Of Tribunals and Torture

By JOANNE MARINER
Tuesday, May. 15, 2007

Eight months after arriving at Guantanamo, the fourteen "high value" detainees transferred from CIA custody in September 2006 have all undergone the administrative tribunal process by which the military purports to assess whether they are "enemy combatants." Although the results of these proceedings have not yet been announced, no one has the slightest doubt about what they will be.

Sorry, we disappeared you for years into a secret CIA prison, waterboarded you, denied the Red Cross all access to you, and may have sent you to Egypt or Jordan for even worse treatment at the hands of their governments' expert interrogators -- but it was all a mistake? Not.

Out of the 558 people who underwent these same administrative hearings in 2004 and 2005, only 38 were deemed not to be enemy combatants. And, in fact, the classification that U.S. military authorities applied to this group was "No Longer Enemy Combatants," suggesting that they had, at one time, been correctly held as enemy combatants.

In other words, even for the children, the illiterate farmers, the senile old men, and the mentally ill prisoners who were held at Guantanamo and then released, there is no classification to indicate that the United States might have made a mistake. Over 390 prisoners have been released from Guantanamo; not one of them has gotten an apology for having lost years of his life.

This is not to argue that the fourteen former CIA detainees were themselves mistakenly arrested. Some or all of them may, indeed, be responsible for serious crimes. But it is clear that the process by which their status is being assessed does not tell us much about whether they are innocent or not of such crimes, nor about whether they participated in combat against the United States.

Even more worrying, the defective administrative processing that the detainees are now receiving is just a preview of the substandard military commission trials that await them.

The Admissibility of Evidence Obtained under Torture

The key problem in both the administrative tribunals and the upcoming trials is torture. The administrative proceedings, called Combatant Status Review Tribunals (CSRTs), are decided primarily on the basis of secret evidence, much of it believed to be testimony obtained from detainees abusively, even via torture.

In the upcoming military commission trials, similarly, evidence obtained coercively is specifically permitted, assuming the judge finds it reliable. While evidence obtained under torture is supposed to be barred, the law and regulations that cover military commissions contain a number of overlapping provisions that essentially nullify this rule. These provisions will make it very difficult, if not impossible in some cases, for defense counsel to show the military commission judge that evidence was actually obtained under torture.

Moreover, it's unclear what kinds of abuses the judges will deem to be torture. If military commission judges accept the Bush administration's warped interpretation of the term, they will decide that classic torture techniques such as waterboarding are not, in fact, torturous. The result would be that the CIA detainees could be tried - and possibly put to death - based on interrogation methods characteristic of despotism.

"Months of Torture"

Scanning the transcripts of the CSRT proceedings of the former CIA detainees, there are abundant allegations of torture, though the details are entirely censored. Palestinian Zayn al Abidin Muhammed Husayn, for example, submitted a statement during the hearing in which he described "months of torture."

In broken English, he tried to describe to the administrative tribunal how he had made statements under torture to please his interrogators -- from the CIA or FBI, he was not sure. The president of the tribunal summed up his allegations, saying that "during this treatment, you said things to make them stop, and these things were actually untrue."

But the details of the "treatment" that Husayn underwent were cut from the transcript. In censoring Husayn's comments, the transcript provides a rather poignant and telling exchange:

President: In your previous statement, you were saying specific treatments. Can you describe a little bit more about what those treatments were?

Detainee: [REDACTED]

President: I understand.

Detainee Abd al-Rahim al-Nashiri, heard two weeks earlier, made his claims quite clearly. He said that he was "tortured into confession," and that "once he made a confession his captors were happy and they stopped torturing him."

Questioned by the tribunal president, al-Nashiri described how he was tortured, a section whose gaps are again eloquent:

President: Please describe the methods that were used.

Detainee: [REDACTED] What else do I want to say? [REDACTED] Many things happened. They were doing so many things . [REDACTED] After that another method of torture began. [REDACTED] .

Of course, claiming torture is not the same as actually proving that it happened. But the U.S. government's heavy-handed efforts to bar the public from hearing the substance of these claims seems like a tribute to their veracity. For what U.S. officials say is that the information about particular interrogation methods cannot be released because other terrorist suspects could somehow prepare for them. But if the detainees were lying about the methods used on them, then it would be wholly unnecessary to censor their statements.

The Missing Majid Khan Hearing Transcript

Although, in the past, the Pentagon allowed journalists to attend these proceedings, the Pentagon has closed all of the current proceeding to the press, in order to prevent journalists from reporting "classified" information about torture. Rather than hold public proceedings, it releases the censored transcripts after a few days, a week, or ten days.

But only 13 of the 14 transcripts have been released, raising questions about what the final transcript contains. Majid Khan, a Pakistani detainee who lived in the United States for many years, went before an administrative tribunal on April 13, a hearing that reportedly lasted three days. A full month has gone by, and a transcript of the hearing is still not available.

Khan's father submitted an affidavit to the tribunal based on information provided by Khan's brother, who was held with Khan for a time after the two were arrested. "The Americans tortured him for eight hours at a time," the affidavit said, "tying him tightly in stressful positions in a small chair until his hands, feet and mind went numb."

Contacted by the press for comment, a CIA spokesman gave the agency's usual, rote response: "The United States neither conducts nor condones torture, and the agency acts in strict accord with American law." Would it were so. Perhaps the truth of the matter is in the transcript of Khan's administrative proceeding, which a government censor is apparently still reading.


Joanne Mariner is a New York-based human rights attorney. Her previous columns on Guantanamo, Abu Ghraib, and the "war on terror" may be found in FindLaw's archive.

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