CIA Director Haspel Reported at CIA Torture Site in Poland

by Jeffrey Kaye
Originally posted at Medium.com

Photo: C-SPAN [Public domain], via Wikimedia Commons

On January 8, Carol Rosenberg at the Miami Herald reported that Trump’s CIA Director Gina Haspel had possibly been Chief of Base at a CIA black site at Guantanamo in 2003 and/or 2004.

The revelation was drawn from a redacted transcript of a classified 9/11 military commissions hearing on November 16, 2018. The redacted transcript of that meeting quoted Rita Radostitz, a defense attorney for Khalid Sheik Mohammed (KSM), as saying Haspel was “chief of base” at Guantanamo during the time her client had been held in a CIA black site at the Cuba-based facility.

According to Rosenberg, “Chief of base is a CIA term for the officer in charge of a secret foreign outpost.”

Radostitz had joined other military commissions defense attorneys in questioning whether Haspel had engaged in “unlawful influence” pertaining to the prosecution of her client after Haspel became first Deputy Director of the CIA in February 2017, and later was confirmed as CIA director three months later.

Coincidence or not, the ability of Military Commissions defense attorneys to approach CIA officers believed to be involved in or witness to torture of their clients was curtailed after Haspel acquired greater power within CIA.

Strangely, neither Rosenberg or anyone else reporting on the new development noted that Radostitz also claimed that Haspel had been present at yet another CIA black site, this one in Poland.

Detention Site BLUE

Radostitz argued that the inability to question witnesses or speak about classified information attorneys had gathered made it very difficult to defend their clients. In the context of the Poland revelation, Radostitz was asking for permission to present the information about Haspel’s work in Poland to the Senate Select Committee on Intelligence (SSCI).

According to the document, Radostitz told the court, “… we request permission to provide information to the Senate Select Committee that Gina Haspel was in Site Blue or #4.” The designation “#4” would seem to relate to where in the sequence of new black sites the Poland site would fall.

“Detention Site Blue” was the name the SCCI gave to the CIA’s Polish black site in their report on the CIA Detention and Interrogation Program.

It is not clear that anyone in Congress ever got Radostitz’s information. Requests for comment from both the Senate Select Committee on Intelligence, and the office of Sen. Dianne Feinstein, were not returned as of the time of publication.

According to the SSCI report, the Poland site was the scene of unauthorized interrogation methods used on al-Nashiri, including having a gun placed next to his head, and operating “a cordless drill near al-Nashiri’s body.” The CIA officer involved, as well as the Poland black site Chief of Base, were later supposedly disciplined by CIA for these unauthorized actions, and both later retired from the CIA.

But was Gina Haspel present during these events?

During the Senate confirmation process of President Trump’s nomination of Haspel as CIA director, four Democratic senators on the committee wrote to the Director of National Intelligence, Daniel Coats, asking him to “declassify all Central Intelligence Agency (CIA) information related to any involvement by Ms. Gina Haspel, the current Acting Director of the CIA, in the CIA’s Rendition, Detention, and Interrogation program.”

Photo: From unclassified Guantanamo Military Commissions hearing, Nov. 16, 2018 (pg. 203 of PDF)

Nothing concerning Haspel’s work or presence at any CIA black sites except the “Cat’s Eye” site in Thailand was ever mentioned during Haspel’s confirmation process for CIA director.

Before the SSCI report was released, an important January 2014 article by Adam Goldman at the Washington Post described the Poland secret site, which CIA called code name “Quartz,” after purchasing the old Polish intelligence training site at Stare Kiejkuty, north of Warsaw.

During the approximately 3 years of its operation, “Quartz,” which was supposedly built to house two prisoners, held at least five prisoners, among them KSM, Abu Zubaydah, and alleged USS Cole bomber Abd al-Rahim al-Nashiri. According to the Post account, Zubaydah and al-Nashiri were taken to the Polish prison on December 5, 2002.

“The CIA prison in Poland was arguably the most important of all the black sites created by the agency after the Sept. 11, 2001, attacks,” Goldman wrote.

Photo: Outside the prison grounds at Stare Kiejkuty. Source: mamik / fotopolska.eu [CC BY-SA 3.0 (https://creativecommons.org/licenses/by-sa/3.0)]

In July 2014, the European Court of Human Rights (ECHR) ruled that Poland had violated the rights of Abu Zubaydah when he was detained and tortured by the CIA at Stare Kiejkuty.

The legal consequences of the torture continue to mount. According to Charles Church at Lawfare, “As a result of the complicity of both Poland and Lithuania in Abu Zubaydah’s captivity and torture, the European Court of Human Rights ruled that both nations owed him 100,000 euros each.”

According to a Just Security report last year, in May 2018 ECHR also “handed down…judgments in two cases involving European countries that had hosted CIA ‘black sites’ in their territory.” In both cases — Al Nashiri v. Romania and Abu Zubaydah v. Lithuania — ECHR found that Poland and Lithuania, “through their cooperation with CIA extraordinary renditions of the applicants, had committed multiple violations of the European Convention on Human Rights.”

New Questions

This new revelation regarding Gina Haspel’s presence at “Site Blue” in Poland, along with the apparent outing of her Guantanamo posting, raise a host of new questions about Gina Haspel’s involvement with the CIA’s Rendition, Detention, and Interrogation (RDI) program. Her presence at Poland and Guantanamo goes along with earlier, well-publicized accounts of Haspel’s posting at the CIA black site in Thailand during the time al-Nashiri was waterboarded there, and her role in the destruction of torture videotapes from the Thai-based CIA prison.

Last December, I broke the story that the CIA’s RDI program was not the only torture program run by the CIA. The article also detailed revelations from a memorandum by the chief of the CIA’s Office of Medical Services showing that the highly-classified and monitored RDI program appeared to hide illegal experimentation on CIA detainees, at least in part under the cloak of “quality control.”

Meanwhile, a separate CIA black site program in Afghanistan (and possibly elsewhere) was conducted without much CIA oversight, especially from medical personnel, as can be discerned from both the testimony of the Chief of CIA’s Office of Medical Services, and from the fragmentary narrative provided in the SSCI Executive Summary of its unpublished investigation into CIA’s detention and interrogation program.

Haspel’s alleged presence at the Poland black site raises the question of possible prosecution of America’s top spy chief for war crimes. Poland is a member of the International Criminal Court, and Haspel could be considered liable for war crimes committed on its territory. (See this analysis.)

In addition, according to legal documents posted online, as of May 2017, there was still an investigation by the Organized Crimes Division of the Regional Public Prosecutor’s office in Kraków, Poland into the operations of the CIA’s black site and complicity by Polish officials.

Drawing on questions former CIA officer John Kiriakou asked in print after the news surfaced regarding Haspel’s work at Guantanamo, one wonders when exactly Haspel was at the Poland black site? Was she involved in the torture of prisoners there? Were videos made of the interrogations and torture, and did Haspel then also destroy them? Did she disclose her time at the “Quartz” black site to the SSCI prior to her nomination hearing?

Given the amount of new information surfacing, the question arises whether or not Haspel committed perjury during her Congressional hearings, or whether or not Congressional personnel colluded with members of the Trump administration, including Haspel, in hiding the totality of her participation in the CIA’s torture program.

The biggest question remains whether there is any political will by those in power to pursue these questions in a legal or political setting, or whether the mainstream press or human rights groups will continue to press the issue at all.

— — — — — — — —

Link to full but redacted transcript below of a November 16, 2018 Military Commissions hearing is taken from the public posting by Carol Rosenberg and the Miami Herald. The actual Military Commissions website posting for the same hearing spans three different URLs, Part One, Part Two, and Part Three. The relevant quotes upon which this article relies can be found in the last 10 pages or so of Part Three.

https://assets.documentcloud.org/documents/5669992/Redacted-transcript-of-closed-9-11-trial-hearing.pdf

Mystery Surrounds Guantánamo Detainee's "Suicide"

[This article was written by Jeffrey S. Kaye and first published on February 18, 2017 at Truthout.org. It is reposted here with permission from Truthout. Copyright, Truthout. May not be reprinted without permission.]

In January 2002 the US government started incarcerating "war on terror" prisoners at specially built facilities at the Naval base at Guantánamo Bay. On January 25, 2017, a draft executive order by Trump proposed reversing President Obama's January 2009 executive order to close the Guantánamo detention site.

The Cuba-sited camp was chosen precisely to keep operations there as secret and unaccountable as possible. What happens inside the facility is carefully hidden from public view, and this is especially true when prisoners have died.

Officially, the fifth person to die at Guantánamo was a Yemeni prisoner, Mohammad Saleh Al Hanashi. Authorities ruled his death a suicide, but government documents from the investigation into his June 2009 death, released in May 2015, reveal serious tampering with documentary evidence at the scene, calling into question the legitimacy of the investigation into how he died.

Furthermore, similar tampering seems to have occurred in relation to other detainee deaths. This article will, for the most part, concentrate on the investigation into Al Hanashi's death, following earlier reporting on his case at Truthout.

Files "Missing and Unrecoverable"

According to a partial Freedom of Information Act (FOIA) release from the Naval Criminal Investigative Service, or NCIS, into their investigation into the June 1, 2009, death of Al Hanashi at Guantánamo, key evidence from a computer detainee tracking and database system was ordered suppressed in the very first minutes after his body was discovered.

Numerous documents in the FOIA release relate how in the first minutes after Al Hanashi's body was discovered, an unidentified NCIS agent told Guantánamo staff to turn off the computer database, known as the Detainee Information Management System (DIMS), which monitors all interactions with detainees by camp staff. The question of who ordered this became the object of an internal NCIS investigation that has never been revealed in the press until now.

As NCIS agents discovered that the order came from someone within NCIS itself, an internal investigation was begun to discover why this violation of standard operating procedure took place. No final conclusion concerning this investigation was part of the FOIA release, and while NCIS's FOIA office told this author all materials were in fact released, the NCIS Public Affairs office failed to return multiple requests for further comment about the shutdown of DIMS.

Further irregularities, amounting to evidence of a possible cover-up surrounding Al Hanashi's death, appear to have taken place later in relation to the computer database files from Guantánamo's Behavioral Health Unit, where Al Hanashi was incarcerated at the time of his death. Nearly eight months after a FOIA request was filed on the investigation into his death, a July 23, 2012, NCIS memo titled "Missing Material from Dossier" found, "[a]fter an exhaustive search of all sources," that all the DIMS logs from the Behavioral Health Unit (BHU) for the day of and the day after Al Hanashi's death were "missing and unrecoverable." (See Part One, page 5, in documents on this linked page.)

Some idea of what was deleted surfaced in another NCIS investigation report from January 2010 -- written before all the DIMS records for the day of Al Hanashi's death and the day after went missing. In this report, the investigating agent noted that the final entry from the DIMS record on the evening Al Hanashi died was "Received medication" (apparently for sleep). The time was 2118, or 9:18 pm. After that, the DIMS record went silent.

The fact that official notification of the missing computer database logs at Guantánamo came only after a FOIA request was filed with NCIS into its investigation of Al Hanashi's death seems, at least on the surface, suspicious. It suggests that evidence was possibly destroyed after the fact, once deeper journalistic interest in the case was shown.

The missing logs may have included the identity of the person who ordered the DIMS entries turned off, but short of a full-scale investigation with subpoena powers, we will likely never know who that was now.

The NCIS FOIA materials, which are at times heavily censored, discuss other irregularities with the investigation, including the failure to properly maintain the security of evidence central to a verdict of suicide, which was sent by US mail for laboratory analysis.

A Pattern of Suppressing Evidence?

A failure to document key entries into the DIMS computer database during the crucial period surrounding a detainee's death also occurred during the hours surrounding the September 2012 death of another detainee, Adnan Farhan Abd Al Latif, who, like Al Hanashi, also died in the BHU at Guantánamo. A special Army investigation, called an AR 15-6 report, cited the failure to make entries into the DIMS record at the time of Latif's death as a violation of camp standard operating procedures.

The Army report said, " ... the lack of entries did make it difficult after the fact to re-create the immediate events leading up to the point that the guards found [Latif] unresponsive."

Was there a pattern to suppress information from Guantánamo's computer surveillance and database system in instances of detainees' deaths?

DIMS is a facility-wide computer logging system used by guards and other Guantánamo personnel to keep copious and detailed notes on every prisoner at the Cuba-based facility. Turning off DIMS entries was a serious violation of Guantánamo procedures. The 2004 Camp Delta Standard Operating Procedures (SOP) manual, released by Wikileaks, has detailed instructions for what should be recorded on DIMS.

Guantánamo authorities watched over detainee behavior very closely. Literally anything of interest was supposed to be recorded in DIMS. The SOP states, "There is always significant activity occurring on a block. There should be no DIMS SIGACT [significant activities] sheet filled out with 'Nothing to report.'"

The manual notes, "How the detainee reacted, observation by other detainees, and other potentially relevant observations will be annotated in DIMS."

"Relevant observations" of detainee behavior to be recorded include requests for copies of the Koran; refusals to let their cell be searched; refusal of a meal; visits by non-block personnel; and anything deemed a "significant activity."

A list of "significant activities" include banging on the cell, "showing reverence to another detainee," displays of "extreme emotion," requesting an interpreter, and harming oneself, among others. The SOP notes, "All data entries via DIMS must be specific and complete."

The system goes back to the early years of the Guantánamo prison. According to a February 17, 2005, statement by then-commander of Joint Task Force Guantánamo, Army Brig. Gen. Jay Hood, the DIMS system "allows us to keep track of nearly every aspect of a detainee's daily life."

The Army report on Latif's death explained, "DIMS is the primary tool used to track day-to-day information about detainees, and is made up of electronic entries regarding each detainee." Army investigators looking into the Latif case relied on the veracity of DIMS entries as more reliable than eyewitness memories.

Army investigators had much the same to say regarding the DIMS system in an AR 15-6 report on possible Camp Delta SOP violations in the wake of the three Guantánamo "suicides" in 2006.

In late August 2006, the Army's AR 15-6 report was completed. Its section on DIMS was as follows:

The Detainee Information Management System (DIMS) is the primary system for Camp Delta guards to record everything related to detainee and events that occur in the blocks, as well as the primary system employed by the JDG staff in performance of staff duties....

At the cell block level, guards enter log entries into DIMS at the beginning of each shift, and throughout the shift. These entries are reviewed by Platoon Leaders, Sergeants of the Guard, Block NCOs, and sometimes the FGIW officer, before and during the watch. Because DIMS entries are mandatory, continually updated, and thorough, they provide a significant source of information to the events that occurred on 9 June 2006. (See pages SJA 37-39, and SJA 83 in the Army report.)

In a June 22, 2006, NCIS Investigative Action report on the detainee deaths earlier that month -- a "Review of Standard Operation Procedures for Camp Delta, JTF-GTMO" -- the NCIS reporting agent explained that DIMS was "used to annotate everything related to a Detainee.... Items to be recorded in DIMS are 'Meal refusals, conversations, behavioral problems, leadership, prayer leadership, teaching, preaching, rule breaking, coordination with other detainees, movements, requests, everything.'" (See page SJA 237 of Army report.)

The computer database also contained important documents by the guard force (the Joint Detention Group), including a "Daily Block NCO checklist, Random Headcount reports, and Significant Activity Sheets."

Falsified Computer Data in Earlier "Suicide" Cases

The old computer-related adage -- "garbage in, garbage out" -- is worth considering as well when it comes to DIMS entries. So, for instance, and crucially, according to the Army AR 15-6 report on the 2006 "suicides," investigators found that the 2350 (or 11:50 pm) random headcount of detainees the night of the 2006 "suicides" had been "falsely reported" by "an unknown member of the Alpha Block guard team." Such headcounts, recorded in DIMS, "required immediate visual confirmation of detainee [two or three words redacted] in each cell."

According to the Army's investigation, "no guard remembers performing the 2350 headcount." Yet, the report was there in DIMS.

This is a crucial finding of falsification of evidence contemporaneous to events in the 2006 detainee deaths. It should have been a red flag. But Army investigators minimized the fact that someone was lying about the headcount of cellblock prisoners, three of whom would soon be found dead. Instead, they found the falsification of the cellblock census (which is what a random headcount is) to be "insignificant." Their reasoning? Medical teams had concluded the bodies were already dead an hour before the 2350 headcount was made.

Army authorities never asked why the headcount was falsified, or explained how they knew it was.

In fact, the falsified headcount is not "insignificant" at all if one concludes the detainees did not die the way the government said they did. That was the conclusion of former Guantánamo guard Joseph Hickman, who maintains in public press accounts and in his own book, that the detainees were brought back dead or nearly dead from a black site from within Guantánamo.

The problems with DIMS that surfaced in the 2006 "suicides" are worth remembering as we turn back to the situation surrounding the death of Al Hanashi.

The Investigation Into Who Shut Down DIMS

The DIMS database documented the "Who, What, When, Where, Why and How" of what went on in Guantánamo's cell blocks and detainee hospital, and could have provided a contemporaneous timeline of events immediately following the discovery of Al Hanashi's body, free from the vagaries of memory or dissembling.

The shutdown of the detainee database was no small event. The situation surrounding DIMS was so sensitive that no one I approached would speak to me on the record about it.

An NCIS interim report, dated as early as two days after Al Hanashi died, described the shutdown of DIMS at the time of Hanashi's death: "The chronology of events surrounding the death of V/Al Hanashi were not logged into the DIMS system allegedly due to an NCIS agent requesting no additional logging take place." ("V/Al Hanashi," a term used throughout NCIS reports, stands for Victim Al Hanashi.) Without the DIMS records, there is no way to test the timeline or the veracity of the observations of guards or medical personnel.

The order to halt all logging on the Guantánamo computer database apparently came once Al Hanashi was found unresponsive in his cell and before he was pronounced dead. The individual who made the request was "undetermined."

By November 2, 2009, five months after his death, Al Hanashi's case had progressed to initial review by a "Death Review Panel" convened at NCIS's Southeast Field Office in Mayport, Florida. The panel determined "additional investigative leads should be conducted." Besides further documentation from the autopsy and the death scene, the panel tasked investigators to "contact NCIS Special Agent [redacted] and clarify her actions during her initial response to V/Al Hanashi's death and the utilization of the detainee's Information Management System Database (DIMS)."

On January 8, 2010, another "Investigative Action" memo reported on two telephonic interviews with a female NCIS agent at the scene of Al Hanashi's death, presumably the same Special Agent mentioned by the Death Review Panel.

This agent told the investigating NCIS agent "she did not instruct any JTF GTMO personnel to cease making entries into the DIMS pertaining to V/Al Hanashi." Furthermore, investigators said the agent told them "she would not have issued such an order even if she had the authority to do so citing her efforts to encourage documentation."

This same agent added she didn't know of any other NCIS agent who would have given such an order.

Interestingly, there were members of other agencies present at the time. According to the female NCIS agent, when she arrived at the death scene along with another NCIS agent, there were two agents of the Army Criminal Investigation Command (CID) and an FBI Special Agent "already present at the BHU."

The female agent making the telephonic statement to NCIS added that she "doubted that any of the aforementioned personnel would have issues [sic] such a directive."

Who Made the Last DIMS Entry?

Despite all the missing information, in the first weeks of the investigation, NCIS determined via witness interviews of guard and medical staff, as well as "death scene processing," that the investigation had "failed to identify any suspicious circumstances surrounding V/Al Hanashi's death."

Despite the claims of no suspicious circumstances, the mystery over who turned off DIMS entries was never cleared up, even after months, and even years of further investigation.

NCIS investigation reports stated, "None of the aforementioned NCIS Special Agents that processed the death scene and/or initiated investigative actions pertaining to captioned investigation claimed that they instructed any JTF GTMO personnel to cease making entries into DIMS of V/Al Hanashi on 01/02 JUN09. In addition, all the aforementioned NCIS Special Agents advised that they would not have given such an instruction."

And yet, someone gave the instruction.

One person at Guantánamo, whose name was redacted in the FOIA release, was asked to provide the name of the person who made the last DIMS entry for Al Hanashi. This person told the NCIS investigator "he would have to send the request through his chain of command."

Why NCIS thought this individual might know who the last person was to make a DIMS entry for Al Hanashi has not been explained, but the NCIS Agent investigating the matter did tell this person to contact NCIS "if he had difficulty obtaining the requested information."

The FOIA record does not show that any name was ever obtained or reported back to NCIS. There is no record of this request up the chain of command ever being further discussed or acted upon.

Author's Note: All NCIS investigation documents into the death of Al Hanashi, and other government documents referenced in this article are available online at GuantánamoTruth.com. The material in this article was adapted from the book, Cover-up at Guantánamo: The NCIS Investigation into the "Suicides" of Mohammed Al Hanashi and Abdul Rahman Al Amri.

Former Gitmo Prisoner David Hicks Seeks to Vacate Conviction, Cites "Unlawful Process," Torture

The Center for Constitutional Rights (CCR) released a press release yesterday on its filing, with co-counsel, on behalf of former Guantanamo prisoner David Hicks of an appeal of his 2007 conviction in the Guantanamo military commissions. While Hicks pled guilty, he did not admit guilt, under a special legal strategem known as an Alford Plea. In any case, as the press release explains, the charge for which Hicks was convicted -- "material support for terrorism" -- has been deemed by a federal court to be not a war crime. Hicks' filing includes information about his torture at Guantanamo, and describes Hicks' "guilty" plea as made under duress.

For more on David's case, see the link at end of the press release. Also check out The Justice Campaign website, and Jason Leopold's 2011 interview with Hicks, the first with a journalist after he was released from prison in Australia.

CCR states that it "is dedicated to advancing and protecting the rights guaranteed by the United States Constitution and the Universal Declaration of Human Rights. Founded in 1966 by attorneys who represented civil rights movements in the South, CCR is a non-profit legal and educational organization committed to the creative use of law as a positive force for social change."

Court’s Rejection of “Material Support” as a War Crime Invalidates Military Commission Conviction, Attorneys Say

press@ccrjustice.org

November 5, 2013, Washington D.C. – Today, the Center for Constitutional Rights (CCR) and co-counsel Joseph Margulies filed an appeal on behalf of former Guantánamo prisoner David Hicks seeking to vacate Hicks’ conviction in the military commissions for “material support for terrorism.” Hicks pleaded guilty in 2007. He was the first prisoner to be convicted in a Guanánamo military commission and a party in the historic Supreme Court ruling in Rasul v. Bush, which established that Guantánamo prisoners had a right to access U.S. courts to challenge their detention. The appeal comes in the wake of the D.C. Circuit’s 2012 decision in Hamdan v. United States, which held that material support for terrorism is not a war crime and thus beyond the jurisdiction of military commissions.

“The D.C. court’s rejection of material support as a war crime is a reminder that a military commission prosecution can unravel at any time” said CCR Senior Staff Attorney Wells Dixon. “Years after Hicks was convicted and served his sentence, a federal court has concluded that the process by which he was convicted was unlawful. This is just another reason why Obama needs to end the failed experiment in Guantánamo.”

In a 74-page affidavit released in 2004, Hicks detailed torture he suffered at the hands of U.S. forces during the five and a half years he spent at Guantánamo, which included beatings, forced sedation, and sexual assault. In 2007, he entered an Alford plea, in which he pleaded guilty while continuing to assert his innocence. According to Hicks the plea was coerced and he pleaded guilty only because he believed it was the only way to get out of Guantánamo and escape the ongoing abuse and torture.

“Today is just the first step in a long process to correct the wrongs committed against me,” said David Hicks. “I was detained for six years without having committed an offense (as recognized by the CDPP in the proceeds hearing) and was tortured and pressured with duress into making unfair decisions which did not reflect the facts. I had no choice but to sign the plea deal or I would have died in Guantánamo.”

After his release from Guantánamo, Hicks returned to Australia and was placed under a one-year gag order prohibiting him from speaking to the media. As part of his plea agreement, he was also required to withdraw allegations that the U.S. military abused him and agree not to take legal action against the United States.

Co-counsel in the case are Joseph Margulies and military defense counsel Samuel Morrison and Captain Justin Swick. David Hicks is represented in Australia by Stephen Kenney.

The case is Hicks v. United States. More information, including today’s filing, is available here.

CCR has led the legal battle over Guantanamo for nearly 12 years – representing clients in two Supreme Court cases and organizing and coordinating hundreds of pro bono lawyers across the country to represent the men at Guantanamo, ensuring that nearly all have the option of legal representation. Among other Guantánamo cases, the Center represents the families of men who died at Guantánamo, and men who have been released and are seeking justice in international courts. In addition, CCR has been working through diplomatic channels to resettle men who remain at Guantánamo because they cannot return to their country of origin for fear of persecution and torture.

Will Bogdan's Claims of Insufficient Staffing Cause Al Qaeda to Attack Guantanamo?

Jason Leopold, who has been filing requests for government documents like there is no tomorrow, apparently caught Department of Defense censors with their pants down. The result is a rare look into the kind of political shenanigans DoD uses to justify its policies at Guantanamo.

Leopold had requested a copy of the declaration by JTF-GTMO Detention Group (JDG) chief Colonel John Bogdan filed in the litigation surrounding the controversial groin and genital searches of detainees at Guantanamo. He received a redacted version on August 3. But Leopold noticed that the redactions didn't match those of an earlier release of the document in July.

The practice of the groin and genital searches -- including before and after visits to attorneys, to make family telephone calls, etc. -- was overturned by Judge Royce Lamberth in a stinging ruling last month. But the government appealed that ruling and an appeals court reversed Lamberth's opinion pending a full government appeal. The appeals court relied heavily on declarations made by both Bogdan and his US Southern Command superior officer, Marine General John F. Kelly.

Last month I examined the issues behind Kelly's declaration. But Bogdan's declaration was unaccountably sealed. Three days after the appeals court ruling, Leopold filed suit for Bogdan's declaration.

As Leopold described it in an August 6 article at Al Jazeera (emphasis in original):

In response to the court filing, the government on Friday released a partially redacted version of Bogdan's declaration, and argued that the blacked-out passages in the document should remain secret - because they contained sensitive "operational-security information" about Guantanamo.

But it appears government lawyers were unaware that another version of Bogdan's declaration - one that contained a different set of redactions - was publicly released last month, in documents filed with the federal appeals court when the government asked Lamberth's decision to be put on hold.

Redacted passages that the government says needs to remain secret are unredacted in the earlier version filed on the public record as part of the government's appeal. At the same time, some unredacted passages in the declaration submitted on Friday are redacted in the public version of Bogdan's declaration filed with the appeals court last month.

Leopold's Al Jazeera article examines some of the differing redactions, and in general I agree with Steven Aftergood's comments in the story regarding "the subjective nature of the redaction process." However, a close read of all the redactions turns up a couple of odd new attempts at censorship by DoD of some of Bogdan's statements, one of which in particular deserves a closer look.

Insufficient Staffing for Detainee "Movements"?

In a portion of his declaration explaining to the court why Guantanamo commanders cannot consider allowing attorneys to visit their clients at either Camps 5 or 6 -- they currently meet at Camp Echo, about which more below -- Bogdan made a remarkable claim (emphasis added): "As it currently stands, JTF-GTMO cannot support all daily movements with current staff levels, so movements must be prioritized."

The "movements" concern prisoner movements outside their cell to anywhere else in the prison -- to another cell, to see their attorney, to make a call to their family, to go to the hospital or clinic, etc. For an unspecified period Guantanamo authorities ran a "frequent flyer" program, transferring prisoners from cell to cell multiple times a week "to cause sleep deprivation and disorientation."

A SOUTHCOM report on the death of prisoner Adnan Latif last September revealed that the brain-damaged detainee from Yemen was “moved from camp to camp over 67 times" during his stay at Guantanamo. So the issue of movements is not one only related to camp operations, but to the abuse and maltreatment of prisoners there. Indeed, some of these "movements" are initiated by violent beatings by so-called Emergency Reaction Forces.

Bogdan's declaration regarding insufficient staffing levels at Guantanamo was part of the initial release of his sworn declaration last month, but it was censored in the August 3 release to Leopold. The statement was overlooked after the first release, but the retrospective redaction has brought attention to Bogdan's claim.

In the government's response to Leopold's suit, defending the censorship of portions of Bogdan's unclassified declaration, the government claims the redactions concern "procedures and rationales contained in the declaration [which] constitute sensitive information, the public disclosure of which will threaten the operational security and force protection of the Guantanamo facility."

Indeed, the government goes so far as to claim the recent jail breaks at Abu Ghraib and in Pakistan speak to the dangers of a similar Al Qaeda attack on Guantanamo. While over ten years ago Al Qaeda was allegedly able to pull off the suicide bombing of the USS Cole in the port of Aden, but it is very difficult to see how Al Qeada or anyone could attack or pull off a prison break at Guantanamo.

According to Bogdan, the security has been so tight at the camp that if a detainee had been able to meet with an attorney at Camp 6, such a meeting would be forced to end if the detainee had to go to the bathroom. (The government tried to retrospectively censor this fact, too.)

But that was not the case at Camp Echo, and it's ultimately at Camp Echo where meetings with detainees and their attorneys must take place, according to camp officials. The claims about poor staffing levels are very convenient in pushing all meetings to Camp Echo (a claim that did not pass muster with Judge Lamberth, who said in his ruling that accommodations could be made at Camps 5 and/or 6, and the supposed need for lots of searches ameliorated).

I'd guess the poor staffing argument was not something Guantanamo wished to be public, especially at the same time they are pushing as propaganda the very low probability chance of Al Qaeda somehow invading Guantanamo (as if Guantanamo were somehow located somewhere akin to urban Baghdad).

Camp Echo Set Up for... Eavesdropping

According to Bogdan's declaration:

Camp Echo is specifically set up and designated to facilitate meetings with detainees, including legal visits, in a secure and safe environment. The meeting rooms at Camp Echo are specifically designed for attorney meetings and can accommodate up to five people, including the detainee. For example, Camp Echo meeting rooms have restroom facilities for the detainee, which are not available in the rooms at Camp 6.

But Camp Echo was the focus of a big controversy last Spring, when it was discovered that "smoke detectors" in the attorney-client meeting rooms at Camp Echo were in fact "high-tech audio surveillance and monitoring equipment."

According to a subsequent report by the Center for Policy and Research (CPR) at Seton Hall University School of Law, "Following the public discovery of the listening devices, Army Colonel John Bogdan ordered the use of audio in Echo II to be disconnected, but not dismantled." The rooms in question were the same rooms earlier used by the FBI, CIA and other agencies in the interrogation of the so-called "high-value detainees."

In a meeting on the matter at the military commissions, Bogdan "confirmed that there was one infrared camera mounted on the wall opposite 'from where the detainee would be locked in when there was not a meeting,' and another encased point-tilt-zoom camera mounted in a corner." Moreover, at least one video surveillance camera was so sensitive it was "capable of zooming to read 'very tiny writing' on a document used during an attorney-client discussion."

Can attorneys or detainees trust that such monitoring of privileged meetings isn't still taking place? As CPR pointed out in their report, "written Standard Operating Procedures 'neither permit nor forbid' audio monitoring."

In his declaration, Bogdan said he started to implement the new groin/genital search policy in December 2012. In that same month, according to the CPR report, he authorized an intelligence directorate request for an upgrade of the video surveillance cameras at Camp Echo “from an analog to a digital capacity.” Bogdan's story of what he knew and when about the audio and video surveillance doesn't hold water, but for a detailed examination, check out the Seton Hall report.

In summary, it would appear that DoD is trying to hide its argument about supposed staffing difficulties at Guantanamo -- arguments it surely must make to Congress, by the way -- in order to buttress its claim that the only place detainees can meet with attorneys is at Camp Echo, where, conveniently enough, they have bugged all the meeting rooms. They are holding to their arguments despite the fact a federal judge found them seriously wanting.

DoD believes its ace in the hole is the claim of dangerous attacks from Al Qaeda. It's the same message they are playing in the mainstream press, used to justify more funding for anti-terror programs, the ongoing crackdown on whistleblowers like Bradley Manning and Edward Snowden, and to hold off any release of prisoners from Guantanamo Bay.

Nothing about DoD's arguments make any sense. The SOUTHCOM report on the death of Adnan Latif, used to justify the groin and genital search policy, is riddled with holes. Moreover, as Jason Leopold, the most consistent reporter challenging DoD's spin on Guantanamo, has noted (see here and here), the entire regime at the Cuban-sited prison appears to be in a near shambles: SOPs not followed, personnel not trained, accountability totally absent.

The onerous search policy at Guantanamo appears to be mostly a clumsy bureaucratic maneuver to blame the detainees at Guantanamo for the mistakes and failures of command. Any military officer or soldier should be ashamed of such an action. The nation should be ashamed. Meanwhile, dozens of detainees at the facility remain on hunger strike, many of them still force-fed, despite the condemnations of national and world health organizations and human rights groups.

Only a full, transparent, and wide-ranging investigation into Guantanamo and other U.S. detention and interrogation sites -- including an investigation of actions at this point under the Obama Administration -- will provide the opportunity of knowing the truth behind all the spin and lies coming out of the Pentagon and CIA.

Cross-posted from The Dissenter/FDL

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.

Why the U.S. Wants Military Commission Show Trials for 9/11 Suspects

Originally posted at Firedoglake/MyFDL

A number of commentators have replied to Attorney General Eric Holder's announcement today that five suspects in the 9/11 attacks, including alleged Al Qaeda mastermind Khalid Sheikh Mohammed, will not be tried in civilian courts for the terrorist attacks almost ten years ago, but will be tried by President Obama's revamped military commissions tribunals. What no commentator has stated thus far is the plain truth that the commissions' main purpose is to produce government propaganda, not justice. These are meant to be show trials, part of an overarching plan of "exploitation" of prisoners, which includes, besides a misguided attempt by some to gain intelligence data, the inducement of false confessions and the recruitment of informants via torture. The aim behind all this is political: to mobilize the U.S. population for imperialist war adventures abroad, and political repression and economic austerity at home.

Holder claims he wanted civilian trials that would "prove the defendants’ guilt while adhering to the bedrock traditions and values of our laws." The Attorney General blamed Congress for passing restrictions on bringing Guantanamo prisoners to the United States for making civilian trials inside the United States impossible. Marcy Wheeler has noted that the Congressional restrictions related to the Department of Defense, not the Department of Justice, and there is plenty of reason to believe the Obama administration could have pressed politicians on this issue, but chose not to. (Others see it differently.)

Human rights organizations have responded with dismay, if not outrage. Center for Constitutional Rights, whose attorneys have been active in the legal defense of a number of Guantanamo prisoners, stated, "The announcement underscores the fact that decisions about whether to try detainees in federal court or by military commission are purely political. The decision is clearly driven not by the nature of the alleged offense, or where and when it was committed, but by the unpopularity of the detainee and the political culture in Washington." CCR also compared the precedent-setting behavior to "Egypt’s apparent plans to use military trials for protesters at Tahir Square."

Human Rights First spokesperson Daphne Eviatar said, "Decisions on where to prosecute suspected terrorists should be made based on careful legal analysis, not on politics. This purely political decision risks making a second-class justice system a permanent feature U.S. national security policy – a mistake that flies in the face of core American values and would undermine U.S. standing around the world.”

Most organizations stressed the fact that this was an about-face for the Obama administration. Indeed, one of the oldest human rights organizations in the United States, Human Rights Watch, called the decision a "blow to justice." HRW Executive Director Kenneth Roth said, "The military commissions system is flawed beyond repair. By resurrecting this failed Bush administration idea, President Obama is backtracking dangerously on his reform agenda."

The National Association of Criminal Defense Lawyers statement concentrated on the faults of the military commissions themselves, headlining their press release, "At Guantanamo, "Detainees Are Presumed Guilty":

"Despite some cosmetic changes since the Bush-era commissions, the commission rules still permit the government to introduce secret evidence, hearsay and statements obtained through coercion,” said the association’s Executive Director, Norman Reimer. “NACDL maintains that the rules and procedures for these commission trials raise serious questions about the government’s commitment to constitutional principles upon which our country was founded. "

Anthony Romero, Executive Director of the ACLU, echoed this today when he called the military commissions "rife with constitutional and procedural problems," noting the outstanding cases "are sure to be subject to continuous legal challenges and delays, and their outcomes will not be seen as legitimate."

The Origins of the Military Commissions

CCR, HRF, HRW, and NACDL are all correct, so far as they go. It is evident to many observers that only peculiar military exigency, backed by facts, could allow for military tribunals, as the Supreme Court's 2006 Hamden decision made clear. It is a matter of historical record that the Bush-era military commissions policy, adopted by President Barack Obama, was initially pushed by former CIA employees William Barr and David Addington, with the encouragement of former Vice President Dick Cheney, along with other "War Council" participants John Yoo, Defense Department counsel under Donald Rumsfeld, William Haynes, and Bush lawyers Alberto Gonzales and Timothy Flanigan.

At the same time the military commissions proposal was initiated, via a military order by Bush, the Bush administration was stripping detainees of Geneva Conventions protections, as well as implementing a program of torture, with Haynes soliciting the Pentagon's Joint Personnel Recovery Agency (JPRA) as early as December 2001 for techniques used in the "exploitation" of prisoners.

In a recent article by Jason Leopold and Jeffrey Kaye, it was shown that the JPRA program that was "reverse-engineered" was Survival, Evasion, Resistance, and Escape (SERE) course SV-91, "Special Survival for Special Mission Units," whose mission was to train U.S. military and intelligence personnel to withstand torture meant to "exploit" them for enemy purposes. Those purposes went far beyond the gathering of intelligence. As then-SERE psychologist Bruce Jessen, who was later to work as a contract psychologist and interrogator for the CIA beginning in 2002, noted in notes for SV-91 written in 1989:

“From the moment you are detained (if some kind of exploitation is your Detainer’s goal) everything your Detainer does will be contrived to bring about these factors: CONTROL, DEPENDENCY, COMPLIANCE AND COOPERATION,” Jessen wrote. “Your detainer will work to take away your sense of control. This will be done mostly by removing external control (i.e., sleep, food, communication, personal routines etc. )…Your detainer wants you to feel ‘EVERYTHING’ is dependent on him, from the smallest detail, (food, sleep, human interaction), to your release or your very life … Your detainer wants you to comply with everything he wishes. He will attempt to make everything from personal comfort to your release unavoidably connected to compliance in your mind.”

Jessen wrote that cooperation is the “end goal” of the detainer, who wants the detainee “to see that [the detainer] has ‘total’ control of you because you are completely dependent on him, and thus you must comply with his wishes. Therefore, it is absolutely inevitable that you must cooperate with him in some way (propaganda, special favors, confession, etc.).”

A former colleague of Dr. Jessen, and along with him a founder of the SV-91 SERE class, former Captain Michael Kearns told Leopold and Kaye:

“What I think is important to note, as an ex-SERE Resistance to Interrogation instructor, is the focus of Jessen’s instruction. It is exploitation, not specifically interrogation. And this is not a picayune issue, because if one were to ‘reverse-engineer’ a course on resistance to exploitation then what one would get is a plan to exploit prisoners, not interrogate them. The CIA/DoD torture program appears to have the same goals as the terrorist organizations or enemy governments for which SV-91 and other SERE courses were created to defend against: the full exploitation of the prisoner in his intelligence, propaganda, or other needs held by the detaining power, such as the recruitment of informers and double agents. Those aspects of the US detainee program have not generally been discussed as part of the torture story in the American press.”

The Stalinist governments of the USSR and East Europe used to make a great practice of show trials, one of the most famous being the trial of Hungarian Cardinal Mindszenty. Arthur Koestler's famous book Darkness at Noon is about the show trial and confession of an "old Bolshevik" under Stalin's regime. Such show trials still occur in many parts of the world, from China and Vietnam, to Indonesia, Burma, Iran, Pakistan, Zimbabwe, and the list could go on and on.

That list now includes the United States, where most recently, former child prisoner Omar Khadr was tried in a military commission, pleading guilty with a coerced confession, after years of torture and imprisonment in solitary confinement, his penalty phase of the military tribunal amounting to a show trial, complete with psychiatric "expert" testimony about Khadr's supposed propensity for "terrorism." The result? A 40-year sentence for the young man who never spent a free day as an adult, part of a staged deal with the U.S. military prosecutors, who presumably will release Khadr to Canadian authorities in a year or so, where he will continue to be imprisoned, pending any appeals there. But the penalty "trial" got a lot of press, and the U.S. was able to garner a propaganda "victory."

Without Accountability, Whither America?

The United States is only a small step away from some kind of dictatorship. This may sound like hyperbole to some, but the lack of a clear and strong opposition to military and intelligence community institutional pressures has driven the Obama administration to the right even of the Bush administration on matters of secrecy and executive power. Proposals for "terrorist" or "national security" courts continue to be seriously considered, while the public uproar over the use of torture on prisoners has died down ever since Barack Obama told his Democratic Party followers not to "look back," and made clear that accountability for war crimes would not happen on his watch. Meanwhile, tremendous inroads are made on privacy rights, while surveillance of private citizens, strip searches at airports, seizures of personal computers, and gathering of personal data from emails and phone calls are now everyday occurrences.

As a result, Obama has been the active creature of militarist forces within the government, and on point after point, has given way to lobbying by the military and intelligence establishments, themselves beholden to a power elite that holds the economic reins of the country, from oil to finance, in their hands. Obama's role is most evident in his recent military actions against Libya.

The courts, too, have stepped back from their gesture towards judicial independence under Bush, with the Supreme Court ruling today that it would not hear three Guantánamo detainee cases, appeals on rejected habeas reviews regarding Fawzi Khalid Abdullah Fahad Al Odah, Ghaleb Nassar Al-Bihani and Adham Mohammed Ali Awad. While the cases concerned issues surrounding use of hearsay, other evidentiary standards, the role of international law, and the right to a meaningful challenge to detention, the Court gave no explanation for denial of cert. Courthouse News noted, by the way, that new Justice Elena Kagan "does not appear to have recused herself from consideration of two of the cases because of her prior work as U.S. Solicitor General."

Meanwhile, some anti-torture activists are trying to pursue accountability the best they can, going after the licensure status of mental health professionals who participated in the Bush torture regime. Complaints against former Guantanamo Chief Psychologist Larry James and CIA contract interrogator James Mitchell have not gotten very far, with their cases dismissed.

Another case against former Major John Leso, a psychologist working for the DoD Behavioral Science Consultation Team at Guantanamo, who in 2002 helped write an interrogation protocol that relied in part on SERE "reverse-engineered" torture techniques, was also dismissed, but according to Raw Story, this Tuesday the Center for Justice and Accountability (CJA) and the New York Civil Liberties Union (NYCLU) will ask the New York Supreme Court to reconsider the decision of the New York State Office of Professional Discipline (OPD) not to investigate the misconduct complaint against Leso.

The issue of the military commissions must be considered in the context of its embedded existence as part of a full-scale exploitation plan upon prisoners, implemented as part of a war policy with strong imperialist ambitions, initiated by the United States in the aftermath of 9/11. The agitation for such a war preceded 9/11. The terrorist attack set lose this militarist policy, whose appurtenances -- military tribunals, exploitation of prisoners, psychological warfare, secret prisons, false confessions, experimental torture programs, and unchecked executive power -- threaten to end the semblance of democracy in the United States once and for all.

U.S. Gov't Trumped-Up Crimes to Support Military Commission Conviction Up for Appeal

The following press release was sent out by Center for Constitutional Rights, and includes a powerful statement regarding the legal machinations behind the military commissions tribunals brought back to life by the Obama administration.

Government Calls Native American Resistance of 1800s “Much Like Modern-Day al Qaeda”

March 16, 2011, New York – Today, the Center for Constitutional Rights (CCR) issued the following statement concerning the hearing before the United States Court of Military Commission Review in United States v. Al Bahlul, scheduled for March 17, 2011, at 10:00 a.m. in Washington, D.C.:

[Ali] Al Bahlul is the first appeal of a Guantánamo military commission conviction to proceed before the Court of Military Commission Review.  It is notable because it involves a conviction and life sentence in search of supporting war crimes offenses.

Mr. Bahlul has been imprisoned at Guantánamo for nearly a decade.  After two presidential administrations, one Supreme Court decision, two acts of Congress, three sets of charges, a trial that concluded more than two years ago, appellate proceedings that began more than a year ago, a reshuffling of the Court of Military Commission Review and a decision to hear the appeal en banc, the government has all but conceded that the offenses for which Mr. Bahlul was originally convicted before a military commission – conspiracy, solicitation and providing material support for terrorism – were not established law-of-war offenses under U.S. or international law at the time they were allegedly committed.

The court appears to recognize this as well, because on January 25, 2011, it issued certified questions on its own and ordered the parties to address whether Mr. Bahlul’s conviction can nonetheless be supported under a “joint criminal enterprise” theory of liability, or on the grounds that he “aided the enemy,” despite the fact that he owed no duty or allegiance to the United States. These questions are the subject of tomorrow’s hearing.

The court’s action is highly irregular because the government expressly withdrew reliance on a “joint criminal enterprise” theory of liability and never argued a charge of “aiding the enemy” at Mr. Bahlul’s commission trial.  Common sense also dictates that attempting to justify a life sentence for an alleged “enemy” who owes no duty or allegiance to the United States because he “aided the enemy” is legal bootstrapping.

Military commission judges, no less than other military officers, are sworn to uphold and defend the Constitution, not to devise creative legal theories never argued by the parties at trial in order to uphold law-of-war convictions. Although the government may have badly botched the prosecution of Mr. Bahlul, the court should reject the invitation in the government’s response to the certified questions to search out some legal theory – any legal theory – to support his conviction. Nothing less is demanded of a regularly constituted court.

The court should also reject the government’s notable reliance on the “Seminole Wars” of the 1800s, a genocide that led to the Trail of Tears. The government’s characterization of Native American resistance to the United States as “much like modern-day al Qaeda” is not only factually wrong but overtly racist and cannot present any legitimate legal basis to uphold Mr. Bahlul’s conviction.

Sadly, however, the removal and attempted eradication of Native Americans is not unlike the treatment of detainees at Guantánamo in that each stands alongside slavery and Jim Crow, the targeting of immigrants, and the internment of Japanese Americans, among other examples, as a stark reminder of how in times of fear and xenophobia our nation has brutalized and demonized human beings as “others” who are unworthy of the rights most Americans take for granted in order to deny them equal protection of the law.

Guantánamo was designed to be a prison where no laws applied. Today, it remains a prison reserved exclusively for Arab and Muslim men, many of whom the president recently announced would be subjected to military commissions, an ad hoc system intended to manufacture convictions unattainable in federal court. This secondary system of justice should be abandoned. Mr. Al Bahlul’s conviction should be overturned, and the prison, which administration officials continue to recognize threatens and demeans the United States, must be closed now.

The Center for Constitutional Rights has led the legal battle over Guantanamo for the last nine years – sending the first ever habeas attorney to the base and sending the first attorney to meet with an individual transferred from CIA “ghost detention” to Guantanamo. CCR has been responsible for organizing and coordinating more than 500 pro bono lawyers across the country to represent the men at Guantanamo, ensuring that nearly all have the option of legal representation. In addition, CCR has been working to resettle the approximately 30 men who remain at Guantánamo because they cannot return to their country of origin for fear of persecution and torture.

Andy Worthington wrote a summary of Al Bahlul's case last September:

ISN 039 Al Bahlul, Ali Hamza (Yemen)

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

Dr. Welner Defends His Testimony in Khadr Trial, Spreads U.S. Propaganda on Detainee "Recidivism"

Originally posted at Firedoglake/MyFDL

On Christmas Eve, the Washington Post published an op-ed by forensic psychiatrist Michael Welner, "What I really said about radical jihadism." Dr. Welner achieved some notoriety for his testimony in the sentencing phase of the trial of fomer child soldier and Guantanamo prisoner, Omar Khadr. Mr. Khadr was the first former child soldier tried for war crimes by the United States in living memory. Sentenced to forty years in prison, due to a stipulation that was part of a plea bargain that garnered a confession from the formerly tortured Khadr, his sentence has been reduced to eight years, some at Guantanamo, where he remains imprisoned in solitary confinement, and some in Canada, upon a presumed repatriation at some point in the future.

As I pointed out at the time, even before he testified, Dr. Welner was telling Steven Edwards of the Canadian National Post that the young Khadr had failed to "publicly repudiat[e] al Qaida, as civilized Muslims should." Nor was Dr. Welner above a sly comparison of the young Omar Khadr, who has spent his entire brief adulthood in U.S. custody, with America's arch enemy (and former ally) Osama bin Laden.

“When one leaps to the conclusion about Omar Khadr’s future because he is friendly, one might recall that Osama bin Laden has always been described as gentle, likeable and charming,” New York-based Welner told Postmedia News.

The "Context" of "Radical Jihadism"

In a December 5 op-ed, also for the Washington Post, "Radical jihadism is not a mental disorder," retired Brigadier General (and child and adolescent psychiatrist) Stephen N. Xenakis, critiqued Welner's testimony at trial. Xenakis himself was a member of the Khadr defense team, and spent approximately 200 hours in clinical meetings with Mr. Khadr. While he was on the witness list for the sentencing phase of the military commissions trial, Dr. Xenakis never testified. (Andrea Prasow's theory for the failure to testify, posted at The Jurist, strikes me as more likely than Xenakis's own statement that the defense thought Omar Khadr's own testimony more powerful than that of his mental health witnesses.)

In his op-ed, Dr. Xenakis wrote:

"In my professional opinion, Omar Khadr is at a high risk of dangerousness as a radical jihadist," Welner said. Based on hundreds of hours of reviewing records and interviewing witnesses, and 7 to 8 hours of examining the prisoner, the doctor said he concluded that Khadr was a radical jihadist who was at risk of inspiring others to violent acts in the future.

Dr. Welner was nonplussed, replying that Xenakis had "mischaracterized" his testimony. "Assessing risk of dangerous jihadist activity borrows from clinical understandings about criminal and violent recidivism," Welner wrote, "but it must reflect the context of actual jihadist violence or an individual's ability to facilitate that violence." He added that his risk assessment on Mr. Khadr relied upon "statistical base rates" and cited a recent report from the director of national intelligence which noted that "the figures of released Guantanamo detainees who return to active battle have climbed sharply from just 6 percent in 2008 to 25 percent."

Lies, damned lies, and statistics

Now, Dr. Welner never bothers to mention that at the time of trial, the latest figures on recidivism from Guantanamo detainees was around 5%, as reported by the Department of Defense, as was finally conceded by the New York Times in an article in June 2009, after considerable controversy about over-reporting recidivism statistics. The Times noted that discrepancies which led them to report the figure as a higher 1-in-7 recidivism rate were due to adding in those detainees identified as "suspected of engaging in terrorism." (See also this May 2009 article by Lara Jakes in USA Today, which directly reports the Pentagon as giving a 5 percent recidivism rate.)

But even the latter figure is extremely questionable, as an earlier report by Professor Mark Denbeaux, attorneys Joshua Denbeaux and R.David Gratz, and researchers from the Seton Hall Law Center for Policy and Research proved in a scholarly examination of government recidivism claims published last year. The Seton Hall report demonstrates shoddy record-keeping by the Pentagon (at least two reported recidivist "terrorists" were never even at Guantanamo; some of those released took up arms against Morocco, Russia, and Turkey, but not the United States). More egregiously, former detainees are described as "returning to the fight" solely because they engaged in "anti-U.S. propaganda."

Many of the same problems occur in the report, "Summary of the Reengagement of Detainees Formerly Held at Guantanamo Bay, Cuba" (PDF), released earlier this month. The report claims that of the released detainees, "[t]he Intelligence Community assesses that 81 (13.5 percent) are confirmed and 69 (11.5 percent) are suspected of reengaging in terrorist or insurgent activities after transfer." Suspicion of terrorist activities doesn't rely anymore on engagement in "anti-U.S. propaganda," but is predicated upon "[p]lausible but unverified or single-source reporting" (emphasis added).

In a press release following the Pentagon's latest release on "recidivism" figures for former Guantanamo detainees, Center for Constitutional Rights commented, the government "persists in using the language of 're-engagement' to describe individuals, despite the fact that the majority of them should never have been detained in the first place and were known early on by the government to be innocent. It is not possible to return to the battlefield if you were never there in the first place." Furthermore, "the latest report only summarizes its figures without actually naming any alleged recidivists or including any information that would enable meaningful scrutiny."

Whatever the actual figures, and the Pentagon is hardly a trustworthy source, Dr. Welner doesn't bother to mention that the "confirmed" figure is actually around 13 percent, not the 25 percent he cites. Of course, if Welner were honest, he would admit that he didn't have any such figures at the time of his evaluation, and that the only figures then open to him were those of the approximately 5 percent reported earlier.

In addition, as a psychiatric professional, Dr. Welner must know that extrapolation of dangerousness from "clinical understandings about criminal and violent recidivism" about which he is familiar, i.e., an American population, on a population largely culturally different is extremely problematic. For instance, norms on psychological tests refer to specific populations, and one would never think of administering, for instance, a recent journal article states that use of the Psychopathy Checklist, widely used to predict violent and non-violent recidivism, is based on of Anglo-American samples, and its generalizability "beyond these groups... is still in question and requires further research." But it is just for this reason that Dr. Welner relied so heavily upon the work of Danish correctional psychologist Nicolai Sennels, "precisely because Sennels has studied and treated large-scale groups of young Muslim and non-Muslim inmates."

Racist Psychology

In his op-ed, Dr. Xenakis wrote:

As the defense explained during cross-examination, Sennels is also known for inflammatory views on Islam, having claimed that "massive inbreeding within the Muslim culture during the last 1,400 years may have done catastrophic damage to their gene pool." Sennels has described the Koran as "a criminal book that forces people to do criminal things." Welner specifically repudiated these views in court.

But in this duel of op-eds, Dr. Welner went further, defending Sennels as a professional "lauded by the Danish Psychological Association." That Sennels "has now become a foe of unregulated Muslim immigration to Europe," Welner wrote, "does not negate what he learned from giving of himself to help Muslims stay out of prison."

Sennels is a racist ideologue, who uses psychological jargon to argue for the ejection of Muslims from Europe. He spews his views, based upon his work as a social worker and psychologist working with "antisocial individuals." Despite the fact that he admits, "I did not keep statistics of any kind," he believes he has enough evidence to conclude that "very few Muslims have the will, social freedom and strength of personality" to be integrated into European society.

Sennels continues. "Many young Muslims become assailants," he writes. "This is not just because of the Muslim cultural acceptance of aggression, but also because the Muslim honor mentality makes them into fragile, insecure men. Instead of being flexible and humorous they become stiff and develop fragile, glass-like, narcissistic personalities." And from this, the Danish psychologist, "lauded by the Danish Psychological Association," and Dr. Welner, concludes that the presence of Muslim populations in many Western countries means "the possibility that violent conflict will happen in Western cities all over the world is very great." His solution: "draconian measures"; "shutting down Muslim immigration;" "tightening the thumb screws on integration"; "and perhaps even sending Muslims who proved themselves unable to adjust to our Western secular laws back to their countries of origin."

Any data stemming from the work of Nicolai Sennels is irretrievably biased and unusable. It is to the ever-lasting detriment of the U.S. armed forces that they used an expert who relied upon unscientific approaches and racist ideology to testify on the dangerousness of a Guantanamo prisoner.

Predicting Dangerousness Has "Very Low Reliability"

Dr. Welner certainly sounds on the defensive in his article. He cites a previous Supreme Court decision, Estelle v. Smith (1981), and says that since that decision "forensic psychiatry has refined such dangerousness evaluation to focus on context." Welner has reason to be defensive. For one thing, Estelle v. Smith concerned the throwing out of such a dangerousness evaluation because the defendant's rights had been violated. The irony of this is not lost on those of us who have castigated the military commissions and the entire "war on terror" detainee policy as being outside the law. Additionally, the case includes this notable aside:

...some in the psychiatric community are of the view that clinical predictions as to whether a person would or would not commit violent acts in the future are "fundamentally of very low reliability," and that psychiatrists possess no special qualifications for making such forecasts. See Report of the American Psychiatric Association Task Force on Clinical Aspects of the Violent Individual 23-30, 33 (1974); A Stone, Mental Health and Law: A System in Transition 27-36 (1975); Brief for American Psychiatric Association as Amicus Curiae 11-17.

In a widely-cited 1994 essay, "The Dimensions of Dangerousness Revisited: Assessing Forensic Predictions About Violence" in Law and Human Behavior, sociologist Robert Menzies and colleagues, concluded that while some forensic clinicians "were able to predict some people, under limited temporal and contextual conditions, some of the time, under no circumstances could even the most encouraging performances be mustered as an argument for clinical or psychometric involvement in the identification of potentially violent clinical or correctional subjects." A later 2000 study on sexual predator evaluations and evidentiary reliability concluded there is a "large and consistent body of empirical evidence indicates that the standards of the profession include no ability to accurately predict dangerous behavior" (emphasis added).

That's not the kind of evidence that Dr. Welner would wish to enter into the record. Meanwhile, Omar Khadr, victimized more ways than one would care to count, now resides in the "fortress-like" maximum security prison, called Camp 5 at Guantanamo, where he endures near-24 hour solitary confinement, which as an article on isolation in the case of purported Wikileaks whistleblower Bradley Manning recently describes, is a pernicious form of torture.