In four years of researching and writing about Guantanamo, I have
become used to uncovering shocking information, but for sheer cynicism,
I am struggling to think of anything that compares to the revelations
contained in the unclassified ruling in the habeas corpus petition of
Fouad al-Rabiah, a Kuwaiti prisoner whose release was ordered last week
by Judge Colleen Kollar-Kotelly (PDF).
In the ruling, to put it bluntly, it was revealed that the US
government tortured an innocent man to extract false confessions and
then threatened him until he obligingly repeated those lies as though
they were the truth.
The background: lies hidden in plain sight for five years
To establish the background to this story, it is necessary for me to return to my initial response to the ruling
a week last Friday, before these revelations had been made public,
when, based on what I knew of the case from the publicly available
documents, I explained that I was disappointed that the Obama
administration had pursued a case against al-Rabiah, alleging that he
was a fundraiser for Osama bin Laden and had run a supply depot for
al-Qaeda in Afghanistan's Tora Bora mountains, for two particular
reasons.
The first was because a CIA analyst had interviewed al-Rabiah at
Guantanamo in the summer of 2002 and had concluded that he was an
innocent man caught at the wrong time and in the wrong place; and the
second was because, although al-Rabiah had said that he had met bin
Laden and had been present in the Tora Bora mountains, he had provided
an innocent explanation for both occurrences. He had, he said, been
introduced to bin Laden on a trip to Afghanistan to investigate
proposals for a humanitarian aid mission, and he had been at Tora Bora
- and compelled to man a supply depot - because he was one of numerous
civilians caught up with soldiers of al-Qaeda and the Taliban as he
tried to flee the chaos of Afghanistan for Pakistan, and had been
compelled to run the depot by a senior figure in al-Qaeda.
These appeared to be valid explanations, especially as al-Rabiah, a
42-year old father of four children, had no history of any involvement
with militancy or terrorism, and had, instead, spent 20 years at a
management desk job at Kuwait Airways, and had an ownership interest in
some health clubs. Moreover, he had a history of legitimate refugee
relief work, having taken a six-month approved leave of absence from
work in 1994-95 to do relief work in Bosnia, having visited Kosovo with
the Kuwaiti Red Crescent in 1998, and having made a trip to Bangladesh
in 2000 to delivery kidney dialysis fluid to a hospital in the capital,
Dhaka.
As a result, it appeared to me a week last Friday that Judge
Kollar-Kotelly granted al-Rabiah's habeas petition because neither his
meeting with bin Laden nor his presence in Tora Bora indicated that he
was either a member of, or had supported al-Qaeda or the Taliban.
However, now that Judge Kollar-Kotelly's ruling has been issued, I
realize that the account given by al-Rabiah during his Combatant Status
Review Tribunal at Guantanamo in 2004 - on which I based my account of
his activities - was a tissue of lies, and that the truth, hidden for
over six years, is that, like torture victims groomed for show trials
throughout the centuries, he made up false stories under torture, and
repeated them obediently, fearing further punishment and having been
convinced that he would never leave Guantanamo by any other means.
An introduction to the torture revelations, and an endorsement of al-Rabiah's explanations about his time in Afghanistan
In
her ruling, Judge Kollar-Kotelly methodically dissected the
government's case to reveal the chilling truth. After noting,
initially, that the "evidentiary record" was "surprisingly bare,"
because the government "has withdrawn its reliance on most of the
evidence and allegations that were once asserted against al-Rabiah, and
now relies almost exclusively on al-Rabiah's 'confessions' to certain
conduct," she added, with a palpable sense of disbelief:
Not only did al-Rabiah's interrogators repeatedly
conclude that these same confessions were not believable - which
al-Rabiah's counsel attributes to abuse and coercion, some of which is
supported by the record - but it is also undisputed that al-Rabiah
confessed to information that his interrogators obtained from either
alleged eyewitnesses who are not credible and as to whom the Government
has now largely withdrawn any reliance, or from sources that never even
existed ... If there exists a basis for al-Rabiah's indefinite detention,
it most certainly has not been presented to this Court.
In dealing with al-Rabiah's background, and his reasons for
traveling to Afghanistan, Judge Kollar-Kotelly was required to consider
his own assertion that, after a preliminary ten-day visit in July 2001
to identify areas where humanitarian aid might be delivered, he
returned in October 2001 "to complete a fact-finding mission related to
Afghanistan's refugee problems and the country's non-existent medical
infrastructure," against the government's claim that he was "'not an
aspiring aid worker caught up in the front lines of the United States
war against al-Qaeda' but instead was someone who traveled to
Afghanistan in October 2001 as a 'devotee of Osama bin Laden who ran to
bin Laden's side after September 11th.'"
Concluding that "The evidence in the record strongly supports
al-Rabiah's explanation," Judge Kollar-Kotelly noted that he had
officially requested leave prior to his departure, and quoted from two
letters sent to his family. In the first, on October 18, 2001, he
explained that "for ten days he assisted with the delivery of supplies
to refugees and that he was able to take video 'reflecting the tragedy
of the refugees,' but that he was unable to leave Afghanistan through
Iran (the route he took to enter the country) because the borders had
been closed." As a result, he "wrote in his letter that he and an
unspecified number of other persons decided 'to drive four trucks to
Pakistan making our way to Peshawar,'" and he also asked his brother to
notify his boss at Kuwait Airlines that he was having difficulties
returning to Kuwait on time.
After noting that "The evidence in the record establishes that
al-Rabiah did, in fact, travel across Afghanistan towards Peshawar,
ultimately getting captured (unarmed) by villagers outside of Jalalabad
... on approximately December 25, 2001" (with Maher al-Quwari, a
Palestinian who also ended up in Guantanamo), Judge Kollar-Kotelly
quoted from a second letter sent to his family, in which - ironically,
in light of what was to come - he wrote that he was "detained by the
American troops and thanks to God they are good example[s] of
humanitarian behavior." He added that he was "detained pending
verification of [his] identity and personality," and that the
"investigation and verification procedures may last for a long time due
to the great number of detained Arabs and other persons" who had been
fleeing the situation in Afghanistan, which "turned upside down between
one day and night and every Arab citizen has become a suspect."
Discrediting the government's unreliable witnesses
Moving on to the government's key allegations - about Osama bin
Laden and Tora Bora - Judge Kollar-Kotelly dismissed the allegations
regarding al-Rabiah's supposed activities in Tora Bora, which were made
by another prisoner who claimed that he "was told that al-Rabiah was in
charge of supplies at Tora Bora," by noting that, "Although his
allegations are filled with inconsistencies and implausibilities, the
Government continues to rely on him as an eyewitness." She also noted
that, although the witness had identified al-Rabiah as the man under
discussion, from his kunya (nickname), Abu Abdullah
al-Kuwaiti, the government had conceded that another Abu Abdullah
al-Kuwaiti, an actual al-Qaeda operative named Hadi El-Enazi, was
present in Tora Bora, and also noted that an interrogator had expressed
doubt about the supposed eyewitness at the time (much of the ruling is
redacted, but this seemed to involve a claim that al-Rabiah's oldest
son was with him in Afghanistan, when this was demonstrably not the
case).
Judge Kollar-Kotelly also dismissed two other sets of allegations by
the supposed eyewitness. Noting further "inconsistencies and
impossibilities" in his accounts, she stated that "the Court has little
difficulty concluding that [his] allegations are not credible," and
explained that, to reach this conclusion, she had also drawn on
statements provided by al-Rabiah's lawyers, which further undermined
his reliability, "based on, among other things, undisputed
inconsistencies associated with his allegations against other
detainees," and his medical records, which obviously indicated mental
health problems (although the description was redacted). "At a
minimum," she added, "the Government would have had to corroborate
[his] allegations with credible and reliable evidence, which it has not
done."
Osama bin Laden, it then transpired, appeared in allegations made by
a second prisoner, who "alleged that al-Rabiah attended a feast hosted
by Osama bin Laden," where he "presented bin Laden with a suitcase full
of money." This source also alleged that al-Rabiah "served in various
fighting capacities in the Tora Bora mountains," and that he "funneled
money to mujahadeen in Bosnia in 1995."
After noting that the government had dropped "almost all" of these
allegations, except for the one relating to Bosnia, Judge
Kollar-Kotelly stated, witheringly, "the only consistency with respect
to [these] allegations is that they repeatedly change over time." For
particular condemnation, she singled out one claim that the feast had
taken place in August 2001 (when al-Rabiah was in Kuwait, before his
return to Afghanistan in October 2001), amongst other more outlandish
claims, including an absurd allegation that al-Rabiah had trained the
9/11 hijackers.
As with the first supposed eyewitness, Judge Kollar-Kotelly noted
that there were "multiple exhibits in the record demonstrating [his]
unreliability as a witness" (although, sadly, the exact number of
prisoners against whom he had made verifiably false allegations was
redacted), and concluded that, although the many "inconsistencies and
impossibilities" in his statements "raise, at a minimum, a serious
question about [his] mental capacity to accurately make allegations
against al-Rabiah," the government "did not address them at the Merits
Hearing" in August.
After dismissing a third supposed eyewitness, because he had
withdrawn his allegation (which was redacted) several months after
making it, Judge Kollar-Kotelly dismissed a fourth, even though it was
"undisputed" that al-Rabiah actually had contact with him in
Afghanistan. Despite redactions, it seems that this man was Maher
al-Quwari, and that his statement involved second-hand hearsay about
al-Rabiah being seen with a gun. While this was sufficiently weak for
the judge not to accept it without further corroboration, she also made
a point of discounting it because the supposed witness only "made this
allegation while he was undergoing a cell relocation program at
Guantanamo called the 'frequent flier program,' which prevented a
detainee such as [redacted] from resting due to frequent cell
movements."
While the description of a "cell relocation program" sounds
relatively benign, Judge Kollar-Kotelly made a point of noting that it
was, in fact, a program of sleep deprivation, adding that, "According
to a report published by the Senate Armed Services Committee concerning
the treatment of detainees in United States custody, sleep deprivation
was not a technique that was authorized by the Army Field Manual."
Although she also noted that "sleep deprivation became authorized at
Guantanamo by the Secretary of Defense on April 16, 2003, the guidance
issued by the Commander of USSOUTHCOM on June 2, 2003 prohibited the
use of sleep deprivation for more than 'four days in succession,'"
whereas the supposed witness's "allegation against al-Rabiah was made
after one week of sleep deprivation in the program, and he did not
repeat this allegation either before or after the program."
False confessions obtained through torture
Despite ruling out all of the government's supposed eyewitnesses,
and noting that the government had withdrawn "most of its reliance on
these witnesses" by the time of the Merits Hearing, Judge
Kollar-Kotelly added that "it is very significant that al-Rabiah's
interrogators apparently believed these allegations at the time they
were made, and therefore sought to have al-Rabiah confess to them" -
despite the well-chronicled unreliability of the first two supposed
witnesses, the withdrawing of the statement made by the third, and the
fact, easily perceived by the judge, that the fourth made his statement
only after being subjected to sleep deprivation that exceeded
established guidelines and that was, therefore, not only unreliable,
but also abusive.
The judge also noted the significance of the evidence in the record
indicating that al-Rabiah "subsequently confided in interrogators
[redacted] that he was being pressured to falsely confess to the
allegations discussed above," and also the significance of the fact
that, although "al-Rabiah's interrogators ultimately extracted
confessions from him," they "never believed his confessions based on
the comments they included in their interrogation reports."
After noting - again with a palpable sense of incredulity - that
"These are the confessions that the Government now asks the Court to
accept as evidence in this case," Judge Kollar-Kotelly proceeded to
demolish them all, breaking them down into three periods: the first,
when "there were no allegations directed toward al-Rabiah and al-Rabiah
provided no confessions"; the second, when the supposed eyewitnesses
"made their now-discredited allegations and al-Rabiah was told of the
allegations against him, but al-Rabiah nevertheless made no
confessions"; and the third (which, shockingly, continued "until the
present"), when "al-Rabiah confessed to the now-discredited allegations
against him, as well as to other 'evidence' that interrogators told him
they possessed, when, in fact, such evidence did not exist."
In the first phase, Judge Kollar-Kotelly noted that there was no
indication "that interrogators believed al-Rabiah had engaged in any
conduct that made him lawfully detainable," and explained that, "To the
contrary, the evidence in the record during this period consists mainly
of an assessment made by an intelligence analyst that al-Rabiah should
not have been detained." As discussed in my previous article, this
analyst was "a senior CIA intelligence analyst, who, almost uniquely,
was also an Arabic expert," but although I wrote that "it amaze[d] me
that no one in the Justice Department, under President Obama,
investigated the CIA analyst's report," the truth, as revealed in the
unclassified ruling, is even bleaker.
It transpires that Justice Department officials had read
the report, but tried to discredit the analyst's verdict, "arguing that
it represented the opinion of only one analyst," ignoring his
well-chronicled expertise, and obliging the judge to point out that,
"according to the Government's own evidence, '[i]ntelligence analysts
undergo rigorous tradecraft training [and] employ specific analytical
tools to assist them in sorting and organizing various pieces of
information," and are also "trained to recognize and mitigate biases,
not only in the information presented to them, but their own cognitive
biases as well."
In the second phase, despite extensive redactions to the ruling, it
is clear that al-Rabiah was repeatedly interrogated, although he
"express[ed] frustration to FBI agents that he was repeatedly asked,
among other questions, whether he had ever seen Osama bin Laden, and
remark[ed] that his answer was 'no' and would continue to remain 'no.'"
What happened next, in a "new three-pronged approach," is unknown, as
the details are severely redacted, but it "did not result in any
confessions. Al-Rabiah repeatedly denied the allegations against him."
After this, apparently following some kind of advice given to the
lead interrogator (by an unknown party whose identity and suggestions
were redacted), the interrogators "began using more aggressive
interrogation tactics." Again, the details are redacted, but enough
information is available from passages that were not redacted earlier
in the ruling to indicate that these "tactics" included sleep
deprivation (the "frequent flier program"), which, as I explained in my
previous article, led three British men released in March 2004 - the
so-called "Tipton Three," whose story was dramatized in the film "The Road To Guantanamo"
- to explain that al-Rabiah was moved every two hours, over an
unspecified period of time (but one that clearly exceeded the four-day
recommendation by a substantial margin), leaving him "suffering from
serious depression, losing weight in a substantial way, and very
stressed because of the constant moves, deprived of sleep and seriously
worried about the consequences for his children."
Possibly in reference to the use of sleep deprivation (although it
could also have been another "enhanced interrogation technique"), Judge
Kollar-Kotelly explained that, "Once it became authorized, it could not
be used on a detainee until 'the SOUTHCOM Commander ma[de] a
determination of "military necessity" and notif[ied] the Secretary [of
Defense] in advance' of its use," and also made a point of noting that
"the Government was unable to produce any evidence that [the
interrogator] obtained authorization to use the [redacted] technique
with al-Rabiah despite requests by the Court at the Merits Hearing for
such evidence."
Although the other techniques are not described, they undoubtedly
included some or all of the following - prolonged isolation, the use of
extreme heat and cold, short-shackling in painful stress positions,
forced nudity, forced grooming, religious and sexual humiliation, and
the use of loud music and noise - because this whole package of
techniques, including sleep deprivation, was approved for use at the
highest levels of the Bush administration, as a Senate Committee
explained in the detailed report in April this year that was cited by
the judge (PDF).
The program was based on reverse engineering techniques taught in US
military schools (the SERE program - Survival, Evasion, Resistance,
Escape) to train recruits to resist interrogation if captured by enemy
forces.
These techniques were acknowledged to be illegal and, moreover, were
intended to produce false confessions, but this did not prevent senior
Bush officials from pushing for their implementation, and, in
al-Rabiah's case, they duly led to his conversion from an innocent man
who refused to falsely confess to allegations produced by unreliable
witnesses into a modern-day version of the victims of the Spanish
Inquisition, the seventeenth century "witches" of Salem and elsewhere,
the victims of Stalin's show trials, or the captured US pilots on whom
the North Koreans had practiced the techniques adopted by the SERE
schools: a broken man prepared not only to falsely confess to any lies
put before him, but also prepared to learn these confessions and repeat
them as his masters saw fit.
As the ruling makes clear, between redactions, "The following day
marked a turning point in al-Rabiah's interrogations," and "From that
point forward, al-Rabiah confessed to the allegations that
interrogators described to him." Despite the extensive redactions, the
following passage from the ruling makes clear the full horror of his
confessions:
Al-Rabiah's confessions all follow the same pattern:
Interrogators first explain to al-Rabiah the "evidence" they have in
their possession (and that, at the time, they likely believed to be
true). Al-Rabiah then requests time to pray (or to think more about the
evidence) before making a "full" confession. Finally, after a period of
time, al-Rabiah provides a fill confession to the evidence through
elaborate and incredible explanations that the interrogators themselves
do not believe. This pattern began with his confession that he met with
Osama bin Laden, continued with his confession that he undertook a
leadership role in Tora Bora, and repeated itself multiple other times
with respect to "evidence" that the Government has not even attempted
to rely on as reliable or credible.
In the following pages of the ruling, which are again fill of
redactions, it is nevertheless possible to glimpse the progress of this
game that was not only grim and cynical, but also potentially deadly
(because, as a prisoner put forward for a trial by Military Commission, it was always possible that the government would have pressed for the death sentence had al-Rabiah been convicted).
For page after page the distressing truth peeks out: al-Rabiah "did
not know what to admit" when his interrogators explained that his "full
confession did not incorporate a description concerning a suitcase full
of money that he allegedly gave bin Laden"; they "began to question the
truthfulness of his confessions almost immediately"; they "began
'grilling' al-Rabiah concerning [redacted]"; al-Rabiah "was
interrogated [redacted] during which he made a full confession
regarding his activities at Tora Bora"; interrogators "pressed for
additional details concerning Tora Bora"; they "became increasingly
convinced that his confessions [redacted]"; they "concluded in one
interrogation report [redacted]"; "One week later, his interrogator
concluded [redacted]"; "After several additional interrogation
sessions, al-Rabiah's interrogators concluded simply [redacted]."
Readers can fill in the gaps through the judge's response to the
redacted passages. "Incredibly," she wrote, "these are the confessions
that the Government has asked the Court to accept as truthful in this
case."
Al-Rabiah explains his cooperation with the interrogators; threats and punishment described
Judge Kollar-Kotelly then dismissed further allegations, which
again, were mostly redacted but included the following ironic gem: "The
Government has not even attempted to explain how someone with no known
connection to al-Wafa [a Saudi charity regarded, during Guantanamo's
"witch-hunt" phase, with particular suspicion]
and who had never even been to Afghanistan longer than a few weeks
could ascend to such an honored position, and no credible explanation
is contained in the record."
She then moved on to al-Rabiah's own explanations of how he came to
make false confessions, noting that he had stated that, shortly after
his arrival at Guantanamo, "a senior [redacted] interrogator came to me
and said, 'There is nothing against you. But there is no innocent
person here. So, you should confess to something so you can be charged
and sentenced and serve your sentence and then go back to your family
and country, because you will not leave this place innocent."
This is deeply disturbing, of course, as it indicates that at least
one senior interrogator recognized that the Bush administration's
refusal to recognize that there were innocent men at Guantanamo - and
it has been clear for many years that hundreds of innocent men were held,
who had no connection whatsoever to any form of militancy, let alone
terrorism - had set in motion a system in which, whether voluntarily or
not, all the innocent men at Guantanamo were expected to make false
confessions, either so that they could continue to be labeled as "enemy
combatants" on release, to maintain the illusion that Guantanamo was
full of "the worst of the worst," or, as in al-Rabiah's case, so that
they could be tricked and transformed into terrorist sympathizers and
facilitators.
For some (and it has been confirmed by a former interrogator that at least 100 prisoners in Guantanamo
were subjected to SERE-derived "enhanced interrogation"), confessions
clearly came easily, and without the use of abuse or torture, but for
others, including al-Rabiah, "pressure" was involved. Judge
Kollar-Kotelly drew on a declaration from March this year, in which he
explained that his confessions arose out of "scenarios offered ... by
[his] interrogators ... which [he] believed to be the story they wanted
[him] to tell and which [he] felt pressured to adopt" (emphasis added). As he also explained:
[M]y interrogators told me they knew I had met with
Osama bin Laden, that other detainees had said I met with Osama bin
Laden, that there was nothing wrong with simply meeting Osama bin
Laden, and that I should admit meeting him so I could be sent home ... In
about August 2004, shortly before my CSRT hearing [the tribunal at
which al-Rabiah repeated his approved confessions in detail], my
interrogators told me the CSRT was just a show that would allow the
United States to "save face." My interrogators told me no one leaves
Guantanamo innocent, and told me I would be sent home to Kuwait if I
"admitted" some of the false things I had said in my interrogations.
The interrogators also told me that I would never go home again if I
denied these things, because the United States government would never
admit I had been wrongly held.
In a key passage, he spelled out what being "pressured" meant. As
the judge explained, he stated that "he made his confessions to reduce
the abuse meted out by his interrogators 'to obtain confessions that
suited what [they] thought they knew or what they wanted [him] to say.'
He maintained his confessions over time because 'the interrogators
would continue to abuse me anytime I attempted to repudiate any of
these false allegations.'" As she also noted:
There is substantial evidence in the record supporting
al-Rabiah's claims. The record is replete with examples of al-Rabiah's
interrogators emphasizing a stark dichotomy - if he confessed to the
allegations against him, his case would be turned over to [redacted] so
that he could return to Kuwait; if he did not confess, he would not
return to Kuwait, and his life would become increasingly miserable.
Through the veil of redactions, it is clear that al-Rabiah
attempted, on more than one occasion, to withdraw his confessions, but
that his interrogators threatened to withdraw something (food? comfort
items?) as a result, and Judge Kollar-Kotelly also noted that
punishment, as well as the threat of punishment, was meted out to him.
"The record," she wrote, "also supports al-Rabiah's claims that he was
punished for recanting." Examples provided by the judge were redacted,
but the following passage, in which she discussed further abuse as a
result of the interrogators' frustrations regarding al-Rabiah's
inability to invent a coherent false narrative, was not. She wrote:
The record contains evidence that al-Rabiah's
interrogators became increasingly frustrated because his confessions
contained numerous inconsistencies or implausibilities. As a result,
al-Rabiah's interrogators began using abusive techniques that violated
the Army Field Manual and the 1949 Geneva Convention Relative to the
Treatment of Prisoners of War. The first of these techniques included
threats of rendition to places where al-Rabiah would either be tortured
and/or would never be found.
These threats were made on at least four occasions, and, as the
judge explained, "were also reinforced by placing al-Rabiah into the
frequent flier program," discussed above. It is also apparent that the
threats continued throughout this period, as the judge also noted that
"al-Rabiah's interrogators continued to threaten him [redacted]."
After making a point that, as explained in the Army Field Manual,
"prohibited techniques [are] not necessary to gain the cooperation of
interrogation sources," and, in fact, that the use of these methods is
likely to "yield unreliable results, may damage subsequent collection
efforts, and can induce the source to say what he thinks the interrogator wants to hear,"
Judge Kollar-Kotelly added that, "Underscoring the impropriety of these
techniques is the fact that [redacted], al-Rabiah's lead interrogator,
was disciplined for making similar threats during the same period
toward a Guantanamo detainee who was also one of the alleged
eyewitnesses against al-Rabiah ... for which he was disciplined" (the
details, predictably, were redacted).
Judge Kollar-Kotelly's devastating conclusions
Judge Kollar-Kotelly added, pointedly, "These abusive techniques did
not result in any additional confessions from al-Rabiah, although he
continued to parrot his previous confessions with varying degrees of
consistency," and then reached her devastating conclusion:
The Court agrees with the assessment of al-Rabiah's
interrogators, as well as al-Rabiah's counsel in this case, that
al-Rabiah's confessions are not credible. Even beyond the countless
inconsistencies associated with his confessions that interrogators
identified throughout his years of detention, the confessions are also
entirely incredible. The evidence in the record reflects that, in 2001,
al-Rabiah was a 43 year old who was overweight, suffered from health
problems, and had no known history of terrorist activities or links to
terrorist activities. He had no military experience except for two
weeks of compulsory basic training in Kuwait, after which he received a
medical exemption. He had never traveled to Afghanistan prior to 2001.
Given these facts, it defied logic that in October 2001, after
completing a two-week leave form at Kuwait Airlines where he had worked
for twenty years, al-Rabiah traveled to Tora Bora and began telling
senior al-Qaeda leaders how they should organize their supplies in a
six square mile mountain complex that he had never previously seen and
that was occupied by people whom he had never met, while at the same
time acting as a supply logistician and mediator of disputes that arose
among various fighting factions.
It remained only for Judge Kollar-Kotelly to replay some of the more
obvious discrepancies in al-Rabiah's "confessions" to demolish the
government's claims that they should be accepted as "reliable and
credible," and to refute the government's argument that, "even if
al-Rabiah's confessions in 2003 were the product of abuse or coercion ...
the taint ... would have dissipated" by the time of his CSRT in 2004,
when he provided the painstakingly detailed and superficially plausible
false confession that was the only publicly available account of his
activities until Judge Kollar-Kotelly's ruling was released.
Taking exception to the government's argument "for both factual and
legal reasons," the judge took particular note of the role played by
al-Rabiah's lead interrogator, "who extracted al-Rabiah's confessions
and punished his recantations," noting that he "continued to make
'appearances' at al-Rabiah's interrogations at least as late as
[redacted] - after al-Rabiah's testimony in his CSRT proceedings." She
also explained, "Such 'appearances' appear to have been terrifying
events for al-Rabiah given the description included in a [redacted]
interrogation report" (the details of which were, again, redacted).
On a legal basis, she dismissed the government's argument by
explaining that, although "it is certainly true in the criminal context
that coerced confessions do not necessarily render subsequent
confessions inadmissible because the coercion can be found to have
dissipated," there needs to be evidence of "a 'clean break' between the
coercion and the later confessions," which is simply not available in
al-Rabiah's case. "If anything," she concluded, "the evidence suggests
that there was not a 'clean break' between the coercion and his later
statements because there is evidence that [redacted] continued to
appear at al-Rabiah's interrogation sessions through at least September
2004" (the date redacted in the paragraph above).
As a final stab at the government, she mentioned a statement made by
al-Rabiah in May 2005, and submitted to his first annual Administrative
Review Board (the military panels that reviewed the bases for
prisoners' ongoing detention), which had not surfaced until the Merits
Hearing, in which al-Rabiah attempted to set the record straight,
"recant[ing] all of his previous confessions with the sole exception of
one admission that he saw [but did not meet] Osama bin Laden during his July 2001 trip to Afghanistan."
After dealing with a few more ingenious but flawed claims by the
government, it remained only for Judge Kollar-Kotelly to recap the
whole sorry saga, and to deliver the final words to restore Fouad
al-Rabiah's liberty:
During the merits Hearing, the Government expressly
relied on "Occam's Razor," a scientific and philosophic rule suggesting
that the simplest of competing explanations is preferred to the more
complex ... The Government's simple explanation for the evidence in this
case is that al-Rabiah made confessions that the Court should accept as
true. The simple response is that the Court does not accept confessions
that even the Government's own interrogators did not believe. The writ
of habeas corpus shall issue.
Final words
Judge Kollar-Kotelly's ruling will, hopefully, be recalled in years
to come as one of the most significant examples of a judge attempting
to redress some of the most egregious injustices perpetrated in
Guantanamo's long, dark history. The shocking sub-text to this story is
that al-Rabiah is not the only prisoner to have been brutalized into
making false confessions, and then being required to repeat them. Ahmed
al-Darbi, a Saudi put forward for a trial by Military Commission, made similar claims in a statement posted here,
and, as I mentioned above, it is also clear that SERE-derived "enhanced
interrogation techniques" were applied to at least 100 prisoners in
Guantanamo between 2002 and 2004, above and beyond those like Mohammed al-Qahtani and Mohamedou Ould Slahi,
whose stories are well-known. Many of these men - all the Europeans,
other Arabs who had the misfortune to speak good English or to have
visited the United States - have been released, their false confessions
(like those made by the "Tipton Three" after months of abuse, before
their lawyers proved one of them was working in a shop in England when
he was supposedly videotaped at a training camp) filed away, used to
justify their lifelong label as "enemy combatants," but not leading, as
with Fouad al-Rabiah, to a court appearance where the supposed evidence
will ever be tested.
Al-Rabiah was fortunate to meet a judge with an inquiring and
diligent mind, and an acute awareness of the many problems with the
gathering and interpretation of information at Guantanamo, but others
have not yet had an opportunity to do the same, and although further
habeas petitions are forthcoming, and others are scheduled to face
either trials by Military Commission or federal court trials, where
similar patterns of false allegations followed by torture and false
confessions may be detected, it troubles me that the 50 or so prisoners identified by officials last week as being candidates for indefinite detention - described by the New York Times
as those who "are a continuing danger to national security but who
cannot be brought to trial for various reasons, like evidence tainted
by harsh interrogations" - may also have been caught up in a cynical
cycle of false allegations, torture and false confessions.
As David Cynamon, one of Fouad al-Rabiah's attorneys, explained to me in an email exchange:
To date, the debate about torture in the US has been
skewed by the fact that the admitted victims of torture are also
admitted al-Qaeda leaders, like Khalid Sheikh Mohammed. This gives the Cheneys and Wall Street Journal
types the argument that torture was justified to get valuable
information from these hardened terrorists. I know this argument is
wrong, but it's being made, with some effect. But what happens when you
declare the Geneva Conventions "quaint,"
and lift all limits, is that pretty quickly the abusive interrogation
techniques are not being limited to the KSMs but are being applied to
innocent prisoners like Fouad al-Rabiah, who have no valuable
intelligence because they have no connection with al-Qaeda or the
Taliban. Instead, they are tortured in support of a cynical and
misguided dictum that there can be no innocent men in Guantanamo.
It is hard to believe that the US could ever have sunk so low. And
that the new Administration is keeping us down there. The Obama
Department of Justice, with Attorney General Holder piously proclaiming
that this Administration repudiates torture, and follows the rule of
law, in fact is following the Bush playbook to the letter. In this
case, the DoJ defended the abusive and coercive interrogation
techniques used against Fouad. Thank God, though, that we have an
independent judiciary. The importance of the writ of habeas corpus and
independent judges has never been more clear.