I’m delighted to discover that people remain interested in the Bush administration’s use of torture, and questions of accountability that have been brushed under the carpet by President Obama, not just because terrible crimes have been committed and no one has been held accountable, but also because the topic of America’s torture program has generally slipped off the media’s radar (as has that other abiding topic of interest of mine, Guantánamo, and the 171 prisoners still held).

Jeff has done a great job in pulling together examples of prisoners who were subjected not to waterboarding, but to other forms of torture using water that the Bush administration largely managed to avoid mentioning or being asked to justify, including Murat Kurnaz, who discussed having his head held under water in his book, Five Years of My Life: An Innocent Man in Guantánamo, first published in 2007, Mohammed al-Qahtani, the most notorious torture victim at Guantánamo, and others — the Mauritanian Mohamedou Ould Slahi, who was, notoriously, “broken” by torture at Guantánamo, and who had water poured over him to “enforce control” and “keep [him] awake,” the British resident Omar Deghayes, the Algerian Djamel Ameziane (still held, desperate being cleared for release many years ago), and Mustafa Ait Idr, an Algerian living in Bosnia-Herzegovina, released in 2008 after winning his habeas petition, whose torture using water I mentioned in The Guantánamo Files, and in my article, After 7 Years, Judge Orders Release of Guantánamo Kidnap Victims. Also of interest are examples from Iraq, which have also not been publicized widely.

Despite New Denials by Rumsfeld, Evidence Shows US Military Used Waterboarding-Style Torture
By Jeffrey Kaye, Truthout, August 5, 2011

In the controversy over whether torture, especially waterboarding, was used to gather information leading to the capture of Osama bin Laden, former Secretary of Defense Donald Rumsfeld told Fox News’ Sean Hannity recently that “no one was waterboarded at Guantánamo by the US military. In fact, no one was waterboarded at Guantánamo, period.”

In his memoir, Known and Unknown, Rumsfeld maintained, “To my knowledge, no US military personnel involved in interrogations waterboarded any detainees, not at Guantánamo or anywhere else in the world.” But as we shall see, Rumsfeld was either lying outright, or artfully twisting the truth.

Others have insisted as well that the military never waterboarded anyone. Law and national security writer Benjamin Wittes wrote in The New Republic last year that “the military, unlike the CIA, never waterboarded anybody.” Harper’s columnist Scott Horton also noted last year, “There is no documentation yet of waterboarding at Gitmo, but the case book is far from closed on that score, too.”

Yet, though not widely reported and scattered among various articles and reports on detainee treatment by the military, including first-person accounts, there are a number of stories of forced water choking or drowning, both at Guantánamo and other US military sites.

In little-known testimony in May 2008 before Congress, former Guantánamo detainee Murat Kurnaz testified he endured a form of simulated drowning. In his testimony before a subcommittee of the House Committee on Foreign Affairs, Kurnaz said that under US military captivity at Kandahar, Afghanistan, prior to his transfer to Guantánamo, his head was “dunked under water to simulate drowning.”

Asked by Republican Congressman Rohrabacher if he hadn’t then been waterboarded, Kurnaz responded, “No, it’s not waterboarding. It’s called ‘water treatment.’ There was a bucket of water.”

ROHRABACHER: Was a cloth put over your face and you were put on a board?

KURNAZ: There was a bucket of water. And they stick my head in it and at the same time, punch me into my stomach.

Rohrabacher reportedly commented, “The CIA is claiming that that only three people have been waterboarded. And this may be a loophole that they’re suggesting that’s not ‘waterboarding.’”

According to a report on Kurnaz’s testimony at the time by The Christian Science Monitor, Pentagon spokesman Cmdr. Jeffrey Gordon replied to the torture charges: “The abuses Mr. Kurnaz alleges are not only unsubstantiated and implausible, they are simply outlandish.”

Whether implausible or not, waterboarding was one of a number of “counter-resistance techniques” requested for use at Guantánamo by Maj. Gen. Mike Dunleavy, commander of Task Force 170. In an October 2002 memo from Dunleavy’s intelligence chief requesting use of a number of techniques, including sensory deprivation, isolation, stress positions, forced nudity and death threats, there was also a proposal for “Use of a wet towel and dripping water to induce the misperception of suffocation.”

In a follow-up memo approving most, but not all of the requested techniques, Department of Defense (DoD) general counsel William J. Haynes II said of the “wet towel” and other so-called “aggressive” “Category III” techniques, “While all Category III techniques may be legally available, we believe that, as a matter of policy, a blanket approval of Category III techniques is not warranted at this time.” (Emphasis added.)

Water Torture at Guantánamo

Evidence regarding waterboarding or other forms of water torture by suffocation or choking at Guantánamo has been reported, but this article is the first collection of the various reports in one place.

Last April, a report by two doctors who were allowed to examine “medical records and relevant case files … of nine individuals for evidence of torture and ill treatment,” found at least one case of “near asphyxiation from water (i.e., hose forced into the detainee’s mouth)” and another case where a detainee’s head was forced into a toilet.

The report, by doctors Vincent Iacopino and Stephen N. Xenakis, was published at PLoS Medicine. Dr. Xenakis is also a retired brigadier general in the Army, who has worked as a medical consultant on a number of Guantánamo legal cases.

Additionally, accusations of military waterboarding turned up in a Department of Justice (DOJ) Inspector General (IG) report on “FBI Involvement in and Observations of Detainee Interrogations” that was released at almost the same time as Kurnaz’s testimony (May 2008). The IG noted that the chief of the FBI’s Military Liaison and Detainee Unit at Guantánamo told DoD Assistant Attorney General Dave Nahmias, “one of the planned or actual techniques used on [purported 9/11 would-be hijacker, Mohammed] al-Qahtani was simulated drowning.”

In fact, the military admits the use of pouring water over al-Qahtani’s head, as is discussed below.

At another point in the report, the IG describes one FBI agent who “once heard a discussion at GTMO when someone mentioned using water as an interrogation tool and someone else in the group said, ‘Yeah, I’ve seen that.’” According to the IG report, no FBI agent actually reported seeing waterboarding or water torture him or herself.

Whether or not waterboarding was observed by FBI agents at Guantánamo, we know from the minutes of a “Counter-resistance Strategy meeting” at Guantánamo on October 22, 2002, that waterboarding (called the “wet towel” technique) was discussed (see Tab 7 at link). The meeting included legal officials from the CIA, DIA, the Guantánamo intelligence chief, as well as members of the Guantánamo Behavioral Science Consulting Team (BSCT).

At one point, Lt. Col. Diane Beaver, the Staff Judge Advocate at Guantánamo, asked whether SERE (Survival, Evasion, Resistance and Escape) employed “the ‘wet towel’ technique.” Jonathan Fredman, then chief counsel to the CIA’s counter-terrorism center, replied:

If a well-trained individual is used to perform [sic] this technique it can feel like you’re drowning. The lymphatic system will react as if you’re suffocating, but your body will not cease to function. It is very effective to identify phobias and use them (i.e., insects, snakes, claustrophobia). The level of resistance is directly related to a person’s experience.

At this point, a BSCT psychiatrist noted, “Whether or not significant stress occurs lies in the eye of the beholder. The burden of proof is the big issue.” Fredman replied, “These techniques need involvement from interrogators, psych, medical, legal, etc.”

Fredman continued, “The CIA makes the call internally on most of the types of techniques found in the BSCT paper and this discussion.” In a reference to the approvals for waterboarding and other techniques given the CIA by Office of Legal Counsel memos a few months before, he added, “Significantly harsh techniques are approved through the DOJ.” There was no indication in the minutes from the meeting that waterboarding was not allowed for Defense Department use.

Waterboarding of Mohammed al-Qahtani

Mohammed al-Qahtani was a Saudi Arabian citizen brought to Guantánamo in early 2002. Ostensibly believed to be a part of the 9/11 plot, when interrogators became frustrated at their inability to get information out of him, or force his compliance, they turned to methods of interrogation that the Guantánamo Convening Authority Susan Crawford would later herself conclude amounted to torture.

By November 2002, al-Qahtani had become the “first subject of a Special Interrogation Plan,” which relied heavily on the military’s SERE torture school techniques, including isolation, stress positions, sexual humiliation and apparently, a form of waterboarding. SERE was created to provide US military personnel with training to resist torture.

Even years before Crawford’s admission, DoD’s Schmidt-Furlow report, looking at early allegations of detainee abuse, concluded that “the creative, aggressive and persistent interrogation of the subject of the first Special Interrogation Plan [al-Qahtani] resulted in the cumulative effect being degrading and abusive treatment.” No one has ever been charged for such crimes committed against this or any other Guantánamo detainee.

The Schmidt-Furlow report details the use of water torture on al-Qahtani, an aspect of his torture that has been little reported:

On seventeen occasions, between 13 Dec 02 and 14 Jan 03, interrogators, during interrogations, poured water over the subject of the first Special Interrogation Plan['s] head …

There is evidence that the subject of the first Special Interrogation Plan regularly had water poured on his head. The interrogation logs indicate that this was done as a control measure only.

Time Magazine published al-Qahtani’s interrogation logs in 2005. The use of water to drench al-Qahtani’s head does not appear to be a “control measure” when it is discussed in the logs themselves.

On December 23, 2002, a log selection describes how interrogators hung pictures of swimsuit models around al-Qahtani’s neck. Then the lead interrogator “pulled pictures of swimsuit models off detainee and told him the test of his ability to answer questions would begin. Detainee refused to answer and finally stated that he would after [the] lead [interrogator] poured water over detainees [sic] head and was told he would be subjected to this treatment day after day. Detainee was told to think about his decision to answer questions.”

The day before, when al Qahtani had refused to look at “fitness photos,” saying it was against his religion, interrogators had “poured a 24 oz. bottle of water over detainee’s head.” The log notes dryly, “Detainee then began to look at photos.”

In their investigation of detainee abuse, the Senate Armed Services Committee (SASC) noted in a 2008 report that the Navy limited waterboard demonstrations to two pints (32 oz.) of water. A January 13, 2003, memo, described in the SASC report, underreported how much water was poured over Qahtani, saying that “up to eight ounces of water” was poured over Qahtani’s head as a “method of asserting control” when Khatani exhibited ”undesired behavior.”

The SASC report also said that the interrogation plan for another Guantánamo detainee, Mohamadou Ould Slahi, included the practice of pouring water over Slahi’s head to “enforce control” and “keep [him] awake.”

Three More Guantánamo Detainees Report Suffocation by Drowning

Besides Kurnaz and al-Qahtani, at least three other detainees have reported being tortured at Guantánamo by application of water meant to cause suffocation, choking or the sensation of drowning.

A 2009 article by Jeremy Scahill outlined the torture and abuse endured by former Guantánamo detainee and British resident Omar Deghayes. Scahill mentions two incidents where the Immediate Reaction Force (IRF, sometimes called the Emergency Reaction Force, or ERF) used forms of water torture on Deghayes. In one case, the detainee was shackled, his head put into a toilet. The IRF team “pressed his face into the water. They repeatedly flushed it.”

The IRF or ERF team also came into Deghayes’ cell on another occasion and conducted a simulated or partial drowning:

The ERF team came into the cell with a water hose under very high pressure. [Deghayes] was totally shackled and they would hold his head fixed still. They would force water up his nose until he was suffocating and would scream for them to stop. This was done with medical staff present and they would join in.

According to Scahill, the IRF team conducted this form of waterboarding three times on Deghayes. Note that the presence of medical staff is consistent with the use of medical personnel under CIA descriptions of how they conducted waterboarding.

Another example of water torture involving Guantánamo guards appears in a document related to the case of Djamel Ameziane, an Algerian Berber who has been held at Guantánamo for over eight years, despite the fact he never received military or terrorist training, nor fought against the US. According to a 2008 legal filing for Ameziane by the Center for Constitutional Rights (CCR):

In another violent incident, guards entered his cell and forced him to the floor, kneeing him in the back and ribs and slamming his head against the floor, turning it left and right. The bashing dislocated Mr. Ameziane’s jaw, from which he still suffers. In the same episode, guards sprayed cayenne pepper all over his body and then hosed him down with water to accentuate the effect of the pepper spray and make his skin burn. They then held his head back and placed a water hose between his nose and mouth, running it for several minutes over his face and suffocating him, an operation they repeated several times. Mr. Ameziane writes, “I had the impression that my head was sinking in water. I still have psychological injuries, up to this day. Simply thinking of it gives me the chills.” [Emphasis added.]

In March 2008, six Guantánamo detainees filed suit against Bosnia and Herzegovina in the European Court of Human Rights in Strasbourg for failure “for many years to take any steps to negotiate and secure the men’s release from Guantánamo.” One of the men, Mustafa Ait Idr, who had been rendered to Guantánamo and “taken from his pregnant wife in violation of a Bosnian court order to free him,” also reported use of water torture in a manner remarkably similar to that of Ameziane.

A CCR report on “Torture, Cruel, Inhuman and Degrading Treatment of Prisoners at Guantánamo Bay, Cuba” said that on one occasion prison guards demanded to search Idr’s cell. Idr cooperated, but they came in, sprayed him in the face with a chemical irritant and put him into restraints.

According to the CCR report, “Guards then slammed him head first into the cell floor, lowered him, face-first into the toilet and flushed the toilet — submerging his head. He was then carried outside and thrown onto the crushed stones that surround the cells. While he was down on the ground, his assailants stuffed a hose in his mouth and forced water down his throat.” As a result, Idr’s face was paralyzed for several months.

Other threats to use waterboarding on DoD prisoners, or to rendition detainees for water torture, are also on record. According to journalist Robert Windrem in a 2009 story at The Daily Beast, then-Vice President Dick Cheney requested the waterboarding of Muhammed Khudayr al-Dulaymi, the head of the M-14 section of the Mukhabarat. According to the article, the official in charge of interrogations of Iraqi officials at the time, Charles Duelfer, declined the request.

According to the SASC detainee report, the lead agency for SERE, Joint Forces Personnel Agency, constructed a CONOP (Concept of Operations) plan for use at a Special Mission Unit Task Force interrogation center in Iraq. The CONOP recommended use of the “water board.” Military legal figures reportedly objected to that and other techniques, but it is not known whether Special Forces in Iraq used waterboarding or other water torture techniques and the SASC report does not enlighten us on that point.

In another case, former Italian resident and Guantánamo detainee, Tunisian-born Saleh Sassi, reported that in late 2002, Tunisian agents came to Guantánamo and interrogated him. They “left no doubt about what awaited ex-Guantánamo inmates back in Tunisia: ‘water torture in the barrel’ and other horrors.” Sassi was released and sent to Albania in 2010.

Finally, the DOJ IG report on FBI interrogations referenced earlier describes how an Abu Ghraib prisoner, Saleh Muklef Saleh, was restrained and had cold water poured over him on more than one occasion. One time, according to Saleh’s own testimony, “They gave me one or two bottles of water and they asked me to drink it while I was hungry and they forced me to drink it and I did and I felt vomiting, then they ordered me to drink again and they were looking at me and laughing” (pp. 279-280).

Back in 2008, during the Congressional meeting where Murat Kurnaz testified to the use of water torture upon him, Democratic Congresswoman Sheila Jackson-Lee commented, “It seems that we have a new definition … If you were wedded to the language of waterboarding, now we have new language called ‘water treatment,’ which may bear on being torture as well.”

To date, there has been no investigation that specifically has looked at the use of types of water torture, including waterboarding or water treatment, on detainees. The military’s current Army Field Manual on interrogation forbids the use of “waterboarding.” It is the only “prohibited action” term that is described with quotation marks around it.

A Human Rights Watch report issued on July 12 called for President Barack Obama “to order a criminal investigation into allegations of detainee abuse authorized by former President George W. Bush and other senior officials.”

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, Twitter, Digg and YouTube). Also see my definitive Guantánamo prisoner list, updated in June 2011, details about the new documentary film, “Outside the Law: Stories from Guantánamo” (co-directed by Polly Nash and Andy Worthington, on tour in the UK throughout 2011, and available on DVD here — or here for the US), my definitive Guantánamo habeas list and the chronological list of all my articles, and, if you appreciate my work, feel free to make a donation.

Accusing the five men of being “responsible for the planning and execution” of the 9/11 attacks, the Pentagon added that the eight charges are “conspiracy, murder in violation of the law of war, attacking civilians, attacking civilian objects, intentionally causing serious bodily injury, destruction of property in violation of the law of war, hijacking aircraft, and terrorism.”

As the Pentagon proceeded to explain, subject to approval by the Commissions’ Convening Authority, Retired Vice Adm. Bruce MacDonald, prosecutors recommended that the charges “be referred as capital.”

Anyone paying attention will realise that we have been here before, on February 11, 2008, when the Pentagon announced that Khalid Sheikh Mohammed and the the four others named above (plus a sixth man, Mohammed al-Qahtani, against whom the charges were later dropped) were charged with “conspiracy, murder in violation of the law of war, attacking civilians, attacking civilian objects, intentionally causing serious bodily injury, destruction of property in violation of the law of war, terrorism and providing material support for terrorism” — and four of them were, in addition, charged with “hijacking or hazarding a vessel.”

Astute readers will also recall that 18 months ago, on November 13, 2009, Attorney General Eric Holder announced that the five men charged on Tuesday would be tried in federal court rather than in a Military Commission at Guantánamo. Holder confidently told the nation, and the wider world:

After eight years of delay, those allegedly responsible for the attacks of September the 11th will finally face justice. They will be brought to New York to answer for their alleged crimes in a courthouse just blocks from where the twin towers once stood.

I am confident in the ability of our courts to provide these defendants a fair trial, just as they have for over 200 years. The alleged 9/11 conspirators will stand trial in our justice system before an impartial jury under long-established rules and procedures.

I also want to assure the American people that we will prosecute these cases vigorously, and we will pursue the maximum punishment available. These were extraordinary crimes and so we will seek maximum penalties.

To critics of the Military Commissions (and there were many), Holder’s decision to pursue the alleged 9/11 co-conspirators in federal court was a principled and appropriate endorsement of federal court trials as the correct venue for terrorist trials. The Commissions, revived by Vice President Dick Cheney in November 2001, had been designed to lead to the swift executions of those seized — and, in many cases, tortured — in the “War on Terror,” and although the Supreme Court had ruled them illegal in June 2006, they had been revived by Congress.

There, lawmakers, adhering to the same flawed rationale of the “War on Terror” as the Bush administration — namely, that terrorists were actually “warriors” — invented war crimes for a revived version of the Commissions that first surfaced in the fall of 2006, and was then revived for the Obama administration in the summer of 2009.

Unfortunately for Holder, who believed — correctly, in my opinion — that trying Khalid Sheikh Mohammed in a courtroom would be “the defining event of my time as Attorney General,” and that “History will show that the decisions we’ve made are the right ones,” the decision to revive the Commissions, as well as endorsing federal court trials, fatally muddied the waters.

Holder looked rather foolish when, at the same time as announcing that KSM and his alleged co-conspirators would be tried in federal court, he also stated that five other prisoners would face trials by Military Commission, but, more importantly, the administration’s ambivalence — and its refusal just to focus on federal court trials — gave critics the option of pushing to shut off federal court trials while advocating for Military Commission trials at Guantánamo instead, and this is exactly what happened.

A cynical movement to stir up hysteria regarding a federal court trial in New York was so successful that the White House backed off, allowing lawmakers the opportunity to insert a provision into a military spending bill before Christmas last year that prevented President Obama from bringing any Guantánamo prisoner to the US mainland to face a trial, and which, to rub salt into the wound, explicitly mentioned Khalid Sheikh Mohammed by name.

Faced with this rebellion, Obama refused to consider a veto or a signing statement, meaning that the only viable option for a trial would be at Guantánamo, as the cheerleaders for the Commissions always intended.

Eric Holder failed to disguise his disappointment when, on April 4, he announced the decision to proceed with a Military Commission trial. In a speech full of criticism, he told lawmakers:

Decisions about who, where and how to prosecute have always been — and must remain — the responsibility of the executive branch. Members of Congress simply do not have access to the evidence and other information necessary to make prosecution judgments. Yet they have taken one of the nation’s most tested counterterrorism tools off the table and tied our hands in a way that could have serious ramifications.

Tuesday’s announcement, therefore, provides nothing to celebrate — just a confirmation of President Obama’s failures to seriously tackle his critics when it comes to “national security” issues, which has been repeated over and over again in the last two years.

For Eric Holder, the disappointment is far greater, as he is on record as noting that history will judge him on how he deals with Khalid Sheikh Mohammed and his alleged co-conspirators. However, Holder is not the only loser. The administration, Congress, and the American people who, in large numbers, have allowed themselves to be seduced by the poisonous rhetoric of the Bush administration’s “War on Terror” have also lost, for the simple reason that Military Commissions remain a shameful, sub-standard venue for trials as important as these.

Contrary to the rhetoric of those endorsing the Commissions, the last thing the relatives of those who died on September 11, 2001 need is for the alleged perpetrators to be prosecuted in a chaotic kangaroo court. However, nearly ten years after the attacks, justice — fair, transparent justice, with a long historical pedigree — remains sidelined, bullied into submission by those who, still driven by vengeance, want the perpetrators to be “warriors” rather than what they were — mass murdering criminals, who do not deserve to be able to usurp the rhetoric of this phoney war for their own ends.

As published exclusively on the website of the Future of Freedom Foundation.

With the release date of the project brought forward unexpectedly, the files — profiles of nearly all of the 779 prisoners who have been held at Guantánamo, compiled by the Joint Task Force responsible for running the prison and known as Detainee Assessment Briefs (DABs) — have begun to be made available on WikiLeaks’ website, accompanied by an article that I wrote introducing them, and offering a first attempt to indicate their importance — both in what they hide and what they reveal — along with a guide to how to read them.

Needless to say, there will be much more analysis in the days and weeks to come, but for now I hope you enjoy my explanation, cross-posted below, which is borne of five years of research and writing about Guantánamo, filtered through a careful analysis of JTF-GTMO’s compromised and compromising cache of documents, which, as I explain, constitutes “the anatomy of a colossal crime perpetrated by the US government on 779 prisoners who, for the most part, are not and never have been the terrorists the government would like us to believe they are.”

WikiLeaks Reveals Secret Files on All Guantánamo Prisoners
By Andy Worthington, WikiLeaks, April 24, 2011

In its latest release of classified US documents, WikiLeaks is shining the light of truth on a notorious icon of the Bush administration’s “War on Terror” — the prison at Guantánamo Bay, Cuba, which opened on January 11, 2002, and remains open under President Obama, despite his promise to close the much-criticized facility within a year of taking office.

In thousands of pages of documents dating from 2002 to 2008 and never seen before by members of the public or the media, the cases of the majority of the prisoners held at Guantánamo — 765 out of 779 in total — are described in detail in memoranda from JTF-GTMO, the Joint Task Force at Guantánamo Bay, to US Southern Command in Miami, Florida, known as Detainee Assessment Briefs (DABs).

These memoranda, which contain JTF-GTMO’s recommendations about whether the prisoners in question should continue to be held, or should be released (transferred to their home governments, or to other governments) contain a wealth of important and previously undisclosed information, including health assessments, for example, and, in the cases of the majority of the 172 prisoners who are still held, photos (mostly for the first time ever).

They also include information on the first 201 prisoners released from the prison, between 2002 and 2004, which, unlike information on the rest of the prisoners (summaries of evidence and tribunal transcripts, released as the result of a lawsuit filed by media groups in 2006), has never been made public before. Most of these documents reveal accounts of incompetence familiar to those who have studied Guantánamo closely, with innocent men detained by mistake (or because the US was offering substantial bounties to its allies for al-Qaeda or Taliban suspects), and numerous insignificant Taliban conscripts from Afghanistan and Pakistan.

Beyond these previously unknown cases, the documents also reveal stories of the 399 other prisoners released from September 2004 to the present day, and of the seven men who have died at the prison.

The memos are signed by the commander of Guantánamo at the time, and describe whether the prisoners in question are regarded as low, medium or high risk. Although they were obviously not conclusive in and of themselves, as final decisions about the disposition of prisoners were taken at a higher level, they represent not only the opinions of JTF-GTMO, but also the Criminal Investigation Task Force, created by the Department of Defense to conduct interrogations in the “War on Terror,” and the BSCTs, the behavioral science teams consisting of psychologists who had a major say in the “exploitation” of prisoners in interrogation.

Crucially, the files also contain detailed explanations of the supposed intelligence used to justify the prisoners’ detention. For many readers, these will be the most fascinating sections of the documents, as they seem to offer an extraordinary insight into the workings of US intelligence, but although many of the documents appear to promise proof of prisoners’ association with al-Qaeda or other terrorist organizations, extreme caution is required.

The documents draw on the testimony of witnesses — in most cases, the prisoners’ fellow prisoners — whose words are unreliable, either because they were subjected to torture or other forms of coercion (sometimes not in Guantánamo, but in secret prisons run by the CIA), or because they provided false statements to secure better treatment in Guantánamo.

Regular appearances throughout these documents by witnesses whose words should be regarded as untrustworthy include the following “high-value detainees” or “ghost prisoners.” Please note that “ISN” and the numbers in brackets following the prisoners’ names refer to the short “Internment Serial Numbers” by which the prisoners are identified in US custody:

Abu Zubaydah (ISN 10016), the supposed “high-value detainee” seized in Pakistan in March 2002, who spent four and a half years in secret CIA prisons, including facilities in Thailand and Poland. Subjected to waterboarding, a form of controlled drowning, on 83 occasions in CIA custody in August 2002, Abu Zubaydah was moved to Guantánamo with 13 other “high-value detainees” in September 2006.

Ibn al-Shaykh al-Libi (ISN 212), the emir of a military training camp for which Abu Zubaydah was the gatekeeper, who, despite having his camp closed by the Taliban in 2000, because he refused to allow it to be taken over by al-Qaeda, is described in these documents as Osama bin Laden’s military commander in Tora Bora. Soon after his capture in December 2001, al-Libi was rendered by the CIA to Egypt, where, under torture, he falsely confessed that al-Qaeda operatives had been meeting with Saddam Hussein to discuss obtaining chemical and biological weapons. Al-Libi recanted this particular lie, but it was nevertheless used by the Bush administration to justify the invasion of Iraq in March 2003. Al-Libi was never sent to Guantánamo, although at some point, probably in 2006, the CIA sent him back to Libya, where he was imprisoned, and where he died, allegedly by committing suicide, in May 2009.

Sharqawi Abdu Ali al-Hajj (ISN 1457), a Yemeni, also known as Riyadh the Facilitator, who was seized in a house raid in Pakistan in February 2002, and is described as “an al-Qaeda facilitator.” After his capture, he was transferred to a torture prison in Jordan run on behalf of the CIA, where he was held for nearly two years, and was then held for six months in US facilities in Afghanistan. He was flown to Guantánamo in September 2004.

Sanad Yislam al-Kazimi (ISN 1453), a Yemeni, who was seized in the UAE in January 2003, and then held in three secret prisons, including the “Dark Prison” near Kabul and a secret facility within the US prison at Bagram airbase. In February 2010, in the District Court in Washington D.C., Judge Henry H. Kennedy Jr. granted the habeas corpus petition of a Yemeni prisoner, Uthman Abdul Rahim Mohammed Uthman, largely because he refused to accept testimony produced by either Sharqawi al-Hajj or Sanad al-Kazimi. As he stated, “The Court will not rely on the statements of Hajj or Kazimi becasue there is unrebutted evidence in the record that, at the time of the interrogations at which they made the statements, both men had recently been tortured.”

Others include Ahmed Khalfan Ghailani (ISN 10012) and Walid bin Attash (ISN 10014), two more of the “high-value detainees” transferred into Guantánamo in September 2006, after being held in secret CIA prisons.

Other unreliable witnesses, held at Guantánamo throughout their detention, include:

Yasim Basardah (ISN 252), a Yemeni known as a notorious liar. As the Washington Post reported in February 2009, he was given preferential treatment in Guantánamo after becoming what some officials regarded as a significant informant, although there were many reasons to be doubtful. As the Post noted, “military officials … expressed reservations about the credibility of their star witness since 2004,” and in 2006, in an article for the National Journal, Corine Hegland described how, after a Combatant Status Review Tribunal at which a prisoner had taken exception to information provided by Basardah, placing him at a training camp before he had even arrived in Afghanistan, his personal representative (a military official assigned instead of a lawyer) investigated Basardah’s file, and found that he had made similar claims against 60 other prisoners. In January 2009, in the District Court in Washington D.C., Judge Richard Leon (an appointee of George W. Bush) excluded Basardah’s statements while granting the habeas corpus petition of Mohammed El-Gharani, a Chadian national who was just 14 years old when he was seized in a raid on a mosque in Pakistan. Judge Leon noted that the government had “specifically cautioned against relying on his statements without independent corroboration,” and in other habeas cases that followed, other judges relied on this precedent, discrediting the “star witness” stlll further.

Mohammed al-Qahtani (ISN 063), a Saudi regarded as the planned 20th hijacker for the 9/11 attacks, was subjected to a specific torture program at Guantánamo, approved by defense secretary Donald Rumsfeld. This consisted of 20-hour interrogations every day, over a period of several months, and various other “enhanced interrogation techniques,” which severely endangered his health. Variations of these techniques then migrated to other prisoners in Guantánamo (and to Abu Ghraib), and in January 2009, just before George W. Bush left office, Susan Crawford, a retired judge and a close friend of Dick Cheney and David Addington, who was appointed to oversee the military commissions at Guantánamo as the convening authority, told Bob Woodward that she had refused to press charges against al-Qahtani, because, as she said, “We tortured Qahtani. His treatment met the legal definition of torture.” As a result, his numerous statements about other prisoners must be regarded as worthless.

Abd al-Hakim Bukhari (ISN 493), a Saudi imprisoned by al-Qaeda as a spy, who was liberated by US forces from a Taliban jail before being sent, inexplicably, to Guantánamo (along with four other men liberated from the jail) is regarded in the files as a member of al-Qaeda, and a trustworthy witness.

Abd al-Rahim Janko (ISN 489), a Syrian Kurd, tortured by al-Qaeda as a spy and then imprisoned by the Taliban along with Abd al-Hakim Bukhari, above, is also used as a witness, even though he was mentally unstable. As his assessment in June 2008 stated, “Detainee is on a list of high-risk detainees from a health perspective … He has several chronic medical problems. He has a psychiatric history of substance abuse, depression, borderline personality disorder, and prior suicide attempt for which he is followed by behavioral health for treatment.”

These are just some of the most obvious cases, but alert readers will notice that they are cited repeatedly in what purports to be the government’s evidence, and it should, as a result, be difficult not to conclude that the entire edifice constructed by the government is fundamentally unsound, and that what the Guantánamo Files reveal, primarily, is that only a few dozen prisoners are genuinely accused of involvement in terrorism.

The rest, these documents reveal on close inspection, were either innocent men and boys, seized by mistake, or Taliban foot soldiers, unconnected to terrorism. Moreover, many of these prisoners were actually sold to US forces, who were offering bounty payments for al-Qaeda and Taliban suspects, by their Afghan and Pakistani allies — a policy that led ex-President Musharraf to state, in his 2006 memoir, In the Line of Fire, that, in return for handing over 369 terror suspects to the US, the Pakistani government “earned bounty payments totaling millions of dollars.”

Uncomfortable facts like these are not revealed in the deliberations of the Joint Task Force, but they are crucial to understanding why what can appear to be a collection of documents confirming the government’s scaremongering rhetoric about Guantánamo — the same rhetoric that has paralyzed President Obama, and revived the politics of fear in Congress –  is actually the opposite: the anatomy of a colossal crime perpetrated by the US government on 779 prisoners who, for the most part, are not and never have been the terrorists the government would like us to believe they are.

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, Twitter, Digg and YouTube). 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, on tour in the UK throughout 2011, and available on DVD here — or here for the US), my definitive Guantánamo habeas list and the chronological list of all my articles, and, if you appreciate my work, feel free to make a donation.

The article — which involved over a year of research, as Leopold and Kaye persuaded former officials to open up to them — not only adds to Leopold’s important work and to Kaye’s formidable track record as a chronicler of the development of human experimentation in the Bush administration’s “War on Terror” torture program (which he has also revealed as part of an obsession with human experimentation reaching back to the 1950s), but also confirms the existence of an important new front in the struggle to raise awareness of the horrors of torture, and the requirement that those who authorized it be held accountable for their crimes.

Leopold and Kaye delivered a presentation about their article the day after its publication, as part of “Berkeley Says No to Torture” Week, and their work on human experimentation added to a compelling catalog of the many reasons why the acceptance of torture must continue to be opposed, which I developed during the week: namely, that it is not only illegal, morally corrosive, counterproductive and unnecessary, but also that, at its heart, the Bush-era torture program continued work in the field of human experimentation that the US took over from the Nazis, and also involved treasonous lies on the part of senior officials, who pretended that the program was designed to prevent future terrorist attacks, when, from the very beginning (in late November 2001, according to Col. Lawrence Wilkerson, Colin Powell’s Chief of Staff), it was actually being used to extract false confessions about connections between al-Qaeda and Saddam Hussein that could be used in an attempt to justify the illegal invasion of Iraq in March 2003.

The article is cross-posted below (and I’ve added some additional links).

Wolfowitz Directive Gave Legal Cover to Detainee Experimentation Program
By Jason Leopold and Jeffrey Kaye, Truthout, October 14, 2010

In 2002, as the Bush administration was turning to torture and other brutal techniques for interrogating “war on terror” detainees, Deputy Defense Secretary Paul Wolfowitz loosened rules against human experimentation, an apparent recognition of legal problems regarding the novel strategies for extracting and evaluating information from the prisoners.

Wolfowitz issued a little-known directive on March 25, 2002, about a month after President George W. Bush stripped the detainees of traditional prisoner-of-war protections under the Geneva Conventions [PDF]. Bush labeled them “unlawful enemy combatants” and authorized the CIA and the Department of Defense (DoD) to undertake brutal interrogations.

Despite its title — “Protection of Human Subjects and Adherence to Ethical Standards in DoD-Supported Research” (PDF) — the Wolfowitz directive weakened protections that had been in place for decades by limiting the safeguards to “prisoners of war.”

“We’re dealing with a special breed of person here,” Wolfowitz said about the war on terror detainees only four days before signing the new directive.

One former Pentagon official, who worked closely with the DoD’s ex-general counsel William Haynes, said the Wolfowitz directive provided legal cover for a top-secret Special Access Program at the Guantánamo Bay prison, which experimented on ways to glean information from unwilling subjects and to achieve “deception detection.”

“A dozen [high-value detainees] were subjected to interrogation methods in order to evaluate their reaction to those methods and the subsequent levels of stress that would result,” said the official.

A July 16, 2004 Army Criminal Investigation Division (CID) report obtained by Truthout shows that between April and July 2003, a “physiological warfare specialist” attached to the military’s Survival, Evasion, Resistance and Escape (SERE) program was present at Guantánamo. The CID report says the instructor was assigned to a top-secret Special Access Program.

In his book The Terror Presidency, Jack Goldsmith, the former head of the Justice Department’s Office of Legal Counsel, said Wolfowitz was “put in charge of questions regarding detainees” at Guantánamo. Goldsmith also previously worked with Haynes at the Pentagon.

It has been known since 2009, when President Barack Obama declassified some of the Bush administration’s legal memoranda regarding the interrogation program, that there were experimental elements to the brutal treatment of detainees, including the sequencing and duration of the torture and other harsh tactics.

However, the Wolfowitz directive also suggests that the Bush administration was concerned about whether its actions might violate Geneva Conventions rules that were put in place after World War II when grisly Nazi human experimentation was discovered. Those legal restrictions were expanded in the 1970s after revelations about the CIA testing drugs on unsuspecting human subjects and conducting other mind-control experiments.

For its part, the DoD insists that it “has never condoned nor authorized the use of human research testing on any detainee in our custody,” according to spokeswoman Wendy Snyder.

However, from the start of the war on terror, the Bush administration employed nontraditional methods for designing interrogation protocols, including the reverse engineering of training given to American troops trapped behind enemy lines, called the SERE techniques. For instance, the controlled-drowning technique of waterboarding was lifted from SERE manuals.

Shielding Rumsfeld

Retired US Air Force Capt. Michael Shawn Kearns, a former SERE intelligence officer, said the Wolfowitz directive appears to be a clear attempt to shield then-Defense Secretary Donald Rumsfeld from the legal consequences of “any dubious research practices associated with the interrogation program.”

Scott Horton, a human rights attorney and constitutional expert, noted Wolfowitz’s specific reference to “prisoners of war” as protected under the directive, as opposed to referring more generally to detainees or people under the government’s control:

“At the time that Wolfowitz was issuing this directive, the Bush administration was taking the adamant position that prisoners taken in the’ war on terror’ were not ‘prisoners of war’ under the Geneva Conventions and were not entitled to any of the protections of the Geneva Conventions. Indeed, it called those protections ‘privileges’ that were available only to ‘lawful combatants.’ So the statement [in the directive] that ‘prisoners of war’ cannot be subjects of human experimentation … raises some concerns — why was the more restrictive term ‘prisoners of war’ used instead of ‘prisoners,’ for instance?”

The Wolfowitz directive also changed other rules regarding waivers of informed consent. After the scandals over the CIA’s MK-ULTRA program and the Tuskegee experiments on African-Americans suffering from syphilis, Congress passed legislation known as the Common Rule to provide protections to human research subjects.

The Common Rule “requires a review of proposed research by an Institutional Review Board (IRB), the informed consent of research subjects, and institutional assurances of compliance with the regulations.”

Individuals who lack the capacity to provide “informed consent” must have an IRB determine if they would benefit from the proposed research. In certain cases, that decision could also be made by the subject’s “legal representative.”

However, according to the Wolfowitz directive, waivers of informed consent could be granted by the heads of DoD divisions.

Professor Alexander M. Capron, who oversees human rights and health law at the World Health Organization, said the delegation of the power to waive informed consent procedures to Pentagon officials is “controversial both because it involves a waiver of the normal requirements and because the grounds for that waiver are so open-ended.”

The Wolfowitz directive also changes language that had required DoD researchers to strictly adhere to the Nuremberg Directives for Human Experimentation and other precedents when conducting human subject research.

The Nuremberg Code, which was a response to the Nazi atrocities, made “the voluntary consent of the human subject … absolutely essential.” However, the Wolfowitz directive softened a requirement of strict compliance to this code, instructing researchers simply to be “familiar” with its contents.

“Why are DoD-funded investigators just required to be ‘familiar’ with the Nuremberg Code rather than required to comply with them?” asked Stephen Soldz, director of the Center for Research, Evaluation and Program Development at Boston Graduate School of Psychoanalysis.

Soldz also wondered why “enforcement was moved from the Army Surgeon General or someone else in the medical chain of command to the Director of Defense Research and Engineering” and why “this directive changed at this time, as the ‘war on terror’ was getting going.”

Soldz is co-author of a report published in June by the international doctors’ organization Physicians for Human Rights (PHR), which found that high-value detainees who were subjected to brutal torture techniques by the CIA were used as “guinea pigs” to gauge the effectiveness of the various “enhanced interrogation” methods. PHR told Truthout it first examined the Wolfowitz directive and changes Congress made to 10 USC 980, the law that governs how the Defense Department spends federal funds on human experimentation, in 2008 while preparing its report, but did not cite either because the group could not explain its significance.

Treating Soldiers

The original impetus for the changes seems to have related more to the use of experimental therapies on US soldiers facing potential biological and other dangers in war zones.

The House Armed Services Committee proposed amending 10 USC 980 prior to the 9/11 attacks. But the Bush administration pressed for the changes after 9/11 as the United States was preparing to invade Afghanistan and new medical products might be needed for soldiers on the battlefield without their consent, said two former officials from the Defense Intelligence Agency.

Yet, there were concerns about the changes even among Bush administration officials. In a September 24, 2001 memo to lawmakers, Bush’s Office of Management and Budget (OMB) said the “administration is concerned with the provision allowing research to be conducted on human subjects without their informed consent in order to advance the development of a medical product necessary to the armed forces.”

The OMB memo said the Bush administration understood that the DoD had a “legitimate need” for “waiver authority for emergency research,” but “the provision as drafted may jeopardize existing protections for human subjects in research, and must be significantly narrowed.”

However, the broader language moved forward, as did planning for the new war on terror interrogation procedures.

In December 2001, Pentagon general counsel Haynes and other agency officials contacted the Joint Personnel Recovery Agency (JPRA), which runs SERE schools for teaching US soldiers to resist interrogation and torture if captured by an outlaw regime. The officials wanted a list of interrogation techniques that could be used for detainee “exploitation,” according to a report released last year by the Senate Armed Services Committee (PDF).

These techniques, as they were later implemented by the CIA and the Pentagon, were widely discussed as “experimental” in nature.

Back in Congress, the concerns from the OMB about loose terminology were brushed aside and the law was amended to give the DoD greater leeway regarding experimentation on human subjects.

A paragraph to the law, which had not been changed since it was first enacted in 1972, was added authorizing the defense secretary to waive “informed consent” for human subject research and experimentation. It was included in the 2002 Defense Authorization Act passed by Congress in December 2001. The Wolfowitz directive implemented the legislative changes Congress made to 10 USC 980 when it was issued three months later.

The changes to the “informed consent” section of the law were in direct contradiction to presidential and DoD memoranda issued in the 1990s that prohibited such waivers related to classified research. A memo signed in 1999 by Secretary of Defense William Cohen called for the prohibitions on “informed consent” waivers to be added to the Common Rule regulations covering DoD research, but DoD never implemented it.

Congressional Assistance

As planning for the highly classified Special Access Program began to take shape, most officials in Congress appear to have averted their eyes, with some even lending a hand.

The ex-DIA officials said the Pentagon briefed top lawmakers on the Senate Defense Appropriations Committee in November and December 2001, including the panel’s chairman Sen. Daniel Inouye (D-Hawaii) and his chief of staff Patrick DeLeon, about experimentation and research involving detainee interrogations that centered on “deception detection.”

To get a Special Access Program like this off the ground, the Pentagon needed DeLeon’s help, given his long-standing ties to the American Psychological Association (APA), where he served as president in 2000, the sources said.

According to former APA official Bryant Welch, DeLeon’s role proved crucial.

“For significant periods of time DeLeon has literally directed APA staff on federal policy matters and has dominated the APA governance on political matters,” Welch wrote. “For over twenty-five years, relationships between the APA and the Department of Defense (DOD) have been strongly encouraged and closely coordinated by DeLeon … When the military needed a mental health professional to help implement its interrogation procedures, and the other professions subsequently refused to comply, the military had a friend in Senator Inouye’s office, one that could reap the political dividends of seeds sown by DeLeon over many years.”

John Bray, a spokesman for Inuoye, said in late August he would look into questions posed by Truthout about the Wolfowitz directive and the meetings involving DeLeon and Inuoye. But Bray never responded nor did he return follow-up phone calls and emails. DeLeon did not return messages left with his assistant.

Legal Word Games

Meanwhile, in January 2002, President Bush was receiving memos from then-Justice Department attorneys Jay Bybee and John Yoo as well as from Defense Secretary Rumsfeld and Bush’s White House counsel Alberto Gonzales, advising Bush to deny members of al-Qaeda and the Taliban prisoner-of-war status under the Geneva Conventions.

Also, about a month before the Wolfowitz directive was issued, the Defense Intelligence Agency (DIA) asked Joint Forces Command if they could get a “crash course” on interrogation for the next interrogation team headed out to Guantánamo, according to the Armed Services Committee’s report. That request was sent to Brig. Gen. Thomas Moore and was approved.

Bruce Jessen, the chief psychologist of the SERE program, and Joseph Witsch, a JPRA instructor, led the instructional seminar held in early March 2002.

The seminar included a discussion of al-Qaeda’s presumed methods of resisting interrogation and recommended specific methods interrogators should use to defeat al-Qaeda’s resistance. According to the Armed Services Committee report, the presentation provided instructions on how interrogations should be conducted and on how to manage the “long term exploitation” of detainees.

There was a slide show, focusing on four primary methods of treatment: “isolation and degradation,” “sensory deprivation,” “physiological pressures” and “psychological pressures.”

According to Jessen and Witsch’s instructor’s guide, isolation was the “main building block of the exploitation process,” giving the captor “total control” over the prisoner’s “inputs.” Examples were provided on how to implement “degradation,” by taking away a prisoner’s personal dignity. Methods of sensory deprivation were also discussed as part of the training.

Jessen and Witsch denied that “physical pressures,” which later found their way into the CIA’s “enhanced interrogation” program, were taught at the March meeting.

However, Jessen, along with Christopher Wirts, chief of JPRA’s Operational Support Office, wrote a memo for Southern Command’s Directorate of Operations (J3), entitled “Prisoner Handling Recommendations,” which urged Guantánamo authorities to take punishment beyond “base line rules.”

So, by late March 2002, the pieces were in place for a strategy of behavior modification designed to break down the will of the detainees and extract information from them. Still, to make the procedures “legal,” some reinterpretations of existing laws and regulation were needed.

For instance, attorneys Bybee and Yoo would narrow the definition of “torture” to circumvent laws prohibiting the brutal interrogation of detainees.

“Vulnerable” Individuals

In his directive, Wolfowitz also made subtle, but significant, word changes. While retaining the blanket prohibition against experimenting on prisoners of war, Wolfowitz softened the language for other types of prisoners, using a version of rules about “vulnerable” classes of individuals taken from regulations meant for civilian research by the Department of Health and Human Services (DHHS).

This research and experimentation examined physiological markers of stress, such as cortisol, and involved psychologists under contract to the CIA and the military who were experts in the field, the ex-DIA officials said.

One study, called “The War Fighter’s Stress Response,” was conducted between 2002 and 2003 and examined physiological measurements of mock torture subjects drawn from the SERE program and other high-stress military personnel, such as Special Forces Combat Divers.

Researchers measured cortisol and other hormone levels via salivary swabbing and blood samples, a process that also was reportedly done to war on terror detainees.

Three weeks after the Wolfowitz directive was signed, SERE psychologist Jessen produced a Draft Exploitation Plan for use at Guantánamo. According to the Armed Services Committee’s report, JPRA was offering its services for “oversight, training, analysis, research, and [tactics, techniques, and procedures] development” to Joint Forces Command Deputy Commander Lt. Gen. Robert Wagner. (Emphasis added.)

There were other indications that research was an important component of JPRA services to the DoD and CIA interrogation programs. When three JPRA personnel were sent to a Special Mission Unit associated with Joint Special Operations Command (JSOC) in August 2003 for what was believed to be special training in interrogation, one of the three was JPRA’s manager for research and development.

Three former top military officials interviewed by the Armed Services Committee have described Guantánamo as a “battle lab.”

According to Col. Britt Mallow, the commander of the Criminal Investigative Task Force (CITF), he was uncomfortable when Guantánamo officials Maj. Gen. Mike Dunleavy and Maj. Gen. Geoffrey Miller used the term “battle lab,” meaning “that interrogations and other procedures there were to some degree experimental, and their lessons would benefit DoD in other places.”

CITF’s deputy commander told the Senate investigators, “there were many risks associated with this concept … and the perception that detainees were used for some ‘experimentation’ of new unproven techniques had negative connotations.”

In May 2005, a former military officer who attended a SERE training facility sent an email to Middle East scholar Juan Cole stating that “Gitmo must be being used as a ‘laboratory’ for all these psychological techniques by the [counter-intelligence] guys.”

The Al-Qahtani Experiment

One of the high-value detainees imprisoned at Guantánamo who appears to have been a victim of human experimentation was Mohammed al-Qahtani, who was captured in January 2002.

A sworn statement filed by Lt. Gen. Randall M. Schmidt, al-Qahtani’s attorney, said Secretary Rumsfeld was “personally involved” in the interrogation of al-Qahtani and spoke “weekly” with Major General Miller, commander at Guantánamo, about the status of the interrogations between late 2002 and early 2003.

The treatment of al-Qahtani was cataloged in an 84-page “torture log” (PDF) that was leaked in 2006. The torture log shows that, beginning in November 2002 and continuing well into January 2003, al-Qahtani was subjected to sleep deprivation, interrogated in 20-hour stretches, poked with IVs and left to urinate on himself.

Gitanjali S. Gutierrez, an attorney with the Center for Constitutional Rights who represents al-Qahtani, had said in a sworn declaration that her client was subjected to months of torture based on verbal and written authorizations from Rumsfeld.

“At Guantánamo, Mr. al-Qahtani was subjected to a regime of aggressive interrogation techniques, known as the ‘First Special Interrogation Plan,’” Gutierrez said. “These methods included, but were not limited to, 48 days of severe sleep deprivation and 20-hour interrogations, forced nudity, sexual humiliation, religious humiliation, physical force, prolonged stress positions and prolonged sensory over-stimulation, and threats with military dogs.”

In addition, the Senate Armed Services Committee report said al-Qahtani’s treatment was viewed as a potential model for other interrogations.

In his book Oath Betrayed, Dr. Steven Miles wrote that the meticulously recorded logs of al-Qahtani’s interrogation and torture focus “on the emotions and interactions of the prisoner, rather than on the questions that were asked and the information that was obtained.”

The uncertainty surrounding these experimental techniques resulted in the presence of medical personnel on site, and frequent and consistent medical checks of the detainee. The results of the monitoring, which likely included vital signs and other stress markers, would also become data that could be analyzed to understand how the new interrogation techniques worked.

In January 2004, the Director of Defense Research and Engineering (DDR&E) initiated a DoD-wide review of human subjects protection policies. A Navy slide presentation at DoD Training Day on November 14, 2006, hinted strongly at the serious issues behind the entire review.

The Navy presentation framed the problem in the light of the history of US governmental “non-compliance” with human subjects research protections, including “US Government Mind Control Experiments — LSD, MK-ULTRA, MK-DELTA (1950-1970s)”; a 90-day national “stand down” in 2003 for all human subject research and development activities “ordered in response to the death of subjects”; as well as use of “unqualified researchers.”

The Training Day presentation said the review found the Navy “not in full compliance with Federal policies on human subjects protection.” Furthermore, DDR&E found the Navy had “no single point of accountability for human subject protections.”

DoD refused to respond to questions regarding the 2004 review. Maj. Gen. Ronald Sega, who at the time was the DDR&E, did not return calls for comment.

Ongoing Research

Meanwhile, the end of the Bush administration has not resulted in a total abandonment of the research regarding interrogation program.

Last February, 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 ways 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.

As for the Wolfowitz directive, Pentagon spokeswoman Snyder said it did not open the door to human experimentation on war on terror detainees.

“There is no detainee policy, directive or instruction — or exceptions to such — that would permit performing human research testing on DoD detainees,” Snyder said. “Moreover, none of the numerous investigations into allegations of misconduct by interrogators or the guard force found any evidence of such activities.”

Snyder added that DoD is in the process of updating the Wolfowitz directive and it will be “completed for review next year.”

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.

Cross-posted on Cageprisoners, Another World Is Possible and Uruknet.

The 20 prisoners listed below were the first group of prisoners seized crossing from Afghanistan to Pakistan in December 2001. They have been identified as the “Dirty Thirty,” because of allegations that they served as bodyguards for Osama bin Laden, although these allegations have long been challenged by the prisoners and their attorneys, and by those who have studied the stories in detail, for three reasons: firstly, because the majority of the men had been in Afghanistan for such a short amount of time that it is inconceivable that they would have been trusted with such an important role; secondly, because one source of the allegations is Mohammed al-Qahtani (ISN 063, see below), who was tortured at Guantánamo, and who later withdrew his false allegations; and thirdly, because two other sources of the allegations are Sharqwi Abdu Ali al-Hajj and Sanad Yislam Ali al-Kazimi (ISN 1457 and ISN 1453), whose false confessions were recently exposed in a US court, in the habeas corpus petition of Uthman Abdul Rahim Mohammed Uthman (ISN 027, see below).

Moreover, as the figures indicate, ten of the “Dirty Thirty” have already been released, and although some were Saudis, there are no indications that any of them have returned to militant activity (unlike others — 11 in total — who, according to reports in February 2009, had “left the country and joined terrorist groups abroad”). In fact, the most significant story, out of all the released prisoners, seems to be that of Farouq Ali Ahmed, a Yemeni released in December 2009, who maintained throughout his detention that he was a missionary, despite counter-claims that he was a bodyguard for bin Laden, and that he had been seen at Osama bin Laden’s private airport in Kandahar, where he was “wearing camouflage and carrying an AK-47.”

As I explained in 2007, this particular allegation proved so intolerable to Ahmed that his Personal Representative (a military officer assigned to the prisoners in place of a lawyer during the tribunals at Guantánamo in 2004-05) investigated his files, and submitted a written protest, in which he stated that the government’s sole evidence that Ahmed had been at bin Laden’s airport was the statement of another prisoner, who, according to an FBI memo that he presented to the tribunal, was a notorious liar. According to the FBI, he “had lied, not only about Farouq, but about other Yemeni detainees as well. The other detainee claimed he had seen the Yemenis at times and in places where they simply could not have been.” As the Personal representative discovered, after cross-referencing the detainees’ files, this particular man had made false allegations against 60 of his fellow prisoners.

Bearing this in mind, an analysis of the 20 remaining members of the so-called “Dirty Thirty” reveals that only three have been subjected to any kind of serious allegations relating to their involvement with al-Qaeda, although it is certain that, of the rest, some are among the 26 Yemenis that, in January, the Obama administration’s interagency Guantánamo Review Task Force recommended should continue to be held indefinitely without charge or trial.

ISN 026 Ghazi, Fahed (Yemen)
As I explained in The Guantánamo Files, Ghazi, who was cleared for release by a military review board under President Bush, was just 19 years old at the time of his capture, according to US military records, and was apparently at al-Farouq (the main training camp for Arabs in Afghanistan, associated with Osama bin Laden in the years before 9/11) for just nine days before the camp closed. According to Human Rights Watch, he was just 17 years old when he was seized. Human Rights Watch also noted, “His daughter, who was two months old at the time of Ghazi’s arrest, is now eight years old. The two reportedly send drawings back and forth to each other regularly.” Also see this letter that he submitted to his military review board in September 2006.

ISN 027 Uthman, Uthman Abdul Rahim Mohammed (Yemen)
Uthman, who “said that he had traveled between Kabul and Khost teaching the Koran from March to December 2001.” won his habeas corpus petition in February 2010, when Judge Henry H. Kennedy Jr. ruled that the main allegation against him — that he had “acted as a bodyguard for Osama bin Laden” — came from unreliable statements made by two other prisoners, Sharqwi Abdu Ali al-Hajj (ISN 1457) and Sanad Yislam Ali al-Kazimi (ISN 1453). Judge Kennedy stated, “The Court will not rely on the statements of Hajj or Kazimi because there is unrebutted evidence in the record that, at the time of the interrogations at which they made the statements, both men had recently been tortured.” The government has appealed the ruling.

ISN 028 Al Alawi, Muaz (Yemen)
Al-Alawi lost his habeas corpus petition in January 2009, when Judge Richard Leon ruled that he “was part of or supporting Taliban or al-Qaeda forces,” because he “stayed at guest houses associated with the Taliban and al-Qaeda … received military training at two separate camps closely associated with al-Qaeda and the Taliban and supported Taliban fighting forces on two different fronts in the Taliban’s war against the Northern Alliance.” Although none of the allegations above related to “hostilities against the US or its coalition partners,” and Judge Leon acknowledged that al-Alawi was in Afghanistan before the 9/11 attacks, and was fighting with the Taliban against the Northern Alliance, he endorsed the government’s additional claim that, “rather than leave his Taliban unit in the aftermath of September 11, 2001,” al-Alawi “stayed with it until after the United States initiated Operation Enduring Freedom on October 7, 2001; fleeing to Khost and then to Pakistan only after his unit was subjected to two-to-three US bombing runs.”

ISN 029 Al Ansi, Muhammad (Yemen)
Al-Ansi has stated that he and some friends taught the Koran in a village outside Khost, although the authorities claim, via allegations made by unidentified individuals, by an “al-Qaeda commander,” and by an “al-Qaeda operative,” that he was a bodyguard for Osama bin Laden, that he was present at Tora Bora, and that he also guarded bin Laden at his airport in Kandahar. Al-Ansi was so disturbed by the allegations against him that he told his review board, “All of the prisoners here are trying to leave this place. All the prisoners are telling lies about other prisoners just to get out of here. All these allegations are lies and I want the truth.”

ISN 030 Al Hikimi, Ahmed (Yemen)
Al-Hikimi has stated that, after selling his taxi business, he traveled to Khost, where he met a local student with whom he spent about eight months teaching in various villages, and then returned to the Yemen, traveling again in February 2001, when, he said, he hooked up with the student once more and resumed teaching. In contrast to these claims, he was subjected to allegations similar to those leveled against Muhammad al-Ansi. An “al-Qaeda operative” claimed to have seen him at the al-Farouq camp and in Kabul in 1999, and said that he “would drive from the front line to the mountains once a week to supply food to the brothers.” Other unnamed sources also identified him as a driver, and “an escort for Osama bin Laden and his family” said that he saw him fighting on the front lines against the Northern Alliance. Crucially, another anonymous source identified him “as an associate of the Kandahar Airport Group” — the same false allegation that was leveled against Farouq Ali Ahmed.

ISN 031 Al Mujahid, Mahmoud (Yemen)
As I explained in The Guantánamo Files, al-Mujahid stated that he was inspired to visit Afghanistan to teach the Koran by a sheikh at whose institute he was studying. In contrast, the US authorities alleged that he was a bodyguard for bin Laden, that he was “seen on the front lines,” and that he was “seen with Osama bin Laden in Kandahar, Afghanistan (April 2001) and Tora Bora (November 2001).” In November 2007, he attended a military review board, in which he declared that he had made up the story about the sheikh, when he was first interrogated in US custody in Pakistan, and added that he wanted to explain this to the board, as it had been on his mind for five years, but he had been unable to discuss it with his interrogators, because they were “stupid” and only gave him “bad treatment.” In the hearing, he admitted that he had arrived in Afghanistan in July 2000, but “strongly denied” knowing anything about the 9/11 attacks or any other terrorists attacks, and also dismissed as ridiculous the notion that he could have been become a bodyguard for Osama bin Laden.

ISN 034 Al Yafi, Al Khadr Abdallah (Yemen)
Al-Yafi, who was cleared for release by a military review board under the Bush administration, is a farmer who has stated that, after hearing a sermon, he “decided to return home and sell his sheep so that he could travel to Afghanistan to teach.” In contrast, the US authorities have drawn on what I described as an “array of unsubstantiated allegations, which appear to have involved the exploitation of several ‘high-value detainees’”: a “senior al-Qaeda commander” apparently “recognized the detainee’s face as a Yemeni he saw at the Kabul guest house, probably in the 1999-2000 time frame”; another, a “senior al-Qaeda lieutenant,” stated less confidently that he “recalled possibly seeing the detainee at the al-Zubayr guest house” before 9/11; and an alleged “bodyguard of Osama bin Laden stated he saw the detainee (circa 1999) at an Arab compound in Kandahar.” It was also stated, without any additional explanation whatsoever, that he “was seen at Tora Bora.”

ISN 035 Qader Idris, Idris (Yemen)
Idris has stated that he taught the Koran in Kabul for approximately eight months. Set against his story are just two allegations: that the individual who facilitated his travel to Afghanistan from Yemen “has been identified by a known al-Qaeda member as a fund collector and recruiter for al-Qaeda,” and that the group of 30 Arabs that he joined as he fled Afghanistan for Pakistan was “organized” by Mohammed Annas, a “known alias” of Ali Hamza Ismail (aka Ali Hamza al-Bahlul, see ISN 039, below).

ISN 036 Idris, Ibrahim (Sudan/Yemen)
Idris, sometimes listed as a Yemeni, and sometimes as Sudanese, is accused of attending al-Farouq and of fighting with the Taliban for two years. In December 2007, he attended a military review board and stated that he had actually been seized in Pakistan, where he had traveled for 40 days to work as a missionary. “No disrespect to the interrogators,” he explained. “I said what I had to say, and they made me say things that weren’t true.”

ISN 037 Al Rahabi, Abd Al Malik (Yemen)
Al-Rahabi (also identified as Abd al-Malik Abd al-Wahab) has stated that he traveled to Pakistan and Afghanistan with his wife and his young daughter, although the US authorities allege that he “was very close to Osama bin Laden, and had been with him a long time. He was a known Osama bin Laden guard and errand boy and was frequently seen at Osama bin Laden’s side.” As I explained in The Guantánamo Files, he told his lawyer that he had made false confessions, stating that he was “tortured by beatings” in Kandahar, that his thumb was broken by American interrogators, and that he was “threatened with being held underground and deprived of sunlight until he confessed.” According to his lawyers, around September 2000, he “traveled with his wife to Pakistan in order to study the Koran. Their daughter was born while they were together in Pakistan. In November 2001, his wife returned to Yemen. Al-Rahabi intended to return as well, but he was arrested while in Pakistan.”

ISN 038 Al Yazidi, Ridah (Tunisia)
As I explained in The Guantánamo Files, it is alleged that he traveled to Afghanistan from Italy in 1999, that he attended the Khaldan training camp, and that he fought on the Taliban front lines in 2001. There is little publicly available information about al-Yazidi’s response to the allegations, although he refuted additional claims that he was involved with the Algerian Armed Islamic Group (the GIA, or Groupe Islamique Armé), and also apparently “stated that he did not engage in any significant combat during the entire time he was on the front lines.”

ISN 039 Al Bahlul, Ali Hamza (Yemen)
Widely described as Osama bin Laden’s “press secretary,” al-Bahlul produced a propaganda video for al-Qaeda and was first put forward for trial by Military Commission in February 2004. He was formally charged in June 2004. At a pre-trial hearing in August 2004, he declared, “I am an al-Qaeda member,” and asked the judge, “Am I allowed to represent myself?” and at another hearing in January 2006, he decided to withdraw from the proceedings, waving a sign that read “boycott” in Arabic, He was charged for a second time in February 2008, after the first version of the Commissions was ruled illegal by the US Supreme Court in June 2006, and in May 2008 he again decided to boycott pre-trial hearings, explaining, “I am responsible for my own actions in this world and the afterworld. I don’t consider it to be a crime.” His trial took place in October 2008, and he was convicted of conspiracy, solicitation of murder, and providing material support to terrorism after a one-sided trial in which he refused to mount a defense. He received a life sentence, which he is serving in solitary confinement in Guantánamo, away from all the other prisoners, but his lawyers are currently appealing the sentence, on the basis that providing material support to terrorism is “a fabricated war crime that was not traditionally triable in a military commission as of the time of Mr. al-Bahlul’s affiliation with al-Qaeda” (as his former military defense attorney, Lt. Col. David Frakt, explained), and also on the basis that his trial was unfair because he was denied the right to represent himself.

ISN 040 Al Mudafari, Abdel Qadir (Yemen)
Al-Mudafari (aka al-Mudhaffari) apparently “stated that he wanted a struggle or jihad and chose to travel to Afghanistan rather than Palestine,” but was subjected to several dubious allegations (beyond the most obvious — that he was a bodyguard for Osama bin Laden). It was also alleged that he was “identified as a trainer” at al-Farouq, and was also stated that he was identified by “an al-Qaeda operative” as being “a friend of Osama bin Laden’s personal secretary,” and was also “identified as being at a Taliban Supreme Leader’s [sic] compound.” Confusing matters were notes that he had received instruction in Yemen from Sheikh Muqbil al-Wadi (who was actually opposed to bin Laden), his own claims that he traveled to teach the Koran, and a claim by another unidentified source, who “stated that he did not think that the detainee ever fought with the Taliban because he was against the Taliban.”

ISN 041 Ahmad, Majid (Yemen)
Ahmad, who was 21 years old when seized, apparently admitted that he “first learned of jihad in Afghanistan” at an institute in the Yemen, “and then wanted to fight along with the Taliban.” He added that he “prayed and fell in love with the idea of dying for the sake of God,” and after being given a fatwa by a sheikh, who told him during a telephone call that “it was a good thing for Muslims to go fight jihad,” traveled to Afghanistan and “fought for the Taliban the two years he was in Kabul.” Nevertheless, as with the majority of the so-called “Dirty Thirty,” there appears to be no basis for the claim that he “was an Osama bin Laden bodyguard and was usually by his side.” He has repeatedly stated that he never met bin Laden and has also stated that “the attack on the World Trade Center was wrong because Islam did not permit people to kill innocent people.”

ISN 042 Shalabi, Abdul Rahman (Saudi Arabia)
According to an unidentified source cited at Guantánamo, Shalabi “was teaching at a madrassa” in Kandahar, and, moreover, he “taught over 300 men” and was “very well known.” In contrast, the US authorities have drawn on various claims about him being a bodyguard for Osama bin Laden that appear to be as unreliable as those leveled against the majority of the “Dirty Thirty.” According to one source, he “came to Afghanistan around 1997 and became a bodyguard for Osama bin Laden after 1998,” and according to another, he was “related to a bodyguard for Osama bin Laden.” Other unidentified sources said that they saw him in Kabul and Jalalabad “approximately ten times with Osama bin Laden in the latter part of 2001 and identified him as Osama bin Laden’s security guard,” that they saw him “speaking directly with Osama bin Laden” and that he “was with him at all times while in Tora Bora.” In Guantánamo, he has been a long-term hunger striker, and has been on a hunger strike since August 2005, when the largest hunger strike in the prison’s history took place. He weighed 124 pounds on arrival at Guantánamo in January 2002, but weighed just 100 pounds in November 2005. In September 2009, after four years of being force-fed daily, he weighed just 108 pounds, and wrote a distressing letter to his lawyers, in which he stated, “I am a human who is being treated like an animal.” In November 2009, when his letter was included in a court submission, one of his lawyers, Julia Tarver Mason, stated, “He’s two pounds away from organ failure and death.”

ISN 043 Moqbel, Samir (Yemen)
As I explained in The Guantánamo Files, Moqbel (also identified as Samir Mukbel) stated that he was tricked by a friend, who told him he would find a job in Afghanistan. “He told me I would like it in Afghanistan and I could live a better life than in Yemen,” he said in a hearing at Guantánamo. “I thought Afghanistan was a rich country but when I got there I found out different … it was all destroyed with poverty and destruction. I found there was no basis for getting a job there.” His lawyers at Reprieve explained that he “is the eldest son of seven brothers and five sisters, and as the eldest son, is the family breadwinner,” and added that he was enticed by the false prospect of “more jobs and better salaries” in Afghanistan because, at the time, he “was working in a factory in Yemen earning just $50 a month.” In Guantánamo, in response to allegations that he was a bodyguard for bin Laden, and that he fought with the Taliban in various locations, he stated, “These accusations make you laugh. These accusations are like a movie. Me, a bodyguard for bin Laden, then do operations against Americans and Afghanis and make trips in Afghanistan? I don’t believe any human being could do all these things … This is me? I have watched a lot of American movies like Rambo and Superman, but I believe that I am better than them. I went to Pakistan and Afghanistan a month before the Americans got there … How can a person do all these operations in only a month?”

ISN 044 Ghanim, Mohammed (Yemen)
In Guantánamo, Ghanim was accused of having “participated in jihad activities” in Bosnia and of taking part in the Yemeni civil war, and of being a bodyguard for Osama bin Laden. In response, he has apparently stated that he fought only with the Taliban. In a report from a former prisoner published by Cageprisoners, it was stated that Ghanim was subjected to prolonged sleep deprivation in Guantánamo, as part of what was euphemistically termed “the frequent flier program,” and was also denied medical treatment: “Every two hours he would get moved from cell to cell, 24 hours a day, seven days a week, sometimes cell to cell, sometimes block to block, over a period of eight months. He was deprived of sleep because of this and he was also deprived of medical attention. He had lost a lot of weight. He had a painful medical problem, haemorrhoids, and that treatment was refused unless he cooperated. He said he would cooperate and had an operation. However, the operation was not performed correctly and he still had problems. He would not cooperate. [H]e was [then] put in Romeo Block where the prisoners would be made to stand naked. It was then left to the discretion of the interrogators whether a prisoner was allowed clothes or not.”

ISN 045 Al Rahizi, Ali Ahmad (Yemen)
Al-Rahizi (also identified as al-Rezehi) has stated that he “went to Afghanistan to teach the Koran because the Imam at his mosque told him that the Afghans were using magic and were not following the teachings of Islam.” In contrast, the US authorities allege that he attended al-Farouq and was one of bin Laden’s bodyguards. Al-Rahizi has specifically stated that he “taught the Koran to Afghan children at the Abu Bakur al-Sadiq mosque in Shurandam” (in Kandahar province), where he “worked directly for the mosque Imam,” and that it was the Imam who told him about the US-led invasion of October 2001, and advised him to return home. In the clearest indication that the group of men seized together had picked up stragglers along the way, he stated that he traveled to Khost, via Ghazni, “and then traveled by foot for two days to a small town,” where he “joined approximately 30 other Arabs … who had assembled to flee Afghanistan,” and who subsequently traveled together for eight days before being arrested on the Pakistani border by the Pakistani authorities.

ISN 054 Al Qosi, Ibrahim (Sudan)
Subjected, over the years, to a variety of allegations, including claims that he served as the accountant for a company run by Osama bin Laden in Sudan from 1992 onwards, that he visited Chechnya to fight in 1995, with bin Laden’s support and permission, that he served as a bodyguard, cook and driver for bin Laden in Afghanistan from 1996 onwards, and that he fought in Afghanistan as part of a mortar crew, al-Qosi was first put forward for a trial by Military Commission in February 2004 (along with Ali Hamza al-Bahlul, ISN 039), and was formally charged in June 2004. At a hearing in August 2004, his military defense lawyer, Air Force Lt. Col. Sharon Shaffer, complained that she was not being provided with the information she needed to defend al-Qosi, and also complained that al-Qosi had told her that the translators in court were so poor that he couldn’t understand what was happening. When the Commissions were revived, al-Qosi was charged, for a second time, with al-Bahlul in February 2008, and took part in several inconclusive hearings. In November 2009, he was charged for the third time, after President Obama decided to revive the Commissions, and last month he accepted a plea bargain, making a guilty plea on one count of conspiracy and one count of providing material support to terrorism, in a decision that was widely seen as providing his best opportunity to be released from Guantánamo. A military jury sentenced him to 14 years’ imprisonment on August 11, but was not told the details of his plea deal, and it is therefore thought that the jury was being used to deliver what appears to be a public vindication of the Commissions’ ability to deliver tough sentences, even though, by all accounts, al-Qosi will be held for just two more years before being released.

ISN 063 Al Qahtani, Mohammed (Saudi Arabia)
Despite allegations that he was intended to be the 20th hijacker for the 9/11 attacks, al-Qahtani is not expected to face a trial of any kind. He was originally put forward for a trial by Military Commission (with Khalid Sheikh Mohammed and four other men accused of involvement in the 9/11 attacks) in February 2008, but the charges were subsequently dropped by Susan Crawford, the Convening Authority for the Commissions, responsible for pressing charges, because, as she explained to Bob Woodward in January 2009, “We tortured Qahtani. His treatment met the legal definition of torture.” A harrowing log recording the details of al-Qahtani’s torture from November 2002 to January 2003, in a program approved by defense secretary Donald Rumsfeld, was made publicly available in June 2005 (PDF).

Note: The courtroom sketch of Ibrahim al-Qosi, by Janet Hamlin, is courtesy of Janet Hamlin Illustration.

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 Cageprisoners. Cross-posted on The Public Record, Eurasia Review, the World Can’t Wait, Uruknet, Blog from Middle East and New Left Project. mentioned on No Lies Radio, Portland Indymedia and Dhafir Trial.

As UN Secretary-General Kofi Annan explained on June 26, 1998 (when the day was first marked), “This is a day on which we pay our respects to those who have endured the unimaginable. This is an occasion for the world to speak up against the unspeakable. It is long overdue that a day be dedicated to remembering and supporting the many victims and survivors of torture around the world.”

At the time, Kofi Annan lamented that, although over 100 States had ratified the Convention, the use of torture was “still reported” in many of those countries. Nevertheless, for the US and other supposed civilized countries, the creation of the International Day came at a time when, in general, the involvement of Western nations in torture was minimal.

The threat posed by Osama bin Laden had not yet manifested itself in the African embassy bombings of 1998, the attack on the USS Cole in 2000, and, finally, the attacks on the US mainland on September 11, 2001, which prompted the Bush administration to actively embrace torture. Within a year of the attacks, the President had secured memos purporting to redefine torture, prepared by lawyers in the Justice Department’s Office of Legal Counsel, which was supposed to provide the Executive branch with impartial legal advice.

President Clinton and “extraordinary rendition”

In retrospect, however, the Clinton administration had begun to pave the way for the torture regime that was developed in response to the 9/11 attacks by allowing — or tacitly encouraging — the CIA to become involved in a program of “extraordinary rendition” as early as 1995. Building on a long tradition of kidnapping foreign nationals and bringing them to the US to face justice (the original version of “rendition”), the “extraordinary rendition” program did away with the US courts, and allowed the CIA to kidnap terror suspects in various countries, and to dispose of them by sending them to Egypt.

The first known “extraordinary rendition” took place in September 1995, when Tal’at Fu’ad Qassim, also known as Abu Talal al-Qasimi, a purported Egyptian militant who had been living in exile in Denmark, was seized in Croatia by US forces and, reportedly, questioned aboard a US navy vessel and handed over to Egypt “in the middle of the Adriatic Sea.” He was executed in 2000.

Disturbingly, the plan to seize the next five targets of the “extraordinary rendition” program began on June 25, 1998 (the day before the first International Day in Support of Victims of Torture), when, as the Wall Street Journal explained in 2001, the Egyptian government “issued a prearranged arrest warrant” for Shawki Salama Attiya, who apparently “produce[d] fake visas and other bogus documents” for a cell of Egyptian Islamic Jihad members in Albania. That same day, Albanian police, with the co-operation of the CIA, seized Attiya. “Several days later,” the report continued, “he was taken, handcuffed and blindfolded, to [an] abandoned air base, north of Tirana,” and flown to Egypt, arriving on July 2, 1998. Over the next month, four other members of the alleged cell were kidnapped and flown to Egypt. Attiya later received a life sentence, while two others were hanged, and two others received 10-year sentences. In a bleak postscript, Egyptian Islamic Jihad (which, by this point, was intimately tied to the activities of al-Qaeda through the figure of Ayman al-Zawahiri) responded to the “extraordinary renditions” by vowing vengeance, and the bombings of the US embassies in Nairobi and Dar-es-Salaam, which killed 223 people and wounded over 4,000 others, took place on August 7, 1998.

Although President Clinton’s program, which apparently involved no more than 14 renditions, was tightly controlled and included a strict paper trail and a requirement that convictions in Egypt had already been obtained (however unreliable those convictions may have been), the program provided a ready-made template for the Bush administration.

Torture today

Twelve years after the original International Day in Support of Victims of Torture, the landscape has changed profoundly. Seizing on the “extraordinary rendition” program, the Bush administration involved other countries, including Jordan, Morocco and Syria, and established its own secret prisons in countries including Thailand, Poland, Romania and Lithuania, as well as indulging in the industrial-scale rendition of prisoners to Guantánamo. It has left in its wake malignant policies, whose effects have proven difficult to undo, not only at Guantánamo, but also at Bagram in Afghanistan.

This is in spite of the fact that, on his second day in office, President Obama issued an executive order upholding the absolute ban on torture. However, although this purported to mark a clean break with the Bush administration, its impact has been undermined by the refusal of President Obama — or of his Attorney General, Eric Holder — to order a thorough, independent investigation into the Bush administration’s torture program. This reluctance to address the crimes committed by the previous administration was signaled before Obama took office, when he explained his “belief that we need to look forward as opposed to looking backwards.”

The impact of President Obama’s torture ban has also been damaged by persistent allegations of torture in a secret prison at Bagram, and by the President’s inability to meet his self-imposed deadline of January 22, 2010 for the closure of Guantánamo, where, as critics rightly point out, the open-ended nature of detention is itself a form of abuse. Although the prisoners have had access to lawyers since 2004, and have been able to lodge habeas corpus petitions since June 2008, the underlying situation is not markedly different from how it was in October 2003, when, in a break with protocol, Christophe Girod of the International Committee of the Red Cross told the New York Times, “The open-endedness of the situation and its impact on the mental health of the population has become a major problem.”

Revelations of torture since President Obama took office

The Obama administration’s refusal to open an official investigation into its predecessor’s record has allowed admissions of torture to fester, unaddressed or cynically ignored, in almost every policy area relating to the detention of “War on Terror” prisoners. Just before Obama took office, for example, Susan Crawford, a close friend of Vice President Dick Cheney and a retired judge who served as the convening authority for the military commission trial system at Guantánamo, admitted that she had refused to press charges against Mohammed al-Qahtani, a Saudi prisoner subjected to a brutal program of “enhanced interrogation” in late 2002 and early 2003, because, as she stated bluntly in an interview with Bob Woodward, “We tortured Qahtani. His treatment met the legal definition of torture.”

Mohammed al-Qahtani was not the only prisoner at Guantánamo who was subjected to torture. According to an official who spoke to the New York Times for an article published in January 2005, as many as 1 in 6 of the prisoners held were subjected to “enhanced interrogation techniques.”

Moreover, in the last year and a half, President Obama’s inaction has been regularly challenged, in reports on the treatment in secret CIA prisons of 14 “high-value detainees” transferred to Guantánamo in September 2006, and in reports of the torture of other prisoners. These have surfaced in the District Court in Washington D.C., where judges have been delivering rulings on the prisoners’ habeas corpus petitions, and to date, have found for the prisoners in 36 out of 50 cases.

In April 2009, a confidential ICRC report on the 14 “high-value detainees,” delivered to the US government in 2007, was leaked to the New York Review of Books (PDF). The report, based on interviews with the 14 men at Guantánamo, described how they had been treated in the CIA’s secret prisons, and the men’s statements were so disturbing that the ICRC concluded:

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.

That same month, there was further bad news for Bush administration officials. In response to a court order, the Obama administration released four “torture memos,” written in August 2002 and May 2005 by lawyers in the Justice Department’s Office of Legal Counsel (John Yoo, Jay S. Bybee and Stephen Bradbury), which demonstrated a disturbing predilection for twisting the torture statute out of all recognizable shape in an attempt to redefine torture, so that it could be used by the CIA.

This was followed by an unclassified version of a damning 231-page Senate Armed Services Committee investigation into detainee abuse (PDF), which, although it managed to avoid the use of the word torture, nevertheless concluded that “senior officials in the United States government solicited information on how to use aggressive techniques, redefined the law to create the appearance of their legality, and authorized their use against detainees.” Those held responsible included President George W. Bush, defense secretary Donald Rumsfeld, Vice President Dick Cheney’s legal counsel (and later chief of staff) David Addington, Pentagon general counsel William J. Haynes II, Gen. Richard Myers, the Chairman of the Joint Chiefs of Staff, White House general counsel (and later Attorney General) Alberto Gonzales, Guantánamo commanders Maj. Gen. Michael Dunlavey and Maj. Gen. Geoffrey Miller, and Lt. Gen. Ricardo Sanchez, the commander of coalition forces in Iraq.

Revelations of torture in the Guantánamo prisoners’ habeas petitions

In addition, other references to torture have steadily seeped out of the District Court in Washington D.C., in the judges’ rulings on the Guantánamo prisoners’ habeas corpus petitions. The first concerned Mohamed Jawad, an Afghan teenager seized after a grenade attack in Kabul in December 2002, who had been put forward for a trial by military commission under President Bush. In Jawad’s case, the government ignored the fact that Army Col. Stephen Henley, the military judge in his proposed trial by military commission, had ruled on two separate occasions in October and November 2008 that the crux of the government’s case against him — two “confessions” made on the day of his capture, the first in Afghan custody, and the second, just hours later, in US custody — were inadmissible because they had been obtained through treatment that constituted torture.

Without these confessions, the government essentially had no case, but the Justice Department persisted in pursuing his case before Judge Ellen Segal Huvelle, who granted Jawad’s habeas petition last July after repeatedly stressing that the government did not have a single reliable witness, and that the case was “lousy,” “in trouble,” “unbelievable,” and “riddled with holes.”

In September, Judge Colleen Kollar-Kotelly granted the habeas petition of Fouad al-Rabiah, a Kuwaiti prisoner, after discovering that his confessions about meeting Osama bin Laden and distributing supplies in Afghanistan’s Tora Bora mountains, during a showdown between al-Qaeda and US forces in December 2001, were completely false, and had been conjured up by al-Rabiah after he was subjected to prolonged sleep deprivation and other “enhanced interrogation techniques.”

In November, Judge Kollar-Kotelly granted the habeas petition of Farhi Saeed bin Mohammed, an Algerian, after she concluded that crucial elements of the government’s supposed evidence were unreliable, because they came from statements made by the British resident Binyam Mohamed, shortly after his arrival at Bagram in May 2004. Judge Kollar-Kotelly ruled that Mohamed’s statements were unreliable because, after he was seized in Pakistan in April 2002, he was sent by the CIA to Morocco, where he was reportedly tortured for 18 months, and was then held for another four months in the CIA’s notorious “Dark Prison” near Kabul.

To establish the unreliability of Mohamed’s evidence. Judge Kollar-Kotelly devoted much of her unclassified opinion to a harrowing analysis of his treatment, noting, in particular, that “The government does not challenge or deny the accuracy of Binyam Mohamed’s story of brutal treatment,” and reminding senior officials that the UN Convention Against Torture “requires that governments which are party to it ‘ensure that any statement which is established to have been made as a result of torture shall not be invoked as evidence in any proceedings, except against a person accused of torture as evidence that the statement was made.’”

The month after the bin Mohammed ruling, Judge Ricardo Urbina granted the habeas petition of Saeed Hatim, a Yemeni, after crediting Hatim’s claims that, while held in the US prison at Kandahar, Afghanistan, before his transfer to Guantánamo:

he was severely mistreated, including being beaten repeatedly, being kicked in the knees and having duct tape used to hold blindfolds on his head. To this day, he cannot raise his left arm without feeling pain. The petitioner also alleges that he was threatened with rape if he did not confess to being a member of the Taliban or al-Qaeda. As a result, he claims that the inculpatory statements that he made in Kandahar were made only because of these threats. He further alleges that after being transferred to GTMO in 2002, he repeated those inculpatory statements in 2004 because he feared that he would be punished if he changed his story.

The most recent example of torture being exposed in the District Court came in February this year, when, in the case of Uthman Abdul Rahim Mohammed Uthman, a Yemeni, Judge Henry H. Kennedy Jr. granted his habeas petition, after refusing to accept the government’s central allegation — that Uthman had been a bodyguard for Osama bin Laden — because these allegations had been made by two men (Sharqwi Abdu Ali al-Hajj and Sanad Yislam Ali al-Kazimi) who were held in secret prisons before their transfer to Guantánamo, and because “there is unrebutted evidence in the record that, at the time of the interrogations at which they made the statements, both men had recently been tortured.”

The need for a thorough investigation

It should be apparent from these reports that the Obama administration will find it impossible to staunch the flow of torture stories, and, moreover, that attempts to do so will only end up destroying whatever lingering credibility the administration has regarding its purported respect for human rights. In January, the Justice Department cynically allowed a senior DoJ official, David Margolis, to override the conclusion of a four-year internal investigation into John Yoo and Jay Bybee, which had concluded that both men should face disciplinary measures for “professional misconduct,” by stating that they had only exercised “poor judgment.”

However, that same month, the United Nations issued a detailed report on secret detention, which, while cautiously endorsing the changes introduced by the Obama administration, pointedly asked what had happened to the many dozens of prisoners held in the CIA’s secret prisons, or rendered by the CIA to prisons in other countries, who had not ended up in Guantánamo. Moreover, just last week, a psychologist in Texas filed a complaint with the Texas State Board of Examiners of Psychologists regarding multiple ethical violations committed by Dr. James Mitchell, one of the architects of the Bush administration’s torture program.

With more revelations of torture expected in the District Court, President Obama would do well to reflect, on this particular day, that when Ronald Reagan signed the UN Convention Against Torture in 1988 he willingly accepted that there are “no exceptional circumstances whatsoever” justifying torture, and also accepted that all signatory countries are obliged to “ensure that all acts of torture are offenses under its criminal law” and “either to prosecute torturers who are found in its territory or to extradite them to other countries for prosecution.”

In January this year, Glenn Greenwald noted that, when L. Paul Bremer, then the senior State Department official in charge of terrorism policies, described the Reagan administration’s official policy towards terrorists, he declared that “a major element of our strategy has been to delegitimize terrorists, to get society to see them for what they are — criminals — and to use democracy’s most potent tool, the rule of law against them.” Now, however, we have fallen so far from these ideals that, as Greenwald explained:

The express policies of the right-wing Ronald Reagan — “applying the rule of law to terrorists”; delegitimizing Terrorists by treating them as “criminals”; and compelling the criminal prosecution of those who authorize torture — are now considered on the Leftist fringe … In those rare cases when Obama does what Reagan’s policy demanded in all instances and what even Bush did at times — namely, trials and due process for accused Terrorists — he is attacked as being “Soft on Terror” by Democrats and Republicans alike.

On the International Day in Support of Victims of Torture, it is time for Americans who care about justice to demand that the Obama administration stops vacillating on torture, returns to Ronald Reagan’s “Leftist fringe,” and initiates a thorough investigation into the torture policies implemented by the Bush administration.

Andy Worthington is the author of The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison (published by Pluto Press, distributed by Macmillan in the US, and available from Amazon — click on the following for the US and the UK) 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 Truthout.

For an overview of all the habeas rulings, including links to all my articles, and to the judges’ unclassified opinions, see: Guantánamo Habeas Results: The Definitive List. Also see the archive of articles about Guantánamo and habeas corpus here. For articles about US torture, see the links following the article here, here and here, and the archive of articles here. For chronological lists of all my articles, with links, see here.

Margolis decided that an internal report (PDF) into the conduct of John Yoo and Jay S. Bybee, who wrote the notorious memos in August 2002, which attempted to redefine torture so that it could be used by the CIA, was mistaken in concluding that both men were guilty of “professional misconduct,” and should be referred to their bar associations for disciplinary action.

Instead, Margolis concluded, in a memo (PDF) that shredded four years of investigative work by the Office of Professional Responsibility (OPR), the DoJ’s ethics watchdog, that Yoo and Bybee had merely exercised “poor judgment.” As lawyers in the Office of Legal Counsel, which is charged with providing objective legal advice to the Executive branch on all constitutional questions, Yoo and Bybee attempted to redefine torture as the infliction of physical pain “equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death,” or the infliction of mental pain which “result[s] in significant psychological harm of significant duration e.g. lasting for months or even years.”

Yoo, notoriously, had lifted his description of the physical effects of torture from a Medicare benefits statute and other health care provisions in a deliberate attempt to circumvent the UN Convention Against Torture, signed by President Reagan in 1988 and incorporated into US federal law, in which torture is defined as:

any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person …

Obsessed with finding ways in which “severe pain” could be defined so that the CIA could torture detainees and get away with it, Yoo drew on some truly revolting examples of physical torture, citing a particularly brutal case, Mehinovic v. Vuckovic, in which, during the Bosnian war, a Serb soldier named Nikola Vuckovic had tortured his Bosnian neighbor, Kemal Mehinovic, with savage and sadistic brutality. Yoo dismissed the possibility that other torture techniques — waterboarding, for example, which is a form of controlled drowning, and prolonged sleep deprivation — might cause “significant psychological harm of significant duration,” or physical pain rising to a level that a judge might regard as torture.

In both of his definitions, however, Yoo was clearly mistaken. No detailed studies have yet emerged regarding the prolonged psychological effects of the torture program approved by Yoo and Bybee, largely because lawyers for the “high-value detainees” in Guantánamo have been prevented — first under Bush, and now under Obama — from revealing anything publicly about their clients.

However, lawyers for Ramzi bin al-Shibh, who was charged in the Bush administration’s Military Commissions, made a good show of demonstrating that bin al-Shibh is schizophrenic and on serious medication, when they argued throughout 2008 that he was not fit to stand trial, and I have seen no evidence to suggest that bin al-Shibh was in a similar state before his four years in secret CIA prisons.

An even more pertinent example is Abu Zubaydah, a supposed “high-value detainee,” held in secret CIA prisons for four and a half years, for whom the torture program was originally developed. Zubaydah’s case may well be the most shocking in Guantánamo, because, although he was subjected to physical violence and prolonged sleep deprivation, was confined in a small box and was waterboarded 83 times, the CIA eventually concluded that he was not, as George W. Bush claimed after his capture, “al-Qaeda’s chief of operations,” but was, instead, a “kind of travel agent” for recruits traveling to Afghanistan for military training, who was not a member of al-Qaeda at all.

Zubaydah was clearly mentally unstable before his capture and torture, as the result of a head wound sustained in Afghanistan in 1992, but as one of his lawyers, Joe Margulies, explained in an article in the Los Angeles Times last April, his subsequent treatment in US custody has caused a profound deterioration in his mental health that would certainly constitute “significant psychological harm of significant duration.” Margulies wrote:

No one can pass unscathed through an ordeal like this. Abu Zubaydah paid with his mind. Partly as a result of injuries he suffered while he was fighting the communists in Afghanistan, partly as a result of how those injuries were exacerbated by the CIA and partly as a result of his extended isolation, Abu Zubaydah’s mental grasp is slipping away. Today, he suffers blinding headaches and has permanent brain damage. He has an excruciating sensitivity to sounds, hearing what others do not. The slightest noise drives him nearly insane. In the last two years alone, he has experienced about 200 seizures.

Moreover, when it came to defining physical torture, the OPR Report’s authors noted that, as so often in the memos, Yoo had ignored relevant case history. The key passage in the report deals with the US courts’ decisions regarding the Torture Victim Protection Act (TVPA). Yoo had drawn on Mehinovic for his description of physical torture “of an especially cruel and even sadistic nature,” and, as the authors noted, he also argued that “only ‘acts of an extreme nature’ that were ‘well over the line of what constitutes torture’ have been alleged in TVPA cases.”

The authors continued:

Thus, the memorandum asserted, “there are no cases that analyze what the lowest boundary of what constitutes torture.” [sic]

That assertion was misleading. In fact, conduct far less extreme than that described in Mehinovic v. Vuckovic was held to constitute torture in one of the TVPA cases cited in the appendix to the Bybee memo. That case, Daliberti v. Republic of Iraq, 146 F. Supp. 2d 146 (D.D.C. 2001), held that imprisonment for five days under extremely bad conditions, while being threatened with bodily harm, interrogated, and held at gunpoint, constituted torture with respect to one claimant.

A close inspection of Daliberti (which dealt with US personnel seized by Iraqi forces between 1992 and 1995) is revealing, as the D.C. District Court held that “Such direct attacks on a person and the described deprivation of basic human necessities are more than enough to meet the definition of ‘torture’ in the Torture Victim Protection Act.” The judges based their ruling on the following:

David Daliberti and William Barloon allege that they were “blindfolded, interrogated and subjected to physical, mental and verbal abuse” while in captivity. They allege that during their arrests one of the agents of the defendant threatened them with a gun, allegedly causing David Daliberti “serious mental anguish, pain and suffering.” During their imprisonment in Abu Ghraib prison, Daliberti and Barloon were “not provided adequate or proper medical treatment for serious medical conditions which became life threatening.” The alleged torture of Kenneth Beaty involved holding him in confinement for eleven days “with no water, no toilet and no bed.” Similarly, Chad Hall allegedly was held for a period of at least four days “with no lights, no window, no water, no toilet and no proper bed.” Plaintiffs further proffer that Hall was “stripped naked, blindfolded and threatened with electrocution by placing wires on his testicles … in an effort to coerce a confession from him.”

Yoo and his apologists will undoubtedly quibble yet again. There is the threat of electrocution, a threat made with a gun, and deprivation of water, in one case for eleven days, none of which feature in the OLC’s memos. However, outside of the specific torture program approved by the OLC, numerous prisoners who were held at Bagram before being transported to Guantánamo have stated that they were actually subjected to electric shocks while hooded (rather than being threatened with electrocution), and that being threatened at gunpoint was a regular occurrence.

Moreover, it has also been stated that the withholding of medication was used with Abu Zubaydah after his capture, when he was severely wounded, and it should also be noted that numerous ex-prisoners have stated that, in Guantánamo, it was routine for medical treatment to be withheld unless prisoners cooperated with their interrogators (PDF).

Most of all, however, a comparison between Daliberti and the OLC memos reveals the extent to which the techniques approved by Yoo resulted in “severe pain or suffering, whether physical or mental,” which clearly exceeded that endured by David Daliberti and his fellow Americans in Iraq.

First of all, there is waterboarding, an ancient torture technique that has long been recognized as torture by the United States. As Eric Holder noted during his confirmation hearing in January 2009, “We prosecuted our own soldiers for using it in Vietnam.” With this in mind, it ought to be inconceivable that anyone could argue that waterboarding Abu Zubaydah 83 times and Khalid Sheikh Mohammed 183 times could be anything less than torture.

In addition, the prolonged isolation, prolonged sleep deprivation, nudity, hooding, shackling in painful positions, cramped confinement, physical abuse, dousing in cold water, beatings and threats endured by the CIA’s “high-value detainees,” as revealed in the leaked ICRC report (PDF) based on interviews with the 14 men transferred to Guantánamo from secret CIA prisons in September 2006, completes a picture that surely “shocks the conscience” more than the torture described in Daliberti, especially as those held were subjected to these techniques for far longer periods.

Should any further doubts remain about the definition of torture — and how it was implemented in the “War on Terror” — these should have been dispelled in January 2009, when, shortly before President Bush left office, Susan Crawford, the retired military judge who was the Convening Authority for the Military Commissions at Guantánamo (responsible for deciding who should be charged) granted the most extraordinary interview to Bob Woodward of the Washington Post.

Crawford told Woodward that the reason she had not pressed charges against Mohammed al-Qahtani, a Saudi who was initially put forward for a trial by Military Commission, along with Khalid Sheikh Mohammed, Ramzi bin al-Shibh and three other men, was because he was tortured in Guantánamo. “We tortured Qahtani,” she said. “His treatment met the legal definition of torture.”

“The techniques they used were all authorized, but the manner in which they applied them was overly aggressive and too persistent,” Crawford explained. “You think of torture, you think of some horrendous physical act done to an individual. This was not any one particular act; this was just a combination of things that had a medical impact on him, that hurt his health. It was abusive and uncalled for. And coercive. Clearly coercive. It was that medical impact that pushed me over the edge,” and to conclude that it was torture.

As I explained in an article at the time:

Al-Qahtani’s treatment was severe, of course. As Time magazine revealed in an interrogation log that was made available in 2005 (PDF), he was interrogated for 20 hours a day over a 50-day period in late 2002 and early 2003, when he was also subjected to extreme sexual humiliation, threatened by a dog, strip-searched and made to stand naked, and made to bark like a dog and growl at pictures of terrorists. On one occasion he was subjected to a “fake rendition,” in which he was tranquilized, flown off the island, revived, flown back to Guantánamo, and told that he was in a country that allowed torture.

In addition, as I explained in my book The Guantánamo Files:

The sessions were so intense that the interrogators worried that the cumulative lack of sleep and constant interrogation posed a risk to his health. Medical staff checked his health frequently — sometimes as often as three times a day — and on one occasion, in early December, the punishing routine was suspended for a day when, as a result of refusing to drink, he became seriously dehydrated and his heart rate dropped to 35 beats a minute. While a doctor came to see him in the booth, however, loud music was played to prevent him from sleeping.

The techniques used on al-Qahtani were approved by defense secretary Donald Rumsfeld, but the impetus came from the torture memos written and authorized by Yoo and Bybee. Moreover, although Crawford was not so principled when it came to considering the treatment to which the “high-value detainees” had been subjected in CIA custody — on the basis, presumably, that such information would be easier to conceal in a Military Commission than al-Qahtani’s well-publicized ordeal — it is clear from the ICRC report on the “high-value detainees” that their treatment also “met the legal definition of torture.” In addition, it seems probable that the treatment of the 80 other prisoners held in secret CIA prisons, the treatment of prisoners in Afghanistan, before their arrival in Guantánamo, and the treatment of over a hundred prisoners in Guantánamo, who were subjected to versions of the “enhanced interrogation techniques” used on al-Qahtani would also constitute torture.

For these reasons, David Margolis’ whitewash of John Yoo and Jay S. Bybee cannot be the final word. In his memo to Attorney General Eric Holder, dismissing the report’s conclusions, Margolis tried to claim that it was important to remember that Yoo and Bybee were working in extraordinary circumstances, striving to prevent another major terrorist attack. In an early version of the report, OPR head Mary Patrice Brown dismissed this argument, asserting that “Situations of great stress, danger and fear do not relieve department attorneys of their duty to provide thorough, objective and candid legal advice, even if that advice is not what the client wants to hear.”

This is correct, but another authoritative source also explains why there are no excuses for twisting the law out of all shape in an attempt to justify torture. As the UN Convention Against Torture stipulates (Article 2.2), “No exceptional circumstances whatsoever, whether a state of war or a threat or war, internal political instability or any other public emergency, may be invoked as a justification of torture.”

The UN Convention also stipulates (Article 4. 1) that signatories to the Convention “shall ensure that all acts of torture are offences under its criminal law” and requires each State, when torture has been exposed, to “submit the case to its competent authorities for the purpose of prosecution” (Article 7.1). As with Article 2.2, there are no excuses for not taking action, and that includes political expediency, or, as Barack Obama described it, “a belief that we need to look forward as opposed to looking backwards.”

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

As published exclusively on Truthout. You can Digg the original article here.

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.

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

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

Back in October, when the Obama administration’s interagency Task Force announced that it had cleared 75 prisoners for release — and explained that this figure included 26 Yemenis — I took exception to the administration’s unwillingness to release any of the Yemenis. This was revealed in the case of Alla Ali Bin Ali Ahmed, a Yemeni whose release had been ordered in May by a District Court judge, who had granted his habeas corpus petition. Judge Gladys Kessler ruled that the government had based its case on unreliable allegations made by other prisoners who were tortured, coerced, bribed or suffering from mental health issues, and a “mosaic” of intelligence, purporting to rise to the level of evidence, which actually relied, to an intolerable degree, on second- or third-hand hearsay, guilt by association and unsupportable suppositions.

However, when it came to releasing Ali Ahmed, the government balked, and administration officials told the New York Times in October that, “Even if Mr. Ahmed was not dangerous in 2002 … Guantánamo itself might have radicalized him, exposing him to militants and embittering him against the United States.”

As I explained at the time, “only at Guantánamo can fear trump justice to such an alarming degree” that, “if [the officials’] rationale for not releasing any of the Yemenis from Guantánamo was extended to the US prison system, it would mean that no prisoner would ever be released at the end of their sentence, because prison ‘might have radicalized’ them, and also, of course, that it would lead to no prisoner ever being released from Guantánamo.”

In the end, Alla Ali Bin Ali Ahmed was released — primarily, it seems, because Judge Kessler “appeared to be losing patience with the delay in complying with her May 11 release order,” and was about to criticize the government openly — and not because officials had truly considered the flawed basis of their unwillingness to release him. As a result, the release of six more Yemenis on the weekend of December 19-20 was a significant breakthrough, as it represented the first time that the Obama administration had, of its own volition, released Yemenis cleared by its own interagency Task Force.

As I hope to demonstrate below, in profiles of these six men, the administration’s reticence was unjustified, as their stories represent a cross-section of the horrendous mistakes made by the Bush administration in its search for “terrorists” to imprison without rights at Guantánamo, and also because they strongly suggest that other innocent Yemenis continue to be detained.

The importance of this should not be overlooked, especially because, in the wake of the failed bomb plot on a Northwest Airlines flight on Christmas Day, the connections allegedly established by the would-be bomber, Umar Farouk Abdulmutallab, with terrorists in Yemen has prompted lawmakers in the US to declare that no more Yemenis should be released from Guantánamo.

As Politico reported, Rep. Pete Hoekstra (R-Mich.), ranking member on the House Intelligence Committee, claimed that the news “highlights the fact that sending this many people back — or any people back — to Yemen right now is a really bad idea,” and Rep. Peter King (R-NY) called it “a major mistake” to repatriate any Yemeni prisoners, adding, “I don’t think Guantánamo should be closed, but if we’re going to close it I don’t believe we should be sending people to Yemen where prisoners have managed to escape in the past.” Even Bennie Thompson (D-Miss.), the House Homeland Security Committee Chairman, expressed doubts, telling Politico, “I’d, at a minimum, say that whatever we were about to do we’d at least have to scrub it again from top to bottom.”

These claims now threaten to spiral out of control, with several media outlets reporting that two former Guantánamo prisoners from Saudi Arabia have assumed leadership positions in an al-Qaeda-inspired group, al-Qaeda in the Arabian peninsula, which has claimed responsibility for the failed attack, even though the Obama administration “remains cautious in linking” Abdulmutallab to al-Qaeda, and even though drawing connections between released Saudis and released Yemenis has no sound basis, as the Yemeni authorities stated categorically in October that none of the 16 Yemenis returned from Guantánamo between 2004 and 2008 had joined terrorist groups after their eventual release from Yemeni custody.

Jamal Mar’i: one of the first victims of “extraordinary rendition” in the “War on Terror”

The first of the six Yemenis, Jamal Mar’i, was 31 years old when he was kidnapped from his house in Karachi by US and Pakistani operatives on September 23, 2001, and subjected to what appears to be one of the first “extraordinary renditions” in the Bush administration’s “War on Terror.” After a month in Pakistani custody, where he was interrogated by US agents, he was flown to Jordan by the CIA, and was held by the notorious General Intelligence Directorate (GID) for four months before being sent to Guantánamo. Several years later, he told his lawyer, Marc Falkoff, that he was not subjected to torture, but was “hidden from visiting Red Cross inspectors.”

Jamal Mar’i was an unlikely terror suspect. Married with four children, he had studied petroleum engineering in Azerbaijan from 1994-98, but had found no work in his chosen field, and had worked in his family’s store in Yemen until 2001, when he was employed by the Emirates-based financier for the Saudi charity al-Wafa to buy medicine for the organization in Karachi. He explained that this involved him traveling to Kandahar in May 2001 “to find out how the work was done and how the medicine is distributed,” and that he was then responsible for purchasing medicines from specialist stores in Pakistan.

Mar’i was seized on the day that President Bush signed Executive Order 13224, which was designed to block the assets of individuals and entities that were allegedly involved with terrorism. Al-Wafa was one of the organizations blacklisted, and in the years that followed dozens of prisoners in Guantánamo were accused of being involved with terrorism because of their connections with the organization, even though all but Mar’i — and Ayman Batarfi, discussed below — were released several years ago.

In Guantánamo, little of Jamal Mar’i’s story emerged, as, after finally securing the services of a lawyer, he soon came to believe that the entire process was worthless. In June 2006, Marc Falkoff explained, “When I first met Jamal, he said all he needed was to have his case heard and everyone would see that he was innocent. Now he won’t even meet with us. He said that we initially brought him hope but that we’re now like a mirage in the desert and he can no longer live with hope.”

Ayman Batarfi: the doctor who met Osama bin Laden

The second of the released Yemenis, Ayman Batarfi, was a skilled orthopedic surgeon, who had traveled to Afghanistan in 2001 to care for those less fortunate than himself. He too had worked for al-Wafa, and was clearly referring to Jamal Mar’i when, at his tribunal in Guantánamo, he said that al-Wafa’s representative in Karachi “was taken to Jordan ‘on a special flight.’” Unlike Mar’i, however, Batarfi was not subjected to “extraordinary rendition,” but he came under suspicion when he explained that, through a series of accidents, he had met Osama bin Laden and had also found himself in Afghanistan’s Tora Bora mountains in December 2001, when remnants of al-Qaeda and the Taliban were fighting the US and their Afghan allies, and the US military allowed bin Laden, Ayman al-Zawahiri and numerous other senior figures in al-Qaeda and the Taliban to escape across the unguarded Pakistani border.

The delay in releasing Batarfi is clearly unconscionable, as, earlier this year, when his habeas corpus petition finally reached a District Court, Judge Emmet G. Sullivan was outraged by government lawyers’ “repeated” delays in providing unclassified exculpatory material to the defense. At a status hearing on April 1, he referred to a hearing on March 19, in which he required the Justice Department “to show cause why the government and its attorneys should not be held in contempt for violating” an order in January to produce relevant information, including exculpatory evidence.

This was typical behavior on the part of the Justice Department, but Judge Sullivan’s patience was clearly exhausted when Batarfi’s lawyers explained that they had discovered, in Batarfi’s medical records (which had, after some delay, been provided by the government), “a highly exculpatory record” pertaining to one of the government’s main witnesses against their client, and added that they “believed they were entitled to all other similar records” regarding this particular prisoner, and the government responded, as Judge Sullivan described it, by taking the position that “this had been a, quote, inadvertent production, and sought to, in the government’s words, sequester the document.”

As I explained in an article in summer, analyzing the habeas corpus cases:

Outraged by this, and clearly struggling to contain his anger, Judge Sullivan told the government lawyers, “To hide — and I don’t use that word loosely — to hide relevant and exculpatory evidence from counsel and from the Court under any circumstances, particularly here where there is no other means to discover this information and where the stakes are so very high and do indeed include indefinite detention, is fundamentally unjust, outrageous and will not be tolerated.”

He added, “Fortunately, Dr. Batarfi’s counsel have been diligent and tireless in their efforts, but no one, Dr. Batarfi and not this Court, should have to rely on luck to discover evidence critical to a just resolution … In the face of repeated failures to comply with this Court’s orders, to produce exculpatory evidence, even after orders to show cause and the requirement of no fewer than four declarations from officials at the highest levels of our government, how can this Court have any confidence whatsoever in the US government to comply with its obligation and to be truthful to the Court?”

In response to the meltdown of Batarfi’s case, the government took matters into its own hands, expediting a review by the Justice Department, and announcing that he had been cleared for release. Judge Sullivan accepted this, of course, as he would clearly have granted Batarfi’s habeas petition had the case proceeded, but he made a point of telling the government that, “While the Court on the one hand applauds the government’s belated decision to transfer Dr. Batarfi, the Court must note the disturbing pattern in this and other cases. Time and again we have seen that only once finally pressed to present evidence to justify a petitioner’s detention does the United States belatedly, quote, withdraw, end quote, charges or allegations and/or transfer the detainee.”

Judge Sullivan added that he had “some serious concerns” about whether the sudden decision to release Batarfi was “another ploy not to return Dr. Batarfi to his country of origin but to continue with his deprivation of his fair day in court” — and with good reason, as it took nearly nine months to release him, despite the judge’s devastatingly critical analysis of the government’s actions:

I’m not going to continue to tolerate indefinite delay on the part of the United States government. I mean, this Guantánamo issue is a travesty. It ranks up there with the internment of Japanese-American citizens years ago. It’s a horror story in the American system of jurisprudence, and quite frankly, I’m not going to buy into an extended indefinite delay of this man’s stay at Guantánamo, or anyone else on my calendar.

Farouq Ali Ahmed: a victim of Guantánamo’s “notorious liar”

The story of the third of the Yemenis, Farouq Ali Ahmed, a young man who went to Afghanistan to teach the Koran, has been known since February 2006, when Corine Hegland wrote a series of extraordinary articles for the National Journal, examining a number of Guantánamo cases. In one of these articles, Hegland wrote about the case of Farouq Ali Ahmed, explaining how he had been judged as an “enemy combatant” because of two false allegations. The first — that he was a bodyguard of Osama bin Laden — was directed at 30 prisoners in total, and was made under duress, and later retracted, by Mohammed al-Qahtani. One of several purported “20th hijackers” for the 9/11 attacks, al-Qahtani made the allegations during a seven-week period, from November 2002 to January 2003, when he was subjected to an array of “enhanced interrogation techniques,” which “met the legal definition of torture,” according to Susan Crawford, the Convening Authority for Guantánamo’s Military Commissions, who explained to Bob Woodward in January 2009 that she had refused to press charges against him in the Military Commissions because of the torture.

The second allegation — that Farouq Ali Ahmed had been seen at Osama bin Laden’s private airport in Kandahar, where he was “wearing camouflage and carrying an AK-47” — proved so intolerable to his Personal Representative (a military officer assigned to the prisoners in place of a lawyer during the tribunals at Guantánamo in 2004-05) that he submitted a written protest, in which he stated that the government’s sole evidence that Ahmed had been at bin Laden’s airport was the statement of another prisoner, who, according to an FBI memo that he presented to the tribunal, was a notorious liar. According to the FBI, he “had lied, not only about Farouq, but about other Yemeni detainees as well. The other detainee claimed he had seen the Yemenis at times and in places where they simply could not have been.”

The Personal Representative wrote, “I do feel with some certainty that [the accuser] has lied about other detainees to receive preferable treatment and to cause them problems while in custody. Had the tribunal taken this evidence out as unreliable, then the position we have taken is that a teacher of the Koran (to the Taliban’s children) is an enemy combatant (partially because he slept under a Taliban roof).”

The “notorious liar” had actually made false allegations against 60 prisoners in total, as was revealed after the tribunal of Mohammed al-Tumani, a young Syrian economic migrant, who had traveled to Afghanistan with other family members shortly before the 9/11 attacks (and who was finally released in Portugal in August this year). In his tribunal, he denied an allegation that he had attended the al-Farouq training camp with such vigor that his Personal Representative decided to investigate the matter further. When he looked at the classified evidence, however, he found that only one man — the same prisoner mentioned above, and probably the same man identified in the habeas petition of Ayman Batarfi — claimed to have seen him at al-Farouq, and had identified him as being there three months before he arrived in Afghanistan. As Corine Hegland described it, “The curious US officer pulled the classified file of the accuser, saw that he had accused 60 men, and, suddenly skeptical, pulled the files of every detainee the accuser had placed at the one training camp. None of the men had been in Afghanistan at the time the accuser said he saw them at the camp.”

Muhammed Taher and Fayad al-Rami: seized from a university dorm in Pakistan

The fourth and fifth Yemenis, Muhammed Taher and Fayad Yahya Ahmed al-Rami (identified by the Pentagon as Mohammed Tahir and Fayad Yahya Ahmed), were seized in a house raid in Pakistan on the same night that the “high-value detainee” Abu Zubaydah was captured, and in the same house as Alla Ali Bin Ali Ahmed, described above, and at least a dozen other men who were subsequently transferred to Guantánamo.

When Judge Kessler granted the habeas corpus petition of Alla Ali Bin Ali Ahmed, accepting that he was nothing more than a student, who had been seized because of some tangential connection that the guest house had with Abu Zubaydah, she also made a point of noting, “It is likely, based on evidence in the record, that at least a majority of the [other] guests were indeed students, living at a guest house that was located close to a university,” and this is clearly the case with both Muhammed Taher and Fayad al-Rami, who were also students. Moreover, both men explained that they had repeatedly been told — both in Pakistani custody and at Guantánamo — that they had been seized by mistake, and would be released. In his tribunal at Guantánamo, as I explained in an article in May, Taher said:

The army translator and the interrogator from the Pakistani intelligence said, “yes, all of what this man said … about his story in Pakistan is correct, and therefore that is why we are going to give him back his passport that we took” … I was really surprised that the American intelligence refused all of these proofs and they said no. “We still need him,” they said, and then they took me.

In al-Rami’s case, he explained to his tribunal in 2005 that he had recently been told in Guantánamo that he would be released. “The interrogator and the investigator about a month ago that met with me told [me] that there was nothing against me and that I am an innocent man and should [be] released,” he said.

However, while the release of these men is long overdue, it is noticeable that at least seven other Yemenis seized in the house are still held, including Mohammed Hassen, who was only visiting the house when he was seized. Hassen is one of only two of the guest house prisoners to be cleared for release by a military review board at Guantánamo under the Bush administration, and while the other, Abdul Aziz al-Noofayee, a Saudi, was released in June, Hassen’s continued presence at Guantánamo is, frankly, inexplicable.

Riyad al-Haf: a case of mistaken identity

In the case of the sixth Yemeni, Riyad al-Haf (identified by the Pentagon as Riyad al-Radai or Riyad al-Haj), it was alleged in his tribunal at Guantánamo that, after traveling to Afghanistan, he was “picked up in a car by a group of Taliban members and driven to Kandahar, where he stayed in a Taliban guest house for two to three months,” and that he “admitted he agreed to serve the Taliban” and was posted on the front line for a week. It was also alleged that he admitted working at a field hospital for six months as a nurse’s aide, helping to care for wounded Taliban fighters, but in response he said that he had actually spent six months as a patient in a hospital in Kabul.

When his review board met the following year, he said that “everything in the Unclassified Summary [of Evidence] was a big lie and that America had no choice but to keep him locked up since it would look bad if they released him after holding him for three years.” He “repeatedly and strenuously” stated that he had been confused with some other prisoner, and that this mistake had started in Bagram, where, presumably, the “evidence” against him was first established.

By the time of his next review, in January 2006, this confusing story had become even less clear. Al-Haf maintained that he had “wanted to find out what the Taliban was really all about,” and one allegation — that after “seeing that the Taliban was trying to serve Islam, [he] decided to serve the Taliban in any manner except for fighting” — sounded vaguely convincing, but it was surrounded by numerous other allegations that were patently absurd, which related to his previously aired claim that he had been mistaken for another man.

In this ridiculous scenario, it was stated that he “used additional aliases of al-Sharqawi aka al-Hajj, which are identifiable with a Pakistani facilitator.” This was nonsense, because the real al-Sharqawi (a man also known as Riyadh the Facilitator) was already in Guantánamo. Nevertheless, it seems probable that a host of other groundless allegations sprang from this mistake, including wild claims that he “was identified as having a lot of experience because of the long time he spent at Camp Farouq and on the front line fighting the Northern Alliance,” that he “taught others how to train people in various advanced things such as tanks and explosives,” that he “was identified as a leader of 10 to 15 men and drove a Toyota pick-up truck that was used to haul supplies to the front lines,” that he “was identified as being in Tora Bora and was in charge of delivering food supplies to the fighters and also delivered approximately $3000 to the Emir,” and that he “was one of the old senior guys in Afghanistan that was a commander with a lot of responsibility.”

As we have seen since Guantánamo was first established, nearly eight years ago, it is appallingly easy for its would-be defenders to resort to propaganda when describing the prisoners. When looked at in detail, however, the claims that the prison holds the “worst of the worst” fail to stand up to scrutiny, as is revealed in the stories related above. Running through most of these accounts is the important role played by the District Court judges examining the prisoners’ habeas corpus petitions, who, through their exposure of unreliable witnesses, and of false confessions obtained through torture, coercion or bribery, have revealed themselves to be far more capable arbiters of the truth than the lawmakers who have chosen to use these men, and others still held, as pawns in an unprincipled political game.

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

As published exclusively on Truthout. Cross-posted on AlterNet.

See the following for articles about the 142 prisoners released from Guantánamo from June 2007 to January 2009, and the 30 prisoners released from February to early December 2009, whose stories are covered in more detail than is available anywhere else –- either in print or on the Internet –- although many of them, of course, are also covered in The Guantánamo Files: June 2007 –- 2 Tunisians, 4 Yemenis (here, here and here); July 2007 –- 16 Saudis; August 2007 –- 1 Bahraini, 5 Afghans; September 2007 –- 16 Saudis; September 2007 –- 1 Mauritanian; September 2007 –- 1 Libyan, 1 Yemeni, 6 Afghans; November 2007 –- 3 Jordanians, 8 Afghans; November 2007 –- 14 Saudis; December 2007 –- 2 Sudanese; December 2007 –- 13 Afghans (here and here); December 2007 –- 3 British residents; December 2007 –- 10 Saudis; May 2008 –- 3 Sudanese, 1 Moroccan, 5 Afghans (here, here and here); July 2008 –- 2 Algerians; July 2008 –- 1 Qatari, 1 United Arab Emirati, 1 Afghan; August 2008 –- 2 Algerians; September 2008 –- 1 Pakistani, 2 Afghans (here and here); September 2008 –- 1 Sudanese, 1 Algerian; November 2008 –- 1 Kazakh, 1 Somali, 1 Tajik; November 2008 –- 2 Algerians; November 2008 –- 1 Yemeni (Salim Hamdan) repatriated to serve out the last month of his sentence; December 2008 –- 3 Bosnian Algerians; January 2009 –- 1 Afghan, 1 Algerian, 4 Iraqis; ; February 2009 — 1 British resident (Binyam Mohamed); May 2009 — 1 Bosnian Algerian (Lakhdar Boumediene); June 2009 — 1 Chadian (Mohammed El-Gharani), 4 Uighurs to Bermuda, 1 Iraqi, 3 Saudis (here and here); August 2009 — 1 Afghan (Mohamed Jawad), 2 Syrians to Portugal; September 2009 — 1 Yemeni, 2 Uzbeks to Ireland (here and here); October 2009 — 1 Kuwaiti, 1 prisoner of undisclosed nationality to Belgium; October 2009 — 6 Uighurs to Palau; November 2009 — 1 Bosnian Algerian to France, 1 unidentified Palestinian to Hungary, 2 Tunisians to Italian custody, December 2009 — 1 Kuwaiti (Fouad al-Rabiah).

We know that both President Obama and Attorney General Eric Holder believe that the Bush administration approved the use of torture. In an interview with ABC News on January 11, President-Elect Obama responded to a recent CBS interview with Dick Cheney, in which the then-Vice President had sounded his usual alarms abut the need for “extraordinary” policies to deal with terror suspects, by stating, “Vice President Cheney I think continues to defend what he calls extraordinary measures or procedures and from my view waterboarding is torture. I have said that under my administration we will not torture.”

Two days later, at his confirmation hearing, Eric Holder reinforced Obama’s opinion. Noting, as the New York Times described it, that waterboarding had been used to torment prisoners during the Inquisition, by the Japanese in World War II and in Cambodia under the Khmer Rouge, and adding, “We prosecuted our own soldiers for using it in Vietnam,” he stated unequivocally, “Waterboarding is torture,” and reiterated his opinion just three weeks ago, in a speech to the Jewish Council of Public Affairs in Washington. “Waterboarding is torture,” he said again, adding, “My Justice Department will not justify it, will not rationalize it and will not condone it.”

It took the Bush administration many years to admit that it had authorized the use of waterboarding — a form of controlled drowning with a long and ignoble history  — but Gen. Michael Hayden, the director of the CIA, broke the silence last February, admitting, in an open session of Congress, that three “high-value detainees” in the “War on Terror” — Khalid Sheikh Mohammed (KSM), Abu Zubaydah and Abdul Rahim al-Nashiri — had been waterboarded in secret CIA custody.

In December, Vice President Dick Cheney also confessed, telling ABC News that he had been involved in approving the waterboarding of Khalid Sheikh Mohammed. This was the exchange, with ABC’s presenter, Jonathan Karl:

Jonathan Karl: Did you authorize the tactics that were used against Khalid Sheikh Mohammed?
Dick Cheney: I was aware of the program certainly, and involved in helping get the process cleared, as the agency, in effect, came in and wanted to know what they could and couldn’t do. And they talked to me, as well as others, to explain what they wanted to do, and I supported it.
Jonathan Karl: In hindsight, do you think any of those tactics that were used against Khalid Sheikh Mohammed and others went too far?
Dick Cheney: I don’t.
Jonathan Karl: And on KSM, one of those tactics, of course, widely reported was waterboarding, and that seems to be a tactic we no longer use. Even that you think was appropriate?
Dick Cheney: I do.

As I explained in an article at the time, Cheney’s claim that he was merely responding to pressure from the CIA was patently untrue, as it was clear from at least November 2001 that the crucial decisions to hold prisoners without any rights whatsoever — which led inexorably to decisions that they could be interrogated illegally, and then to decisions that they could be tortured with impunity — originated in the Vice President’s Office. However, even without a clear admission by Cheney that he was responsible for establishing the program, his confession that he was intimately involved in approving plans to waterboard a prisoner in US custody establishes, beyond any doubt, that he was involved in approving the use of torture.

Nor are these the only occasions when senior officials have admitted that the Bush administration was involved in torture. In January, just a week before Barack Obama took office, retired judge Susan Crawford, the “Convening Authority” for the Military Commission trial system at Guantánamo (another brain-child of Cheney and his legal counsel, David Addington), admitted, in a Washington Post interview with Bob Woodward, that Mohammed al-Qahtani, a Saudi prisoner in Guantánamo, regarded as the potential 20th hijacker for the 9/11 attacks, had been tortured. “We tortured Qahtani,” Crawford, a protégée of Cheney and a close friend of Addington, admitted. “His treatment met the legal definition of torture.”

What was remarkable about this confession — beyond it being the first instance of a senior Bush administration official admitting that anyone had been tortured — was that al-Qahtani had not been subjected to waterboarding, but had, instead, been subjected, over a two-month period in late 2002 and early 2003, to a combination of other techniques, approved by defense secretary Donald Rumsfeld. For Crawford, however, it was the combined effect of these techniques — which included extreme sleep deprivation and sustained acts of humiliation — that led to her decision not to put al-Qahtani forward for a trial by Military Commission.

“The techniques they used were all authorized, but the manner in which they applied them was overly aggressive and too persistent,” she said. “You think of torture, you think of some horrendous physical act done to an individual. This was not any one particular act; this was just a combination of things that had a medical impact on him, that hurt his health. It was abusive and uncalled for. And coercive. Clearly coercive. It was that medical impact that pushed me over the edge,” and to conclude that it was torture.

Further evidence that senior officials were intimately involved with the use of torture by US forces came last week, in a detailed analysis by Mark Danner, in the New York Review of Books, of a leaked secret report by the International Committee of the Red Cross, based on interviews with the 14 “high-value detainees” — including KSM, Abu Zubaydah and Abdul Rahim al-Nashiri — who were transferred to Guantánamo in September 2006. Danner’s article did not cite confessions by senior officials that they had authorized the use of torture — although it did include the Red Cross’s own unprecedented conclusion 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” — but what it did establish, with a chilling clarity, is that every slight amendment to the horrors of the torture program had to be approved further up the chain of command

“It wasn’t up to individual interrogators to decide, ‘Well, I’m gonna slap him. Or I’m going to shake him. Or I’m gonna make him stay up for 48 hours,’” CIA interrogator John Kiriakou explained. “Each one of these steps … had to have the approval of the Deputy Director for Operations,” he continued. “So before you laid a hand on him, you had to send in the cable saying, ‘He’s uncooperative. Request permission to do X.’ And that permission would come.” And as Danner noted, soon after the first “high-value detainee,” Abu Zubaydah, was captured in March 2002, CIA officers “briefed high-level officials in the National Security Council’s Principals Committee,” including Vice President Dick Cheney, National Security Adviser Condoleezza Rice, and Attorney General John Ashcroft, who “then signed off on the [interrogation] plan.”

As a result of America’s commitment to the UN Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, which was presented to the US Senate by Ronald Reagan on May 20, 1988, we should, therefore, be applauding an announcement by the Obama administration that those responsible for authorizing the use of torture will imminently be facing prosecution. As the Convention makes clear, “Each state party shall ensure that all acts of torture are offences under its criminal law,” and shall, when alleged acts of torture are discovered, “submit the case to its competent authorities for the purpose of prosecution.” And under Article VI of the US Constitution, “all treaties made … under the authority of the United States shall be the supreme law of the land.”

Instead of prosecution, however, we have Sen. Leahy’s proposed “Nonpartisan Commission Of Inquiry,” and those calling for President Obama to appoint an Independent Prosecutor kept firmly outside the corridors of power.

So how did this happen, and what does it mean? Well, to be blunt, a “Nonpartisan Commission Of Inquiry” is politically useful because it implicitly acknowledges that, although senior officials in the Bush administration committed war crimes, they only did so because they believed that another major terrorist attack was imminent, and because they thought that only torture would enable them to “break” those who possessed vital knowledge that they would not disclose by any other means.

There are, of course, two major problems with this explanation: firstly, senior officials in the administration — including George W. Bush, Dick Cheney, David Addington (photo, left), Donald Rumsfeld and William J. Haynes II, the Pentagon’s general counsel — behaved with an arrogance that is, to my mind, unprecedented in American history, refusing to listen to the many critics (including, to name just two, the FBI and the Naval Criminal Investigative Service), who warned them that what they were doing — or were planning to do — was counter-productive, morally corrosive and illegal; and secondly, because, as the UN Convention Against Torture makes clear, “No exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency, may be invoked as a justification for torture.”

As commentators have been pointing out since the confessions of Dick Cheney and Susan Crawford, “International treaties which the US signs and ratifies aren’t cute little left-wing platitudes for tying the hands of America. They’re binding law according to the explicit mandates of Article VI of our Constitution” (Glenn Greenwald in Salon, on January 18). However, while the Obama administration is clearly unwilling to do what it should, the key to breaking this deadlock — beyond the responsibility that rests on every law-abiding American citizen to demand that no one (not even the President or Vice President of the United States) is above the law — can be found by looking at the reason that Dick Cheney felt so empowered to publicly declare his crimes before leaving office, which is also the reason that those who expected last-minute pardons of senior officials by President Bush were disappointed.

This key, as Cheney himself admitted, consists of the legal advice regarding the use of torture — and other crimes — that was given to senior officials by the Justice Department’s Office of Legal Counsel (OLC). These documents — some of which were recently released by the Obama administration’s Justice Department — include the notorious “Torture Memo” of August 2002 (PDF), which purported to redefine torture, described in the UN Convention as “any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person,” as, instead, an act producing pain of a kind “that would be associated with serious physical injury so severe that death, organ failure, or permanent damage resulting in a loss of significant body function will likely result,” and they were regarded as a “golden shield” by the administration, for good reason.

As Jane Mayer explained in her book The Dark Side, “The OLC plays a unique role in the federal government. Sometimes referred to as the Attorney General’s private law firm, its small but often brilliant staff of lawyers, many of whom are political appointees, issue opinions that are legally binding on the rest of the executive branch. If the OLC interprets the law in a certain way, unless the attorney general overrules it, the government must too. If the OLC says a previously outlawed practice, such as waterboarding, is legal, it is nearly impossible to prosecute US officials who followed that advice on good faith.”

It is for this reason, of course, that Dick Cheney stated, in his December interview with ABC News, “On the question of so-called ‘torture,’ we don’t do torture, we never have. It’s not something that this administration subscribes to. Again, we proceeded very cautiously; we checked, we had the Justice Department issue the requisite opinions in order to know where the bright lines were that you could not cross. The professionals involved in that program were very, very cautious, very careful, wouldn’t do anything without making certain it was authorized and that it was legal. And any suggestion to the contrary is just wrong.” It also explains why George W. Bush felt able to leave office without pardoning anyone responsible for war crimes.

However, the good news, for those who are less than happy living in a country where the highest officials in the land can get away with torture simply by being voted out of office, is that the legal advice prepared by the OLC for use by the Bush administration has been the subject of a four-year investigation, which began in 2003 when law professor Jack Goldsmith took over from Jay S. Bybee (now a judge on the Ninth Circuit Court of Appeals) as the head of the OLC. Goldsmith memorably withdrew many of the OLC’s most controversial memos before leaving the OLC just a year later, complaining, as Newsweek explained last month, that he was “astonished” by the “deeply flawed” and “sloppily reasoned” legal analysis in the memos — including the “Torture Memo” — that were written primarily by Bybee and by John Yoo, a lawyer in the OLC (and now a visiting professor at the Chapman University School of Law), “including their assertion … that the president could unilaterally disregard a law passed by Congress banning torture.”

According to Newsweek’s Michael Isikoff, who broke the story on the Rachel Maddow Show, H. Marshall Jarrett, the head of the Justice Department’s Office of Professional Responsibility (OPR), “confirmed last year he was investigating whether the legal advice in crucial interrogation memos ‘was consistent with the professional standards that apply to Department of Justice attorneys,’” and a draft of the report, submitted in the final weeks of the Bush administration, was apparently “causing anxiety among former Bush administration officials.”

This, it was clear, was because, as Isikoff explained, “OPR investigators focused on whether the memo’s authors deliberately slanted their legal advice to provide the White House with the conclusions it wanted.” A former Bush lawyer, speaking anonymously, added that he “was stunned to discover how much material the investigators had gathered, including internal e-mails and multiple drafts that allowed OPR to reconstruct how the memos were crafted.”

What this means, I believe, is that the investigators discovered not just how Yoo and Bybee — and, later, Stephen Bradbury, the OLC’s acting head from 2005 onwards — produced legal advice that was inconsistent with the OLC’s professional standards, but also how that advice was not produced independently, but in response to demands from Dick Cheney and David Addington, and as a result of close collaboration.

It is, I hope, the smoking gun that leads to the Office of Vice President Dick Cheney — and to David Addington — as it is abundantly clear that, far from maintaining distance between Cheney’s office and the OLC, the “war team” of those who believed in unfettered executive power, including Cheney, Addington, Yoo, Pentagon lawyer Timothy Flanigan, and White House counsel, and later Attorney General Alberto Gonzales, effectively conspired in unison to justify their actions, and I raise it again here, not because there have been any great new developments in the last month — although the Justice Department’s unlikely defense of John Yoo is worth looking at, as is a New York Times article about the “torture lawyers,” and a profile of Bybee in the Las Vegas Sun — but simply because it is far too important to be allowed to drop off the radar.

“No one is above the law,” Attorney General Eric Holder has repeatedly stated. If Holder means what he says, we must demand that the OPR’s report is released.

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 see here for my definitive Guantánamo prisoner list, published in March 2009.

As published exclusively on the website of the Future of Freedom Foundation.

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), 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) (all May 2009), Lawrence Wilkerson Nails Cheney’s Iraq Lies Again (And Rumsfeld And The CIA), and WORLD EXCLUSIVE: New Revelations About The Torture Of Ibn al-Shaykh al-Libi (June 2009). Also see the extensive archive of articles about the Military Commissions.

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

Crawford, a retired judge who served as general counsel for the Army during the Reagan administration and as Pentagon inspector general when Dick Cheney was defense secretary for George W. Bush’s father, has served as the Convening Authority for the Commissions since February 2007. In the interview, with Bob Woodward of the Washington Post, she explained why, last May, she had decided in the case of Mohammed al-Qahtani, a Saudi accused of trying and failing to become one of the 9/11 operatives, that she would not refer his case for prosecution.

“We tortured Qahtani,” she told Woodward. “His treatment met the legal definition of torture.”

The admission was extraordinary for a number of reasons, not least because it was the first time that a senior official in the administration had admitted that a prisoner had been tortured at Guantánamo (or anywhere else, for that matter). Last February, Gen. Michael Hayden, the director of the CIA, admitted in a Senate hearing that three “high-value detainees” — the supposedly senior al-Qaeda operatives Khalid Sheikh Mohammed, Abu Zubaydah and Abdul Rahim al-Nashiri — had been waterboarded in secret CIA custody, but although lawyers and torture experts are well aware that use of the technique — a form of controlled drowning — is torture, and that the Spanish Inquisition had explicitly referred to it as “tortura del agua,” senior government officials either equivocated or continued to deny that US forces had ever engaged in torture.

For the outgoing administration, Susan Crawford’s confession means that equivocations and denials are no longer feasible, and for Barack Obama’s new government it is difficult to see how criminal proceedings can be avoided. As Dahlia Lithwick and Philippe Sands explained in an article for Slate, under the terms of the UN Convention Against Torture (to which the United States is a signatory), all 146 countries who have signed up to the treaty

are under an obligation to “ensure that all acts of torture are offences under its criminal law.” These states must take any person alleged to have committed torture (or been complicit or participated in an act of torture) who is present in their territories into custody. The convention allows no exceptions, as Gen. Pinochet discovered in 1998. The state party to the Torture Convention must then submit the case to its competent authorities for prosecution or extradition for prosecution in another country.

They added, “For the Obama administration, the door to the do-nothing option is now closed,” and any lingering doubts that this is the case should have been dispelled two days after Crawford’s interview was published, when, at his Senate confirmation hearing, Eric Holder, Barack Obama’s choice for Attorney General, stated unambiguously, “Waterboarding is torture” (reiterating the position Obama had taken on ABC News on January 11), and proceeded to explain that it had been used as a torture technique during the Spanish Inquisition, by the Japanese in World War II, and in Cambodia under the Khmer Rouge, adding, “We prosecuted our own soldiers for using it in Vietnam.”

However, despite Eric Holder’s decisive contribution to the torture debate, the impact of Crawford’s confession does not end with its application to the torture of one particular prisoner or to the use of waterboarding. Although the administration attempted to redefine torture, in its notorious “Torture Memo” of August 2002, as the infliction of pain “equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death,” Crawford was clearly more inclined to support the definition in the Torture Convention, which declares torture to be “any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person.”

In describing al-Qahtani’s treatment as torture, for example, Crawford did not object to the use of waterboarding (to which, as far as we know, al-Qahtani was not subjected), but to “a combination” of other interrogation techniques, “their duration and the impact on Qahtani’s health,” as she explained to Woodward.

“The techniques they used were all authorized, but the manner in which they applied them was overly aggressive and too persistent,” she said. “You think of torture, you think of some horrendous physical act done to an individual. This was not any one particular act; this was just a combination of things that had a medical impact on him, that hurt his health. It was abusive and uncalled for. And coercive. Clearly coercive. It was that medical impact that pushed me over the edge,” and to conclude that it was torture.

Al-Qahtani’s treatment was severe, of course. As Time magazine revealed in an interrogation log (PDF) that was made available in 2005, he was interrogated for 20 hours a day over a 50-day period in late 2002 and early 2003, when he was also subjected to extreme sexual humiliation, threatened by a dog, strip-searched and made to stand naked, and made to bark like a dog and growl at pictures of terrorists. On one occasion he was subjected to a “fake rendition,” in which he was tranquilized, flown off the island, revived, flown back to Guantánamo, and told that he was in a country that allowed torture.

In addition, as I explained in my book The Guantánamo Files,

The sessions were so intense that the interrogators worried that the cumulative lack of sleep and constant interrogation posed a risk to his health. Medical staff checked his health frequently — sometimes as often as three times a day — and on one occasion, in early December, the punishing routine was suspended for a day when, as a result of refusing to drink, he became seriously dehydrated and his heart rate dropped to 35 beats a minute. While a doctor came to see him in the booth, however, loud music was played to prevent him from sleeping.

However, although the techniques that were applied to al-Qahtani were specifically approved for use on him by defense secretary Donald Rumsfeld, after senior officers at Guantánamo had requested approval for the use of harsher interrogation techniques, it’s clear that at least two other prisoners at Guantánamo were singled out for particularly abusive treatment: Abdullah Tabarak, a Moroccan regarded as one of Osama bin Laden’s bodyguards, who (before his unexplained release from Guantánamo) was repeatedly prevented from seeing representatives of the International Red Cross due to “military necessity,” and Mohamedou Ould Slahi, a Mauritanian who had met the 9/11 hijackers in Germany, whose torture (which was arguably even more severe than that endured by al-Qahtani) was most recently reported in an article in Der Spiegel.

Moreover, as was made clear in a Senate Armed Services Committee report published last month (PDF), the techniques to which al-Qahtani, Tabarak and Slahi were subjected — which included “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” — were not techniques reserved solely for use on a handful of supposedly significant prisoners.

Instead, they were part of a deliberate policy of reverse engineering techniques taught to US military personnel “to withstand interrogation techniques considered illegal under the Geneva Conventions,” and “based, in part, on Chinese Communist techniques used during the Korean war to elicit false confessions,” which effectively became part of Guantánamo’s standard operating procedure during 2003 and 2004. According to a former interrogator who spoke to the New York Times for an article that was published in January 2005,

While all the detainees were threatened with harsh tactics if they did not cooperate, about one in six were eventually subjected to those procedures …The interrogator said that when new interrogators arrived they were told they had great flexibility in extracting information from detainees because the Geneva Conventions did not apply at the base.

To get some sense of perspective, the maximum number of prisoners that Guantánamo held at any one time was around 660, which means that, according to the former interrogator’s estimate, around 110 prisoners were subjected to these techniques. And while they may not have been applied quite as harshly as they were to al-Qahtani (although the many accounts I report in The Guantánamo Files are almost as harrowing), what Susan Crawford’s confession makes abundantly clear is that, when examining the use of torture, it is not appropriate simply to look at the application of each technique in isolation (when they may not have crossed the torture threshold), but to consider that in most cases their use was combined, as it was with al-Qahtani.

Nor is this the end of the story. In response to a question from Woodward about whether she believed that Khalid Sheikh Mohammed and four other prisoners charged in connection with the 9/11 attacks were tortured, Crawford stated, “I assume torture,” even though, as Woodward explained, she “declined to say whether she considers waterboarding … to be torture.” She then attempted to explain that she “let the charges go forward” in the 9/11 trial “because the FBI satisfied her that they gathered information without using harsh techniques,” using so-called “clean teams” who gained fresh confessions without using torture.

However, although she also attempted to make a distinction between Khalid Sheikh Mohammed and Mohammed al-Qahtani by stating that “Mohammed has acknowledged his Sept. 11 role in court, whereas Qahtani has recanted his self-incriminating statements,” it is, frankly, disingenuous to claim that torture can be magically written off if a tortured prisoner apparently confesses of his own free will at a later date.

As a result, it is also apparent that Crawford’s confession infects the majority of the 19 cases currently scheduled for trial by Military Commission, and, moreover, that it has disturbing implications for the rest of the administration’s detention policies over the last seven years, including the widespread torture of prisoners in the US prisons at Kandahar and Bagram, before they were transferred to Guantánamo, the dozens of prisoners who were tortured in the “Dark Prison” and the “Salt Pit” (two secret CIA prisons in Afghanistan), the rest of the 14 “high-value detainees” transferred to Guantánamo from secret CIA prisons in September 2006, and the unknown number of other prisoners held in secret prisons run by the CIA or rendered for torture to prisons in third countries (PDF).

As if this were not enough, Crawford’s confession also affects the many thousands of prisoners in Afghanistan and Iraq, who have endured wartime detention policies in which the Geneva Conventions were replaced by the reverse engineering of “Chinese Communist techniques used during the Korean war to elicit false confessions,” and, of course, has disturbing ramifications for investigations into the as-yet unknown number of prisoners who have died in Afghanistan and Iraq (PDF) and in secret prisons as a result of the unfettered exercise of these techniques.

As the implications of all this percolate slowly through the nation’s consciousness, the only outstanding question that remains unanswered is why Susan Crawford chose to make her confession to Bob Woodward just days before the Bush administration leaves office, having never granted an interview before.

As a protégée of Vice President Dick Cheney, and a close friend of Cheney’s chief of staff David Addington (the prime architects, with Rumsfeld, of the Bush administration’s torture regime), it seems unlikely that she would have had some kind of Damascene conversion, but her interview was peppered with statements that appear, both on the surface and on closer inspection, to constitute a genuine confession. “I sympathize with the intelligence gatherers in those days after 9/11, not knowing what was coming next and trying to gain information to keep us safe,” she explained. “But there still has to be a line that we should not cross. And unfortunately what this has done, I think, has tainted everything going forward.”

If Crawford had an ulterior motive, it is not readily apparent. Elsewhere in the interview, for example, she complained that the Military Commissions should not have been empowered to accept coerced testimony, and complained about how “unprepared” the prosecutors were to bring cases to trial, and how she had had to force them to provide exculpatory evidence to the defense. She also complained about Donald Rumsfeld’s role in authorizing torture, and complained that the torture of al-Qahtani directly endangered US forces abroad. “It did shock me,” she said. “I was upset by it. I was embarrassed by it. If we tolerate this and allow it, then how can we object when our servicemen and women, or others in foreign service, are captured and subjected to the same techniques? How can we complain? Where is our moral authority to complain? Well, we may have lost it.”

She also said that, although she believed that President Bush was “right to create a system to try unlawful enemy combatants captured in the war on terrorism,” the implementation of the policy was flawed. “I think he hurt his own effort,” she explained. “I think someone should acknowledge that mistakes were made and that they hurt the effort and take responsibility for it. We learn as children it’s easier to ask for forgiveness than it is for permission. I think the buck stops in the Oval Office.”

And although she called al-Qahtani “a very dangerous man,” pointedly asked, “What do you do with him now if you don’t charge him and try him?” and handed the responsibility for dealing with him over to Barack Obama, this would have happened anyway. Perhaps — though this may be a naïve interpretation, and is certainly not meant to excuse her demonstrably poor performance as the Commissions’ Convening Authority — she had looked to the future and was establishing her position accordingly, in case, one day, a Special Prosecutor for war crimes comes knocking.

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.

As published exclusively on the website of the Future of Freedom Foundation.

See the following for a sequence of articles dealing with the stumbling progress of the Military Commissions: The reviled Military Commissions collapse (June 2007), A bad week at Guantánamo (Commissions revived, September 2007), The curse of the Military Commissions strikes the prosecutors (September 2007), A good week at Guantánamo (chief prosecutor resigns, October 2007), The story of Mohamed Jawad (October 2007), The story of Omar Khadr (November 2007), Guantánamo trials: where are the terrorists? (February 2008), Six in Guantánamo charged with 9/11 attacks: why now, and what about the torture? (February 2008), Guantánamo’s shambolic trials (ex-prosecutor turns, February 2008), Torture allegations dog Guantánamo trials (March 2008), African embassy bombing suspect charged (March 2008), The US military’s shameless propaganda over 9/11 trials (April 2008), Betrayals, backsliding and boycotts (May 2008), Fact Sheet: The 16 prisoners charged (May 2008), Four more charged, including Binyam Mohamed (June 2008), Afghan fantasist to face trial (June 2008), 9/11 trial defendants cry torture (June 2008), USS Cole bombing suspect charged (July 2008), Folly and injustice (Salim Hamdan’s trial approved, July 2008), A critical overview of Salim Hamdan’s Guantánamo trial and the dubious verdict (August 2008), Salim Hamdan’s sentence signals the end of Guantánamo (August 2008), High Court rules against UK and US in case of Binyam Mohamed (August 2008), Controversy still plagues Guantánamo’s Military Commissions (September 2008), Another Insignificant Afghan Charged (September 2008), Seized at 15, Omar Khadr Turns 22 in Guantánamo (September 2008), Is Khalid Sheikh Mohammed Running the 9/11 Trials? (September 2008), two articles exploring the Commissions’ corrupt command structure (The Dark Heart of the Guantánamo Trials, and New Evidence of Systemic Bias in Guantánamo Trials, October 2008), Meltdown at the Guantánamo Trials (five trials dropped, October 2008), The collapse of Omar Khadr’s Guantánamo trial (October 2008), Corruption at Guantánamo (legal adviser faces military investigations, October 2008), An empty trial at Guantánamo (Ali Hamza al-Bahlul, October 2008), Life sentence for al-Qaeda propagandist fails to justify Guantánamo trials (al-Bahlul, November 2008), Guilt by Torture: Binyam Mohamed’s Transatlantic Quest for Justice (November 2008), 20 Reasons To Shut Down The Guantánamo Trials (profiles of all the prisoners charged, November 2008), How Guantánamo Can Be Closed: Advice for Barack Obama (November 2008), More Dubious Charges in the Guantánamo Trials (two Kuwaitis, November 2008), The End of Guantánamo (Salim Hamdan repatriated, November 2008), Torture, Preventive Detention and the Terror Trials at Guantánamo (December 2008), Is the 9/11 trial confession an al-Qaeda coup? (December 2008), The Dying Days of the Guantánamo Trials (January 2009), Former Guantánamo Prosecutor Condemns Chaotic Trials (Lt. Col. Vandeveld on Mohamed Jawad, January 2009), Torture taints the case of Mohamed Jawad (January 2009), Chaos and Lies: Why Obama Was Right to Halt The Guantánamo Trials (January 2009), Binyam Mohamed’s Plea Bargain: Trading Torture For Freedom (March 2009).

And for a sequence of articles dealing with the Obama administration’s response to the Military Commissions, see: Don’t Forget Guantánamo (February 2009), Who’s Running Guantánamo? (February 2009), The Talking Dog interviews Darrel Vandeveld, former Guantánamo prosecutor (February 2009), Obama’s First 100 Days: A Start On Guantánamo, But Not Enough (May 2009), Obama Returns To Bush Era On Guantánamo (May 2009), New Chief Prosecutor Appointed For Military Commissions At Guantánamo (May 2009), Pain At Guantánamo And Paralysis In Government (May 2009), My Message To Obama: Great Speech, But No Military Commissions and No “Preventive Detention” (May 2009), Guantánamo And The Many Failures Of US Politicians (May 2009), A Child At Guantánamo: The Unending Torment of Mohamed Jawad (June 2009), A Broken Circus: Guantánamo Trials Convene For One Day Of Chaos (June 2009), Obama Proposes Swift Execution of Alleged 9/11 Conspirators (June 2009), Obama’s Confusion Over Guantánamo Terror Trials (June 2009).

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), The Insignificance and Insanity of Abu Zubaydah: Ex-Guantánamo Prisoner Confirms FBI’s Doubts (April 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) (all May 2009), Lawrence Wilkerson Nails Cheney’s Iraq Lies Again (And Rumsfeld And The CIA), and WORLD EXCLUSIVE: New Revelations About The Torture Of Ibn al-Shaykh al-Libi (June 2009).

For other stories discussing the use of torture in secret prisons, see: An unreported story from Guantánamo: the tale of Sanad al-Kazimi (August 2007), Rendered to Egypt for torture, Mohammed Saad Iqbal Madni is released from Guantánamo (September 2008), A History of Music Torture in the “War on Terror” (December 2008), Seven Years of Torture: Binyam Mohamed Tells His Story (March 2009), and also see the extensive Binyam Mohamed archive. And for other stories discussing torture at Guantánamo and/or in “conventional” US prisons in Afghanistan, see: The testimony of Guantánamo detainee Omar Deghayes: includes allegations of previously unreported murders in the US prison at Bagram airbase (August 2007), Guantánamo Transcripts: “Ghost” Prisoners Speak After Five And A Half Years, And “9/11 hijacker” Recants His Tortured Confession (September 2007), Former US interrogator Damien Corsetti recalls the torture of prisoners in Bagram and Abu Ghraib (December 2007), Sami al-Haj: the banned torture pictures of a journalist in Guantánamo (April 2008), Judge Orders Release of Guantánamo’s Forgotten Child (Mohammed El-Gharani, January 2009), Forgotten in Guantánamo: British Resident Shaker Aamer (March 2009).