US Government Classifies Term "America's Battle Lab' in War on Terror" in Pentagon Report

The Department of Defense, after consultation with the CIA, the Joint Chiefs of Staff and the Defense Intelligence Agency, has released via Mandatory Declassification Request an early Pentagon study of intelligence operations at Guantanamo (along with accompanying slide presentation). It is very heavily redacted, with whole pages blanked out.

But even more, DoD and its "consultants" have seen fit to classify material that was already made public during a much-reported Senate investigation, including the controversial assertion that interrogations at Guantanamo constituted an experimental "battle lab" for treatment of and interrogations on prisoners captured in the administration's newly-minted "global war on terror."

When the Senate Armed Services Committee (SASC) published their report, "Inquiry in the Treatment of Detainees in U.S. Custody," in November 2008, Section III was titled, "Guantanamo Bay as a "Battle Lab" for New Interrogation Techniques." The quote was taken from a 2002 report commissioned by the Joint Chiefs of Staff on intelligence operations at Guantanamo's new prison for "war on terror" prisoners.

The SASC report referred to the JSC study as the "Custer report," named after Colonel John P. Custer, then-assistant commandant of the U.S. Army Intelligence Center and School at Ft. Huachuca, who led the review team for the Joint Chiefs. The report stated, "In his report, COL Custer referred to GTMO as 'America's "Battle Lab"' in the global war on terror, observing that 'our nation faces an entirely new threat framework,' which must be met by an investment of both human capital and infrastructure."

Despite the fact the portions of the Custer Report quoted above were not classified in the SASC report, there are no comparable quotations or remarks in the Custer Report or the slides released via MDR request. Because there are so many redactions in the report itself, it is impossible to know which agency did the classification, or what FOIA "exception" was used to justify this specific instance of censorship.

The Senate report also documented use of similar characteristic language from two Guantanamo commanders, Major General Mark Dunleavy and Major General Geoffrey Miller.

The Senate committee would conclude that psychologists at the military's SERE schools, and possibly special forces, along with their commanding officers and some legal officials, had colluded in creating a new and untested form of interrogation that amounted to abuse and torture of prisoners. While they did not say so, this program ran concurrently with the CIA's notorious "enhanced interrogation" program, and many of the techniques used overlapped between CIA and DoD, including use of isolation, sleep deprivation, stress positions, physical abuse, and sensory deprivation and overload.

The redactions in the Custer report are currently under appeal with the Office of the Secretary of Defense, who told me in an October 23, 2014 letter it is "coordinating this appeal with the Central Intelligence Agency, Defense Intelligence Agency, and Joint Staff."

"Negative connotations"

The "Battle Lab" term was viewed with alarm by military investigators from the Criminal Investigative Task Force(CITF), which DoD had assembled from investigators from the Army, Navy, Marines and Air Force. The SASC quoted CITF chief, Colonel Britt Mallow, who provided written testimony to the Senate committee:

MG Dunlavey and later MG Miller referred to GTMO as a "Battle Lab" meaning that interrogations and other procedures there were to some degree experimental, and their lessons would benefit DOD in other places. While this was logical in terms of learning lessons, I personally objected to the implied philosophy that interrogators should experiment with untested methods, particularly those in which they were not trained.

Mallow's deputy, Mark Fallon, concurred, telling the SASC "CITF did not concur with the Battle Lab concept because the task force 'did not advocate the application of unproven techniques on individuals who were awaiting trials.... 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."

Told that the FOIA release of the Custer report had censored use of the term "battle lab," Fallon told this author he was "very disappointed" at the extent of the redactions in the FOIA version of the report.

"I was privy to the initial report when it was first published," Fallon wrote in a March 6 email, "and in fact, one of the factors that contributed to the need for such a review were the complaints the CITF had made to the chain of command about the activities and actions associated with detainee operations and interrogations onboard Guantanamo Bay, Cuba.

"Just as the Senate Select Committee on Intelligence (SSCI) found when they were staffing the release of the Torture Report, redactions are often to avoid embarrassment and not based on legitimate national security purpose.... In fact, the 2008 SASC hearings and report contained specific information about Col Custer’s report about interrogations at Guantanamo...

"Having spent more than 30 years working national security issues, including investigating unauthorized disclosure of classified information and espionage related matters; there are two resounding themes that spanned across those decades. One was the over classification of information that is not based on legitimate national security interests and the other is the lack of accountability for the over classification of material.

"In the aftermath of the 9/11 attacks, we did some things that are contrary to our values and we can neither hide from them nor redact them from the record. Our Nation has always grown stronger when we have confronted our failings and learned from them. It’s time to illuminate the darkness on this dark chapter and to once again be the beacon for human rights and American values."

Intelligence Contingency Funds

The Custer report as released is not without some interesting value. For one thing, it describes the recommendation for the founding of a "Terrorism University" at Guantanamo, meant to "provide a common orientation curriculum for personnel assigned to the GTMO operation." Personnel who have contact with detainees would be trained prior to their deployment. "Interrogators and debriefers who have worked at [redacted] detention center should be sent to "TU" as advisors/instructors," the document states.

Even more interesting is the reports discussion of use of "Intelligence Contingency Funds." Much of the section on this issue is, as is most of the document, censored. However, the intelligence officials who undertook the August 2002 review at Guantanamo were clearly unhappy about the facilities at the Cuba-based naval prison, citing them "too small for current and projected [nearly a line redacted] intelligence operations."

Military intelligence officials recommended that the Joint Chiefs work with the House and Senate intelligence committees "for an emergency intelligence appropriation to fund construction..." of updated facilities.

It is not generally known that the Congressional intelligence committees, ostensibly formed to provide oversight on the actions of the CIA and other intelligence committees (while SASC is supposed to be responsible for military intelligence oversight), act dually to provide appropriations for intelligence operations. Indeed, I have never seen it reported on.

But on its web servers, the CIA has a history online, L. Britt Snider's "The Agency and the Hill," which discusses the development of this aspect of the intelligence committees. (See especially its Chapter 6, "Program and Budget."

The import of this information cannot be clearer. Whatever its oversight functions and actions, the House and Senate intelligence committees clearly were involved in funding "America's 'Battle lab'" of torture.

Intel Agencies' Curiosity about "the limits of the human spirit"

In January 2015, the Seton Hall University School of Law, Center for Policy and Research, put out a report, "Guantanamo: America's Battle Lab," which amplified the points made above. The report (PDF) documented how an experimental program of torture had been implemented via a secret, unacknowledged Special Access Program (SAP), with no congressional oversight. (Strangely, the report failed to mention how the Custer report also used the "battle lab" language.)

The Seton Hall investigators summarized their findings:

The Center for Policy and Research has discovered the disturbing truth behind the purpose of GTMO. Instead of being used primarily as a detention facility, GTMO was designed and operated by Intel predominately as America’s Battle Lab—a facility where U.S. intelligence personnel could coordinate worldwide interrogation efforts and have unfettered control over persons in U.S. custody....

America’s most notorious detention facility was covertly transformed into a secret interrogation base designed to foster intelligence’s curiosity on the effects of torture and the limits of the human spirit....

... GTMO truly served as the think tank and center for experimentation in exploring interrogation techniques and training other military officials in facilities across the globe. In this sense, America’s Battle Lab served as the heart of worldwide interrogation testing and training.

"Murder at Camp Delta"

The discovery of the Gitmo SAP (or SAPs) was narrated in the first person, in the form of an odyssey though the maze of Guantanamo prison blocks and secret black sites taken by former Guantanamo prison guard Joseph Hickman, as described in his new book, Murder at Camp Delta: A Staff Sergeant's Pursuit of the Truth About Guantanamo Bay. Hickman was also a senior researcher on the Seton Hall study.

In June 2006, Hickman was eyewitness to lies told by high military officials about what happened when three young men were supposedly discovered dead by suicide. While at first he found the idea that command authorities or the Naval Criminal Investigative Service could be covering up a crime too difficult to believe, when a fourth detainee allegedly was found hanged in his cell nearly a year later, he realized that the evidence of his eyes and of his heart could be ignored no longer. The remainder of his extraordinary book details Hickman's own investigation into the deaths of the three 2006 "suicides."

Hickman cites many of the details found in the Seton Hall study, but unlike the documentary approach of the latter, the former guard's story puts you right in the middle of the investigation.

According to Hickman: "... by the time I'd gathered and sifted though all the relevant documents, I realized that all of us who arrived there, even Admiral Harris, had entered an intelligence operation in which no normal military rules or codes applied.

"Instead of order and discipline, the authorities behind it aimed to create 'controlled chaos.' The people we were guarding weren't just suspected jihadists or enemy combatants, but men who'd been given drugs by our medical personnel intended to make them believe they were insane when they arrived."

Mefloquine and beyond

Hickman, like his collaborators at Seton Hall, concentrate on the bizarre use of the antimalaria drug mefloquine at high treatment doses on all incoming detainees, as an example of the way drugs were used to disorient and disable incoming detainees. But evidence from this author shows that not only melfoquine, but the antimalaria drug chloroquine was used on at least some of the detainees at points well past their entry into Guantanamo.

Similarly, some detainees, including one who died in 2006 and another in 2007, were possibly given mefloquine at other points in their incarceration for reasons that could only be to disable and harm them.

There is much left to explore and discover about the US torture programs of the CIA and the Defense Department, and the mysterious Special Access Programs, unaccountable to no one, that have undertaken a lawless program of torture and mayhem and murder that no one can guarantee isn't over yet. Indeed, a recent UN meeting of the Committee on Torture castigated the U.S. for the continued use of isolation, sleep deprivation and sensory deprivation, as allowed in Appendix M of the Army Field Manual.

There are two things lacking in moving forward on this issue: political will, and the lassitude of the press. Of these, political will must come first, as the torture issue is tied to two political parties, one of which has members who are strong proponents of torture, and the other which has a leader in the Oval Office who refuses to prosecute former government officials for war crimes, and lectures others not to dwell on these past crimes because they are in the past. (This did not stop Obama's DoJ for prosecuting Rasmea Odeh for crimes purportedly committed 40 years ago, or holding former American Indian Movement leader Leonard Peltier in prison for trumped up charges for 38 years.)

But political will also rests ultimately in the hands of the people themselves, and unless citizens of the United States start to take these issues with the seriousness they deserve, then the torturers will continue to go free. They are free now - from Guantanamo to Chicago, Illinois -- and they are getting ever more aggressive. Failure of will to prosecute and punish the torturers will result in the total loss of democratic rights and the descent into the kind of hell usually reserved for U.S. torture-client states, like Egypt.

Crossposted at FDL/The Dissenter

New Report: NCIS Hid Medical Evidence About Guantanamo Suicides

The Senior Medical Officer (SMO) at Guantanamo who attended at least two of three high-profile "suicides" at Guantanamo nearly eight years ago concluded at the time that, contrary to the conclusions of a later government investigation, the detainees did not die by hanging but by "likely asphyxiation" from "obstruction" of the airway. Moreover this SMO found a prisoner he examined and pronounced dead had "cotton clothing material in [his] mouth and upper pharynx." (See pgs. 5-7 of this PDF to view the SMO's original findings.)

The finding is consistent with other accounts, and with the theory the three prisoners died from a torture procedure known as "dryboarding," as researcher Almerindo Ojeda described in an 2011 story at Truthout.

Yet, unaccountably, the SMO was never formally interviewed by the Naval Criminal Investigative Service (NCIS), which had the Department of Defense mandate to investigate the supposed suicides. Furthermore, the SMO's account was not included in the NCIS final report. This new finding is one of a number of such discoveries detailed in a new investigatory report published last month by The Center for Policy and Research (CPR) at Seton Hall University School of Law.

Thus far, their report has been totally ignored by the press.

Other findings in CPR's new report either ignored or overlooked in previous investigations include the fact that guards who searched the deceased's rooms only hours prior to their deaths did "not discover anything that a detainee could hang himself with.... in the manner of the rumors" of their death by hanging.

CPR's report, "Uncovering the Cover-ups: Death in Camp Delta," was supervised by Seton Hall law professor (and attorney for some Guantanamo detainees) Mark Denbeaux, and co-written by Charles Church, Ryan K. Gallagher, Adam Kirchner and Joshua Wirtshafter. Joseph Hickman, who was at Guantanamo at the time of the deaths, and who figured so prominently in Scott Horton’s January 2010 Harper’s article, “The Guantanamo Suicides," acted as lead investigator. A full PDF download of the paper is available at this link.

This article will summarize CPR's findings, but it is highly recommended that readers study the entire report.

Newly Uncovered Documents

Last month, Scott Horton wrote an article at Harpers Magazine, "The Guantanamo 'Suicides," Revisited," which reproduced and annotated a document that had been suppressed in the Naval Criminal Investigative Service (NCIS) release of documents concerning their investigation into three purported suicides at Guantanamo on June 10, 2006. The document, part of a group of documents associated with a separate Staff Judge Advocate investigation of the deaths, had sat unexamined on a DoD FOIA website for literally years, until both Seton Hall and Scott Horton brought it to the public's attention. The original can be found on pgs. 15-17 of this PDF.

The explosive document -- a sworn statement by Master of Arms Denny called to attend to the suicides that evening -- states a number of facts from a witness on the scene that directly contradicts the story promulgated by Guantanamo officials and the NCIS report into the deaths. (Denny was named by Horton, but not described by name in the CPR report.) Horton and CPR describe Denny's account in some detail, including the fact attempts to revive a still living "suicide" were not made for some time, and that cloth wrapped tightly around his neck was not removed.

Government authorities contend the three prisoners died in an act of simultaneous suicide by hanging, an act JTF Guantanamo Commander Harry Harris described only one day after the deaths as "asymmetrical warfare." It is this version of what happened that has been accepted by a wide section of the press. Horton's article surmises that the prisoners may have died at Guantanamo's "Camp No," also known as "Penny Lane," thought to be a special CIA black site at Guantanamo used to coerce prisoners, including through torture, to turn informants for the U.S. government.

CPR's report goes much farther than Horton's article in documenting exactly how the government pulled this document -- Exhibit 25 of the NCIS report -- and replaced it with random pages from elsewhere in the group of documents gathered in the course of the investigation. Detailed in Appendix D of the report, the work is an impressive piece of forensic research.

This deliberate suppression of information contrary to the government's story should be a matter of public outrage and congressional investigation, but the CPR report also shows how the Obama administration's Justice Department deliberately misled congressional queries about the report in the wake of the 2010 Harpers report and earlier Seton Hall CPR investigation and report, "Death in Camp Delta" (PDF).

Unfortunately, for reasons that are not clear at present, Horton's recent article, which drew upon work done by Seton Hall's (CPR), did not include reference to to a number of other new findings and documents CPR uncovered in their ongoing analysis of the Guantanamo deaths (including the SMO report). The documents describe how important evidence contradicting the official narrative were withheld from the NCIS report. Furthermore, when congressional representatives went to the Department of Justice to ask for an investigation, they were lied to about how long the investigation had taken, and whether or not there was evidence that showed something other than death by hanging.

According to the CPR Executive Summary, besides the findings discussed above, the new report concludes:

• Contrary to standard investigative protocol, NCIS never authenticated “suspected suicide notes.”

• Contrary to standard suspected suicide protocol, NCIS never investigated the behavior, state of mind, or emotional condition of the dead men during the minutes, hours, days, and weeks before they died.

• NCIS failed to investigate multiple irregularities in protocol, among them: tampering with the contents of cells where the men were reported to have died, as well as more than fifty discrete events so irregular that they had no specific designation in the log book, and that were so secret that their details were redacted which occurred for hours before the alleged crime scene was secured and investigated by NCIS....

• Contrary to extensive protocol, the Camp Commander ordered the cessation of video recording of the events.

Cover-up or "Conspiracy building"?

The most compelling evidence of a cover-up consists of contemporaneous reports that all three prisoners were found with socks or other cloth material shoved deep into their throats. It was this account of the deaths that Guantanamo authorities moved quickly to cover-up and replace with a story that the detainees had hanged themselves.

According to Horton's 2010 article, the Joint Detention Group Commander, Michael Bumgarner, gathered camp personnel hours after the deaths and told them "you all know" the prisoners had died from swallowing rags and choking to death, but the press would be told something different: the prisoners had died by hanging themselves.

In May 2011, Alex Koppelman, then writing for Adweek, but currently the News Editor for The Guardian/US, wrote an influential article criticizing Scott Horton for "conspiracy building." He decried the story about Baumgarner's speech about "rags" -- because Bumgarner denied to him having ever made it. Koppelman's account was later cited in a government legal brief used to counter a lawsuit by the relatives of two of the Guantanamo "suicides." I deconstructed Koppelman's account in a series of articles that examined his arguments in detail.

But the new evidence in Horton's article and the Seton Hall report demonstrates conclusively that multiple witnesses on the scene, including the Senior Medical Officer, found cloth material inside the deceased's mouths and throats. This was no "conspiracy building": the evidence was covered up.

Among many telling details in the new documents, Master of Arms Denny's account of how one detainee, ISN 093, Yasser Talal al Zahrani, was found alive even two hours after he supposedly hanged himself. Denny witnessed cloth matching a ligature placed around Zahrain's throat being wrapped around his hands:

I observed a Corpsman wrapping an altered detainee sheet... around the detainee’s right wrist. The other side of the material was bound to the detainee’s left wrist with approximately a foot of cloth in between. The cloth was not on the detainees [sic] wrists when the Camp 1 guards removed the handcuffs a few minutes earlier.

The fact all the "suicides" had their hands bound was supposed to be evidence of collaboration in the "asymmetrical warfare" that was simultaneous suicide. But Denny's account shows the "evidence" was being fabricated after the supposed suicides themselves.

The Seton Hall report deserves wide exposure and Congress must undertake its own investigation, as it's evident that DOJ and the Obama administration have no intention of looking further into what happened. But according to Seton Hall's Executive Director for Communications, Janet LeMonnier, attempts to get attention from multiple attempts at media outreach have garnered "very little interest," and CPR personnel are frustrated at the lack of response.

Even so, Mark Denbeaux told me in a phone interview that Seton Hall's investigations are going forward, and another report with even more new revelations is due out early next year.

Cross-posted from FDL/The Dissenter

Abu Zubaydah's Attorneys' Memo to the Military Commissions, and Convening Authority Reply

The following is taken from a PDF (h/t emptywheel) of a letter from the attorneys of Abu Zubaydah to the top military legal figure for the Military Commissions. The surprising substance of the letter, i.e., that Abu Zubaydah is requesting he be charged with crimes "at the earliest possible date," makes sense when you realize he has been held in U.S. custody for over ten years now.

In a pro forma May 17 reply (PDF) to Zubaydah's attorneys from Bruce MacDonald, the Military Commissions Convening Authority said that the decision to prosecute would first be made by the Office of the Chief Prosecutor, and that if charges were ever referred, "I will separately make my own, independent decision on whether to refer any sworn charges to trial by a military commission."

MacDonald also indicated that he knew that Zubaydah's attorneys were also pursuing a habeas case for their client in the U.S. District Court for the District of Columbia. For MacDonald, this "means a process, guaranteed by the United States Constitution to challenge the legality" of their client's incarceration. According to the Military Commissions official, Zubaydah is held "pursuant to the Authorization for the Use of Military Force... as informed by the principles of the law of war."

MacDonald, of course, never alludes to the fact that the habeas process in the D.C. District Court has become basically a joke, a hollow shell of form with no substance, as this May 1, 2012 study by the Seton Hall University Law School's Center for Policy and Reseach makes clear:

It is an open secret that Boumediene v. Bush’s promise of robust review of the legality of the Guantanamo detainees’ detention has been effectively negated by decisions of the United States Court of Appeals for the District of Columbia Circuit, beginning with Al-Adahi v. Obama....

After Al-Adahi, the practice of careful judicial fact-finding was replaced by judicial deference to the government's allegations. Now the government wins every petition. 

Given the fact-intensive nature of district court fact-finding, the shifting pattern of lower court decisions could only be due to an appellate court’s radical revision of the legal standards thought to govern habeas petitions, raising questions about whether the D.C. Circuit has in fact correctly applied [the Supreme Court decision in] Boumediene. 

Since his capture, Abu Zubaydah has spent years in secret CIA prisons, and even more years in solitary confinement at Guantanamo Bay. Moreover, Abu Zubaydah has been subjected to repeated torture, and his conditions of confinement currently amount at least to cruel, inhumane and degrading treatment of a prisoner.

The Zubaydah case is important for another reason, as he was the linchpin in a series of circumstances that engaged the CIA torture program in early 2002, and resulted in a series of infamous legal memos by the Bush Administration's Office of Legal Council, written by John Yoo, Jay Bybee, Stephen Bradbury and others. And yet, the actual facts behind the Zubaydah case remain enshrouded in mystery. Even the account of what happened to his missing eye remains classified... unknown.

Jason Leopold revealed in a March 2010 article that the U.S. government, in an unheralded court filing, "quietly recanted nearly every major claim the Bush administration made about Abu Zubaydah."

I've written some on the Zubaydah case, highlighting how "Abu Zubaydah was a primary subject of JPRA/SERE’s reverse-engineering of torture techniques, using the paradigm of psychologist and former American Psychological Association president Martin Seligman’s theory of 'learned helplessness.'"

In September 2009, I examined the so-called psychological profile of Abu Zubaydah, which was presumably used to sell in summer 2002 a certain image of Zubaydah to the OLC, who was then writing the first torture memos. Zubaydah's attorneys in the memorandum below also reference the picture of Zubaydah painted by the OLC, what I called in my article, the portrait of "a superman-terrorist."

Of course, Zubaydah was nothing like that. And above all, he is a man, a human being, held in indefinite detention by the U.S. state. I'm reprinting the full attorney document here for use by the public. Only the footnotes have been left out, and they can be referenced in the original document at this link.

For more on the Zubaydah case, see Andy Worthington's recent article, "Why No Trials for Abu Zubaydah and Seven Other “High-Value Detainees” in Guantánamo?"

10 May 2012

MEMORANDUM FOR The Convening Authority, Military Commissions

Subj: REQUEST FOR IMMEDIATE COMMENCEMENT OF ABU ZUBAYDAH’S MILITARY COMMISSION PROCEEDINGS

1. This letter requests that the Convening Authority immediately commence proceedings against our client, Zayn al-Abidin Muhammad Husayn (abu Zubaydah), ISN # 10016. Failure to act would raise serious questions about the integrity and legitimacy of the Convening Authority and, indeed, of the whole process established to try or release Guantanamo detainees.

2. Abu Zubaydah has been detained without a hearing for ten years. Since his capture on 28 March 2002 until the present day, there have yet to be any charges brought against him. There has been no court finding that he needs to be imprisoned, or that he was associated with al Qaeda, or that he committed any act of terrorism as the U.S. government has alleged in the past. To date, his repeated requests for legitimate evaluation of his case have been met with nothing but deafening silence. He now formally requests that the Convening Authority commence prosecution of him before a military commission at the earliest possible date.

3. The failure to convene abu Zubaydah’s military commission proceeding jeopardizes the legitimacy of the entire military commission structure. In September 2006, President Bush told a nationally televised audience that abu Zubaydah had been transferred from CIA to DoD custody so that he could be prosecuted in a military commission proceeding. Now, five and half years later, he has yet to be charged. No system that detains prisoners for years without charge can be legitimate. No system that only allows hearings in cases where the government can first secure a guilty plea, or guarantee a conviction, can be legitimate. No system that refuses to give a hearing because the truth will reveal enormous governmental over-reaching, illegal conduct, and false claims by our highest ranking officials can be legitimate. For the reasons discussed below, abu Zubaydah is entitled to the immediate commencement of his military commission proceedings.

4. This request for prosecution does not rely upon classified information. If the classified evidence corroborates the statements about abu Zubaydah made by some government officers, then a trial would provide the government with an easy victory. But if the classified evidence does not support their reckless hyperbole, this fact would explain why his long-sought hearing has been continually avoided. He simply requests the opportunity to test the government’s evidence and demonstrate in a legitimate setting why his detention and treatment during detention have been unwarranted, and that he is innocent of any crimes.

Why Has Abu Zubaydah Yet to Be Prosecuted Despite President Bush’s Statements?

5. Nearly six years ago, President Bush announced that abu Zubaydah and thirteen other socalled high-value detainees were to be tried by a military commission:

So I’m announcing today that Khalid Sheikh Mohammed, abu Zubaydah, Ramzi bin al-Shibh, and 11 other terrorists in CIA custody have been transferred to the United States Naval Base at Guantanamo Bay. They are being held in the custody of the Department of Defense. As soon as Congress acts to authorize the military commissions I have proposed, the men our intelligence officials believe orchestrated the deaths of nearly 3,000 Americans on September the 11th, 2001, can face justice. (Cheers, applause)....

With these prosecutions, we will send a clear message to those who kill Americans: No matter how long it takes, we will find you and we will bring you to justice. (Emphasis added).¹

6. Despite the President’s promise to the nation, the Office of Military Commissions has taken no steps to prosecute him.

7. A decision to prosecute abu Zubaydah seems commonsensical if what the government has stated publicly about him is true. Officials at the highest levels of government have repeatedly claimed that he was not only associated with al Qaeda but that he committed numerous specified acts of terrorism against the United States. These officials include the President of the United States, the Vice President, the Secretary of Defense, the Director of the CIA, high-level officials in the State Department, and high-level officials in the Department of Justice.

8. For example, in that same September 2006 speech urging the creation of military commissions, President Bush spoke from the East Room about the existence of secret CIA prisons:

Within months of September the 11th, 2001, we captured a man known as abu Zubaydah. We believe that Zubaydah was a senior terrorist leader and a trusted associate of Osama bin Laden. Our intelligence community believes he had run a terrorist camp in Afghanistan where some of the 9/11 hijackers trained, and that he helped smuggle al Qaeda leaders out of Afghanistan after coalition forces arrived to liberate that country.... (Emphasis added [sic]).

9. The President also claimed that abu Zubaydah provided:

information that helped stop a terrorist attack being planned for inside the United States -— an attack about which we had no previous information [and]  provided physical descriptions of the operatives and information on their general location. Based on the information he provided, the operatives were detained -— one while traveling to the United States.

10. Were even a fraction of such repeated assertions supported by credible evidence, the most straightforward course for the government would be to convene a military commission, produce the appropriate evidence under the relaxed commission standards, obtain what the government seems to think is a foregone conviction, and administer the resulting punishment. And yet this logical course of action has yet to be taken.

11. Abu Zubaydah has not been tried, has not been charged, and has not even had military commission counsel assigned to him. He has requested the appointment of military commission counsel repeatedly but has received no response. This overt failure to prosecute a supposed terrorist leader causes the world to wonder why. One possibility is that the claims, despite their number and decibel level, are simply untrue, so that the government cannot prove all (or any) of them. A second possibility is that the prosecution would be successful but only at the unacceptable cost of exposing the government to worldwide censure for the manner in which Zubaydah was treated and the evidence against him was obtained. The third possibility, worst of all, is both that the claims are not true and that his treatment is too shameful to be revealed to the world.

12. The factual premises for these scenarios, if untrue, could be put to rest by beginning the prosecution. Failure to do so can only further erode the legitimacy of the military commission process. The ultimate test of the legitimacy of any judicial system is the willingness to hold hearings even when the truths that the hearings may reveal could be embarrassing or politically damaging to high-level officials. Abu Zubaydah formally requests that he receive his military commission hearing immediately. Without such a hearing he may be detained forever as an uncharged prisoner—not necessarily for anything that he has done but because so many people have made so many false allegations to justify government policies that are themselves indefensible that no possibility of disclosure or, far worse, exoneration can be borne.

13. The public record already reveals that the government has long had reason to doubt the accuracy of its accusations. At the very time that President Bush was making the above statements, he was aware of serious reservations about their truth. According to Pulitzer Prize winning journalist Ron Suskind, even as Bush was publicly proclaiming abu Zubaydah’s malevolence, he was privately being briefed about misgivings within the intelligence community regarding his significance—and mental stability. President Bush was concerned about the consequences for his own reputation. Suskind quotes the following exchange between Bush and then-CIA Director George Tenet:

I said [abu Zubaydah] was important,” Bush said to Tenet at one of their daily meetings. “You’re not going to let me lose face on this, are you?” (emphasis added). Director Tenet then assured him he would not

The government’s failure to prosecute him continues the protection that Tenet promised.

14. Endless delays of a proceeding promised long ago by the President reflect the government’s implicit recognition that the “abu Zubaydah” who was held out to the American public to justify our nation’s torture, rendition, and detention policies was merely a manufactured distortion of the real person. His false portrayal, once known, will discredit many of the government’s most horrific policies. It was largely by virtue of unwarranted and inaccurate characterizations of abu Zubaydah that the government was able to adopt its torture policies, defend its dark sites and rendition policies, and continue on its course of detaining hundreds of individuals around the world without any process.

Role of the Discredited “Torture Memos” in Abu Zubaydah’s Military Commission

15. If abu Zubaydah’s case might inflict the very public embarrassment that President Bush feared so much, as revealed in his exchange with the then-CIA Director, the “torture memos” provide another source of shame for the government. The already notorious memos would be even more universally condemned were it known that their supposed efficacy in revealing the truth about our enemies was based -- in significant part, at least -- on lies about abu Zubaydah.

16. On August 1, 2002, attorneys with the Office of Legal Counsel completed a memorandum regarding the “Interrogation of al Qaeda Operative” that described the factual basis upon which that torture memo rested. The authors of this memo explained that “[a]s we understand it, Zubaydah is one of the highest ranking members of the al Qaeda terrorist organization.” The Office of Legal Counsel’s advice was “based upon the following facts, which you have provided to us....”

Zubaydah is currently being held by the United States. The interrogation team is certain he has additional information that he refuses to divulge. Specifically, he is withholding information regarding terrorist networks in the United States or in Saudi Arabia and information regarding plans to conduct attacks within the United States or against our interests overseas....

...Zubaydah, though only 31, rose quickly from very low level mujahedin to third or fourth man in al Qaeda. He has served as Usama Bin Laden’s senior lieutenant. In that capacity, he has managed a network of training camps. He has been instrumental in the training of operatives for al Qaeda, the Egyptian Islamic Jihad, and other terrorist elements inside Pakistan and Afghanistan. He acted as the Deputy Camp Commander for al Qaeda training camp (sic) in Afghanistan, personally approving entry and graduation of all trainees during 1999-2000. From 1996 until 1999, he approved all individuals going in and out of Afghanistan to the training camps. Further, no one went in and out of Peshawar, Pakistan without his knowledge and approval. He also acted as al Qaeda’s coordinator of external contacts and foreign communications. Additionally, he has acted as al Qaeda’s counter-intelligence officer and has been trusted to find spies within the organization.

Zubaydah has been involved in every major terrorist operation carried out by al Qaeda. He was a planner of the Millennium plot to attack U.S. and Israeli targets during the Millennium celebrations in Jordan. Two of the central figures in this plot who were arrested have identified Zubaydah as the supporter of their cell and the plot. He also served as a planner for the Paris Embassy plot in 2001. Moreover, he was one of the planners of the September 11 attacks. Prior to his capture, he was engaged in planning future terrorist attacks against U.S. interests.

17. What an incredible political embarrassment it would be for the world to discover that the torture and mistreatment of abu Zubaydah were pointless exercises in cruelty. Vice President Cheney, CIA Director Michael Hayden, and many others all have claimed that the torture and mistreatment of abu Zubaydah led to the discovery of useful information. Vice President Cheney stated that:

[t]he techniques worked…. Abu Zubaydah gave up information about Ramzi bin al-Shibh who had assisted the 9/11 hijackers, and on the one-year anniversary of the 9/11 attacks was captured after a shoot-out in Pakistan. At he time of his apprehension he was plotting to use commercial airliners in suicide attacks on Heathrow Airport and other structures in London.

18. Director Hayden also stated that abu Zubaydah’s interrogation “led to reliable information,” that he was a “prolific producer” of information, and that roughly 25 percent of the information on al Qaeda that came from human sources that originated from him. Imagine the political and policy implications that would follow the revelation that no such information was obtained from visiting these abuses on him.

Role of Rendition and Indefinite Detention in Abu Zubaydah’s Military Commission Proceedings

19. The torture policies are not the only programs that would be exposed during the military commission hearing. The U.S. government’s justification of its policies of extraordinary rendition, maintaining secret CIA black sites, and indefinite detention would also be shown to have rested on false and exaggerated claims. Obviously, statements about abu Zubaydah were not the only basis for the creation of the Global War on Terror apparatus. There were many other claims. However, he was the symbol constantly deployed to justify the creation of that apparatus. The numerous fabricated statements made about him constituted a key part of the foundation of that structure. For instance, abu Zubaydah’s supposed misdeeds were used to justify the CIA’s use of black sites and extraordinary rendition as critical elements in the War on Terror.

20. John Kiriakou, the highest ranking CIA officer on the ground in Pakistan involved in abu Zubaydah’s capture, reported as follows:

He was one of the financiers of the September 11th attacks. He was a logistics chief of al Qaeda. We knew that he was close to bin Laden, although not co-located obviously.... [W]e knew at the time that he had a line to bin Laden.

[We knew] that he knew everybody who was worth knowing in al Qaeda. He knew cell leaders. He knew logistics people. He knew finance people. We knew that he was really one of the intellectual leaders of the group.

21. John Rizzo was the CIA’s acting general counsel during the Enhanced Interrogation Techniques (EIT) program. He was interviewed on September 13, 2011, about abu Zubaydah:

He wasn’t necessarily a shooter or a guy who would climb into an airplane, fly into a building. But he basically was moralistically chief operating officer, made sure and facilitated the plan, the travel of various al Qaeda officials. So there was a lot of information derived from him on that score that I recall.... And it’s not just me saying it. Subsequent investigations by the CIA inspector general and other independent bodies confirmed that there was valuable, actionable intelligence derived first from Abu Zubaydah and later (from) other high-value detainees that were subject to the enhanced techniques....

22. Abu Zubaydah has also been frequently used to justify the continued operation of Guantanamo. For example, consider the statement of the State Department’s John Bellinger:

I will just say up front that the issue of Guantanamo...is a source of great frustration for this administration. On the one hand, it serves a very important purpose, to hold and detain individuals who are extremely dangerous, people like Khalid Sheikh Mohammed, Abu Zubaydah, people who have been planners of 9/11, others who were captured on the battlefield in Afghanistan and who personally killed U.S. soldiers.

Conclusion

23. The government fears that a military commission hearing for abu Zubaydah will reveal that the facts upon which the American torture policy substantially rests were false and known to be false at the time. The military commission hearing will also reveal that many statements made by the highest officials about him were false and known to be false when made. The government has attempted to conceal the fabrication of the factual basis for his torture, the same basis detailed in the “torture memo” that focused exclusively on him.

24. The government has also gone to great lengths to destroy all evidence that one of its most trusted attorneys had written a dissenting memo arguing that the treatment approved by the “torture memos” was torture that should have been known to be torture. The legal memo revealing the robust dissent to the very practices inflicted upon abu Zubaydah was not only concealed but extraordinary efforts were made to destroy all copies of the memo. Although use of the word “concealment” may seem harsh, this characterization is, if anything, an understatement. The more accurate description of this conduct would be spoliation of evidence revealing the false factual and legal basis upon which abu Zubaydah was tortured. The spoliation efforts were revealed by Phillip Zelikow, a high ranking State Department lawyer and confidant of Secretary Condoleeza Rice, in an appearance before the Senate Judiciary Committee in 2009. His memo titled “The McCain Amendment and U.S. Obligations under Article 16 of the Convention Against Torture,” dated February 15, 2006, concluded that several of the enhanced interrogation techniques, “singly or in combination, should be considered ‘cruel, inhuman or degrading treatment or punishment’ within” the meaning of the Convention Against Torture. Zelikow explained that the memo caused senior figures in the Bush White House to become enraged, and that they actually sought to collect and destroy all the copies.

25. The government that has engaged in the spoliation of evidence, including authoritative legal dissent about abu Zubaydah’s treatment, is the same government that holds him in indefinite pretrial detention, too afraid to prosecute him—because such a hearing would reveal even more disturbing truths.

26. The refusal to bring charges and seek judicial review of abu Zubaydah’s case, to provide a forum that will reveal the truth about him and the demonstrably false factual basis for the torture memos and his torture is but another way to conceal the truth. That a government concealed and destroyed documents evidencing dissent to its justification for torture speaks volumes about why that government would refuse to provide abu Zubaydah judicial process that would disclose an even more damning truth: that the factual basis for his torture was false and known to be false at the time.

27. The failure of the Office of Military Commissions to charge and try abu Zubaydah inevitably will be viewed as part of the lamentable pattern of conduct that began with the assertion of false facts to justify his torture in 2002, and produced distorted, inaccurate and incomplete legal opinions as the government labored in vain to contrive the legality of his torture. And that perception undermines the legitimacy of the entire military commission program.

28. Abu Zubaydah asks only for what he was promised by the president of this nation: a military commission hearing. The reformed military commissions have been trumpeted as wholly consistent with basic American precepts of justice. So we say: charge abu Zubaydah and let the chips fall where they may.

29. If the military commissions are to be viewed as legitimate, they should not appear to be complicit in disguising the truth. Instead, military commissions should serve as a vehicle that reveals the truth. The failure to prosecute abu Zubaydah discredits not only American political practices but also the military commissions themselves. Abu Zubaydah asks simply that he be allowed to have a legitimate hearing at which he may challenge the allegations and evidence leveled against him. But as time lingers on, what legitimacy will be found in a system that continues to delay the trial of a man the government once described as a high-ranking al Qaeda operative? Abu Zubaydah is ready for the process to begin, and after ten years of detention and evidence gathering, the government ought to be too.

30. After more than ten years of waiting, your prompt consideration of this request is appreciated.

Very truly yours,

__/s_________________________
Joseph Margulies
Clinical Professor of Law
Roderick MacArthur Justice Center
Northwestern University School of Law
375 East Chicago Avenue
Chicago, IL 60611....

__/s_________________________
George Brent Mickum IV
5800 Wiltshire Drive
Bethesda, MD 20816

__/s_________________________
Mark Denbeaux, Esq.
DENBEAUX & DENBEAUX
366 Kinderkamack Road
Westwood, NJ 07675....

__/s_________________________
Amanda Jacobsen
University of Copenhagen
Faculty of Law
Studiestraede 6
Copenhagen Denmark 1455-K

Al-Zahrani v. Rumsfeld Appeal Filed

Center for Constitutional Rights has filed an appeal for the families of two of the three men who died in mysterious circumstances in June 2006. The U.S. government called it "asymmetrical warfare" by the detainees, who are said to have killed themselves in some belief that would hurt the U.S. government. As bizarre as that theory is, Defense Department investigations found the men committed suicide in a multiple, timed series of three planned suicides.

But as an investigation by Scott Horton at Harper's Magazine, and one by Seton Hall School of Law's Center for Policy and Research, demonstrated, the investigation did not hold up to scrutiny. Indeed, the legal case hinges on new eyewitness testimony from four Guantanamo guards who have come forward to tell what they saw that fateful night.

The legal maneuvers throw recent media attempts to discredit the Horton investigation, which won a prestigious magazine journalism prize last month, in a new and more ominous light. (See my story on one such hit piece published in Adweek.)

But the D.C. District Court is citing secrecy issues to keep the new evidence from even being presented. CCR released a press release on Monday discussing the case:

June 13, 2011, Washington and New York – Today, nearly five years to the day after three men died at Guantánamo in June 2006 under still-unexplained circumstances, the Center for Constitutional Rights (CCR) and co-counsel are appealing the dismissal by the District Court for the District of Columbia of a civil lawsuit Al-Zahrani v. Rumsfeld. The military has maintained that the deaths were suicides, having once famously called them “acts of asymmetrical warfare.” In January 2010, new evidence from four soldiers stationed at the base at the time of the deaths came to light, suggesting that the military’s narrative was a cover-up and that the men may have been killed at a black site at Guantanamo.

“My son Yasser was 17 when he was taken to Guantánamo and 21 when he died there,” said Talal Al-Zahrani, father of Yasser Al-Zahrani. “I have waited for five years for meaningful answers to my questions about how my son died, but the U.S. government has never contacted me. Not when my son died, not in response to my questions afterwards and not to this day. And the fact that the government has not only failed to properly investigate his death but is also attempting to block review by the courts is both hard to believe and very painful for my family. We just want the truth and for those responsible to be held accountable.”

Nashwan Al-Salami, whose brother Salah also died at Guantánamo, said, “For five years the U.S. government and courts have blocked my family’s efforts to know the truth about how my brother died. My father died without ever learning what happened to his son, and I continue to hope for real answers and justice.”

The families had presented the new evidence from the soldiers to the district court, requesting that it reconsider its prior dismissal of the case. The court denied the request, holding that even with allegations of an off-site killing, national security “special factors” continue to bar the constitutional claims and that the defendants are further protected by qualified immunity. With respect to the international law claims, the court held that the new evidence was insufficient to challenge the presumption that the defendants were acting within the scope of their authorized duties and were entitled to absolute immunity. Courts have consistently relied on “special factors,” “state secrets” and the “political question” doctrines to dismiss torture and abuse cases brought before them. Not once in the past decade has a court either evaluated the actual facts of such a case or ruled on the legality of the conduct.

CCR attorneys pointed to other documented examples of deaths and killings covered-up by the military in the recent past, including the falsification of records in the death of former football player Pat Tillman and the premeditated murders of Afghan civilians by members of the Army’s Bravo Company.

“The new evidence is not the result of the wild speculations of the families, or their attorneys, or a journalist. It comes from the eye-witness accounts of four decorated soldiers who were compelled to come forward by their consciences, out of a sense of duty, and at great personal and professional risk. In this context, where the only people who know the truth are our clients’ dead sons and individuals within the government, the information these four men have brought forward is critical. It must give these families a chance to reopen their case. It is shameful that this information hasn’t been given greater consideration by the court,” said CCR staff attorney Pardiss Kebriaei, lead counsel in the case.

Today, the Center for Constitutional Rights called on supporters to demand an independent investigation into the deaths and to ask the Obama Justice Department to change course from the prior administration’s policy of attempting to block every torture and abuse case, including Al-Zahrani v. Rumsfeld, from proceeding. In all these cases, the victims and their families seek accountability, justice and answers.

The case, filed on behalf of the families of two of the deceased men, Yasser Al-Zahrani of Saudi Arabia and Salah Ali Abdullah Ahmed Al-Salami of Yemen, charged the government and 24 federal officials with responsibility for the men’s abuse, wrongful detention and ultimate deaths. Early last year, the court granted the defendants’ motion to dismiss the case. Following the dismissal, the families filed a motion for reconsideration on the basis of the evidence from the soldiers, as reported by Scott Horton in Harper’s Magazine in January 2010, arguing that the new facts compelled the court to reopen the case.

The suit was brought by CCR and co-counsel William Goodman of Goodman & Hurwitz, P.C. and Johanna Kalb of the College of Law at Loyola University.

The decision, the complaint, the government briefs and other court documents, as well as video of Mr. Talal Zahrani addressing the U.S. government, courts and people regarding his son’s death can be found on CCR’s legal case page or http://ccrjustice.org/ourcases/current-cases/al-zahrani-v.-rumsfeld.

See also Andy Worthington's two recent articles covering this news:

Teleconference: Five Years After Disputed “Suicides” at Guantánamo, Father of Dead Man Appeals Court’s Refusal to Consider His Case

Relatives of Disputed Guantánamo Suicides Speak Out As Families Appeal in US Court

In the article on the teleconference, Andy quoted Terek Dergoul, a former detainee who spent two years at Guantanamo and was released in 2004. He shared a cell right next to Yasser al-Zahrani, and spoke about the dead men, each of whom he knew fairly well.

Tarek Dergoul said:

I knew Yasser, Salah, and Mani personally, for a long period of time, and I knew of their deep will to resist being broken by Guantánamo and to live. These were beautiful men, and Yasser and Mani used to sing songs and recite poetry to lift the spirits of the other detained men. They always fought for the rights of all of us to be free from the abuses we were tormented with, and they were repeatedly subjected to harsh treatment because of this. I have never believed these men committed suicide as the government claims.

Scott Horton Interviews Jeffrey Kaye on Alex Koppelman's Adweek Hit Piece

I had a great time being interviewed on June 3 by the ever-knowledgeable Scott Horton at Antiwar radio. We discussed my critique of the Alex Koppelman story attacking Harper's magazine's award-winning article on "The Guantanamo Suicides." The article was written by Harper's Scott Horton, no relation to the Horton at Antiwar radio.

Jeffrey Kaye, writer for Truthout and Firedoglake, discusses his article “Deconstructing the Campaign to Malign Award-Winning Article on Guantanamo ‘Suicides’” about (the other) Scott Horton’s exposé; the many half-truths and misrepresentations in Alex Koppelman’s Adweek hit piece; how Koppelman’s publication in Adweek sends a message to magazine publishers and advertisers about what is beyond the pale in mainstream media; the Seton Hall study on the botched NCIS investigation of the “suicides;” and the inconclusive autopsy – due to conspicuously missing body parts – done by Swiss pathologist Patrice Mangin (spun by Koppelman as an endorsement of the suicide theory).

Link to listen to mp3 podcast online.

Deconstructing the Campaign to Malign Award-Winning Article on Guantanamo “Suicides”

Originally posted at Truthout

While not the first article attacking Scott Horton’s controversial Harpers’s article, “The Guantanamo Suicides,” Alex Koppelman’s critique in Adweek on May 23 capped a long campaign by some media figures to impugn the veracity of Horton’s investigation, if not the integrity of both Horton and Harper’s Magazine.

Horton’s article in January 2010 strongly criticized the Department of Defense investigations into the June 10, 2006 deaths of three Guantanamo detainees, bringing forth new eyewitness testimony as to what occurred that terrible evening at the camp, calling into question the official narrative. For their part, Guantanamo authorities immediately labeled these deaths suicides. Rear Admiral Harry Harris, the commander at Guantanamo, called the deaths a day after they occurred “an act of asymmetrical warfare waged against us.”

Koppelman’s article appears to be a reaction to the recent presentation of the prestigious National Magazine Award to Horton’s article. The award is given annually by the American Society of Magazine Editors (ASME), who since then have stood by their decision to recognize the Horton article.

The Koppelman article also followed attacks on those critical of the DoD investigation of the “suicides” by Donald Rumsfeld, in a May 12 op-ed at the Washington Post, and a May 17 blogpost by Cully Stimson, former Deputy Assistant Secretary of Defense for Detainee Affairs at the time of the prisoners’ deaths, lambasting ASME’s “disgraceful award” to Horton.

In addition, the Adweek article was published only five days after another mysterious purported suicide at the Guantanamo prison camp. Inayatullah was a 37-year-old prisoner found dead either in a recreation yard or in his cell, depending on the news account. The Naval Criminal Investigative Service (NCIS) is investigating his death, which if ruled suicide would be the sixth such death at the camp, if one includes the deaths of the three prisoners in 2006.

An unprecedented attack by an advertising industry journal against a magazine industry award-winning story, Koppelman’s article stimulated a cascade of grateful response from conservative commentators, such as The Weekly Standard’s “The Scrapbook, “ Jonathan Last, and Joe Carter (who wrote his own earlier series of articles critiquing Horton’s investigation, blustering that to compare Harper’s Magazine with the National Enquirer “would be an insult to the supermarket tabloid”).

What was surprising was the enthusiasm for Koppelman’s piece from ostensibly more liberal writers, such as John Cole, and Mark Benjamin. In addition, the article was noted and recommended at numerous websites, from Gawker to The Daily Beast.

Benjamin is an interesting, if strange, case. Writing in Time/CNN’s blog, Battleland, Benjamin, himself the author of numerous articles on U.S. torture for Salon.com, wrote, “Alex Koppelman at AdWeek does a thorough job of airing the problems in Horton's piece,“ adding,  “It's worth a read.”

Benjamin never notes in his encomium to Koppelman’s piece that he had a prior relationship with Koppelman at Salon.com, or that he co-authored articles with Koppelman. It never occurs to him to reveal this as any source of potential bias. Perhaps he might have reflected that both Koppelman and he have cited Scott Horton as a reliable commentator on U.S. policies in the past.

As yet, no one has chosen to analyze Koppelman’s article in any depth, though both Harper’s Senior Editor Luke Mitchell, Scott Horton, and legal professor Mark Denbeaux have all replied at various times to previous criticism, a fact Koppelman never cites in his article. Denbeaux was the lead author of a Seton Hall University School of Law, Center for Policy and Research study on the Guantanamo “suicides,” “Death in Camp Delta,” and a follow-up answer to DoD’s reply to the Horton and Seton Hall investigations, published as “DoD Contradicts DoD: An Analysis of the Response to ‘Death in Camp Delta.’”

Koppelman’s supposed exposé of Horton’s article is a mish-mash of poor analysis, half-truths, and misrepresentations of the facts. He relies on the following points, which are reproduced below in the order they appear in the article. In order to examine Koppelman’s evidence, and thereby demonstrate the dishonest methodology employed by Koppelman, the counter-evidence follows each of Koppelman’s arguments.

1)             The story had been “well-shopped” around, and had been considered and rejected by Seymour Hersh, ABC News’ Brian Ross Investigative Unit, CBS 60 Minutes, NBC News’ chief Pentagon correspondent Jim Miklaszewski, and an unidentified New York Times reporter.

Nothing is less convincing that this particular argument. There are many reasons why a reporter or news agency may pass on a story. It does not strain credulity too far to say that a story that directly contradicts official Department of Defense investigations may not be acceptable to reporters who value access to Pentagon sources, or who, like Miklaszewski, are involved in national security reportage training that relies to a good extent upon cooperation with Defense Department personnel.

Besides a quote from Miklaszewski, the only other quote from a journalistic source regarding Horton’s article is an anonymous criticism from “one of the reporters who looked into the story.” Why is this source anonymous? Why are they not on the record?

Koppelman studiously ignores in his article news sources and human rights groups that were laudatory of Horton’s article, including Amnesty International and the St. Louis Post-Dispatch.

2)            Horton’s main sources were perimeter guards, distant from the prisoners.”

Koppelman’s story never says how “distant” the guards were. Army Sergeant Joseph Hickman, the primary source for Horton’s article, was in Tower 1, twenty feet away from Sally Port 1 and mere yards away from the Detention Medical Clinic, the activity areas upon which Hickman reports, and perhaps fifty yards from Alpha block, where the prisoners were ostensibly found.

Rather than having a poor perspective on events, the guards, especially Hickman, had a unique overview of camp activities during the critical events that took place. A map labeling the various camp components was published along with the original Harper’s article. Neither Hickman nor the other Army guards on duty around the camp that night were ever interviewed by military investigators. When Hickman brought new witnesses to the attention of the Department of Justice, DoJ failed to follow-up.

3)            In an interview with Adweek, Colonel Michael Bumgarner, commander of the Joint Detention Group, the guard force component of Joint Task Force Guantanamo, denied he ever made a speech after the suicides telling guards the media would hear the dead detainees had hanged themselves. Horton reported witnesses as saying Bumgarner said “you all know” the detainees killed themselves by swallowing rags, and then choking to death. 

Nothing is stranger, perhaps, than Koppelman’s reliance on DoD assurances, not least that of a primary actor in the controversy, Col. Bumgarner. The JDG commander, who had been at Guantanamo from April 2005, and was due to leave command at the end of June 2006, was stripped of his command only days after the detainees’ deaths, possibly for having told the press that each of the detainees had been found with a ball of cloth in their mouths.

DoD later denied that the dead detainees all had such cloths or “rags” stuffed down their throats, saying, despite evidence from the NCIS investigation to the contrary, that such cloths were present in only one prisoner’s mouth. According to Horton, Bumgarner’s speech to the guards, telling them to stick to the hanging story, was derived via a number of sources. Meanwhile, Koppleman asks us to rely on the word of a man who called the detainees under his control totally untrustworthy, as “nothing short of a damn animal that can’t be trusted.”

Furthermore, reading the detainees’ statements (large PDF) taken by the Criminal Investigative Task Force at Guantanamo in the immediate aftermath of the discovery of the “suicides,” one is struck by the multiple complaints of the “Colonel” for making prison conditions worse during the term of his command.

4)             One of the independent autopsies performed at the request of the families of the deceased men wrote a report that “ended with the conclusion that hanging was, in fact, the most likely cause of death.” Moreover, according to Koppelman, “[Swiss pathologist Patrice] Mangin reiterated this point in a press conference.”

Koppelman’s fudging of the facts regarding Mangin’s autopsy is egregious. In fact, the autopsy report says that the cause of death is mechanical asphyxiation consistent with a hanging, but also “sans pouvoir exclure formellement un autre mécanisme,” that is, unable to formally exclude another mechanism or cause.

The primary reason for the lack of a definitive decision was the decision of U.S. authorities not to provide crucial neck organs -- the larynx, the hyoid bone, and the thyroid cartilage -- whose examination, for instance, could rule out death by hanging versus death by strangulation or other means. The government’s autopsy noted that one detainee had a broken hyoid bone. Such an injury, according to forensic experts, is more consistent with strangulation than hanging, and quite rare in younger persons.

Mangin was quite explicit about his findings in a March 3, 2007 interview in English with Carol Vann at InfoSud. Mangin told Vann, “There was asphyxiation which could be due to suicide but also to other reasons. We have too little information to make any definitive conclusions…. And above all, what was the state of the missing organs? We have written to the American authorities, but so far we have not had any reply.”

Not only did DoD stonewall requests for the missing organs to more than one independent autopsy physician, they gave no answer to questions Mangin had surrounding the odd cuttings of the prisoners’ toenails and fingernails, removing critical evidence such as DNA or other material to be found under the nails, as there often is in murder cases, in particular strangulation (where the victim often claws the attacker to remove their hands or other mechanical choking device).

That Patrice Mangin did not definitively rule the cause of death as suicide by hanging at his press conference, as maintained by Koppelman, also is reported in an Associated Press article on the press conference at the time. Koppelman is totally wrong in his Adweek assertion about Mangin’s findings.

5)            Army Sergeant Joe Hickman’s account of paddy wagons transporting prisoners to a secret black site at Guantanamo, dubbed “Camp No,” is not plausible, and this is backed up by an email from Dwight Sullivan, who’d been chief defense counsel in the Office of Military Commissions, writing at the time to Slate’s Jack Shafer, who also wrote a series of articles last year criticizing the Horton article.

Sullivan wrote about the Camp No issue in an impassioned blogpost recently, calling Horton’s accusations “crazy libel,” “conspiracy theory,” and “Birther/Truther crazy.” Sullivan maintains that the road the paddy wagons took towards Camp No led “to everything on Naval Station Guantanamo other than the detention camps. That road leads to the hospital. That road leads to the commissary. That road leads to the military commission complex. That road leads to a high school. That road leads to housing areas. That road leads to the ferry to the airport. The road leads to a McDonald’s, a coffee shop, and my favorite Guantanamo eating establishment, the Jerk House."

Horton’s own reply to Koppelman appears to answer the charge, explaining that “It’s true, of course, that when you drive out and you get on roads, you could take roads almost anywhere, there were connections that went on, but everyone I spoke with said ‘No, you would not have driven to that part of the base using that road, there were other roads that would have taken you there much more directly.’”

A look at the map of Guantanamo provided with the original Harper’s article shows Camp No to be quite isolated along a road running north of the main prison camp. There is nothing else along that road, and certainly nothing like a McDonalds, or any housing areas. The areas to the east of Camp No, which include some of the areas to which Sullivan alludes, including the camp headquarters, the chapel, and the post office, and other buildings from the camp, are eminently reachable and in much more direct fashion from Camp Delta from a road running west by northwest out of the camp area. (See also this map from The Guantanamo Testimonials Project.) It is difficult to imagine that multiple paddy wagon trips took a long way around to get to other parts of the camp, along a long empty road passing the Camp No area each time. In short, the objections Sullivan raises do not pass the logic test.

Sullivan also quotes in his blog piece a McClatchy news article reporting that former Guantanamo detainee Abdul Zuhoor said the suicides were a plot by Taliban and Arab prisoners at Guantanamo, corroborating charges of “asymmetrical warfare” put forth by camp officials. But, in a lapse of integrity more typical of the charges Sullivan aims at Scott Horton, Sullivan never mentions that the McClatchy reporter cautioned Zuhoor’s story “must be taken with some skepticism” as Zuhoor “admitted lying to the tribunal at Guantanamo about a host of things.” [Updated note: Sullivan is apparently here simply taking an assertion made by Cully Stimson in his blog post and repeating it without checking on its

6)            Hickman may have seen prisoners being transported, but he could not identify them.  Furthermore, the timeline he provides contradicts that of “multiple witnesses” who saw the detainees in their cells that evening.

While Hickman could not identify the prisoners, and never claimed he could, the unusual instance of their nighttime transfer piqued his interest, and took on a more ominous light due to the circumstances that followed.

The “multiple witnesses” argument might carry more weight, if there weren’t significant problems with the witness statements themselves. As Mark Denbeaux and his team at Seton Hall have described it, the “multiple witnesses” testimony is both dubious and unreliable.

For one thing, the Guantanamo Standard Operation Procedure calls for witnesses to a self-harm act to fill out a Form 2823 immediately after a self-harm event (see p. 172, “Emergency Action Plan (EAPs). 32-1. Attempted Actual Self-Harm”). But no sworn statements were ever given until, as Seton Hall wrote, “more than three days after the detainees died and after the official announcement that they hanged themselves."

Moreover, the statements actually given by the six guards on duty in Alpha Block that night were suspected by NCIS of being false, and the guards were made to sign letters to that effect. Yet none of the guards’ statements has ever been released. Of note, no guard or other personnel on duty at Guantanamo that evening was ever disciplined or charged with anything, despite the fact that numerous SOP procedures seem to have been ignored (such as the failure to call an emergency “Code Blue” after the discovery of the bodies).

A number of detainees in Alpha Block were also interviewed. Almost all said they had seen or heard nothing, and at least one blamed the Americans for the deaths of the prisoners.

Koppelman’s article is not a comprehensive summary of all the purported arguments that have been brought to bear against Horton’s reporting, hence Truthout is not here providing a complete refutation of every argument made by every critic that has been made thus far.

But Koppelman’s story gained an inordinate amount of attention, and the credulity with which it was accepted and promoted by a number of people appears to have more to do with animus against Horton’s investigation than anything else. While the Seton Hall reports, which together total over 150 pages, are far more comprehensive in answering the DoD investigation, they have not been the subject of detailed critique by these same critics. But then, many fewer people were likely to have read them than the Harper’s article. In general, except in passing, Koppelman, like others writing negative hit pieces on the Horton article, have ignored the Seton Hall studies, which fully back Scott Horton’s reporting.

Perhaps what the flap over the ASME award demonstrates is that no serious piece of investigative journalism, especially if recognized, that challenges national security narratives will go unattacked. Certainly any piece of journalism can be challenged, and deservedly so, the better to ascertain its credibility. Koppelman’s article fails to stand up to scrutiny. It is an unserious poison pen attack, cavalier with facts, and undetermined to examine what occurred beyond what DoD authorities allege. Those who have jumped on Koppelman’s bandwagon should be ashamed of themselves.

Seton Hall Report on Guantanamo "Suicides": "Death in Camp Delta"

Marcy Wheeler reports this morning on the new Seton Hall University School of Law/Center for Policy and Research report, Death in Camp Delta (PDF). Drawing on evidence in the Seton CPR report, she notes that government claims that the three men found dead by purported suicide, June 10, 2006, were in reality practitioners of "asymmetrical warfare," i.e., not suicide or homicide victims, is highly dubious:

As the report describes, for the three detainees to have really committed suicide, they would have all had to have done the following:

• Braided a noose by tearing up their sheets and/or clothing
• Made mannequins of themselves so it would appear to the guards that they were asleep in their cells
• Hung sheets to block the view into the cells, a violation of SOPs
• Tied their feet together
• Tied their hands together
• Shoved rags in their mouths and down their throats
• Hung the noose from the metal mesh of the cell wall and/or ceiling
• Climbed up on to the sink, put the noose around their necks and released their weight, resulting in death by strangulation
• Hung dead for at least two hours completely unnoticed by guards

The amount of surveillance of prisoners at Guantanamo makes most of these suicide stories suspicious. The new report (which at over 100 pages I haven’t fully absorbed yet, am much beholden to EW for taking such quick notice and posting) makes it clear that the prisoners were under constant surveillance. Note that autopsy reports demonstrate that two of the prisoners had been dead for two hours prior to being discovered. One of the prisoners had a broken hyoid bone, a clear sign of manual strangulation.

I’m working on a follow-up to the story of Mohamed Saleh Al Hanashi, another purported Guantanamo "suicide" from earlier this year. While that story is not complete yet, I can reveal one thing from that material. Lt. Commander Brook DeWalt, the Director of Public Affairs at Guantanamo, told me in a telephone interview on Nov. 24 that while he couldn’t confirm the extent of video surveillance, he could confirm that “all detainees are on line-of-sight” monitoring, “or at most a 3 minutes check on every detainee in the facility.” How these three prisoners, who were in separate, non-contiguous cells, were able to do all that Marcy notes above, and not be noticed for hours boggles the imagination, and suggests — no, demands, a fuller investigation.

While one is thinking of the all the great work done by Mark Denbeaux and the whole Seton Hall University School of Law team, it would do everybody some good to go back and look at their December 2007 report, Captured on Tape: Interrogation and Videotaping at Detainees in Guantanamo (emphasis in original):

More than 24,000 interrogations have been conducted at Guantánamo since 2002.

Every interrogation conducted at Guantánamo was videotaped.

The Central Intelligence Agency is just one of many entities that interrogated detainees at Guantánamo.

The agencies or bureaus that interrogated at Guantánamo include: the Central Intelligence Agency and its Counterterrorism Center; the Criminal Investigation Task Force (CITF); the Federal Bureau of Investigation (FBI); the Behavioral Analysis Unit (BAU) of the FBI; Defense Intelligence Analysis (DIA); Defense Human Intelligence (HUMINT); Army Criminal Investigative Division (ACID); the Air Force Office of Special Investigations (OSI); and the Naval Criminal Investigative Service (NCIS). Private contractors also interrogated detainees….

One Government document, for instance, reports detainee treatment so violent as to “shake the camera in the interrogation room” and “cause severe internal injury.” Another describes an interrogator positioning herself between a detainee and the camera,in order to block her actions from view.

The Government kept meticulous logs of information related to interrogations. Thus, it is ascertainable which videotapes documenting interrogations still exist, and which videotapes have been destroyed.

This earlier Seton Hall report on the suicides has more information about the prisoners. One of the latter, Yassar Talal Al-Zahrani, was only 17 years old when he was arrested by anti-Taliban forces in late 2001. He was never accused of being al Qaeda, but he was, again, like Hanashi, one of the prisoners at Mazar-i-Sharif at the time of the prisoner uprising in late 2001 (where John Walker Lindh was also captured). It’s unknown if, like Hanashi, he was later sent to Shabraghan Prison, where he could have heard of the mass killings by Dostum and (arguably) U.S. Special Forces.

Meanwhile, in the current report just released, readers may wish to take a look at Appendix J, “Missing and Redact ed Pages.” One hundred eight-six of 191 photo pages in the Naval Criminal Investigative Service (NCIS) investigative file are listing as “missing”. The photos are said to be located at parent Guantanamo command, SOUTHCOM. Another big chunk of missing or redacted pages: 250 SOUTHCOM documents.

Meanwhile, 91 pages of documents from the Armed Forces Medical Examiners are likewise “missing.” I suppose we should be thankful the Seton Hall investigative crew got the autopsies. I have a feeling this new Seton Hall study will be worth examining in detail.

Addendum: Scott Horton has an article at Huffington Post on the new Seton Hall Guantanamo revelations, Law School Study Finds Evidence Of Cover-Up After Three Alleged Suicides At Guantanamo In 2006:

The Seton Hall study concludes that the NCIS investigators made conclusions completely unsupported by facts. For instance, they concluded that the three prisoners committed suicide as part of a "conspiracy." But, according to the study: "The investigations... fail to present any evidence of a conspiracy. In fact, all other evidence is inconsistent with the conclusion that the detainees conspired"....

When the NCIS report was finally released, it was redacted so heavily as to make it almost incomprehensible. More than a third of the pages were fully redacted, and very few pages were released without some redaction. The NCIS report itself is highly disorganized, without an index or even a chronological progression in its recounting of events. All this appears intended to make review and criticism of the report much more difficult. While the redaction of names of service personnel is appropriate, it is difficult to understand why many other redactions were undertaken.

Human Rights Watch is calling for the release of the unredacted NCIS report. HRW's Joanne Mariner stated, in response to a request for comment, that "the heavy-handed nature of the redactions to the publicly-released reports of the investigations makes it impossible to get a clear picture of the events of that night. We think that the heavy redactions currently found in the documents -- by which names, dates, and other key facts are completely obscured on many pages -- raise concerns about whether the military is trying to hide embarrassing facts."

Also, here's a link to the PDF of the fragmentary NCIS report itself, released, as Horton points out, two years after the fact.

A Final Update, 10:45 pm -- "Gitmo Meets Lord of the Flies" (Denbeaux):

Glenn Greenwald has an article up on the Seton Hall report:

There is one way that a meaningful investigation could be conducted into what happened to these three detainees: a lawsuit filed in federal court by the parents of two of the detainees against various Bush officials for the torture and deaths of their sons -- who had never been charged with, let alone convicted of, any wrongdoing (indeed, one had been cleared for release). By itself, discovery in that lawsuit would shed critical light on what was done to these detainees and what caused their deaths.

The problem, however, is that the Obama DOJ has been using every Bush tactic -- and inventing whole new ones -- to block the lawsuit from proceeding.

Also, Scott Horton, who was interviewed on the story by Keith Olberman tonight (video), has an interview with the reports main author, Mark Denbeaux, over at Huffington Post.