Detainee 002: The Case of David Hicks
On February 11, 2008, the Pentagon announced that charges were being filed against six men in connection with the September 11 attacks, including Khalid Sheikh Mohammed, alleged mastermind of the attacks and one of al-Qaeda’s most senior members, and Ramzi bin al-Shibh, a leader of the Hamburg cell that included several of the September 11 pilots. It has taken nearly seven years for these men to be indicted—while more than 240 other prisoners continue to remain at Guantánamo in a state of indefinite detention without charge. In contrast, Britain, after one of the longest and most expensive trials in its history, has already convicted and sentenced four men for the failed attacks on the London subway on July 21, 2005.
Last year, British officials also arrested three other men for involvement in the deadly attacks on three London subway lines and a bus on July 7, 2005, two weeks earlier; they are scheduled to go on trial at the end of March. Spain has convicted twenty-one of twenty-eight men charged in connection with the terrorist attacks on commuter trains in Madrid in March 2004; and Indonesia has held lengthy trials and convicted four men who were accused of the terrorist attacks in Bali in October 2002, two of whom have been sentenced to death, and two to life imprisonment.
“Justice delayed is justice denied” is a guiding principle of the American criminal justice system. The Bush administration has ignored this principle with impunity, and America’s image abroad has suffered greatly as a result.
The administration could have avoided much of the criticism it has received for its handling of terrorism suspects. It didn’t have to listen to the civil libertarians and human rights lawyers. All it needed to do was heed the advice of the country’s military lawyers. At a press conference in February announcing the charges against the six alleged al-Qaeda leaders, Brigadier General Thomas W. Hartmann outlined the basic principles of justice that would be observed in the trials, which were in line with what the military lawyers had long urged the Bush administration to uphold. He said the suspects would have the right to civilian counsel; the right to remain silent; the right to examine all evidence; the right to cross-examine every witness called by the prosecution; the right to be present. He also said that guilt would have to be proved beyond a reasonable doubt. During the questioning at his press conference, General Hartmann made emphatic promises:
There will be no secret trials. Every piece of evidence, every stitch of evidence, every whiff of evidence that goes to the finder of fact, to the jury, to the military tribunal, will be reviewed by the accused, subject to confrontation, subject to cross-examination, subject to challenge….1
General Hartmann did not say, however, whether all this evidence, which will certainly include allegations by the defendants that they were tortured while in US custody, will be made available to the public. While each defendant and his lawyer will have the right to see “every whiff of evidence,” will they be able to release it? Lawyers for the Guantánamo prisoners have had to agree to submit all their interview notes to the military before they can be released, which is usually denied. The lawyer Clive Stafford Smith—who has represented more than forty Guantánamo inmates, is likely to represent one of the six defendants, and is the author of Eight O’Clock Ferry to the Windward Side: Seeking Justice in Guantánamo Bay—told me that lawyers representing the six must agree to greater restrictions on what they can say publicly than those required in the past. Another lawyer confirmed this, but neither would say what the restrictions were, because even those are classified.
Even so, the rights the six will have are considerably greater than the Bush administration wanted to grant initially. General Hartmann said their rights were “virtually identical” to those accorded to military personnel tried in courts-martial. The word “virtually” may conceal further limits on the rights of defendants, but still, it has taken almost six years to arrive at the standards of judicial procedure that the military lawyers were arguing for from the outset.
As the Bush administration, in the weeks after the September 11 attacks, began hurriedly drafting rules to try suspects, the most senior military lawyers, from all four services, were “appalled” at the lack of rights that the administration proposed granting the defendants. So we are told by Leigh Sales in Detainee 002: The Case of David Hicks.2 In general, she writes, the uniformed lawyers “wanted the same level of due process that was available under the Uniform Code of Military Justice,” the criminal code for military courts-martial that is by and large respected as fair by civilian criminal defense lawyers. The Wall Street Journal recently reported that in 2001 and 2002, a senior Army lawyer, Colonel Lawrence J. Morris, had proposed public trials of the highest-level al-Qaeda suspects, which he thought would be similar to the Nuremberg trials, and would reveal the scope of the al-Qaeda conspiracy.3 He was ignored, and a team of lawyers he had assembled to gather evidence against these suspects was disbanded.
Instead, in November 2001, President Bush issued an executive order that set up military commissions under special administration rules. These proceedings, which could be closed at the judge’s discretion, could admit any evidence that the judge thought had a “probative value to a reasonable person,” which meant that hearsay and evidence gained through torture might be admitted. Only a two-thirds vote was required to convict; and there was no right of appeal to a civilian court.
Outside of the Bush administration and its most conservative supporters, these commissions were widely criticized, including by the British government under Tony Blair, which basically said it would not cooperate with them. In a public lecture, a justice on Britain’s highest court, Lord Steyn, called the tribunals kangaroo courts, as did a Marine Corps lawyer who was defending one of the Guantánamo detainees. In its June 2006 Hamdan decision, the Supreme Court ruled that the military commissions were invalid because they had not been authorized by Congress. The Court also found that the process was fatally flawed, citing in particular its allowance of hearsay testimony and testimony obtained from defendants through torture.
President Bush then went to the Republican-controlled Congress to create a new tribunal system for the September 11 detainees, and within four months it passed the Military Commissions Act. This established military tribunals that granted defendants more rights than they had had under Bush’s executive order—guilty verdicts now required a unanimous vote—but the act still allowed some testimony obtained through torture and without a search warrant, and it stripped detainees of the right to file habeas corpus actions, the long-established legal procedure for challenging one’s imprisonment. The New York Times called it “one of the worst laws in the nation’s history.”4
It is unclear why the Bush administration chose to file the charges against the six now. But some have suggested that the timing relates to the fact that the provision of the 2006 Military Commissions Act that denies detainees the right to file habeas petitions is currently before the Supreme Court—in Boumediene v. Bush—and a decision is expected before the Court’s term ends in June. “It’s all about politics, not justice,” a senior law enforcement official told me. Nothing has changed in the last three years, he said; there is nothing we know now that we didn’t know then. The official predicted that the Supreme Court will rule against the administration in the Boumediene case, because at least one of the Court’s conservatives will join the liberals in upholding the principle of habeas corpus. Bush will then blame the liberals on the Court for obstructing the prosecution of dangerous men, whose habeas petitions will slowly wind through the courts. Democrats, and the Democratic presidential candidate especially, will then be put on the spot to defend, or reject, what the Court did, he argued, and it is not hard to imagine the attack ads on anyone who does not support whatever legislation the Bush administration proposes to cure the defects.
The trials of the six alleged September 11 conspirators are months away, but if they occur, we may come closer to learning much of what we still don’t know about the administration’s rendition program—for example, the specific countries in which the so-called “high-value” detainees were held for questioning before being transferred to Guantánamo, and the interrogation techniques the CIA and others have used at those sites.
The trial of Khalid Sheikh Mohammed will potentially be the most revealing. After being picked up by the CIA in Pakistan in March 2003, he was held in a black site—the administration would never say where he was—until September 2006, when the administration announced that he had been taken to Guantánamo—it didn’t say from where. In congressional testimony in February, the head of the CIA, General Michael V. Hayden, acknowledged for the first time that the US had subjected him and two other suspected al-Qaeda operatives to waterboarding.
In his testimony, General Hayden said that the CIA had used outside contractors in interrogations, though he did not say specifically that they had engaged in waterboarding. He also said that “fewer than 100 people” have been detained at CIA facilities, leaving open the possibility that several dozen people have been subjected to coercive interrogation at black sites by the CIA. These disclosures raised another question: Who were the interrogators and where were they during the waterboarding and other applications of “harsh interrogation techniques”? Were they in the room during the torture? Or to give themselves some legal protection, and deniability, did they leave the application of force to others, returning after the prisoner had been softened up?
Even without trials, Congress could get answers to these questions if it wanted to, and without forcing Bush administration officials to reveal classified information. Congress could begin by calling some of the former detainees who were held at black sites. One such person is Mamdouh Habib, an Egyptian-Australian who was first picked up in Pakistan in October 2001. I spent several hours interviewing him after his return to Australia in January 2005, and he told me that he was interrogated in Pakistan by a blonde woman in her mid-thirties who spoke American-accented English, and that he was put through excruciating torture, including being made to stand on a rolling drum that had electrical currents going through it. Then he said he was taken by the CIA to Egypt—a fact that has been recently confirmed by the Australian government. He has also said that an American and an Australian were present during his interrogation in Egypt—an allegation that has never been confirmed—and that he was severely beaten. Habib was released from Guantánamo, in part, American and Australian officials have told me, because the Bush administration did not want his allegations of torture made public in court, and in part because the military prosecutors at Guantánamo did not believe they had a very strong case against him, Leigh Sales reveals, for what I believe is the first time, in Detainee 002.
Perhaps the most controversial issue is whether “aggressive interrogation techniques,” as the administration prefers to call what many would describe as torture, have in fact prevented terrorist attacks. Members of the administration, and some journalists, assert that they have. “The CIA could point to a string of successes and dozens of plots that were rolled up because of coercive interrogation techniques,” the Washington journalist Ronald Kessler asserts in The Terrorist Watch: Inside the Desperate Race to Stop the Next Attack.
But specific details in such accounts about plots that have been thwarted through such methods have been thin, if not entirely lacking. For example, Kessler cites the case of Abu Zubaydah, a close associate of Osama bin Laden who is one of the two detainees subjected to severe interrogation techniques in sessions recorded on videotapes which were destroyed by the CIA in 2005. “If it had not been for coercive interrogation techniques used on Abu Zubaydah, CIA officials suggest, the second wave of attacks might have occurred and KSM [Khalid Sheik Mohammed] could be free and planning more attacks,” he writes (italics added). This sharply qualified justification for torture is far from the definitive assertion in a recent Wall Street Journal editorial that “we know that the waterboarding of Abu Zubaydah led to the capture of KSM, and to the foiling of an active terrorist plot against the United States”(italics added).5
A quite different, and fuller, account of Abu Zubaydah’s interrogation is provided in The One Percent Doctrine by Ron Suskind, another Washington-based journalist. When Abu Zubaydah was captured in March 2002, after being shot during a rooftop chase in Faisalabad, Pakistan, Bush, Cheney, and Rice all declared, and repeatedly, that Zubaydah was al-Qaeda’s chief of operations, the number-three man in the organization. But as Suskind writes, one of the most knowledgeable al-Qaeda experts in the FBI, Dan Coleman, had studied Zubaydah’s diaries and determined that this conclusion is unsupported and that “this guy is insane, certifiable, split personality.” Similarly, a CIA official had also found that “the guy had psychological issues.” Both these intelligence experts decided that Zubaydah’s position in al-Qaeda was not very important. He was more like a travel agent, they suggested, arranging travel for the wives and kids of al-Qaeda operatives.
Still, Zubaydah was waterboarded (as Hayden admitted in his recent testimony), bombarded with loud noise and light, and, according to Suskind and subsequent newspaper accounts, he was denied the pain-relief medication he needed for the injuries sustained in his capture.6 None of this is mentioned by Kessler. Under such pressure, Abu Zubaydah told his interrogators that al-Qaeda was targeting shopping mails, banks, supermarkets, water systems, nuclear plants, and apartment buildings. Federal and local police were sent to investigate the plots he confessed to. They came up with nothing.
I asked a top FBI official recently if any plots had been thwarted by what had been learned from Abu Zubaydah or any other detainee. “Not to my knowledge,” he said. A senior intelligence official from one of America’s closest allies had the same response when I talked with him. The interrogations of Zubaydah and other al-Qaeda members provided a better understanding of the al-Qaeda structure and network, he told me, but they didn’t directly stop any attacks. He also noted that after six months, at most, a detainee loses just about all intelligence value. By that time, every terrorist he might have named has gone underground, and any plots that might have been in planning will have been scuttled.
Could the same information have been extracted from Khalid Sheik Mohammed, Abu Zubaydah, and the others without torture? The FBI agents I have talked to say yes, that the agency does not resort to physical abuse to gain information. The important thing is to build a rapport with the suspect, FBI agents say. And every one of them has a weakness—money, gain, sex, megalomania.7
Indeed, according to the Los Angeles Times and The Washington Post, Khalid Sheik Mohammed and the five other alleged terrorists recently charged will be reinterrogated by the FBI, without coercive methods. The point of this is to reconstruct in a “clean” manner the information obtained from the earlier coercive CIA interrogations so as to provide evidence that can be admitted in court.8 There is still the large problem, of course, that the men may have already become fearful of further torture if they don’t cooperate.
Even Kessler acknowledges that the FBI can gain information without torture. The agent interrogating Abu Zubaydah told him that the FBI knew that Khalid Sheik Mohammed was the mastermind of the September 11 attacks. “How did you know he was the mastermind?” Abu Zubaydah replied. The agent didn’t know at the time. It was a ruse that worked. “He tricked him,” the agent told Kessler.
One thing Kessler and Suskind agree on is that Zubaydah gave his CIA interrogators the name of Jose Padilla, and that Padilla had been ordered by al-Qaeda to detonate a “dirty bomb” in the United States. If this were true, then it could be said that a plot was stopped through harsh interrogations: Padilla was arrested in May 2002, as he stepped off a plane in Chicago. Then Attorney General John Ashcroft interrupted a trip to Moscow to announce triumphantly to the world: “We have disrupted an unfolding terrorist plot to attack the United States by exploding a radioactive ‘dirty bomb.'”
But the case fell apart. Padilla was charged neither with a plot to detonate a dirty bomb nor with any plan to carry out a terrorist attack in the United States. As an American citizen, he was tried in a federal court and convicted of “conspiracy” to participate in Islamic wars overseas, and of providing financial support to terrorists, who the government said had fought in countries such as Chechnya and Bosnia. He was never charged with plotting to carry out any attacks in the United States. The government asked for a sentence of thirty years to life. In January 2008 he was sentenced to seventeen years in prison. Padilla’s accomplice, according to the US government, was Binyam Mohamed, a tall, lanky Ethiopian who ended up at Guantánamo. He became one of Clive Stafford Smith’s clients, and a good portion of Stafford Smith’s Eight O’Clock Ferry to the Windward Side is devoted to his case.
Binyam Mohamed had lived in the United States for a few years as an adolescent and later became a British resident. He was picked up in Pakistan in April 2002, when he was seized by immigration authorities at the Karachi airport with a false passport. He said his own passport had been stolen, and he had been given one by a British friend. He had gone to Afghanistan in mid-2001, he said, to cure his drug addiction—the Taliban had a strict anti–drug use policy (though they cultivated poppy seeds for export). American officials say he trained at several al-Qaeda camps in Afghanistan, and he was eventually charged in November 2005 with conspiracy to commit terrorist acts, including exploding a “dirty bomb,” blowing up gas tankers, and spraying people with cyanide in nightclubs.9
After being seized in Pakistan, Binyam was first held at a detention center in Karachi, where he was interrogated by four people claiming to be from the FBI, though it is more likely that they were from the CIA—employees or contractors. The torture began, carried out by Pakistanis. “He was suspended for a week by a leather strap, required to soil himself more often than he was allowed to the toilet, lapsing into a semi-sleep, standing up,” Stafford Smith writes. Each day, the Americans would return for more interrogation.
Three months later, the CIA secretly spirited him to Morocco, according to Binyam and to logs of the CIA’s chartered airplanes.10 “Academic discussions on the definition of torture were about to become moot,” Stafford Smith writes. The interrogators included a blue-eyed blonde in her early to mid-thirties, who gave her name as “Sarah” and said she was from Canada. (She sounds like the same woman Habib describes, but her identity remains unknown. Presumably congressional investigators could find her.) The guards put drugs in his food, he said, turned up the volume on the sex videos they were watching during his prayers, and brought naked women into his cell. One day, according to Binyam, four Moroccans came into his cell, hanged him on a wall, and cut off his clothes. Then, with a scalpel, they made cuts on his chest and penis. His accounts of torture have not been confirmed, and presumably no one except a doctor who treated him in Morocco and personnel at Guantánamo have seen any scars; but Binyam told Stafford Smith that there were six Americans who witnessed the injuries, either at the interrogation or on the CIA flight that took him from Morocco to Cuba, and that a woman soldier took photos. (Shouldn’t Congress try to find those?)
Binyam says that in order to end the torture, he told the interrogators whatever he thought they wanted to hear. Among other things he told them that on the evening before he and Padilla were to depart for the United States in 2002, they were given a farewell dinner in Karachi with Khalid Sheikh Mohamed, Abu Zubaydah, Sheikh al-Libi, a senior al-Qaeda military operative, and Ramzi bin al-Shibh.
Stafford Smith finds it hard to accept “the notion that four of al-Qaeda’s top six leaders congregated in one room in Karachi, a thousand miles by road from the al-Qaeda hideouts in Peshawar, simply to bid au revoir to Binyam and Padilla.” Moreover, the account is clearly inaccurate since by the time the alleged meeting took place, Abu Zubaydah and al-Libi were already in US custody.
Stafford Smith, a dual British-American citizen who once represented death-row inmates in the American South, was one of the first lawyers to sign up to represent men being held in Guantánamo. He now represents more Guantánamo prisoners than any other lawyer. Eight O’Clock Ferry to the Windward Side is a valuable addition to the growing number of books about the “war on terror.”11 It is, of course, written from the defense point of view, but it is not a polemic, and it sustains a sense of the absurdity of much that happened. An FBI agent, for example, said in an affidavit that he had learned something from Binyam’s wife. But Binyam wasn’t married. “We concluded that the FBI must believe in arranged marriages,” Stafford Smith writes, and had arranged one for Binyam. But the severe restrictions placed on Stafford Smith have serious implications. He cannot, for example, tell us what is in Binyam’s confession. He said he reviewed hundreds of pages of documents obtained through discovery, and under the military rules he is forbidden to tell us what is in them.
Stafford Smith advised Binyam that when he appeared before the military tribunal he should represent himself. “His words, not mine, were going to be published by the media,” Stafford Smith writes. Binyam understood. His military commission hearing transcript, as reported by Stafford Smith, reads like a script for a farce. First comes the matter of Binyam’s last name, which has been spelled several ways on different government documents. Therefore, Binyam tells the judge, a Marine Corps colonel named Ralph Kohlmann, that the government is prosecuting a wrongly identified defendant. “Four years of—what do you call it?—enhanced torture techniques, and we have the wrong person in court.” Finally, he says, “Call me Count Dracula.”
Binyam repeatedly interrupted Colonel Kohlmann, and at one point said it was not a military commission, but a “con-mission,…a mission to con the world.” He then held up a sign he had made with the words CON-MISSION, and showed it to the journalists. Kohlmann said he could not allow that. Binyam demanded to know what in the rules forbade him to show his sign. Kohlmann said he could establish the “rules of court for the conduct of these proceedings, OK?” To which Binyam replied, “OK, so we have a new rule, ‘No more signs in the court?'”
The hearing lasted several hours, and has not resumed. Binyam is still at Guantánamo, the last British resident still detained there, more than a dozen having been released at the request of the British government. Over objections from the British government, which has never supported the military commissions, the Pentagon is preparing to file charges against Binyam, Stafford Smith told me recently.
Civil liberties have not been a big issue in the Democratic and Republican primary campaigns, and are not likely to be; there are probably few votes in standing up for the rights of suspected Muslim terrorists.
The leading presidential candidates—Senator John McCain, Senator Hillary Clinton, and Senator Barack Obama—have all said that torture is wrong (not many would disagree), that waterboarding is not permissible, and that they would close Guantánamo. But their voting records show clear differences. Clinton and Obama voted against the 2006 Military Commissions Act, which authorized the intelligence services to use “enhanced interrogation” methods and denied habeas corpus to terrorism suspects. McCain voted for it. Before he began his campaign for president, McCain was an effective voice against torture, having survived five years being tortured at the hands of the North Vietnamese. His general approach was that the United States should treat captives in the manner it wants its soldiers treated when they are captured.
But since he needs the conservative vote, McCain has moved from those positions. In mid-February, he voted against the Intelligence Authorization Act for 2008, which sought to make it illegal for the CIA and other intelligence agencies to use interrogation techniques that are forbidden by the US Army field manual. (Both Clinton and Obama did not vote.) The bill passed, but President Bush vetoed it in March. Like McCain and Obama, Clinton has said that she favors closing Guantánamo, but she has not made it a major campaign theme. Only Obama makes a point in his speeches that he would restore habeas corpus for Guantánamo prisoners. It generally brings loud applause.
Whatever the outcome of the election, the issue is not going to go away. There are still hundreds of prisoners held without charge at Guantánamo, and it will in all likelihood be left to the new administration to deal with them. Until it does so, the United States will maintain its reputation as a country that has flouted the basic principles of justice and set a deplorable example for the world.
—March 18, 2008
Hicks was an Australian knockabout who was picked up in Afghanistan in October 2001, having undergone some training with al-Qaeda; he would become the first suspect to have his case reach completion before a military commission, on one count of support for terrorism, which was unrelated to the September 11 attacks. He pleaded guilty, under a plea bargain arrangement, and was sentenced to a relatively light nine months detention, which he served in Australia; he was released on December 29, 2007. ↩
Jess Bravin, “Terror Charges Imminent in 9/11 Case,” The Wall Street Journal, February 11, 2008. ↩
Editorial, “The Democrats’ Pledge,” The New York Times, May 9, 2007. ↩
Editorial, “Tall Torture Tales,” The Wall Street Journal, February 6, 2008. ↩
See David Johnston, “At a Secret Interrogation, Dispute Flared over Tactics,” The New York Times, September 10, 2006. In State of War: The Secret History of the CIA and the Bush Administration (Free Press, 2006), James Risen suggests that Bush may have ordered the pain-killing medication to be withheld as a way to put pressure on Zubaydah to talk. ↩
For a convincing account of how an FBI agent used “persistence and persuasion, not…threats or violence,” to get an al-Qaeda member to confess and become a valuable witness in the trials of the men charged, and convicted, for their role in the 1998 bombing of the American embassies in Africa, see Jane Mayer, “Junior,” The New Yorker, September 11, 2006. ↩
“US to Try 6 on Capital Charges over 9/11 Attacks,” The Washington Post, February 12, 2008. ↩
Official Department of Defense charge sheet, United States of America v. Binyam Ahmed Muhammad, available at www.defenselink.mil/news/commissions_exhibits_muhammad.html. ↩
See William Glaberson, “Guantánamo, Evil and Zany in Pop Culture,” The New York Times, February 18, 2008. Guantánamo has become “an irresistible subject,” Glaberson says, and, not surprisingly, nearly all the novels, plays, movies, as well as nonfiction, use it as a symbol of malevolent policy incarnate. ↩