disclosure of closed information,” and also claimed, “The Secretary of State’s assessment of the likelihood of and severity of the damage to national security has not changed.”

Mohamed’s lawyers then responded by stating that the foreign secretary’s assertion “needed to be proved by evidence,” but, as the judges noted, “Unfortunately, the letter [from Mohamed’s lawyers] was not copied to the court. No response was made by the Treasury Solicitor on behalf of the Foreign Secretary. That omission proved, in the event, to be regrettable.”

As a result — unaware that the government’s assertions had been challenged — the judges issued a fourth judgment on February 4, 2009, in which, yet again, they reluctantly defended the government’s position. However, it appears, from last Friday’s judgment, that they almost immediately regretted making this decision, for the following reasons.

Firstly, David Rose responded immediately by asking the Foreign and Commonwealth Office “how the Foreign Secretary could know that the threat made by the Bush Administration … was being maintained by the Obama Administration.” In response, a spokesman for the foreign secretary conceded, “We have not approached the new Administration about these paragraphs,” leading the judges to conclude, as they explained last Friday, that:

… when questions were asked of the Foreign Secretary, both in the media and in Parliament, as to whether there was any change of position of the Obama Administration, his response was made in relation to the general principle of control over intelligence and not in relation to the specific statement made by the Bush Administration that it would reconsider its intelligence sharing relationship.

In the meantime, in a move that appeared to have been designed to take the heat off both the British and American governments, Binyam Mohamed was actually released from Guantánamo, arriving back in the UK on February 23, but the case, of course, had a lumbering legal life of its own, and refused to go away.

As the judges noted, statements made by spokesmen on behalf of President Obama in this period never “went beyond restating the general principle of control over intelligence,” and they cited a letter dated March 24, 2009, in which Daniel Bethlehem QC, the FCO’s Legal Adviser, referred to a statement made by the Press Office of the National Security Council on February 4, in which it was stated, “The United States thanks the UK government for its continuing commitment to protect sensitive national security information and preserve the long-standing relationship that enables both countries to protect their citizens.”

As the judges added, “No statement reiterated the position taken by the Bush Administration that if we did make the seven redacted paragraphs public, then there would be consequences in the form of a reconsideration of the intelligence sharing relationship.”

Moreover, by April 22, during another hearing, it became clear to the judges that, “despite the meetings that had taken place between officials and Ministers of the United Kingdom and United States, no one on behalf of the United Kingdom Government had, in the period between the handing down of our [fourth] judgment on 4 February 2009 and the hearing before us on 22 April 2009, asked the Obama Administration whether, in the event of our making the information in the redacted paragraphs public, his Administration would reconsider the intelligence sharing relationship.” In the most crucial lines, they added, “It appears to be the position that it was assumed, in the absence of a statement by the Obama Administration, that the position had not changed, but no one sought any confirmation.”

As a result, the judges stated that, in response to David Rose’s submission on November 30, 2008, “all the Foreign Secretary could properly have stated to the court (because he had no basis for saying any more) was that he did not expect there would be any change in the position of the Obama Administration,” adding, “He should have informed the court that he did not know what the position of the Obama Administration was as to the specific consequences of publication.”

The judges’ decision to reopen their judgment

This, in turn, led to the judges’ decision to reopen their fourth judgment on May 6, and, through a discussion of other submissions made during the April 22 hearing (in last Friday’s judgment), they also made it clear that they had been persuaded that “President Obama had publicly expressed very different views on issues of torture, interrogation techniques and transparency from those of officials of the Bush Administration, including Mr. Bellinger, legal adviser to the State Department, and Secretary of State Rice.”

They also attached particular importance to Obama’s decision, on April 16, to release “a number of memoranda issued by the United States Department of Justice’s Office of Legal Counsel dealing with the treatment of al-Qaeda detainees” (generally known as the “torture memos”), clearly agreeing with Mohamed’s lawyers, who told the court on April 22 that, “in the light of the making public of these memoranda, it was quite impossible to contend that the Obama Administration would ever have contemplated reconsidering the intelligence sharing relationship with United Kingdom if we made the redacted paragraphs public.”

It also transpired that the judges had been influenced by “an interim statement” made by the Obama administration, which “made clear that the United States Government was ‘considering the decision on the public disclosure of the US intelligence information that is summarized in the seven paragraphs,’” but had not yet made a decision.

However, just before the judges decided to reopen their judgment, the Treasury Solicitor, acting on behalf of the foreign secretary, submitted a two paragraph summary of a letter, dated April 30, “from an entity of the United States Government to an entity of the United Kingdom Government (the details were redacted), which, it was claimed, established that the Obama administration was following its predecessor’s line, and maintaining that disclosure of the judges’ summary would have serious consequences for the intelligence sharing relationship between the US and the UK.

Even at the time, based on the limited information available, Mohamed’s lawyers established that, in fact, “the two paragraphs stated what could happen, [and] did not state what would happen,” and, in the months since, this interpretation has become even clearer. Despite requests by the judges for disclosure of the identity of the agency that sent the letter, and for disclosure of the full contents of the letter, which, in their opinion, could not justifiably be suppressed due to national security concerns, it took until July 15 for the FCO to admit that the letter had been sent by the CIA to the British intelligence services, and it took until the judgment last Friday for the full contents of the letter to be revealed, in which, as the judges explained succinctly, “no threat was made.”

In a key passage, the CIA letter stated:

The seven paragraphs at issue are based upon classified information shared between our countries. Public disclosure of this information reasonably could be expected to cause serious damage to the United Kingdom’s national security. Specifically, the disclosure of this information may result in a constriction of the US-UK relationship, as well as UK relationships with other countries.

This reinforced what Mohamed’s lawyers had stated back in May, but in the most shocking passage in the whole judgment, the judges explained that representatives of the foreign secretary and the intelligence services had told the judges that they “were better placed in interpreting the letter than other persons and the court,” and, remarkably, that the foreign secretary’s view, “based on such advice, was that ‘could’ should be read as meaning ‘would,’” and that, therefore, the letter “contained an explicit statement of consequences.”

This, of course, was too much for the judges, who responded by stating that both the CIA’s letter — and a follow-up, dated June 30, from General James L. Jones, the Assistant to the President for National Security Affairs, to his British counterpart, confirming that the CIA’s April 30 letter “reflected the views of the United States Administration” — were “written in plain English,” and that they “do not require expert interpolation to be placed between the drafter and the court.”

With this dismissal of the government’s claims, it remained only for the judges to dismiss an additional claim that Secretary of State Hillary Clinton had stated that “there was no difference between the position of the Bush and Obama Administrations as to the consequences that would follow,” should the judges’ summary be released. This they did by pointing out that the minutes of a meeting on May 12, which were relied upon by the government for its claim, actually demonstrate that Secretary Clinton had been discussing the 42 documents, “which contain intelligence information,” and not the judges’ seven paragraph summary, which, as they have maintained all along, “do not contain anything of an intelligence or secret nature.”

And so, with further mention of “the exceptional circumstances of the present case,” with its “unprecedented” proceedings, concerning “matters of great public importance,” the judges ruled that, following President Obama’s release of the “torture memos,” it “is now impossible to contend that details of the interrogation methods are themselves matters of intelligence,” and that, because no threat had been demonstrated by the British government, “a vital public interest requires, for reasons of democratic accountability and the rule of law in the United Kingdom, that a summary of the most important evidence relating to the involvement of the British security services in wrongdoing be placed in the public domain in the United Kingdom.”

They concluded, “We shall therefore re-issue our first judgment with the paragraphs restored.”

Devastating admissions beyond the scope of the judgment

This is not the end of the story, of course. The government, predictably, has appealed yet again, but whilst it is, of course, vital for “open justice” that the judge’s redacted paragraphs are restored, it should be noted, in conclusion, that the entire sordid story of cooperation between the US and the UK in the torture of Binyam Mohamed goes deeper than this judgment allowed the judges to delve.

As they noted in passing (and as I explained at length in an article in August, “What The British Government Knew About The Torture Of Binyam Mohamed”), new revelations this summer confirm that the British intelligence services had been sharing intelligence with their US counterparts until May 2004 (and not February 2003, as previously stated), and that, far from not knowing where Mohamed was being held between July 2002 and January 2004, the British government had actually sent an agent to Morocco to interview him. In their judgment, the judges noted, with apparent regret, that, had these facts surfaced earlier, they would have led to further cross-examination of the agent who interviewed Mohamed in Pakistan, and that it was “inevitable that we would have made further findings, some of which we would have put into the open judgment.”

This is perhaps something of an understatement. This summer it also transpired that the British government had sent a spy to Morocco to interview Mohamed, as well as a British agent. As the government struggles to continue its 14-month mission to suppress evidence of US torture in Pakistan (and its complicity in it), it should also be bracing itself for fresh challenges regarding the apparent perjury of the agent who was cross-examined by the judges in the summer of 2008, and for further challenges regarding its increasingly obvious complicity in the long ordeal of Binyam Mohamed in Morocco and Afghanistan, which indicate that much more “wrongdoing” is at stake than was conceived of by Lord Justice Thomas and Mr. Justice Lloyd Jones, when they wrote last August that “the relationship between the United Kingdom Government and the United States authorities went far beyond that of a bystander or witness to the alleged wrongdoing.”

Andy Worthington is the author of The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison (published by Pluto Press, distributed by Macmillan in the US, and available from Amazon — click on the following for the US and the UK). To receive new articles in your inbox, please subscribe to my RSS feed (and I can also be found on Facebook and Twitter). Also see my definitive Guantánamo prisoner list, published in March 2009, details about my film, “Outside the Law: Stories from Guantánamo” (co-directed by Polly Nash, and launched in October 2009), and, if you appreciate my work, feel free to make a donation.

As published exclusively on Truthout.

For other articles relating to Binyam Mohamed, see the following: Urgent appeal for British resident Binyam Mohamed, “close to suicide” in Guantánamo (December 2007), Guantánamo: Torture victim Binyam Mohamed sues British government for evidence (May 2008), Binyam Mohamed’s letter from Guantánamo to Gordon Brown (May 2008), Guantánamo trials: critical judge sacked, British torture victim charged (June 2008), Binyam Mohamed: UK court grants judicial review over torture allegations, as US files official charges (June 2008), Binyam Mohamed’s judicial review: judges grill British agent and question fairness of Guantánamo trials (August 2008), High Court rules against UK and US in case of Guantánamo torture victim Binyam Mohamed (August 2008), In a plea from Guantánamo, Binyam Mohamed talks of “betrayal” by the UK (September 2008), US Justice Department drops “dirty bomb plot” allegation against Binyam Mohamed (October 2008), Meltdown at the Guantánamo Trials (October 2008), Guilt By Torture: Binyam Mohamed’s Transatlantic Quest for Justice (November 2008), A History of Music Torture in the “War on Terror” (December 2008), Is Robert Gates Guilty of Perjury in Guantánamo Torture Case? (December 2008), British torture victim Binyam Mohamed to be released from Guantánamo (January 2009), Don’t Forget Guantánamo (February 2009), The Betrayal of British Torture Victim Binyam Mohamed (February 2009), Hiding Torture And Freeing Binyam Mohamed From Guantánamo (February 2009), Binyam Mohamed’s Coming Home From Guantánamo, As Torture Allegations Mount (February 2009), Binyam Mohamed’s statement on his release from Guantánamo (February 2009), Who Is Binyam Mohamed? (February 2009), Seven Years of Torture: Binyam Mohamed Tells His Story (March 2009), Binyam Mohamed’s Plea Bargain: Trading Torture For Freedom (March 2009), Guantánamo, Bagram and the “Dark Prison”: Binyam Mohamed talks to Moazzam Begg (March 2009), Obama’s First 100 Days: Mixed Messages On Torture (May 2009), UK Government Lies Exposed; Spy Visited Binyam Mohamed In Morocco (May 2009), Daily Mail Pulls Story About Binyam Mohamed And British Spy (May 2009), Government Bans Testimony On Binyam Mohamed And The British Spy (May 2009), More twists in the tale of Binyam Mohamed (in the Guardian, May 2009), Outsourcing torture to foreign climes (in the Guardian, May 2009), Binyam Mohamed: Was Muhammad Salih’s Death In Guantánamo Suicide? (June 2009), Miliband Shows Leadership, Reveals Nothing About Torture To Parliamentary Committee (June 2009), US Torture Under Scrutiny In British Courts (July 2009), Former prisoners launch the Guantánamo Justice Centre in London (August 2009).

The background: lies hidden in plain sight for five years

To establish the background to this story, it is necessary for me to return to my initial response to the ruling a week last Friday, before these revelations had been made public, when, based on what I knew of the case from the publicly available documents, I explained that I was disappointed that the Obama administration had pursued a case against al-Rabiah, alleging that he was a fundraiser for Osama bin Laden and had run a supply depot for al-Qaeda in Afghanistan’s Tora Bora mountains, for two particular reasons.

The first was because a CIA analyst had interviewed al-Rabiah at Guantánamo in the summer of 2002 and had concluded that he was an innocent man caught at the wrong time and in the wrong place; and the second was because, although al-Rabiah had said that he had met bin Laden and had been present in the Tora Bora mountains, he had provided an innocent explanation for both occurrences. He had, he said, been introduced to bin Laden on a trip to Afghanistan to investigate proposals for a humanitarian aid mission, and he had been at Tora Bora — and compelled to man a supply depot — because he was one of numerous civilians caught up with soldiers of al-Qaeda and the Taliban as he tried to flee the chaos of Afghanistan for Pakistan, and had been compelled to run the depot by a senior figure in al-Qaeda.

These appeared to be valid explanations, especially as al-Rabiah, a 42-year old father of four children, had no history of any involvement with militancy or terrorism, and had, instead, spent 20 years at a management desk job at Kuwait Airways, and had an ownership interest in some health clubs. Moreover, he had a history of legitimate refugee relief work, having taken a six-month approved leave of absence from work in 1994-95 to do relief work in Bosnia, having visited Kosovo with the Kuwaiti Red Crescent in 1998, and having made a trip to Bangladesh in 2000 to delivery kidney dialysis fluid to a hospital in the capital, Dhaka.

As a result, it appeared to me a week last Friday that Judge Kollar-Kotelly granted al-Rabiah’s habeas petition because neither his meeting with bin Laden nor his presence in Tora Bora indicated that he was either a member of, or had supported al-Qaeda or the Taliban.

However, now that Judge Kollar-Kotelly’s ruling has been issued, I realize that the account given by al-Rabiah during his Combatant Status Review Tribunal at Guantánamo in 2004 — on which I based my account of his activities — was a tissue of lies, and that the truth, hidden for over six years, is that, like torture victims groomed for show trials throughout the centuries, he made up false stories under torture, and repeated them obediently, fearing further punishment and having been convinced that he would never leave Guantánamo by any other means.

An introduction to the torture revelations, and an endorsement of al-Rabiah’s explanations about his time in Afghanistan

In her ruling, Judge Kollar-Kotelly methodically dissected the government’s case to reveal the chilling truth. After noting, initially, that the “evidentiary record” was “surprisingly bare,” because the government “has withdrawn its reliance on most of the evidence and allegations that were once asserted against al-Rabiah, and now relies almost exclusively on al-Rabiah’s ‘confessions’ to certain conduct,” she added, with a palpable sense of disbelief:

Not only did al-Rabiah’s interrogators repeatedly conclude that these same confessions were not believable — which al-Rabiah’s counsel attributes to abuse and coercion, some of which is supported by the record — but it is also undisputed that al-Rabiah confessed to information that his interrogators obtained from either alleged eyewitnesses who are not credible and as to whom the Government has now largely withdrawn any reliance, or from sources that never even existed … If there exists a basis for al-Rabiah’s indefinite detention, it most certainly has not been presented to this Court.

In dealing with al-Rabiah’s background, and his reasons for traveling to Afghanistan, Judge Kollar-Kotelly was required to consider his own assertion that, after a preliminary ten-day visit in July 2001 to identify areas where humanitarian aid might be delivered, he returned in October 2001 “to complete a fact-finding mission related to Afghanistan’s refugee problems and the country’s non-existent medical infrastructure,” against the government’s claim that he was “‘not an aspiring aid worker caught up in the front lines of the United States war against al-Qaeda’ but instead was someone who traveled to Afghanistan in October 2001 as a ‘devotee of Osama bin Laden who ran to bin Laden’s side after September 11th.’”

Concluding that “The evidence in the record strongly supports al-Rabiah’s explanation,” Judge Kollar-Kotelly noted that he had officially requested leave prior to his departure, and quoted from two letters sent to his family. In the first, on October 18, 2001, he explained that “for ten days he assisted with the delivery of supplies to refugees and that he was able to take video ‘reflecting the tragedy of the refugees,’ but that he was unable to leave Afghanistan through Iran (the route he took to enter the country) because the borders had been closed.” As a result, he “wrote in his letter that he and an unspecified number of other persons decided ‘to drive four trucks to Pakistan making our way to Peshawar,’” and he also asked his brother to notify his boss at Kuwait Airlines that he was having difficulties returning to Kuwait on time.

After noting that “The evidence in the record establishes that al-Rabiah did, in fact, travel across Afghanistan towards Peshawar, ultimately getting captured (unarmed) by villagers outside of Jalalabad … on approximately December 25, 2001” (with Maher al-Quwari, a Palestinian who also ended up in Guantánamo), Judge Kollar-Kotelly quoted from a second letter sent to his family, in which — ironically, in light of what was to come — he wrote that he was “detained by the American troops and thanks to God they are good example[s] of humanitarian behavior.” He added that he was “detained pending verification of [his] identity and personality,” and that the “investigation and verification procedures may last for a long time due to the great number of detained Arabs and other persons” who had been fleeing the situation in Afghanistan, which “turned upside down between one day and night and every Arab citizen has become a suspect.”

Discrediting the government’s unreliable witnesses

Moving on to the government’s key allegations — about Osama bin Laden and Tora Bora — Judge Kollar-Kotelly dismissed the allegations regarding al-Rabiah’s supposed activities in Tora Bora, which were made by another prisoner who claimed that he “was told that al-Rabiah was in charge of supplies at Tora Bora,” by noting that, “Although his allegations are filled with inconsistencies and implausibilities, the Government continues to rely on him as an eyewitness.” She also noted that, although the witness had identified al-Rabiah as the man under discussion, from his kunya (nickname), Abu Abdullah al-Kuwaiti, the government had conceded that another Abu Abdullah al-Kuwaiti, an actual al-Qaeda operative named Hadi El-Enazi, was present in Tora Bora, and also noted that an interrogator had expressed doubt about the supposed eyewitness at the time (much of the ruling is redacted, but this seemed to involve a claim that al-Rabiah’s oldest son was with him in Afghanistan, when this was demonstrably not the case).

Judge Kollar-Kotelly also dismissed two other sets of allegations by the supposed eyewitness. Noting further “inconsistencies and impossibilities” in his accounts, she stated that “the Court has little difficulty concluding that [his] allegations are not credible,” and explained that, to reach this conclusion, she had also drawn on statements provided by al-Rabiah’s lawyers, which further undermined his reliability, “based on, among other things, undisputed inconsistencies associated with his allegations against other detainees,” and his medical records, which obviously indicated mental health problems (although the description was redacted). “At a minimum,” she added, “the Government would have had to corroborate [his] allegations with credible and reliable evidence, which it has not done.”

Osama bin Laden, it then transpired, appeared in allegations made by a second prisoner, who “alleged that al-Rabiah attended a feast hosted by Osama bin Laden,” where he “presented bin Laden with a suitcase full of money.” This source also alleged that al-Rabiah “served in various fighting capacities in the Tora Bora mountains,” and that he “funneled money to mujahadeen in Bosnia in 1995.”

After noting that the government had dropped “almost all” of these allegations, except for the one relating to Bosnia, Judge Kollar-Kotelly stated, witheringly, “the only consistency with respect to [these] allegations is that they repeatedly change over time.” For particular condemnation, she singled out one claim that the feast had taken place in August 2001 (when al-Rabiah was in Kuwait, before his return to Afghanistan in October 2001), amongst other more outlandish claims, including an absurd allegation that al-Rabiah had trained the 9/11 hijackers.

As with the first supposed eyewitness, Judge Kollar-Kotelly noted that there were “multiple exhibits in the record demonstrating [his] unreliability as a witness” (although, sadly, the exact number of prisoners against whom he had made verifiably false allegations was redacted), and concluded that, although the many “inconsistencies and impossibilities” in his statements “raise, at a minimum, a serious question about [his] mental capacity to accurately make allegations against al-Rabiah,” the government “did not address them at the Merits Hearing” in August.

After dismissing a third supposed eyewitness, because he had withdrawn his allegation (which was redacted) several months after making it, Judge Kollar-Kotelly dismissed a fourth, even though it was “undisputed” that al-Rabiah actually had contact with him in Afghanistan. Despite redactions, it seems that this man was Maher al-Quwari, and that his statement involved second-hand hearsay about al-Rabiah being seen with a gun. While this was sufficiently weak for the judge not to accept it without further corroboration, she also made a point of discounting it because the supposed witness only “made this allegation while he was undergoing a cell relocation program at Guantánamo called the ‘frequent flier program,’ which prevented a detainee such as [redacted] from resting due to frequent cell movements.”

While the description of a “cell relocation program” sounds relatively benign, Judge Kollar-Kotelly made a point of noting that it was, in fact, a program of sleep deprivation, adding that, “According to a report published by the Senate Armed Services Committee concerning the treatment of detainees in United States custody, sleep deprivation was not a technique that was authorized by the Army Field Manual.” Although she also noted that “sleep deprivation became authorized at Guantánamo by the Secretary of Defense on April 16, 2003, the guidance issued by the Commander of USSOUTHCOM on June 2, 2003 prohibited the use of sleep deprivation for more than ‘four days in succession,’” whereas the supposed witness’s “allegation against al-Rabiah was made after one week of sleep deprivation in the program, and he did not repeat this allegation either before or after the program.”

False confessions obtained through torture

Despite ruling out all of the government’s supposed eyewitnesses, and noting that the government had withdrawn “most of its reliance on these witnesses” by the time of the Merits Hearing, Judge Kollar-Kotelly added that “it is very significant that al-Rabiah’s interrogators apparently believed these allegations at the time they were made, and therefore sought to have al-Rabiah confess to them” — despite the well-chronicled unreliability of the first two supposed witnesses, the withdrawing of the statement made by the third, and the fact, easily perceived by the judge, that the fourth made his statement only after being subjected to sleep deprivation that exceeded established guidelines and that was, therefore, not only unreliable, but also abusive.

The judge also noted the significance of the evidence in the record indicating that al-Rabiah “subsequently confided in interrogators [redacted] that he was being pressured to falsely confess to the allegations discussed above,” and also the significance of the fact that, although “al-Rabiah’s interrogators ultimately extracted confessions from him,” they “never believed his confessions based on the comments they included in their interrogation reports.”

After noting — again with a palpable sense of incredulity — that “These are the confessions that the Government now asks the Court to accept as evidence in this case,” Judge Kollar-Kotelly proceeded to demolish them all, breaking them down into three periods: the first, when “there were no allegations directed toward al-Rabiah and al-Rabiah provided no confessions”; the second, when the supposed eyewitnesses “made their now-discredited allegations and al-Rabiah was told of the allegations against him, but al-Rabiah nevertheless made no confessions”; and the third (which, shockingly, continued “until the present”), when “al-Rabiah confessed to the now-discredited allegations against him, as well as to other ‘evidence’ that interrogators told him they possessed, when, in fact, such evidence did not exist.”

In the first phase, Judge Kollar-Kotelly noted that there was no indication “that interrogators believed al-Rabiah had engaged in any conduct that made him lawfully detainable,” and explained that, “To the contrary, the evidence in the record during this period consists mainly of an assessment made by an intelligence analyst that al-Rabiah should not have been detained.” As discussed in my previous article, this analyst was “a senior CIA intelligence analyst, who, almost uniquely, was also an Arabic expert,” but although I wrote that “it amaze[d] me that no one in the Justice Department, under President Obama, investigated the CIA analyst’s report,” the truth, as revealed in the unclassified ruling, is even bleaker.

It transpires that Justice Department officials had read the report, but tried to discredit the analyst’s verdict, “arguing that it represented the opinion of only one analyst,” ignoring his well-chronicled expertise, and obliging the judge to point out that, “according to the Government’s own evidence, ‘[i]ntelligence analysts undergo rigorous tradecraft training [and] employ specific analytical tools to assist them in sorting and organizing various pieces of information,” and are also “trained to recognize and mitigate biases, not only in the information presented to them, but their own cognitive biases as well.”

In the second phase, despite extensive redactions to the ruling, it is clear that al-Rabiah was repeatedly interrogated, although he “express[ed] frustration to FBI agents that he was repeatedly asked, among other questions, whether he had ever seen Osama bin Laden, and remark[ed] that his answer was ‘no’ and would continue to remain ‘no.’” What happened next, in a “new three-pronged approach,” is unknown, as the details are severely redacted, but it “did not result in any confessions. Al-Rabiah repeatedly denied the allegations against him.”

After this, apparently following some kind of advice given to the lead interrogator (by an unknown party whose identity and suggestions were redacted), the interrogators “began using more aggressive interrogation tactics.” Again, the details are redacted, but enough information is available from passages that were not redacted earlier in the ruling to indicate that these “tactics” included sleep deprivation (the “frequent flier program”), which, as I explained in my previous article, led three British men released in March 2004 — the so-called “Tipton Three,” whose story was dramatized in the film “The Road To Guantánamo” — to explain that al-Rabiah was moved every two hours, over an unspecified period of time (but one that clearly exceeded the four-day recommendation by a substantial margin), leaving him “suffering from serious depression, losing weight in a substantial way, and very stressed because of the constant moves, deprived of sleep and seriously worried about the consequences for his children.”

Possibly in reference to the use of sleep deprivation (although it could also have been another “enhanced interrogation technique”), Judge Kollar-Kotelly explained that, “Once it became authorized, it could not be used on a detainee until ‘the SOUTHCOM Commander ma[de] a determination of “military necessity” and notif[ied] the Secretary [of Defense] in advance’ of its use,” and also made a point of noting that “the Government was unable to produce any evidence that [the interrogator] obtained authorization to use the [redacted] technique with al-Rabiah despite requests by the Court at the Merits Hearing for such evidence.”

Although the other techniques are not described, they undoubtedly included some or all of the following — prolonged isolation, the use of extreme heat and cold, short-shackling in painful stress positions, forced nudity, forced grooming, religious and sexual humiliation, and the use of loud music and noise — because this whole package of techniques, including sleep deprivation, was approved for use at the highest levels of the Bush administration, as a Senate Committee explained in the detailed report in April this year that was cited by the judge (PDF). The program was based on reverse engineering techniques taught in US military schools (the SERE program — Survival, Evasion, Resistance, Escape) to train recruits to resist interrogation if captured by enemy forces.

These techniques were acknowledged to be illegal and, moreover, were intended to produce false confessions, but this did not prevent senior Bush officials from pushing for their implementation, and, in al-Rabiah’s case, they duly led to his conversion from an innocent man who refused to falsely confess to allegations produced by unreliable witnesses into a modern-day version of the victims of the Spanish Inquisition, the seventeenth century “witches” of Salem and elsewhere, the victims of Stalin’s show trials, or the captured US pilots on whom the North Koreans had practiced the techniques adopted by the SERE schools: a broken man prepared not only to falsely confess to any lies put before him, but also prepared to learn these confessions and repeat them as his masters saw fit.

As the ruling makes clear, between redactions, “The following day marked a turning point in al-Rabiah’s interrogations,” and “From that point forward, al-Rabiah confessed to the allegations that interrogators described to him.” Despite the extensive redactions, the following passage from the ruling makes clear the full horror of his confessions:

Al-Rabiah’s confessions all follow the same pattern: Interrogators first explain to al-Rabiah the “evidence” they have in their possession (and that, at the time, they likely believed to be true). Al-Rabiah then requests time to pray (or to think more about the evidence) before making a “full” confession. Finally, after a period of time, al-Rabiah provides a fill confession to the evidence through elaborate and incredible explanations that the interrogators themselves do not believe. This pattern began with his confession that he met with Osama bin Laden, continued with his confession that he undertook a leadership role in Tora Bora, and repeated itself multiple other times with respect to “evidence” that the Government has not even attempted to rely on as reliable or credible.

In the following pages of the ruling, which are again fill of redactions, it is nevertheless possible to glimpse the progress of this game that was not only grim and cynical, but also potentially deadly (because, as a prisoner put forward for a trial by Military Commission, it was always possible that the government would have pressed for the death sentence had al-Rabiah been convicted).

For page after page the distressing truth peeks out: al-Rabiah “did not know what to admit” when his interrogators explained that his “full confession did not incorporate a description concerning a suitcase full of money that he allegedly gave bin Laden”; they “began to question the truthfulness of his confessions almost immediately”; they “began ‘grilling’ al-Rabiah concerning [redacted]”; al-Rabiah “was interrogated [redacted] during which he made a full confession regarding his activities at Tora Bora”; interrogators “pressed for additional details concerning Tora Bora”; they “became increasingly convinced that his confessions [redacted]”; they “concluded in one interrogation report [redacted]”; “One week later, his interrogator concluded [redacted]”; “After several additional interrogation sessions, al-Rabiah’s interrogators concluded simply [redacted].”

Readers can fill in the gaps through the judge’s response to the redacted passages. “Incredibly,” she wrote, “these are the confessions that the Government has asked the Court to accept as truthful in this case.”

Al-Rabiah explains his cooperation with the interrogators; threats and punishment described

Judge Kollar-Kotelly then dismissed further allegations, which again, were mostly redacted but included the following ironic gem: “The Government has not even attempted to explain how someone with no known connection to al-Wafa [a Saudi charity regarded, during Guantánamo’s “witch-hunt” phase, with particular suspicion] and who had never even been to Afghanistan longer than a few weeks could ascend to such an honored position, and no credible explanation is contained in the record.”

She then moved on to al-Rabiah’s own explanations of how he came to make false confessions, noting that he had stated that, shortly after his arrival at Guantánamo, “a senior [redacted] interrogator came to me and said, ‘There is nothing against you. But there is no innocent person here. So, you should confess to something so you can be charged and sentenced and serve your sentence and then go back to your family and country, because you will not leave this place innocent.”

This is deeply disturbing, of course, as it indicates that at least one senior interrogator recognized that the Bush administration’s refusal to recognize that there were innocent men at Guantánamo — and it has been clear for many years that hundreds of innocent men were held, who had no connection whatsoever to any form of militancy, let alone terrorism — had set in motion a system in which, whether voluntarily or not, all the innocent men at Guantánamo were expected to make false confessions, either so that they could continue to be labeled as “enemy combatants” on release, to maintain the illusion that Guantánamo was full of “the worst of the worst,” or, as in al-Rabiah’s case, so that they could be tricked and transformed into terrorist sympathizers and facilitators.

For some (and it has been confirmed by a former interrogator that at least 100 prisoners in Guantánamo were subjected to SERE-derived “enhanced interrogation”), confessions clearly came easily, and without the use of abuse or torture, but for others, including al-Rabiah, “pressure” was involved. Judge Kollar-Kotelly drew on a declaration from March this year, in which he explained that his confessions arose out of “scenarios offered … by [his] interrogators … which [he] believed to be the story they wanted [him] to tell and which [he] felt pressured to adopt” (emphasis added). As he also explained:

[M]y interrogators told me they knew I had met with Osama bin Laden, that other detainees had said I met with Osama bin Laden, that there was nothing wrong with simply meeting Osama bin Laden, and that I should admit meeting him so I could be sent home … In about August 2004, shortly before my CSRT hearing [the tribunal at which al-Rabiah repeated his approved confessions in detail], my interrogators told me the CSRT was just a show that would allow the United States to “save face.” My interrogators told me no one leaves Guantánamo innocent, and told me I would be sent home to Kuwait if I “admitted” some of the false things I had said in my interrogations. The interrogators also told me that I would never go home again if I denied these things, because the United States government would never admit I had been wrongly held.

In a key passage, he spelled out what being “pressured” meant. As the judge explained, he stated that “he made his confessions to reduce the abuse meted out by his interrogators ‘to obtain confessions that suited what [they] thought they knew or what they wanted [him] to say.’ He maintained his confessions over time because ‘the interrogators would continue to abuse me anytime I attempted to repudiate any of these false allegations.’” As she also noted:

There is substantial evidence in the record supporting al-Rabiah’s claims. The record is replete with examples of al-Rabiah’s interrogators emphasizing a stark dichotomy — if he confessed to the allegations against him, his case would be turned over to [redacted] so that he could return to Kuwait; if he did not confess, he would not return to Kuwait, and his life would become increasingly miserable.

Through the veil of redactions, it is clear that al-Rabiah attempted, on more than one occasion, to withdraw his confessions, but that his interrogators threatened to withdraw something (food? comfort items?) as a result, and Judge Kollar-Kotelly also noted that punishment, as well as the threat of punishment, was meted out to him. “The record,” she wrote, “also supports al-Rabiah’s claims that he was punished for recanting.” Examples provided by the judge were redacted, but the following passage, in which she discussed further abuse as a result of the interrogators’ frustrations regarding al-Rabiah’s inability to invent a coherent false narrative, was not. She wrote:

The record contains evidence that al-Rabiah’s interrogators became increasingly frustrated because his confessions contained numerous inconsistencies or implausibilities. As a result, al-Rabiah’s interrogators began using abusive techniques that violated the Army Field Manual and the 1949 Geneva Convention Relative to the Treatment of Prisoners of War. The first of these techniques included threats of rendition to places where al-Rabiah would either be tortured and/or would never be found.

These threats were made on at least four occasions, and, as the judge explained, “were also reinforced by placing al-Rabiah into the frequent flier program,” discussed above. It is also apparent that the threats continued throughout this period, as the judge also noted that “al-Rabiah’s interrogators continued to threaten him [redacted].”

After making a point that, as explained in the Army Field Manual, “prohibited techniques [are] not necessary to gain the cooperation of interrogation sources,” and, in fact, that the use of these methods is likely to “yield unreliable results, may damage subsequent collection efforts, and can induce the source to say what he thinks the interrogator wants to hear,” Judge Kollar-Kotelly added that, “Underscoring the impropriety of these techniques is the fact that [redacted], al-Rabiah’s lead interrogator, was disciplined for making similar threats during the same period toward a Guantánamo detainee who was also one of the alleged eyewitnesses against al-Rabiah … for which he was disciplined” (the details, predictably, were redacted).

Judge Kollar-Kotelly’s devastating conclusions

Judge Kollar-Kotelly added, pointedly, “These abusive techniques did not result in any additional confessions from al-Rabiah, although he continued to parrot his previous confessions with varying degrees of consistency,” and then reached her devastating conclusion:

The Court agrees with the assessment of al-Rabiah’s interrogators, as well as al-Rabiah’s counsel in this case, that al-Rabiah’s confessions are not credible. Even beyond the countless inconsistencies associated with his confessions that interrogators identified throughout his years of detention, the confessions are also entirely incredible. The evidence in the record reflects that, in 2001, al-Rabiah was a 43 year old who was overweight, suffered from health problems, and had no known history of terrorist activities or links to terrorist activities. He had no military experience except for two weeks of compulsory basic training in Kuwait, after which he received a medical exemption. He had never traveled to Afghanistan prior to 2001. Given these facts, it defied logic that in October 2001, after completing a two-week leave form at Kuwait Airlines where he had worked for twenty years, al-Rabiah traveled to Tora Bora and began telling senior al-Qaeda leaders how they should organize their supplies in a six square mile mountain complex that he had never previously seen and that was occupied by people whom he had never met, while at the same time acting as a supply logistician and mediator of disputes that arose among various fighting factions.

It remained only for Judge Kollar-Kotelly to replay some of the more obvious discrepancies in al-Rabiah’s “confessions” to demolish the government’s claims that they should be accepted as “reliable and credible,” and to refute the government’s argument that, “even if al-Rabiah’s confessions in 2003 were the product of abuse or coercion … the taint … would have dissipated” by the time of his CSRT in 2004, when he provided the painstakingly detailed and superficially plausible false confession that was the only publicly available account of his activities until Judge Kollar-Kotelly’s ruling was released.

Taking exception to the government’s argument “for both factual and legal reasons,” the judge took particular note of the role played by al-Rabiah’s lead interrogator, “who extracted al-Rabiah’s confessions and punished his recantations,” noting that he “continued to make ‘appearances’ at al-Rabiah’s interrogations at least as late as [redacted] — after al-Rabiah’s testimony in his CSRT proceedings.” She also explained, “Such ‘appearances’ appear to have been terrifying events for al-Rabiah given the description included in a [redacted] interrogation report” (the details of which were, again, redacted).

On a legal basis, she dismissed the government’s argument by explaining that, although “it is certainly true in the criminal context that coerced confessions do not necessarily render subsequent confessions inadmissible because the coercion can be found to have dissipated,” there needs to be evidence of “a ‘clean break’ between the coercion and the later confessions,” which is simply not available in al-Rabiah’s case. “If anything,” she concluded, “the evidence suggests that there was not a ‘clean break’ between the coercion and his later statements because there is evidence that [redacted] continued to appear at al-Rabiah’s interrogation sessions through at least September 2004” (the date redacted in the paragraph above).

As a final stab at the government, she mentioned a statement made by al-Rabiah in May 2005, and submitted to his first annual Administrative Review Board (the military panels that reviewed the bases for prisoners’ ongoing detention), which had not surfaced until the Merits Hearing, in which al-Rabiah attempted to set the record straight, “recant[ing] all of his previous confessions with the sole exception of one admission that he saw [but did not meet] Osama bin Laden during his July 2001 trip to Afghanistan.”

After dealing with a few more ingenious but flawed claims by the government, it remained only for Judge Kollar-Kotelly to recap the whole sorry saga, and to deliver the final words to restore Fouad al-Rabiah’s liberty:

During the merits Hearing, the Government expressly relied on “Occam’s Razor,” a scientific and philosophic rule suggesting that the simplest of competing explanations is preferred to the more complex … The Government’s simple explanation for the evidence in this case is that al-Rabiah made confessions that the Court should accept as true. The simple response is that the Court does not accept confessions that even the Government’s own interrogators did not believe. The writ of habeas corpus shall issue.

Final words

Judge Kollar-Kotelly’s ruling will, hopefully, be recalled in years to come as one of the most significant examples of a judge attempting to redress some of the most egregious injustices perpetrated in Guantánamo’s long, dark history. The shocking sub-text to this story is that al-Rabiah is not the only prisoner to have been brutalized into making false confessions, and then being required to repeat them. Ahmed al-Darbi, a Saudi put forward for a trial by Military Commission, made similar claims in a statement posted here, and, as I mentioned above, it is also clear that SERE-derived “enhanced interrogation techniques” were applied to at least 100 prisoners in Guantánamo between 2002 and 2004, above and beyond those like Mohammed al-Qahtani and Mohamedou Ould Slahi, whose stories are well-known. Many of these men — all the Europeans, other Arabs who had the misfortune to speak good English or to have visited the United States — have been released, their false confessions (like those made by the “Tipton Three” after months of abuse, before their lawyers proved one of them was working in a shop in England when he was supposedly videotaped at a training camp) filed away, used to justify their lifelong label as “enemy combatants,” but not leading, as with Fouad al-Rabiah, to a court appearance where the supposed evidence will ever be tested.

Al-Rabiah was fortunate to meet a judge with an inquiring and diligent mind, and an acute awareness of the many problems with the gathering and interpretation of information at Guantánamo, but others have not yet had an opportunity to do the same, and although further habeas petitions are forthcoming, and others are scheduled to face either trials by Military Commission or federal court trials, where similar patterns of false allegations followed by torture and false confessions may be detected, it troubles me that the 50 or so prisoners identified by officials last week as being candidates for indefinite detention — described by the New York Times as those who “are a continuing danger to national security but who cannot be brought to trial for various reasons, like evidence tainted by harsh interrogations” — may also have been caught up in a cynical cycle of false allegations, torture and false confessions.

As David Cynamon, one of Fouad al-Rabiah’s attorneys, explained to me in an email exchange:

To date, the debate about torture in the US has been skewed by the fact that the admitted victims of torture are also admitted al-Qaeda leaders, like Khalid Sheikh Mohammed. This gives the Cheneys and Wall Street Journal types the argument that torture was justified to get valuable information from these hardened terrorists. I know this argument is wrong, but it’s being made, with some effect. But what happens when you declare the Geneva Conventions “quaint,” and lift all limits, is that pretty quickly the abusive interrogation techniques are not being limited to the KSMs but are being applied to innocent prisoners like Fouad al-Rabiah, who have no valuable intelligence because they have no connection with al-Qaeda or the Taliban. Instead, they are tortured in support of a cynical and misguided dictum that there can be no innocent men in Guantánamo.

It is hard to believe that the US could ever have sunk so low. And that the new Administration is keeping us down there. The Obama Department of Justice, with Attorney General Holder piously proclaiming that this Administration repudiates torture, and follows the rule of law, in fact is following the Bush playbook to the letter. In this case, the DoJ defended the abusive and coercive interrogation techniques used against Fouad. Thank God, though, that we have an independent judiciary. The importance of the writ of habeas corpus and independent judges has never been more clear.

Andy Worthington is the author of The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison (published by Pluto Press, distributed by Macmillan in the US, and available from Amazon — click on the following for the US and the UK). To receive new articles in your inbox, please subscribe to my RSS feed (and I can also be found on Facebook and Twitter). Also see my definitive Guantánamo prisoner list, published in March 2009, and if you appreciate my work, feel free to make a donation.

As published on the Huffington Post, CounterPunch, Antiwar.com and ZNet. Cross-posted on The Public Record, Common Dreams, AlterNet and Truthout. Also mentioned by Alan Colmes at Liberaland, Andrew Sullivan on The Atlantic (with an interesting follow-up here) and Scott Horton at Harper’s.

For a sequence of articles dealing with the Guantánamo habeas cases, see: Guantánamo and the Supreme Court: the most important habeas corpus case in modern history and Guantánamo and the Supreme Court: What Happened? (both December 2007), The Supreme Court’s Guantánamo ruling: what does it mean? (June 2008), Guantánamo as Alice in Wonderland (Uighurs’ first court victory, June 2008), What’s Happening with the Guantánamo cases? (July 2008), Government Says Six Years Is Not Long Enough To Prepare Evidence (September 2008), From Guantánamo to the United States: The Story of the Wrongly Imprisoned Uighurs (October 2008), Guantánamo Uyghurs’ resettlement prospects skewered by Justice Department lies (October 2008), Guilt By Torture: Binyam Mohamed’s Transatlantic Quest for Justice (November 2008), After 7 Years, Judge Orders Release of Guantánamo Kidnap Victims (November 2008), Is Robert Gates Guilty of Perjury in Guantánamo Torture Case? (December 2008), A New Year Message to Barack Obama: Free the Guantánamo Uighurs (January 2009), The Top Ten Judges of 2008 (January 2009), No End in Sight for the “Enemy Combatants” of Guantánamo (January 2009), Judge Orders Release of Guantánamo’s Forgotten Child (January 2009), How Cooking For The Taliban Gets You Life In Guantánamo (January 2009), Lies, Damned Lies and Statistics (February 2009), Bad News And Good News For The Guantánamo Uighurs (February 2009), The Nobodies Formerly Known As Enemy Combatants (March 2009), Farce at Guantánamo, as cleared prisoner’s habeas petition is denied (April 2009), Obama’s First 100 Days: A Start On Guantánamo, But Not Enough (May 2009), Judge Condemns “Mosaic” Of Guantánamo Intelligence, And Unreliable Witnesses (May 2009), Pain At Guantánamo And Paralysis In Government (May 2009), Guantánamo: A Prison Built On Lies (May 2009), Free The Guantánamo Uighurs! (May 2009), Guantánamo And The Courts (Part One): Exposing The Bush Administration’s Lies (July 2009), Obama’s Failure To Deliver Justice To The Last Tajik In Guantánamo (July 2009), Obama And The Deadline For Closing Guantánamo: It’s Worse Than You Think (July 2009), How Judge Huvelle Humiliated The Government In Guantánamo Case (Mohamed Jawad, July 2009), As Judge Orders Release Of Tortured Guantánamo Prisoner, Government Refuses To Concede Defeat (Mohamed Jawad, July 2009), Guantánamo As Hotel California: You Can Check Out Any Time You Like, But You Can Never Leave (August 2009), Judge Orders Release From Guantánamo Of Kuwaiti Charity Worker (August 2009), Guantánamo And The Courts (Part Two): Obama’s Shame (August 2009), Guantánamo And The Courts (Part Three): Obama’s Continuing Shame (August 2009), No Escape From Guantánamo: The Latest Habeas Rulings (September 2009), First Guantánamo Prisoner To Lose Habeas Hearing Appeals Ruling (September 2009).

Also see: Justice extends to Bagram, Guantánamo’s Dark Mirror (April 2009), Judge Rules That Afghan “Rendered” To Bagram In 2002 Has No Rights (July 2009), Bagram Isn’t The New Guantánamo, It’s The Old Guantánamo (August 2009), Obama Brings Guantánamo And Rendition To Bagram (And Not The Geneva Conventions) and Is Bagram Obama’s New Secret Prison? (both September 2009).

Declaration of Ahmed Al Darbi, July 1, 2009

Pursuant to 28 U.S.C. § 1746, I certify that the following is true and correct to the best of my knowledge:

INTRODUCTION

1. My name is Ahmed Mohammed Ahmed Al Darbi.

2. I am a Saudi national who has been imprisoned at the U.S. Naval Station at Guantánamo Bay, Cuba (“Guantánamo”) for nearly six years. The U.S. military has assigned me Internment Serial Number (“ISN”) 768 at Guantánamo.

3. In June 2002, I traveled by air from Dubai, United Arab Emirates to Baku, Azerbaijan. While I was at customs in the Baku airport, waiting to be processed for entry, I was taken into custody by local Azerbaijani authorities. I did not know why Azerbaijani authorities apprehended me and I had no reason to know that they would. I was held in Azerbaijani custody for about two months.

4. In August 2002, the Azerbaijani authorities turned me over to U.S. agents. These agents [REDACTED]. They then blindfolded me, wrapped their arms around my neck in a way that strangled me, and cursed at me. [REDACTED], and somebody else kept saying, “fuck you” in my ear. I was terrified and feared for my life, because I did not know who had seized me, which government’s custody I was in, or where they were taking me. They did not tell me where we were going.

5. I was eventually taken to a place that I now know was Bagram Air Force Base in Afghanistan (“Bagram”). I was imprisoned at Bagram for about eight months. At Bagram, my detainee number was 264.

6. In late March 2003, I was transferred to Guantánamo.

BAGRAM

Treatment and interrogations during the first two weeks at Bagram

7. During about the first two weeks at Bagram, I was kept in complete isolation, and I did not even know I was in Afghanistan.

8. U.S. agents began interrogating me on my second day at Bagram. These interrogations took place in a room different from the isolation cell where I was held the rest of the time.

9. While I was questioned, I was kept for many hours in painful positions. For example, I would be forced to kneel with my hands cuffed above my head, often through the night, so that I was not allowed to sleep. This position caused very sharp pain in my knee-caps. If my hands began to fall or I tried to stretch to relieve the pain in my back while I knelt, the interrogators kicked me in the back.

10. Sometimes I was also forced to lean against a wall with my forehead pressing against the wall and my hands shackled behind my back, but with my feet away from the wall. In this position, all my weight rested on my forehead. I had to hold this position for hours. This hurt my head and neck. It was impossible to sleep in this position.

11. I was often hooded during these interrogations. The hood they used had a sort of rope or drawstring that they would pull tight around my neck. The darkness, combined with little sleep, would leave me disoriented.

12. During these interrogations, they would ask me repeatedly about Osama Bin Laden and his whereabouts. Of course, I knew nothing about this.

13. When I was not being interrogated in an interrogation room, I was put in an isolation cell where the temperature was high and the light was kept brightly lit most of the time. Often they also would blast loud music into my cell.

14. During these first two weeks, I hardly slept at all. I was purposely kept awake much of the time, and it seemed that every time I started to fall asleep, they would hit me to keep me awake. Also, during that period, I was not allowed to pray.

15. I was not allowed to use a normal restroom during this time. Instead, [REDACTED]. The only thing that helped this problem was that I often did not eat much. I was not given much food at the time and the food they did give me was inedible, so I didn’t have very much in my stomach. Due to the constant strain and stress this situation placed on me, [REDACTED].

16. The U.S. military guards and interrogators also took many photographs of me that humiliated me. [REDACTED] and take off my hood so that I could see what was going on, and so that I would be recognizable. There would be several U.S. agents, male and female, standing around when these photographs were taken.

17. After approximately the first two weeks, I was taken out of isolation. I was moved to a cage attached to a holding pen for other prisoners. This was a small cage surrounded by fencing and razor wire. The cages doubled as a passageway for the guards between the general holding pens and a public area or walkway in front of the cages. From what I remember, there were six holding pens in total, and each one connected to a cage that was used to isolate and suspend detainees by the arms. There were signs outside the holding pens displaying the names New York, Pennsylvania and Nairobi, which I understood to be the sites of different terrorist attacks after one of the guards, in a state of agitation and rage, once shouted at me, “your brothers did this!” as he pushed me from behind.

18. I was hooded or goggled for much of this time. I recall that there was a whiteboard outside of the cage, where the numbers assigned to me and other detainees were recorded in red, green and blue. Next to the numbers were symbols indicating what techniques were to be used on us. Next to the whiteboard was another board, where they hung baseball bats, chains, cuffs, hoods, and other instruments guards would use on the prisoners at Bagram.

19. Much of the time I was in this cage, U.S. military personnel shackled my hands above my head to the upper part of the cage’s door, so that I would swing with the gate as it opened and shut. Sometimes, military personnel would cuff my hands to the gate outstretched in different directions so that my back would be twisted, almost horizontal. This was very painful. Frequently, U.S. personnel beat me while I was hanging in the cage.

20. Occasionally, the guards would unlock the cuffs and tell me I could sleep. To me it felt like they only allowed me to sleep once or twice a week, but I do not know for certain. I do know that I was very sleep-deprived at this time. After what felt like a short time of sleep to me, the guards would wake me abruptly by rushing in as a group, shouting loudly, and they would then hang me from the top of the cage’s gate by my wrists again.

21. I had to insist to be allowed to use the restroom. The guards and interrogators would not always release me, and I often could not relieve myself because of how long I had gone without relieving myself, which caused me sharp pains. When I was allowed to use the restroom, I had to remain completely shackled.

Interrogations during the next three months at Bagram

22. After the first two weeks, approximately, for about the next three months at Bagram, the interrogations that began on my second day at Bagram continued and became more abusive. U.S. personnel would play blaring music, shine bright lights in my eyes, kick me, and drag me around the room. Some kneed me in the chest, stomach and genitals and threw me against the wall. I was often thrown to the ground and then pulled around the room by my handcuffs.

23. Other times a sand bag or hood was placed over my head and tightened around my neck, and then they would grab my head and shake it violently while swearing at me and they would also pour water over my head while my head was covered. Also, I was sometimes forced to hold a chair over my head for a long period of time during interrogations.

24. On several occasions, the U.S. agents sprayed water on my face and then blew a powder that I think was pepper onto me. The water absorbed the powder and it burned my skin and made my nose run. At other times hairs were ripped from my chest and my head by the U.S. agents. Other times agents blew cigarette smoke in my face and they would also throw their cigarette butts at me along with the full contents of the trash can.

25. Sometimes, during interrogations, U.S. personnel would throw me to the ground and make me lie on my stomach, with my arms outstretched above my head. I remember that a U.S. military guard or interrogator by the name of Damien Corsetti was often present during my interrogations. Corsetti was a big, heavy man and he had a tattoo of the Virgin Mary on his left arm. He sometimes stepped on my handcuffs while I was lying on the floor with my arms above my head. This caused my handcuffs to tighten painfully around my wrists. These particular handcuffs were not of the “double-lock” sort that could not be tightened past a given point.

26. There are a few incidents that occurred only once but that I remember very well because they were so shocking to me. During one interrogation, a U.S. agent that I recall was Corsetti kneeled on my chest. Corsetti was a big, heavy man. He put his knees on my chest and pressed down on me with all his weight. I couldn’t breathe, and he stayed on me for so long that I thought I was going to die. Another guard or interrogator pulled him off me because I stopped breathing.

27. Another time, about a month after my transfer to Bagram, I was suspended in the cage, and a guard or interrogator called me [REDACTED]. There was a U.S. military guard in the cage who pressed his finger hard into the soft flesh under my jaw. I started to choke, and afterwards the area swelled badly.

28. There are other things that happened to me during these interrogations that I do not wish to describe in a document that might become public. I do not want my family to know the details about what happened to me [REDACTED].

29. [REDACTED]. The U.S. agents also threatened to send me to Israeli, Egyptian, or Afghan jails for torture and rape.

30. [REDACTED].

31. [REDACTED].

32. [REDACTED].

33. [REDACTED].

34. [REDACTED].

35. These are only some of the humiliating things that were done to me. I was frightened, and there were times I wished I would die. I felt that anything could happen to me and that everything was out of control. During this time the interrogators took my “confessions,” pressuring me into making false statements about myself and others.

36. The military guards and interrogators would show me pictures of people, and told me I must identify them and confess things about them. After they tortured me, I would say what they wanted me to say. I was fed detailed statements and names of individuals to whom I was to attribute certain activities.

37. The military guards and interrogators told me that I had to repeat these same statements to other interrogators, and threatened to continue abusing me — or to make it even worse — if I did not cooperate. I found out that these “other interrogators” were FBI interrogators, because they identified themselves. After I had been interrogated and tortured by the military guards and interrogators, they would let the FBI interrogators into the room. The FBI interrogators would interrogate me without the military guards and interrogators. They would ask for the same details that I had discussed with the military interrogators and guards. I tried to repeat the same statements, because I was afraid of the threats made by the military guards and interrogators. I never signed anything at Bagram.

38. I remember that I usually spoke to the same three FBI interrogators. They identified themselves as “Tom,” “Jerry,” and there was third one whose name I cannot remember, but those were not their real names anyway. Tom was tall, Jerry was short; both were young, white males.

39. I do not think the FBI interrogators were present during the interrogations by the U.S. military interrogators or guards, or when the torture was happening. Also, I do not think the military guards and interrogators were present during the interrogations by the FBI. But the military interrogators continued to abuse me during the time I was being interrogated by the FBI — even though I did what the military guards and interrogators told me to do and tried to repeat statements the military guards and interrogators had fed me to the FBI.

40. Eventually, the FBI interrogators stopped questioning me. I was then moved to the communal holding pen with the other prisoners.

Hard labor at Bagram

41. I also was forced to perform degrading, hard labor at Bagram, in full view of the other detainees and the guards.

42. Many mornings I had to replace the full port-a-potty buckets with empty buckets. I had to do this in front of everybody. [REDACTED]. Once, when I complained that I could not change the port-a-potty while shackled, a guard punched me in the side, and kept hitting me even after I was on the floor. Other U.S. military personnel came over and one of them choked me while the other punched me in the kidneys and ribs.

43. Often I was forced to sweep the floor in the public, walkway area. Once, I was forced to scrub the entire floor using only a toothbrush [REDACTED].

44. I was also forced to carry boxes filled with water bottles while my hands were cuffed together. I could carry two boxes but the guards often tried to make me carry as many as four, and would hit me when I struggled. This labor caused me sciatic pain and back pain for several years.

Witnessing the abuse of Dilawar

45. When I was in the communal holding pen, an Afghan prisoner by the name of Dilawar was shackled in a hanging position in the cage adjacent to my pen. I remember that this was the same cage where I had been suspended.

46. I recall that Dilawar had been hanging hooded for about two days and was screaming and moaning. A U.S. guard told Dilawar that he would release him if he would clean the floor. I spoke a little Pashto and some English, so the guard ordered me to translate this instruction for Dilawar. I was then ordered to clean the floor with him. After we were done, the guard chained Dilawar to the top of the cage once more. Dilawar started screaming again.

47. Then the next shift of guards came on. They ordered Dilawar to stop screaming. They then brought a shorter chain and used it to suspend him wholly off the floor by his wrists. Dilawar moved his body only slightly and that is when the guards began beating him.

48. At first two guards were beating Dilawar, kneeing him in the legs and punching him in the chest as he was suspended in the cage. They then moved him to the walkway area, outside the cage, and several guards beat him. By this point, Dilawar had stopped moving or crying. I witnessed this entire event.

49. Dilawar was then moved somewhere out of my sight. Days later, I heard Dilawar had died. This made me fearful that I would meet the same fate.

GUANTÁNAMO

50. On or about March 23, 2003, I was moved to Guantánamo. Once there, I was kept in solitary confinement for two months. I was held in Camp Delta, Camp 2, Oscar Block.

51. Painfully loud music was often played in my cell. Sometimes they played a repetitive song composed of what sounded like a cat’s meow. It was very hard to sleep because the cells were chilled to extremely cold temperatures, and there was extremely bright lighting and also the loud music.

52. Sometimes, U.S. personnel would throw my Koran to the ground, and they would scatter gruesome photos of bloodied and mutilated bodies on the ground.

Interrogations at Guantánamo

53. I remember that I was interrogated every day for what seemed like five to six hours, and sometimes also at night, from the middle of the night until dawn. The interrogation rooms stank of urine.

54. During the interrogations, they did not let me go to the restroom to relieve myself, [REDACTED].

55. The interrogations at Guantánamo were conducted mostly by the FBI interrogators. Tom, the FBI interrogator who had questioned me at Bagram, was the first who interrogated me in Guantánamo, as I recall. I remember that he told me that if I did not stick with my Bagram confessions, I would not “escape Bagram.” I was told that if I did not cooperate, I would be sentenced to death and executed, or that I would be tortured, raped, and sexually abused in either Camp X-Ray at Guantánamo, or sent back to Bagram or to other countries.

56. Shortly after I arrived at Guantánamo, Tom asked me to sign a written statement but I refused to sign the statement.

57. In or about April or May 2003, while I was still in solitary confinement, the FBI interrogators again told me to sign a written statement. Tom told me that prison authorities could send me to Camp X-Ray where horrible things could happen to me or send me to another country, such as Egypt or Israel, where people would make me sign the statement. I was scared that the abuse I suffered at Bagram would be renewed at Guantánamo or elsewhere, or that I might be sent back to Bagram.

58. The interrogators at Bagram and Guantánamo fed me particular details in my statements and forced me to identify individuals based on photographs or to ascribe to those individuals certain conduct. Although I never signed any written statements, I made numerous false statements to the interrogators at Bagram and Guantánamo because of the abuse and coercion I suffered.

CONTINUING EFFECTS OF TORTURE

59. To this day, I frequently feel anxious, depressed and worried. I feel not quite right, not quite like myself. I have recurring nightmares of the U.S. guards and interrogators from Bagram chasing me. Whenever anybody wakes me, I wake up screaming in shock and panic. I have headaches. I feel that I am emotionally unstable, and I know that I go through personality changes and mood swings, which were not typical for me before I came into U.S. custody. Sometimes I lose physical control.

60. I feel that I need mental health counseling, but I do not feel comfortable talking with the mental health or medical personnel here at Guantánamo. They have been complicit in the torture: I have seen and heard that they put patients in garments that leave them practically nude, that they forcibly medicate patients, and that they prescribe addictive drugs to patients so that interrogators can manipulate those men during interrogations. I would prefer an independent mental health expert identified by my attorney and defense counsel, Ramzi Kassem.

RETURNING TO SAUDI ARABIA

61. If I am released, I would like to go home to Saudi Arabia and move on with my life. I want to put this chapter behind me, find work, and take care of my wife and two children. My daughter is nine years old now and my son is seven. I have never met my son. I have already missed many years of their lives. Also, my parents are elderly and I have heard that my father is sick. I would like to join my brothers and sisters in taking care of them in their old days.

62. Of course, I am willing to participate in the Saudi reintegration program for repatriated detainees and abide by its rules and conditions upon my return home.

I declare under penalty of perjury under the laws of the United States of America that the foregoing is true and correct.

Guantánamo Bay, Cuba
Executed on this 1 day of July, 2009

(signed)
Ahmed Mohammed Ahmed Al Darbi

Andy Worthington is the author of The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison (published by Pluto Press, distributed by Macmillan in the US, and available from Amazon — click on the following for the US and the UK). To receive new articles in your inbox, please subscribe to my RSS feed (and I can also be found on Facebook and Twitter). Also see my definitive Guantánamo prisoner list, published in March 2009, and if you appreciate my work, feel free to make a donation.

For a sequence of articles dealing with the use of torture by the CIA, on “high-value detainees,” and in the secret prisons, see: Guantánamo’s tangled web: Khalid Sheikh Mohammed, Majid Khan, dubious US convictions, and a dying man (July 2007), Jane Mayer on the CIA’s “black sites,” condemnation by the Red Cross, and Guantánamo’s “high-value” detainees (including Khalid Sheikh Mohammed) (August 2007), Waterboarding: two questions for Michael Hayden about three “high-value” detainees now in Guantánamo (February 2008), Six in Guantánamo Charged with 9/11 Murders: Why Now? And What About the Torture? (February 2008), The Insignificance and Insanity of Abu Zubaydah: Ex-Guantánamo Prisoner Confirms FBI’s Doubts (April 2008), Guantánamo Trials: Another Torture Victim Charged (Abdul Rahim al-Nashiri, July 2008), Secret Prison on Diego Garcia Confirmed: Six “High-Value” Guantánamo Prisoners Held, Plus “Ghost Prisoner” Mustafa Setmariam Nasar (August 2008), Will the Bush administration be held accountable for war crimes? (December 2008), The Ten Lies of Dick Cheney (Part One) and The Ten Lies of Dick Cheney (Part Two) (December 2008), Prosecuting the Bush Administration’s Torturers (March 2009), Abu Zubaydah: The Futility Of Torture and A Trail of Broken Lives (March 2009), Ten Terrible Truths About The CIA Torture Memos (Part One), Ten Terrible Truths About The CIA Torture Memos (Part Two), 9/11 Commission Director Philip Zelikow Condemns Bush Torture Program, Who Authorized The Torture of Abu Zubaydah?, CIA Torture Began In Afghanistan 8 Months before DoJ Approval, Even In Cheney’s Bleak World, The Al-Qaeda-Iraq Torture Story Is A New Low (all April 2009), Ibn al-Shaykh al-Libi Has Died In A Libyan Prison , Dick Cheney And The Death Of Ibn al-Shaykh al-Libi, The “Suicide” Of Ibn al-Shaykh al-Libi: Why The Media Silence?, Two Experts Cast Doubt On Ibn al-Shaykh al-Libi’s “Suicide”, Lawrence Wilkerson Nails Cheney On Use Of Torture To Invade Iraq, In the Guardian: Death in Libya, betrayal by the West (in the Guardian here), Lawrence Wilkerson Nails Cheney’s Iraq Lies Again (And Rumsfeld And The CIA) (all May 2009) and WORLD EXCLUSIVE: New Revelations About The Torture Of Ibn al-Shaykh al-Libi (June 2009). Also see the extensive archive of articles about the Military Commissions.

For other stories discussing the use of torture in secret prisons, see: An unreported story from Guantánamo: the tale of Sanad al-Kazimi (August 2007), Rendered to Egypt for torture, Mohammed Saad Iqbal Madni is released from Guantánamo (September 2008), A History of Music Torture in the “War on Terror” (December 2008), Seven Years of Torture: Binyam Mohamed Tells His Story (March 2009), and also see the extensive Binyam Mohamed archive. And for other stories discussing torture at Guantánamo and/or in “conventional” US prisons in Afghanistan, see: The testimony of Guantánamo detainee Omar Deghayes: includes allegations of previously unreported murders in the US prison at Bagram airbase (August 2007), Guantánamo Transcripts: “Ghost” Prisoners Speak After Five And A Half Years, And “9/11 hijacker” Recants His Tortured Confession (September 2007), The Trials of Omar Khadr, Guantánamo’s “child soldier” (November 2007), Former US interrogator Damien Corsetti recalls the torture of prisoners in Bagram and Abu Ghraib (December 2007), Guantánamo’s shambolic trials (February 2008), Torture allegations dog Guantánamo trials (March 2008), Sami al-Haj: the banned torture pictures of a journalist in Guantánamo (April 2008), Former Guantánamo Prosecutor Condemns “Chaotic” Trials in Case of Teenage Torture Victim (Lt. Col. Darrel Vandeveld on Mohamed Jawad, January 2009), Judge Orders Release of Guantánamo’s Forgotten Child (Mohammed El-Gharani, January 2009), Bush Era Ends With Guantánamo Trial Chief’s Torture Confession (Susan Crawford on Mohammed al-Qahtani, January 2009), Forgotten in Guantánamo: British Resident Shaker Aamer (March 2009), A Child At Guantánamo: The Unending Torment of Mohamed Jawad (June 2009) and the extensive archive of articles about the Military Commissions.