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Torture, Rendition, and other Abuses against Captives in US Custody

US Bases and Interrogation Centers

Project: Prisoner Abuse in Iraq, Afghanistan and Elsewhere
Open-Content project managed by Derek, KJF, mtuck

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During a pre-trial hearing for Spc. Charles Graner held at a US military tribunal in Mannheim, Germany, Judge Col. James L. Pohl orders the US government to complete three investigative reports about Abu Ghraib by September 10 for submission as evidence. If the government fails to complete the reports by October, he says he will “seriously revisit” Graner’s plea to dismiss the case. Pre-trial hearings are also being held in Mannheim for Spc. Megan Ambuhl, Staff Sgt. Ivan Frederick, and Spc. Javal Davis (see August 24, 2004) in order to establish what evidence can or cannot be submitted to the court-martial (Boyes 8/23/2004)

By this date, the Combatant Status Review Tribunal has ruled on the status of 14 Guantanamo detainees. In all 14 cases, the tribunal determines that the Pentagon’s original decision to designate them as unlawful enemy combatants had been justified. Twelve of 31 prisoners reviewed so far have refused to take part in the process. (Lewis 8/24/2004)

Javal Davis.Javal Davis. [Source: Jana Birchum / Getty Images]During a pre-trial hearing for Sgt. Javal Davis held at a US military tribunal in Mannheim, Germany, Judge Col. James L. Pohl denies a motion by Davis’ attorney to have Rumsfeld testify. Pohl says the defense failed to link the actions of the accused with Rumsfeld’s orders and actions. (CNN 8/24/2004) Davis will eventually be convicted and sentenced to six months in prison (see May 19, 2004-March 22, 2006).

George Fay.George Fay. [Source: US Army]Generals George Fay and Anthony R. Jones release a final report describing the findings of their combined investigation of the abuses committed by US soldiers against detainees being held at Abu Ghraib. The investigation was initially ordered by Lt. Gen. Ricardo S. Sanchez, commander of CJTF-7, who charged Fay with determining whether the 205th Military Intelligence Brigade “requested, encouraged, condoned, or solicited Military Police (MP) personnel to abuse detainees and whether MI [military intelligence] personnel comported with established interrogation procedures and applicable laws and regulations.” Lt. Gen. Anthony R. Jones joined the investigation in June and was instructed to determine if “organizations or personnel higher” than the 205th Military Intelligence Brigade chain of command were involved in the Abu Ghraib abuses. (US Department of the Army 3/9/2004) The report provides detailed descriptions of 44 separate incidents of abuse perpetrated by US soldiers against Abu Ghraib detainees beginning in September 2003. The abuses described include acts of sodomy, beatings, nudity, lengthy isolation, and the use of unmuzzled dogs aimed at making detainees urinate and defecate in fear. “The abuses spanned from direct physical assault, such as delivering head blows rendering detainees unconscious, to sexual posing and forced participation in group masturbation,” the authors say in the report. “At the extremes were the death of a detainee… an alleged rape committed by a US translator and observed by a female soldier, and the alleged sexual assault of an unknown female.” (White 8/26/2005) Parts of the report are classified because, according to Army officials, they include references to secret policy memos. But when these classified sections are leaked to the New York Times by a senior Pentagon official, they do not appear to contain any sensitive material about interrogation methods or details of official memos. Instead, the secret passages demonstrate how interrogation practices from Afghanistan and Guantanamo were introduced to Abu Ghraib and how Sanchez played a major part in that process. (Jehl and Schmitt 8/27/2004) Though the report lays most of the blame on MPs and a small group of military intelligence, civilian, and CIA interrogators, it does recommend disciplinary action for Col. Thomas M. Pappas and Lt. Col. Steven L. Jordan. “The primary causes are misconduct (ranging from inhumane to sadistic) by a small group of morally corrupt soldiers and civilians, a lack of discipline on the part of the leaders and soldiers of the 205 MI BDE [Military Intelligence Brigade] and a failure or lack of leadership by multiple echelons within CJTF-7.” Lt. Gen. Sanchez, the commander of Combined Joined Task Force (CJTF) 7, though mildly criticized, is still praised in the report as having performed “above expectations.” (US Department of the Army 3/9/2004; Graham 8/26/2005) Jones portrays the abuse as being only coincidentally linked to interrogations. “Most, though not all, of the violent or sexual abuses occurred separately from scheduled interrogations and did not focus on persons held for intelligence purposes.” Gen. Fay on the other hand writes that the majority of the victims of abuse were military intelligence holds, and thus held for intelligence purposes. In addition, he concludes that “confusion and misunderstanding between MPs and MI [military intelligence]” also contributed to acts of abuse. Military intelligence personnel ordered MPs to implement the tactic of “sleep adjustment.” “The MPs used their own judgment as to how to keep them awake. Those techniques included taking the detainees out of their cells, stripping them, and giving them cold showers. Cpt. [Carolyn A.] Wood stated she did not know this was going on and thought the detainees were being kept awake by the MPs banging on the cell doors, yelling, and playing loud music.” (US Department of Defense 8/23/2004 pdf file)
Conclusions -
bullet Nearly 50 people were involved in the 44 incidents of abuse listed in the report: 27 military intelligence soldiers, 10 military police officers, four civilian contractors, and a number of other intelligence and medical personnel who failed to report the abuse. (Graham 8/26/2005; White 8/26/2005) Military intelligence soldiers were found to have requested or encouraged 16 of the 44 incidents. (Ricks 8/26/2005; White 8/26/2005)
bullet The incidents of abuse included torture. “Torture sometimes is used to define something in order to get information,” Fay tells reporters. “There were very few instances where in fact you could say that was torture. It’s a harsh word, and in some instances, unfortunately, I think it was appropriate here. There were a few instances when torture was being used.” (White 8/26/2005)
bullet Lt. Gen. Ricardo Sanchez and his staff “contributed indirectly to the questionable activities regarding alleged detainee abuse at Abu Ghraib” and failed “to ensure proper staff oversight of detention and interrogation operations.” (US Department of the Army 3/9/2004; Graham 8/26/2005) For example, Sanchez endorsed the use of stress positions, nudity, and military working dogs (see October 12, 2003), even though they had not been approved by Rumsfeld. (White 8/26/2005) In spite of this, the executive summary of the report asserts that “the CJTF-7 Commander and staff performed above expectations… .” (US Department of the Army 3/9/2004; Graham 8/26/2005)
bullet Senior officers in Iraq failed to provide “clear, consistent guidance” for handling detainees. (US Department of the Army 3/9/2004; White 8/26/2005)
bullet There is no evidence that policy or instructions provided by senior US authorities sanctioned the types of abuses that occurred at Abu Ghraib. (Graham 8/26/2005; White 8/26/2005)
bullet CIA officials in the prison hid “ghost detainees” from human rights groups in violation of international law. (White 8/26/2005)

At Fort Bragg, defense attorneys for Pfc. Lynndie England rely upon the two Pentagon reports (see August 24, 2004) (see August 25, 2004) released the previous week to argue that their client and other low-ranking MPs were following approved military intelligence procedures. The hearing is being held to investigate the nineteen charges against England and to determine whether she should face a court-martial. Thirteen of her charges relate to the abuse of detainees, while the others concern possession of sexually explicit photos. If convicted, England faces up to thirty-eight years in prison. (Associated Press 8/30/2004)

British terror suspect Binyam Mohamed (see May-September, 2001) is flown from Afghanistan (see January-September 2004) to Guantanamo. In Morocco, Mohamed confessed to a wide array of crimes to avoid torture (see July 21, 2002 -- January 2004); as he recalls, after being charged with crimes (see November 4, 2005), his captors now want him to alter his story. He will later say: “They said they were worried I would tell the court that I had only confessed through torture. They said now they needed me to say it freely. We called them the clean team, they wanted to say they had got this stuff from a clean interrogation.” He will recall one instance where he refuses to give his fingerprints; in return, he is beaten by the so-called “Emergency Reaction Force,” a much-feared assault team: “They nearly broke my back. The guy on top was twisting me one way, the guys on my legs the other. They marched me out of the cell to the fingerprint room, still cuffed. I clenched my fists behind me so they couldn’t take prints, so they tried to take them by force. The guy at my head sticks his fingers up my nose and wrenches my head back, jerking it around by the nostrils. Then he put his fingers in my eyes. It felt as if he was trying to gouge them out. Another guy was punching my ribs and another was squeezing my testicles. Finally I couldn’t take it any more. I let them take the prints.” (Rose 3/8/2009) In October 2008, all charges against Mohamed will be dropped (see October-December 2008). In late February 2009, Mohamed will be released (see February 22-24, 2009).

Human Rights Watch says trials being held in Guantanamo before military commissions are “fundamentally flawed” and “fall far short of international due process standards.” (Human Rights Watch 1/9/2004)

A Los Angeles Times editorial says the recent hearings before a military commission in Guantanamo (see July 30, 2004) (see August 2004) (see August 24, 2004) are “slapdash preliminary hearings,” which “violated basic tenets of fairness.” They resembled “something between a Mel Brooks farce and the kangaroo courts of former Ugandan dictator Idi Amin,” the paper says. (Los Angeles Times 9/2/2004)

By this date, Combatant Status Review Tribunals have been held for 55 Guantanamo detainees. The review process has been completed for 30 of them, only one of whom—an unidentified man held prisoner at Guantanamo since May 2002—has been determined not to be an enemy combatant. He will be released without compensation. (Savage 9/9/2004) The Pentagon will refuse to provide any details about the detainee or his case—who he is or why he was determined not to be an enemy combatant. (Serrano 11/7/2004)

A marine who was a prison guard at Guantanamo in 2003 tells Seymour Hersh, anonymously, that he and his colleagues were encouraged by their squad leaders to “give the prisoners a visit” once or twice a month. This means they could rough them up. “We tried to [expletive] with them as much as we could—inflict a little bit of pain,” he says. But the fear of exposure held them back. “We couldn’t do much. There were always news people there,” he says. “That’s why you couldn’t send them back with a broken leg or so. And if somebody died, I’d get court-martialed.” The mistreatment was often administered ad hoc. The marine says: “A squad leader would say, ‘Let’s go—all the cameras are on lunch break.’” He also recalls hooding prisoners and then driving “them around the camp in a Humvee, making turns so they didn’t know where they were.… I wasn’t trying to get information. I was just having a little fun—playing mind control.” A senior FBI official tells Hersh that FBI agents at Guantanamo have described similar activities. (Hersh 9/13/2004)

An unnamed secret CIA prison in Kabul.An unnamed secret CIA prison in Kabul. [Source: Trevor Paglen]The New York Times reports the existence of a secret CIA detention facility housed in a hotel in the center of Kabul called the “Ariana.” It is off-limits to the International Committee of the Red Cross (ICRC) and the number of detainees held there is unknown. A former Taliban commander, Mullah Rocketi, was reportedly detained there for eight months. He says conditions were reasonably comfortable and he was not mistreated. He was released in 2003 after making an undisclosed deal with his captors. Another Taliban leader detained at the Ariana since January 2004 is Jan Baz Khan, according to an anonymous US military commander. (Gall and Rohde 9/17/2004)

The Pentagon announces the transfer of 35 prisoners from Guantanamo to Pakistan, 29 of whom will remain in detention under the control of the Pakistani government. The remaining six will be released. The total number of detainees at Guantanamo is now “approximately 550.” (US Department of Defense 9/18/2004)

Fourteen prisoners are transferred from Afghanistan to Guantanamo. They include Abdulsalam Ali Abdulrahman, a Yemeni security official who had foreknowledge of 9/11 and was seized in Egypt (see August 12, 2000 and September 2002), and Saifulla Paracha, a Pakistani citizen who was arrested and sent to Bagram in July 2003 (see July 2003). All the other twelve detainees had previously been transported to Afghanistan as a part of the CIA’s rendition program. (Knight Ridder 1/11/2005; Grey 2007, pp. 257)

The Pentagon announces that 11 detainees have been transferred from Guantanamo to Afghanistan, (US Department of Defense 9/22/2004) while 11 detainees have been brought from Afghanistan to Guantanamo. The total number of inmates at Guantanamo is reported to be 549. (US Department of Defense 9/22/2004)

Side profiles of Habibullah (left) and Dilawar (right).Side profiles of Habibullah (left) and Dilawar (right). [Source: CBS]More than one-and-a-half years after the deaths of the Afghan detainees Mullah Habibullah (see November 30-December 3, 2002) and Dilawar (see December 10, 2002), the US Army Criminal Investigation Command completes its investigation of the two cases. It finds that 28 military personnel, including two captains, were involved in the incident. The perpetrators could be charged with involuntary manslaughter, assault, and conspiracy. A Pentagon official says five or six of the soldiers will likely be charged with the most serious offenses. The investigation concludes that “multiple soldiers” beat Dilawar and Habibullah, using mostly their knees. It is likely, according to Pentagon officials, that the beatings were concentrated on the legs of the detainees, so that wounds would be less visible. Amnesty International severely criticizes the long duration of the investigation. “The failure to promptly account for the prisoners’ deaths indicates a chilling disregard for the value of human life and may have laid the groundwork for further abuses in Abu Ghraib and elsewhere,” says Jumana Musa of Amnesty International USA. (Shanker 10/15/2004)

Lt. Col. Anthony Christino III, a 20-year military intelligence veteran who spent six months in 2003 working as “senior watch officer” with a Joint Intelligence Task Force, says that material he reviewed from Guantanamo indicated that the administration had “wildly exaggerated” the intelligence value of the Guantanamo detainees. The process of screening captives at Bagram for detention at Guantanamo was “hopelessly flawed from the get-go,” he says. The personnel that conducted the screening were “far too poorly trained to identify real terrorists from the ordinary Taliban militia.” Most of the Guantanamo detainees had no connection to al-Qaeda, Christino said, adding that Gen. Geoffrey D. Miller’s system would have only produced false confessions. (Bright 10/3/2004) He also says it is doubtful that Guantanamo prisoners possessed any important intelligence concerning al-Qaeda. Anyone claiming to have such information probably fabricated it in response to the awards and punishment policy instituted by General Miller. Christino’s account is supported by an FBI official whose job it is to track suspected terrorists. The official tells the Guardian, “I’m unaware of any important information in my field that’s come from Gitmo. It’s clearly not a significant source.” (Rose 10/3/2004)

Four US soldiers are charged with murdering an Iraqi major general in their custody. Almost a year ago, Major General Abed Hamed Mowhoush died during an interrogation at a base near Qaim, in western Iraq. Mowhoush was smothered to death (see November 26, 2003). The four soldiers are Chief Warrant Officers Jefferson L. Williams and Lewis E. Welshofer, Jr., Sergeant First Class William J. Sommer, and Specialist Jerry L. Loper. All are charged with murder and dereliction of duty. Williams, Welshofer, and Sommer were members of the 66th Military Company, a unit of the 3rd Armored Cavalry Regiment. Loper was a member of the regiment’s Support Squadron, and assigned to helicopter maintenance. Only Welshofer has training in interrogation practices. Mowhoush, allegedly a high-ranking member of the anti-American insurgency, surrendered to US forces two weeks before his death. The Pentagon initially reported his death as due to “natural causes,” but now admits Mowhoush was tortured to death. “General Mowhoush was allegedly placed in a sleeping bag and then bound to prevent his movement,” a Pentagon report says. “One of the warrant officers [Welshofer] reportedly sat on his chest and continued the interrogation. General Mowhoush was then rolled over, and the warrant officer sat on his back.” Mowhoush died in that position. A medical examination proved that he had died of asphyxiation. Other documents later show that Mowhoush had a bag pulled over his head, the bag was wrapped tightly with electrical cords, and he was beaten and kicked by a crowd of interrogators and officials (see January 19, 2006). Regiment commander Colonel David Teeples says of the charges, “There is no evidence, there is no proof.” Much of the evidence presented in the case is classified and may not ever be made public. “If there are witnesses or documents that would disclose classified information, the trial is closed for those portions,” says retired Air Force Colonel Skip Morgan, a former military judge. (Roeder 10/5/2004) The murder charge against Sommer will later be dropped. Williams and Loper will make plea agreements in return for their testimony against Welshofer. (Foster 1/17/2006) Welshofer will be convicted, but will not serve jail time or even be discharged from the Army (see January 24, 2006).

British Guantanamo prisoner Feroz Abbasi argues during his Combatant Status Review Tribunal hearing that he should be granted POW status in accordance with the Geneva Conventions. One of the three Tribunal members, an Air Force colonel, replies: “Mr. Abbasi, your conduct is unacceptable…. I don’t care about international law. I don’t want to hear the words ‘international law’ again.” (Sunday Times (London) 11/21/2004)

The Israeli newspaper Ha’aretz reports that at least 11 men are being held in incommunicado in a Jordanian detention center on behalf of the US. Khalid Shaikh Mohammed and Hambali are presumed to be among those detained (see June 11, 2004). (Reuters 10/13/2004)

The CIA says in a court filing that it cannot confirm or deny the existence of documents being sought after by the American Civil Liberties Union (ACLU) “because to do so would tend to reveal classified information and intelligence sources and methods that are protected from disclosure.” The ACLU sued the government for access to the documents two months earlier. The documents, which a US District Court ordered the government to provide (see August 12, 2004), relate to the treatment of detainees in Guantanamo and Afghanistan. (Savage 12/27/2004)

Mohammed Jawad, an Afghan teenager at Guantanamo for nearly two years (see December 17, 2002), is designated an “enemy combatant” at a Combatant Status Review Tribunal. (Human Rights First 9/2008) Jawad has attempted suicide while in US custody, and has been subjected to abuse (see December 2003 and June 19, 2008).

Noor Uthman Muhammed, a detainee being held at Guantanamo, disputes many of the allegations made against him at a combatant status review tribunal hearing to determine if he is an enemy combatant. Muhammed admits receiving and giving military training at Khalden Camp in Afghanistan, buying food for the camp, and being captured with training camp facilitator Abu Zubaida (see March 28, 2002). However, he contests many of the charges, and he denies:
bullet Handling one of the weapons he is accused of using, the Zukair anti-aircraft weapon, which he says he has never heard of;
bullet Procuring a fax machine for Osama bin Laden. He did attempt to buy a piece of similar equipment, but the deal did not go through and the equipment was for himself, not bin Laden, who he has never met;
bullet Being assisted in his escape from Afghanistan by a senior al-Qaeda lieutenant. When he asks for the lieutenant’s name, the military officials are unable to provide it;
bullet Having a Somali passport;
bullet Being associated with al-Qaeda. He comments: “I have no knowledge of al-Qaeda, and I don’t know anybody from there. But if you want to say that I’m Muslim and want to make-believe I belong to al-Qaeda, then that is something different”;
bullet Being associated with the Taliban. He comments: “I don’t know anything about the Taliban. I never carried arms with them.” (US Department of Defense 2004 pdf file)

Staff Sgt. Ivan Frederick tells Judge Col. James L. Pohl during his court-martial that he never thought of reporting the abuse he witnessed at Abu Ghraib. “I didn’t think anyone cared about what happened to detainees as long as they didn’t die,” he says. In addition, he feared his comrades’ reaction. “I was afraid of retaliation by other soldiers. We all walked around with loaded weapons. It was very high stress.” (Morin 10/21/2004)

Following criticism over their impartiality (see August 24, 2004), retired Army Maj. Gen. John D. Altenburg Jr. removes three members from the six-member military commission that is trying enemy combatants at the Guantanamo base in Cuba. (Buncombe 10/23/2004) Altenburg heads the Appointing Authority for the Office of Military Commissions, which selects members of the military commissions. (Hendren 8/25/2004) Army Col. Peter Brownback retains his job. Brownback’s eligibility to preside over the Guantanamo hearings had earlier been challenged by Navy Lt. Cmdr. Charles Swift, the attorney for detainee Salim Ahmed Hamdan. Critics suggest his close personal relationship with Altenburg is a factor. Brownback was a close colleague of Altenburg at Fort Bragg. He attended the wedding of Altenburg’s son, and his wife worked in Altenburg’s office. Swift criticizes the decision not to remove Brownback and says the standards “make no sense.” (Buncombe 10/23/2004)

In a new report on human rights abuses in the US, Amnesty International says that the poor conditions at Guantanamo cause detainees “severe psychological distress.” (Amnesty International 10/27/2004)

The Army completes a classified report on detainee abuse at Camp Nama, a Special Forces detention center at Baghdad International Airport. The report is based on an investigation led by Brigadier General Richard Formica into three specific allegations against the Combined Joint Special Operations Task Force Arabian Peninsula, which operates throughout Iraq. Formica’s report concludes that detainees who report being sodomized or beaten are seeking sympathy and better treatment, and thus are not credible. The report cites an Army medical report which had initially noted that a complaining detainee’s wounds were “consistent with the history [of abuse] he provided.… The doctor did find scars on his wrists and noted what he believed to be an anal fissure.” Two days later, Formica had the detainee re-examined by another doctor, who found “no fissure, and no scarring.” Formica concludes, “As a result, I did not find medical evidence of the sodomy.” In the case of a detainee who died in custody, Formica reports that the detainee suffered bruising to the “shoulders, chest, hip, and knees” but adds, “It is not unusual for detainees to have minor bruising, cuts, and scrapes.” A July 2006 report by Human Rights Watch will find evidence of “serious mistreatment” of detainees based on witness accounts of Special Forces interrogators and other US personnel. Formica will note in an e-mail: “I conducted a thorough investigation… and stand by my report.… [S]everal issues” he discovered “were corrected,” he will say. (Wood 6/17/2006; Hersh 6/17/2007)

Former US Army officer Phillip Carter points out that the Abu Ghraib scandal will make the battlefield more dangerous. “Those tens of thousands of Iraqis who surrendered during the two Gulf Wars did so because they believed they would be treated better as prisoners by the United States than as soldiers by the Hussein government. But in the wake of Abu Ghraib, more future battles fought by America will have to be fought to the death.” (Carter 11/2004)

Pentagon spokeswoman Navy Cpt. Beci Brenton says defends the Combatant Status Review Tribunals being held at Guantanamo are fair. “We think this is a professional process, she says. It’s very rigorous. It’s fair. We take extra steps to make sure the detainees understand the process, and they are given a good opportunity to speak for themselves.” (Serrano 11/7/2004)

Eugene R. Fidell, president of the Washington-based National Institute of Military Justice, says the US is skirting its obligations under the Geneva Conventions. “These are not a meaningful substitute for the competent tribunals required under the Geneva Conventions,” he says. The tribunals, he argues, should have been held in Afghanistan and Pakistan just after the detainees were captured, when evidence and witnesses were still easily obtainable. Commenting on the 104 cases so far reviewed by the tribunal—only one of which resulted in a detainee being released—Fidell sneers: “That’s a great battling average, isn’t it? They’re pitching a nearly perfect game.” (Serrano 11/7/2004)

The Combatant Status Review Tribunals has ruled on 104 cases. In only one, has the military commission ruled in favor of a detainee (see September 8, 2004), who left Guantanamo in September. (Serrano 11/7/2004)

Salim Ahmed Hamdan.Salim Ahmed Hamdan. [Source: Public domain]US District Judge James Robertson rules that the Combatant Status Review Tribunal being held at the Guantanamo base in Cuba to determine the status of detainee Salim Ahmed Hamdan is unlawful and cannot continue. At the time of the decision, Hamdan is before the Guantanamo military commission. (Leonnig and Mintz 11/9/2004; Locy 11/9/2004) The commission system, as set up by White House lawyers David Addington and Timothy Flanigan three years before (see Late October 2001), gives accused terrorists such as Hamdan virtually no rights; in author and reporter Charlie Savage’s words, “the [Bush] administration had crafted rules that would make it easy for prosecutors to win cases.” (Savage 2007, pp. 195-196)
Violation of Geneva Conventions - Robertson, in his 45-page opinion, says the government should have conducted special hearings to determine whether detainees qualified for prisoner-of-war protections under the Geneva Conventions at the time of capture. (Locy 11/9/2004) He says that the Bush administration violated the Geneva Conventions when it designated prisoners as enemy combatants, denied them POW protections, and sent them to Guantanamo. (Savage 11/9/2004) The Combatant Status Review Tribunals that are currently being held in response to a recent Supreme Court decision (see June 28, 2004) are inadequate, Robertson says, because their purpose is to determine whether detainees are enemy combatants, not POWs, as required by the Third Geneva Convention. (Locy 11/9/2004)
Rejects Claims of Presidential Power - Robertson also rejects the administration’s claim that the courts must defer to the president in a time of war. “The president is not a ‘tribunal,’” the judge says. (Locy 11/9/2004) Robertson, a Clinton appointee, thus squarely opposes both the president’s military order of November 13, 2001 (see November 13, 2001) establishing the possibility of trial by military tribunal, and his executive order of February 7, 2002 (see February 7, 2002) declaring that the Geneva Conventions do not to apply to Taliban and al-Qaeda prisoners. “The government has asserted a position starkly different from the positions and behavior of the United States in previous conflicts,” Robertson writes, “one that can only weaken the United States’ own ability to demand application of the Geneva Conventions to Americans captured during armed conflicts abroad.” (Locy 11/9/2004; Leonnig and Mintz 11/9/2004; Savage 11/9/2004)
Orders Military Courts-Martial - Robertson orders that until the government conducts a hearing for Hamdan before a competent tribunal in accordance with the Third Geneva Conventions, he can only be tried in courts-martial, according to the same long-established military rules that apply to trials for US soldiers. (Leonnig and Mintz 11/9/2004; Savage 11/9/2004) Robertson’s ruling is the first by a federal judge to assert that the commissions are illegal. (Leonnig and Mintz 11/9/2004)
Hearings Immediately Recessed - When word of Robertson’s ruling comes to Guantanamo, Colonel Peter Brownback, presiding over a pretrial hearing for Hamdan, immediately gavels the hearing closed, declaring an “indefinite recess” for the tribunal. (Savage 2007, pp. 195-196)
Ruling Applauded by Civil Libertarians, Rejected by Bush Lawyers - Anthony Romero, director of the American Civil Liberties Union; Eugene Fidell, president of the National Institute of Military Justice; and Michael Ratner, president of the Center for Constitutional Rights, all applaud Robertson’s ruling. (Savage 11/9/2004) The Bush administration rejects the court’s ruling and announces its intention to submit a request to a higher court for an emergency stay and reversal of the decision. “We vigorously disagree.… The judge has put terrorism on the same legal footing as legitimate methods of waging war,” Justice Department spokesman Mark Corallo says. “The Constitution entrusts to the president the responsibility to safeguard the nation’s security. The Department of Justice will continue to defend the president’s ability and authority under the Constitution to fulfill that duty.” (Leonnig and Mintz 11/9/2004; Savage 11/9/2004) He also says that the commission rules were “carefully crafted to protect America from terrorists while affording those charged with violations of the laws of war with fair process.” (Savage 11/9/2004)
Ruling May Affect Other Detainees - Though the ruling technically only applies to Hamdan, his civilian attorney, Neal Katyal, says it could affect other detainees. “The judge’s order is designed only to deal with Mr. Hamdan’s case,” Katyal says. “But the spirit of it… extends more broadly to potentially everything that is going on here at Guantanamo.” (Locy 11/9/2004)

Randall Schmidt.Randall Schmidt. [Source: US Air Force]FBI agents at Guantanamo prison have been complaining to superiors about military personnel abusing detainees there since 2002 (see End of 2002). However, there is no official investigation until December 2004, after the widely publicized Abu Ghraib abuse scandal. Gen. Bantz Craddock, head of the US Army’s Southern Command and a close associate of Defense Secretary Donald Rumsfeld, assigns Air Force Lt. Gen. Randall Schmidt to investigate. Schmidt will later say, “I found some things that didn’t seem right. For lack of a camera, you could have seen in Guantanamo what was seen at Abu Ghraib.” Schmidt will say that he determined Maj. Gen. Geoffrey Miller, commander of the Guantanamo prison, “was responsible for the conduct of interrogations that I found to be abusive and degrading. The intent of those might have been to be abusive and degrading to get the information they needed.… Did the means justify the ends? That’s fine.… He was responsible.” Schmidt formally recommends that Miller be “held accountable” and “admonished.” But Craddock rejects this and absolves Miller of any improprieties, and the army’s Inspector General seconds that conclusion. By this time, Miller is in charge of reforming Abu Ghraib and other prisons in Iraq (see March 22, 2004). Schmidt will later learn that Rumsfeld was in contact with Miller about some Guantanamo interrogations and personally approved the most severe interrogation tactics. (Hersh 6/17/2007)

The CIA’s Executive Director Kyle “Dusty” Foggo reviews the case of the killing of Afghan detainee Gul Rahman at the Salt Pit black site in 2002 (see November 20, 2002). However, he takes no action against the two officers involved in the death, one named Matthew Zirbel, who had Rahman doused with water and left with little clothing in the cold, and one known as Paul P., Zirbel’s boss who failed to provide him with the proper guidance. (Goldman and Gannon 3/28/2010) The timing of the review is unknown, but it must occur after Foggo becomes executive director in November 2004. (Johnson and Mazzetti 8/12/2009; Goldman and Gannon 3/28/2010)

During a court hearing involving 59 Guantanamo detainees challenging their detention, US District Judge Richard J. Leon, who is handling habeas petitions by Guantanamo prisoners simultaneously with US District Judge Joyce Hens Green, asks Deputy Associate Attorney General Brian Boyle, whether detention based only on evidence obtained by torture would be illegal. Boyle answers that such evidence could still be used if the Combatant Status Review Tribunal decides it is reliable. “Nothing in the due process clause [of the Constitution] prohibits them from relying on it.” In addition, Boyle says there will not be any restriction on the use of information derived from torture conducted by a foreign power. (Sniffin 12/3/2004; Associated Press 12/3/2004; Washington Post 12/3/2005) Evidence derived from torture has not been admissible in US courts since the 1930s. (Sniffen 12/3/2004)

Navy Secretary Gordon England says that a second detainee reviewed by the Combatant Status Review Tribunal in Guantanamo has been determined not to be an enemy combatant. England does not reveal the man’s name, nationality, information on when or where he was captured, when he was transferred to Guantanamo, or why the tribunal decided to reverse his status. So far, the tribunal has reviewed the statuses of 507 prisoners and made decisions in 230 of the cases. Two hundred fifteen detainees have refused to cooperate. (Reuters 12/20/2004)

The US television news media virtually ignores the court-martial of Specialist Charles Graner, who is charged with abusing and torturing prisoners at Abu Ghraib (see May 19, 2004-March 22, 2006 and January 16, 2005), according to author and media critic Frank Rich. “[I]f a story isn’t on TV in America, it’s MIA in the culture,” Rich will write. Much of the broadcast coverage is focused on stories about President Bush’s upcoming inauguration and on Britain’s Prince Harry, who had dressed up in Nazi regalia for a costume party. The network and cable news stations grant Graner’s trial only “brief, mechanical” summations “when it was broadcast at all.” The usual claims that television news only focuses on lurid, scandal-ridden news stories do not apply here, Rich writes: “It surely didn’t lack for drama; the Graner trial was Judgment at Nuremberg turned upside down.” Viewers do not learn of defense lawyer Guy Womack’s claim during his closing argument that “In Nuremberg, it was the government being prosecuted. We were going after the order-givers. Here the government is going after the order-takers.” Rich will later write that if the American public could not be exposed to fictional films about World War II (see November 11, 2004), then it “certainly… could not be exposed to real-life stories involving forced group masturbation, electric shock, rape committed with a phosphorescent stick, the burning of cigarettes in prisoners’ ears, involuntary enemas, and beatings that ended in death (see May 3-11, 2004). When one detainee witness at the Graner trial testified… that he had been forced to eat out of a toilet, his story was routinely cited in newspaper accounts but left unmentioned on network TV newscasts.” (Rich 2006, pp. 155)

Army Specialist Charles Graner is sentenced to 10 years in prison. In a military court-martial, Graner was convicted of crimes related to the torture and abuse of prisoners in Baghdad’s Abu Ghraib prison (see October 2003), October 17-22, 2003), November 4-December 2, 2003, and (7:00 a.m.) November 4, 2003), including charges of battery, conspiracy, maltreatment of detainees, committing indecent acts, and dereliction of duty. Graner admitted some of his actions were criminal, and told jurors, “I didn’t enjoy what I did there” before he was found guilty. Asked if he felt remorse over his actions, Graner says simply: “There’s a war on. Bad things happen.” After Graner completes his sentence, he will be dishonorably discharged. He has forfeited all of his pay and benefits. Defense lawyer Guy Womack says that Graner and his six fellow Abu Ghraib guards also facing trials (see May 19, 2004-March 22, 2006) are being used as scapegoats by the Defense Department. Graner and his lawyers were unable to effectively discuss orders being handed down from superior officers during the trial, as the judge in the court-martial, Colonel James Pohl, refused to let witnesses say the names of officers who gave the orders or what orders might have been given, in effect constraining the trial to point to Graner and his colleagues as independent, “rogue” agents operating outside the chain of command. Graner did not testify during his trial, but during sentencing said that he had done what he was ordered to do by US intelligence agents, in order to “soften up” prisoners for interrogation. According to Graner, a lieutenant in his unit told him: “If [military intelligence] asks you to do this, it needs to be done. They’re in charge, follow their orders.” He believed the orders to torture and abuse prisoners were lawful, he claims. (Associated Press 1/16/2005; Rich 2006, pp. 155) Author and media critic Frank Rich will later note that while the print media coverage of Graner’s trial is relatively extensive, the broadcast media virtually ignores it in favor of celebrating the inauguration of President Bush (see January 11-16, 2005). (Rich 2006, pp. 155)

District Judge Richard J. Leon dismisses a lawsuit by seven Guantanamo detainees challenging their detention: a French citizen, an Algerian, and five dual Bosnian-Algerian detainees. He rules that foreign nationals captured and detained outside the US have no recognizable constitutional rights (Reuters 1/20/2005; BBC 1/20/2005) and that last year’s Supreme Court ruling (see June 28, 2004) does not entitle Guantanamo detainees with the right to sue in US courts. Foreign citizens, captured and detained outside the US, according to Judge Leon, have no rights under the Constitution or international law enforceable in US courts. (Los Angeles Times 1/31/2005) “To the extent that these non-resident detainees have rights,” Leon writes, “they are subject to both the military review process already in place and the laws Congress has passed defining the appropriate scope of military conduct towards the detainees.” He adds that the “extent to which these rights and conditions should be modified or extended is a matter for the political branches to determine,” not the judicial branch. “[T]he petitioners are asking this court to do something no federal court has done before: evaluate the legality of the executive’s capture and detention of non-resident aliens, outside the United States, during a time of armed conflict.” (Reuters 1/20/2005)

The Combatant Status Review Tribunals are completed for the last of the Guantanamo detainees. Of the 327 detainees whose status has been both reviewed and ruled upon, only three prisoners were determined not to be enemy combatants and released. The remaining 228 detainees are awaiting decisions on their status. The military commissions have not provided any reasons for any of the rulings. (Olson 1/23/2005)

Five prisoners are released from Guantanamo, following a Pentagon announcement the release would take place two weeks earlier. They are Mamdouh Habib, an Australian, and the four remaining Britons: Feroz Abbasi, Moazzam Begg, Jamaal Belmar, and Martin Mubanga. British Foreign Secretary Jack Straw says the Britons’ release is the result of his “intensive and complex” discussions with the US. (Cowell 1/12/2005; Alvarez 1/26/2005) Australian Attorney General Philip Ruddock says the Australian government requested Habib’s repatriation to Australia after the US said it did not intend to bring Habib to trial. (ABC News 1/11/2005)
Two Men's Passports Confiscated - However, upon their return to England, the passports of Mubanga and Abbasi are confiscated by the British authorities using a little-known Royal Prerogative. Home Secretary Charles Clarke writes to the men saying that they are too dangerous to Britain and its allies to be allowed to travel, and that granting them passports “would be contrary to the public interest,” as there are “strong grounds for believing that, on leaving [Britain], you would take part in activities against [Britain] or allied targets. We therefore decided to withdraw your passport facilities for the time being.” (Murphy 2/15/2005)
Abbasi's Radical Connections - Abbasi is an associate of radical London imam Abu Hamza al-Masri (see 1999-2000) who had traveled to Afghanistan and been involved in fighting against the US-led invasion (see December 2000-December 2001), and had been slated for a military tribunal (see July 3, 2003).
Deal with Blair - The New York Times will suggest that the release of the four men is politically motivated and designed to bolster British Prime Minister Tony Blair, whose campaign to gather support for the Iraq war was damaged by the news of the military prosecution of Britons at Guantanamo. According to the Times, “Mr. Blair’s critics saw his inability to regain custody of a total of nine British detainees at Guantánamo as proof of his subjugation to Washington,” and the announcement of the men’s release apparently shows that Blair can stand up to the US. (Golden 10/25/2004)

The four Britons newly released from Guantanamo (see January 25, 2005) are brought to Britain, arrested and questioned by British police, and then released again. (Guardian 1/26/2005) A Pentagon spokesman says the US believes the four men continue to pose a security threat. (Dodd 1/27/2005)

US District Judge Joyce Hens Green rules that Guantanamo detainees may legally challenge their detention in US courts as a violation of their constitutional due process rights. She says that last year’s Supreme Court decision (see June 28, 2004) made it clear that detainees are entitled to constitutional rights. Her ruling flatly contradicts the decision of another judge who ruled on a similar case two weeks before (see January 20, 2005). (Los Angeles Times 1/31/2005; Leonnig 1/31/2005) She also rules that the Combatant Status Review Tribunals being held in Guantanamo are unconstitutional and “violate long-standing principles of due process….” According to Green, the tribunals deny detainees a fair trial to which they are constitutionally entitled. She found that the tribunals relied heavily on reported confessions of detainees despite widespread allegations and some evidence that detainees had been abused during interrogations. In reviewing classified material on the tribunals’ decisions, she notes that there were many cases in which the prosecution failed to provide any evidence that the detainee was ever engaged in combat or terrorism. The tribunals, Green writes, “violate long-standing principles of due process by permitting the detention of individuals based solely on their membership in anti-American organizations rather than on actual activities supporting the use of violence or harm against the United States.” (Leonnig 1/31/2005) Green also rules that Taliban members are entitled to prisoners of war status because they were fighting in the name of the Afghan government when they were captured. (Leonnig 1/31/2005)

Shortly after 9/11, Defense Secretary Rumsfeld authorized the creation of Special Access Program (SAP) task forces that are given blanket authority in advance to kill or interrogate high-value targets anywhere in the world (see Late 2001-Early 2002). In April, 2005, an unnamed US Army Criminal Investigation Division (CID) officer complains in a memo to CIA headquarters that it is impossible to investigate members of a SAP force suspected of prisoner abuse. “[We have been] unable to thoroughly investigate… due to the suspects and witnesses involvement in Special Access Programs (SAP) and/or the security classification of the unit they were assigned to during the offense under investigation.” Attempts by investigators to be given security clearance to understand the programs have been unsuccessful. Furthermore, the officer writes that “fake names were used” by members of the task force, and the force claims they had a “major computer malfunction which resulted in them losing 70 per cent of their files; therefore, they can’t find the cases we need to review.” The officer concludes that the investigation “does not need to be reopened. Hell, even if we reopened it we wouldn’t get any more information than we already have.” (Hersh 6/17/2007)

Newsweek prints an item in its “Periscope” section that reports an American guard at Guantanamo Bay flushed a detainee’s Koran down a toilet. According to the report, the US Southern Command intends to mount an investigation into the desecration, which violates US and international laws. The report sparks widespread rioting in Pakistan and Afghanistan that results in the deaths of at least 17 people. The Pentagon and the Bush administration immediately blame Newsweek for the riots and the deaths; Lieutenant General Karl Eikenberry, the senior commander of US forces in Afghanistan, says the report did not spark the Afghan rioting, as does Afghan President Hamid Karzai. Newsweek says the information came from an American official who remains unidentified. “We regret that we got any part of our story wrong, and extend our sympathies to victims of the violence and to the US soldiers caught in its midst,” Mark Whitaker, Newsweek’s editor, writes in a subsequent article. Whitaker adds: “We’re not retracting anything. We don’t know what the ultimate facts are.” The Pentagon denies the report; spokesman Bryan Whitman says: “Newsweek hid behind anonymous sources, which by their own admission do not withstand scrutiny. Unfortunately, they cannot retract the damage they have done to this nation or those that were viciously attacked by those false allegations.” The report is “demonstrably false” and “irresponsible.” Whitman says the report has “had significant consequences that reverberated throughout Muslim communities around the world.” Senior Pentagon spokesman Lawrence Di Rita calls Whitaker’s note “very tepid and qualified.… They owe us all a lot more accountability than they took.” White House press secretary Scott McClellan says, “Our United States military personnel go out of their way to make sure that the Holy Koran is treated with care.” State Department spokesman Richard Boucher says Newsweek is wrong to use “facts that have not been substantiated.” And Defense Secretary Donald Rumsfeld issues the admonishment, “[P]eople need to be careful what they say… just as people need to be careful what they do.” According to Whitaker, while the magazine tries to avoid using unnamed sources when it can, there are instances where sources will not speak to reporters unless their anonymity is guaranteed. The administration source has been reliable in the past, Whitaker says, and, moreover, the reporters of the story, Michael Isikoff and John Barry, received confirmation from both the source and a senior Pentagon official. Whitaker’s explanation notes that Newsweek has chosen not to publish previous reports of Koran desecration at Guantanamo because the sources are former detainees whom it considers unreliable. General Richard Myers, the chairman of the Joint Chiefs of Staff, says that guards and officials at Guantanamo have looked for documentation of the reported Koran-flushing and cannot find it. (Seelye 5/16/2005; Rich 2006, pp. 164) The Pentagon will conclude that the Newsweek report is indeed responsible for the riots; Isikoff and Barry’s source for the story will back off on his original claim (see May 15, 2005). A month later, the Pentagon will confirm that at least five instances of Koran desecration at Guantanamo did indeed occur (see June 3, 2005).

The Pentagon reports that an internal investigation shows no US guard at the Guantanamo Bay detention facility ever flushed a Koran down a toilet, as Newsweek recently reported. Furthermore, the rioting in Pakistan and Afghanistan that broke out after the report was released and claimed the lives of 17 people was directly sparked by the Newsweek report (see May 6-9, 2005). Pentagon spokesman Lawrence Di Rita informs Newsweek that its report is wrong. Newsweek reporter Michael Isikoff, the co-author of the report, goes back to his anonymous administration source to confirm the story. However, “the official, still speaking anonymously, could no longer be sure that these concerns had surfaced in the [US Southern Command] report [on prisoner abuse],” Newsweek writes. The story of the Koran being desecrated might have been in other reports, the source tells Isikoff. “Told of what the Newsweek source said, Di Rita explode[s],” the magazine writes. “‘How could he be credible now?’ Di Rita thunders.” National Security Adviser Stephen Hadley says the White House is “vigorously” investigating the report; if true, Hadley says, stern disciplinary action will be taken. Hadley adds that radical Islamic elements in Pakistan and Afghanistan are using the report as an excuse to incite violence. (Seelye 5/16/2005) Three weeks later, the Pentagon will confirm that at least five instances of Koran desecration at Guantanamo did indeed occur (see June 3, 2005).

The New York Times obtains a copy of a classified file of the Army criminal investigation into a number of detainee deaths at Bagram Air Force Base in Afghanistan. The report focuses on two Afghan detainees, Mullah Habibullah (see October 2004 and November 30-December 3, 2002) and a taxi driver known as Dilawar (see December 10, 2002), both of whom were in essence tortured to death; other detainees are also covered in the report. The Army report follows up on the official inquiry conducted in late 2004 (see October 2004).
Torture to Extract Information, Punish Detainees, and Alleviate Boredom - The Times writes: “Like a narrative counterpart to the digital images from Abu Ghraib, the Bagram file depicts young, poorly trained soldiers in repeated incidents of abuse. The harsh treatment, which has resulted in criminal charges against seven soldiers, went well beyond the two deaths. In some instances, testimony shows, it was directed or carried out by interrogators to extract information. In others, it was punishment meted out by military police guards. Sometimes, the torment seems to have been driven by little more than boredom or cruelty, or both.” One female interrogator has what a colleague in a sworn statement calls a taste for humiliation; that interrogator is described as having stood on the neck of one prostrate detainee, and having kicked another detainee in the genitals. Another statement tells of a shackled prisoner being forced to kiss the boots of his interrogators. A third tells of a detainee forced to pick plastic bottle caps out of a drum mixed with excrement and water. Overall, the Army report concludes that many of the tactics used by interrogators and guards amounts to criminal assault. Pentagon spokesman Larry Di Rita says: “What we have learned through the course of all these investigations is that there were people who clearly violated anyone’s standard for humane treatment. We’re finding some cases that were not close calls.” Seven soldiers, all interrogators and guards of low rank, have been charged with crimes ranging from dereliction of duty to maiming and involuntary manslaughter; two others received reprimands, and 15 others named in the original report were cited as bearing probable criminal responsibility in the deaths. One of the interrogators charged with assaulting Dilawar, Sergeant Selena Salcedo, says: “The whole situation is unfair. It’s all going to come out when everything is said and done.”
Many Interrogators Redeployed to Iraq; Bagram Tactics Used at Abu Ghraib - The Army criminal investigation was conducted slowly. During the course of the investigation, many of the Bagram interrogators, including their operations officer, Captain Carolyn Wood, were redeployed to Iraq (see Mid-March 2003). Wood took charge of interrogations at Abu Ghraib prison and, according to Army inquiries, began using tactics “remarkably similar” to those employed at Bagram (see July 15, 2003 and (Early August 2003)). She received the Bronze Star for her actions (see January 22, 2003-May 8, 2003).
Serious Disparities between Investigative Results and Personnel Statements - In the aftermaths of the deaths, military officials made a number of unsupported claims. The deaths of both Dilawar and Habibullah were originally listed as due to natural causes even as military coroners ruled the deaths homicides. The American commander in Afghanistan at the time, Lieutenant General Daniel McNeill, said that he had no indication that the deaths were caused by abuses carried out by US soldiers; the methods used in the detainees’ interrogations were, McNeill said, “in accordance with what is generally accepted as interrogation techniques.”
Poorly Trained Interrogators - The report focuses on one group of poorly trained interrogators from the Army’s 519th Military Intelligence Brigade (see July 2002). After Bush’s decree that terror suspects have no rights under Geneva, the interrogators began pushing the envelope of acceptable interrogation techniques. They began employing “stress positions” that cause pain and suffering but not, presumably, actual injury. They began experimenting with longer and longer periods of sleep deprivation. One of the more popular methods is called in military jargon “Fear Up Harsh,” or as one soldier called it, “the screaming technique.” The technique is based on verbally and physically intimidating detainees, and often degenerates into screaming and throwing furniture. The noncommissioned officer in charge of the interrogators, Staff Sergeant Steven Loring, sometimes tried to curb his interrogators’ excesses, but, contradictorily, often refused to countenance “soft” interrogation techniques, and gave some of the most aggressive interrogators wide latitude. Sergeant James Leahy recalled, “We sometimes developed a rapport with detainees, and Sergeant Loring would sit us down and remind us that these were evil people and talk about 9/11 and they weren’t our friends and could not be trusted.” One of Loring’s favorites was Specialist Damien Corsetti, nicknamed “Monster,” a tall, bearded interrogator Loring jokingly nicknamed “the King of Torture.” One Saudi detainee told Army investigators that during one session, Corsetti pulled out his penis, shoved it in the Saudi’s face, and threatened to rape him. (The earlier investigation found cause to charge Corsetti with assault, maltreatment of a prisoner, and indecent acts; no charges were filed. Corsetti was fined and demoted for brutalizing a female prisoner at Abu Ghraib.) By August 2002, the 519th interrogators, joined by a group of reservists from a military police company, were routinely beating their prisoners, and particularly favored the “common peroneal strike,” a potentially disabling blow to the side of the leg just above the knee. The MPs later said that they never knew such physical brutality was not part of Army interrogation practices. “That was kind of like an accepted thing; you could knee somebody in the leg,” one of the MPs, Sergeant Thomas Curtis, later told investigators.
'Timmy' - Specialist Jeremy Callaway told investigators of one Afghan prisoner with apparently severe emotional and mental problems. The detainee would eat his own feces and mutilate himself with concertina wire. He quickly became a favorite target for some of the MPs, who would repeatedly knee him in the legs and, at least once, chained him with his arms straight up in the air. The MPs nicknamed him “Timmy” after an emotionally disturbed child in the “South Park” animated television show. According to Callaway, one of the guards who beat the prisoner also taught him to screech like the cartoon character. Eventually, “Timmy” was sent home. (Golden 5/20/2005)

Human rights advocacy group Amnesty International reports that both the US and Britain are betraying the cause of human rights in their “war on terror.” Amnesty’s general secretary, Irene Khan, accuses both governments of condoning torture and twisting their interpretations of the law to justify and excuse torture. She says: “A new agenda is in the making, with the language of freedom and justice being used to pursue policies of fear and insecurity. This includes cynical attempts to redefine and sanitize torture.” The US’s most well-known detention facility, Guantanamo Bay, is “the gulag of our time,” she says. “The US administration attempted to dilute the absolute ban on torture through new policies and quasi-management speak such as ‘environmental manipulation,’ ‘stress positions,’ and ‘sensory manipulation,’” she says. And when these two countries justify torture, other countries follow suit. “When the most powerful country in the world thumbs its nose at the rule of law and human rights, it grants a license to others to commit abuse with impunity. From Israel to Uzbekistan, Egypt to Nepal, governments have openly defied human rights and international humanitarian law in the name of national security and ‘counter-terrorism.’” (Norton-Taylor 5/26/2005)

A Koran kept for detainees’ use at Guantanamo. The surgical mask is provided to keep the Koran off the floor, and the guards from touching the book.A Koran kept for detainees’ use at Guantanamo. The surgical mask is provided to keep the Koran off the floor, and the guards from touching the book. [Source: GlobalSecurity (.org)]The Pentagon confirms that at least five incidents of deliberate and accidental Koran desecration have occurred at Guantanamo Bay. The Pentagon and White House recently denied a Newsweek report of one such incident. Both lambasted the news magazine for printing the claim without what it called sufficent proof, and blamed Newsweek’s reporting for sparking lethal riots in Pakistan and Afghanistan (see May 6-9, 2005 and May 15, 2005). While the Pentagon and White House denunciations of the Newsweek report were timed to garner extensive media attention, the Pentagon report is released to the press and the public at 7:15 p.m. on a Friday, ensuring that it will not make Friday evening newscasts and, as author Frank Rich will later write, “be buried in the weekend papers.” (The Pentagon denies trying to downplay the report.) In the documented incidents, guards stepped on, kicked, and in one case urinated on Korans owned by the detainees. The urination incident is described as accidental—according to the report, a guard urinated near an outside air vent and his urine was caught in the airstream and carried into a prisoner’s cell. The detainee, who was also splashed, was given a fresh garment and a new Koran, and the guard was reprimanded. In another instance, guards throwing water balloons got detainees’ Korans wet. In a third instance, a two-word obscenity in English was written on the inside cover of a Koran, though the investigation could not determine whether a guard or a detainee wrote the phrase. In a fourth incident, an interrogator kicked a detainee’s Koran (see February 26, 2002-March 7, 2002). In a fifth incident, a contract interrogator stepped on a detainee’s Koran during questioning; the contractor is later fired for misconduct. Four other complaints of Koran desecration are not confirmed. “Mishandling a Koran at Guantanamo Bay is a rare occurrence,” says Brigadier General Jay Hood, commander of the Guantanamo Joint Task Force. “Mishandling of a Koran here is never condoned.” Hood says that no evidence of a Koran being flushed down a toilet, as Newsweek reported, has been found. Hood has already been caught in at least one misstatement; he claimed before the report that four of the five instances took place before January 2003, when written procedures covering handling of religious materials were implemented. The report says that four of those five incidents actually took place after January 2003. Captain Jeffrey Weir, a spokesman for the task force, says he cannot explain Hood’s contradictory statement. “Maybe he misspoke,” Weir says. “I’m not sure why he would have put it that way.” Pentagon spokesman Lawrence Di Rita says that the Hood report confirms that US guards handle the Koran with respect and dignity. “The Southern Command policy of Koran handling is serious, respectful, and appropriate,” he says. “The Hood inquiry would appear to affirm that policy.” (Schmitt 5/16/2005; Rich 2006, pp. 166)

Jed Babbin.Jed Babbin. [Source: The Intelligence Summit]Three days before a group of military analysts are taken to Guantanamo by the Pentagon for an orchestrated “tour” (see June 24-25, 2005), one planning e-mail from Pentagon official Dallas Lawrence gives weight to the belief that the tour was arranged to prepare the analysts to deliver scripted talking points before the cameras (see April 20, 2008 and Early 2002 and Beyond). Lawrence notes the importance of scheduling the Guantanamo trip to ensure that an analyst for the American Spectator, Jed Babbin, can participate: “He is hosting a number of radio shows this summer. I would have to think he would have every member of Congress on to talk about their trip together—a definite plus for us looking to expand the echo chamber.” Babbin will respond with a Spectator article lambasting Democratic critics of Guantanamo, and will be given an invitation to appear on Bill O’Reilly’s Fox News talk show. Pentagon public relations official Lawrence Di Rita is quite pleased by Babbin’s work, and in an e-mail to other Pentagon officials, says: “We really should try to help [Babbin]. He is consistently solid and helpful.” (Greenwald 5/9/2008)

The Bagram escapees, clockwise from top left: Muhammad Jafar Jamal al-Kahtani, Abdullah Hashimi, Omar al-Faruq, and Sheikh Abu Yahia al-Libi.The Bagram escapees, clockwise from top left: Muhammad Jafar Jamal al-Kahtani, Abdullah Hashimi, Omar al-Faruq, and Sheikh Abu Yahia al-Libi. [Source: Ahmad Masood / Reuters]Four al-Qaeda operatives escape the high-security US-controlled prison in Bagram, Afghanistan. The four men—Omar al-Faruq, Muhammad Jafar Jamal al-Kahtani, Abdullah Hashimi, and Sheikh Abu Yahia al-Libi (a.k.a. Mahmoud Ahmad Muhammad)—were all being held in a remote cell for troublesome prisoners. They allegedly pick the lock on their cell, take off their bright orange uniforms, walk through the prison under the cover of darkness, and then crawl over a faulty wall to where a getaway car is waiting for them. One US official later says: “It is embarrassing and amazing at the same time. It was a disaster.” (Schmitt and Golden 12/4/2005) The Independent will later comment: “The escape was so remarkable that serious doubts have been raised over whether it can possibly have happened the way it is described. At the very least, analysts have suggested, the four escapees must have had help on the inside, in order to know about the gap in the fence, and to find their way there so easily through a maze of buildings.” (Huggler 9/27/2006) Al-Faruq is considered an important al-Qaeda leader who served as a link between al-Qaeda and Jemaah Islamiyah in Southeast Asia until he was captured in 2002 (see June 5, 2002). Al-Kahtani is also considered an important al-Qaeda operative, but not on the same level as al-Faruq. Both of them were scheduled to be transported to Guantanamo.
Deliberately Let Go? - In late 2005, former Bagram prisoner Moazzam Begg will claim that he heard in Bagram that US intelligence officers had proposed staging an escape to release a detainee who would act as a double agent against al-Qaeda. US officials strongly deny that that happened with this escape.
US Hides Identities of Some Escapees - The US soon releases pictures of the four escapees, but strangely does not identify which escapees match which prisoners. Furthermore, as the New York Times will later note, “For reasons they have not explained, the military authorities gave different names for [al-Faruq and al-Kahtani] in announcing the escape.” (Schmitt and Golden 12/4/2005) The fact that al-Faruq was one of the escapees only comes out during a November 2005 US military trial of a sergeant who had been accused of mistreating him in 2002.
Fates of Escapees - Al-Faruq will later release a video on the Internet boasting of his role in the escape. He will be killed in Iraq in 2006 (see September 25, 2006). (Tavernise 9/26/2006) Al-Kahtani will be recaptured by US forces in Khost, Afghanistan, in December 2006. He is a Saudi and will be extradited to Saudi Arabia in May 2007. (Agence France-Presse 5/7/2007) Sheikh Abu Yahia al-Libi will have what the New York Times later will call a “meteoric ascent within the leadership of al-Qaeda” in the three years after his escape. He will become very popular within Islamist militant circles for his propaganda videos. In 2008, Jarret Brachman, a former CIA analyst, will say of him: “He’s a warrior. He’s a poet. He’s a scholar. He’s a pundit. He’s a military commander. And he’s a very charismatic, young, brash rising star within [al-Qaeda], and I think he has become the heir apparent to Osama bin Laden in terms of taking over the entire global jihadist movement.” As of 2008, he and Abdullah Hashimi apparently remain free. (Moss and Mekhennet 4/4/2008)

The Justice Department decides not to prosecute in most cases where detainees were abused and killed by the CIA. The cases, of which there are apparently eight, had been referred to the department by the CIA’s inspector general (see (August 2004)) and were investigated primarily by the US Attorneys Office for the Eastern District of Virginia, although officials at department headquarters in Washington are also involved in the decision not to prosecute. Although some of the cases are still technically under review at this time, the department indicates it does not intend to bring charges. (Jehl and Golden 10/23/2005) The cases include:
bullet The death of Iraqi prisoner Manadel al-Jamadi in CIA custody in November 2003 (see Between 4:30 a.m. and 5:30 a.m. November 4, 2003 and (7:00 a.m.) November 4, 2003);
bullet The asphyxiation of Major General Abed Hamed Mowhoush in Iraq, also in November 2003 (see November 24 or 25, 2003 and November 26, 2003). This incident involved the military, as well as at least one CIA contractor; (Jehl and Golden 10/23/2005)
bullet The intimidation of al-Qaeda leader Abd al-Rahim al-Nashiri by a CIA officer named “Albert” using a gun and drill (see September 11, 2003).
bullet The death of detainee Gul Rahman, who froze to death at the Salt Pit prison in Afghanistan (see November 20, 2002). The case was examined by prosecutors, but, in the end, a recommendation not to prosecute the officer who caused the detainee to die is made. (Johnson, Markon, and Tate 9/19/2009) The officer’s first name is not known, although his last name is Zirbel. (Mahoney and Johnson 10/9/2009, pp. 29 pdf file) The decision is made because prosecutors conclude that the prison was outside the reach of US law; although the CIA funded it and vetted its Afghan guards, it was technically an Afghan prison. In addition, it is unclear whether Rahman, who was captured in Pakistan and then taken to Afghanistan, would have died from injuries sustained during his capture, rather than by freezing. Although hypothermia was listed as the cause of death in the autopsy, the body was not available to investigators. According to the Washington Post, “questions remain whether hypothermia was used as a cover story in part to protect people who had beaten the captive.” However, according to a “senior official who took part in the review,” the decision not to prosecute in this case is not initially that clear, and an indictment is considered. However, the prosecutors decide not to press charges against Zirbel and a memo explaining this decision is drafted. An official involved in the review will later say there is “absolutely no pressure” from the Justice Department’s management to decide not to prosecute. However, a later report by the Post will indicate there may be a split among prosecutors over the decision, and that a political appointee, US Attorney for the Eastern District of Virginia Paul McNulty, assesses the case. McNulty will be nominated for the position of deputy attorney general around this time (see October 21, 2005). (Johnson, Markon, and Tate 9/19/2009)
However, one CIA employee, a contractor named David Passaro, has been charged with detainee abuse (see June 18-21, 2003). (Jehl and Golden 10/23/2005) The department will begin a second review of some or all of these cases in 2009 (see August 24, 2009).

A local newspaper claims this is the CIA prison in Mauritania.A local newspaper claims this is the CIA prison in Mauritania. [Source: Le Rénovateur Quotidien]Most top al-Qaeda leaders being held by the US has been in a secret CIA prison in Poland. But after the nonprofit watchdog group Human Rights Watch discloses the existence of the prisons, the prisoners are moved to a new CIA prison located in the North African nation of Mauritania. The New Yorker will report that “After a new government friendly to the US took power, in a bloodless coup d’état in August, 2005… it was much easier for the intelligence community to mask secret flights there.” (Hersh 6/17/2007) A Mauritanian newspaper places the prison at Ichemmimène, a town deep in the Sahara desert. (Le Rénovateur Quotidien 6/29/2007) ABC News lists eleven prisoners making the move:
bullet Abu Zubaida (held in Thailand then Poland).
bullet Abd al-Rahim al-Nashiri (held in Poland).
bullet Ramzi bin al-Shibh (held in Poland).
bullet Khalid Shaikh Mohammed (held in Poland).
bullet Khallad bin Attash (held in Poland).
bullet Ahmed Khalfan Ghailani (held in Poland).
bullet Hassan Ghul (held in Poland).
bullet Abdul Rahim al-Sharqawi (held in Poland).
bullet Mohammed Omar Abdul-Rahman (held in Poland).
bullet Ibn al-Shaykh al-Libi (held in Pakistan then Poland).
Further, Hambali is a high level prisoner in US custody but he is being held elsewhere. (Ross and Esposito 12/5/2005; ABC News 12/5/2005) In 2007 Council of Europe, the European human rights monitoring agency, will reveal that the main CIA prison for high-level prisoners was in a Soviet-era military compound at Stare Kjekuty, in northeastern Poland. Lower-level prisoners from Afghanistan and Iraq were held in a military base near the Black Sea in Romania. The governments of Poland and Romania will continue to deny the existence of the prisons even after the US government admits to their existence. (Grey and Carvajal 6/8/2007) Eleven of the twelve prisoners mentioned above were subjected to the so-called “enhanced interrogation techniques” called torture by many. In 2006, Bush will announce that the CIA prisons are being emptied and high level prisoners will be transferred to the prison at Guantanamo Bay, Cuba (see September 2-3, 2006).
Some 'Ghost' Prisoners - But the list of prisoners being transferred will include some other names and will not include al-Shaykh al-Libi, Ghul, al-Sharqawi, or Abdul-Rahman. It will later come out that al-Sharqawi was probably sent to Guantanamo in late 2004 after being held in a Jordanian prison (see February 7, 2002). Ghul is a ‘ghost’ prisoner until he is turned over to the Pakistani government in 2006 (see (Mid-2006)). Al-Libi is similarly turned over to Libya (see Between November 2005 and September 2006). The fate of Abdul-Rahman remains unknown. (Ross and Esposito 12/5/2005)

Larry Wilkerson, the former chief of staff to former Secretary of State Colin Powell, says that he has seen documents that show a “visible audit trail” that links the practice of abuse and torture of prisoners by US soldiers directly back to the office of Vice President Dick Cheney. “There’s no question in my mind,” he says, “where the philosophical guidance and the flexibility in order to [torture prisoners] originated—in the vice president of the United States’ office.” Wilkerson, while in Powell’s office, had access to a raft of documents concerning the allegations of prisoner abuse. He says that Cheney and Defense Secretary Donald Rumsfeld led a quiet push to deny prisoners Geneva Convention protections. According to Wilkerson, Cheney’s then-chief counsel, David Addington (now Cheney’s chief of staff—see October 28, 2005), helped begin the process. Addington “was a staunch advocate of allowing the president in his capacity as commander in chief to deviate from the Geneva Conventions.” Cheney, Rumsfeld, Addington, and others “began to authorize procedures within the armed forces that led to, in my view, what we’ve seen,” Wilkerson says. The Pentagon’s contentions that such prisoner abuses, particularly at Abu Ghraib, were limited to a few soldiers of low rank are false, he says: “I’m privy to the paperwork, both classified and unclassified, that the secretary of state asked me to assemble on how this all got started, what the audit trail was, and when I began to assemble this paperwork, which I no longer have access to, it was clear to me that there was a visible audit trail from the vice president’s office through the secretary of defense down to the commanders in the field that in carefully couched terms—I’ll give you that—that to a soldier in the field meant two things: We’re not getting enough good intelligence and you need to get that evidence, and, oh, by the way, here’s some ways you probably can get it. And even some of the ways that they detailed were not in accordance with the spirit of the Geneva Conventions and the law of war. You just—if you’re a military man, you know that you just don’t do these sorts of things because once you give just the slightest bit of leeway, there are those in the armed forces who will take advantage of that.” (Milbank 11/4/2005; Savage 2007, pp. 220)

The US charges British citizen Binyam Ahmed Mohamed (see May-September, 2001), who has allegedly used the aliases Talha al-Kini, Foaud Zouaoui, Taha al-Nigeri, and John Samuel, with conspiracy to foment and carry out terrorist attacks against US targets. Mohamed, who was arrested in Pakistan in April 2002, is charged with “attacking civilians; attacking civilian objects; murder by an unprivileged belligerent; destruction of property by an unprivileged belligerent; and terrorism,” though the charge sheet is unclear whether Mohamed carried out any of these actions himself, or whether he was part of a larger conspiracy by the al-Qaeda terrorist organization. The charges allege links between Mohamed and “shoe bomber” Richard Reid (see December 22, 2001), radical Islamist Abu Zubaida, 9/11 plotter Khalid Shaikh Mohammed, and alleged “dirty bomber” Jose Padilla. Mohamed is alleged to have been part of the Padilla bomb plot. (US Defense Department 11/4/2005 pdf file) Much of the evidence against Mohamed comes from confessions he allegedly made while in US custody at the detention camp at Bagram Air Force Base (see January-September 2004), and in Guantanamo Bay (see September 2004 and After). He was also held in Pakistan (see April 10-May, 2002 and May 17 - July 21, 2002), and “rendered” to a secret prison in Morocco (see July 21, 2002 -- January 2004). Through his lawyers, Mohamed has claimed that he was tortured in all four detention sites. The British judiciary will later establish that British officials facilitated Mohamed’s interrogation in Pakistan, and had “full knowledge of the reported conditions of his detention and treatment” (see February 24, 2009). (Guardian 2/5/2009) As with Padilla, the charges relating to the “dirty bomb” plot will later be dropped due to lack of evidence, and all charges against Mohamed will eventually be dropped (see October-December 2008 and February 4, 2009).

The Defense Department admits to having detained over 80,000 people in facilities from Afghanistan to Guantanamo since the 9/11 attacks. At least 14,500 people are currently in US custody in connection with the war on terror; around 13,814 are being held in Iraq and some 500 detainees are at the Guantanamo detention facility. An unknown number are being held in Afghanistan and elsewhere. The Bush administration has defended its incarceration of so many detainees, many without charge or legal representation, from criticism by human rights organizations, civil liberties groups, and political opponents. What many find indefensible is the CIA’s practice of “rendering” terror suspects to foreign countries for interrogation and torture, as well as making some prisoners “disappear” into secret prisons in foreign countries. Currently, the Bush administration is attempting to counter reports that the CIA has used private jets to transport suspects to at least six countries, either in Europe or through European countries’ airspace. “If these allegations turn out to be true, the crucial thing is whether these flights landed in the member states with or without the knowledge and approval of the authorities,” says Terry Davis, the Council of Europe’s secretary general. The CIA has refused to comment on this or other reports. (Goldenberg 11/18/2005)

Deputy Defense Secretary Gordon England, who for a year has advocated that the US issue clear rules about detention and interrogation of terror suspects (see Summer 2005), calls a meeting of three dozen Pentagon officials, including the vice chief and top uniformed lawyer for each military branch. England wants to discuss a proposed new directive defining the US military’s detention policies. The secretaries of the Army, Navy, and Air Force are present, as are generals from each branch of service and a number of military lawyers, including Naval General Counsel Alberto Mora. The agenda is set by Matthew Waxman, the deputy assistant secretary for detainee affairs. Waxman says that the president’s general statement that detainees should be treated humanely “subject to military necessity” (see February 7, 2002) has left US military interrogators and others unsure about how to proceed with detainees. Waxman has proposed making it official Pentagon policy to treat detainees in accordance with Common Article III of the Geneva Conventions, which bars cruel, inhuman, and degrading treatment, as well as “outrages against human dignity.” The standard has already been in effect since the Geneva Conventions were first put into place over 50 years ago, and US military personnel are trained to follow it. In 2007, the Washington Post will observe, “That was exactly the language… that [Vice President] Cheney had spent three years expunging from US policy.” Mora will later recall of the meeting, “Every vice chief came out strongly in favor, as did every JAG,” or Judge Advocate General.
Opposition - Every military officer supports the Waxman standard, but two civilians oppose it: Stephen Cambone, the undersecretary of defense for intelligence, and William Haynes, the Pentagon’s general counsel and a close associate of Cheney’s chief counsel, David Addington. Cambone and Haynes argue that the standard will limit the US’s “flexibility” in handling terror suspects, and it might expose administration officials to charges of war crimes. If Common Article III becomes the standard for treatment, then it might become a crime to violate it.
War Crimes Questions - An exasperated Mora points out that whether the proposal is adopted or not, the Geneva Conventions are already solidly part of both US and international law. Any serious breach is in legal fact a war crime. Mora reads from a copy of the US War Crimes Act, which already forbids the violation of Common Article III. It is already the law, Mora emphasizes, and no one is free to ignore it. Waxman believes his opponents are isolated, and issues a draft of DOD Directive 2310, incorporating the Geneva-based language.
Browbeating Waxman - Within a few days, Addington and Lewis “Scooter” Libby, Cheney’s chief of staff, bring Waxman in for a meeting. The meeting goes poorly for Waxman. Addington ridicules the vagueness of the Geneva ban on “outrages upon personal dignity,” saying it leaves US troops timid in the face of unpredictable legal risk. Waxman replies that the White House policy is far more opaque, and Addington accuses him of trying to replace the president’s decision with his own. Mora later says, “The impact of that meeting is that Directive 2310 died.” Shortly thereafter, Waxman will leave the Pentagon for a post at the State Department. (Mayer 2/27/2006; Gellman and Becker 6/25/2007)

The “Salt Pit” prison near Kabul, Afghanistan.The “Salt Pit” prison near Kabul, Afghanistan. [Source: Trevor Paglen.]Khalid el-Masri and the American Civil Liberties Union (ACLU) file a lawsuit against former CIA director George Tenet and three corporations. The suit alleges that all of the defendants were complicit in el-Masri’s abduction transfer to to a secret prison, and subsequent mistreatment (see December 31, 2003-January 23, 2004, January 23 - March 2004, and March-April 2004 ). Tenet is said to have known that the CIA had mistakenly detained an innocent man, but allowed el-Masri to remain in detention for two months. The three corporations are accused of owning and operating airplanes that transported el-Masri to a secret prison in Afghanistan known as the “Salt Pit.” (American Civil Liberties Union 12/6/2005; Beeson, Wizner, and Goodman 12/6/2005 pdf file)

Mohammed Jawad, an Afghan teenager in US custody at Guantanamo for nearly three years (see December 17, 2002 and October 19, 2004), is found by a US Administrative Review Board (ARB) to pose a continuing danger to the national security of the United States, and is denied release. The decision is based on US claims that Jawad belongs to a group with ties to al-Qaeda, and on a signed “confession” obtained from Jawad. The boy claims that Afghan police tortured and beat him until he signed the confession. The ARB decision will be reaffirmed in late 2006. (Human Rights First 9/2008) Jawad “signed” his confession with a fingerprint, as he cannot write his name. The confession was written in a language he cannot speak or read, and, as Salon’s Glenn Greenwald will later note, “was given to him after several days of beatings, druggings, and threats—all while he was likely 15 or 16 years old.” (Greenwald 1/21/2009)

Douglas Feith.Douglas Feith. [Source: Whodidit.org]Law professor Phillippe Sands interviews Douglas Feith, the former undersecretary of defense for policy and one of the key architects of the Iraq invasion. (Sands 5/2008) Feith is joining the School of Foreign Service at Georgetown University as a lecturer. (DeParle 5/25/2006) Feith discusses his great pride in his part in the administration’s decision to ignore the Geneva Conventions’ restrictions on interrogating prisoners (see February 7, 2002). Feith says that Geneva merely got in the way of the US doing what it needed to do with regards to the detainees. Since al-Qaeda and Taliban operatives did not function under Geneva, he argues, the US did not need to, either. Feith says that between his arguments and the contempt the civilians in the White House and the Pentagon held for the military officers who stood by the Geneva restrictions, the decision was made to set Geneva aside when circumstances warranted. It was never a matter of questioning Geneva’s status as international law, but deciding to whom and in what circumstances the conventions apply.
Catch 22 - Sands writes that according to Feith’s (and eventually the administration’s) rationale: “Geneva did apply to the Taliban, but by Geneva’s own terms Taliban fighters weren’t entitled to POW status, because they hadn’t worn uniforms or insignia. That would still leave the safety net provided by the rules reflected in Common Article 3—but detainees could not rely on this either, on the theory that its provisions applied only to ‘armed conflict not of an international character,’ which the administration interpreted to mean civil war. This was new. In reaching this conclusion, the Bush administration simply abandoned all legal and customary precedent that regards Common Article 3 as a minimal bill of rights for everyone.… I asked Feith, just to be clear: Didn’t the administration’s approach mean that Geneva’s constraints on interrogation couldn’t be invoked by anyone at Guantanamo? ‘Oh yes, sure,’ he shot back. Was that the intended result?, I asked. ‘Absolutely.… That’s the point.‘… As he saw it, either you were a detainee to whom Geneva didn’t apply or you were a detainee to whom Geneva applied but whose rights you couldn’t invoke.”
Impact on Interrogations - When asked about the difference for the purpose of interrogation, Sands will write: “Feith answered with a certain satisfaction, ‘It turns out, none. But that’s the point.’ That indeed was the point. The principled legal arguments were a fig leaf. The real reason for the Geneva decision, as Feith now made explicit, was the desire to interrogate these detainees with as few constraints as possible.” Reflecting on that time, Feith says with obvious relish, “This year I was really a player.” Sands asks Feith if he ever worried that the Geneva decision might have eroded the US’s moral authority. Feith’s response is blunt: “The problem with moral authority [is] people who should know better, like yourself, siding with the _ssholes, to put it crudely.” (Sands 5/2008)

After Human Rights Watch, an organization which works to end torture of government detainees around the globe, claims that the Bush administration has made a “deliberate policy choice” to abuse detainees at Guantanamo Bay, Defense Secretary Donald Rumsfeld says, “What took place at Guantanamo is a matter of public record today, and the investigations turned up nothing that suggested that there was any policy in the department other than humane treatment.” In 2002, President Bush declared that detainees in US custody should be treated “humanely, and to the extent appropriate and consistent with military necessity, in a manner consistent with the principles” of the Geneva Conventions (see January 19, 2002). Shortly after Rumsfeld’s statement, White House press secretary Scott McClellan says that Human Rights Watch has damaged its own credibility by making such claims. (Mayer 2/27/2006)

The Navy’s former general counsel, Alberto Mora, now the general counsel for Wal-Mart’s international operations, ends a long, self-imposed silence about his opposition to the military’s advocacy of torture and abuse of terror suspects (see July 7, 2004). Mora tells New Yorker reporter Jane Mayer that the administration’s legal response to the 9/11 attacks was flawed from the outset, triggering a series of subsequent errors and misjudgments that were virtually impossible to correct. In particular, the determination to ignore the Geneva Conventions “was a legal and policy mistake,” but “very few lawyers could argue to the contrary once the decision had been made.” Mora continues, “It seemed odd to me that the actors weren’t more troubled by what they were doing.” Many administration lawyers seemed to be ignorant of history. “I wondered if they were even familiar with the Nuremberg trials—or with the laws of war, or with the Geneva Conventions. They cut many of the experts on those areas out. The State Department [whose lawyers and officials often opposed the use of abusive interrogation tactics] wasn’t just on the back of the bus—it was left off the bus.… [P]eople were afraid that more 9/11s would happen, so getting the information became the overriding objective. But there was a failure to look more broadly at the ramifications. These were enormously hardworking, patriotic individuals. When you put together the pieces, it’s all so sad. To preserve flexibility, they were willing to throw away our values.” (Mayer 2/27/2006)

The American Civil Liberties Union (ACLU) releases Defense Department documents showing that senior Pentagon officials approved harsh interrogation techniques that FBI agents termed abusive, ineffective, and unlawful. “We now possess overwhelming evidence that political and military leaders endorsed interrogation methods that violate both domestic and international law,” according to ACLU lawyer Jameel Jaffer. “It is entirely unacceptable that no senior official has been held accountable.” One document shows that FBI personnel at Guantanamo questioned harsh methods being used by military interrogators (see May 30, 2003). Another shows that senior Pentagon officials approved interrogation methods considered abusive by FBI agents (see May 5, 2004). The ACLU says that, combined with a memo from Navy general counsel Alberto Mora (see January 15-22, 2003), evidence “show[s] conclusively that Pentagon officials at the highest levels authorized the abuse of prisoners and persisted in their endorsement of unlawful interrogation methods even after FBI and Navy personnel objected to those methods orally and in writing.” The documents released by the ACLU also show that interrogators from the Department of Homeland Security identified themselves as FBI agents while using harsh methods against detainees. One FBI memo observed, “The next time a real agent tries to talk to that guy, you can imagine the result.” The documents also show that while FBI agents expressed concern about the harsh interrogation methods being employed by military and other interrogators, the FBI itself did little to counter such tactics (see January 24, 2004). (American Civil Liberties Union 2/23/2006)

Bisher al-Rawi, a long-time British resident originally from Iraq, has been held in the Guantanamo prison since March 2003. He had previously worked as an informant for MI5, a British intelligence agency. MI5 had the CIA arrest him based on information it knew to be false, apparently in an attempt to pressure him to resume working as an informant. Al-Rawi had been keeping his MI5 ties secret, but in March 2006 his lawyer exposes them in an article in The Independent. A similar article soon appears in the Washington Post. (Mickum 3/16/2006; Whitlock 4/2/2006) That same month, he sues the British government for passing false information about him to the CIA. The British had been refusing to help him get released from Guantanamo on the grounds that he is a British resident and not a British citizen. But on April 20, it is reported that British Foreign Secretary Jack Straw has formally written to the US and demanded his release. The Guardian reports, “Government officials [do] not deny that Mr. Straw’s change of heart was to do with Mr. al-Rawi’s links with MI5.” Al-Rawi’s lawyer says: “I see this as a positive development. I’m only left to ask the question what took so long. Did they need the judicial challenge to do the right thing?” (Dodd 4/20/2006)

Army documents released by the American Civil Liberties Union (ACLU) reveal that Lieutenant General Ricardo Sanchez, the former commander of US forces in Iraq, ordered military interrogators to “go to the outer limits” to get information from detainees (see May 19, 2004). The documents also show that senior government officials were aware of abuse in Iraq and Afghanistan before the Abu Ghraib scandal broke. ACLU executive director Anthony Romero says: “When our leaders allow and even encourage abuse at the ‘outer limits,’ America suffers. A nation that works to bring freedom and liberty to other parts of the world shouldn’t stomach brutality and inhumanity within its ranks. This abuse of power was engineered and accepted at the highest levels of our government.” The ACLU also releases an April 2004 information paper entitled “Allegations of Detainee Abuse in Iraq and Afghanistan” that outlined the status of 62 investigations of detainee abuse at Abu Ghraib (see April 2, 2004). According to the ACLU, the documents show that, far from being the work of “a few bad apples” as alleged by President Bush and other White House officials (see Mid-May 2004, August 2004, September 10, 2004, and October 1, 2004), the torture and abuse of prisoners at Abu Ghraib was systematic and authorized by high-level officials, including Sanchez. “These documents are further proof that the abuse of detainees was widespread and systemic, and not aberrational,” says ACLU attorney Amrit Singh. “We know that senior officials endorsed this abuse, but these officials have yet to be held accountable.” Other documents show that US soldiers escaped prosecution after killing a detainee in their custody (see March 3, 2005), several reports of detainee abuse are considered “true/valid” (see May 25, 2004), and a military doctor cleared a detainee for further interrogations even after documenting injuries inflicted by beatings and electric shocks (see June 1, 2004). (American Civil Liberties Union 5/2/2006)

US officials deny charges leveled by Amnesty International that US interrogators tortured prisoners at the Guantanamo Bay prison. White House officials also say that the administration intends to close the facility as soon as it is practical to do so. Amnesty International’s most recent annual report faults the US for allegedly abandoning human rights concerns in its pursuit of terrorists. State Department spokesman Sean McCormack says Amnesty’s charges are false, and says while the administration wants to close Guantanamo, critics have given no answers as to what to do with the detainees. “At some point in the future, would we all like to see Guantanamo Bay closed down? Absolutely,” he says. “But at the moment, there are dangerous people being held in Guantanamo Bay. These are people that were picked up on battlefields, planning for, engaged in various acts of terrorism around the world. These are individuals who pose a threat potentially not only to American citizens, but citizens from Europe as well as around the world.” America is doing the world a service by detaining these dangerous terrorists, he says (see February 7, 2006). (Voice of America 5/23/2006)

Brigadier General Richard Formica.Brigadier General Richard Formica. [Source: Combined Security Transition Command, Afghanistan]The Defense Department publicly releases the so-called “Formica Report,” a report from two years before (see November 2004) that detailed the findings of an investigation into allegations of detainee abuse at Camp Nama, a US detention facility at Baghdad International Airport in Iraq. The report, overseen by Brigadier General Richard Formica, is made available through a Freedom of Information Act request by the American Civil Liberties Union (ACLU). The investigation found no evidence of any detainees being abused by Army personnel. A Defense Department official says: “This is not new news. The major points and the recommendations [from this report] have been implemented. This is an excellent example of the [Defense Department] doing the right thing; an excellent example of the department implementing the recommendations. You can’t ask for more from your government.” Formica conducted his investigation from May 2004 through November 2004. The official says that one of the most important changes made as a result of the Formica investigation was a clarification of authorized interrogation methods. (Wood 6/17/2006)

The American Civil Liberties Union (ACLU) releases Defense Department documents that include reports of suicide attempts by Guantanamo detainees. ACLU executive director Anthony Romero says: “These documents are the latest evidence of the desperate and immoral conditions that exist at Guantanamo Bay. The injustices at Guantanamo need to be remedied before other lives are lost. We must uphold our American values and end indefinite detentions and widespread abuse.” One report documents an attempted suicide by hanging that ended up with the detainee in a persistent “vegetative state” (see April 29, 2003). The ACLU notes that the Defense Department documents support other reports of attempted suicide at Guantanamo (see Summer 2002 and After, Mid-October 2002, October 9, 2003, and December 2003). Pentagon officials called the suicides an “act of asymmetrical warfare” and “a good PR move to draw attention.” The ACLU’s Amrit Singh says: “It is astounding that the government continues to paint the suicides as acts of warfare instead of taking responsibility for having driven individuals in its custody to such acts of desperation. The government may wish to hide Guantanamo Bay behind a shroud of secrecy, but its own documents reveal the hopelessness and despair faced by the detainees who are being held without charge and with no end in sight.” (American Civil Liberties Union 6/19/2006)

Salim Ahmed Hamdan in 1999.Salim Ahmed Hamdan in 1999. [Source: Pubic domain via the New York Times]In the Hamdan v. Rumsfeld case, the Supreme Court rules 5-3 to strike down the Bush administration’s plans to try Guantanamo detainees before military commissions. Ruling in favor of detainee Salim Ahmed Hamdan (see November 8, 2004), the Court rules that the commissions are unauthorized by federal statutes and violate international law. Writing for the majority, Justice John Paul Stevens says, “The executive is bound to comply with the rule of law that prevails in this jurisdiction.” The opinion throws out each of the administration’s arguments in favor of the commissions, including its assertion that Congress had stripped the Supreme Court of the jurisdiction to decide the case. One of the major flaws in the commissions, the Court rules, is that President Bush unilaterally established them without the authorization of Congress. (Greenhouse 6/30/2006) During the oral arguments three months before, Hamdan’s lawyer, Neal Katyal, told the Court: “The whole point of this [proceeding] is to say we’re challenging the lawfulness of the tribunal [the military commissions] itself. This isn’t a challenge to some decision that a court makes. This is a challenge to the court itself, and that’s why it’s different than the ordinary criminal context that you’re positing.” (Savage 2007, pp. 274-275)
Major Defeat for Bush Administration - Civil libertarian and human rights organizations consider the ruling a shattering defeat for the administration, particularly in its assertions of expansive, unfettered presidential authority. Bush says in light of the decision, he will work with Congress to “find a way forward” to implement the commissions. “The ruling destroys one of the key pillars of the Guantanamo system,” says Gerald Staberock, a director of the International Commission of Jurists. “Guantanamo was built on the idea that prisoners there have limited rights. There is no longer that legal black hole.” The ruling also says that prisoners held as “enemy combatants” must be afforded rights under the Geneva Conventions, specifically those requiring humane treatment for detainees and the right to free and open trials in the US legal system. While some form of military trials may be permissible, the ruling states that defendants must be given basic rights such as the ability to attend the trial and the right to see and challenge evidence submitted by the prosecution. Stevens writes that the historical origin of military commissions was in their use as a “tribunal of necessity” under wartime conditions. “Exigency lent the commission its legitimacy, but did not further justify the wholesale jettisoning of procedural protections.” (Greenhouse 6/30/2006) In 2007, author and reporter Charlie Savage will write, “Five justices on the Supreme Court said Bush had broken the law.” (Savage 2007, pp. 275)
Hardline Conservative Justices Dissent - Stevens is joined by Justices David Souter, Stephen Breyer, and Ruth Bader Ginsburg. Justice Anthony Kennedy issues a concurring opinion. Dissenting are Justices Samuel Alito, Antonin Scalia, and Clarence Thomas. Thomas, in a dissent signed by Scalia and Alito, calls the decision “untenable” and “dangerous.” Chief Justice John Roberts recused himself from the case because of his participation in a federal appeals court that ruled in favor of the administration (see November 8, 2004).
Not Charged for Three Years - Hamdan is a Guantanamo detainee from Yemen, captured in Afghanistan in November 2001 and taken to Guantanamo in June 2002. He is accused of being a member of al-Qaeda, in his function as driver and bodyguard for Osama bin Laden. He was not charged with a crime—conspiracy—until mid-2004. (Greenhouse 6/30/2006)

The American Civil Liberties Union (ACLU) accuses the Defense Department of releasing a “whitewash” report on prisoner abuse in Iraq, Afghanistan, and Guantanamo Bay. The “Church report,” compiled in 2004 (see May 11, 2004), has just been released to the public in response to a Freedom of Information Act request from the ACLU. The report’s executive summary was released in 2005, but the entirety of the report has now been made available. “Despite its best efforts to absolve high-ranking officials of any blame, the Church report cannot hide the fact that abusive and unlawful interrogation techniques authorized by Secretary [of Defense Donald] Rumsfeld were used in Guantanamo Bay, Iraq, and Afghanistan,” says ACLU lawyer Amrit Singh. “The facts speak for themselves, and only underscore the need for an independent investigation into command responsibility for the widespread and systemic abuse of detainees held in US custody abroad.” The report only focused on cases closed before September 30, 2004, did not attempt to determine the culpability of senior officials, and used abuse statistics that the Church investigation itself admitted were incomplete and out of date. The ACLU writes that the Church report “skirts the question of command responsibility for detainee abuse, euphemistically labeling official failure to issue interrogation guidelines for Iraq and Afghanistan as a ‘missed opportunity.’ In addition, it references a ‘failure to react to early warning signs of abuse… that should have prompted… commanders to put in place more specific procedures and direct guidance to prevent further abuse.’ The report provides details of how techniques such as ‘stress positions’—authorized by Secretary Rumsfeld for Guantanamo Bay in December 2002—came to be used in Afghanistan and Iraq. It specifically notes, moreover, that the ‘migration’ of interrogation techniques intended for Guantanamo Bay to Iraq was ‘neither accidental nor uncontrolled.’ Yet, the report concludes that there is ‘no link between approved interrogation techniques and detainee abuse.’” (American Civil Liberties Union 7/3/2006)

Actor Kiefer Sutherland as ‘Jack Bauer.’Actor Kiefer Sutherland as ‘Jack Bauer.’ [Source: Stuff.co.nz]Law professor Phillippe Sands begins a series of interviews with the former staff judge advocate for the US Army in Guantanamo, Lieutenant Colonel Diane Beaver. She is the author of a legal analysis that was used by the Bush administration to justify its extreme interrogation techniques (see October 11, 2002). Sands describes her as “coiled up—mistreated, hung out to dry.” She is unhappy with the way the administration used her analysis, and notes that she was guided in her work at Guantanamo by personnel from the CIA and Defense Intelligence Agency. She believes that some of the interrogation techniques were “reverse-engineered” from a training program called SERE—Survival, Evasion, Resistance, and Escape—though administration officials have denied this. Several Guantanamo personnel were sent to Fort Bragg, SERE’s home, for a briefing on the program (see December 2001, January 2002 and After, Mid-April 2002, Between Mid-April and Mid-May 2002, July 2002, July 2002, July 2002, and August 1, 2002). Military training was not the only source of inspiration. Fox’s television drama 24 came to a conclusion in the spring of 2002, Beaver recalls. One of the overriding messages of that show is that torture works. “We saw it on cable,” Beaver remembers. “People had already seen the first series. It was hugely popular.” The story’s hero, Jack Bauer, had many friends at Guantanamo, Beaver adds. “He gave people lots of ideas.” She recalls in graphic terms how excited many of the male personnel became when extreme interrogation methods were discussed. “You could almost see their d_cks getting hard as they got new ideas,” she will say. “And I said to myself, You know what? I don’t have a d_ck to get hard—I can stay detached.” The FBI and the Naval Criminal Investigative Service refused to become involved in aggressive interrogations, she says (see Late March through Early June, 2002 and December 17, 2002). (Sands 5/2008)

Shortly after 14 high-ranking al-Qaeda prisoners are transferred from secret CIA prisons to the US-controlled Guantanamo prison in Cuba (see September 2-3, 2006), the International Committee of the Red Cross is finally allowed to interview them. The prisoners include 9/11 mastermind Khalid Shaikh Mohammed, Ramzi bin al-Shibh, Hambali, and Abu Zubaida. The Red Cross has a policy of not publicizing or commenting its findings. However, some US officials are shown the report on the interviews with these prisoners and apparently some of these officials leak information to the New Yorker about one year later. The New Yorker will report, “Congressional and other Washington sources familiar with the report said that it harshly criticized the CIA’s practices. One of the sources said that the Red Cross described the agency’s detention and interrogation methods as tantamount to torture, and declared that American officials responsible for the abusive treatment could have committed serious crimes. The source said the report warned that these officials may have committed ‘grave breaches’ of the Geneva Conventions, and may have violated the US Torture Act, which Congress passed in 1994. The conclusions of the Red Cross, which is known for its credibility and caution, could have potentially devastating legal ramifications.” (Mayer 8/6/2007)

Abu Bakker Qassim.Abu Bakker Qassim. [Source: McClatchy News]Abu Bakker Qassim, a Chinese Muslim and a member of that country’s Uighur minority, writes a column for the New York Times concerning what he says is his wrongful imprisonment at the Guantanamo Bay detention facility. Qassim is writing to protest Congress’s consideration of passing legislation that would deny Guantanamo detainees their habeas corpus right to challenge their detentions in federal court. Qassim says he and 17 of his fellow Uighurs fled Chinese government oppression and went to Afghanistan, where they were captured by Pakistani bounty hunters and “sold… to the United States military like animals for $5,000 a head. The Americans made a terrible mistake.” After he and four other Uighurs were granted court hearings, US authorities deported them to Albania. “Without my American lawyers and habeas corpus, my situation and that of the other Uighurs would still be a secret,” he writes. “I would be sitting in a metal cage today. Habeas corpus helped me to tell the world that Uighurs are not a threat to the United States or the West, but an ally. Habeas corpus cleared my name—and most important, it let my family know that I was still alive.” Qassim says that like his fellow Uighurs, he is “a great admirer of the American legal and political systems.” He continues: “I have the utmost respect for the United States Congress. So I respectfully ask American lawmakers to protect habeas corpus and let justice prevail. Continuing to permit habeas rights to the detainees in Guantanamo will not set the guilty free. It will prove to the world that American democracy is safe and well.” (Qassim 9/17/2006) Because of this editorial, Qassim and four other Uighurs will be dubbed “returning to terrorist activities” by the Pentagon (see January 13-14, 2009).

Video footage of Abd al-Hadi al-Iraqi, apparently at a night campsite.Video footage of Abd al-Hadi al-Iraqi, apparently at a night campsite. [Source: IntelCenter]In autumn 2006, Abd al-Hadi al-Iraqi, said to be an adviser to Osama bin Laden, is captured and then detained in a secret CIA prison (see Autumn 2006). President Bush announced on September 6, 2006 that the secret CIA prisons were emptied, at least temporarily (see September 2-3, 2006 and September 6, 2006), and it is not known if al-Hadi is transferred to CIA custody before or after this announcement. The CIA keeps al-Hadi’s detention secret from not only the public but also from the Red Cross until late April 2007, when it is publicly announced that al-Hadi has been transferred to the US military prison at Guantanamo. Only then is the Red Cross allowed to examine him. President Bush’s September 2006 announcement was in response to a US Supreme Court decision that rules that all detainees, including those like al-Hadi held in secret CIA prisons, are protected by some provisions of the Geneva Conventions. Then in October 2006 Congress passed the Military Commissions Act, which forbids abuse of all detainees in US custody, including those in CIA custody. The CIA claims that it has no legal responsibility to alert the Red Cross about detainees such as al-Hadi, but without notifying watchdog organizations such as the Red Cross, there is no way to really know if detainees being held by the CIA are being illegally abused or not. Mary Ellen O’Connell, a professor of international law at Notre Dame Law School, says al-Hadi’s case raises the possibility that President Bush has secretly given the CIA a new mandate to operate outside the constraints of the Military Commissions Act: “This suggests that the president has signed some sort of additional authority for the CIA.” (Benjamin 5/22/2007)

The Guardian reports that after months of secret talks, the US has offered to return nearly all British residents still being held at the Guantanamo prison. However, the British government has refused to accept them. Senior officials say they have no right to return, since they are not British citizens, but merely residents. Additionally, the US is demanding that they be kept under 24-hour surveillance after they are released. Britain considers this too expensive and unnecessary. One British counterterrorism official says, “They do not pose a sufficient threat.” At least nine British residents remain in Guantanamo. Britain is reportedly only interested in accepting one of them, Bisher al-Rawi, because he used to work as an informant for MI5, a British intelligence agency. (Cobain and Dodd 10/3/2006)

In two separate sessions, from October 6-11 and again from December 4-14, officials of the International Committee of the Red Cross (ICRC) interview 14 detainees newly transferred from a variety of CIA secret “black sites” to Guantanamo. The transfers followed President Bush’s acknowledgment that the CIA has maintained a number of these sites and his announced intention to have a number of the detainees sent to the Cuban facility (see September 17, 2001 and September 6, 2006).
ICRC Access - The ICRC is legally bound to monitor compliance with the Geneva Conventions and to supervise the treatment of prisoners of war; previously, it had not been allowed to see the detainees, and in some cases were never informed of their detention. The ICRC officials interview each prisoner in private, with the intention of producing “a description of the treatment and material conditions of detention of the 14 during the period they were held in the CIA detention program.”
Interviews - The 14 have been held for periods ranging “from 16 months to almost four and a half years.” The ICRC’s report, never intended for public consumption, will be released to the CIA several months later (see February 14, 2007) and revealed in a book in early 2009 (see March 15, 2009). Some of the detainees, concerned about the possible repercussions that may ensue from their discussions, ask the ICRC to withhold their names from some allegations, though most of the report attributes specific narratives and allegations to particular prisoners. Almost every allegation is independently corroborated by other, named detainees.
'Striking Similarity' - In 2009, author Mark Danner will write, quoting the ICRC report: “[I]ndeed, since the detainees were kept ‘in continuous solitary confinement and incommunicado detention’ throughout their time in ‘the black sites,’ and were kept strictly separated as well when they reached Guantanamo, the striking similarity in their stories, even down to small details, would seem to make fabrication extremely unlikely, if not impossible. ‘The ICRC wishes to underscore,’ as the writers tell us in the introduction, ‘that the consistency of the detailed allegations provided separately by each of the 14 adds particular weight to the information provided below.’”
Topics of Report - The report covers the following areas:
bullet Main elements of the CIA detention program;
bullet Arrest and transfer;
bullet Continuous solitary confinement and incommunicado detention;
bullet Other methods of ill-treatment;
bullet Suffocation by water (the ICRC term for waterboarding);
bullet Prolonged stress standing;
bullet Beatings by use of a collar;
bullet Beating and kicking;
bullet Confinement in a box;
bullet Prolonged nudity;
bullet Sleep deprivation and use of loud music;
bullet Exposure to cold temperature/cold water;
bullet Prolonged use of handcuffs and shackles;
bullet Threats;
bullet Forced shaving;
bullet Deprivation/restricted provision of solid food;
bullet Further elements of the detention regime.
Conclusion - The report concludes: “The allegations of ill-treatment of the detainees indicate that, in many cases, the ill-treatment to which they were subjected while held in the CIA program, either singly or in combination, constituted torture. In addition, many other elements of the ill-treatment, either singly or in combination, constituted cruel, inhuman, or degrading treatment.” Danner will write, “Such unflinching clarity, from the body legally charged with overseeing compliance with the Geneva Conventions—in which the terms ‘torture’ and ‘cruel, inhuman, and degrading treatment’ are accorded a strictly defined legal meaning—couldn’t be more significant.” (Danner 3/15/2009)

MSNBC reports that Mohammed al-Khatani, the alleged would-be twentieth 9/11 hijacker, will likely never be put on trial. A US army investigation concluded that he “was forced to wear a bra. He had a thong placed on his head. He was massaged by a female interrogator who straddled him like a lap dancer. He was told that his mother and sisters were whores. He was told that other detainees knew he was gay. He was forced to dance with a male interrogator. He was strip-searched in front of women. He was led on a leash and forced to perform dog tricks. He was doused with water. He was prevented from praying. He was forced to watch as an interrogator squatted over his Koran.” Mark Fallon, head of the Pentagon’s Criminal Investigation Task Force, claims that he was told by other officials several times not to worry building a legal case against al-Khatani since there would never be a trial against him due to the interrogation techniques used on him. (Dedman 10/26/2006) According to al-Khatani’s lawyer, al-Khatani appears to be a broken man, who “painfully described how he could not endure the months of isolation, torture and abuse, during which he was nearly killed, before making false statements to please his interrogators.” (Zagorin 3/3/2006)

Pentagon General Counsel William J. Haynes, whose involvement with a set of documents known as the “torture memos” threatens his nomination as an appellate court judge (see November 27, 2002), telephones Morris Davis, the lead prosecutor at Guantanamo, to pressure Davis to charge accused Australian terror suspect David Hicks. Haynes is apparently attempting to do a political favor for Australian Prime Minister John Howard. Haynes is advised that his interference is improper, but calls Davis a second time and suggests that Davis charge other prisoners along with Hicks to avoid any impression that the charges are “a political solution to the Hicks case.” Davis will resign in part because of pressure from Washington to politicize his prosecutions (see October 4, 2007). (Falkoff 11/2/2007)

The American Civil Liberties Union (ACLU) releases FBI documents detailing 26 eyewitness accounts of prisoners abused by US personnel at Guantanamo. The FBI chose not to follow up 17 of the accounts. “These documents contain eyewitness FBI accounts of prisoner abuse which cannot be dismissed by the administration, and only underscore the need for a comprehensive investigation into the treatment of detainees at Guantanamo Bay and other US controlled detention facilities,” says the ACLU’s Amrit Singh. “The documents also call into question the FBI’s apparent decision to not follow up on prisoner abuses by Defense Department personnel. The fact that Defense Department policy allowed this treatment does not mean that it was legal, humane, or ethical.” The documents, compiled by FBI investigators after the Abu Ghraib scandal of 2004, contain eyewitness accounts by guards and interrogators of “aggressive mistreatment, interrogations, or interview techniques of GTMO detainees by representatives of any law enforcement, military, or bureau personnel which were not consistent with bureau guidelines.” Many of the eyewitness accounts focus on insulting the detainees’ religion:
bullet Interrogators wrapped one detainee’s head in duct tape “because he would not stop quoting the Koran.”
bullet An interrogator bragged about forcing a detainee to listen to “satanic black metal music for hours and hours.” That same interrogator later “dressed as a Catholic priest and baptized the detainee in order to save him.”
bullet A Marine captain was observed enraging a detainee by squatting over a Koran in a fashion that the prisoner found extremely offensive.
After compiling these accounts, the FBI apparently chose not to pursue them further, citing the fact that what it observed was authorized by Defense Department policies. Only nine of the 26 accounts were slated for follow-up investigations. One incident marked “no further interview necessary” involved draping an Israeli flag around a detainee, shackling detainees to the floor, and subjecting them to excruciatingly loud music and strobe lights. ACLU attorney Jameel Jaffer says: “The FBI appears to have turned a blind eye to the very abuses that most need investigating—those abuses that were expressly authorized by Defense Department policy. The FBI documents only remind us that a thorough and independent investigation is long overdue.” (American Civil Liberties Union 1/3/2007)

Nieman Reports, a quarterly magazine about journalism, publishes an article by investigative journalist Craig Pyes describing how the US Army attempted to undermine a Los Angeles Times investigation looking into the March 2003 deaths of two Afghan detainees (see March 16, 2003). It is believed that members of a Special Forces detachment in Afghanistan murdered the two men, identified as Jamal Naseer and Wakil Mohammed, and then covered up the circumstances surrounding their deaths. An official investigation into the two deaths by the Army’s Criminal Investigation Command (CID) found insufficient probable cause to bring charges for either of the two deaths. As a result of the CID investigation, two soldiers were given noncriminal administrative letters of reprimand (see January 26, 2007) for “slapping” prisoners at the Gardez facility and for failing to report the death of Naseer. In his article, Pyes recounts the resistance he and his colleague Kevin Sack encountered from the military as they sought information about the two deaths. The military refused to disclose basic information about the circumstances surrounding the two deaths, including the two men’s identities, the circumstances of their detention, the charges against them, court papers, and investigative findings. The journalists also learned that soldiers had been told by their superiors that it was important that everyone be “on the same page in case there was an investigation.” During their investigation, they also discovered that “military examiners had made some significant errors, including their initial failure to identify the victims. They also grossly misidentified dates of crucial events and persistently failed to interview key people and locate supporting documents.” (Nieman Watchdog 3/2/2007)

Bisher al-Rawi holding a child after release.Bisher al-Rawi holding a child after release. [Source: Craig Hibbert]British resident Bisher al-Rawi is released from the Guantanamo prison after being held there for almost five years (see March 2003-November 18, 2007). He and a man named Jamil al-Banna had been arrested by the CIA in 2002 after being given information by the British intelligence agency MI5 that MI5 knew to be false (see November 8, 2002-December 7, 2002). He had worked as an informant for MI5 and they apparently wanted to pressure him to resume informing for them, but he refused. He and al-Banna were interrogated and abused in Gambia, Bagram in Afghanistan, and Guantanamo. He says, “My nightmare is finally at an end.” Al-Rawi’s lawyer says of al-Rawi’s US jailers: “Right to the end they treated him with brutality. On the way to the plane in Guantanamo—they knew he was leaving—they insisted still on shackling him, blindfolding him, putting on earmuffs so he couldn’t hear a thing and keeping him in the back of a very hot, very confined van on the way to the plane.” (BBC 4/1/2007) Britain showed no interest in helping al-Rawi until he publicly revealed in 2006 that he had been an MI5 informant (see April 20, 2006). Then it took over a year of secret negotiations before the US and Britain came to terms for releasing him (see October 3, 2006).

A New Yorker article by journalist Seymour Hersh claims that the abuses committed at Abu Ghraib in 2003 were covered up at a high political level in order to protect a clandestine operation called Copper Green where Joint Special Operations Command (JSOC) task forces were given virtually unlimited preapproved authority to capture and interrogate high ranking al-Qaeda figures (see Late 2001-Early 2002). JSOC interrogation techniques were brought to Abu Ghraib prison right when the worst documented abuses began taking place (see (Late August 2003 or September 2003)). One anonymous former senior intelligence official tells Hersh that when photographs of the Abu Ghraib abuses were published, some in the Pentagon and the White House “didn’t think the photographs were that bad” because they put the focus on low ranking soldiers instead of on the secret task force operations. A Pentagon counterterrorism consultant also tells Hersh that the “basic strategy was ‘prosecute the kids in the photographs but protect the big picture.’” (Hersh 6/17/2007)

According to Maj. Gen. Antonio Taguba, author of the most probing investigation into Abu Ghraib abuses (see February 26, 2004), many photographs and videos of the abuses have yet to surface publicly. While making his report, Taguba saw “a video of a male American soldier in uniform sodomizing a female detainee.” This video has not even been mentioned in any court proceedings. (Hersh 6/17/2007) Journalist Seymour Hersh, who first broke the Abu Ghraib abuse story, also claims that still unreleased photos show “other, more sexual abuse than we knew, sodomy of women prisons by American soldiers, a father and his son forced to do acts together. There was more stuff [than] was made public.” (Byrne and Edwards 6/17/2007) The US Army’s Criminal Investigation Division (CID) continues to hold such photos and videos and declines to release them, citing ongoing criminal investigations and their “extremely sensitive nature.” (Hersh 6/17/2007)

General Thomas Hartmann allegedly interfered with Guantanamo Bay prosecutions.General Thomas Hartmann allegedly interfered with Guantanamo Bay prosecutions. [Source: US Air Force]A new legal adviser to military commission hearings for detainees in Guantanamo Bay, General Thomas Hartmann, interferes with prosecutions, angering lead prosecutor Colonel Morris Davis (see September 29, 2006). Davis says that Hartmann’s position as adviser to the convening authority for the trials means he should stay neutral, but instead Hartmann requests detailed information on pending cases, defines the sequence in which they will be brought, and gets involved in “nano-management.” A Pentagon review partially supports Davis, advising Hartmann that he should “diligently avoid aligning himself with the prosecutorial function so that he can objectively and independently provide cogent legal advice” to the official in charge of supervising the commissions. Hartmann also supports using classified evidence in closed court sessions, which Davis wants to avoid, because it might taint the trials in the eyes of international observers and make it seem that the trials are stacked against defendants. Davis also objects to all elements of the military commissions being put under the Defense Department’s general counsel, as he thinks this could lead to a conflict of interest, and this causes him to resign in October (see October 4, 2007). (White 10/20/2007)

President Bush signs Executive Order 13440, which authorizes the CIA to continue using so-called “harsh” interrogation methods against anyone in US custody suspected of being a terrorist, or having knowledge of terrorist activities. The order relies on, and reaffirms, Bush’s classification of “al-Qaeda, Taliban, and associated forces” as “unlawful enemy combatants” who are not covered under the Geneva Conventions. The order also emphasizes that the Military Commissions Act (MCA) (see October 17, 2006) “reaffirms and reinforces the authority of the president to interpret the meaning and application of the Geneva Conventions.” The order does not include “murder, torture, cruel or inhuman treatment, mutilation or maiming, intentionally causing serious bodily injury, rape, sexual assault or abuse, taking of hostages, or performing of biological experiments… other acts of violence serious enough to be considered comparable to murder, torture, mutilation, and cruel or inhuman treatment… any other acts of cruel, inhuman, or degrading treatment or punishment prohibited” by law. It also precludes acts of extreme humiliation “that any reasonable person, considering the circumstances, would deem the acts to be beyond the bounds of human decency, such as sexual or sexually indecent acts undertaken for the purpose of humiliation, forcing the individual to perform sexual acts or to pose sexually, [or] threatening the individual with sexual mutilation, or using the individual as a human shield.” The order also excludes acts that denigrate a detainee’s religion or religious practices. (White House 7/20/2007) The order does not apply to the Army, which has numerous interrogators operating at Guantanamo and other US detention facilities. (Social Science Research Network 3/18/2008) CIA Director Michael Hayden says, “We can now focus on our vital work, confident that our mission and authorities are clearly defined.” Administration officials say that because of the order, suspects now in US custody can be moved immediately into the “enhanced interrogation” program. Civil libertarians and human rights advocates are much less enamored of the new order. Human Rights Watch official Tom Malinowski says, “All the order really does is to have the president say, ‘Everything in that other document that I’m not showing you is legal—trust me.’” (deYoung 7/21/2007) In January 2009, President Obama will withdraw the order. (Ackerman 4/21/2009)

After alleged al-Qaeda leader Muhammad Rahim al-Afghani is captured in Lahore, Pakistan, by local forces in July 2007 (see July 2007), he is soon transferred to a secret CIA prison. He is held in the CIA’s secret prison system until March 14, 2008, when he is transferred to the US-run prison in Guantanamo, Cuba. (Meyer and Williams 3/15/2008) It is not known when he is captured or handed to the CIA exactly, but a newspaper report on August 2, 2007, indicates he is already in US custody. (Asian News International 8/2/2007)
Secret CIA Prison System Still Operational - It is also not known where he is held exactly. In September 2006, President Bush announced that the CIA’s secret prisons had been emptied, at least temporarily, and the remaining prisoners had been transferred to Guantanamo (see September 6, 2006 and September 2-3, 2006). Since then, there has only been one instance of anyone held in secret CIA custody, and that was Abd al-Hadi al-Iraqi, held by the CIA from autumn 2006 until April 2007 (see Autumn 2006-Late April 2007). Rahim’s custody indicates that the CIA prison system is still being used, although Rahim may be the only prisoner held in it at this time. (Meyer and Williams 3/15/2008)
Is Rahim Interrogated Using Legally Questionable Methods? - In August and November 2007, an unnamed prisoner in a secret CIA prison is forced to stay awake for up to six days straight. This is almost certainly Rahim. The US State Department considers this treatment torture when other countries do it (see August and November 2007).

An unnamed prisoner held in the CIA’s secret prison system is kept awake for up to six days straight. According to documents made public in 2009, in August 2007, the Justice Department’s Office of Legal Counsel (OLC) gives CIA interrogators permission to keep an unnamed prisoner awake for five days straight. The prisoner is kept awake by being forced to stand with his arms chained above the level of his heart. He is forced to wear diapers, so he can stay continuously chained without bathroom breaks. Then in November 2007, interrogators ask for and receive permission to keep a prisoner awake for another day. A prisoner is kept awake for six days straight.
Is It Torture? - According to the Associated Press: “Sleep deprivation beyond 48 hours is known to produce hallucinations. It can reduce resistance to pain, and it makes people suggestible. The State Department regularly lists sleep deprivation as a form of torture in its annual report on human rights abuses. Recent reports have noted Iran, Syria, and Indonesia as engaging in the practice.” The US-based Center for Victims of Torture considers 96 hours (four days) of sleep deprivation to be torture. One director of the organization says: “It’s a primary method that is used around the world because it is effective in breaking people. It is effective because it induces severe harm. It causes people to feel absolutely crazy.”
Who Is Interrogated? - The name of the prisoner is blacked out in documents. However, the Associated Press suggests that the most likely candidate by far is alleged al-Qaeda leader Muhammed Rahim al-Afghani. Rahim was arrested not long before, in July 2007 (see July 2007), and he is the only known prisoner in the CIA’s secret prison system at this time (see Late July 2007-March 14, 2008). Furthermore, the US government will later declare him a “high value” detainee, most likely because he is said to have been in contact with Osama bin Laden as a translator and facilitator in recent years (see March 14, 2008).
Guidelines Exceeded? - At the time of the prisoner’s sleep deprivation, the Bush administration is reducing its use of severe interrogation techniques. Sleep deprivation is still allowed, but six days without any sleep exceeds existing guidelines. Amrit Singh, an American Civil Liberties Union (ACLU) attorney, says these incidents are “particularly disturbing” because they occur “even after the Supreme Court held that these prisoners were entitled to the protections of the Geneva Conventions and after Congress passed the Detainee Treatment Act to specifically prohibit cruel, inhuman, and degrading treatment.” When the Obama administration takes power in early 2009, it will issue new rules that state all prisoners must be allowed to sleep at least four hours during every 24-hour period. (Hess and Barrett 8/27/2009)

British Foreign Secretary David Miliband formally asks the Bush administration to release five British citizens from detention at Guantanamo. The administration will release three, but refuse to release Binyam Mohamed (see May-September, 2001 and November 4, 2005) and Shaker Aamer, citing security concerns. (Guardian 2/5/2009)

Pentagon officials announce that the number of detainees at the Guantanamo prison has been reduced to about 355. Eighty of these have been cleared for release or transfer. Fourteen are deemed “high value” detainees. The US has been working to reduce the population at Guantanamo as it considers closing the prison. (White 8/10/2007)

The American Civil Liberties Union (ACLU) releases documents that provide evidence of a possible cover-up of Iraqi prisoner abuse by American personnel in 2003. The documents detail US Army Office of Inspector General investigations by three high-ranking Army officials: Major General Barbara Fast, then the top intelligence officer in Iraq (see December 2003); Major General Walter Wojdakowski; and former CENTCOM head Lieutenant General Ricardo Sanchez. The documents suggest that these three flag officers failed to act promptly when informed of the abuses at Abu Ghraib. They also show that an Army investigator found that the conditions of prisoners held in isolation at the Iraqi prison qualified as torture. “These documents make clear that prisoners were abused in US custody not only at Abu Ghraib, but also in other locations in Iraq,” says ACLU official Amrit Singh. “Rather than putting a stop to these abuses, senior officials appear to have turned a blind eye to them.” The documents also show that Major General George Fay (see August 25, 2004) found the conditions of prisoners held in isolation at Abu Ghraib to be torture: “[W]hat was actually being done at Abu Ghraib was they were placing people in their cells naked and they were—those cells they were placing them in, in many instances were unlit. No light whatsoever. And they were like a refrigerator in the wintertime and an oven in the summertime because they had no outside form of ventilation. And you actually had to go outside the building to get to this place they called the ‘hole,’ and were literally placing people into it. So, what they thought was just isolation was actually abuse because it’s—actually in some instances, it was torturous. Because they were putting a naked person into an oven or a naked person into a refrigerator. That qualifies in my opinion as torture. Not just abuse.” Fay also noted in the document that a memo from then-Secretary of Defense Donald Rumsfeld authorizing removal of clothing created a ‘mindset’ in which that kind of humiliation was considered an “acceptable technique.” He noted that even though Rumsfeld later rescinded the memo (see August 25, 2004), not everyone received notice that the interrogation of naked prisoners was no longer permissible. (American Civil Liberties Union 8/15/2007)

Air Force Colonel Morris Davis resigns his position as the lead counsel for the military commissions trials at Guantanamo after complaining that his authority in prosecutions is being usurped for political purposes (see October 19, 2007). In particular, Davis complains about interference by Air Force Brigadier General Thomas Hartmann, a legal adviser at Guantanamo (see July 2007), and Defense Department General Counsel William J. Haynes (see October 4, 2007). (White 10/20/2007) Davis planned on prosecuting as many as 80 of the Guantanamo detainees. There have been no trials so far, because the Supreme Court ruled the trials unconstitutional until they were reauthorized by the Military Commissions Act (see October 17, 2006). Davis has made headlines with outspoken support of the trials and his colorful characterizations of Guantanamo detainees. In March 2006, he compared detainees who challenged the trial system to vampires afraid of the harsh sunlight of US justice: “Remember if you dragged Dracula out into the sunlight, he melted? Well, that’s kind of the way it is trying to drag a detainee into the courtroom,” he told reporters. “But their day is coming.” (Rosenberg 10/6/2007)

After almost five years in US custody, Mohammed Jawad (see December 17, 2002) is charged with attempted murder in violation of the law of war and intentionally causing serious bodily injury. Jawad is alleged to have thrown a hand grenade into a US military vehicle in Kabul, Afghanistan, but denies the charges. (Human Rights First 9/2008)

The former lead prosecutor for terrorism tribunals at Guantanamo, Colonel Morris Davis, tells reporters that senior officials at the Pentagon pushed for convictions of high-profile detainees before the November 2008 presidential elections, placing politics ahead of duty. Davis says that the pressure from the Pentagon played a part in his decision to resign (see October 4, 2007). Davis says senior Defense Department officials discussed the “strategic political value” of putting some prominent detainees on trial in a September 2006 meeting (see September 29, 2006). Davis also says he objected to newly appointed senior officials’ insistence on using classified evidence in closed sessions of court, and to the military commissions being put under Pentagon general counsel William J. Haynes (see October 4, 2007).
'Less than Full, Fair and Open' - Davis had serious concerns about the use of classified evidence, due to worries it could be seen to be tainting trials. Davis says that since Brigadier General Thomas Hartmann’s arrival as legal adviser to the convening authority in the summer of 2007, Hartmann has attempted to speed up trials that will engage media attention and show the public that the process works (see July 2007). “He said, the way we were going to validate the system was by getting convictions and good sentences,” Davis says. “I felt I was being pressured to do something less than full, fair and open.” (White 10/20/2007) Pentagon regulations require the legal adviser to be an impartial administration and not an arm of the prosecution.
'Political Commission' - Law professor Marc Falkoff, who represents some of the Guantanamo detainees, will observe that the interference Davis cites “is a patent violation of Rule 104 of the Manual for Military Commissions and Section 949b of the Military Commissions Act, both of which make it unlawful to ‘attempt to coerce or, by any unauthorized means, influence… the exercise of professional judgment by trial counsel or defense counsel.’” Falkoff notes that in the Supreme Court’s Hamdan verdict (see June 30, 2006), Justice Anthony Kennedy specifically disapproved of the first military commissions because they lacked “the safeguards that are important to the fairness of the proceedings and the independence of the court.” Davis says, “[A]s things stand right now, I think it’s a disgrace to call it a military commission—it’s a political commission.” (Falkoff 11/2/2007)

Administration of Torture book cover.Administration of Torture book cover. [Source: Public domain]American Civil Liberties Union (ACLU) lawyers Jameel Jaffer and Amrit Singh publish the book Administration of Torture: A Documentary Record from Washington to Abu Ghraib and Beyond. In their book, Jaffer and Singh use over 100,000 pages of government documents obtained through the Freedom of Information Act to detail the sometimes-horrific conditions under which suspected terrorists are detained by the US government. The book spans detention facilities in Afghanistan, Iraq, and Guantanamo Bay. The book’s central thesis is, according to the ACLU’s press release for the book, “that the torture and abuse of prisoners was systemic and resulted from decisions made by senior US officials, both military and civilian,” including President Bush himself. (American Civil Liberties Union 10/22/2007) “[T]he documents show unambiguously that the administration has adopted some of the methods of the most tyrannical regimes,” write Jaffer and Singh. Some of the prisoners “abused, tortured, and killed” were not even terror suspects, the authors show. (Juliano 10/22/2007) The book grew out of a long, difficult battle by the ACLU and several other such organizations to secure records pertaining to detainees held by the US in other countries (see October 7, 2003). The book shows a starkly different reality than the picture painted by the Bush administration’s repeated disavowals of torture, a reality established by the government’s own documentation. The administration has repeatedly claimed, for instance, that the torture and abuse so well documented at Baghdad’s Abu Ghraib prison was an isolated, unusual set of incidents that was not repeated at other US detention facilities. The documentation compiled by Jaffer and Singh prove that claim to be a lie: “This claim was completely false, and senior officials almost certainly knew it to be so.” Beatings, kickings, and all manner of abuses have routinely occurred at other detention facilities in Afghanistan and Iraq, the book states. Autopsy reports show that numerous prisoners in US custody have died due to strangulation, suffocation, or blunt-force trauma. Documents from Guantanamo, a facility where Bush officials have repeatedly claimed that the “excesses” of Abu Ghraib were never implemented, show that Guantanamo detainees were regularly “shackled in excruciating ‘stress positions,’ held in freezing-cold cells, forcibly stripped, hooded, terrorized with military dogs, and deprived of human contact for months.” And, perhaps most damningly for the administration, government documents show that top White House and Pentagon officials were not only well aware of the scope of the abuse months before the first pictures from Abu Ghraib were broadcast to the public, but that torture and abuse are part of the administration’s policy towards detainees. “[T]he maltreatment of prisoners resulted in large part from decisions made by senior officials, both military and civilian,” Jaffer and Singh write. “These decisions… were reaffirmed repeatedly, even in the face of complaints from law enforcement and military personnel that the policies were illegal and ineffective, and even after countless prisoners… were abused, tortured, or killed in custody.… The documents show that senior officials endorsed the abuse of prisoners as a matter of policy—sometimes by tolerating it, sometimes by encouraging it, and sometimes by expressly authorizing it.”
bullet The book presents a number of damning claims, all backed by extensive documentation, including the following: (American Civil Liberties Union 10/22/2007)
bullet General Michael Dunlavey, who oversaw prisoner interrogations at Guantanamo and considered former camp commander Brigadier General Rick Baccus too soft on the detainees (BBC 10/16/2002) , and who asked the Pentagon to approve more aggressive interrogation methods for the camp, claimed that he received his “marching orders” from Bush.
bullet Then-Defense Secretary Donald Rumsfeld was “personally involved” in overseeing the interrogation of a Guantanamo prisoner named Mohammed al-Khatani, the alleged would-be 20th 9/11 hijacker (see July 2002). Al-Khatani was “stripped naked, paraded in front of female interrogators, made to wear women’s underwear on his head, led around on a leash, and forced to perform dog tricks.” It is not clear just what being “personally involved” entails. Rumsfeld did not himself authorize such methods, but according to the investigator who documented the al-Khatani abuse session, Rumsfeld “failed to place a ‘throttle’ over abusive ‘applications’ of the ‘broad techniques’ that he did authorize….”
bullet Interrogators who used abusive ‘SERE’ (Survival, Evasion, Resistance, Escape) methods at Guantanamo did so because the Pentagon had endorsed those methods and required interrogators to be trained in the use of those methods (see December 2001).
bullet FBI personnel complained of abuses at Guantanamo; these instances of abuse were authorized by the chain of command within the Defense Department.
bullet Some of the most disturbing interrogation methodologies displayed in photos from Abu Ghraib were used at Guantanamo, with the endorsement of Rumsfeld, and that Major General Geoffrey Miller’s aggressive plan to “Gitmoize” Abu Ghraib was endorsed by senior Defense officials.
bullet Bush and his senior officials have always insisted that abuse and torture was limited to a few unauthorized soldiers at Abu Ghraib. Yet a Defense Department “Information Paper” shows that, three weeks before the Abu Ghraib photos appeared in the press, the US Army knew of at least 62 allegations of prisoner abuse in Afghanistan and Iraq, most of which had no relation to Abu Ghraib.
bullet The Defense Department held prisoners as young as 12 years old.
bullet The Defense Department approved holding prisoners in cells as small as 3 feet wide, 4 feet long, and 18 inches high. Special Forces units held prisoners in cells only slightly larger than that. (American Civil Liberties Union 10/22/2007)

Marc Falkoff.Marc Falkoff. [Source: Northern Illinois University]Law professor Marc Falkoff, who represents some of the Guantanamo terror suspects, says that the resignation of Colonel Morris Davis as the lead prosecutor in the Guantanamo military commissions trials (see October 4, 2007) is important not just because only 80 of the 350 detainees are slated to be tried, leaving the other 270 in what Falkoff calls a “legal limbo, subject to indefinite detention without charge or trial or any court oversight for the duration of the war on terror,” but because of Davis’s revelations that the commissions have been tainted by political considerations. Davis’s resignation “may finally signal to the American public that politics rather than principle reigns at Guantanamo, and that decisions about the administration of justice at the camp are being made—largely outside of public view and without accountability—by political actors for nakedly political reasons.” As an example, Falkoff notes that every European in custody has been returned to their home countries, but 90% of the Yemenis in detention remain in custody even though many have been cleared for release by the US military. Falkoff says that he and his colleagues have for over three years visited their clients in Guantanamo to bring them what he calls “good news” about the court victories they have won. Falkoff writes, “To a man, upon hearing our news, our clients have smiled politely and shrugged, pointing out to us that they still have not had their day in court and that they still are not treated in accord with the Geneva Conventions. ‘You have to understand,’ they tell us, ‘this is all a big game.’ More and more, I am starting to think they are right.” (Falkoff 11/2/2007)

Jamil al-Banna speaking to the press after returning to Britain. Jamil al-Banna speaking to the press after returning to Britain. [Source: Getty Images]On November 18, 2007, two British residents, Jamil al-Banna and Omar Deghayes, are released from the Guantanamo prison and returned to Britain. However, both men are immediately arrested when they arrive in Britain, because Spain has had an outstanding extradition request for them and two others since December 2003. The two others were later cleared of all wrongdoing. Al-Banna and Deghayes are released on bail a month later. (BBC 12/20/2007) Then, on March 6, 2008, Spanish judge Baltasar Garzon drops the extradition request after ruling that they are unfit to stand trial. British doctors who recently examined them say they are in poor health due to torture and inhumane treatment at Guantanamo (see March 2003-November 18, 2007). For instance, al-Banna is said to be severely depressed, suffering from post-traumatic stress disorder (PTSD), and has diabetes, hypertension, and back pain. (Hamilos and Dodd 3/6/2008) However, an article in The Guardian will say that while the two men are in poor health, that is really just a face-saving excuse to drop the extradition. Al-Banna in particular appears to have been framed by the British intelligence agency MI5, which gave the CIA false information about him and his friend Bisher al-Rawi that led to their capture and long imprisonment (see November 8, 2002-December 7, 2002 and December 8, 2002-March 2003). Al-Rawi was freed from Guantanamo earlier in the year (see April 1, 2007). The Guardian will say of al-Banna and Deghayes: “The innocence of the men will probably not be acknowledged publicly. It should be, if they are to rebuild their lives after the years of horror.… British complicity in the rendition of al-Banna from the Gambia to Afghanistan, and then to Guantanamo Bay, is in the public domain and shames us all.” (Brittain 3/6/2008)

Colonel Morris Davis, the former head of the Office of Military Commissions at Guantanamo Bay, writes in an op-ed for the Los Angeles Times that he resigned (see October 4, 2007) because he “concluded that full, fair and open trials were not possible under the current system.” He adds that, “I felt that the system had become deeply politicized and that I could no longer do my job effectively or responsibly.” Davis writes that while the legitimacy of the military commissions rests on the belief that they are being conducted fairly and honestly, the political appointee who is now the “convening authority,” Susan Crawford, is “not living up to that obligation.” The convening authority has “no counterpart in civilian courts,” Davis explains, and has great powers over certain aspects of prosecutions, such as which charges go to trial, which are dismissed, who serves on the jury, and whether to approve requests for experts, and reassesses findings of guilt and sentences. The position is mandated by law to be absolutely impartial, favoring neither prosecutions or defendants. While Crawford’s predecessor conducted himself with the required impartiality: “Crawford, on the other hand, had her staff assessing evidence before the filing of charges, directing the prosecution’s pretrial preparation of cases… drafting charges against those who were accused and assigning prosecutors to cases, among other things. How can you direct someone to do something—use specific evidence to bring specific charges against a specific person at a specific time, for instance—and later make an impartial assessment of whether they behaved properly? Intermingling convening authority and prosecutor roles perpetuates the perception of a rigged process stacked against the accused.” (Davis 12/10/2007)

Morris Davis, the former lead prosecutor for the Guantanamo military commissions who resigned in October (see October 4, 2007), tells interviewer Dan Rather that the upcoming prosecutions at Guantanamo are largely driven by political concerns (see October 19, 2007). “I think the big fear that was expressed was if Hillary Clinton wins the White House [in 2008]—this whole show goes away, and Guantanamo is shut down.… So, there’s a distrust of the military. And you’ve got political involvement. What I’ve seen in this process is that if you combine—ya know, excessive—arrogance with excessive ignorance—you wind up with six years later with—one guilty plea done.” (Rather 12/14/2007)

Mohammed Jawad, a young Guantanamo detainee held in US captivity for almost six years (see December 17, 2002) and charged with attempted murder (see October 7, 2007), is arraiged before a military commission. Jawad refuses to accept the assistance of his military counsel, Air Force Major David Frakt, says he knows of no civilian lawyer who would represent him, and says he does not wish to represent himself. Jawad tells the court he has no desire to continue the proceedings. The judge rules that Frakt will continue to represent Jawad. (Human Rights First 9/2008)

Lawyers for alleged enemy combatant Ali Saleh Kahlah al-Marri (see December 12, 2001) file papers with the court asserting that al-Marri was systematically abused by FBI and Defense Intelligence Agency (DIA) interrogators while in military custody. Al-Marri continues to be held in the Naval brig in Charleston, South Carolina (see June 23, 2003). Additionally, al-Marri was told that cabinets full of videotapes of his interrogations exist, according to the legal filings. Al-Marri has been in federal detention, without charge, since 2003. The New York Times has reported that about 50 videotapes of interrogation sessions with al-Marri and fellow detainee Jose Padilla (see May 8, 2002) were recently found by Pentagon officials (see March 13, 2008). DIA spokesman Donald Black admits that one tape shows al-Marri being gagged with duct tape, but says that al-Marri brought that treatment upon himself by chanting loudly and disruptively. One of al-Marri’s lawyers, Jonathan Hafetz, says that the treatment al-Marri has been forced to endure is far worse than anything Black describes—al-Marri, Hafetz says, has been subjected to stress positions, sensory deprivation, and threats of violence or death. “On several occasions, interrogators stuffed Mr. al-Marri’s mouth with cloth and covered his mouth with heavy duct tape,” says the legal filings. “The [duct] tape caused Mr. al-Marri serious pain. One time, when Mr. al-Marri managed to loosen the tape with his mouth, interrogators re-taped his mouth even more tightly. Mr. al-Marri started to choke until a panicked agent from the FBI or Defense Intelligence Agency removed the tape.” (United Press International 3/13/2008; White and Warrick 3/31/2008)

The Pentagon reviews a compendium of videotaped interrogations conducted at numerous US military detention facilities, including Guantanamo Bay and in Iraq. It identifies at least 50 tapes, including one showing the forcible gagging of a suspect. Defense Department officials say that only a few of the tens of thousands of interrogations conducted since 2001 were recorded. Most were “routinely destroyed” if they were found to have no continuing value, according to Pentagon spokesman Don Black. Among the 50 or so tapes already identified are interrogations of two high-level “enemy combatants,” Ali Saleh Kahlah al-Marri and Jose Padilla. Both were interrogated at the Naval brig in Charleston, South Carolina. A tape of an interrogation of al-Marri shows the terrorist suspect being gagged and manhandled by FBI agents (see March 13, 2008), but not waterboarded or otherwise tortured. Black says that the director of the Defense Intelligence Agency, Lieutenant General Michael Maples, has reviewed the tape and is satisfied that al-Marri was treated in an acceptable fashion. As for other possible tapes, Admiral Mark H. Buzby, the military commander at Guantanamo, says, “We suspect that the recording devices contain recorded data but we are unable technologically to confirm whether data remains.” (Mazzetti and Shane 3/13/2008)

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