Using Evidence from Water Torture to Hold Detainees at Guantanamo

Originally posted at FDL/The Dissenter

A few weeks ago, Truthout published an article that examined a number of instances of water torture, including evidence of near-drowning, on prisoners held by the Department of Defense. A second article, with further documentation, including other cases of submersion in water and also extreme forms of "water dousing," will be coming out soon. But not everything can be squeezed into even two articles.

One of the more egregious examples of water torture that I found in my investigations wasn't conducted by DoD, but was used by Egyptian interrogators contracted to torture U.S. rendition victim Mamdouh Habib. Habib was an Egyptian born Australian Muslim who was renditioned from Afghanistan to Egypt in late 2001 or early 2002. He has written a book about his experiences, My Story: The Tale of a Terrorist Who Wasn't. Earlier this year, Habib filed suit in Egypt against former intelligence chief, Omar Suleiman, a long-time ally of the United States.

According to a 2005 article in The Age, Habib declared in an affadavit that in Egypt he had been placed in a room by Egyptian authorities. The torturers would "gradually fill it with water, leaving only his head exposed and forced him to stand on tiptoe for hours."

In his memoir, My Story, Habib further described his experience in the water-filled room. "Every time I began to drown," Habib wrote, "they hauled me out, revived me, and put me back in.... I got to the stage where I didn't care anymore; I'd relax and close my eyes and start to drown, hoping I would die. I don't know how many days this went on for."

Habib also reports that one room he was put in had "electrified water."

While researching the subject of water torture in general, I discovered that in Habib's Combatant Status Review Tribunal (CSRT) hearing at Guantanamo (PDF), the tribunal specifically used statements drawn from Habib during torture, including the water torture described above, to identify him as an "enemy combatant."

Judge Green described the case of Mamdouh Habib, who alleged that he had been sent by the United States to Egypt for interrogation where he was subjected to severe beatings, locked in handcuffs in a room that gradually filled with water to a level just below his chin as he stood for hours on the tips of his toes, and that he was suspended from a wall with his feet resting on an electrified cylindrical drum. Mr. Habib alleged that, while undergoing this treatment, he admitted to doing many things he had never done.... Without resolving the accuracy of Mr. Habib’s allegations, the CSRT relied on the statements that he made while in Egypt and concluded that he was an enemy combatant.

Now this might not be news to many people, as the issue of using tortured evidence at both the CSRTs and the Military Commissions, including waterboarding or other water-type tortures, has long been an issue among human rights activists and critics of U.S. detention and torture policies. But one can become inured to such things, unaccustomed to reading about what kind of torture produced the evidence.

The CSRT panels, which consist of three military officers, were instituted after the Supreme Court rulings in Hamdi and Rasul in June 2004. According to a CSRT "fact sheet," the hearings were supposed to provide an "opportunity for detainees to contest their designation as enemy combatants, and thereby the basis for their detention."

The CSRTs were amply criticized by human rights groups. Human Rights First summarized some of their main problems:

The CSRTs fail to meet fair hearing standards in several ways:
-- There is no meaningful way for a detainee to challenge a CSRT’s determination as he has little or no access to witnesses or classified information on which the determination to detain is based.
-- The CSRT can rely on information obtained through unlawful methods, including information coerced from detainees who were subjected to torture or cruel, inhuman degrading treatment. Because CSRTs can also rely on secret evidence, the fact that evidence is obtained illegally, including through torture, might never be known.
-- The CSRTs lack an effective remedy as they are not mandated to release a detainee who is not designated as an enemy combatant.

They also deny the detainee the right to counsel, the right to call witnesses, and the right to present evidence. The detainee has no right to an impartial hearing.

In 2008, in a landmark ruling, Boumediene v. Bush , Guantanamo prisoners were supposedly granted actual habeas rights in U.S. courts, which were believed at the time to redress the problems with the CSRTs. But, as Andy Worthington noted in an article last month, the ruling has been effectively gutted.

The courts’ failure has come about largely because a number of judges in the D.C. Circuit Court, where appeals against the habeas rulings are filed, have revealed themselves to be at least as right-wing as the architects of the “war on terror” in the Bush administration. Led by Judge A. Raymond Randolph, whose previous claim to fame on national-security issues was that he supported every piece of Guantánamo-related legislation that was subsequently overturned by the Supreme Court, the Circuit Court has, in the last year, succeeded in gutting habeas corpus of all meaning, when its relief is sought by any of the 171 men still held at Guantánamo....

... judges have whittled away at the lower courts’ demands that the government establish its case “by a preponderance of the evidence,” which is a very low standard in the first place; and secondly, because the Circuit Court has reinforced the misconception at the heart of the “war on terror,” almost delighting, it seems, in failing to acknowledge that soldiers are different from terrorists.

In fact, despite the Supreme Court’s attempt to recognize rights of the prisoners, both soldiers and terrorists are still, essentially, held at Guantánamo as a category of human being with almost no rights at all — what George W. Bush notoriously referred to as “unlawful enemy combatants."

While some detainees have won habeas cases due to evidence thrown out because of torture, as in the case of Uthman Abdul Rahim Mohammed Uthman last year, others, like Tawfiq al-Bihani, have not been so lucky. -- For more on the death of habeas in the D.C. Circuit, see this posting by bmaz over at emptywheel.net.

Meanwhile, the CSRT rules and procedures remain in place under Obama. DoD's official tribunal procedures can be accessed here (PDF).

The last major change occurred in December 2005, when as part of the Detainee Treatment Act the law stated " a Combatant Status Review Tribunal or Administrative Review Board, or any similar or successor administrative Tribunal or board, in making a determination of status or disposition of any detainee under such procedures, shall, to the extent practicable, assess-- (A) whether any statement derived from or relating to such detainee was obtained as a result of coercion; and (B) the probative value (if any) of any such statement."

But, as was pointed out in a Seton Hall study, "No-Hearing Hearings" (PDF), these changes came after the CSRT hearings were mostly complete. The study added, "While there is no way to ascertain the extent, if any, that witness statements might have been affected by coercion, fully 18% of the detainees alleged torture; in each case, the detainee volunteered the information rather than being asked by the Tribunal or the personal representative. In each case, the panel proceeded to decide the case before any investigation was undertaken."

But the issue is all forgotten today, just like the torture endured by Habib, and the thousands tortured by the U.S. military and intelligence agencies, and their allied forces. Good for a historical look, and that's all.