On 25th Anniversary of UN Convention Against Torture, Khalid Sheikh Mohammed’s Lawyers Submit Case to Rapporteur

Exactly 25 years ago, on June 26, 1987, the UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment came into force, and in December 1997, the UN General Assembly proclaimed June 26 the International Day in Support of Victims of Torture, “with a view to the total eradication of torture and the effective functioning of the Convention against Torture.”

As is painfully clear today, despite the support of 150 countries, the use of torture is still rife, and many of the countries that claim to adhere to the Convention have, in fact, shown a cynical — and in some cases blatant — disregard for its provisions.

One of those countries is, of course, the United States of America, which, under President George W. Bush, cynically attempted to redefine torture so that it could be used on “high-value detainees” seized in the “war on terror” in a network of secret prisons, and, moreover, withdrew the protections of the Geneva Conventions from the prisoners in Guantánamo, who were also tortured, and also tortured prisoners in Afghanistan and Iraq — most notoriously in Bagram, the “Dark Prison” and the “Salt Pit” in Afghanistan and Abu Ghraib in Iraq, although its use was also widespread at other locations in Iraq.

To date, no one — beyond a few low-level personnel who did not design the abusive detention and interrogation regime that was introduced after 9/11 — has been held accountable for these crimes, and in the meantime, numerous torture victims — including 13 of the 14 “high-value detainees” who were delivered to Guantánamo in September 2006 from secret torture prisons run by the CIA, where they had been held for up to four and a half years — remain imprisoned, with no indication, for most of them, of when, if ever, they will even receive a trial.

One man who has been put forward for a trial is Khalid Sheikh Mohammed, the alleged mastermind of the 9/11 attacks, who, last month, was arraigned for his planned trial by military commission with four other “high-value detainees.” He, notoriously, was subjected to waterboarding — a form of controlled drowning and an ancient torture technique, regardless of the opinion of bent lawyers at the Justice Department — on 183 occasions.

This is an uncomfortable truth that two successive administrations — first that of George W. Bush, and now that of Barack Obama — have been trying to work out how to keep hidden during a trial, with the result that no one is in any hurry to actually have him tried.

Today, in recognition of the importance of the UN Convention Against Torture, his attorneys — who describe him as Khalid Shaikh Mohammad — revealed that on the eve of his arraignment on May 5, 2012, they filed a Letter of Allegation under the Convention Against Torture with Dr. Juan Méndez, the UN Special Rapporteur on Torture and Other Cruel, Inhuman, and Degrading Treatment.

Army Capt. Jason Wright, one of the military lawyers detailed to represent Mr. Mohammed, explained that “No human being should be tortured. In the period since 9/11, the US has misplaced its moral compass. Through accountability, we can hopefully find our way again, and pursue a path of rediscovery and redemption.”

In a statement, Mohammed’s lawyers also noted, “Under Special Rapporteur procedures, a Letter of Allegation is the first step in a UN investigation of claims of torture. The Letter of Allegation asks the Special Rapporteur to ‘initiate a full, fair, and impartial inquiry’ into the conduct of the United States and any other potentially complicit State Party to the Convention.”

This is an important submission, as it is crucial to remember that the prohibition on the use of torture is absolute — not to be used on anyone, even the alleged mastermind of the 9/11 attacks. In America’s case, it remains a disgrace that John Yoo and Jay S. Bybee cynically bent the law out of shape in a wretchedly unprincipled attempt to redefine torture, that neither they nor the senior officials who also approved the use of torture (up to and including George W. Bush) have been held accountable, and that the US completely disregarded Article 2.2 of the Convention — the one that is particularly applicable to the aftermath of a disaster like 9/11 — which states, “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 of torture.”

Below are the first two pages of the submission by Khalid Sheikh Mohammed’s lawyers:

Subject: Letter of Allegation Against the U.S. and any Other Undisclosed Potentially-Complicit State Party

Dear Mr. Méndez,

We are the defense attorneys for Mr. Khalid Shaikh Mohammad, a Pakistani national who has been tortured by the U.S. Government.

After subjecting Mr. Mohammad to torture and cruel, inhuman, and degrading treatment following his capture on March 1, 2003  in Rawalpindi, Pakistan, the U.S. Government has silenced him. No one without a Top Secret security clearance is allowed to meet with him or speak to him. His defense attorneys are told to treat his every word as “presumptively Top Secret,” especially if it relates to: allegations involving (i) the location of secret detention facilities, (ii) the identity of potentially cooperating foreign governments, (iii) the identity of U.S. or foreign personnel involved in the capture, detention, transfer, or interrogation of detainees, (iv) interrogation techniques as applied to specific detainees, and (v) conditions of confinement. The U.S. Government will not even allow Mr. Mohammad to speak with his own family.

On April 4, 2012, the U.S. Government evinced its intent to impose the final silence on Mr. Mohammad. Prosecutors formalized capital charges against him and seek to execute him, after conducting a trial — a trial that lacks legitimacy to such an extent that were he to be acquitted, the U.S. would not release him, but would hold him indefinitely until he dies of natural causes.

“For generations, America has served as a beacon of hope and freedom for those outside her borders.” — Spencer Bachus

Sadly, this is no longer true. The U.S. has demonstrated to the World that it can act with impunity outside her borders, and has sanctioned torture practices for States that will define this century. For the current generation of “those outside her borders,” America’s beacon is now Guantánamo — not the shining torch on the hill, but a siren of detention and despair.

The U.S. Government seeks to close this painful and dark chapter in our Nation’s history by killing Mr. Mohammad after a show trial.

There is a better way. This chapter can end in hope — hope for torture victims around the world that even powerful States like the U.S. can be held accountable for torture.

We hope that this Letter of Allegation against the U.S. and any other alleged, undisclosed potentially-complicit State Party will initiate a full, fair, and impartial inquiry. We submit the attached Letter of Allegation as Mr. Mohammad’s defense attorneys to stop the politics of impunity — no human, be they inside or outside America’s borders, should be subject to torture, and other cruel, inhuman, or degrading treatment. We invite you to meet with Mr. Mohammad in Guantánamo Bay at your earliest possible opportunity in furtherance of this important inquiry.

Should you accept this important Letter of Allegation, we expect that the U.S. Government may deny you confidential access to Mr. Mohammad in violation of the Convention Against Torture. If this is the case, please keep us apprised of the situation so that we may assist as appropriate and necessary.

Respectfully Submitted,

Counsel for Mr. Mohammad

David Nevin
Lead Defense Counsel
Nevin Benjamin McKay & Bartlett, LLP

Derek A. Poteet
Major, U.S. Marine Corps
Defense Counsel
Department of the Defense
Office of the Chief Defense Counsel

Jason D. Wright
Captain, U.S. Army
Defense Counsel
Department of the Defense
Office of the Chief Defense Counsel

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 April 2012, “The Complete Guantánamo Files,” a 70-part, million-word series drawing on files released by WikiLeaks in April 2011, and details about the documentary film, “Outside the Law: Stories from Guantánamo” (co-directed by Polly Nash and Andy Worthington, and available on DVD here — or here for the US). Also see my definitive Guantánamo habeas list and the chronological list of all my articles, and please also consider joining the new “Close Guantánamo campaign,” and, if you appreciate my work, feel free to make a donation.