The existence of the prisons was first revealed in the Washington Post on November 2, 2005, although the Post refrained from “publishing the names of the Eastern European countries involved in the covert program, at the request of senior US officials.” However, on November 6, 2005, Human Rights Watch identified the countries as Poland and Romania, and stated that it had seen “flight records showing that a Boeing 737, registration number N313P — a plane that the CIA used to move several prisoners to and from Europe, Afghanistan, and the Middle East in 2003 and 2004 — landed in Poland and Romania on direct flights from Afghanistan on two occasions in 2003 and 2004.”

Although the Polish and Romanian governments denied the claims, Swiss Senator Dick Marty, a Rapporteur for the Council of Europe, concluded in a report in June 2007 (PDF), based on two years’ research and interviews with over 30 current and former members of the intelligence services in the United States and Europe, that he had enough “evidence to state that secret detention facilities run by the CIA did exist in Europe from 2003 to 2005, in particular in Poland and Romania.” Marty also identified both sites, noting that the flights to Romania flew into the Mihail Kogalniceanu military airfield, and also explained how the flights were disguised using fake flight plans.

In September 2008, a Polish intelligence official confirmed that between 2002 and 2005 the CIA had held terror suspects inside a military intelligence training base in Stare Kiejkuty in north eastern Poland. He said that only the CIA had access to the prison, and that, although Prime Minister Leszek Miller and President Aleksander Kwasniewski knew about it, “it was unlikely either man knew if the prisoners were being tortured because the Poles had no control over the Americans’ activities.”

It was not until March 23, 2009, however, that the first details of specific flights into Szymany were officially confirmed in Poland, when the Polish Air Navigation Service Agency released information about a Lockheed L100-30 Hercules, registration number N8213G, which had flown in on February 4, 2003. This was followed up on September 16 with far more incriminating records, demonstrating that a notorious “torture jet,” a Gulfstream V, registration number N379P, had flown into Szymany on six occasions between February 8 and September 22, 2003 (see here and here), and on June 2 this year, a further release identified a Gulfstream IV, registration number N63MU, which had flown in on July 28, 2005.

Friday’s revelations by the Polish Border Guard Office are, however, even more significant, firstly because they include, for the first time, confirmation that N63MU flew into Poland on December 5, 2002, and secondly, because they provide details of the number of passengers on seven of the flights, as follows:

December 5, 2002: 8 passengers delivered
February 8, 2003: 7 passengers delivered; 4 others flown to an unknown destination
March 7, 2003: 2 passengers delivered
March 25, 2003: 1 passenger delivered
May 6, 2003: 1 passenger delivered
July 30, 2003: 1 passenger delivered
September 22, 2003: 0 passengers delivered; 5 flown to Romania

Who are the “high-value detainees” held in Poland?

In identifying these 20 passengers, the documents provide more questions than answers, as it is not known how many of them were prisoners, and how many were US government operatives accompanying them.

However, what can be stated with certainty is that three of the men who arrived on December 5, 2002 were the “high-value detainees” Abu Zubaydah, Abd al-Rahim al-Nashiri and Ramzi bin al-Shibh, who had all been held previously in a secret CIA prison in Thailand.

In the CIA Inspector General’s Report on “Counterterrorism Detention and Interrogation Activities (September 2001-October 2003),” published in May 2004, but only made publicly available last August (PDF), it was stated that the “enhanced interrogation of al-Nashiri continued through 4 December 2002” and that, “after being moved, al-Nashiri was thought to have been withholding information”, indicating that it was at this time that he was rendered to Poland.

Moreover, in research for a “Joint Study on Global Practices in Relation to Secret Detention in the Context of Counter-Terrorism,” published by the United Nations in February this year (PDF, or see my cross-post here), an analyst

identified a flight from Bangkok to Szymany, Poland, on 5 December 2002 (stopping at Dubai) … though it was disguised under multiple layers of secrecy, including charter and sub-contracting arrangements that would avoid there being any discernible “fingerprints” of a United States Government operation, as well as the filing of “dummy” flight plans.

This, clearly, is the flight identified in the newly released documents as having flown into Poland via Dubai.

In addition, according to information provided to ABC News by “[c]urrent and former CIA officers” in December 2005, seven other “high-value detainees,” as well as Zubaydah, al-Nashiri and bin al-Shibh, were held in Poland, while an eleventh, Hambali, was held elsewhere (possibly on the British island of Diego Garcia, in the Indian Ocean, which is leased to the US). ABC News identified these men as Khalid Sheikh Mohammed, Waleed bin Attash, Ibn al-Shaykh al-Libi, Abdul Rahim al-Sharqawi, Mohammed Omar Abdel-Rahman, Hassan Ghul and Ahmed Khalfan Ghailani.

Of these seven, Hassan Ghul (whose whereabouts are still unknown, although he was reportedly held in a Pakistani prison in 2006) and Ahmed Khalfan Ghailani (who was one of 14 “high-value detainees” transferred to Guantánamo in September 2006) were seized in 2004, outside of the period from December 2002 to September 2003 covered by the documents, but the other five may all have been held in Poland at this time.

In April 2009, Der Spiegel reported that Khalid Sheikh Mohammed (another of the 14 HVDs, and the alleged mastermind of the 9/11 attacks) was flown to Szymany on March 7, 2003, and if this is the case (and the date, noticeably, corresponds with one of the dates in the newly released documents), then it is possible that Mustafa al-Hawsawi, who was seized with him on March 1, 2003 (and who was also transferred to Guantánamo in September 2006), was the other passenger who arrived with him on that date — although it is also, of course, possible that the second passenger was an interrogator or a psychologist.

As for the others identified by ABC News, Waleed bin Attash (another of the 14 HVDs), seized in Karachi, Pakistan on April 29, 2003, could be the passenger delivered on May 6, and Mohamed Omar Abdel-Rahman, one of the sons of Omar Abdel-Rahman, the “Blind Sheikh,” imprisoned in the US, could have been on any of the flights. Seized in Quetta in February 2003, his detention has never been officially acknowledged by the US authorities, and his current whereabouts are unknown.

More contentious are the claims that Ibn al-Shaykh al-Libi and Abdul Rahim al-Sharqawi were held in Poland. Al-Libi, the emir of the Khaldan training camp in Afghanistan, which was closed down by the Taliban in 2000 after he refused to cede control of it to Osama bin Laden, was, notoriously, rendered by the CIA to Egypt soon after his capture in Afghanistan in December 2001, where, under torture, he came up with the false allegation that Saddam Hussein was working on a chemical weapons program with al-Qaeda, which was used to justify the invasion of Iraq in March 2003.

According to an account by the journalist Stephen Grey, al-Libi was rendered back to Afghanistan in November 2003, and according to another account, by a Libyan who talked to al-Libi in a prison in Tripoli before his suspicious death last May, he was rendered from Egypt to prisons in Mauritania, Morocco and Jordan, before his return to Afghanistan, where he was held in three separate prisons run by, or under the control of the CIA, before his eventual return to Libya (possibly in 2006). As a result, although it’s possible that he was also held in Poland for a while, it is by no means certain.

As for al-Sharqawi (also identified as Sharqwi Abdu Ali al-Hajj or Abdu Ali Sharqawi), the available reports suggest that, after he was seized in a house raid in Pakistan in February 2002, he was rendered to Jordan, where he was held for nearly two years — and tortured on behalf of the CIA — before being transferred to the CIA’s “Dark Prison” near Kabul, and then, via Bagram, to Guantánamo, where he arrived in September 2004. As with al-Libi, however, it is possible that at some point he was transferred to Poland.

A program still shrouded in secrecy

Given the intense secrecy that still surrounds the “high-value detainee” program, all that we can state with certainty is that, in May 2005, Assistant Attorney General Stephen G. Bradbury of the Office of Legal Counsel stated in a memo (updating the notorious “torture memos” of August 1, 2002, by John Yoo and Jay S. Bybee) that the CIA had, by that point, “taken custody of 94 prisoners [redacted] and ha[d] employed enhanced techniques to varying degrees in the interrogations of 28 of these detainees.” These figures do not include prisoners rendered to prisons in other countries that were not directly under CIA control.

As these are essentially the only details about the program’s scope that have ever been made publicly available, it is impossible to state with any certainty how many of these 94 prisoners were held in Poland. However, research undertaken for the UN’s secret detention report indicated that the majority of the 94 were probably held in secret prisons in Afghanistan, and the figure of ten men in Poland that was cited by ABC News is close to the figure quoted by Dick Marty, who noted that “a single CIA source told us that there were ‘up to a dozen’ high-value detainees in Poland in 2005, but we were unable to confirm this number.” If this is the case, then the 20 passengers referred to in the newly released documents may include just eight prisoners, with two more — Hassan Ghul and Ahmed Khalfan Ghailani — arriving in 2004, and the rest being interrogators and psychologists.

One more question, however, concerns the origin of one of the flights. Although the first flight came from Bangkok via Dubai, and the rest appear to have flown directly from Kabul, Afghanistan, the flight on February 8, 2003, which contained seven passengers, and left the next day with four passengers (again, perhaps US personnel) arrived from Rabat, Morocco. Given that Morocco was one of a handful of countries (along with Jordan, Egypt and Syria) that were used either as proxy torture prisons or in order to “disappear” prisoners entirely, it is possible that the flight picked up three prisoners in Morocco, and flew them on to Poland.

If this is the case, then three possible candidates are Abu Zubair al-Haili, a Saudi seized in Morocco in June 2002, who was known as “the Bear,” because of his size, and who was reported to be “one of the top 25 al-Qaeda leaders,” and to have had “a very close relationship to Abu Zubaydah,” plus two other Saudis seized with him. The whereabouts of all three men have never been explained by either the US or the Moroccan authorities, although in September 2002 the Independent reported that al-Haili was “in US custody.”

Romania’s role in the CIA’s secret prison program

The final piece of the jigsaw revealed by the new Polish documents concerns Romania, as it seems clear that, on September 22, 2003, five prisoners were taken from the Polish prison to what may, at the time, have been a new project in Romania. In his report for the Council of Europe (PDF), Dick Marty stated:

For reasons of both security and capacity, the CIA determined that the Polish strand of the HVD program should remain limited in size. Thus a “second European site” was sought to which the CIA could transfer its detainees with “no major logistical overhaul”. Romania, used extensively by United States forces during Operation Iraqi Freedom in early 2003, had distinct benefits in this regard: as a member of the CIA’s Counterterrorist Centre remarked about the location of the proposed detention facility, “our guys were familiar with the area.”

Marty added:

Romania was developed into a site to which more detainees were transferred only as the HVD program expanded. I understand that the Romanian “black site” was incorporated into the program in 2003, attained its greatest significance in 2004 and operated until the second half of 2005. The detainees who were held in Romania belonged to a category of HVDs whose intelligence value had been assessed as lower but in respect of whom the Agency still considered it worthwhile pursuing further investigations.

While this avenue remains to be explored, the UN secret detention report suggested that three of the men held in Romania may have been the Yemenis Salah Nasser Salim Ali (seized in Indonesia in August 2003), Mohammed Farag Ahmad Bashmilah (seized in Jordan in October 2003) and Mohammed al-Asad (seized in Tanzania in December 2003), who, after being held in secret prisons in Afghanistan, were transferred in April 2004 to “an unknown, modern facility apparently run by United States officials, which was carefully designed to induce maximum disorientation, dependence and stress in the detainees … Research into flight durations and the observations of Mr. al-Asad, Mr. Ali, and Mr. Bashmilah suggest that the facility was likely located in Eastern Europe.”

All three were eventually transferred to Yemeni custody in May 2005, but they were clearly more fortunate than the other men rendered to Romania, whose stories have never emerged, and are as unknown as those of the five men transferred from Poland to Romania on September 22, 2003, whose existence has just been revealed.

In conclusion, while the release of these documents provides only a tantalizing glimpse into a program that is still shrouded in secrecy, it also provides some much needed information to be used in an attempt to compel the Polish government, the Romanian government, and, most of all, the US government, to stop pretending either that these prisons did not exist, or that “we need to look forward as opposed to looking backwards,” and to come clean about both the prisons and the men held there.

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) and of two other books: Stonehenge: Celebration and Subversion and The Battle of the Beanfield. 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 July 2010, details about the new documentary film, “Outside the Law: Stories from Guantánamo” (co-directed by Polly Nash and Andy Worthington, currently on tour in the UK, and available on DVD here), and my definitive Guantánamo habeas list, 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), UN Secret Detention Report Asks, “Where Are The CIA Ghost Prisoners?” (January 2010), Binyam Mohamed: Evidence of Torture by US Agents Revealed in UK (February 2010), Torture Whitewash: How “Professional Misconduct” Became “Poor Judgment” in the OPR Report (February 2010), Judges Restore Damning Passage on MI5 to the Binyam Mohamed Torture Ruling (February 2010), What Torture Is, and Why It’s Illegal and Not “Poor Judgment” (March 2010), Abu Zubaydah’s Torture Diary (March 2010), Seven Years of War in Iraq: Still Based on Cheney’s Torture and Lies (March 2010), Protests worldwide on Aafia Siddiqui Day, Sunday March 28, 2010 (March 2010), Abu Zubaydah: Tortured for Nothing (April 2010), Mohamedou Ould Salahi: How a Judge Demolished the US Government’s Al-Qaeda Claims (April 2010), Judge Rules Yemeni’s Detention at Guantánamo Based Solely on Torture (April 2010), How Binyam Mohammed’s Torture Was Revealed in a US Court (May 2010), What is Obama Doing at Bagram? (Part One): Torture and the “Black Prison” (June 2010), New Report Reveals How Bush Torture Program Involved Human Experimentation (June 2010), UN Secret Detention Report (Part One): The CIA’s “High-Value Detainee” Program and Secret Prisons, UN Secret Detention Report (Part Two): CIA Prisons in Afghanistan and Iraq, UN Secret Detention Report (Part Three): Proxy Detention, Other Countries’ Complicity, and Obama’s Record (all June 2010), Abu Zubaydah and the Case Against Torture Architect James Mitchell (June 2010), The Torture of Abu Zubaydah: The Complaint Filed Against James Mitchell for Ethical Violations (June 2010), Calling for US Accountability on the International Day in Support of Victims of Torture (June 2010), How Jay Bybee Has Approved the Prosecution of CIA Operatives for Torture (July 2010), In Abu Zubaydah’s Case, Court Relies on Propaganda and Lies (July 2010). Also see the extensive archive of articles about the Military Commissions.

With this in mind, it is distressing to note that, last month, in the case of Sufyian Barhoumi, an Algerian seized with Zubaydah, who lost his habeas corpus petition last September, the Court of Appeals in Washington D.C. drew on discredited information about Zubaydah to overstate his importance, and to justify Barhoumi’s ongoing detention. The Circuit Court also drew on the diary of a previously unknown associate of Zubaydah’s to present another view of Zubaydah — as the leader of a militia allied with al-Qaeda — to justify Barhoumi’s detention, and, by extension, that of Zubaydah himself, even though there are doubts about the government’s interpretation of the diary, and the whereabouts of the diary’s author are unknown.

On June 22, when a panel of judges led by Judge David S. Tatel upheld Barhoumi’s detention, the ruling was superficially unsurprising. Barhoumi was not only seized in the house raid in Faisalabad, Pakistan on March 28, 2002, that led to the capture Abu Zubaydah, along with other alleged terror suspects, but he had also conceded, in publicly available documents from Guantánamo, that he had attended military training camps in Afghanistan.

This, on its own, may not have been sufficient for Barhoumi’s detention to be upheld, but last September, when his habeas petition was denied, Judge Rosemary Collyer provided another reason. Although she noted that Barhoumi “said that he is not now and has never been a member of al-Qaeda,” and added, “I have no reason not to believe that,” she nevertheless concluded that “he was with an associated force that was engaged in hostilities against the United States or its coalition partners and therefore was properly detained.”

At the time, Judge Collyer’s unclassified opinion was not made publicly available (and has still not been made available), and the quotes above are from the court transcript that was eventually unearthed by researchers at ProPublica (PDF). It was not, therefore, until the Circuit Court upheld his detention last month (PDF) that the details of this “associated force” were revealed as a militia that was allegedly maintained by Abu Zubaydah, and it was also revealed that the Circuit Court was relying on a long-discredited opinion of Zubaydah as the leader of a training camp in Afghanistan and an associate of Osama bin Laden.

How the case against Abu Zubaydah collapsed

What is troubling about this is the fact that, since Zubaydah’s capture, when Donald Rumsfeld described it as “well established” that he was “a close associate” of Osama bin Laden, “and if not the number two, very close to the number two person in the organization”), the government has steadily backed away from these claims, as accounts have emerged that thoroughly discredit the allegations.

These include devastating statements by Dan Coleman, the FBI’s senior expert on al-Qaeda. Coleman and his FBI colleagues had access to Zubaydah’s diaries, in which they found entries in the voices of three people — a boy, a young man and a middle-aged alter ego — which recorded in numbing detail, over the course of ten years, “what people ate, or wore, or trifling things they said,” and Coleman’s conclusion, which he told his superiors, was, “This guy is insane, certifiable, split personality.”

That was reported in 2006, and in December 2007, Coleman followed up, describing Zubaydah as a “safehouse keeper” who “claimed to know more about al-Qaeda and its inner workings than he really did,” and explaining how he and others at the FBI had concluded not only that he had severe mental problems — particularly because of a head injury that he had suffered in 1992 — but also that this explained why he was regarded with suspicion by the al-Qaeda leadership. “They all knew he was crazy, and they knew he was always on the damn phone,” Coleman said. “You think they’re going to tell him anything?”

This analysis was, essentially, reinforced last March by a Justice Department official who spoke anonymously to the Washington Post. As I reported at the time:

[Abu Zubaydah] “was not even an official member of al-Qaeda,” and was, instead, “a “kind of travel agent” for would-be jihadists. A former Justice Department official, who knows his case, explained, “He was the above-ground support. He was the guy keeping the safe house, and that’s not someone who gets to know the details of the plans. To make him the mastermind of anything is ridiculous.” What happened, it transpired, was that “because his name often turned up in intelligence traffic linked to al-Qaeda transactions,” some within the intelligence community presumed that he was a significant figure, whereas the truth was that, although committed to the idea of jihad, he did not share Osama bin Laden’s aims, and “regarded the United States as an enemy principally because of its support of Israel.” The officials explained that he “had strained and limited relations with bin Laden and only vague knowledge before the Sept. 11 attacks that something was brewing.”

The Circuit Court’s reliance on discredited intelligence

Alarmingly, despite these concessions on the government’s part, both the District Court and the Circuit Court drew on another source in Barhoumi’s habeas petition in an attempt to demonstrate that Zubaydah was “the person in charge” of the Khaldan training camp, and that he was “an associate of [Osama bin Laden]” who “coordinates and cooperates with [bin Laden] in the conduct of training and trainee movements between [redacted] camps and al-Qaeda camps.”

As the judges explained, the source of this information, which also fooled the authors of the 9/11 Commission Report, who referred to “Abu Zubaydah’s Khaldan Camp” (PDF, p. 175), was Ahmed Ressam, the failed “Millennium Bomber” who is currently serving a 22-year sentence in the US. The problem with Ressam’s evidence is that, although he initially cooperated with the authorities in exchange for a reduced sentence, and provided information about dozens of alleged terrorist suspects, including Zubaydah, he then stopped cooperating and withdrew his statements. As a result, numerous cases involving Ressam’s statements have collapsed — including that of Ahcene Zemiri (aka Hassan Zemiri), falsely fingered by Ressam as an associate in the bomb plot, who was freed from Guantánamo in January this year — and the portrayal of Zubaydah accepted by the judges is fundamentally at odds with the one now accepted by the Obama administration.

The government concedes that Abu Zubaydah was not a member of al-Qaeda

As Jason Leopold explained in an article for Truthout in March this year, in a federal court filing the government officially endorsed the view put forward by the anonymous Justice Department official to the Washington Post in March 2009, “back[ing] away from the Bush administration’s statements that Zubaydah was the No. 2 or No. 3 official in al-Qaeda who had helped plan the 9/11 attacks, as well as even earlier claims from the Clinton administration that he was directly involved in planning the 1998 embassy bombings in East Africa,” and admitting for the first time that “Zubaydah did not have ‘any direct role in or advance knowledge of the terrorist attacks of September 11, 2001,’ and was neither a ‘member’ of al-Qaeda nor ‘formally’ identified with the terrorist organization.”

The government also appeared to have accepted that that “the military camp he was alleged to be affiliated with, Khaldan, was closed by the Afghan Taliban after refusing to let it go under the formal control of bin Laden and al-Qaeda,” conceding, in its court filing, that Khaldan was “organizationally and operationally independent” of al-Qaeda’s camps.

This corresponds with Zubaydah’s own revelation, during his Combatant Status Review Tribunal at Guantánamo in 2007 (in a passage that was only unclassified in June 2009, in response to a lawsuit filed by the ACLU), that, after his extensive torture, his interrogators told him, “sorry we discover that you are not number three [in al-Qaeda], not a partner, even not a fighter.” It also confirms other accounts about Khaldan, which was actually run by Ibn al-Shaykh al-Libi, a former CIA “ghost prisoner,” who died in mysterious circumstances in a Libyan jail last year. Al-Libi, notoriously, was tortured in Egypt, on behalf of the CIA, until he produced a false confession about links between al-Qaeda and Saddam Hussein that was used to justify the invasion of Iraq, and his death means that a key witness has been lost who might have been able to explain the strained relationship he had with bin Laden, and how Khaldan was closed in 2000 after he refused to allow it to come under bin Laden’s control.

Dubious allegations about Abu Zubaydah’s “militia”

While these revelations indicate that the Circuit Court is lamentably out-of-date in its consideration of Abu Zubaydah, it is also noticeable that the judges relied on another document, the diary of an alleged associate of Zubaydah, Abu Kamil al-Suri, to demonstrate that Zubaydah was in charge of a militia, which included Sufyian Barhoumi. Whether there is any truth in this is difficult to ascertain, as Abu Kamil al-Suri is not available to ask about his diary, His whereabouts are unknown, but he may have died in the raid that led to Zubaydah’s capture, or he may be one of a handful of men — and boys — seized with Zubaydah who were rendered to Syria, and have never been heard of since.

This is deeply troubling, of course, in the wider context of “disappearances” in the “War on Terror,” but its relevance to Sufyian Barhoumi’s case — and to that of Abu Zubaydah — is also significant. The diary purports to identify the movements of various men, including Barhoumi, to and from Tora Bora, where a showdown between al-Qaeda and the US took place in December 2001, and from Afghanistan to Pakistan, although it should be noted that, in Guantánamo, Barhoumi strenuously and repeatedly denied ever being in Tora Bora. Al-Suri’s diary also identifies 15 members of what is described as “Zubaydah’s militia,” although, in the translation of al-Suri’s own words, it is described, less spectacularly, as a “group,” and a fractious one, moreover, with al-Suri noting that several of the members were “trying to take over this group,” to “lead us to join Sheikh Osama bin Laden.”

The interpretation of the diary is clearly of importance not only to Sufyian Barhoumi, but also to Abu Zubaydah, as it seems to form part of the government’s revised claims about Zubaydah, mentioned in the court filing in March, in which the Justice Department maintained that Zubaydah should still be detained based on his “actions” as an “affiliate” of al-Qaeda, and alleged that he “supported enemy forces and participated in hostilities” and “facilitat[ed] the retreat and escape of enemy forces” after the US-led invasion of Afghanistan in October 2001.

His lawyers have countered this by stating that “the persons whom [Zubaydah] assisted in escaping Afghanistan in 2001 included ‘women, children, and/or other non-combatants’” and that the government has “evidence to support those assertions,” which contrasts starkly with the Circuit Court’s conclusions about both Sufyian Barhoumi and Abu Zubaydah. The scope of Zubaydah’s involvement with securing the escape of non-combatants from Afghanistan is unknown, because the government has not provided any information about this publicly, and Zubaydah’s lawyers are prevented from discussing almost anything about their client’s case because of sweeping classification rules relating to the “high-value detainees.”

However, it seems clear that one non-combatant whose escape from Afghanistan was facilitated by a network in which Zubaydah played a part is Ravil Mingazov, a Russian seized in a guest house in Faisalabad (with over a dozen other men, mostly students) on the night Zubaydah was seized. Mingazov recently won his habeas corpus petition, and he explained in Guantánamo that, after fleeing Afghanistan, where he had traveled in search of a new life free from religious persecution, he had spent three months at a religious center in Lahore run by the missionary organization Jamaat-al-Tablighi, until he and two other men accepted an offer of safe passage to a house in Faisalabad, where, they were told, it would be easier for them to leave the country.

This example of a civilian helped out of Afghanistan as part of some sort of loose transportation network, in which Zubaydah was involved, is starkly at odds with the Circuit Court’s assertion of Zubaydah’s role as the head of a militia, in which Barhoumi was implicated. In their ruling, the judges noted that Barhoumi does not “dispute that Zubaydah’s militia qualifies as an ‘associated force’ that engaged in hostilities against US or coalition forces. The only dispute, then, is whether Barhoumi was, as the district court found, ‘part of’ Zubaydah’s organization.”

Ulterior motives?

In light of the failed claims about Zubaydah’s status as a senior figure in al-Qaeda, and the government’s revised analysis of him as someone who “supported enemy forces and participated in hostilities” and “facilitat[ed] the retreat and escape of enemy forces,” it is obviously alarming that the Circuit Court clung to a discredited view of Zubaydah’s role in upholding Sufyian Barhoumi’s detention, and it is, moreover, no less alarming that the allegation about Zubaydah’s purported “militia” was allowed to pass unchallenged.

In contrast to this claim, all the evidence suggests that, in its desperation to find charges that will stick to Zubaydah, the government has every incentive to dress up a fractious group of men, nominally led by Zubaydah, as an organized “militia,” and to ignore counter-claims that he was not involved in fighting US forces, but was involved in facilitating the escape from Afghanistan of a variety of individuals, including “women, children, and/or other non-combatants.”

In establishing this picture of Zubaydah as the leader of a militia — based on a translation of a diary by a man who appears to have vanished off the face of the earth — the government, with the support of the Circuit Court, appears determined to use it in a last-ditch attempt to cover up the much more distressing fact that the US government brutally tortured someone who was never part of al-Qaeda at all.

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) and of two other books: Stonehenge: Celebration and Subversion and The Battle of the Beanfield. 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 July 2010, details about the new documentary film, “Outside the Law: Stories from Guantánamo” (co-directed by Polly Nash and Andy Worthington, currently on tour in the UK, and available on DVD here), and my definitive Guantánamo habeas list, and, if you appreciate my work, feel free to make a donation.

As published exclusively on Truthout. Cross-posted on Information Clearing House, Eurasia Review, Free Detainees, The World Can’t Wait, War Criminals Watch, Uruknet, Blog from Middle East and The 2012 Scenario.

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), UN Secret Detention Report Asks, “Where Are The CIA Ghost Prisoners?” (January 2010), Binyam Mohamed: Evidence of Torture by US Agents Revealed in UK (February 2010), Torture Whitewash: How “Professional Misconduct” Became “Poor Judgment” in the OPR Report (February 2010), Judges Restore Damning Passage on MI5 to the Binyam Mohamed Torture Ruling (February 2010), What Torture Is, and Why It’s Illegal and Not “Poor Judgment” (March 2010), Abu Zubaydah’s Torture Diary (March 2010), Seven Years of War in Iraq: Still Based on Cheney’s Torture and Lies (March 2010), Protests worldwide on Aafia Siddiqui Day, Sunday March 28, 2010 (March 2010), Abu Zubaydah: Tortured for Nothing (April 2010), Mohamedou Ould Salahi: How a Judge Demolished the US Government’s Al-Qaeda Claims (April 2010), Judge Rules Yemeni’s Detention at Guantánamo Based Solely on Torture (April 2010), How Binyam Mohammed’s Torture Was Revealed in a US Court (May 2010), What is Obama Doing at Bagram? (Part One): Torture and the “Black Prison” (June 2010), New Report Reveals How Bush Torture Program Involved Human Experimentation (June 2010), UN Secret Detention Report (Part One): The CIA’s “High-Value Detainee” Program and Secret Prisons, UN Secret Detention Report (Part Two): CIA Prisons in Afghanistan and Iraq, UN Secret Detention Report (Part Three): Proxy Detention, Other Countries’ Complicity, and Obama’s Record (all June 2010), Abu Zubaydah and the Case Against Torture Architect James Mitchell (June 2010), The Torture of Abu Zubaydah: The Complaint Filed Against James Mitchell for Ethical Violations (June 2010), Calling for US Accountability on the International Day in Support of Victims of Torture (June 2010), How Jay Bybee Has Approved the Prosecution of CIA Operatives for Torture (July 2010). Also see the extensive archive of articles about the Military Commissions.

These concern the scope of the inquiry, its transparency (or lack of it), how the issue of compensation for the victims of British involvement will be played by the government, whether the inquiry involves a thinly-veiled attempt to gag the courts, which have been openly critical of British involvement in torture, and, perhaps most crucially, whether the inquiry will lead to a genuine renunciation by the government and the security services of any further involvement with torture, which, lest we forget, is not only illegal, but also counter-productive, morally corrosive, and fundamentally unreliable.

First, the good news: After years of obstruction and obfuscation by the Labour government, almost any kind of inquiry would be welcome. However, as Ian Cobain explained in yesterday’s Guardian, although “Leading figures within both parties of the coalition had concluded that an inquiry was inevitable because of the noxious position they had inherited,” without bold action by foreign secretary William Hague, Deputy Prime Minister Nick Clegg and Prime Minister David Cameron, there would either have been no inquiry at all, or something so perfunctory that it would have been both insulting and inadequate.

It was Hague — critical of the Labour government as shadow foreign secretary, but never quite calling for an inquiry — who got the ball rolling, in the following exchange on the BBC, which took place shortly after the General Election, when he was asked about an inquiry:

Hague: We have said again in the coalition agreement that we want a judge-led inquiry.
BBC: So will there be an inquiry of some form?
Hague: Yes, both parties in the coalition said they wanted that. Now what we’re working on is what form that should take.

According to Ian Cobain, Hague’s remarks “came out of the blue”. He added, “The intelligence agencies and senior figures in the Cabinet Office were stunned. They had no idea that Hague was about to make such an announcement.”

In a frantic “rearguard action,” senior officials in the security services, noting that the foreign secretary had not committed the government to a judicial inquiry, tried to ensure that a political figure rather than a judge — “someone more malleable,” in Cobain’s words — would be appointed to head the inquiry.

The government then consulted senior figures in the judiciary and legal experts in academia, in an attempt to work out what form the inquiry should take. According to Cobain, David Cameron was reportedly committed to an inquiry, and “had been minded to appoint a judge to lead it,” but just a few weeks ago, following talks with senior figures in the Cabinet Office who are closely connected to the security services, “he experienced what one observer called ‘a wobble.’” His sources advised him to be careful not to replicate the Saville inquiry into Bloody Sunday, which “could drag on for a decade or more at a cost of hundreds of millions of pounds.”

It was presumably as a result of the “wobble” that, two weeks ago, a source in the Foreign and Commonwealth Office briefed journalists that the inquiry “would examine only one case — that of Binyam Mohamed — and that Cameron had already concluded that the country’s intelligence agencies were guilty only of errors of omission, not commission.”

The source also explained that the plan, at the time, was that “the allegations would be examined briefly, and in secret, by a commission sitting over the summer.” According to Ian Cobain, it was at this point that Nick Clegg weighed in, persuading the Prime Minister that “such a commission would be seen as a whitewash, one that would do nothing to end the mounting litigation,” leading to the announcement on Tuesday that there would be a judicial inquiry, and that it would be led by Sir Peter Gibson, a former appeal court judge who monitors the activities of the intelligence agencies, assisted by Dame Janet Paraskeva, head of the civil service commissioners, and Peter Riddell, a former Times journalist and a fellow of the Institute of Government.

The scope of the inquiry: problems with secrecy and transparency

On the scope of the inquiry, David Cameron signaled that it would be thorough, allowing the victims and their representatives to give evidence during open sessions, as well as representatives of human rights groups. In the House of Commons, he explained that he had asked Sir Peter Gibson to “look at whether Britain was implicated in the improper treatment of detainees held by other countries that may have occurred in the aftermath of 9/11,” noting that, although there was no evidence that any British officer was “directly engaged in torture,” there were “questions over the degree to which British officers were working with foreign security services who were treating detainees in ways they should not have done.”

Nevertheless, the scope of the inquiry is clearly limited by the fact that, as Richard Norton-Taylor explained in the Guardian, “It will not summon witnesses from foreign countries, such as current or former CIA officers. And it will not be able to compel any individuals to give evidence.” Norton-Taylor added that, on Tuesday evening, Whitehall officials said that “former Labour ministers, including Tony Blair, will not be asked to give evidence, even though the treatment of British citizens and residents under investigation happened on their watch,” and even though, as was alleged last June, former Prime Minister Tony Blair “was aware of the existence of a secret interrogation policy which effectively led to British citizens, and others, being tortured during counter-terrorism investigations.”

Moreover, doubts about the transparency of the inquiry are in place from the very beginning, as the Prime Minister also announced that most of the inquiry would be held in secret and stated, “Let’s be frank, it is not possible to have a full public inquiry into something that is meant to be secret.”

This provoked a sharp response from Reprieve, the legal action charity whose lawyers represent dozens of Guantánamo prisoners. In a statement, Reprieve explained:

The scourge of the last government was the fact that they tried to cover up all the facts relating to torture complicity cases. In particular, the Binyam Mohamed litigation revolved around the government claiming public interest immunity in materials which were simply embarrassing. Now, the Prime Minister is saying that much of this inquiry will be held in secret. The only way in which public confidence is going to be restored in the intelligence services is if the public is able to see this inquiry functioning properly.

Reprieve also took exception to other elements of secrecy surrounding the plans, noting that it appeared that the judge would see all the relevant documents, but that the Prime Minister would decide what will be made public. “[W]e will only see what the government wants us to see,” Reprieve stated, adding, “This was the problem with the last government, and as long as politicians are making these decisions the national embarrassment/ national security problem will remain.”

In its most significant complaint, Reprieve asked why the inquiry will not be held under the Inquiries Act of 2005, noting that the Baha Mousa inquiry (into the murder, in British custody, of a hotel clerk in Iraq) was held under the Act and has been “a model of an inquiry functioning efficiently, including the hearing of secret evidence.” Reprieve lamented that, under the current plan for the torture inquiry, “there is no formal mechanism for civil participation — so Reprieve and other civil organisations will not be allowed access to documents and proceedings,” whereas, under the Inquiries Act, “document classification review proceedings are sophisticated and rightly allow the judge to balance the need for national security against the need for transparency.”

Questions of compensation – and the urgent need for Shaker Aamer to be returned from Guantánamo

Two of the most pressing questions in the wake of David Cameron’s announcement concern the timing of the inquiry, and the question of compensation for the victims. In the House of Commons, David Cameron complained that the security services were “paralysed by paperwork,” primarily relating to a civil claim for damages filed by six former Guantánamo prisoners, and ongoing investigations by the Metropolitan Police into the conduct of intelligence officers in the cases of Binyam Mohamed, Shaker Aamer, and a third man who has not been publicly identified, but who may well be Rangzieb Ahmed, the British citizen, reportedly tortured in Pakistan, who has just been given leave to appeal his conviction in December 2008, in a trial in which all mention of his alleged torture was excluded.

Announcing the inquiry, David Cameron stated that it would not begin “until civil claims have been resolved through mediation or settled with compensation,” as the Guardian explained, and until the Metropolitan Police investigations had concluded.

Although he expressed his hope that the inquiry would start before the end of the year, and would conclude its investigations with 12 months, there are two fundamental problems with this scenario. The first, as identified by Reprieve, is the possibility that, if the civil claims are to be settled by the end of the year, “this will mean that the claimants will be paid off and that no disclosure [or] documents will come out of those cases. This, together with a secret inquiry, will mean that information will never reach the public.”

Or, as former prisoner Omar Deghayes explained to the Daily Mail:

It feels a little bit like blackmail in a way. They want us to keep quiet and shut up … If you listen to David Cameron’s speech in its entirety, it seems that a condition of us accepting the compensation will be that we drop the civil cases and then keep quiet about everything … This is not a compensation issue. I must stress that we did not begin civil proceedings to get a bit of money, we did it to raise awareness and try and stop the same thing happening again. It is not acceptable that we be required to keep quiet and not talk about torture again.

The second problem is that, according to David Cameron’s plan, the Metropolitan Police are supposed to conclude their investigation into Shaker Aamer’s claims of torture while Mr. Aamer himself remains held in Guantánamo. This is completely unacceptable — not only because the physical presence of Mr. Aamer (who was cleared for release by the US authorities in 2007, but is still mysteriously held) is essential for the police inquiry, but also because it is inconceivable that any of the cleared prisoners will agree to cooperate with the government at all while he remains in Guantánamo.  As a result, the very first thing that David Cameron, Nick Clegg and William Hague need to do is to secure Shaker Aamer’s return.

Gagging the courts?

Allied to the general problem of secrecy is the government’s approach to the courts, which, of course, have done so much to expose complicity in torture, and to exert exactly the kind of pressure that has led to this inquiry in the first place. Primarily, this pressure has emerged in the case of Binyam Mohamed, when, for 18 months, former foreign secretary David Miliband fought to prevent two high court judges from revealing a summary of documents relating to Mohamed’s torture in Pakistan that had been provided to the British security services by the CIA. Miliband argued that doing so would imperil the intelligence-sharing relationship between the US and the UK, although the High Court judges disagreed, as did the Court of Appeal when, in February this year, they finally ordered David Miliband to release the summary, which demonstrated that MI5 knew that Mohamed had been subjected to treatment “at the very least cruel, inhuman, and degrading.”

David Cameron was evidently acutely conscious of this in the House of Commons on Tuesday, when he told his fellow MPs that, next year, the government will “publish a green paper which will set out our initial proposals for how intelligence is treated in the full range of judicial proceedings, including addressing the concerns of our allies”. At the heart of the plans for the green paper is an attempt to make sure that, in future, there will be no more opportunities for judges to order the release of information provided by foreign intelligence services (whether the US or anyone else), although another obvious motivation is the cost of legal proceedings. It is surely no coincidence that, in the civil damages claim brought against the government by six former prisoners, a high court judge had set a deadline of this Friday for MI5 and MI6 to provide a list of 250,000 documents relevant to the case.

Whether through a desire to cut costs, or as seems more probable, through a desire to prevent the courts from delivering the kind of condemnation of the security services’ activities that came from Lord Neuberger in February, in Binyam Mohamed’s case, when he stated 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, and had a “culture of suppression” in its dealings with Miliband and the court, the government‘s proposal for a green paper cannot, in all reality, be seen as anything other than a cynical attempt to shield future wrongdoers from judicial scrutiny. As Reprieve explained, “There is already ample opportunity — much increased recently — for evidence to be heard in secret. There is no need to expand this dangerous practice.”

Renouncing torture, or leaving loopholes open?

On the final point — the renunciation of torture — the government is also on thin ice. It is all very well for David Cameron to state that what is at stake is the UK’s reputation “as a country that believes in human rights, justice, fairness and the rule of law,” but grave concerns remain about the guidelines issued to the security services. This long-running saga, triggered by questions surrounding what advice had been given to a British operative known only as “Witness B” for his interrogation of Binyam Mohamed in Pakistan in May 2002, was revived last June, when the Guardian reported that, in January 2002, MI5 and MI6 officers in Afghanistan were told they could not be “party” to torture and must not “be seen to condone it,” but that because prisoners were “not within our custody or control, the law does not require you to intervene to prevent this.”

Following the Abu Ghraib scandal in April 2004, the guidelines were rewritten, but although Prime Minister Gordon Brown stated in March 2009 that these guidelines would be released, he left office without doing so. On Tuesday, just before the new government’s torture inquiry was announced, attempts by Reprieve to launch a judicial review of the guidelines were quashed after the government stepped in at the last minute with a claim that new guidelines would be published “very shortly,” just after Mr. Justice Collins had stated that, if the allegations about how British agents interrogated prisoners held overseas were true, they “indicated that there may well have been complicity in acts of torture.”

The new guidelines were published on Tuesday, at the same time that the inquiry was announced, but, as Reprieve noted, two troubling points remain unanswered. The first concerns the fact that “the previous policy has not been published,” which “suggests that there is something within it to be hidden.” Reprieve added, “The judge will see that, but will we? Will we know whether unlawful acts carried out in the past were authorised by that policy [or] guidance?”

The second point, more worryingly, concerns the new guidance. As the Guardian explained, there is “concern that the government’s new interrogation guidelines … contain[] a number of loopholes that could still lead to it being used to facilitate torture,” or, as Reprieve put it, the new policy still ”allows ministers to authorise torture.” The key to this, as the Daily Mail explained in an analysis of the new guidelines, is that, although the guidelines state unambiguously that “In no circumstance will UK personnel ever take action amounting to torture or cruel, inhuman or degrading treatment or punishment,” the perception of such treatment “will cover a wide spectrum of conduct and different considerations and legal principles may apply depending on the circumstances and facts of each case,” and that the final approval for what may be regarded as “torture or cruel, inhuman or degrading treatment or punishment” rests with government ministers, who must be “consulted.”

As Reprieve noted, “This is illegal under the Convention Against Torture. Was this clause also in the previous guidance? If so then ministers must be held accountable for allegations of complicity in torture.”

In conclusion, then, the announcement of the inquiry is welcome, but issues of secrecy, compensation, the need for the release of Shaker Aamer and the seeming inability of the government — any government — to prohibit torture without leaving loopholes open, look likely to dog the inquiry’s every move. While the government is to be congratulated, ministers also need to be careful, as many people are scrutinizing their every move, and will not settle for anything that resembles a whitewash.

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) and of two other books: Stonehenge: Celebration and Subversion and The Battle of the Beanfield. 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, currently on tour in the UK, and available on DVD here), and my definitive Guantánamo habeas list, and, if you appreciate my work, feel free to make a donation.

As published exclusively on Cageprisoners. Cross-posted on Eurasia Review.

TEXAS STATE BOARD OF EXAMINERS OF PSYCHOLOGISTS
COMPLAINT: DR. JAMES ELMER MITCHELL (LICENSE NO. 23564)

Conduct being reported: Ethical violations, Provision of services beyond expertise (see attached), Violation of multiple standards.

In August 2002, at a secret prison in Thailand, a psychologist stood over a prisoner. The psychologist was James Elmer Mitchell; the prisoner was Abu Zubaydah. Zubaydah had been in custody since his arrest in Pakistan March 28, 2002. Dr. Mitchell took over his interrogation shortly thereafter. He had ordered that Zubaydah be chained to a chair for weeks on end; that he be whipped by the neck into concrete walls; that he be stuffed into a small, black box and left for hours; that he be hung naked from the ceiling; that he be kept awake for 11 consecutive days, and sprayed with cold water if he dozed. But the torture designed by Dr. Mitchell was about to pass to another level. It was time to implement the final stage of Dr. Mitchell’s program [International Committee of the Red Cross, ICRC Report on the Treatment of Fourteen “High Value Detainees” in CIA Custody, February 2007 (PDF), pp. 28-31; Central Intelligence Agency Inspector, Special Review: Counterterrorism Detention and Interrogation Activities (September 2001-October 2003), 7 May 2004 (PDF), p. 15; Jason Leopold, Truthout, Zubaydah’s Torture, Detention Subject of Senate Inquiry].

Abu Zubaydah lay strapped to a gurney specially designed to maximize his suffering. His feet were above his head, just as Dr. Mitchell had ordered. His hands, arms, legs, chest, and head were restrained by heavy leather straps. As Zubaydah lay helpless, Mitchell and his subordinates placed a black cloth over his face and began to pour water onto the cloth. Rivers of water ran up Zubaydah’s nose and down his throat. He could not breathe. Panic gripped him as he began to drown. And when Mitchell sensed that Zubaydah dangled on the precipice between life and death, he ordered that the board be raised. Zubaydah expelled the water in a violent, racking spasm of coughing, gurgling and gasping. But before Zubaydah could catch his breath, Dr. Mitchell repeated the experiment. Then he did it again. And again. According to the United States Government, Abu Zubaydah was water-boarded 83 times in August 2002 alone.

Dr. James Elmer Mitchell is currently a psychologist licensed in the state of Texas.

The road to torture in a Thai prison began six months earlier. After 9/11, Dr. Mitchell had approached the U.S. Government with a proposition. Though he had never conducted an interrogation and had no training as an interrogator, and though he had no expertise in al-Qaeda and no familiarity with the organization, and though he did not speak Arabic and had no training in radical Islam, Mitchell nonetheless said he could design and implement an interrogation plan for alleged al-Qaeda suspects. Mitchell had taught U.S. soldiers how to resist unlawful interrogations, and now offered to reverse-engineer those principles and transform them into a set of “enhanced interrogation techniques.” The C.I.A. took Mitchell at his word, and paid him as much as $2,000 per day, plus expenses, tax free.

The U.S. Government has now concluded that Dr. Mitchell misrepresented his qualifications, violated his professional duty to persons in his care, and acted without a legitimate scientific basis. The C.I.A Office of Medical Services (the OMS), with which Dr. Mitchell did not consult during either the design or implementation of the program, concluded that Dr. Mitchell misrepresented his qualifications and that “there was no a priori reason to believe [Dr. Mitchell’s program] was either efficacious or medically safe.” The OMS has also concluded there was no scientific basis to believe that the interrogation plan would produce reliable intelligence [CIA IG Report, pp. 21-22].

Colonel Steve Kleinman, an interrogator with years of experience, testified to the U.S. Senate that Mitchell was “stepping out of [his] area of expertise.” The U.S. Armed Services Senate Committee, which investigated the issue, found that Dr. Mitchell, and his colleague Dr. Bruce Jessen, were “neither trained interrogators nor are they qualified to be.” Michael Rolince, former section chief of the FBI’s International Terrorism Operations, described the methods employed by Drs. Mitchell and Jessen as “voodoo science.” The CIA terminated its contract with Dr. Mitchell in the spring of 2009. [U.S. Senate Armed Services Committee Inquiry into the Treatment of Detainees in U.S. Custody, 2008 (PDF), p. xiii; Amanda Witherell, Project Censored, MISSOULA INDEP., Vol. 19; Issue 41 (Oct. 9, 2008); Leon E. Panetta, Message from the Director: Interrogation Policy and Contracts, Central Intelligence Agency, Apr. 9, 2009].

The psychological community has roundly condemned Dr. Mitchell. The Ethics Committee of the American Psychological Association (APA), for instance, issued a statement on June 19, 2009, stating that “[p]sychologists are absolutely prohibited from knowingly planning, designing, participating in or assisting in the use of [mock executions, water-boarding or any other form of simulated drowning, physical assault including slapping or shaking, exposure to extreme heat or cold, threats of harm or death] at any time and may not enlist others to employ these techniques in order to circumvent this resolution’s prohibition.” All of these techniques, of course, were designed and employed by Dr. Mitchell, who has never acknowledged the impropriety of his role or disavowed any of his actions. Dr. Mitchell remains licensed as a psychologist in the state of Texas.

Dr. Mitchell has sullied his profession by violating the standards demanded by the Psychologists’ Licensing Act and the Board’s Rules of Practice. His transgressions fall into three categories:

• First, to achieve his ultimate plan of implementing a brutal interrogation and torture regime, Dr. Mitchell misrepresented his professional qualifications and experience to the Central Intelligence Agency. He also placed his own career and financial aspirations above the safety of others.
• Second, Dr. Mitchell designed this torture regime only by ignoring the complete lack of a scientific basis for the regime’s safety and — assuming its safety — its effectiveness. In doing so, he failed to take reasonable steps to ensure the safety of others.
• Third, and most ominously, Dr. Mitchell himself tortured prisoners held in U.S. custody and directly supervised others who engaged in torture at his direction.

The Board’s mission is to “protect the public by ensuring that psychological services … are provided by qualified and competent practitioners who adhere to established professional Standards.” Dr. Mitchell’s behavior appears to fail to meet this standard.

Dr. Mitchell’s education and experience provided him no reasonable basis to believe he could design and implement an interrogation program. After joining the U.S. Air Force in 1974, Dr. Mitchell earned a Master’s of Science in Counseling from the University of Alaska in 1981. He wrote his thesis on “The Effects of Induced Elation and Depression on Interpersonal Problem Solving Efficiency.” In 1986, he received a Ph.D. from the University of South Florida, where he wrote a dissertation on “The Effectiveness of a High Potassium/ Moderate Sodium Restriction Diet and Aerobic Exercise as Interventions for Borderline Hypertension.” None of Mitchell’s academic research involved interrogations, let alone the mechanisms for designing and implementing a safe and effective interrogation program.

Following his formal education, Dr. Mitchell began his career as a psychologist at Fairchild Air Force Base in Spokane, Washington, in 1986.29 By 1988, he had become a SERE Psychologist. SERE is an acronym for “Survival, Evasion, Resistance, and Escape.” The SERE training program is part of the Department of Defense Joint Personnel Recovery Agency (JPRA). SERE students are taught how to survive in various terrain, evade and endure captivity, resist interrogations, and conduct themselves to prevent harm to themselves and fellow prisoners of war. The program is designed to train soldiers at risk of capture and interrogation to defend and resist against torture. The U.S. Army, Navy, and Air Force have each developed their own version of the SERE program.

SERE attempts to train American soldiers how to resist psychological pressure from an enemy who engages in unlawful interrogations. The SERE curriculum is classified, but SERE graduates and instructors have disclosed some of its methods. Prisoners are held in a mock prison camp, where “guards” deprive them of food and sleep and subject them to repeated coercive interrogations. By May 2001, Dr. Mitchell had retired from the Air Force’s SERE program. Later, he opened a private consulting company called KnowledgeWorks, L.L.C.

But after the September 11 attacks, Dr. Mitchell saw an opportunity to sell his independent consulting services to the CIA. The CIA hired him to review a document known as the “Manchester Manual,” which described resistance training given to some members of al Qaeda. Dr. Mitchell contacted his former colleague, Dr. John (Bruce) Jessen, for assistance. Though they had no expertise or familiarity with al-Qaeda, Mitchell and Jessen wrote a paper titled “Recognizing and Developing Countermeasures to Al-Qa’ida Resistance to Interrogation Techniques: A Resistance Training Perspective.” But Mitchell did not content himself with claiming a false expertise in al-Qaeda’s resistance training. Though he had no qualifications as an interrogator, Mitchell (with Jessen) also marketed himself to the CIA as an expert in conducting counter-terrorism interrogations of alleged Islamic fundamentalists. On their own initiative, they “developed a list of new and more aggressive EITs [enhanced interrogation techniques] that they recommended for use in interrogations.” They “reverse-engineered” SERE by recommending that techniques previously applied only in mock, controlled settings now be used in real-world interrogations.  Among others, the EITS included the facial hold, facial slap, cramped confinement, confinement with insects, wall standing, stress positions, sleep deprivation, waterboarding, and sexual humiliation [CIA IG Report, p. 13].

Air Force Colonel Steve Kleinman, a former colleague at SERE who was also a career military interrogator with training in intelligence, stated that when Dr. Mitchell and Dr. Jessen became involved in CIA interrogations, “that was their first step into the world of intelligence … Everything else was role-play.” “What [Dr. Mitchell and Dr. Jessen] failed to understand was they were stepping out of their area of expertise,” yet they nonetheless promoted themselves as offensive interrogation experts despite the “disconnect between the SERE model, a resistance model, and an actual interrogation for intelligence purposes.”

By actively misrepresenting his professional qualifications, Mitchell violated the Psychologists’ Licensing Act, which prohibits a Texas-licensed psychologist from “engag[ing] in fraud or deceit in connection with services provided as a psychologist.” Moreover, the Texas State Board of Examiners of Psychologists’ Rules of Practice state: “Licensees provide only services for which they have the education, skills, and training to perform competently.” Dr. Mitchell violated the Board’s Rules of Practice governing competency when he went beyond his limited background to develop and implement interrogation techniques. Moreover, in extending his independent contract with the CIA, Dr. Mitchell lacked professional objectivity by placing his own career and financial aspirations above the safety of others.

In recommending a new and untested interrogation program of his own design to the CIA, Dr. Mitchell also violated the Board’s Rule of Practice requiring licensees to rely on scientifically and professionally derived knowledge when making professional judgments. Moreover, he failed to take reasonable steps to ensure the safety of others involved in this emerging field of psychology and interrogation. To understand the extent to which Dr. Mitchell violated these Rules, it is essential to understand the stark differences between SERE resistance training and the real-world interrogation regime that Dr. Mitchell developed and implemented as a CIA contractor.

In testifying before the Senate Committee on Armed Services [PDF], Colonel Steve Kleinman summarized several of the key differences between SERE mock interrogation techniques and real-world interrogations:

To the non-intelligence officer, the transfer of SERE methods from the training environment to real-world operations seemed a logical option. Several critical factors, however, were overlooked. First, many of the methods used in SERE training are based on what was once known as the Communist Interrogation Model, a system designed to physically and psychologically debilitate a detainee as a means of gaining compliance. Second, that model‘s primary objective was to compel a prisoner to generate propaganda not intelligence. Third, it was expressly designed to mirror a program that employed methods of interrogation considered by the West to be violations of the Geneva Conventions.

The problems with employing SERE techniques in the interrogation of detainees do not stop there. I want to emphasize that survival instructors are some of the most dedicated professionals in Armed Forces. Their tireless work supports a noble mission: to prepare others to return with honor. I would be remiss, though, if I did not make one point abundantly clear: survival instructors are not interrogators. While interrogation and teaching resistance to interrogation have much in common, they are nonetheless profoundly different activities.

• Survival instructors operate in a domestic training environment and share both a language and culture with the students they teach. In contrast, interrogators are involved in worldwide operations and interact with foreign nationals across an often substantial cultural and linguistic divide.
• If questions arise about the student‘s veracity during role-play, a survival instructor need only call the student‘s unit of assignment to verify the information. Clearly, this is not an option for an interrogator for whom detecting deception is a critical skill.
• While interrogation role-play is limited in duration, frequency, and scope, interrogations of custodial detainees may last hours and continue over a span of months.
• The survival instructor’s focus is not on information but the performance of the student while the interrogator must doggedly pursue — and record — every detail of intelligence information a detainee possesses.

There are other differences between SERE and real-world interrogations. As the Senate Armed Services Committee observed, “SERE instructors are not selected for their roles based on language skills, intelligence training, or expertise in eliciting information.” The Committee’s Report continues:

Typically, those who play the part of interrogators in SERE school neither are trained interrogators nor are they qualified to be. These role players are not trained to obtain reliable intelligence information from detainees. Their job is to train our personnel to resist providing reliable information to our enemies. As the Deputy Commander for the Joint Forces Command (JFCOM), JPRA’s higher headquarters, put it: “the expertise of JPRA lies in training personnel how to respond and resist interrogations — not in how to conduct interrogations.”

Furthermore, SERE school instructors receive extensive psychological testing prior to being hired, and they must undergo a year-long training process, annual psychological screening, and extensive monitoring and oversight during practical exercises in order to “prevent instructor behavioral drift, which if left unmonitored, could lead to abuse of students.” At SERE schools,

[i]nstructors are constantly monitored by other JPRA personnel, command staff, and SERE psychologists to minimize the potential for students to be injured. These oversight mechanisms are designed to ensure that SERE instructors are complying with operating instructions and to check for signs that instructors do not suffer from moral disengagement (e.g., by becoming too absorbed in their roles as interrogators and starting to view U.S. military SERE students as prisoners or detainees). These oversight mechanisms are also designed to watch students for “indications that they are not coping well with training tasks, provide corrective interventions with them before they become overwhelmed, and if need be, re-motivate students who have become overwhelmed to enable them to succeed” [Senate Report, pp. xiii, 5].

In contrast to the year-long training that SERE school instructors receive, the CIA initiated a two-week “Interrogator Training Course” in November 2002 designed to “train, qualify, and certify individuals as Agency interrogators.” This program included one week of classroom instruction and one week of “hands on” training [CIA IG Report, p. 31].

Another crucial difference between SERE and real-world interrogation is the level of controls employed to reduce the risk of physical and psychological harm to students during training, but absent from real-world interrogation settings. The Senate Armed Services Report states,

SERE school techniques are designed to simulate abusive tactics used by our enemies. There are fundamental differences between a SERE school exercise and a real world interrogation. At SERE school, students are subject to an extensive medical and psychological pre-screening prior to being subjected to physical and psychological pressures. The schools impose strict limits on the frequency, duration, and/or intensity of certain techniques. Psychologists are present throughout SERE training to intervene should the need arise and to help students cope with associated stress. And SERE school is voluntary; students are even given a special phrase they can use to immediately stop the techniques from being used against them.

The SERE schools, including the Air Force SERE school where Dr. Mitchell worked, employ strict controls to reduce the risk of physical and psychological harm to students during training. These controls are absent from real world interrogations.

Moreover, the use of physical pressures differs between SERE school training and real world interrogations regarding the use of physical pressures:

Because of the danger involved, very few SERE instructors are allowed to actually use physical pressures. It is extremely easy for U.S. Army instructors, training U. S. Army soldiers, to get out of hand, and to injure students. The training, from the point of the student, appears to be chaotic and out of control. In reality, everything that is occurring [in SERE school] is very carefully monitored and paced; no one is acting on their own during training. Even with all these safeguards, injuries and accidents do happen. The risk with real detainees is increased exponentially [Senate Report, pp. xiii, xix, 5-6].

As Dr. Mitchell himself acknowledged, “the Agency’s use of the technique differed from that used in SERE training” because “the Agency’s technique … is ‘for real’ and is more poignant and convincing.” For example, the Inspector General’s report explains that the waterboarding method used in CIA black sites was more brutal than the method used in SERE schools and described in the Office of Legal Counsel memorandum because the black site method used greater volumes of water and more obstructed breathing. “At the SERE school and in the DoJ opinion, the subject’s airflow is disrupted by the firm application of a damp cloth over the air passage. By contrast, the Agency‘s interrogator … continuously applied large volumes of water to a cloth that covered the detainee’s mouth and nose.” Moreover, whereas at the SERE school “trainees usually have only a single exposure to this [waterboard] technique, and never more than two,” individuals interrogated in the real world post 9/11 were waterboarded dozens, and sometimes hundreds, of times. Dr. Mitchell intentionally ignored these critical differences of both environment and methodology in promoting his reverse-engineered SERE program to the CIA, as well as when personally applying the harsher waterboard techniques to detainees. Even with the differences between the programs ignored, the U.S. Air Force and U.S. Army abandoned the waterboarding program at its SERE school because of its dramatic and dangerous effect on the students to whom it was applied. In sum, the SERE training environment simply cannot be analogized to the real-world interrogation setting [CIA Report, pp. 13, 22, 29, 37, Appendix F. Also see testimony to the Senate Armed Services Committee (PDF) by Dr. Jerald Ogrisseg, JPRA’s SERE Research Psychologist and a former Air Force SERE school psychologist, who identified a total of eight significant differences between students enrolled in a SERE course undergoing a mock interrogation and a real-world interrogation setting: 1. Previous level of functioning and demographic factors; 2. Purpose of the experience; 3. Risk management oversight functions; 4. Propensity for moral disengagement; 5. Psychological and operational debriefings; 6.”Voluntary'” nature of training; 7. Limited duration of the experience; 8. Adjustment to the experience and follow-on support].

Dr. Mitchell neither consulted nor involved the CIA’s Office of Medical Services (the OMS) prior to selling the program to the CIA. The OMS, in a subsequent review of the CIA’s adoption of Dr. Mitchell’s interrogation program, concluded that Dr. Mitchell did not have the expertise to develop an interrogation plan and that he misrepresented the medical safety of the program to the CIA and the Department of Justice. Further, OMS concluded that there was no proof, nor was there any reason to believe, that the EITs proposed by Dr. Mitchell would produce any sort of valuable intelligence from detainees as a form of interrogation [CIA IG Report, pp. 21-22]. There simply was no scientific support for Dr. Mitchell’s recommendations. At no time prior to implementing these programs did Dr. Mitchell conduct experiments, publish research about offensive interrogation techniques, or subject his theories to peer-review in a publicly-available forum. At no time did Mitchell establish that his techniques were safe and — if safe — whether they were effective in eliciting truth. One investigative report explained, “In truth, many did not consider Mitchell and Jessen to be scientists. They possessed no data about the impact of [SERE] training on the human psyche, say former associates. Nor were they ‘operational psychologists,’ like the profilers who work for law enforcement … But they wanted to be, according to several former colleagues.” Dr. Mitchell’s failure to verify his interrogation regime using scientifically sound, empirical methods therefore constitutes direct violations of the Board’s Rule of Practice requiring licensees to rely on scientifically and professionally derived knowledge when making professional judgments and the Rule requiring licensees to take reasonable steps to ensure the safety of others involved in emerging fields of study.

Dr. Mitchell tortured prisoners in U.S. custody. The first was Abu Zubaydah, whose torture is worth recounting in detail. Abu Zubaydah, a Palestinian national, was the first detainee captured after 9/11 who was believed to be a high-ranking member of al-Qaeda. Abu Zubaydah was also the first person to be subjected to the new regime of abusive interrogation that Mitchell (with Jessen) designed and implemented. The CIA Inspector General Report states that Abu Zubaydah’s capture “accelerated the CIA‘s development of an interrogation program” [CIA IG Report, pp. 2-3, 12]. According to former CIA Director George Tenet, once Abu Zubaydah was in custody, the CIA “got into holding and interrogating high-value detainees … in a serious way” [Senate Report, p. 16]. The CIA’s lack of experience in interrogation may have made the agency susceptible to Dr. Mitchell’s claims about the efficacy of the methods. Whatever the explanation, Abu Zubaydah’s interrogation was used as an opportunity to test a set of experimental techniques, devised by Dr. Mitchell, that the United States had never before approved for use on its captives. [Regarding the possibility that the CIA was susceptible to Mitchell's methods, this interpretation is suggested by the congressional testimony of Ali Soufan, an FBI interrogator who initially questioned Abu Zubaydah: “[T]he CIA specializes in collecting, analyzing, and interpreting intelligence. The FBI, on the other hand, has a trained investigative branch. Until that point, we were complementing each other’s expertise, until the imposition of the ‘enhanced methods.’ As a result people ended up doing what they were not trained to do.” Statement of Ali Soufan, Committee on the Judiciary, United States Senate, May 13, 2009 (PDF)].

On March 28, 2002, Abu Zubaydah was captured at a home in Pakistan by combined Pakistani and CIA forces. He was subsequently detained in secret CIA black sites located around the world, reportedly including facilities in Thailand, Afghanistan, Poland, and elsewhere. In September 2006, Zubaydah was transferred to the Guantánamo Bay prison, where he remains in U.S. custody. Abu Zubaydah was once described as al-Qaeda’s “chief of operations” and a “trusted associate” of Osama bin Laden. The United States, however, now accepts that these accusations are untrue. The United States Government no longer alleges that Abu Zubaydah was a member of al-Qaeda. The United States no longer alleges that Abu Zubaydah was an associate of bin Laden or a deputy in his organization. The United States no longer alleges that Zubaydah had any involvement in the attacks of 9/11, or that he had any advance knowledge that the attacks would take place. The United States no longer alleges that Zubaydah had any involvement in any al-Qaeda attacks on the United States or its interests, at home or abroad, and no longer alleges that Zubaydah knew about any other attacks that may have been planned by al-Qaeda at the time of his arrest March 28, 2002. Indeed, according to published reports, “within weeks of his capture, U.S. officials had gained evidence that made clear they had misjudged Abu Zubaida [Zubaydah].” Despite the Government’s former claims about Abu Zubaydah, he has never been charged with a crime, either in a military commission or a civilian court.

During the raid that led to his capture, Abu Zubaydah was shot in the groin, thigh, and stomach and suffered “severe wounds.” A medical team determined that he would die if not treated in a hospital. Abu Zubaydah was taken to a hospital, first in Pakistan and then at a black site in Thailand, where he spent several weeks being treated and where his initial questioning began. Zubaydah was initially interrogated using “non-aggressive, non-physical” techniques. FBI agents questioned him and reportedly used traditional methods based on the Army Field Manual. According to one of the FBI interrogators who conducted these sessions, Zubaydah was cooperative.

Soon, however, a CIA Counterterrorism Team arrived at the black site and assumed control over the interrogation. The CIA team included an outside contractor “who was instructing them on how they should conduct the interrogations.” This contractor was Dr. Mitchell. Deeming the FBI methods to be insufficient, Dr. Mitchell said they “needed to diminish [Abu Zubaydah’s] capacity to resist.” “Immediately, on the instructions of the contractor, harsh techniques were introduced, starting with nudity.” As time progressed, Mitchell moved “further along the force continuum, introducing loud noise and then temperature manipulation” [Department of Justice Inspector General, A Review of the FBI’s Involvement in and Observations of Detainee Interrogations in Guantanamo Bay, Afghanistan and Iraq, May 2008 (PDF), pp. 67-8; Soufan Senate testimony; Senate Report, p. 17].

Abu Zubaydah was subsequently kept naked for between one and a half to two months and his clothes were provided or removed according to how cooperative his interrogators perceived him to be. He was also systematically deprived of sleep for a period of two to three weeks by the combined use of painful shackling, loud music, cold temperatures, and being doused with water. The cell was kept very cold by the use of air-conditioning and very loud “shouting” music was constantly playing on an approximately fifteen minute repeat loop twenty-four hours a day. Sometimes the music stopped and was replaced by a loud hissing or crackling noise. As part of the regime of total control designed to strip detainees of their autonomy, Abu Zubaydah was denied solid foods. He was fed only high-calorie liquids which provided him with minimal sustenance and left him constantly hungry [ICRC Report, pp. 14, 15, 18].

According to one of the FBI agents who observed the CIA‘s harsh methods with dismay, Mitchell “insisted on stepping up the notches of his experiment,” and devised the idea of placing Abu Zubaydah in confinement boxes. One box was too narrow to allow him to sit down; the other was so short that instead of standing he reportedly “had to double up his limbs in a fetal position.” The coffin-like boxes were black, both inside and out, and covered with towels, possibly in an effort to constrict the flow of air inside. While the CIA was inflicting escalating levels of abuse on Abu Zubaydah, he was still recovering from his gunshot wounds. In fact, the interrogators were so worried that Abu Zubaydah might die that they videotaped his interrogations in an attempt to protect themselves from potential liability. The CIA later destroyed these videotapes [Soufan Senate testimony; ICRC Report, p. 14; CIA IG Report, pp. 13, 36-37].

As part of his mistreatment, Zubaydah was slammed directly into hard concrete walls (only later covered by a plywood sheet), with a thick collar placed around his neck that was presumably intended to protect him from additional life-threatening injury. He was also forced to stand with his wrists shackled to a bar or hook in the ceiling above his head, and with his feet shackled to an eye bolt in the floor, for more than 40 hours. This is widely regarded as one of the most painful physical torture techniques. As described by the Red Cross, “prisoners subjected to this method are made to stand naked, held with the arms extended and chained above the head … for periods from two or three days continuously, and for up to two or three months intermittently, during which period toilet access was sometimes denied resulting in allegations from four detainees that they had to defecate and urinate over themselves” [ICRC Report, pp. 8, 11-12].

The infliction of this stress position contributed to the death of one detainee in the internment facility at Bagram Air Base [for a report on Dilawar’s death, see Senate Report, pp. 151-2]. For Abu Zubaydah, this stress-position technique was often combined with the “cold cell” technique, so that he was left to stand naked and repeatedly doused with cold water in a cell kept near 50 degrees Fahrenheit.

Mitchell and Jessen also worked to identify Abu Zubaydah’s phobias. After discovering an especially vehement phobia that Abu Zubaydah suffered from, the psychologists devised a scheme to terrorize Abu Zubaydah with this fear: “You would like to place Zubaydah in a cramped confinement box with an insect. You have informed us that he appears to have a fear of insects. In particular, you would like to tell Zubaydah that you intend to place a stinging insect into the box with him” [2nd Bybee/Yoo memo, August 1, 2002 (PDF), p. 3]. As many reporters have noted, this technique is reminiscent of an incident in George Orwell‘s novel Nineteen Eighty-Four, in which the fictional government terrorizes the protagonist by exploiting his intense fear of rats.

Finally, Zubaydah was waterboarded at least 83 times in August 2002, usually twice per session and sometimes three times in a single session [CIA IG Report, p. 36; ICRC Report, p. 10]. The Red Cross report contains Abu Zubaydah’s own description of his waterboarding. His account describes how waterboarding was used, to devastating effect, in combination with the other abusive techniques described above:

During these torture sessions many guards were present, plus two interrogators who did the actual beating, still asking questions, while the main interrogator left to return after the beating was over. After the beating I was then placed in the small box. They placed a cloth or cover over the box to cut out all light and restrict my air supply. As it was not high enough even to sit upright, I had to crouch down. It was very difficult because of my wounds. The stress on my legs held in this position meant my wounds both in the leg and stomach became very painful. I think this occurred about 3 months after my last operation. It was always cold in the room, but when the cover was placed over the box it made it hot and sweaty inside. The wound on my leg began to open and started to bleed.  I don‘t know how long I remained in the small box, I think I may have slept or maybe fainted.

I was then dragged from the small box, unable to walk properly and put on what looked like a hospital bed, and strapped down very tightly with belts. A black cloth was then placed over my face and the interrogators used a mineral water bottle to pour water on the cloth so that I could not breathe. After a few minutes the cloth was removed and the bed was rotated into an upright position. The pressure of the straps on my wounds was very painful. I vomited. The bed was then again lowered to a horizontal position and the same torture carried out again with the black cloth over my face and water poured on from a bottle. On this occasion my head was in a more backward, downwards position and the water was poured on for a longer time. I struggled against the straps, trying to breathe, but it was hopeless. I thought I was going to die …

I was then placed again in the tall box. While I was inside the box loud music was played again and somebody kept banging repeatedly on the box from the outside. I tried to sit down on the floor, but because of the small space the bucket with urine tipped over and spilt over me. I remained in the box for several hours, maybe overnight. I was then taken out and again a towel was wrapped around my neck and I was smashed into the wall with the plywood covering and repeatedly slapped in the face by the same two interrogators as before …

This went on for approximately one week. During this time the whole procedure was repeated five times. On each occasion, apart from one, I was suffocated once or twice and was put in the vertical position on the bed in between. On one occasion the suffocation was repeated three times. I vomited each time I was put in the vertical position between the suffocation.

During that week I was not given any solid food … My head and beard were shaved everyday.

I collapsed and lost consciousness on several occasions. Eventually the torture was stopped by the intervention of the doctor.

I was told during this period that I was one of the first to receive these interrogation techniques, so no rules applied. It felt like they were experimenting and trying out techniques to be used later on other people [ICRC Report, p. 30].

Not surprisingly, the effects of the interrogation program are deep and long-lasting. Abu Zubaydah reports, “Since then I still lose control of my urine when under stress.”

The Red Cross has concluded that many of the techniques inflicted upon Abu Zubaydah — whether used singly or in combination — constitute torture. Others constitute cruel, inhuman, or degrading treatment. The Red Cross has also stated: “The alleged participation of health personnel in the interrogation process and, either directly or indirectly, in the infliction of ill-treatment constituted a gross breach of medical ethics and, in some cases, amounted to participation in torture and/or cruel, inhuman or degrading treatment” [ICRC Report, pp. 24, 26-7].

Regardless of what legal categories these techniques fall within, one conclusion is clear: a psychologist who helps inflict such cruel and shocking abuse on a defenseless human being would appear to have violated basic standards of conduct of the profession. Dr. Mitchell not only enabled and participated in Abu Zubaydah’s torment, he also personally designed the abusive and degrading techniques to which Zubaydah was subjected.

In 2008, the American Psychological Association dropped its certification of Dr. Mitchell‘s company, KnowledgeWorks. The Ethics Committee of the American Psychological Association (APA) on February 22, 2008 issued an Amendment to their Resolution Against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment and Its Application to Individuals Defined in the United States Code as “Enemy Combatants.” In this statement, the APA stated that “[p]sychologists are absolutely prohibited from knowingly planning, designing, participating in or assisting in the use of all condemned techniques at any time and may not enlist others to employ these techniques in order to circumvent this resolution’s prohibition” and set forth the following description of specific actions that constitute torture:

[M]ock executions; water-boarding or any other form of simulated drowning or suffocation; sexual humiliation; rape; cultural or religious humiliation; exploitation of fears, phobias or psychopathology; induced hypothermia; the use of psychotropic drugs or mind-altering substances; hooding; forced nakedness; stress positions; the use of dogs to threaten or intimidate; physical assault including slapping or shaking; exposure to extreme heat or cold; threats of harm or death; isolation; sensory deprivation and over-stimulation; sleep deprivation; or the threatened use of any of the above techniques to an individual or to members of an individual’s family.

Dr. Mitchell is not an APA member.

Discussing Dr. Mitchell and Dr. Jessen, Colonel Kleinman, an Air Force Reserve Colonel and expert in human-intelligence operations, found it astonishing that the CIA “chose two clinical psychologists who had no intelligence background whatsoever, who had never conducted an interrogation … to do something that had never been proven in the real world.” Michael Rolince, former section chief of the FBI’s International Terrorism Operations, described the methods employed by Dr. Mitchell and Dr. Jessen as “voodoo science.” Speaking of Dr. Mitchell and Dr. Jessen, Steve Kleinman has stated, “I think they have caused more harm to American national security than they‘ll ever understand.”

Dr. Mitchell repeatedly failed to abide by the standards of the Psychologists Licensing Act (the Act) and the Rules promulgated by the Board under the Act (the Board Rules). He violated the Board Rules governing competency, professional objectivity, basis for scientific and professional judgments, duties concerning emerging areas of psychology, professional supervision, improper sexual conduct and exploitation of authority, research without informed consent, evaluation, assessment, and testing of a human subject without informed consent, as well as the Act‘s prohibition against fraud and deceit in connection with psychological services, and the Act‘s prohibition against violations of Chapter 81 of the Civil Practice and Remedies Code for sexual exploitation by a mental health provider.

REQUEST FOR BOARD ACTION

I convey these observations and opinions to the Board not only as a citizen, but in my role as its licensee, mindful that I “must report conduct by a licensee that appears to involve harm or the potential for harm to any individual, or a violation of Board rule, a state law or federal law.” I request Board review of this matter and appropriate action.

Jim L. H. Cox, PhD., Helotes, Texas, assisted by Dicky Grigg, Spivey & Grigg, L.L.P., Austin, Texas and Joseph Margulies, Clinical Professor of Law, Roderick MacArthur Justice Center, Northwestern University School of Law, Chicago, IL.

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) and of two other books: Stonehenge: Celebration and Subversion and The Battle of the Beanfield. 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, currently on tour in the UK, and available on DVD here), and my definitive Guantánamo habeas list, 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), 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), UN Secret Detention Report Asks, “Where Are The CIA Ghost Prisoners?” (January 2010), Binyam Mohamed: Evidence of Torture by US Agents Revealed in UK (February 2010), Torture Whitewash: How “Professional Misconduct” Became “Poor Judgment” in the OPR Report (February 2010), Judges Restore Damning Passage on MI5 to the Binyam Mohamed Torture Ruling (February 2010), What Torture Is, and Why It’s Illegal and Not “Poor Judgment” (March 2010), Abu Zubaydah’s Torture Diary (March 2010), Seven Years of War in Iraq: Still Based on Cheney’s Torture and Lies (March 2010), Protests worldwide on Aafia Siddiqui Day, Sunday March 28, 2010 (March 2010), Abu Zubaydah: Tortured for Nothing (April 2010), Mohamedou Ould Salahi: How a Judge Demolished the US Government’s Al-Qaeda Claims (April 2010), Judge Rules Yemeni’s Detention at Guantánamo Based Solely on Torture (April 2010), How Binyam Mohammed’s Torture Was Revealed in a US Court (May 2010), What is Obama Doing at Bagram? (Part One): Torture and the “Black Prison” (June 2010), New Report Reveals How Bush Torture Program Involved Human Experimentation (June 2010), UN Human Rights Council Discusses Secret Detention Report (June 2010), UN Secret Detention Report (Part One): The CIA’s “High-Value Detainee” Program and Secret Prisons (June 2010), UN Secret Detention Report (Part Two): CIA Prisons in Afghanistan and Iraq (June 2010), UN Secret Detention Report (Part Three): Proxy Detention, Other Countries’ Complicity, and Obama’s Record (June 2010). Also see the extensive archive of articles about the Military Commissions.

The actions of that official, David Margolis, were disgraceful, because bending the law out of shape in an attempt to justify the use of torture is clearly illegal, and is particularly distressing when the lawyers involved were working for the Office of Legal Counsel, the department within the Justice Department that is obliged to render impartial legal advice to the Executive branch. The report’s authors made it clear that Yoo “committed intentional professional misconduct when he violated his duty to exercise independent legal judgment and render thorough, objective, and candid legal advice,” and that Bybee “committed professional misconduct when he acted in reckless disregard of his duty to exercise independent legal judgment and render thorough, objective, and candid legal advice.”

However, they also indicated that Yoo and Bybee were not acting alone, as, for example, when they noted that they “found evidence” that the men “tailored their analysis to reach the result desired by the client” — in other words, former Vice President Dick Cheney, who is mentioned as putting “great pressure” on the OLC regarding three revised memos defending the use of torture, which were issued in May 2005 by Acting Assistant Attorney General Stephen Bradbury (who largely escaped censure in the report), and Cheney’s Legal Counsel, David Addington, and White House Deputy Counsel Tim Flanigan, who are mentioned in relation to the original “torture memos” of August 1, 2002. Unsurprisingly, these men were key players in what Philippe Sands (in his book Torture Team) identified as a “War Council” of lawyers who met regularly to plan and implement the legal strategies they wanted for the “War on Terror” — largely without any outside consultation — which consisted of just six men: Addington, Flanigan, Yoo, White House Counsel Alberto Gonzales, William J. Haynes II, the Pentagon’s General Counsel, and his deputy, Daniel Dell’Orto.

The complaint against Dr. James Mitchell

Last Wednesday, however, a new front in the search for accountability opened up, when Texan psychologist Jim L.H. Cox, Ph.D., assisted by Dicky Grigg, a lawyer in Austin, Texas, and Joe Margulies of Northwestern University School of Law in Chicago (who has been involved in the Guantánamo litigation since the prison opened in January 2002) filed a complaint to the Texas State Board of Examiners of Psychologists regarding another architect of the torture program, James Elmer Mitchell (PDF).

The complaint, which accuses Mitchell of numerous grave violations of his duties as a practicing psychologist, ought to be explosive, because Mitchell, along with a colleague, John “Bruce” Jessen, devised the horrendous experimental program that was used on Zubaydah, after his capture in Pakistan on March 28, 2002, and his subsequent rendition to a secret CIA facility in Thailand, which, on August 1, 2002, was ostensibly approved by John Yoo and Jay S. Bybee in their “torture memos.” Explaining Mitchell’s role in Zubaydah’s torture, the complaint stated:

[Mitchell] ordered that Zubaydah be chained to a chair for weeks on end; that he be whipped by the neck into concrete walls; that he be stuffed into a small, black box and left for hours; that he be hung naked from the ceiling; that he be kept awake for 11 consecutive days, and sprayed with cold water if he dozed. But the torture designed by Dr. Mitchell was about to pass to another level. It was time to implement the final stage of Dr. Mitchell’s program.

Abu Zubaydah lay strapped to a gurney specially designed to maximize his suffering. His feet were above his head, just as Dr. Mitchell had ordered. His hands, arms, legs, chest, and head were restrained by heavy leather straps. As Zubaydah lay helpless, Mitchell and his subordinates placed a black cloth over his face and began to pour water onto the cloth. Rivers of water ran up Zubaydah’s nose and down his throat. He could not breathe. Panic gripped him as he began to drown. And when Mitchell sensed that Zubaydah dangled on the precipice between life and death, he ordered that the board be raised. Zubaydah expelled the water in a violent, racking spasm of coughing, gurgling and gasping. But before Zubaydah could catch his breath, Dr. Mitchell repeated the experiment. Then he did it again. And again. According to the United States Government, Abu Zubaydah was waterboarded 83 times in August 2002 alone.

Mitchell’s purported expertise in interrogations came from his involvement as a psychologist in the US Air Force’s SERE program (Survival, Evasion, Resistance and Escape). Similar programs are run by the Army and the Navy, and, as the Senate Armed Services Committee explained in a damning report on the abuse of detainees, issued in December 2008 (PDF), they involve teaching US personnel “to withstand interrogation techniques considered illegal under the Geneva Conventions,” which are “based, in part, on Chinese Communist techniques used during the Korean war to elicit false confessions.” As the Committee proceeded to explain, the techniques used include “stripping detainees of their clothing, placing them in stress positions, putting hoods over their heads, disrupting their sleep, treating them like animals, subjecting them to loud music and flashing lights, and exposing them to extreme temperatures.” In some circumstances, they also include waterboarding.

How the torture program was developed

James Mitchell retired from the SERE program in May 2001, after 13 years’ service, but, as the complaint noted, after the September 11 attacks, he “saw an opportunity to sell his independent consulting services to the CIA.” According to the CIA Inspector General’s “Special Review: Counterterrorism Detention and Interrogation Activities (September 2001 – October 2003),” another important document analyzing the perceived successes and failures of the torture program, which was issued in May 2004 but was only made publicly available (in a heavily redacted form) last August (PDF), Mitchell’s involvement in developing the program began in December 2001, when, in collaboration with a Department of Defense psychologist who also had SERE experience — John “Bruce” Jessen –  he was “tasked … to write a paper on Al-Qaeda’s resistance to interrogation techniques.”

As the New York Times explained last August, Jessen was the SERE psychologist at the Air Force SERE school in the 1980s, but when he “moved in 1988 to the top psychologist’s job at a parallel ‘graduate school’ of survival training, a short drive from the Air Force school,” Mitchell “took his place.” The two men became friends, but the Times profile noted that, although “many subordinates considered them brainy and capable leaders, some fellow psychologists were more skeptical.” Two colleagues recalled that, at an annual conference of SERE psychologists, Mitchell “offered lengthy put-downs of presentations that did not suit him,” and Jessen ran into trouble when he moved from being a supervising psychologist to a mock enemy interrogator. According to colleagues, he “became so aggressive in that role” that they “intervened to rein him in, showing him videotape of his ‘pretty scary’ performance.”

This should have been an early warning sign for Jessen of the dangers of what the Senate Armed Services Committee report identified as “behavioral drift, which if left unmonitored, could lead to abuse of students,” and which, in a real-world scenario, involving alleged threats to the national security of the United States, was even more likely to occur. However, Jessen and Mitchell failed to pay it any attention, and in December 2001, despite having no experience whatsoever of al-Qaeda or of real-life interrogations, the two men produced a paper entitled, “Recognizing and Developing Countermeasures to Al-Qaeda Resistance to Interrogation Techniques: A Resistance Training Perspective,” which clearly met with approval. As the CIA IG report continued, “Subsequently, the two psychologists developed a list of new and more aggressive EITs [“enhanced interrogation techniques”] that they recommended for use in interrogations.”

The techniques recommended by Mitchell and Jessen included slamming prisoners into walls, cramped confinement, the prolonged use of painful stress positions, sleep deprivation for up to 11 days at a time, and waterboarding, and, as the New York Times explained last August, by early 2002, Mitchell was consulting with the CIA’s Counterterrorist Center, where director Cofer Black, and chief operating officer Jose A. Rodriguez Jr. were “impressed by his combination of visceral toughness and psychological jargon.” One witness said Mitchell “gave the CIA officials what they wanted to hear,” and by the end of March, when Abu Zubaydah was seized, “the Mitchell-Jessen interrogation plan was ready.”

This was in spite of numerous criticisms identified in the complaint filed last week, and in the Senate Armed Services Committee report. One of Mitchell and Jessen’s most prominent critics is Air Force Colonel Steve Kleinman, described in the complaint as “a former colleague at SERE who was also a career military interrogator with training in intelligence.” Col Kleinman stated that:

[W]hen Dr. Mitchell and Dr. Jessen became involved in CIA interrogations, “that was their first step into the world of intelligence … Everything else was role-play.” “What [Dr. Mitchell and Dr. Jessen] failed to understand was they were stepping out of their area of expertise,” yet they nonetheless promoted themselves as offensive interrogation experts despite the “disconnect between the SERE model, a resistance model, and an actual interrogation for intelligence purposes.”

Col. Kleinman has also stated, “I think they have caused more harm to American national security than they’ll ever understand,” and other high-level criticism has come from Michael Rolince, the former section chief of the FBI’s International Terrorism Operations, who described the methods employed by Mitchell and Jessen as “voodoo science.”

The importance of the timing of Mitchell’s involvement

The exact timing of Mitchell and Jessen’s involvement in developing the program is crucial, although it is not addressed in the complaint, because it is clear from the Senate Armed Services Committee report into detainee abuse that, in December 2001, William J. Haynes II, the Pentagon’s General Counsel (and a protégé of Vice President Dick Cheney), had begun soliciting advice from the Joint Personnel Recovery Agency (the DoD agency responsible for the SERE program). As the New York Times reported last August, that same month Mitchell’s involvement seems to have begun when he was invited as a member of “a small group of professors and law enforcement and intelligence officers,” including CIA psychologist Kirk M. Hubbard, who “gathered outside Philadelphia at the home of a prominent psychologist, Martin E. P. Seligman, to brainstorm about Muslim extremism.” As the Times also explained, to the later horror of Seligman, who had pioneered the notion of “learned helplessness” — whereby animals were taught through mistreatment that resistance was futile — Mitchell told him how much he admired his work, which, of course, fed directly into his plans for terrorist suspects captured in the “War on Terror.”

The timing is central, because it is necessary to understand that Mitchell and Jessen — though fired up by their own enthusiasm for reverse engineering SERE techniques — were not acting alone, and were, in effect, exactly the kind of individuals that Haynes, other members of the “War Council” and Cheney were already looking for.

I stress this point because, otherwise, the impression given by the complaint filed last week may be that Mitchell and Jessen acted independently, when, like the lawyers in the Office of Legal Counsel, they were clearly part of a program that was endorsed at the highest levels of the administration.

Mitchell’s numerous ethical violations

Nevertheless, in dealing specifically with James Mitchell’s role as one of the two key architects of the torture program, the complaint filed last week is devastating. As the authors of the complaint explained, “Dr. Mitchell has sullied his profession by violating the standards demanded by the Psychologists’ Licensing Act and the Board’s Rules of Practice,” specifically because he “misrepresented his professional qualifications and experience to the Central Intelligence Agency” in order to “achieve his ultimate plan of implementing a brutal interrogation and torture regime”; because he “designed this torture regime only by ignoring the complete lack of a scientific basis for the regime’s safety and — assuming its safety — its effectiveness”; and, “most ominously,” because he “himself tortured prisoners held in US custody and directly supervised others who engaged in torture at his direction.”

The complaint is worth reading in its entirety, partly because of its detailed explanations of Mitchell’s unprofessional activities, as, for example, when the authors note that, “At no time prior to implementing these programs did Dr. Mitchell conduct experiments, publish research about offensive interrogation techniques, or subject his theories to peer-review in a publicly-available forum,” and that his “failure to verify his interrogation regime using scientifically sound, empirical methods therefore constitutes direct violations of the Board’s Rule of Practice requiring licensees to rely on scientifically and professionally derived knowledge when making professional judgments and the Rule requiring licensees to take reasonable steps to ensure the safety of others involved in emerging fields of study.”

Why this story is bigger than Dr. James Mitchell

Moreover, the complaint also covers extensively what was actually involved in the torture of Abu Zubaydah, beyond the short summary at the start of this article, and leaves some tantalizing unanswered questions regarding the involvement of the CIA in developing the program. According to the CIA Inspector General’s 2004 report, the CIA’s Office of Medical Services (OMS) “was neither consulted nor involved in the initial analysis of the risk and benefits of EITs,” and claimed that “the reported sophistication of the preliminary EIT review was exaggerated, at least as it related to the waterboard, and that the power of this EIT was appreciably overstated.” The OMS also stated that “there was no a priori reason to believe that applying the waterboard with the frequency and intensity with which it was used by the psychologist/interrogators [Mitchell and Jessen] was either efficacious or medically safe.”

This sounds plausible, but it could indicate an explicit attempt by the CIA — or the OMS, at least — to distance itself from the program as early as 2004, given that the Inspector General concluded the report by stating, “The Agency faces potentially serious long-term political and legal challenges as a result of the CTC [Counterterrorism Center] Detention and Interrogation Program, particularly its use of EITs and the inability of the US Government to decide what it will ultimately do with terrorists detained by the Agency.”

In 2004, when Abu Zubaydah and 27 other supposed “high-value detainees” were held in secret CIA prisons, that last concern must have weighed heavily. It is no less significant now, even though 14 of the men in question, including Zubaydah, are now held in Guantánamo, and this is not only because the whereabouts of 13 others are unknown (and one, Ibn al-Shaykh al-Libi, died in mysterious circumstances last May, having been returned to Libya), but also because the Obama administration has no idea what to do with Abu Zubaydah, the “guinea pig” for the torture program, who, after his horrendous treatment, was revealed not as a significant al-Qaeda leader, but as a mentally-damaged training camp facilitator, whose relationship with al-Qaeda was, at most, minimal.

When it comes to passing the buck for implementing torture, however, the CIA is also on shaky ground. In the complaint filed last week, James Mitchell was rightly targeted for his deeply disturbing role as a psychologist who spurned his professional obligations when, as the authors state bluntly, he “tortured prisoners in US custody,” but as is clear from the complaint and from other reports mentioned above, those involved in the program included senior CIA officials — director George Tenet, CTC director Cofer Black, and CTC chief operating officer Jose A. Rodriguez Jr. — as well as former Vice President Dick Cheney and the members of his “War Council” — David Addington, Alberto Gonzales, Tim Flanigan, John Yoo, William J. Haynes II and Daniel Dell’Orto — and other senior administration officials identified in the Senate Armed Services Committee’s report into detainee abuse, including former President George W. Bush and former defense secretary Donald Rumsfeld.

If there is to be any accountability for those who played a part in the introduction of a widespread US torture program whose brutal inefficiency both started with and was demonstrated through the torture of Abu Zubaydah, the compliant filed last week against James Mitchell ought to revive demands for a thorough investigation. To paraphrase President Obama, an investigation would need to look backwards so that America can look forward again without having to hide the dark truth about torture that continues to infect the way America views itself, and the way it is perceived by other countries — and the only way to do that is to hold the Bush administration’s torturers to account.

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) and of two other books: Stonehenge: Celebration and Subversion and The Battle of the Beanfield. 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, currently on tour in the UK, and available on DVD here), and my definitive Guantánamo habeas list, and, if you appreciate my work, feel free to make a donation.

As published exclusively on Cageprisoners. Cross-posted on Common Dreams, Eurasia Review, The Public Record, The Smirking Chimp, Uruknet and The Mormon Worker.

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), UN Secret Detention Report Asks, “Where Are The CIA Ghost Prisoners?” (January 2010), Binyam Mohamed: Evidence of Torture by US Agents Revealed in UK (February 2010), Torture Whitewash: How “Professional Misconduct” Became “Poor Judgment” in the OPR Report (February 2010), Judges Restore Damning Passage on MI5 to the Binyam Mohamed Torture Ruling (February 2010), What Torture Is, and Why It’s Illegal and Not “Poor Judgment” (March 2010), Abu Zubaydah’s Torture Diary (March 2010), Seven Years of War in Iraq: Still Based on Cheney’s Torture and Lies (March 2010), Protests worldwide on Aafia Siddiqui Day, Sunday March 28, 2010 (March 2010), Abu Zubaydah: Tortured for Nothing (April 2010), Mohamedou Ould Salahi: How a Judge Demolished the US Government’s Al-Qaeda Claims (April 2010), Judge Rules Yemeni’s Detention at Guantánamo Based Solely on Torture (April 2010), How Binyam Mohammed’s Torture Was Revealed in a US Court (May 2010), What is Obama Doing at Bagram? (Part One): Torture and the “Black Prison” (June 2010), New Report Reveals How Bush Torture Program Involved Human Experimentation (June 2010), UN Human Rights Council Discusses Secret Detention Report (June 2010), UN Secret Detention Report (Part One): The CIA’s “High-Value Detainee” Program and Secret Prisons (June 2010), UN Secret Detention Report (Part Two): CIA Prisons in Afghanistan and Iraq (June 2010), UN Secret Detention Report (Part Three): Proxy Detention, Other Countries’ Complicity, and Obama’s Record (June 2010). Also see the extensive archive of articles about the Military Commissions.

I do, however, urge everyone to read the whole report, because the introduction and conclusions are important, as are the sections establishing the legal approach to secret detention and its historical context, the section detailing current practices in 25 other countries worldwide, and the annexes, which contain government responses to a questionnaire about secret detention, and a number of case studies.

Given the length of this section of the report (pp. 43-89), I’m publishing it in three parts. The first, published here, provided an introduction, and dealt with “The ‘high-value detainee’ programme and CIA secret detention facilities,” the second looked at “CIA detention facilities or facilities operated jointly with United States military in battlefield zones,” and the third, published below, looks at “Proxy detention sites,” “Complicity in the practice of secret detention” and “Secret detention and the Obama administration.”

Please note that I have inserted hyperlinks where possible. However, the original report contains footnotes, and not all of these provide links to websites. In most cases, I have added the information contained in the footnotes in square brackets, but for full details, please see the original.

Excerpts from the UN “Joint Study on Global Practices in Relation to Secret Detention in the Context of Counter-Terrorism,” February 2010

Prepared by Martin Scheinin, the Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism, Manfred Nowak, the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment, Shaheen Ali, the vice-chair of the Working Group on arbitrary detention, and Jeremy Sarkin, the chair of the Working Group on enforced or involuntary disappearances.

C.  Proxy detention sites

141. Since 2005, details have emerged of how the United States was not only secretly capturing, transferring and detaining people itself, but also transferring people to other States for the purpose of interrogation or detention without charge. The practice had apparently started almost simultaneously with the high-value detainee programme. The British Government transmitted to the experts a summary of conclusions and recommendations of the Intelligence and Security Committee report on rendition (2007), in which it was noted that “the Security Service and SIS were … slow to detect the emerging pattern of “renditions to detention” that occurred during 2002” [The summary was sent in response to a questionnaire on allegations of rendition and detention sent by the Working Group on Enforced and Involuntary Disappearances, dated 8 July 2009]. The CIA appears to have been generally involved in the capture and transfer of prisoners, as well as in providing questions for those held in foreign prisons. Beyond that, a clear pattern is difficult to discern: some prisoners were subsequently returned to CIA custody (and were  generally sent on to Guantanamo), while others were sent back to their home countries, or remained in the custody of the authorities in third countries.

142. The Government of the United States has acknowledged that “some enemy combatants have been transferred to their countries of nationality for continued detention” [E/CN.4/2004/3, para. 69]. In its report to the Committee against Torture on 13 January 2006, the Government attempted to deflect criticism of its policy of sending detainees to countries with poor human rights records, including those where they might face the risk of torture, declaring that “the United States does not transfer persons to countries where the United States believes it is ‘more likely than not’ that they will be tortured … The United States obtains assurances, as appropriate, from the foreign government to which a detainee is transferred that it will not torture the individual being transferred” [CAT/C/48/Add.3/Rev.1, para. 30. See also the reply of the Government to a general allegation regarding the its involvement in one case of extraordinary rendition transmitted by the Working Group on Enforced or Involuntary Disappearances, in which it affirmed that “the United States does not transport individuals from one country to another for the purpose of interrogation using torture. Furthermore, the United States has not transported individuals, and will not transport individuals to a country where the Government believes they will be tortured” (A/HRC/10/9, para. 425)]. Various United Nations bodies, including the experts and the Committee against Torture, have criticized heavily this policy of “extraordinary rendition” in a detailed way in the past, defining it as a clear violation of international law. They also expressed concern about the use of assurances [See A/HRC/6/17/Add.3, para. 36; A/HRC/4/40, paras. 43 and 50; E/CN.4/2004/3, para. 69; A/HRC/4/41, para. 458 and A/60/316, para. 45; CAT/C/USA/CO/2, paras. 20-21; and A/60/316, E/CN.4/2006/6 and A/HRC/4/40, paras. 52-56].

143. Given the prevailing secrecy regarding the CIA rendition programme, exact figures regarding the numbers of prisoners transferred to the custody of other Governments by the CIA without spending any time in CIA facilities are difficult to ascertain. Equally, little is known about the number of detainees who have been held at the request of other States, such as the United Kingdom and Canada. While several of these allegations cannot be backed up by other sources, the experts wish to underscore that the consistency of many of the detailed allegations provided separately by detainees adds weight to the inclusion of Jordan, Egypt, Morocco, the Syrian Arab Republic, Pakistan, Ethiopia and Djibouti as proxy detention facilities where detainees have been held on behalf of the CIA. Serious concerns also exist about the role of Uzbekistan as a proxy detention site.

1.  Jordan

144. At least 15 prisoners, mostly seized in Karachi, Pakistan, or in the Pankisi Gorge in Georgia, claim to have been rendered by the CIA to the main headquarters of the General Intelligence Department of Jordan in Amman, between September 2001 and 2004. They include three men and one juvenile subsequently transferred to Guantanamo via Afghanistan:

• Jamal Mar’i, a Yemeni, and the first known victim of rendition in the wake of the attacks of 11 September 2001. Seized from his house in Karachi, on 23 September 2001, he was held for four months in Jordan before being flown to Guantanamo, where he remains [PDF, pp. 130-44] [Postscript: he was freed in December 2009].

• Mohamedou Ould Slahi, a Mauritanian, was rendered to Jordan after handing himself to Mauritanian authorities on 28 November 2001. Mr. Slahi was held in Jordan for eight months, and described what happened to him as “beyond description”. He was then transferred to Afghanistan, where he spent two weeks, and arrived in Guantanamo, where he remains, on 4 August 2002 [PDF, pp. 28-38; PDF, pp. 184-218][Postscript: he won his habeas petition in March 2010].

• Ali al-Hajj al-Sharqawi, a Yemeni, was rendered to Jordan after his capture in Karachi on 7 February 2002. Flown to Afghanistan on 8 January 2004, he was held there for eight months, then flown to Guantanamo on 20 September 2004. Still held at Guantanamo, he has stated that he was continuously tortured throughout his 23 months in Jordan. [Postscript: his torture was referred to by a US judge in this habeas petition].

• Hassan bin Attash, a Saudi-born Yemeni, was 17 years old when he was seized in Karachi on 11 September 2002 with Ramzi bin al-Shibh. He was held in Jordan until  8 January 2004, when he was flown to Afghanistan with Ali al-Hajj al-Sharqawi. He was then delivered to Guantanamo with al-Sharqawi on 20 September 2004. Still held at Guantanamo, he has stated that he was tortured throughout his time in Jordan.

145. Also held were Abu Hamza al-Tabuki, a Saudi seized by United States agents in Afghanistan in December 2001 and released in Saudi Arabia in late 2002 or early 2003, and Samer Helmi al-Barq, seized in Pakistan on 15 July 2003, who was kept for three months in a secret prison outside Pakistan, before being transferred to Jordan on 26 October 2003. He was released on bail in January 2008 [Others reportedly held in Jordan are Jamil Qasim Saeed Mohammed, a Yemeni student rendered from Karachi on 23 October 2001, who has not been heard of since; Ibrahim al- Jeddawi, a Saudi seized in Yemen (or Kuwait) in the first half of 2002, who was reportedly transferred to Saudi custody; at least five other men (three Algerians, a Syrian and a Chechen), seized in Georgia in 2002; an Iraqi Kurd, possibly seized in Yemen; and a Tunisian, seized in Iraq. The current whereabouts of all these men is unknown. According to former prisoners interviewed by Human Rights Watch, Ramzi bin al-Shibh, seized with Hassan bin Attash and one of 14 “high-value detainees” transferred to Guantanamo in September 2006, was also held in Jordan for an unspecified amount of time, as was Ibn al-Sheikh al-Libi, seized in Afghanistan in late 2001, who was subjected to multiple renditions. See also para. 146. For Samer Helmi al-Barq, see Amnesty International, submission to the United Nations Universal Periodic Review, February 2009 (PDF)].

2.  Egypt

146. At least seven men were rendered to Egypt by the CIA between September 2001 and February 2003, and another was rendered to Egypt from the Syrian Arab Republic, where he had been seized at the request of the Canadian authorities:

• Abdel Hakim Khafargy, an Egyptian-born, Munich-based publisher, was allegedly seized in Bosnia and Herzegovina on 24 September 2001, and rendered to Egypt a few weeks later, after being held by United States forces at its base in Tuzla. He was returned to Germany two months later [PDF].

• Mamdouh Habib, an Australian seized in Pakistan in November 2001, was rendered to Egypt three weeks later and held for six months. Transferred to Guantanamo in June 2002, he was released in January 2005. He claims to have been tortured throughout his time in Egypt [For recent developments, see this article].

• Muhammad Saad Iqbal Madni, a Pakistani-Egyptian national, was seized by the Indonesian authorities in Jakarta on 9 January 2002, flown first to Egypt and then to Bagram, where he was held for 11 months. He arrived in Guantanamo on 23 March 2003 and was released in August 2008. Mr. Madni indicated that, during his detention in Cairo, he was subjected to ill-treatment, including electroshocks applied to his head and knees and, on several occasions, he was hung from metal hooks and beaten. Furthermore, he reported that was denied medical treatment for the blood in his urine [Interview with Muhammad Saad Iqbal Madni (annex II, case 15)].

• As confirmed by the Government of Sweden in its response to a letter sent by the experts, following a decision made by the Government to refuse asylum in Sweden to the Egyptian citizens Mohammed Alzery and Ahmed Agiza and to expel them, they were deported to Egypt by the Swedish Security Police with the assistance of the United States authorities (CIA). Both have said that they were tortured in Egyptian custody [Agiza v Sweden, communication 233/2003 (CAT/C/34/D/233/2003); and Alzery v Sweden, communication 1416/2006 (CCPR/C/88/D/1416/2005)]. Alzery was released on 12 October 2003 without charge or trial, but was placed under police surveillance. Ahmed Agiza had already been tried and sentenced in absentia by an Egyptian military court at the time of the decision by the Government of Sweden to deport him. In April 2004, the court’s decision was confirmed and Agiza was convicted on terrorism charges following a trial monitored by Human Rights Watch, which described it as “flagrantly unfair”.

• Ibn al-Sheikh al-Libi, a Libyan, an emir of the Khaldan training camp in Afghanistan, was seized by Pakistani officials in late 2001 while fleeing Afghanistan and was rendered to Egypt where, under torture, he claimed that there were links between Al-Qaida and Saddam Hussein, which were used by the United States administration to justify the invasion of Iraq. Also held in secret CIA detention sites in Afghanistan, and possibly in other countries, he was returned to the Libyan Arab Jamahiriya in 2006, where he reportedly died by committing suicide in May 2009.

• Hassan Mustafa Osama Nasr (also known as Abu Omar), an Egyptian, was kidnapped in Milan on 17 February 2003, and rendered to Egypt, where he was held for four years (including 14 months in secret detention) before being released [For more details on this case, in particular with regard to the abduction of Abu Omar in Milan and the ensuing judicial proceedings in Italy, see the section on Italian complicity in the renditions programme below]. Allegations of ill-treatment in Egyptian detention include being hung upside down and having had electric shocks applied to his testicles [PDF, p, 4].

The eighth man, Ahmad Abou El-Maati, a Canadian-Egyptian national, was seized at Damascus airport on his arrival from Toronto on 11 November 2001. He was held in the Far Falestin prison in the Syrian Arab Republic until 25 January 2002, when he was transferred to Egyptian custody, where he remained in various detention sites (including in secret detention until August 2002) until his release on 7 March 2004. During the initial period of his detention in Egypt, he was subjected to heavy beatings and threats of rape against his sister. At a later stage during the secret detention phase, he was handcuffed with his hands behind his back practically continuously for 45 days in a solitary confinement cell, which he described as being very painful and which made it hard to use the toilet and wash. He was also subjected to sleep deprivation [Internal inquiry into the actions of Canadian officials in relation to Abdullah Almalki, Ahmad Abou-Elmaati and Muayyed Nureddin, pursuant to an Order in Council dated 11 December 2006.  See also Commission of inquiry into the actions of Canadian officials in relation to Maher Arar, report of the fact finder of 14 October 2005].

3.  Syrian Arab Republic

147. At least nine detainees were rendered by the CIA to the Syrian Arab Republic between December 2001 and October 2002, and held in Far Falestin, run by Syrian Military Intelligence. All those able to speak about their experiences explained that they were tortured. As in the case of Egypt (see para. 146 above), other men were seized at the request of the Canadian authorities:

• Muhammad Haydar Zammar, a German national, was seized in Morocco on 8 December 2001, and rendered by the CIA to Far Falestin on 22 December 2001. In October 2004, he was moved to an “unknown location”; in February 2007, he received a 12-year sentence from the Higher State Security Court. He was convicted of being a member of the banned Muslim Brotherhood, a crime punishable by death in the Syrian Arab Republic [See A/HRC/7/4/Add.1., this Amnesty International appeal, and CAT/C/49/Add.4]. In its reply for the present study, the Government of Morocco indicated that the police had arrested Mr. Zammar following information that he had been implicated in the events of 11 September 2001. The Government also stated that Mr. Zammar had not been subjected to secret or arbitrary detention in Morocco, and that he had been transferred to the Syrian Arab Republic on 30 December 2001, in the presence of the Syrian Ambassador accredited to Morocco.

• Three detainees were rendered to the Syrian Arab Republic on 14 May 2002: Abdul Halim Dahak, a student seized in Pakistan in November 2001, Omar Ghramesh and an unnamed teenager, the latter being seized with Abu Zubaydah in Faisalabad, Pakistan, on 28 March 2002 [Stephen Grey, Ghost Plane: The Inside Story of the CIA’s Rendition Programme, Hurst & Co., 2006), pp. 4, 54 and 284]. All had been tortured. Their current whereabouts are unknown.

• Noor al-Deen, a Syrian teenager, was captured with Abu Zubaydah and rendered to Morocco, then to the Syrian Arab Republic. His current whereabouts are unknown.

• According to Abdullah Almalki (see para. 148 below), two other prisoners, Barah Abdul Latif and Bahaa Mustafa Jaghel, were also transferred from Pakistan to the Syrian Arab Republic, the first in February/March 2002, the second in May 2002. Both had been tortured. Their current whereabouts are unknown.

• Yasser Tinawi, a Syrian national seized in Somalia on 17 July 2002, was flown to Ethiopia by United States agents, who interrogated him for three months. On 26 October, he was flown to Egypt; on 29 October 2002, he arrived in the Syrian Arab Republic. In March 2003, he received a two-year sentence from a military court.

• Maher Arar, a Canadian-Syrian national, was seized at John F. Kennedy airport in New York on 26 September 2002, held for 11 days in the Metropolitan Detention Centre in Manhattan, then rendered to the Syrian Arab Republic on 8 October, via Jordan [A/HRC/4/33/Add.3, paras. 33, 43-45, footnote 11], where he was held in secret detention at Far Falestin until later that month. Jordan alleged that Mr. Arar had arrived in Amman as an ordinary passenger, but was asked to leave the country because his name was on a list of wanted terrorists, and given a choice of destination. It also alleged that he had asked to be voluntarily taken by car to the Syrian Arab Republic. During his period at Far Falestin, he was severely beaten with a black cable and threatened with electric shocks: “The pattern was for Mr. Arar to receive three or four lashes with the cable then to be questioned, and then for the beating to begin again.” The torture allegations were found to be completely consistent with the results of the forensic examinations conducted in Canada. On 14 August 2003, Mr. Arar was moved to Sednaya prison and released on 29 September. The official inquiry in the Arar case also stressed the catastrophic impact of the described events in terms of his and his family’s economic situation and his family life in general.

148. When Ahmad Abou El-Maati (see para. 146) was held in Far Falestin in the Syrian Arab Republic, he was held in solitary confinement in poor conditions and subjected to ill-treatment, including blindfolding, forced to remove almost all his clothes, beaten with cables, forcible shaving and had ice-cold water poured on him. Abdullah Almalki, a Canadian-Syrian national, also spent time in secret detention in the Syrian Arab Jamahiriya, in Far Falestin, from 3 May to 7 July 2002, when he received a family visit. On 25 August 2003, he was sent to Sednaya prison. He was released on 10 March 2004. He returned to Canada on 25 July 2004 after being acquitted of all charges by the Syrian State Supreme Security court [Internal inquiry, paras. 10-38] .

149. Another Canadian, Muayyed Nureddin, an Iraqi-born geologist, was detained on the border of the Syrian Arab Republic and Iraq on 11 December 2002, when he returned from a family visit in northern Iraq. He was secretly detained for a month in Far Falestin, then released on 13 January 2003 [Internal inquiry, paras. 10-38].

150. In its response to the questionnaire sent by the experts, the Government of the Syrian Arab Republic stated that the country had no secret prisons or detention centres. There were no cases of secret detention, and no individuals had been arrested without the knowledge of the competent authorities. No authorization had been granted to the security service of any foreign State to establish secret detention facilities in the Syrian Arab Republic. A number of foreign individuals had been arrested in the country at the request of other States, and had been informed of the legal basis for the arrests and their places of detention. The above-mentioned States were also informed of whether the individuals concerned had been brought before the Courts or transferred outside of the country. Individuals belonging to different terrorist groups had been prosecuted and detained in public prisons, in compliance with relevant international standards. They would be judged by the competent judicial authorities. Court proceedings would be public and be held in the presence of defence lawyers, families, human rights activists and foreign diplomats. Some would be publicized through the media. The Interpol branch within the Security Service of the Ministry of the Interior was cooperating with international Interpol branches with regard to suspected terrorist and other criminal activities.

4.  Morocco

151. At least three detainees were rendered to Morocco by the CIA between May and July 2002, and held in Temara prison, including the following:

• Abou Elkassim Britel, of Moroccan origin and an Italian citizen through marriage and naturalization, was seized in Lahore, Pakistan, on 10 March 2002. He stated that he was tortured in Pakistani custody. On 23 May 2002, he was rendered by the CIA to Morocco, where he was held in secret detention until February 2003, and where he alleged he was also tortured. He was released in February 2003, but in May 2003 was seized again, held for another four months in Temara, then sentenced to 15 years in prison, which was reduced to nine years on appeal [Interview with Khadija Anna L. Pighizzini, wife of Abou Elkassim Britel (annex II, case 7)]. In its submission for the present study, the Government of Morocco stated that Mr. Britel had not been subjected to “arbitrary detention or torture” between May 2002 and February 2003, or between May and September 2003.

• Binyam Mohamed, an Ethiopian national and British resident, was seized in Karachi, Pakistan, on 10 April 2002. He was held for approximately three months, during which time he was subjected to torture. On 21 July 2002, he was rendered by the CIA to Morocco, where he was held for 18 months in three different unknown facilities. During that period, he was allegedly threatened, subjected to particularly severe torture and other forms of ill-treatment; deprived from sleep for up to 48 hours at a time; and his prayers were interrupted by turning up the volume of pornographic movies. In January 2004, he was flown to the CIA “dark prison” in Kabul, and in May he was moved to Bagram. He was flown to Guantanamo on 20 September 2004, and was released in February 2009 [Interview with Binyam Mohamed (annex II, case 18); see also the finding of two British High Court judges that the treatment to which he had been subjected presented an “arguable case of torture, or cruel, inhuman or degrading treatment” (PDF)] [The third prisoner is Noor al-Deen (see para. 147), who was moved to the Syrian Arab Republic in 2003].

5.  Pakistan

152. From December 2001 until the summer of 2002, when the majority of the detainees who ended up in Guantanamo were seized, detention facilities in Pakistan, where several hundred detainees were held before being transferred to Kandahar or Bagram, were a crucial component of what was then, exclusively, a secret detention programme. Many of these men, seized near the Pakistani border, or while crossing from Afghanistan to Pakistan, were held in prisons in Kohat and Peshawar, but others were held in what appear to be impromptu facilities, which were established across the country in numerous locations. The then President of Pakistan, Pervez Musharraf, stated that:

Since shortly after 9/11, when many Al-Qaida members fled Afghanistan and crossed the border into Pakistan, we have played multiple games of cat and mouse with them. The biggest of them all, Osama bin Laden, is still at large at the time of this writing, but we have caught many, many others. Some are known to the world, some are not. We have captured 672 and handed over 369 to the United States. We have earned bounties totalling millions of dollars [Pervez Musharraf, In The Line Of Fire: A Memoir, Free Press, 2006].

153. Two former prisoners, Moazzam Begg and Omar Deghayes, described their experiences of secret detention in Pakistan to the experts:

Omar Deghayes, a Libyan national and British resident, was arrested in April 2002 at his home in Lahore after a hundred people in black tracksuits surrounded the house. In the presence of an American officer, he was then taken, handcuffed and hooded, to a police station and, shortly afterwards, to an old fortress outside Lahore, where he was held with other men from Palestine, Tunisia, the Libyan Arab Jamahiriya and Egypt, and beaten and kicked, and heard electroshocks and people screaming. According to his account, “the place was run by Pakistanis and appeared to be a maximum security prison for extremist opponents that were traded with different States such as Libya and the United States.” He also stated that he was tortured for a month without any contact with the external world, and that the ill-treatment included punching, beating, kicking, stripping, being hit in the back with wooden sticks, and stress positions for up to three days and three nights. In mid-May, two Americans in plain clothes visited, took photographs and asked questions. He was then moved to a place in Islamabad, which looked like a barracks, where he was held incommunicado for one month without access to a lawyer or ICRC, and was interrogated in a nearby house by American officers, who identified themselves as CIA, and, on one occasion, by a British agent from MI6. He said that torture took place in the barracks but not during the interrogations, and that he was subjected to drowning and stress positions, and recalled a room full of caged snakes that guards threatened to open if he did not speak about what he had done in Afghanistan. He then met with British and American officers, who finally “acquired” him with other detainees, and took him to Bagram, where he was heavily tortured and sexually abused by American soldiers. He was flown to Guantanamo in August 2002, and released in December 2007 [Interview with Omar Deghayes (annex II, case 8)].

Moazzam Begg, a British citizen, moved to Kabul, with his wife and three children, to become a teacher and a charity worker in 2001. After leaving Afghanistan in the wake of the United States-led invasion, on 31 January 2002, he was abducted from a house in Islamabad, where he was living with his family, and taken to a place in Islamabad (not an official detention facility), where those who held him were not uniformed officers and there were people held in isolation. Held for three weeks, he was moved to a different venue for interviews with American and British intelligence officers, but his wife did not know where he had been taken, and he was denied access to a lawyer or consular services. He was then taken to a military airport near Islamabad and handed over to American officers. He was held in Afghanistan and Guantanamo for three years, and was released in January 2005 [Interview with Moazzam Begg (annex II, case 6)].

6.  Ethiopia

154. The Government of Ethiopia served as the detaining authority for foreign nationals of interest to United States and possibly other foreign intelligence officers between 30 December 2006 and February 2007 [For allegations in interviews conducted by Federal Bureau of Investigation officers, see for example the case of Meshal vs Higgenbotham. See also Human Rights Watch, “Why am I still here?: the 2007 Horn of Africa renditions and the fate of those still missing” (PDF)]. On 2 May 2007, a number of special procedures addressed the Government of Ethiopia, adding the following details:

In December 2006, the conflict between the militias of the Council of Somali Islamic Courts and the Transitional Federal Government of Somalia, supported by armed forces of Ethiopia, caused a large flow of refugees seeking to cross the border from Somalia into Kenya. On 2 January 2007, Kenyan authorities announced the closure of the border for security reasons. Since then, it is reported that the Kenyan security forces have been patrolling the border and have arrested a number of those seeking to cross it. Kenya has deported at least 84 of those arrested back to Somalia, from where they were taken to Ethiopia [A/HRC/7/3/Add.1, para. 71].

155. The experts interviewed two of those captured between December 2006 and February 2007: Bashir Ahmed Makhtal (mentioned in the Special Rapporteur’s communication) and Mohamed Ezzoueck. The latter, a British national, was detained on 20 January 2007 in Kiunga village, Kenya, after crossing the Somali-Kenyan border and then transferred to Nairobi, where he was held in three different locations. Mr. Ezzoueck reported having been detained in Kenya for about three weeks and then transferred to Somalia, where he was held for a few days before being transferred, via Nairobi, back to London. According to his testimony, he was interrogated by a Kenyan army major and Kenyan intelligence service officers, FBI officers and British security services officers, and repeatedly asked about his involvement with terrorist groups, including Al Qaida [Interview with Mohamed Ezzouek (annex II, case 10)]. Mr. Makhtal, an Ethiopian-born Canadian, was arrested on the border between Kenya and Somalia on 30 December 2006 by intelligence agents and held at a police detention centre. He was subsequently transferred by car to a prison cell in Gigiri police station in Nairobi. On 21 January 2007, the Kenyan authorities sent him to Mogadishu. On the following day, he was taken to Addis Ababa by an Ethiopian military plane. He was then held for approximately 18 months incommunicado in Mekalawi federal prison, often in solitary confinement and in poor conditions, then ultimately sentenced to life imprisonment by the High Court of Ethiopia [Interview with Bashir Makhtal (annex II, case 16)].

156. In a letter dated 23 May 2007, the Government of Ethiopia informed the relevant special procedures mandate holders that the Transitional Federal Government of Somalia had handed over to Ethiopia 41 individuals captured in the course of the conflict in Somalia; most of these detainees had been released. Only eight of the detainees remained in custody by order of the court. The Government also noted that “the allegation that there are more than seventy others in addition to those named in the communication is false, as are the allegations that the detainees are held incommunicado, and that they might be at risk of torture” [A/HRC/7/3/Add.1, para. 71]. However, in September 2008, Human Rights Watch published a report stating that at least 10 detainees were still in Ethiopian custody, and the whereabouts of others were unknown [PDF].

7.  Djibouti

157. The experts received information proving that a detainee in the CIA secret detention programme, Mohammed al-Asad, had been transferred by Tanzanian officials by plane to Djibouti on 27 December 2003 [High Court of Tanzania at Dar es Salaam, criminal application No. 23 of 2004, Abdullah Salehe Mohsen al-Asad vs. Director of Immigration Services ex parte Mohamed Abdullah Salehe Mohsen Al-Asaad counter affidavit, 30 June 2004]. In Djibouti, Mr. al-Asad was detained for two weeks in secret detention, where he was interrogated by a white English-speaking woman and a male interpreter, mostly on his connections to the al-Haramain foundation. The woman identified herself as American. Mr. al-Asad’s own recollection is consistent with his having been held in Djibouti. One of his guards told him that he was in Djibouti and there was a photograph of President Guelleh on the wall of the detention facility. After approximately two weeks, Mr. al-Asad was taken to an airport in Djibouti, where a team of individuals dressed entirely in black stripped him, inserted an object in his rectum, diapered and photographed him, and strapped him down in a plane. The detention site may have been in Camp Lemonier, which allegedly has been used on a short-term or transitory basis for several detainees being transferred to secret detention elsewhere.

8.  Uzbekistan

158. No confirmation has ever been provided by either the Government of the United States or that of Uzbekistan that detainees were rendered to proxy prisons in Uzbekistan. In May 2005, however, the New York Times spoke to “a half-dozen current and former intelligence officials working in Europe, the Middle East and the United States” who stated that the United States had sent terror suspects to Uzbekistan for detention and interrogation. A United States intelligence official estimated that the number of terrorism suspects sent by the United States to Tashkent was in the dozens. The New York Times also obtained flight logs, showing that at least seven flights were made to Uzbekistan from early 2002 to late 2003” by two planes associated with the CIA rendition programme (a Gulfstream jet and a Boeing 737), and noted that, on 21 September 2003, both planes had arrived at Tashkent. According to the newspaper, the flight logs showed that “the Gulfstream had taken off from Baghdad, while the 737 had departed from the Czech Republic”. On 14 August 2009, the BBC interviewed Ikrom Yakubov, an Uzbek intelligence officer who has been granted political asylum in the United Kingdom, who stated that the United States had rendered terrorist suspects for questioning to Uzbekistan, but added, “I don’t want to talk about it as there might be serious concerns for my life in the future to discuss renditions.” On 22 August 2009, the story resurfaced once more, when Der Spiegel reported that, in an arrangement between the private security firm Blackwater and the CIA, Blackwater and its subsidiaries had been commissioned “to transport terror suspects from Guantanamo to interrogations at secret prison camps in Pakistan, Afghanistan and Uzbekistan”.

D.  Complicity in the practice of secret detention

159. After September 2006, the direct role of the CIA in secret detentions seemed to have shrunk significantly, with “current and former American Government officials” explaining in May 2009 to the New York Times that, in the last two years of the Bush administration, the Government of the United States had started to rely heavily on the foreign intelligence services to capture, interrogate and detain all but the highest level terrorist suspects seized outside the battlefields of Iraq and Afghanistan. According to the newspaper, “in the past 10 months, … about a half-dozen mid-level financiers and logistics experts working with Al-Qaida have been captured and are being held by intelligence services in four Middle Eastern countries after the United States provided information that led to their arrests by local security services”. Instead of actively detaining persons in secret, the United States — and many other countries — became complicit in the practice of secret detention. For the purposes of the present study, the experts state that a country is complicit in the secret detention of a person in the following cases:

(a) When a State has asked another State to secretly detain a person (covering all cases mentioned in paras. 141-158 above);

(b) When a State knowingly takes advantage of the situation of secret detention by sending questions to the State detaining the person or by soliciting or receiving information from persons who are being kept in secret detention. This includes at least the following States:

• The United Kingdom of Great Britain and Northern Ireland, in the cases of several individuals, including Binyam Mohamed [Interview with Binyam Mohamed (annex II, case 18)], Salahuddin Amin, Zeeshan Siddiqui, Rangzieb Ahmed and Rashid Rauf [PDF]. In its submission for the present study, the British Government referred to ongoing and concluded judicial assessment of the cases and stressed the work of the parliamentary Intelligence and Security Committee, as well as its policy of clear opposition to secret detention [According to the Government of the United Kingdom, the judge in Mr Ahmed’s case stated, “I specifically reject the allegations that the British authorities were outsourcing torture”. The judge examined Mr. Amin’s allegations and found that there was no evidence to suggest that the British authorities had been complicit in his unlawful detention or ill-treatment in Pakistan];

• Germany, in the case of Muhammad Haydar Zammar, who was reportedly interrogated on at least one occasion, on 20 November 2002, by agents of German security agencies while he was secretly held in the Syrian Arab Republic [See “Kanzleramt dealte mit Syriens Geheimdienst”, Der Spiegel, 19 November 2005]. The Government reported having been  informed about four cases of renditions or enforced disappearances concerning the Federal Republic of Germany: the cases of Khaled El-Masri, Murat Kurnaz, Muhammad Haydar Zammar and Abdel Halim Khafagy, which occurred between September 2001 and the end of 2005. However, the German authorities did not directly or indirectly participate in arresting these persons or in rendering them for imprisonment. In the cases of El-Masri and Khafagy, the German missions responsible for consular assistance had no knowledge of their imprisonment and were therefore unable to ensure that their rights were observed or guarantee consular protection; in the cases of Zammar and Kurnaz, the German authorities worked intensively to guarantee consular protection. However, they were denied access to the detainees and were thereby prevented from effectively exercising consular protection [Response to a questionnaire on allegations of rendition and detention sent by the Working Group on Enforced and Involuntary Disappearances, 30 September 2009]. In a letter dated 9 December 2009, the German Federal Ministry of Justice further reported that it had become aware of the case of Mr. Kurnaz on 26 February 2002, when the Chief Federal Prosecutor informed the Ministry that it would not take over a preliminary investigation pending before the Prosecution of the Land of Bremen. The Office of the Chief Federal Prosecutor had received a report from the Federal Criminal Police Office on 31 January 2002 that, according to information by the Federal Intelligence Service, Mr. Kurnaz had been arrested by United States officials in Afghanistan or Pakistan. In the case of Mr. El-Masri, on 8 June 2004, the Federal Chancellery and the Federal Foreign Office received a letter from his lawyer that Mr. El-Masri had been abducted in the former Yugoslav Republic of Macedonia on 31 December 2003, presumably transferred to Afghanistan and kept there against his will until his return to Germany on 29 May 2004. The Federal Ministry of Justice was informed about these facts on 18 June 2004. The experts note, however, that according to the final report of a Parliamentary Commission of Inquiry, the Government became aware of the case of Mr. El-Masri on 31 May 2004, when the Ambassador of the United States informed the Federal Minister for the Interior of Germany [PDF];

• Canada, for providing intelligence to the Syrian Arab Republic in the cases of Maher Arar, Ahmad el-Maati, Abdullah Almaki and Muayyed Nureddin. In its submission for the present study, the Government denied that any of the named individuals was detained or seized by a State at the request of Canada. The experts welcome the fact that all the above-mentioned cases have been the subject of extensive independent inquiry processes within Canada and that, in the case of Mr. Arar, substantive reparations has been provided to the victims;

• Australia, for providing intelligence to interrogators in the case of the secret detention of Mamdouh Habib. Mr Habib also alleges that an Australian official was present during at least one of his interrogation sessions in Egypt. The experts understand that Mr. Habib is currently suing the Government of Australia, arguing that it was complicit in his kidnapping and subsequent transfer to Egypt. In its submission for the present study, the Government denies that any Australian officer, servant and/or agent was involved in any dealings with or mistreatment of Mr. Habib, and refers to ongoing litigation;

(c) When a State has actively participated in the arrest and/or transfer of a person when it knew, or ought to have known, that the person would disappear in a secret detention facility or otherwise be detained outside the legally regulated detention system. This includes at least the following States:

• Italy, for its role in the abduction and rendition of Hassan Mustafa Osama Nasr (also known as Abu Omar), an Egyptian kidnapped by CIA agents on a street in Milan in broad daylight on 17 February 2003. He was transferred from Milan to the NATO military base at Aviano by car, and then flown, via the NATO military base of Ramstein in Germany, to Egypt, where he was held for four years (including 14 months in secret detention) before being released. The European Parliament considered it “very likely, in view of the involvement of its secret services, that the Italian Government of the day was aware of the extraordinary rendition of Abu Omar from within its territory” [European Parliament Committee report, paras. 50 and 54]. Prosecutors opened an investigation and charged 26 United States citizens (mostly CIA agents) with abduction, as well as members of the Italian military secret services (SISMI) with complicity in the abduction, among them the head of SISMI [Reply of the Government of Italy to the joint request for relevant information by the four experts (see annex I)]. The Italian Ministry of Justice, however, refused to forward the judiciary’s requests for extradition of the CIA agents to the Government of the United States; as a result, the United States citizens were tried in absentia. On 4 November 2009, the court found 23 of them guilty. The court also convicted two SISMI agents and sentenced them to three years imprisonment for their involvement in the abduction. The then commander of SISMI and his deputy, however, were not convicted, the court having dismissed the cases against them on the grounds that the relevant evidence was covered by State secret [The executive branch of the Government of Italy successfully raised the issue of State secret before the Constitutional Court; see the reply of the Government of Italy to the joint request for relevant information by the four experts (annex I)]. In its submission for the present study, the Government of Italy notes that the case is continuing at the appeal level, which prevents it from drawing any conclusions prior to a definitive verdict;

• Kenya, for detaining 84 persons in various secret locations in Nairobi before transferring them on three charter flights between 20 January and 10 February 2007 to Somalia. They were subsequently transferred to Ethiopia, where they were kept in secret detention. They were not provided with an opportunity to challenge their forcible physical removal at any stage (see also paras. 154-156 above) [See also Meshal vs Higgenbotham; Redress and Reprieve report, “Kenya and counter terrorism: a time for change”, February 2009 (PDF), and Human Rights Watch, “Why am I still here?” (PDF). The experts have received allegations of cooperation with United States intelligence that dates back to 2003; see interview with Suleiman Abdallah (annex II, case 2)].

(d) A specific form of complicity in this context are these cases where a State holds a person shortly in secret detention before handing them over to another State where that person will be put in secret detention for a longer period. This includes at least the following countries:

• The former Yugoslav Republic of Macedonia, for its role in the case of Khaled El-Masri [Interview with Khaled el-Masri (annex II, case 9)];

• Malawi, for allegedly holding Laid Saidi in secret detention for a week;

• The Gambia: during an interview with the experts, Bisher al-Rawi reported that, on 8 November 2002, he was arrested upon arrival at Banjul airport by the Gambian Intelligence Agency, then taken to an office and later to a house located in a Banjul residential place before he was handed over to the CIA and rendered to Afghanistan.

(e) When a State has failed to take measures to identify persons or airplanes passing through its airports or airspace after information of the CIA programme involving secret detention had already been revealed. The issue of rendition flights was, and still is, the subject of many separate investigations at the national or regional level. Therefore, the experts decided to refrain from going into the details of this issue [See, inter alia, the European Parliament Committee report, 18 June 2009 (PDF); the statement of the Foreign Secretary to the House of Commons on United States rendition flights, 21 February 2008, and Dick Marty,”Secret detentions and illegal transfers of detainees involving Council of Europe member states: second report” (PDF)].

E.  Secret detention and the Obama administration

160. In its response to the questionnaire sent by the experts, the United States stated that:

The Obama Administration has adopted the following specific measures:

• Instructed the CIA to close as expeditiously as possible any detention facilities that it currently operated as of January 22, 2009 and ordered that the CIA shall not operate any such detention facility in the future.

• Ordered that the Guantanamo Bay detention facility be closed as soon as practicable.

• Required the International Committee of the Red Cross (ICRC) to be given notice and timely access to any individual detained in any armed conflict in the custody or under the effective control of the United States Government, consistent with Department of Defense regulations and policies.

• Ordered a comprehensive review of the lawful options available to the Federal Government with respect to detention of individuals captured or apprehended in connection with armed conflicts and counterterrorism operations.

• Reaffirmed that all persons in U.S. custody must be treated humanely as a matter of law.

• Mandated that detention at Guantanamo conform to all applicable laws governing conditions of confinement, including Common Article 3 of the Geneva Conventions, and directed a review of detention conditions at Guantanamo to ensure such compliance.

• Ordered a review of U.S. transfer policies to ensure that they do not result in the transfer of individuals to other nations to face torture or otherwise for the purpose, or with the effect, of undermining or circumventing the commitments or obligations of the United States to ensure the humane treatment of individuals in its custody or control. The resulting Task Force on transfer practices recommended to the President in August that (1) the State Department be involved in evaluating all diplomatic assurances; (2) the Inspectors General of the Departments of State, Defense, and Homeland Security prepare an annual report on all transfers relying on assurances; and (3) mechanisms for monitoring treatment in the receiving country be incorporated into assurances.

• Announced the transfer of at least 7 detainees from military custody to U.S. criminal law enforcement proceedings, and transferred 25 detainees to date to third-countries for repatriation or resettlement.

• Worked with Congress to revise U.S. laws governing military commissions to enhance their procedural protections, including prohibiting introduction of evidence obtained as a result of cruel, inhuman, or degrading treatment.

• Expanded the review procedures for detainees held by the Department of Defense in Afghanistan in order to enhance the transparency and fairness of U.S. detention practices. Detainees are permitted an opportunity to challenge the evidence that is the basis for their detention, to call reasonably available witnesses, and to have the assistance of personal representatives who have access to all reasonably available relevant information (including classified information). Proceedings generally shall be open, including to representatives of the ICRC, and possibly to non-governmental organizations.

• Established more tailored standards and rigorous procedures for evaluating assertions of the State secrets privilege, including establishing an internal accountability mechanism, ensuring that the privilege is never asserted to avoid embarrassment or conceal violations of law, and creating a referral mechanism to the Office of Inspector General where the privilege is asserted but there is credible evidence of a violation of law. These standards and procedures were established in order to strike a better balance between open government and the need to protect vital national security information.

• The Department of Justice initiated a preliminary criminal investigation into the interrogation of certain detainees.

These measures cumulatively seek to reaffirm the importance of compliance with the rule of law in U.S. detention practices, to ensure U.S. adherence to its international legal obligations, and to promote accountability and transparency in this important area of national security policy.

161. The experts welcome the above commitments. They believe, however, that clarification is required 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. Also, the experts are concerned that the executive order instructing 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”. The order also does not seem to extend to detention facilities operated by the Joint Special Operation Command.

162. The experts also welcome in particular the new policy implemented in August 2009, under which the military must notify ICRC of detainees’ names and identification number within two weeks of capture. Nevertheless, there is no legal justification for this two-week period of secret detention. According to article 70 of the Third Geneva Convention, prisoners of war are to be documented, and their whereabouts and health conditions made available to family members and to the country of origin of the prisoner within one week. Article 106 of the Fourth Geneva Convention (governing the treatment of civilians) establishes virtually identical procedures for the documentation and disclosure of information concerning civilian detainees. Furthermore, it is obvious that this unacknowledged detention for one week can only be applied to persons who have been captured on the battlefield in a situation of armed conflict. This is an important observation, as the experts noted with concern news reports quoting 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”.

163. The situation at the Bagram Theater Internment Facility remains of great concern. In March 2009, United States district Court Judge John D. Bates ruled that the habeas corpus rights granted to the Guantanamo detainees by the Supreme Court in June 2008 extended to non-Afghan detainees who had been seized in other countries and rendered to Bagram because “the detainees themselves as well as the rationale for detention are essentially the same”, and because the review process established at the prison “falls well short of what the Supreme Court found inadequate at Guantánamo”. The four petitioners were among the 94 prisoners that Assistant Attorney General Stephen G. Bradbury admitted were held in CIA custody between 2001 and 2005. Judge Bates found that, in holding detainees at Bagram not as prisoners of war but as “unlawful enemy combatants”, the Bush administration had put in place a review process, the Unlawful Enemy Combatant Review Board, in which “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”.

164. The above-mentioned ruling has been appealed by the current United States administration, even though Judge Bates noted that habeas rights extend neither to Afghan detainees held at Bagram, nor to Afghans seized in other countries and rendered to Bagram. In its appeal against Judge Bates’ ruling, the United States administration notified the court that it was introducing a new review process at Bagram, “modifying the procedures for reviewing the status of aliens held by the Department of Defense at the Bagram Theater Internment Facility” [PDF]. However, the experts are concerned that the 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. The experts are also concerned that the system appears to aim specifically to prevent United States courts from having access to foreign detainees captured in other countries and rendered to Bagram. While the experts welcome the fact that the names of 645 detainees at Bagram are now known, they urge the Government of the United States to provide information on the citizenship, length of detention and place of capture of all detainees currently held at Bagram Air Base.

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) and of two other books: Stonehenge: Celebration and Subversion and The Battle of the Beanfield. 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, currently on tour in the UK, and available on DVD here), and my definitive Guantánamo habeas list, and, if you appreciate my work, feel free to make a donation.

See here for the Bagram prisoner list. For a sequence of articles discussing the use of torture in secret prisons, see: 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), Ten Terrible Truths About The CIA Torture Memos (Part One), Ten Terrible Truths About The CIA Torture Memos (Part Two) (April 2009), Ibn al-Shaykh al-Libi Has Died In A Libyan Prison (May 2009), WORLD EXCLUSIVE: New Revelations About The Torture Of Ibn al-Shaykh al-Libi (June 2009), What The British Government Knew About The Torture Of Binyam Mohamed (August 2009), UK Judges Order Release Of Details About The Torture Of Binyam Mohamed By US Agents (October 2009), Dark Revelations in the Bagram Prisoner List (January 2010), UN Secret Detention Report Asks, “Where Are The CIA Ghost Prisoners?” (January 2010), Mohamedou Ould Salahi: How a Judge Demolished the US Government’s Al-Qaeda Claims (April 2010), Judge Rules Yemeni’s Detention at Guantánamo Based Solely on Torture (April 2010), and also see the extensive Binyam Mohamed archive.

I do, however, urge everyone to read the whole report, because the introduction and conclusions are important, as are the sections establishing the legal approach to secret detention and its historical context, the section detailing current practices in 25 other countries worldwide, and the annexes, which contain government responses to a questionnaire about secret detention, and a number of case studies.

Given the length of this section of the report (pp. 43-89), I’m publishing it in three parts. The first, published here, provided an introduction, and dealt with “The ‘high-value detainee’ programme and CIA secret detention facilities,” the second, published below, looks at “CIA detention facilities or facilities operated jointly with United States military in battlefield zones,” and the third looks at “Proxy detention sites,” “Complicity in the practice of secret detention” and “Secret detention and the Obama administration.”

Please note that I have inserted hyperlinks where possible. However, the original report contains footnotes, and not all of these provide links to websites. In most cases, I have added the information contained in the footnotes in square brackets, but for full details, please see the original.

Excerpts from the UN “Joint Study on Global Practices in Relation to Secret Detention in the Context of Counter-Terrorism,” February 2010

Prepared by Martin Scheinin, the Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism, Manfred Nowak, the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment, Shaheen Ali, the vice-chair of the Working Group on arbitrary detention, and Jeremy Sarkin, the chair of the Working Group on enforced or involuntary disappearances.

B. CIA detention facilities or facilities operated jointly with United States military in battlefield zones

131. Although it is still not possible to identify all 28 of the CIA’s acknowledged high-value detainees, the figures quoted in a memo of the Office of Legal Counsel of 30 May 2005 written by Principal Deputy Assistant Attorney General Stephen G. Bradbury [PDF] indicate that the other 66 prisoners in the CIA programme were regarded as less significant. Some of them were subsequently handed over to the United States military and transferred to Guantanamo, while others were rendered to the custody of their home countries or other countries. In very few cases were they released.

1. Afghanistan

132. Outside of the specific “high-value detainee” programme, most detainees were held in a variety of prisons in Afghanistan. Three of these are well-known: a secret prison at Bagram airbase, reportedly identified as “the Hangar” [See also the interview with Murat Kurnaz (annex II, case 14)], and two secret prisons near Kabul, known as the “dark prison” and the “salt pit”. During an interview held with the experts, Bisher al-Rawi indicated that, in the dark prison, there were no lights, heating or decoration. His cell was about 5 x 9 feet with a solid steel door and a hatch towards the bottom of it. He only had a bucket to use as a toilet, an old piece of carpet and a rusty steel bar across the width of the cell to hang people from. All the guards wore hoods with small eye holes, and they never spoke. Very loud music was played continuously. He also indicated that he had been subjected to sleep deprivation for up to three days and received threats. Binyam Mohamed provided a similar account to the experts [see annex II, case 18], as did the lawyer of Khaled El-Masri [annex II, case 9] and Suleiman Abdallah [annex II, case 2]. The experts heard allegations about three lesser-known prisons, including one in the Panjshir valley, north of Kabul, and two others identified as Rissat and Rissat 2, but it was not yet possible to verify these allegations. Of the prisoners identified as having been held in secret CIA custody (in addition to the above-mentioned high-value detainees), seven were eventually released and four escaped from Bagram in July 2005, namely Abu Yahya al-Libi, a Libyan; Omar al-Faruq, a Kuwaiti, captured in Bogor, Indonesia, in 2002; Muhammad Jafar Jamal al-Kahtani, a Saudi, reportedly [re-]captured in Khost province, Afghanistan, in November 2006; and Abdullah Hashimi, a Syrian, also known as Abu Abdullah al-Shami. Five prisoners were reportedly returned to the Libyan Arab Jamahiriya in 2006: Ibn al-Sheikh al-Libi [see para. 146 below]; Hassan Raba’i and Khaled al-Sharif, both captured in Peshawar, Pakistan, in 2003, who had “spent time in a CIA prison in Afghanistan”; Abdallah al-Sadeq, seized in a covert CIA operation in Thailand in the spring of 2004; and Abu Munder al-Saadi, both held briefly before being rendered to the Libyan Arab Jamahiriya. In May 2009, Human Rights Watch reported that its representatives briefly met Ibn al-Sheikh al-Libi on a visit to Abu Salim prison in Tripoli, although he refused to be interviewed. Human Rights Watch interviewed four other men, who claimed that, “before they were sent to the Libyan Arab Jamahiriya, United States forces had tortured them in detention centers in Afghanistan, and supervised their torture in Pakistan and Thailand”. One of the four was Hassan Raba’i, also known as Mohamed Ahmad Mohamed al-Shoroeiya, who stated that, in mid-2003, in a place he believed was Bagram prison in Afghanistan, “the interpreters who directed the questions to us did it with beatings and insults. They used cold water, ice water. They put us in a tub with cold water. We were forced [to go] for months without clothes. They brought a doctor at the beginning. He put my leg in a plaster. One of the methods of interrogation was to take the plaster off and stand on my leg”.

133. The released detainees are:

• Laid Saidi, an Algerian seized in the United Republic of Tanzania on 10 May 2003, was handed over to Malawians in plain clothes who were accompanied by two middle-aged Caucasian men wearing jeans and T-shirts. Shortly after the expulsion, a lawyer representing Mr. Saidi’s wife filed an affidavit with a Tanzanian court, saying that immigration documents showed that Mr. Saidi had been deported through the border between Kasumulu, United Republic of Tanzania, and Malawi. He was held for a week in a detention facility in the mountains of Malawi, then rendered to Afghanistan, where he was held in the “dark prison”, the “salt pit” and another unidentified prison. About a year after he was seized, he was flown to Tunisia, where he was detained for another 75 days, before being returned to Algeria, where he was released.

• Three Yemenis — Salah Nasser Salim Ali Darwish, seized in Indonesia in October 2003, Mohammed al-Asad and Mohammed Farag Ahmad Bashmilah — were held in a number of CIA detention facilities until their return to Yemen in May 2005, where they continued to be held, apparently at the request of the United States authorities. Mr. Bashmilah was detained by Jordanian intelligence agents in October 2003, when he was in Jordan to assist his mother who was having an operation. From 21 to 26 October 2003, Mr. Bashmilah was detained without charge and subjected to torture and cruel, inhuman and degrading treatment, including prolonged beatings and being threatened with electric shocks and the rape of his mother and wife [see Declaration of Mohamed Farag Ahmad Bashmilah in support of plaintiffs’ opposition to the motion of the United States to dismiss or, in the alternative, for summary judgment, civil action No. 5:07-cv-02798 in the United States District Court for the Northern District of California, San Jose Division]. A communication was sent by the special rapporteurs on torture and on human rights while countering terrorism to the Governments of the United States, Indonesia, Yemen and Jordan on the cases of Bashmilah and Salim Ali, who were both detained and tortured in Jordan [E/CN.4/2006/6/Add.1, paras. 93, 126, 525 and 550]. Only the latter country responded, declaring that no record showing that the two men had been arrested for the violations of either the penal, disciplinary or administrative codes, and that they did not have documented files indicating that they posed a security concern, eliminating the possibility of their arrest for what may be described as terrorism [A/HRC/4/33/Add.1, para. 123]. The Working Group on Arbitrary Detention adopted its opinion No. 47/2005 (Yemen) on the case on 30 November 2005, declaring their detention to be arbitrary as being devoid of any legal basis. In its reply to the allegations, the Government of Yemen confirmed that Mr. Bashmilah and Mr. Salim Ali had been handed over to Yemen by the United States. According to the Government, they had been held in a security police facility because of their alleged involvement in terrorist activities related to Al-Qaida. The Government added that the competent authorities were still dealing with the case pending receipt of the persons’ files from the United States authorities in order to transfer them to the Prosecutor [A/HRC/4/40/Add.1, para. 15].

• Khaled El-Masri, a German seized on the border of the former Yugoslav Republic of Macedonia on 31 December 2003, was held in a hotel room by agents of that State for 23 days, then rendered by the CIA to the “salt pit”. He was released in Albania on 29 May 2004 [Also see Interview with the lawyer of Khaled El-Masri (annex II, case 9)].

• Khaled al-Maqtari, a Yemeni seized in Iraq in January 2004, was initially held in Abu Ghraib, then transferred to a secret CIA detention facility in Afghanistan. In April 2004, he was moved to a second secret detention facility, possibly in Eastern Europe, where he remained in complete isolation for 28 months, until he was returned to Yemen and released in May 2007.

• Marwan Jabour, a Jordanian-born Palestinian, was seized in Lahore, Pakistan, on 9 May 2004, and held in a CIA detention facility in Afghanistan for 25 months. He was then transferred to Jordan, where he was held for six weeks, and to Israel, where he was held for another six weeks, before being freed in Gaza.

[Also mentioned:] Murat Kurnaz, a Turkish national residing in Germany, interviewed by the experts for the present study, was arrested in Pakistan in November or December 2001 and initially held by Pakistani police officers and officers of the United States. He was then transferred into the custody of the United States at that country’s airbase in Kandahar, Afghanistan, before being taken to the naval base at Guantanamo Bay on 1 February 2002. He was held secretly until May 2002, and released on 24 August 2006.

134. A total of 23 detainees who ended up in Guantanamo were also held in CIA detention facilities in Afghanistan. They include:

(a) Six men seized in the Islamic Republic of Iran in late 2001:

• Wassam al-Ourdoni, a Jordanian, who was released from Guantanamo in April 2004. In 2006, he told Reprieve that he had been seized by the Iranian authorities while returning from a religious visit to Pakistan with his wife and newborn child in December 2001, then handed over to the Afghan authorities, who handed him on to the CIA. He said that the Americans “asked me about my relationship with Al-Qaida. I told them I had nothing to do with Al-Qaida. They then put me in jail under circumstances that I can only recall with dread. I lived under unimaginable conditions that cannot be tolerated in a civilized society.” He said that he was first placed in an underground prison for 77 days: “this room was so dark that we couldn’t distinguish nights and days. There was no window, and we didn’t see the sun once during the whole time.” He said that he was then moved to “prison number three”, where the food was so bad that his weight dropped substantially. He was then held in Bagram for 40 days before being flown to Guantanamo [Clive Stafford Smith, “Abandoned to their fate in Guantánamo”, Index on Censorship, 2006].

• Aminullah Tukhi, an Afghan who was transferred to Afghan custody from Guantanamo in December 2007. He alleged that he had fled from Herat to the Islamic Republic of Iran to escape the Taliban, and was working as a taxi driver when the Iranians began rounding up illegal immigrants towards the end of 2001 [PDF, pp. 71-7].

• Hussein Almerfedi, a Yemeni, still at Guantanamo. He alleged that he was “kidnapped” in the Islamic Republic of Iran and held for a total of 14 months in three prisons in Afghanistan, “two under Afghani control and one under US control [Bagram]” [PDF, pp. 31-40].

• Tawfiq al-Bihani, a Yemeni, still at Guantanamo. Allegedly, after deciding to flee Pakistan after the 9/11 attacks, he was “arrested by Iranian Police in Zahedan, Iran for entering the country without a visa” and held “in various prisons in Iran and Afghanistan, for approximately one year in total [PDF, pp. 66-9].

• Rafiq Alhami, a Tunisian still held at Guantanamo, who alleged that “I was in an Afghan prison but the interrogation was done by Americans. I was there for about a one-year period, transferring from one place to another. I was tortured for about three months in a prison called the Prison of Darkness or the Dark Prison” [PDF, pp. 147-61]. And further: “Back in Afghanistan I would be tortured. I was threatened. I was left out all night in the cold. It was different here. I spent two months with no water, no shoes, in darkness and in the cold. There was darkness and loud music for two months. I was not allowed to pray. I was not allowed to fast during Ramadan. These things are documented. You have them” [PDF, pp. 20-22].

• Walid al-Qadasi, a Yemeni who was rendered to the “dark prison” and held in other prisons in Afghanistan, together with four other men whose whereabouts are unknown [In addition, Aminullah Tukhi explained that 10 prisoners in total -- six Arabs, two Afghans, an Uzbek and a Tajik -- had been delivered to the Americans. Although six of these men are accounted for above, it is not known what happened to the other four: an Arab, an Afghan, the Uzbek and the Tajik]. An allegation letter was sent in November 2005 by the Special Rapporteur on torture in relation to Walid Muhammad Shahir Muhammad al-Qadasi, a Yemeni citizen, indicating that the following allegations had been received: He was arrested in Iran in late 2001. He was held there for about three months before being handed over to the authorities in Afghanistan who in turn handed him over to the custody of the US. He was held in a prison in Kabul. During US custody, officials cut his clothes with scissors, left him naked and took photos of him before giving him Afghan clothes to wear. They then handcuffed his hands behind his back, blindfolded him and started interrogating him. The apparently Egyptian interrogator, accusing him of belonging to Al-Qaida, threatened him with death. He was put in an underground cell measuring approximately two metres by three metres with very small windows. He shared the cell with ten inmates. They had to sleep in shifts due to lack of space and received food only once a day. He spent three months there without ever leaving the cell. After three months, Walid al-Qadasi was transferred to Bagram, where he was interrogated for one month. His head was shaved, he was blindfolded, made to wear ear muffs and a mouth mask, handcuffed, shackled, loaded on to a plane and flown out to Guantanamo, where he was held in solitary confinement for one more month. In April 2004, after having been detained for two years, he was transferred to Sana’a prison in Yemen. In its response, the Government of the United States reiterated its earlier announcements that no Government agency was allowed to engage in torture and that its actions complied with the non-refoulement principle. Opinion No. 47/2005 of the Working Group on Arbitrary Detention also concerns Mr. al-Qadasi [See E/CN.4/2006/6/Add.1, paras. 1 and 527, and the response from the Government of the United States (A/HRC/10/44/Add.4, para. 252). See also the report of the Working Group on Arbitrary Detention, opinion No. 47/2005 (A/HRC/4/40/Add.1)].

(b) Two men seized in Georgia in early 2002 and sold to United States forces:

• Soufian al-Huwari, an Algerian, transferred to Algerian custody from Guantanamo in November 2008; and Zakaria al-Baidany, also known as Omar al-Rammah, a Yemeni, still held at Guantanamo. According to Mr. al-Huwari, both were rendered to the “dark prison”, and were also held in other detention facilities in Afghanistan: “The Americans didn’t capture me. The Mafia captured me. They sold me to the Americans”. He added: “When I was captured, a car came around and people inside were talking Russian and Georgian. I also heard a little Chechnyan. We were delivered to another group who spoke perfect Russian. They sold us to the dogs. The Americans came two days later with a briefcase full of money. They took us to a forest, then a private plane to Kabul, Afghanistan” [PDF, pp. 15-23].

(c) Bisher al-Rawi, an Iraqi national and British resident, was seized in the Gambia in November 2002, and rendered to the “dark prison” at the beginning of December 2002. He was kept shackled in complete isolation and darkness for two weeks. On or around 22 December 2002, he was transferred to Bagram, and then to Guantanamo on 7 February 2003. He was finally released on 30 March 2007. At Bagram, he was reportedly threatened and subjected to ill-treatment and sleep deprivation for up to three days at a time [Interview with Bisher al-Rawi (annex II, case 4)].

(d) Jamil El-Banna, a Jordanian national and British resident, was also seized in the Gambia in November 2002 and rendered to the “dark prison”, then to Guantanamo. He was released from Guantanamo in December 2007.

(e) Six other detainees were flown to Guantanamo on 20 September 2004 after having spent one to three years in custody:

• Abdul Rahim Ghulam Rabbani and Mohammed Ahmad Ghulam Rabbani, Pakistani brothers seized in Karachi, who were held in the “salt pit” [Both Laid Saidi and Khaled El-Masri spoke about getting to know the Rabbani brothers in the “salt pit”];

• Abdulsalam al-Hela, a Yemeni colonel and businessman who was seized in Egypt;

• Adil al-Jazeeri, an Algerian seized in Pakistan [PDF, pp. 315-34];

• Sanad al-Kazimi, a Yemeni seized in the United Arab Emirates [PDF. Also on the flight that took these men to Guantanamo were Ali al-Hajj al-Sharqawi, Hassan bin Attash and Binyam Mohamed. See also paras 151 and 159 below];

• Saifullah Paracha, a Pakistani businessman seized in Thailand, who was held in isolation in Bagram for a year.

Mr. al-Kazimi was apprehended in Dubai in January 2003 and held at an undisclosed location in or near Dubai for two months. He was then transferred to a different place about two hours away. He was kept naked for 22 days, at times shackled, and subjected to extreme climatic conditions and simulated drowning. After six months, he was transferred to United States custody, allegedly pursuant to the CIA rendition programme. He was taken to Kabul and held in the “dark prison” for nine months, where he suffered severe physical and psychological torture by unidentified persons. He was then transferred to Bagram airbase, where he was held for a further four months in United States custody. Again, he was allegedly subjected to severe physical and psychological torture by what he believed were the same unidentified persons he had encountered in the “dark prison” [See the report of the Working Group on Arbitrary Detention, opinion No. 3/2009 (United States of America) (A/HRC/13/30/Add.1)].

135. Four other detainees, held in Bagram, are known because lawyers established contact with their families and filed habeas corpus petitions on their behalf:

• Redha al-Najar, a Tunisian who was seized in Karachi in May 2002.

• Amin Mohammad al-Bakri, a Yemeni who was seized in Bangkok on 28 December 2002 by agents of the intelligence services of the United States or of Thailand. Throughout 2003, his whereabouts were unknown. The Thai authorities confirmed to Mr. al-Bakri’s relatives that he had entered Thai territory, but denied knowing his whereabouts. In January 2004, Mr. al-Bakri’s relatives received a letter from him through ICRC, informing them that he was being kept in detention at the Bagram airbase. It was reported that Mr. al-Bakri was detained owing to his commercial connections with Mr. Khalifa, a cousin of Osama bin Laden later assassinated in Madagascar [Working Group on Arbitrary Detention, opinion No. 11/2007 (Afghanistan/ United States of America) (A/HRC/7/4/Add.1)].

• Fadi al-Maqaleh, a Yemeni seized in 2004, who was sent to Abu Ghraib before Bagram.

• Haji Wazir, an Afghan seized in the United Arab Emirates in late 2002 [PDF].

136. The whereabouts of 12 others are unknown, and the others remain to be identified. It is probable that some of these men have been returned to their home countries, and that others are still held in Bagram. The experts received allegations that the following men were also held: Issa al-Tanzani (Tanzanian), also identified as Soulayman al-Tanzani, captured in Mogadishu; Abu Naseem (Libyan), captured in Peshawar, Pakistan, in early 2003; Abou Hudeifa (Tunisian), captured in Peshawar, Pakistan, at the end of 2002; and Salah Din al-Bakistani, captured in Baghdad. Marwan Jabour also mentioned eight other prisoners. One was Yassir al-Jazeeri (Algerian), seized in Lahore, March 2003 (whom he met), and he heard about seven others: Ayoub al-Libi (Libyan), seized in Peshawar in January 2004; Mohammed (Afghan, born Saudi), seized in Peshawar in May 2004; Abdul Basit (Saudi or Yemeni), seized before June 2004; Adnan (nationality unknown), seized before June 2004; an unidentified Somali (possibly Shoeab as-Somali or Rethwan as-Somali); another unidentified Somali; and Marwan al-Adeni (Yemeni), seized in or around May 2003.

2. Iraq

137. Although the Government of the United States stated that the Geneva Conventions applied to detainees seized during the occupation, an unknown number of persons were deliberately held “off the books” and denied ICRC access. In Abu Ghraib, for example, the abuse scandal that erupted following the publication of photographs in April 2004 involved military personnel who were not only holding supposedly significant detainees delivered by the United States military, but others delivered by the CIA or United States Special Forces units. The existence of “ghost detainees”, who were clearly held incommunicado in secret detention, was later exposed in two United States investigations.

138. In August 2004, a report into detainee detentions in Iraq (chaired by former Secretary of Defense James R. Schlesinger) noted that “other Government agencies” had brought a number of “ghost detainees” to detention facilities, including Abu Ghraib, “without accounting for them, knowing their identities, or even the reason for their detention”, and that, on one occasion, a “handful” of these detainees had been “moved around the facility to hide them from a visiting ICRC team” [PDF].

139. In another report issued in August 2004, Lieutenant General Anthony R. Jones and Major General George R. Fay noted that eight prisoners in Abu Ghraib had been denied access to ICRC delegates by Lieutenant General Ricardo Sanchez, the Commander of the Coalition Joint Task Force in Iraq: “Detainee-14 was detained in a totally darkened cell measuring about 2 metres long and less than a metre across, devoid of any window, latrine or water tap, or bedding. On the door the delegates noticed the inscription ‘the Gollum’, and a picture of the said character from the film trilogy ‘The Lord of the Rings’” [PDF].

140. Although the Schlesinger report noted the use of other facilities for “ghost detainees”, the locations of these other prisons, and the numbers of detainees held, have not yet been thoroughly investigated. In June 2004, the then United States Secretary of Defense Donald Rumsfeld admitted that a suspected leader of Ansar al-Aslam had been held for more than seven months without ICRC being notified of his detention; he also stated: “He was not at Abu Ghraib. He is not there now. He has never been there to my knowledge” [also see this New York Times report]. According to another report, the prisoner was known as “Triple X” and his secret detention was authorized by Lieutenant General Ricardo Sanchez, who issued a classified order in November 2003 “directing military guards to hide [him] from Red Cross inspectors and keep his name off official rosters”. In addition, some locations may well be those in which prisoners died in United States custody. In 2006, Human Rights First published a report identifying 98 deaths in United States custody in Iraq, describing five deaths in CIA custody, including Manadel al-Jamadi, who died in Abu Ghraib, and others at locations including Forward Operating Base Tiger, in Anbar province, a forward operating base near Al-Asad, a base outside Mosul, a temporary holding camp near Nasiriyah and a forward operating base in Tikrit [PDF].

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) and of two other books: Stonehenge: Celebration and Subversion and The Battle of the Beanfield. 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, currently on tour in the UK, and available on DVD here), and my definitive Guantánamo habeas list, and, if you appreciate my work, feel free to make a donation.

For a sequence of articles 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), 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), 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), Two Algerian Torture Victims Are Freed from Guantánamo (January 2010), UN Secret Detention Report Asks, “Where Are The CIA Ghost Prisoners?” (January 2010), Mohamedou Ould Salahi: How a Judge Demolished the US Government’s Al-Qaeda Claims (April 2010), Judge Rules Yemeni’s Detention at Guantánamo Based Solely on Torture (April 2010), and also see the extensive Binyam Mohamed archive.

I do, however, urge everyone to read the whole report, because the introduction and conclusions are important, as are the sections establishing the legal approach to secret detention and its historical context, the section detailing current practices in 25 other countries worldwide, and the annexes, which contain government responses to a questionnaire about secret detention, and a number of case studies.

Given the length of this section of the report (pp. 43-89), I’m publishing it in three parts. The first, published below, provides an introduction, and deals with “The ‘high-value detainee’ programme and CIA secret detention facilities,” the second looks at “CIA detention facilities or facilities operated jointly with United States military in battlefield zones,” and the third looks at “Proxy detention sites,” “Complicity in the practice of secret detention” and “Secret detention and the Obama administration.”

Please note that I have inserted hyperlinks where possible. However, the original report contains footnotes, and not all of these provide links to websites. In most cases, I have added the information contained in the footnotes in square brackets, but for full details, please see the original.

Excerpts from the UN “Joint Study on Global Practices in Relation to Secret Detention in the Context of Counter-Terrorism,” February 2010

Prepared by Martin Scheinin, the Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism, Manfred Nowak, the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment, Shaheen Ali, the vice-chair of the Working Group on arbitrary detention, and Jeremy Sarkin, the chair of the Working Group on enforced or involuntary disappearances.

IV. SECRET DETENTION PRACTICES IN THE GLOBAL “WAR ON TERROR” SINCE 11 SEPTEMBER 2001

98. In spite of the prominent role played by the United States of America in the development of international human rights and humanitarian law, and its position as a global leader in the protection of human rights at home and abroad following the terrorist attacks on New York and Washington, D.C. on 11 September 2001, the United States embarked on a process of reducing and removing various human rights and other protection mechanisms through various laws and administrative acts, including the Authorization for Use of Military Force, the USA Patriot Act of 2001, the Detainee Treatment Act of 2005, the Military Commissions Act of 2006 (which sought to remove habeas corpus rights), as well as various executive orders and memoranda issued by the Office of Legal Counsel that interpreted the position of the United States on a number of issues, including torture. It also sanctioned the establishment of various classified programmes much more narrowly than before [A/HRC/6/17/Add.3, para. 3].

99. The Government of the United States declared a global “war on terror”, in which individuals captured around the world were to be held neither as criminal suspects, put forward for federal court trials in the United States, nor treated as prisoners of war protected by the Geneva Conventions, irrespective of whether they had been captured on the battlefield during what could be qualified as an armed conflict in terms of international humanitarian law. Rather, they were to be treated indiscriminately as “unlawful enemy combatants” who could be held indefinitely without charge or trial or the possibility to challenge the legality of their detention before a court or other judicial authority.

100. On 7 February 2002, the President of the United States issued a memorandum [PDF] declaring that “common article 3 of Geneva does not apply to either Al-Qaida or Taliban detainees”, that “Taliban detainees are unlawful combatants and, therefore, do not qualify as prisoners of war under article 4 of Geneva”, and that “because Geneva does not apply to our conflict with Al-Qaida, Al-Qaida detainees also do not qualify as prisoners of war”. This unprecedented departure from the Geneva Conventions was to be offset by a promise that, “as a matter of policy, the United States Armed Forces shall continue to treat detainees humanely and, to the extent appropriate and consistent with military necessity, in a manner consistent with the principles of Geneva”. This detention policy was defended by the Government in various submissions to the United Nations [See for example CCPR/C/USA/CO/3/Rev.1/Add.1, p. 3; A/HRC/4/41, paras. 453 - 455; and A/HRC/4/40, para. 12], including on 10 October 2007, when the Government stated that the law of war, and not the International Covenant on Civil and Political Rights, was the applicable legal framework governing the detentions of “enemy combatants” [CCPR/C/USA/CO/3/Rev.1/Add.1, p. 3], and therefore such detentions did not fall within the mandate of the special procedures mandate holders [CCPR/C/USA/3, para. 456, and A/HRC/4/40, para. 12].

101. By using this war paradigm, the United States purported to limit the applicable legal framework of the law of war (international humanitarian law) and exclude any application of human rights law. Even if and when human rights law were to apply, the Government was of the view that it was not bound by human rights law outside the territory of the United States. Therefore, by establishing detention centres in Guantanamo Bay and other places around the world, the United States was of the view that human rights law would not be applicable there. Guantanamo and other places of detention outside United States territory were intended to be outside the reach of domestic courts for habeas corpus applications by those held in custody in those places. One of the consequences of this policy was that many detainees were kept secretly and without access to the protection accorded to those in custody, namely the protection of the Geneva Conventions, international human rights law, the United States Constitution and various other domestic laws. [In its October 2007 submission to the Human Rights Committee, the Government reaffirmed its long-standing position that “the Covenant does not apply extraterritorially” (CCPR/C/USA/CO/3/Rev.1/Add.1, p. 2)].

102. The secret detention policy took many forms. The Central Intelligence Agency (CIA) established its own secret detention facilities to interrogate so-called “high value detainees”. It asked partners with poor human rights records to secretly detain and interrogate persons on its behalf. When the conflicts in Afghanistan and Iraq started, the United States secretly held persons in battlefield detention sites for prolonged periods of time. The present chapter therefore focuses on various secret detention sites and those held there, and also highlights examples of the complicity of other States.

A.  The “high-value detainee” programme and CIA secret detention facilities

103. On 17 September 2001, President Bush sent a 12-page memorandum to the Director of the CIA through the National Security Council, which authorized the CIA to detain terrorists and set up detention facilities outside the United States [PDF]. Until 2005, when the United Nations sent its first of many communications regarding this programme to the Government of the United States, little was known about the extent and the details of the secret detention programme. Only in May 2009 could a definitive number of detainees in the programme be established. In a released, yet still redacted, memo, Principal Deputy Assistant Attorney General Stephen G. Bradbury stated that, to date, the CIA had “taken custody of 94 detainees [redacted], and had employed enhanced techniques to varying degrees in the interrogations of 28 of those detainees.” [PDF, footnote, p. 5]

104. In the report of 2007 on his country visit to the United States (A/HRC/6/17/Add.3), the Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism described what was known at that time of these “enhanced techniques” and how they were regarded:

As a result of an apparent internal leak from the CIA, the media in the United States learned and published information about “enhanced interrogation techniques” used by the CIA in its interrogation of terrorist suspects and possibly other persons held because of their links with such suspects. Various sources have spoken of techniques involving physical and psychological means of coercion, including stress positions, extreme temperature changes, sleep deprivation, and “waterboarding” (means by which an interrogated person is made to feel as if drowning). With reference to the well-established practice of bodies such as the Human Rights Committee and the Committee against Torture, the Special Rapporteur concludes that these techniques involve conduct that amounts to a breach of the prohibition against torture and any form of cruel, inhuman or degrading treatment.

105. Several of the 28 detainees who, according to Mr. Bradbury, were subjected to “enhanced techniques to varying degrees” were also “high value detainees”. Fourteen people were transferred from secret CIA custody in an undisclosed location to confinement at the Defense Department’s detention facility in Guantanamo Bay, as announced by President Bush on 6 September 2006. They were:

• Abu Zubaydah (Palestinian), captured in Faisalabad, Pakistan, on 28 March 2002

• Ramzi bin al-Shibh (Yemeni), captured in Karachi, Pakistan, on 11 September 2002

• Abd al-Rahim al-Nashiri (Saudi), captured in the United Arab Emirates in October or November 2002

• Khalid Sheikh Mohammed (Pakistani), captured in Rawalpindi, Pakistan, on 1 March 2003

• Mustafa al-Hawsawi (Saudi), captured with Khalid Sheikh Mohammed in Rawalpindi, Pakistan, on 1 March 2003

• Majid Khan (Pakistani), captured in Karachi, Pakistan, on 5 March 2003

• Waleed Mohammed bin Attash (Yemeni), also known as Khallad, captured in Karachi, Pakistan, on 29 April 2003

• Ali Abd al-Aziz Ali (Pakistani) also known as Ammar al-Baluchi, captured with Waleed bin Attash in Karachi, Pakistan, on 29 April 2003

• Mohammed Farik bin Amin (Malaysian), also known as Zubair, captured in Bangkok on 8 June 2003

• Riduan Isamuddin (Indonesian), also known as Hambali, also known as Encep Nuraman, captured in Ayutthaya, Thailand, on 11 August 2003

• Mohammed Nazir bin Lep (Malaysian), also known as Lillie, captured in Bangkok on 11 August 2003

• Gouled Hassan Dourad (Somali), also known as Haned Hassan Ahmad Guleed, captured in Djibouti on 4 March 2004

• Ahmed Khalfan Ghailani (Tanzanian), captured in Gujrat, Pakistan, on 25 July 2004

• Abu Faraj al-Libi (Libyan), also known as Mustafa Faraj al-Azibi, captured in Mardan, Pakistan, on 2 May 2005 [A/HRC/4/40/Add.1. Pentagon biographies are available here (PDF)]

106. Beyond the transcripts of the Combatant Status Review Tribunals, held in 2007 [PDF], and the facts reported in opinion No. 29/2006 (United States of America), adopted by the Working Group on Arbitrary Detention on 1 September 2006 [A/HRC/4/40/Add.1], the only available source on the conditions in the above-mentioned facilities is a report by ICRC leaked to the media by United States Government officials [PDF]. In spite of the fact that the ICRC report was never officially published, the experts decided to refer to it since information on the 14 was scarce and the United States of America, in spite of requests to be allowed to speak to Guantanamo detainees, did not authorize them to do so. That report details the treatment that most of the 14 had described during individual interviews, and concluded that there had been cases of beatings, kicking, confinement in a box, forcible shaving, threats, sleep deprivation, deprivation/restriction on food provisions, stress positions, exposure to cold temperatures/cold water, suffocation by water and so on. It stressed that, for the entire detention periods, which ranged from 16 months to more than 3 and a half years, all 14 persons had been held in solitary confinement and incommunicado detention. According to the report, they had no knowledge of where they were being held, and no contact with persons other than their interrogators or guards.” ICRC concluded that:

Twelve of the fourteen alleged that they were subjected to systematic physical and/or psychological ill-treatment. This was a consequence of both the treatment and the material conditions which formed part of the interrogation regime, as well as the overall detention regime. This regime was clearly designed to undermine human dignity and to create a sense of futility by inducing, in many cases, severe physical and mental pain and suffering, with the aim of obtaining compliance and extracting information, resulting in exhaustion, depersonalization and dehumanization. The allegations of ill-treatment of the detainees indicate that, in many cases, the ill-treatment to which they were subjected while held in the CIA program, either singly, or in combination, constituted torture. In addition, many other elements of the ill-treatment, either singly or in combination, constituted cruel inhuman or degrading treatment.”

107. Despite the acknowledgement in September 2006 by President Bush of the existence of secret CIA detention facilities, the United States Government and the Governments of the States that hosted these facilities have generally refused to disclose their location or even existence. The specifics of the secret sites have, for the most part, been revealed through off-the-record disclosures.

108. In November 2005, for example, the Washington Post referred to “current and former intelligence officers and two other US Government officials” as sources for the contention that there had been a secret CIA black site or safe house in Thailand, “which included underground interrogation cells”. One month later, ABC News reported on the basis of testimonies from “current and former CIA officers” that Abu Zubaydah had been:

… whisked by the CIA to Thailand where he was housed in a small, disused warehouse on an active airbase. There, his cell was kept under 24-hour closed circuit TV surveillance and his life-threatening wounds were tended to by a CIA doctor specially sent from Langley headquarters to assure Abu Zubaydah was given proper care, sources said. Once healthy, he was slapped, grabbed, made to stand long hours in a cold cell, and finally handcuffed and strapped feet up to a water board until after 0.31 seconds he begged for mercy and began to cooperate.

The details of Abu Zubaydah’s treatment have been confirmed by his initial FBI interrogator, who has not confirmed or denied that the location where Abu Zubaydah was held was in Thailand. The Washington Post also reported that the officials had stated that Ramzi bin al-Shibh had been flown to Thailand after his capture. The New York Times again stated in 2006 that Abu Zubaydah was held in Thailand “according to accounts from five former and current government officials who were briefed on the case.” In January 2008, the Asia Times reported that political analysts and diplomats in Thailand suspected that the detention facility was “situated at a military base in the northeastern province of Udon Thani”.

109. The sources of the Washington Post stated that, after “published reports revealed the existence of the site in June 2003, Thai officials insisted the CIA shut it down”. The New York Times alleged later that local officials were said to be growing uneasy about “a black site outside Bangkok code-named Cat’s Eye” and that this was a reason for the CIA to want “its own, more permanent detention centers”.

110. In 2008, the Washington Post described on the basis of interviews with “more than two dozen current and former U.S. officials” how a “classified cable” had been sent between the CIA station chief in Bangkok and his superiors “asking if he could destroy videotapes recorded at a secret CIA prison in Thailand … from August to December 2002 to demonstrate that interrogators were following the detailed rules set by lawyers and medical experts in Washington, and were not causing a detainee’s death.” The newspaper also reported “several of the inspector general’s deputies traveled to Bangkok to view the tapes.” The Office of the Inspector General reviewed 92 videotapes in May 2003, 12 of which included “enhanced interrogation techniques” and identified 83 waterboarding sessions on Abu Zubaydah at a “foreign site”. From the OIG report it seems that Abu Zubaydah and Abd al-Rahim al-Nashiri were detained and interrogated at the same place [PDF, paras. 74 and 91]. This information could not be verified, as the location of the interrogation is redacted in the report of the CIA Officer General, although independent sources informed the experts that the facility was indeed in Thailand and that it was known as the “Cat’s Eye”. The videotapes were however allegedly destroyed in November 2005 by the CIA and, according to the New York Times, the tapes had been held “in a safe at the CIA station in Thailand, the country where two detainees — Abu Zubaydah and Abd al-Rahim al-Nashiri — were interrogated.”

111. In its submission for the present study, the Government of Thailand denied the existence of a secret detention facility in Thailand in 2002/03, stating that international and local media had visited the suspected places and found no evidence of such a facility. In the light of the detailed nature of the allegations, however, the experts believe it credible that a CIA black site existed in Thailand, and calls on the domestic authorities to launch an independent investigation into the matter.

112. In June 2007, in a report submitted to the Council of Europe, rapporteur Dick Marty stated that he had enough “evidence to state that secret detention facilities run by the CIA did exist in Europe from 2003 to 2005, in particular in Poland and Romania.” [PDF. In its response to the report, Romania contested the evidentiary basis of the findings concerning Romania]. The report drew on testimony from over 30 current and former members of intelligence services in the United States and from Europe. According to the Rapporteur, the Romanian “black site” was allegedly in force from 2003 to the second half of 2005. He also noted that “the majority of the detainees brought to Romania were, according to our sources, extracted ‘out of [the] theater of conflict’. This phrase is understood as a reference to detainee transfers originating from Afghanistan and, later, Iraq”. In August 2009, former United States intelligence officials disclosed to the New York Times that Kyle D. Foggo, at that time head of the CIA’s main European supply base in Frankfurt, oversaw the construction of three CIA detention centres, “each built to house about a half-dozen detainees”. They added that “one jail was a renovated building on a busy street in Bucharest”.

113. While the identities of many detainees who were held in these facilities have not been revealed yet, it is known that on or around 24 April 2004, Mohammed al-Asad (see para. 133 below) was transferred with at least two other people from Afghanistan to an unknown, modern facility apparently run by United States officials, which was carefully designed to induce maximum disorientation, dependence and stress in the detainees. Descriptions of the facility and its detention regime were given by Mr. al-Asad to Amnesty International, which established that he had been held in the same place as two other Yemeni men, Salah Ali and Mohammed Farag Ahmad Bashmilah. Research into flight durations and the observations of Mr. al-Asad, Mr. Ali, and Mr. Bashmilah suggest that the facility was likely located in Eastern Europe. Mr. al-Asad was held in a rectangular cell approximately 3.5 x 2.5 m, in which he was chained to the floor in the corner. The first night, Mr. al-Asad was kept naked in his cell. The cell included a speaker, which played noise similar to an engine or machine, and two cameras. For most of his time in the facility, the light in his cell was kept on all night. At one point, Mr. al-Asad met with a man who identified himself as the prison director and claimed that he had just flown in from Washington, D.C. Similarly, Mr. Bashmilah described how the facility where he was held was much more modern than the one in Afghanistan. White noise was blasted into his cell, the light was kept on constantly, and he was kept shackled. The guards in the facility were completely dressed in black, including black face masks, and communicated to one another by hand gestures only. The interrogators spoke to each other in English and referred to information arriving from Washington, D.C. [Declaration of Mohamed Farag Ahmad Bashmilah in support of plaintiffs’ opposition to the motion of the United States to dismiss or, in the alternative, for summary judgement, Civil Action No. 5:07-cv-02798 in the United States District Court for the Northern District of California, San Jose Division. See also “Surviving the Darkness”, a report by the Center for Human Rights and Global Justice at NYU School of Law (PDF), pp. 34-35]. On 5 March 2005, the United States informed Yemen that Mr. Bashmilah was in American custody. On 5 May 2005, Mr. Bashmilah was transferred to Yemen, along with two other Yemeni nationals, Mr. al-Asad and Salah Nasser Salim Ali Darwish.

114. In Poland, eight high-value detainees, including Abu Zubaydah, Khalid Sheikh Mohammed, Ramzi bin al-Shibh, Tawfiq [Waleed] bin Attash and Ahmed Khalfan [al-]Ghailani, were allegedly held between 2003 and 2005 in the village of Stare Kiejkuty [PDF, p. 25. In his report, Dick Marty also noted that “a single CIA source told us that there were ‘up to a dozen’ high-value detainees in Poland in 2005, but we were unable to confirm this number”]. According to the leaked ICRC report, Khalid Sheikh Mohammed knew that he was in Poland when he received a bottle of water with a Polish label. According to ABC News, in 2005, Hassan Ghul and Mohammed Omar Abdel-Rahman were also detained in the facility in Poland [also see Working Group on Arbitrary Detention, opinion No. 29/2006 (United States of America) (A/HRC/4/40/Add.1, para. 15., and this March 2003 Fox News report]. The Polish press subsequently claimed that the authorities of Poland — during the term of office of President Aleksander Kwaśniewski and Prime Minister Leszek Miller — had assigned a team of “around a dozen” intelligence officers to cooperate with the United States on Polish soil, thereby putting them under exclusive American control and had permitted American “special purpose planes” to land on the territory of Poland [Edyta Żemła, Mariusz Kowalewski, “Polski wywiad w służbie CIA”, Rzeczpospolita, 15 April 2009]. The existence of the facility has always been denied by the Government of Poland and press reports have indicated that it is unclear what Polish authorities knew about the facility.

115. While denying that any terrorists had been detained in Poland, Zbigniew Siemiątkowski, the head of the Polish Intelligence Agency in the period 2002-2004, confirmed the landing of CIA flights [Adam Krzykowski , Mariusz Kowalewski, ‘Politycy przeczą’ Rzeczpospolita, 15 April 2009]. Earlier, the Marty report had included information from civil aviation records revealing how CIA-operated planes used for detainee transfers landed at Szymany airport, near the town of Szczytno, in Warmia-Mazuria province in north-eastern Poland, and at the Mihail Kogalniceanu military airfield in Romania between 2003 and 2005. Marty also explained how flights to Poland were disguised by using fake flight plans.

116. In research conducted for the present study, complex aeronautical data, including “data strings” retrieved and analysed, have added further to this picture of flights disguised using fake flight plans and also front companies [Data strings are exchanges of messages or digital data, mostly in the form of coded text and numbers between different entities around the world on aeronautical telecommunications networks]. For example, a flight from Bangkok to Szymany, Poland, on 5 December 2002 (stopping at Dubai) was identified, though it was disguised under multiple layers of secrecy, including charter and sub-contracting arrangements that would avoid there being any discernible “fingerprints” of a United States Government operation, as well as the filing of “dummy” flight plans. The experts were made aware of the role of the CIA chief aviation contractor through sources in the United States. The modus operandi was to charter private aircraft from among a wide variety of companies across the United States, on short-term leases to match the specific needs of the CIA Air Branch. Through retrieval and analysis of aeronautical data, including data strings, it is possible to connect the aircraft N63MU with three named American corporations, each of which provided cover in a different set of aviation records for the operation of December 2002. The aircraft’s owner was and remains “International Group LLC”; its registered operator for the period in question was “First Flight Management”; and its registered user in the records of the Eurocontrol Central Route Charges Office, which handles the payment of bills, was “Universal Weather”. Nowhere in the aviation records generated by this aircraft is there any explicit recognition that it carried out a mission associated with the CIA. Research for the present study also made clear that the aviation services provider Universal Trip Support Services filed multiple dummy flight plans for the N63MU in the period from 3 to 6 December 2002. In a report, the CIA Inspector General discussed the interrogations of Abu Zubaydah and Abd al-Rahim al-Nashiri. Two United States sources with knowledge of the high-value detainees programme informed the experts that a passage revealing that “enhanced interrogation of al-Nashiri continued through 4 December 2002” and another, partially redacted, which stated that:

However, after being moved, al-Nashiri was thought to have been withholding information”, indicate that it was at this time that he was rendered to Poland. The passages are partially redacted because they explicitly state the facts of al-Nashiri’s rendition — details which remain classified as “Top Secret” [PDF, paras. 76 and 224].

117. Using a similar analysis of complex aeronautical data, including data strings, research was also able to demonstrate that a Boeing 737 aircraft, registered with the Federal Aviation Administration as N313P, flew to Romania in September 2003. The aircraft took off from Dulles Airport in Washington, D.C. on Saturday 20 September 2003, and undertook a four-day flight “circuit”, during which it landed in and departed from six different foreign territories — the Czech Republic, Uzbekistan, Afghanistan, Poland, Romania and Morocco — as well as Guantanamo Bay, Cuba. Focus was also placed on a flight between the two listed European “black site” locations — namely from Szymany (Poland) to Bucharest — on the night of 22 September 2003, although it was conceivable that as many as five consecutive individual routes on this circuit — beginning in Tashkent, concluding in Guantanamo — may have involved transfers of detainees in the custody of the CIA. The experts were not able to identify any definitive evidence of a detainee transfer into Romania taking place prior to the flight circuit.

118. In its response to the questionnaire sent by the experts, Poland stated that:

On 11 March 2008, the district Prosecutor’s Office in Warsaw instituted proceedings on the alleged existence of so-called secret CIA detention facilities in Poland as well as the illegal transport and detention of persons suspected of terrorism. On 1 April 2009, as result of the reorganization of the Public Prosecutor’s Office, the investigation was referred to the Appellate Prosecutor Office in Warsaw. In the course of investigation, the prosecutors gathered evidence, which is considered classified or secret. In order to secure the proper course of proceedings, the prosecutors who conduct the investigation are bound by the confidentiality of the case. In this connection, it is impossible to present any information regarding the findings of the investigation. Once the proceedings are completed and its results and findings are made public the Government of Poland will present and submit all necessary or requested information to any international body.

While the experts appreciate the fact that an investigation has been opened into the existence of places of secret detention in Poland, they are concerned about the lack of transparency into the investigation. After 18 months, still nothing is known about the exact scope of the investigation. The experts expect that any such investigation would not be limited to the question of whether Polish officials had created an “extraterritorial zone” in Poland, but also whether officials were aware that “enhanced interrogation techniques” were applied there.

119.  In its response to the questionnaire sent by the experts, Romania provided a copy of the report of the Committee of Enquiry of Parliament concerning the investigation of the statements on the existence of CIA imprisonment centres or of flights of aircraft hired by the CIA on the territory of Romania.

120. With regard to Europe, ABC News recently reported that Lithuanian officials had provided the CIA with a building where as many as eight terrorist suspects were held for more than a year, until late 2005, when they were moved because of public disclosure of the programme [also see this statement by Dick Marty]. More details emerged in November 2009 when ABC News reported that the facility was built inside an exclusive riding academy in Antaviliai. Research for the present study, including data strings relating to Lithuania, appears to confirm that Lithuania was integrated into the secret detention programme in 2004. Two flights from Afghanistan to Vilnius could be identified: the first, from Bagram, on 20 September 2004, the same day that 10 detainees previously held in secret detention, in a variety of countries, were flown to Guantanamo; the second, from Kabul, on 28 July 2005. The dummy flight plans filed for the flights into Vilnius customarily used airports of destination in different countries altogether, excluding any mention of a Lithuanian airport as an alternate or back-up landing point.

121. On 25 August 2009, the President of Lithuania announced that her Government would investigate allegations that Lithuania had hosted a secret detention facility. On 5 November 2009, the Lithuanian Parliament opened an investigation into the allegation of the existence of a CIA secret detention on Lithuanian territory. In its submission for the present study, the Government of Lithuania provided the then draft findings of this investigation, which in the meantime had been adopted by the full Parliament. In its findings, the Seimas Committee stated that the State Security Department (SSD) had received requests to “equip facilities in Lithuania suitable for holding detainees”. In relation to the first facility, the Committee found that “conditions were created for holding detainees in Lithuania”. The Committee could not conclude, however, that the premises were also used for that purpose. In relation to the second facility, the Committee found that:

The persons who gave testimony to the Committee deny any preconditions for and possibilities of holding and interrogating detainees … However, the layout of the building, its enclosed nature and protection of the perimeter as well as fragmented presence of the SSD staff in the premises allowed for the performance of actions by officers of the partners without the control of the SSD and use of the infrastructure at their discretion.

The report also found that there was no evidence that the SSD had informed the President, the Prime Minister or other political leaders of the purposes and contents of its cooperation with the CIA regarding these two premises.

122. While the experts welcome the work of the Seimas Committee as an important starting point in the quest for truth about the role played by Lithuania in the secret detention and rendition programme, they stress that its findings can in no way constitute the final word on the country’s role. On 14 January 2010, President Dalia Grybauskaite rightly urged Lithuanian prosecutors to launch a deeper investigation into secret CIA black sites held on the country’s territory without parliamentary approval.

123. The experts stress that all European Governments are obliged under the European Convention of Human Rights to investigate effectively allegations of torture or cruel, inhuman or degrading treatment or punishment [See for example Assenov et al v. Bulgaria, judgement of 28 October 1998]. Failure to investigate effectively might lead to a situation of grave impunity, besides being injurious to victims, their next of kin and society as a whole, and fosters chronic recidivism of the human rights violations involved. The experts also note that the European Court of Human Rights has applied the test of whether “the authorities reacted effectively to the complaints at the relevant time” [Labita v Italy, application no. 26772/95, judgement of 6 April 2000, para. 131]. A thorough investigation should be capable of leading to the identification and punishment of those responsible for any ill treatment; it “must be ‘effective’ in practice as well as in law, in particular in the sense that its exercise must not be unjustifiably hindered by the acts or the omissions of the authorities” [See Aksoy v. Turkey, judgement of December 1996, para 95; and Kaya v. Turkey, judgement of 19 February 1998, para 106]. Furthermore, according to the European Court, authorities must always make a serious attempt to find out what happened [See Timurtas v. Turkey, judgement of 13 June 2000, para. 88] and “should not rely on hasty or ill-founded conclusions to close their investigation or as the basis of their decisions” [Assenov v. Bulgaria, op. cit., para. 104].

124. According to two high-ranking Government officials at the time, revelations about the existence of detention facilities in Eastern Europe in late 2005 by the Washington Post and ABC News led the CIA to close its facilities in Lithuania and Romania and move the Al-Qaida detainees out of Europe. It is not known where these persons were transferred; they could have been moved into “war zone facilities” in Iraq and Afghanistan or to another black site, potentially in Africa. The experts were not able to find the exact destination of the 16 high-value detainees between December 2005 and their move to Guantanamo in September 2006. No other explanation has been provided for the whereabouts of the detainees before they were moved to Guantanamo in September 2006.

125. Other locations have been mentioned as the venues for secret detention facilities outside territories under United States control (or operated jointly with the United States military). The first is Guantanamo, which was mentioned by the United States officials who spoke to the Washington Post in 2005, when it was reported that the detention facility had existed “on the grounds of the military prison at Guantanamo Bay”, but that “some time in 2004, the CIA decided it had to give [it] up … The CIA had planned to convert it into a state-of-the-art facility, operated independently of the military [but] pulled out when US courts began to exercise greater control over the military detainees, and agency officials feared judges would soon extend the same type of supervision over their detainees”. More recently, former Guantanamo Bay guards have described “an unnamed and officially unacknowledged” compound located out of sight from the main road between two plateaus, about a mile north of Camp Delta, just outside Camp America’s perimeter with the access road chained off. The unacknowledged “camp no” is described as having had no guard towers and being surrounded with concertina wire, with one part of the compound having “the same appearance as the interrogation centers at other prison camps”. At this point, it is unclear whether this facility was run by the CIA or the Joint Special Operations Command. The experts are concerned about the possibility that three Guantanamo 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.

126. There have also been claims that the United States used two military bases in the Balkans for secret detention: Camp Bondsteel, in Kosovo, and Eagle Base, in Tuzla, Bosnia and Herzegovina. In November 2005, Council of Europe Human Rights Commissioner Alvaro Gil-Robles told Le Monde that the United States military ran a Guantanamo-type detention centre in Camp Bondsteel. He said he had been “shocked” by conditions at the centre, which he witnessed in 2002, and which resembled “a smaller version of Guantanamo”. In December 2005, the United Nations Ombudsman in Kosovo, Marek Antoni Nowicki, also spoke about Camp Bondsteel, saying “there can be no doubt that for years there has been a prison in the Bondsteel base with no external civilian or judicial oversight. The prison looks like the pictures we have seen of Guantanamo Bay”. Mr. Nowicki said that he had visited Camp Bondsteel in late 2000 and early 2001, when it was the main detention centre for Kosovo Force (KFOR), the NATO-led peace-keeping force, but explained that he had had no access to the base since 2001. The United States base in Tuzla was allegedly used to “process” eight detainees, including Nihad Karsic and Almin Hardaus. Around 25 September 2001, Karsic and Hardaus were arrested at work and taken to Butmir Base, then to Eagle Base, Tuzla, where they allegedly were held in secret detention [PDF]. The men say that they were held in solitary confinement, stripped naked, forcibly kept awake, repeatedly beaten, verbally harassed, deprived of food and photographed.

127. Further developments were witnessed in 2009. In October, three of the experts sent a letter to the Governments of the United States, the United Kingdom [United Kingdom response included in A/HRC/13/39/Add.1], Pakistan and the Syrian Arab Republic regarding Mustafa Setmariam Nassar, aged 42, a Spanish citizen of Syrian origin and author of a number of books and other publications on Islam and jihad. They pointed to allegations received that, on an unknown date in October 2005, he had been apprehended in Pakistan by forces of the Pakistani intelligence on suspicion of having been involved in a number of terrorist attacks, including the 11 September 2001 attacks against the United States and the 11 March 2004 bombings in Madrid. He was detained in Pakistan for a certain period of time accused of involvement in both incidents. He was then handed over to authorities of the United States. While no official news of Mr. Nassar’s whereabouts has been received since his apprehension in October 2005, it is alleged that, in November 2005, he was held for some time at a military base facility under United States authority in Diego Garcia. It is now assumed that he is currently being held in secret detention in the Syrian Arab Republic. Official United States documents and web postings, as well as media reports, indicate that the United States authorities had been interested in Mr. Nassar before his disappearance in 2005. In June 2009, in response to a request made through Interpol by a Spanish judge for information relating to Mr. Nassar’s whereabouts, the FBI stated that Mr. Nassar was not in the United States at that time. The FBI did not, however, address whether Mr. Nassar was in United States custody elsewhere or whether it knew where he was then held. Following queries by non-governmental organizations regarding the whereabouts of Mr. Nassar, the CIA responded on 10 June 2009, stating that “the CIA can neither confirm nor deny the existence or nonexistence of records responsive to your request” and that, even if the CIA was in a position to answer the request, the records would be classified and protected from disclosure by United States laws. According to Reprieve, Mr. Nassar may have been transferred to Syrian custody. According to the Government of the United Kingdom, it has received assurances from the United States that it has not interrogated any terrorist suspect or terrorism-related detainee in Diego Garcia in any case since 11 September 2001, and that the allegations of a CIA holding facility on the island are false. The Government was therefore confident that the allegations that Mr. Nassar had been held on Diego Garcia were inaccurate.

128. Following the transfer of the 14 high-value detainees from CIA custody to Guantanamo, President Bush, in a delivered speech on 6 September 2006, announced the closure of the CIA’s “high-value detainee programme”. He stressed that, “as more high-ranking terrorists are captured, the need to obtain intelligence from them will remain critical — and having a CIA programme for questioning terrorists will continue to be crucial to getting life-saving information”. Later in 2006 and in 2007 [PDF], he indicated that “the CIA interrogation and detention program” would continue. Subsequent events support this claim as the Department of Defense announced in 2007 and 2008 the transfer of high-value detainees from CIA custody to Guantanamo.

129. On 27 April 2007, the Department of Defense announced that another high-value detainee, Abd al-Hadi al-Iraqi, described as “a high-level member of Al-Qaida”, had been transferred to Guantanamo. On the same day, Bryan Whitman, a Pentagon spokesman, stated that the detainee had been transferred to Defense Department custody that week from the CIA although he “would not say where or when al-Iraqi was captured or by whom”. However, a United States intelligence official stated that al-Iraqi “had been captured late last year in an operation that involved many people in more than one country”. Another high-value detainee, Muhammad Rahim, an Afghan described as a close associate of Osama bin Laden, was transferred to Guantanamo on 14 March 2008. In a press release, the Department of Defense stated that, “prior to his arrival at Guantanamo Bay, he was held in CIA custody”. According to reports in Pakistani newspapers, he was captured in Lahore in August 2007.

130. The Government of the United States provided no further details about where the above-mentioned men had been held before their transfer to Guantanamo; however, although it is probable that al-Iraqi was held in another country, in a prison to which the CIA had access (it was reported in March 2009 that he “was captured by a foreign security service in 2006” and then handed over to the CIA), the Department of Defense itself made it clear that the CIA had been holding Muhammad Rahim, indicating that some sort of CIA “black site” was still operating.

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) and of two other books: Stonehenge: Celebration and Subversion and The Battle of the Beanfield. 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, currently on tour in the UK, and available on DVD here), and my definitive Guantánamo habeas list, 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), 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), UN Secret Detention Report Asks, “Where Are The CIA Ghost Prisoners?” (January 2010), Binyam Mohamed: Evidence of Torture by US Agents Revealed in UK (February 2010), Torture Whitewash: How “Professional Misconduct” Became “Poor Judgment” in the OPR Report (February 2010), Judges Restore Damning Passage on MI5 to the Binyam Mohamed Torture Ruling (February 2010), What Torture Is, and Why It’s Illegal and Not “Poor Judgment” (March 2010), Abu Zubaydah’s Torture Diary (March 2010), Seven Years of War in Iraq: Still Based on Cheney’s Torture and Lies (March 2010), Protests worldwide on Aafia Siddiqui Day, Sunday March 28, 2010 (March 2010), Abu Zubaydah: Tortured for Nothing (April 2010), Mohamedou Ould Salahi: How a Judge Demolished the US Government’s Al-Qaeda Claims (April 2010), Judge Rules Yemeni’s Detention at Guantánamo Based Solely on Torture (April 2010), How Binyam Mohammed’s Torture Was Revealed in a US Court (May 2010), What is Obama Doing at Bagram? (Part One): Torture and the “Black Prison” (June 2010), New Report Reveals How Bush Torture Program Involved Human Experimentation (June 2010). Also see the extensive archive of articles about the Military Commissions.

This important report, which follows research undertaken by, amongst others, Jeff Kaye and Marcy Wheeler, deserves thorough coverage, and as I don’t have time to write my own analysis, I’m cross-posting below a very useful article published on Truthout by my colleague Jason Leopold, which analyzes the report, puts it in context, links to the work of Jeff Kaye, Marcy Wheeler and others, and also expands on the significance of the human experimentation program in the torture of the supposed “high-value detainee” Abu Zubaydah, about whom both Jason and I have written at length.

Human Experimentation at the Heart of Bush Administration’s Torture Program
By Jason Leopold, Truthout, June 6, 2010

High-value detainees captured during the Bush administration’s “war on terror” who were subjected to brutal torture techniques were part of a Nazi Germany-type program involving illegal human experimentation, the purpose of which was to collect research “data,” according to a disturbing new report that calls on President Barack Obama, Congress and other government agencies to immediately launch inquiries and Attorney General Eric Holder to investigate the allegations.

The findings contained in the 27-page report, “Experiments in Torture: Human Subject Research and Evidence of Experimentation in the ‘Enhanced’ Interrogation Program,” is based on extensive research of previously declassified government documents that shows the crucial role medical personnel played in establishing and justifying the legality of the Bush administration’s torture program.

The report said the research and experimentation of detainees its authors have documented is not only a violation of the Geneva Conventions, but is a grave breach of international laws, such as the Nuremberg Code, established after atrocities committed by Nazis were exposed in the aftermath of World War II.

“Health professionals working for and on behalf of the CIA monitored the interrogations of detainees, collected and analyzed the results of [the] interrogations, and sought to derive generalizable inferences to be applied to subsequent interrogations,” states an executive summary of the report, prepared by Physicians for Human Rights. “Such acts may be seen as the conduct of research and experimentation by health professionals on prisoners, which could violate accepted standards of medical ethics, as well as domestic and international law. These practices could, in some cases, constitute war crimes and crimes against humanity.”

For example, PHR said the drowning method known as waterboarding was monitored in early 2002 by medical personnel who collected data about how detainees responded to the torture technique. The data was then given to Steven Bradbury, the former head of the Justice Department’s Office of Legal Counsel (OLC), who used it to write a legal opinion in 2005 advising CIA interrogators on how to administer the technique, referred to in the PHR report as “Waterboarding 2.0.”

“According to the Bradbury memoranda, [CIA Office of Medical Services] teams, based on their observation of detainee responses to waterboarding, replaced water in the waterboarding procedure with saline solution ostensibly to reduce the detainees’ risk of contracting pneumonia and/or hyponatremia, a condition of low sodium levels in the blood caused by free water intoxication, which can lead to brain edema and herniation, coma, and death,” the report says. In Bradbury’s torture memo, he wrote that “based on advice of medical personnel, the CIA requires that saline solution be used instead of plain water to reduce the possibility of hyponatremia (i.e. reduced concentration of sodium in the blood) if the detainee drinks the water.”

PHR noted that the presence of CIA medical personnel during the waterboarding sessions “could represent evidence of human experimentation” because it underscores “the danger and harm inherent in the practice of waterboarding and the enlistment of medical personnel in an effort to disguise a universally recognized tactic as a ‘safe, legal and effective’ interrogation tactic.”

CIA medical personnel also obtained experimental research data by subjecting more than 25 detainees to a combination of torture techniques, including sleep deprivation, according to the report, as a way of understanding “whether one type of application over another would increase the subjects’ susceptibility to severe pain.” The information derived from the research informed “subsequent [torture] practices.”

“This investigation had no direct clinical health care application, nor was it in the detainees’ personal interest, nor part of their medical management,” the report says. “It appears to have been used primarily to enable the Bush administration to assess the legality of the tactics, and to inform medical monitoring policy and procedure for future application of the techniques.”

The torture methods used on detainees derived from the Army and Air Force survival training program called Survival, Evasion, Resistance and Escape (SERE), which was meant to prepare US soldiers for abuse they might suffer if captured by an outlaw regime.

PHR and other human rights groups plan on filing a complaint this week with the Department of Health and Human Services’ Office for Human Research Protections (OHRP) demanding the agency launch a probe into the CIA’s Office of Medical Services. Additionally, the group wants the Justice Department’s ethics watchdog, the Office of Professional Responsibility, to launch a separate investigation.

OPR recently concluded a four-year long investigation into the legal work former OLC attorneys John Yoo, now a Berkeley law professor, and Jay Bybee, a federal appeals court judge on the 9th Circuit, did when drafting the August 2002 torture memos. [The report] concluded both men violated professional standards when they issued their legal opinions that allowed CIA officers to use brutal methods when interrogating suspected terrorists and recommended [they] be referred to their state bar associations to face possible disbarment.

The judgment was softened by career prosecutor David Margolis, who was put in charge of the final recommendations and who said he was “unpersuaded” by OPR’s “misconduct” conclusion, which faulted Yoo and Bybee for their approval of brutal interrogation techniques that were used against terrorism suspects after the 9/11 attacks.

And despite the new revelations about the Bush administration’s torture program that seem to surface regularly, Obama still refuses to allow for war crimes investigations, saying he still prefers to “look forwards, and not backwards” when it comes to Bush administration’s crimes.

Case in point, last March, during an interview with a reporter for an Indonesian television station, Obama was asked whether he was satisfied with the way Indonesia dealt with its past human rights abuses.

The president’s response was stunning, to say the least.

“We have to acknowledge that those past human rights abuses existed,” Obama said in the interview. “We can’t go forward without looking backwards.”

Stephen Soldz, a psychoanalyst and one of the authors of the PHR report, said “it is important to realize that the logic used by the Obama administration to refuse an investigation of torture claims — that the torture memos allowed the torturers to believe their actions were legally sanctioned — does not apply to potential research on detainees.”

“As far as is publicly known, there exist no ‘torture research’ memos authorizing ignoring laws and regulations prohibiting research on torture techniques,” Soldz said.

Frank Donaghue, PHR’s chief executive officer, said the report released by his organization appears to demonstrate that the CIA violated “all accepted legal and ethical standards put in place since the Second World War to protect prisoners from being the subjects of experimentation.”

“Not only are these alleged acts gross violations of human rights law, they are a grave affront to America’s core values,” he added.

Rev. Richard Killmer, executive director of the the National Religious Campaign Against Torture, said PHR’s findings “recalls some of humanity’s darkest days –charges from which no person of faith can afford to turn away.”

As expected, the CIA denied the report’s assertions. Spokesman Paul Gimigliano said the agency, “as part of its past detention program, [did not] conduct human subject research on any detainee or group of detainees.”

But Gimigliano’s denials are contradicted by dozens of former intelligence and national security officials who, as recently as last March, said detainees were experimented on.

Indeed, the conclusions the report’s authors reached in the area of sleep deprivation confirm several recent investigative reports published by Truthout related to the torture and experimentation the Bush administration’s first high-value detainee, Abu Zubaydah, was subjected to after he was captured in March 2002.

A former National Security official knowledgeable about the Bush administration’s torture program previously told Truthout that Zubaydah was “an experiment … a guinea pig” used so CIA contractors could obtain data. The data was then shared with officials at the CIA and the Justice Department, who used that information to draft the August 2002 torture memos stating what interrogation methods could be legally used, how often the methods could be employed and how it should be administered without crossing the line into torture.

The PHR report does not identify Zubaydah by name.

In March, Truthout reported, based on interviews with more than two dozen intelligence and national security officials, that one of the main reasons Zubaydah’s torture sessions were videotaped was to gain insight into his “physical reaction” to the techniques used against him.

For example, one current and three former CIA officials said some videotapes showed Zubaydah being sleep deprived for more than two weeks. Contractors hired by the CIA studied how he responded psychologically and physically to being kept awake for that amount of time. By looking at videotapes, they concluded that after the 11th consecutive day of being kept awake Zubaydah started to “severely break down.” So, the torture memo signed by Bybee concluded that 11 days of sleep deprivation was legal and did not meet the definition of torture.

PHR’s analysis on sleep deprivation concluded, based on a review of documents, that “government lawyers used observational data collected by health professionals from varying applications of sleep deprivation to inform legal evaluations regarding the risk of inflicting certain levels of harm on the detainee, and to shape policy that would guide further application of the technique.”

The report also determined that the experimentation helped create a framework to protect the torturers from war crimes and other charges.

“OLC lawyers argued that efforts to refine and improve the application of techniques would provide a potential ‘good faith’ defense for interrogators against charges of torture,” the report said. “They argued that such a medical monitoring regime would remove the element of intent to cause harm from the act, which is a necessary requirement for a successful prosecution of a torture charge under US law, and that a ‘good faith belief need not be a reasonable belief; it need only be an honest belief.’ Thus, research on the detainees became a key part of the OLC legal strategy to demonstrate the lack of intent to commit torture.”

Nathaniel Raymond, director of PHR’s Campaign Against Torture, said, “Justice Department lawyers appear to have never assessed the lawfulness of the alleged research on detainees in CIA custody, despite how essential it appears to have been to their legal cover for torture.”

Brent Mickum, Zubaydah’s attorney, said PHR’s report is evidence that there was an “experimental element to the torture program and it was approved at the highest levels of government.”

“I have said literally for years that I believe my client was tortured before any of these enhanced interrogation techniques were approved by the Justice Department,” Mickum told Truthout. “And now we know that not only was my client subjected to torture but he was part of an experiment. This is so ugly, so shameful, so unlawful. If this revelation doesn’t kick in an obligation on the part of the Department of Justice to investigate war crimes than I don’t know what does. The Obama administration has essentially refused to do that. At some point, the Obama administration has to take seriously what their obligations are under the law.”

Mickum said he is preparing to file a series of motions in federal court calling for the preservation of documents based on the conclusions contained in PHR’s report.

For those who have closely followed the details that have surfaced over the years related to the Bush administration’s torture program, a chunk of the information contained in the report related to human experimentation that has already been painstakingly documented by Marcy Wheeler at her blog Emptywheel, and Truthout’s own Jeffrey Kaye on his blog Invictus and in articles published on this website and at Firedoglake.

In her analysis, Wheeler focused on a section of the report dealing with revisions the Bush administration made in 2006 to the War Crimes Act (WCA), which “retroactively changed[d] the law on human experimentation [so] that experimentation no longer needed to have a personal benefit to the research subject, and could instead be justified because of a ‘legitimate’ interest.”

According to PHR’s report, “the new language of the WCA added two qualifications that appear to have lowered the bar on biological experimentation on prisoners.”

“That language requires that the experiment have a ‘legitimate’ purpose, but does not require that it be carried out in the interest of the subject,” the report noted. “It also adds the requirement that the experiment not ‘endanger’ the subject, which appears to raise the threshold for what will be considered illegal biological experimentation.”

PHR has called on Congress to amend the law.

In his coverage of the PHR report, Kaye wrote that one of the “various threads left dangling” he remains most concerned about involves “the links between the SERE research undertaken by investigators led by Dr. Charles A. Morgan and the CIA experimental torture program, as reported in an appendix to PHR’s report.”

“PHR describes the SERE research undertaken during the years prior to the issuance of the OLC memos, and explains that the results of that research demonstrated how the risk of harm was inherent in the SERE techniques,” wrote Kaye, who has reported extensively on Morgan’s connections to the CIA’s “enhanced interrogation techniques.” “In addition, [the report notes], ‘the experimental framework of these studies intentionally or unintentionally laid the groundwork for unethical and illegal human experimentation that would follow.’”

Meanwhile, Obama’s presence in the White House has not resulted in an abandonment of the research side of the interrogation program.

Last March, Director of National Intelligence Dennis Blair, who recently resigned, disclosed that the Obama administration’s High-Value Detainee Interrogation Group (HIG), planned on conducting “scientific research” to determine “if there are better way to get information from people that are consistent with our values.”

“It is going to do scientific research on that long-neglected area,” Blair said during testimony before the House Intelligence Committee. He did not provide additional details as to what the “scientific research” entailed.

Note: For further information, see this BoingBoing interview with Dr. Scott Allen, the lead medical author of the report, who is co-director of the Center For Prisoner Health and Human Rights at Brown University, and Medical Advisor to PHR.

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 currently on tour in the UK), my definitive Guantánamo habeas list, 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), 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), UN Secret Detention Report Asks, “Where Are The CIA Ghost Prisoners?” (January 2010), Binyam Mohamed: Evidence of Torture by US Agents Revealed in UK (February 2010). Also see the extensive archive of articles about the Military Commissions, and articles detailing findings of torture in the habeas corpus petitions of a number of Guantánamo prisoners.

Note

Despite the Bush administration’s fearsome rhetoric regarding Guantánamo — that it contained “the worst of the worst” terrorists, who, as a result, should be held indefinitely without charge or trial — attempts to back up these allegations with evidence have, for the most part, failed dismally. This is partly because the majority of the men held were not seized by US forces on the battlefield, as alleged, but were rounded up by the US military’s allies, in Pakistan as well as Afghanistan, at a time when bounty payments averaging $5,000 a head were being paid for al-Qaeda or Taliban suspects. However, the failures can also be ascribed to overreaction on the part of the Bush administration, and to a system of torture and coercion — and, in some cases, bribery — designed to produce confessions that, as a result, are overwhelmingly unreliable.

By the time George W. Bush left office in January 2009, 532 of the 779 prisoners held at Guantánamo had been released, and only three men had been tried and convicted of any crimes. These took place in the Military Commission trial system established by Vice President Dick Cheney in November 2001, which was revived by Congress in 2006 after the Supreme Court ruled it illegal, and the results were as follows:

• David Hicks, an Australian, accepted a plea bargain in March 2007, admitting to “providing material support to terrorism” in exchange for dropping his well-documented claims that he was abused in US custody. As a result, he received a nine-month sentence and was returned to Australia, where he is now a free man.

• In August 2008, Salim Hamdan, a driver for Osama bin Laden, was convicted of providing material support to terrorism, and given a five-and-a-half year sentence. Allowing for time already served since he was first charged, he served just five months, returning to Yemen in November 2008, where he, like Hicks, is now a free man.

• The third man to be convicted, Ali Hamza al-Bahlul, received a life sentence in November 2008 for producing a recruitment video for al-Qaeda, but his trial was a hopelessly one-sided affair, in which he refused to mount a defence, and the verdict is currently being appealed.

In addition, by the time Bush left office, judges in the US District Courts had also begun considering the habeas corpus petitions of the prisoners. The prisoners’ right to ask a judge why they were being held was unprecedented in wartime, but the Supreme Court granted the prisoners habeas rights in June 2004, because the justices recognized that they were not being held as prisoners of war protected by the Geneva Conventions, but as “enemy combatants,” who had been given no way of challenging their detention if they claimed that they had been seized by mistake. Congress subsequently stepped in to take away these rights, but they were reaffirmed in June 2008, when the Supreme Court ruled that Congress had acted unconstitutionally.

The first rulings were made in the four months before Bush left office, and the District Court judges empowered to rule on the prisoners’ detention had more bad news for the government. The Courts delivered rulings on the habeas corpus petitions of 26 prisoners, granting the petitions of 23 of these men, and only refusing them in three cases.

Under President Obama, the Courts have delivered 21 more rulings, and although the balance has swung slightly less against the government, with the prisoners winning eleven of these petitions, and the government winning ten, the only valid conclusions that can be drawn again reflect badly on the government (see “Guantánamo Habeas Results: Prisoners 34, Government 13” for links to all these rulings).

In the cases won by the prisoners, judges have demonstrated, time and again, that the government’s supposed evidence is largely unreliable, and consists primarily of information extracted through the torture or coercion of the prisoners themselves, or through the torture, coercion or bribery of other prisoners. Moreover, even in the cases won by the government, little evidence has been produced to demonstrate that the men in question were anything more than low-level Taliban recruits, who had traveled to Afghanistan to take part in a long-running civil war (in which the enemy was the Northern Alliance, who were also Muslims), and who should, as result, have been held as prisoners of war, protected by the Geneva Conventions from “cruel treatment and torture” and “outrages upon personal dignity, in particular humiliating and degrading treatment.”

Despite the government’s many setbacks, senior officials in the Obama administration, which has largely been content to consider the Bush administration’s body of tortured, coerced or bribed evidence against the men as somehow reliable, must have been hoping for confirmation of its policies on March 22, when Judge James Robertson delivered his ruling on the habeas corpus petition of Mohamedou Ould Slahi (described in court documents as Mohamedou Ould Salahi).

The case of Mohamedou Ould Salahi

A Mauritanian, Salahi had been seized by the Mauritanian authorities in November 2001, at the request of the US, and had then been rendered by the CIA to a prison in Jordan, as part of a project of outsourcing torture to allies in the Middle East and North Africa (including Egypt, Morocco and Syria) that was prevalent until the CIA brought torture in-house, and established its own secret torture prisons.

After eight months in Jordan, he was flown to Guantánamo (via Bagram, in Afghanistan), where he was subjected to another round of torture between June and September 2003, after which he became so compliant that, as the Washington Post reported last month, he has come to be regarded by the authorities as one of “the most significant informants ever to be held at Guantánamo,” living in his own well-equipped cell, where he has a television and “a well-stocked refrigerator,” and access to a garden, which he shares with another informer, Tarek El-Sawah (identified as Tariq al-Sawah), where the two men reportedly “grow mint for tea.”

Despite the torture, and the well-known fact that, in May 2004, Lt. Col. Stuart Couch of the Marine Corps, who had been assigned his case as a prosecutor the year before, resigned rather than pursuing the case, stating that, “in addition to legal reasons, he was ‘morally opposed’ to the interrogation techniques” used on Salahi, the Obama administration — and, specifically, the Justice Department — was confident that it had a case.

Once described as the “highest-value detainee at the facility,” Salahi was obviously no stranger to al-Qaeda. His cousin and brother-in-law is Mahfouz Walad al-Walid (better known as Abu Hafs al-Mauritania), a religious scholar regarded by US authorities as a spiritual advisor to Osama bin Laden, and he also lived in Germany, where he met Ramzi bin al-Shibh (who reportedly helped Khalid Sheikh Mohammed plan the 9/11 attacks) and several of the 9/11 hijackers, and, briefly, in Canada, where he moved in circles that included Ahmed Ressam, the failed “Millennium Bomber.” He was also in contact, at various points in the 1990s, with a handful of other men who were later convicted for terrorist activities.

However, as Judge Robertson explained in his unclassified opinion (PDF), issued on April 9, “Associations alone are not enough … to make detention lawful.” Although he accepted, as Salahi himself admitted, that “he traveled to Afghanistan in early 1990 to fight jihad against communists and that there he swore bayat to al-Qaeda,” he also, essentially, accepted Salahi’s assertion that “his association with al-Qaeda ended after 1992, and that, even though he remained in contact thereafter with people he knew to be al-Qaeda members, he did nothing for al-Qaeda after that time.” This was in marked contrast to the government’s claim that he “was so connected to al-Qaeda for a decade beginning in 1990 that he must have been ‘part of’ al-Qaeda at the time of his capture.”

No knowledge of “Millennium Plot,” no knowledge of 9/11

In dealing with the various components of the government’s allegations, Judge Robertson’s unclassified opinion contains two particularly important concessions by the government. The first is that, although Salahi was originally seized in connection with Ahmed Ressam’s thwarted “Millennium Plot,” the government now “does not allege that Salahi participated in the Millennium Plot.” The second — even more extraordinarily, given how Salahi has been sold to the public over the years — is that the government now “acknowledg[es] that Salahi probably did not even know about the 9/11 attacks.”

These are crucial concessions, of course, which fatally undermine any claim that Salahi was a significant al-Qaeda operative, but in granting his habeas petition, Judge Robertson was also obliged to dismiss a number of other allegations. He began by noting that the case “relies heavily on statements made by Salahi himself, but the reliability of those statements — most of them now retracted by Salahi ­– is open to question.” He added that, “until very recently, the government has focused entirely on its assertion that Salahi was ‘part of’ al-Qaeda, relying on evidence of Salahi’s pre-capture support of al-Qaeda only to bolster that assertion,” but that, “In an eleventh hour brief, the government has invoked the ‘purposeful[] and material[] support’ standard that was approved in Al-Bihani v. Obama [PDF].”

This is a reference to a disturbing Court of Appeals ruling in January, in which two of the three judges on the panel denied the appeal of Ghaleb al-Bihani, a Yemeni cook for Arab forces supporting the Taliban, who lost his habeas petition in January 2009. In this contentious ruling, the two judges claimed that the President’s war powers are not “limited by the international laws of war,” provoking dissent from the third judge, who noted that, in 2004, Justice Souter of the Supreme Court had explicitly stated, “[W]e understand Congress’ grant of authority for the use of ‘necessary and appropriate force’ to include the authority to detain for the duration of the relevant conflict, and our understanding is based on longstanding law-of-war principles.” In addition, the judges insisted that the government’s power to detain “includes those who are part of forces associated with al-Qaeda or the Taliban or those who purposefully and materially support such forces in hostilities against US Coalition partners” (emphasis added).

However, Judge Robertson ruled that this latter claim was “a non-starter,” stating that, “although Salahi may very well have been an al-Qaeda sympathizer, and the evidence does show that he provided some support to al-Qaeda, or to people he knew to be al-Qaeda, [s]uch support was sporadic … and, at the time of his capture, non-existent.” He added, “In any event, what the standard approved in Al-Bihani actually covers is ‘those who purposefully and materially supported such forces in hostilities against US Coalition partners,’” and “The evidence in this record cannot possibly be stretched far enough to fit that test.”

As a result, Judge Robertson examined the evidence submitted by the government to ascertain whether it met the existing test, first formulated by Judge John D. Bates in another habeas case (PDF): “whether the individual functions or participates within or under the command structure of the organization — i.e., whether he receives and executes orders or directions.”

After noting that “the question of when a detainee must have been a ‘part of’ al-Qaeda to be detainable is at the center of this case,” and pointing out that the government “had to show that he was still (or again) within its command structure when he was captured in November 2001,” Judge Robertson noted, almost in passing, that “the al-Qaeda that Salahi joined in 1991 was very different from the al-Qaeda that turned against the United States in the latter part of the 1990s,” and proceeded to dismiss the government’s claim that it was up to Salahi to prove that he had dissociated himself from al-Qaeda after 1992. In doing so, he took another swipe at the Court of Appeals’ ruling in Al-Bihani, in which the court indicated that “there is nothing unconstitutional about shifting the burden to a detainee to rebut a credible government showing ‘with more persuasive evidence,’” by stating, with palpable incredulity:

If that is the rule, one might reasonably ask, how can Guantánamo detainees — locked up for years on a remote island, cut off from the world, without resources, with only such access to intelligence sources and witnesses as the government deigns to give them — how can such people possibly carry the burden of rebuttal, even against weak government cases? The answer, unfortunately for detainee petitioners, is that they are indeed at a considerable disadvantage, and that successful rebuttals of credible government cases will be rare events. The Court of Appeals has acknowledged this imbalance and approved it: “[P]lacing a lower burden on the government defending a wartime detention — where national security interests are at their zenith and the rights of the alien petitioner at their nadir — is permissible.”

In response, Judge Robertson made a point of noting that a habeas court must, since the Al-Bihani ruling, “consider the government’s factual showing of probable cause and look to the petitioner for rebuttal when that showing is both credible and significant,” but added, “It is only fair to the petitioner, however — and, considering the government’s built-in advantage, not unfair to the government — to view the government’s showing with something like skepticism, drawing only such inferences as are compelled by the quality of the evidence.”

Dissecting the evidence

That evidence, as Judge Robertson noted at the outset, “relies heavily on statements made by Salahi himself,” and, as he explained, there is “ample evidence in this record that Salahi was subjected to extensive and severe mistreatment at Guantánamo from mid-June 2003 to September 2003,” as I explained in a recent article, “Guantánamo and Habeas Corpus: The Torture Victim and the Taliban Recruit.” He added that “Salahi made most, if not all, of the statements that the government seeks to use against him during the mistreatment or during the 2 years following it.” and that, as a result, Salahi’s own position is that “every incriminating statement he made while in custody must therefore be disregarded.”

While not entirely agreeing that every statement must be disregarded, Judge Robertson was clearly skeptical of the government’s claim that some statements should be acceptable because there was “a clean break” after the acknowledged abuse, and was also skeptical of an allied claim that some statements were corroborated by “the statements of other persons (some of them detainees).” After noting that Salahi attacked these corroborating statements as “unreliable hearsay, or subject to the same coercive tactics described above, or both,” the judge explained that his approach was “to formally ‘receive’ all the evidence offered by either side, and to give it the weight I believe it deserves.”

In a timeline, running from 1998, when Salahi began studying at the University of Duisberg in Germany, until his capture in November 2001, Judge Robertson accounted for the years in Afghanistan (1990-92) Salahi’s return to Germany to compete his studies in March 1992, when his wife joined him, and his employment during that period, with various companies in Germany. He also laid out every other claim that, between March 1993 and the time of his capture, he traveled with Abu Hafs to Sudan (in 1993) and twice transferred sums of $4,000 for him (in 1997 and 1998), was involved with Ramzi bin al-Shibh and some of the 9/11 hijackers, and with Ahmed Ressam and other terrorist suspects in Canada (during his brief stay there from November 1999 to January 2000), and that he had some involvement with individuals who were later convicted of charges related to terrorism, including Karim Mehdi, a Moroccan convicted of an alleged bomb plot on the French island of Réunion in 2003, who received a nine-year prison sentence in France in October 2006, Christian Ganczarski, a Polish-born German citizen, who received an 18-year sentence in France in February 2009, in connection with the bombing of a synagogue in Tunisia in April 2002, and Christopher Paul, a US citizen who received a 20-year sentence in Ohio, on charges related to terrorism, in February 2009.

This is an impressive list, of course, and one that, on the surface at least, seems to implicate Salahi in a number of terrorist plots, and to give weight to the government’s claim that he “actively recruited” for al-Qaeda from 1991 until at least 1999, but on examining the evidence Judge Robertson was not convinced.

In dealing with the “most damaging allegation” against Salahi — that, “in October 1999, he encouraged Ramzi bin al-Shibh, [and 9/11 hijackers] Marwan al-Shehhi, and Ziad Jarrah to join al-Qaeda” — Judge Robertson drew less than expected on bin al-Shibh’s dubious role in fostering this claim (during the four years that he was held in secret CIA prisons and subjected to the US torture program), and more on the unreliability of Salahi’s own statements, and those of Karim Mehdi.

As Judge Robertson explained, “Under coercive interrogation, Salahi confessed to facilitating travel for ‘several of the 9/11 hijackers to Chechnya,’ justifying his assistance as ‘just’ jihad.” As I explained in my book The Guantánamo Files, “even if it were true, it proves only that he was a recruiter for a war in Chechnya that was regarded by many Muslims as a legitimate struggle, who sent would-be recruits for training in long-established training camps in Afghanistan, and does not connect him in any meaningful way to 9/11.” However, as the judge noted, “Salahi’s testimony now is that he did nothing more than give bin al-­Shibh and his friends lodging for one night.”

Further evidence is supposed to have come from Karim Mehdi, who alleged that Salahi “encouraged them to travel to Afghanistan for training ­– rather than Chechnya as they had intended; that he housed them for at least one night [and] that he gave them instructions for traveling to Afghanistan and contacts for their arrival; and that he drove them to the train station the next morning.”

However, Salahi countered by stating that “the two men accompanying bin al-Shibh were not al-Shehhi and Jarrah, and that he did not convince bin al­Shibh to travel to Afghanistan instead of Chechnya,” and also by arguing that Mehdi’s statements “are too unreliable to serve as corroboration,” because they were “coerced by mistreatment,” including sleep deprivation, and because Mehdi “was fed information by his interrogators” and “has admitted to lying.”

In an explanation of this latter point, Judge Robertson noted that “some of Mehdi’s information is inconsistent with the statements of Salahi … Mehdi said that they [Salahi, bin al-Shibh and the hijackers] met more often than twice, including a meeting that took place at Salahi’s house at a time when Salahi was in custody. Upon learning that fact, Mehdi withdrew his statement about the meeting.” He added that “Mehdi’s statements indicate only that Salahi knew bin al-Shibh and Jarrah were going to Afghanistan for training, not that Salahi encouraged them to do so.”

Beyond this central claim, dismissed by the judge, the most persuasive other piece of evidence is a fax sent by Salahi to Christopher Paul in January 1997, asking this “man of great respect in al-Qaeda” for advice on how to “facilitate getting brothers to fight.” Although Salahi rather feebly tried to claim that he had not sent this fax, Judge Robertson found that it “appears to be authentic,” but refused to draw an inference from it beyond stating that it demonstrated that Salahi “continued to be in touch with people he knew to be al-Qaeda members, and that he was willing to refer would-be jihadists to them when the opportunity arose.”

After concluding that the government “has not credibly shown Salahi to have been a ‘recruiter,’” Judge Robertson turned his attention to claims that he had been involved in al-Qaeda telecommunications projects — for Abu Hafs in Sudan, and for Christian Ganczarski in Afghanistan. However, the judge did not give much weight to either allegation, and also dismissed allegations of his involvement with Karim Mehdi, Christopher Paul and two “important figures in al-Qaeda’s Montreal cell” as “too brief and shallow to serve as an independent basis for detention,” adding that much of Salahi’s behaviour “tend[s] to support [his] submission that he was attempting to find the appropriate balance — avoiding close relationships with al-Qaeda members, but also trying to avoid making himself an enemy.”

Moreover, although Judge Robertson acknowledged that there were “unanswered questions” about Salahi’s relationship with Abu Hafs, and noted that he once stated, under interrogation, that he “would have done almost anything that was asked of him,” he dismissed claims that the two money transfers were significant, noting, “Two money transfers in modest amounts a year apart would not even amount to material support (if support were the issue here, which it is not),” and also recognized that, around November 1999, when Abu Hafs “encourag[ed] him to return to Afghanistan, and sent him two passports and money for the trip,” he refused, because he was about to travel to Canada. It should also be noted — although Judge Robertson did not pick up on it — that, according to the 9/11 Commission Report (PDF, p. 252), Abu Hafs was opposed to the 9/11 attacks and “wrote Bin Laden a message basing opposition to the attacks on the Qur’an.”

Judge Robertson’s conclusion

In a final statement, Judge Robertson summed up his findings as follows:

The government’s problem is that its proof that Salahi gave material support to terrorists is so attenuated, or so tainted by coercion and mistreatment, or so classified, that it cannot support a successful criminal prosecution. Nevertheless, the government wants to hold Salahi indefinitely, because of its concern that he might renew his oath to al-Qaeda and become a terrorist on his release. That concern may indeed be well-founded. Salahi fought with al-Qaeda in Afghanistan (20 years ago), associated with at least half-a-dozen known al-Qaeda members and terrorists, and somehow found and lived among or with al-Qaeda cell members in Montreal. But a habeas court may not permit a man to be held indefinitely upon suspicion, or because of the government’s prediction that he may do unlawful acts in the future — any more than a habeas court may rely on its prediction that a man will not be dangerous in the future and order his release if he was lawfully detained in the first place. The question, upon which the government had the burden of proof, was whether, at the time of his capture, Salahi was a “part of” al-Qaeda. On the record before me, I cannot find that he was.

What will happen to Salahi now?

Despite Judge Robertson’s thorough repudiation of the government’s claims, it is clear that Salahi will not be released anytime soon — if at all. Almost as soon as the ruling was announced, Attorney General Eric Holder responded to shrieks of alarm raised by Republican lawmakers (who couldn’t care what a judge had actually decided based on the evidence) by announcing that the government would appeal, and it may well be that, whatever happens, Salahi will remain as one of 47 prisoners that President Obama’s interagency Task Force recommended should be held indefinitely without charge or trial.

The very fact that this is being contemplated is a disgrace, of course, but what Salahi’s case reveals, above all, is how the Bush administration’s detention policies have fundamentally warped notions of justice, so that even those who claim to respect the rule of law are happy to hold a man forever, even if he wins a habeas petition, and also how they have had a baleful effect on the United States’ ability to recruit and protect informers.

On this first point, Judge Robertson explained that, although there was insufficient evidence to justify Salahi’s ongoing detention, the evidence of his activities in Canada “might well be enough to support a criminal charge of providing material support to al-Qaeda, if Salahi were criminally charged, and if the evidence were admissible in a criminal proceedings.” That is a big “if,” of course, given the inadmissibility of most of Salahi’s statements, but it should demonstrate, above all, how counter-productive was the use of torture on a man who was no more than a peripheral figure in al-Qaeda, beyond the easily-obscured fact that such treatment is illegal under domestic and international law.

Just as significant, however, are the revelations about Salahi (and Tarek El-Sawah) contained in the Washington Post article mentioned above. After noting, “The US government has rewarded them for their cooperation but has refused to countenance their release,” the Post’s reporter, Peter Finn, wrote, “Some military officials believe the United States should let them go — and put them into a witness protection program, in conjunction with allies, in a bid to cultivate more informants.” Finn spoke to W. Patrick Lang, a retired senior military intelligence officer, who explained, “I don’t see why they aren’t given asylum. If we don’t do this right, it will be that much harder to get other people to cooperate with us. And if I was still in the business, I’d want it known we protected them. It’s good advertising.”

Good advertising, indeed, and a point that echoes what veteran FBI interrogator Jack Cloonan told Jane Mayer of the New Yorker back in 2006. Reflecting on the self-defeating nature of brutality, Cloonan, an old school interrogator, who succeeded in securing confessions without the use of torture, told Mayer that resorting to such tactics would cut off “the possibility that other people with useful information about al-Qaeda [would] consider becoming informants.” As he explained, “You think all of this stuff about torture is going to make people want to come to us? That’s why I get upset when I hear people talking about stress positions, loud music, and dogs.”

Had he known what we know now, he would surely have added that publicizing the fact that Salahi was one of “the most significant informants ever to be held at Guantánamo,” but then insisting that he be held forever, is even more counter-productive. In Guantánamo, however, common sense has evaporated, and all that is left for those who have aided the United States are illusory escape routes that lead only to indefinite detention.

(‘’)

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 currently on tour in the UK), and, if you appreciate my work, feel free to make a donation.

As published exclusively on Cageprisoners. Cross-posted on The Public Record.

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), A Truly Shocking Guantánamo Story: Judge Confirms That An Innocent Man Was Tortured To Make False Confessions (September 2009), 75 Guantánamo Prisoners Cleared For Release; 31 Could Leave Today (September 2009), Resisting Injustice In Guantánamo: The Story Of Fayiz Al-Kandari (October 2009), Justice Department Pointlessly Gags Guantánamo Lawyer (November 2009), Judge Orders Release Of Algerian From Guantánamo (But He’s Not Going Anywhere) (November 2009), Innocent Guantánamo Torture Victim Fouad al-Rabiah Is Released In Kuwait (December 2009), What Does It Take To Get Out Of Obama’s Guantánamo? (December 2009), “Model Prisoner” at Guantánamo, Tortured in the “Dark Prison,” Loses Habeas Corpus Petition (December 2009), Judge Orders Release From Guantánamo Of Unwilling Yemeni Recruit (December 2009), Serious Problems With Obama’s Plan To Move Guantánamo To Illinois (December 2009), Appeals Court Extends President’s Wartime Powers, Limits Guantánamo Prisoners’ Rights (January 2010), Fear and Paranoia as Guantánamo Marks its Eighth Anniversary (January 2010), Rubbing Salt in Guantánamo’s Wounds: Task Force Announces Indefinite Detention (January 2010), The Black Hole of Guantánamo (March 2010), Guantánamo Uighurs Back in Legal Limbo (March 2010), Guantánamo and Habeas Corpus: The Torture Victim and the Taliban Recruit (April 2010).

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), Dark Revelations in the Bagram Prisoner List (January 2010), Bagram: Graveyard of the Geneva Conventions (February 2010).