Torture: The Elephant in the Room at Guantánamo’s Military Commissions

For seven and a half years now, I have watched as the United States has tried and failed to make its trial system at Guantánamo — the military commissions — function in a way that has any kind of legitimacy.

That, however, is impossible, because the trials involve made-up war crimes, invented by Congress, and, as we see on a regular basis when pre-trial hearings are held in the cases of Khalid Sheikh Mohammed (KSM) and four other men accused of involvement in the 9/11 attacks, because there is an unresolvable tension at the heart of the most serious trials — those involving the “high-value detainees,” like KSM and his co-defendants, and also Abd al-Rahim al-Nashiri, another “high-value detainee” charged with involvement in the bombing of the USS Cole in 2000, all of whom were held — and tortured — in secret “black sites” run by the CIA in countries including Thailand and Poland.

This tension was highlighted in “You Can’t Gag Somebody and Then Want to Kill Them,” an article for the Huffington Post last week by Katherine Hawkins, a researcher and lawyer who recently worked as the Investigator for the Constitution Project’s Task Force on Detainee Treatment, whose powerful report I discussed here.

As Hawkins explained, in the military commissions, “the US government has two conflicting objectives. The prosecution is trying to execute six former high value CIA detainees for their role in September 11 and the bombing of the USS Cole. It is also trying to conceal the details of defendants’ torture in CIA custody, and its lasting medical and psychological effects.”

She added:

This is a problem, because the defendants’ torture is the most crucial factor weighing against a death sentence. Cheryl Bormann, the lawyer for defendant Walid bin Attash, argued in court Wednesday that “[y]ou can’t gag somebody and then want to kill them … As a death-penalty lawyer, and under the Eighth Amendment, I’m required to investigate every aspect of mitigation.” But “[e]verywhere I turn in investigating this issue, we hit a brick wall. And we hit a brick wall in large part because of the classification regime that we operate under.” Borman said, “[i]f you really want to have a fair trial and execute them, then you have to ungag them.”

At issue is a protective order issued on December 20, 2012 by the chief judge of the commissions, Col. James L. Pohl, accepting prosecutors’ call for unclassified discovery materials to be the subject of a protective order, because it “contains information that, if disseminated without authority, could pose a threat to public safety and national security and could implicate the privacy interests of the Accused and third parties.”

However, lawyers for the prisoners argue that the protective order violates the UN Convention Against Torture, specifically through Judge Pohl’s acceptance, as Katherine Hawkins put it, that “the defendants’ ‘observations and experiences’ of torture at CIA black sites are classified.” The men’s lawyers point out that the ban “violates the Convention Against Torture’s requirement that victims of torture have ‘a right to complain’ to authorities in the countries where they are tortured, and makes the commission into ‘a co-conspirator in hiding evidence of war crimes.'”

This is a powerful point, although the authorities’ obsessive desire for self-protection when it comes to dealing with accountability for torture, of course, is the reason that the gag order was implemented in the first place.

As Hawkins points out, it is not just the men’s lawyers who object to the protective order. She writes:

The ACLU has called the restrictions on detainees’ testimony “chillingly Orwellian.” Earlier this year, the Constitution Project’s bipartisan, independent Task Force on Detainee Treatment … found that the military commissions’ censorship of detainees’ descriptions of their own torture could not be justified on grounds of national security, and violated “the public’s First Amendment right of access to those proceedings, the detainees’ right to counsel, and counsel’s First Amendment rights.”

She also noted that the European Parliament has recently passed a resolution calling on the US “to stop using draconian protective orders which prevent lawyers acting for Guantánamo Bay detainees from disclosing information regarding any detail of their secret detention in Europe.”

At the heart of the secrecy is the CIA’s desire to protect itself — or the Obama administration’s desire to help the CIA protect itself — which has been ongoing since, early in his presidency, in April 2009, Barack Obama briefly showed an interest in transparency and accountability, and, as Hawkins put it, “declassified four Office of Legal Counsel (OLC) opinions that described in graphic detail the brutal techniques that the CIA used against captives after September 11, because in his judgment their release was ‘required by the rule of law.'”

The administration was clearly warned that further intrusions were inadvisable after that hugely important release of documents, and that “requirement” involving the rule of law has never been mentioned again. Nowadays, as Hawkins describes it, “the administration takes the position that the release of the OLC memos only declassified the CIA’s use of torturous interrogation techniques ‘in the abstract.'” When it comes to details of any individual prisoner’s treatment in CIA custody, everything remains classified.

The CIA pretends that any disclosures about what was involved in the interrogations of these men would “provide future terrorists with a guidebook on how to evade such questioning,” and “provide ready-made ammunition for al-Qa’ida propaganda,” conveniently ignoring that the problem is not to do with interrogations and secrets, but with the use of torture, and accountability for those who break the law in authorizing it and implementing it — from President Bush down.

However, as a result of the arguments, as Hawkins notes, the courts routinely deny Freedom of Information Act requests for CIA documents about the torture program, and have “denied torture victims’ ability to sue for damages.” She provides a salient example — the CIA Office of the Inspector General’s “98-page report on the homicide of Manadel al-Jamadi, the CIA ‘ghost detainee’ detainee whose corpse is shown in several of the Abu Ghraib photographs.” As she explains, “The CIA successfully argued that every single sentence of that report, and eleven other OIG reports on abuses in its detention and interrogation program, is classified.”

In addition, Hawkins notes, “Every lawsuit filed in US court by victims of CIA “rendition” to torture has been dismissed on national security grounds — including suits brought by detainees now widely acknowledged to have been completely innocent” — and, of course, in 2010, when, after years of investigation, OLC investigators wanted to censure John Yoo, the author of the “torture memos” and his boss Jay Bybee, for “professional misconduct,” the Obama administration allowed a veteran DoJ fixer to override the conclusions of their report, conceding instead that they had merely exercised “poor judgement” — a conclusion that carried no punishment.

As so to Guantánamo now, and the inescapable truth that, to do their job, the lawyers for Khalid Sheikh Mohammed and the other men tortured in CIA “black sites” must push for transparency, and for their clients to have their voices heard, however much prosecutors try to resist. As Hawkins noted, one of the prosecutors, Clay Trivett, “argued that the defendants’ attempt to disclose the details of their torture was a form of ‘graymail,’ and that the military commission lacked jurisdiction to enforce the Convention Against Torture or override executive classification decisions.” He added that the defense team “would have an opportunity to present relevant evidence of their clients’ treatment during the mitigation phase of the case (in secret, presumably).”

That, of course, only triggered the defense to reiterate that the pursuit of justice and the silencing of the defendants are incompatible. As Maj. Jason Wright, the military defense attorney for Khalid Sheikh Mohammed, explained, “the same government agency that tortured Mr. Mohammed is seeking to silence Mr. Mohammed.”

In addition, Cheryl Bormann, Walid bin Attash’s attorney, “noted that the CIA had allowed former employee Jose Rodriguez to publish detailed factual claims about individual detainees’ interrogations, even as it censored defendants’ statements about their own treatment.”

Throughout the week’s hearings, the focus repeatedly returned to torture. On Wednesday, James Connell, the lawyer for Ammar al-Baluchi (aka Ali Abd al-Aziz Ali), a nephew of KSM and one of the five co-defendants in the 9/11 trial, said that his client “suffered a head injury in CIA custody that caused memory loss and delusions,” as the Miami Herald described it, a fact that has not been publicly disclosed before.

On Friday, 14 lawyers for the five men in the 9/11 trial made public a letter they had written to President Obama replaying the same themes. As Deutsche Welle described it, they argued that the secrecy surrounding the CIA’s Rendition, Detention and Interrogation program (RDI) was “being used cover up evidence of torture and is therefore preventing their clients from receiving a fair trial.”

The lawyers wrote, “Quite simply, the classification of the RDI program is suppressing evidence, suppressing the truth, and ultimately will suppress any real justice.”

As Deutsche Welle also noted, the 9/11 trial “had been slated to begin September 14. However, on Friday, it was pushed to 2015, with issues such as treatment of the defendants and complaints of attorney-client privilege violations [which I covered here] delaying proceedings.”

As the long and unjust process grinds on, it is interesting that Katherine Hawkins noted, at the start of the week, that “[t]he only point that the prosecution, defense, and Judge James Pohl agreed on was that President Obama had the authority to resolve these issues.” As Judge Pohl stated, “If the President of the United States wants to declassify this information, he certainly can and we would not be having this discussion.”

Obama, however, is not interested. When Hawkins emailed National Security Council spokeswoman Caitlin Hayden to ask “what the White House role was in resolving classification disputes in military commissions, and whether anyone in the administration could override the CIA’s classification decisions,” Hayden replied that the White House “does not play a role in determining the classification of filings at the military commissions, or the classification of information presented orally at commission hearings. I’d refer you to DoD, who is responsible for the military commissions process.”

“Responsible” may be too strong a word, as no one is taking responsibility for the problems apparent throughout last week’s pre-trial hearing — that you can’t prosecute prisoners tortured by the US in secret facilities run by the CIA while gagging those same prisoners. That conflict needs to be brought to an end — through transparency, and not through more secrecy.

Andy Worthington is a freelance investigative journalist, activist, author, photographer and film-maker. He is the co-founder of the “Close Guantánamo” campaign, and 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. He is also the co-director (with Polly Nash) of the documentary film, “Outside the Law: Stories from Guantánamo” (available on DVD here — or here for the US).

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