Court Slaps Government Over Use Of Torture Evidence

You might not know it from the asleep at the wheel major media, but the Bush/Cheney war on terror foundation has taken some serious hits recently, from news of the murder of Gul Rahman at the Salt Pit, to the selective prosecution of David Passaro, to the finding by Judge Walker that the wiretapping was illegal, to widely acclaimed terror pros Steve Kappes and Phil Mudd both suddenly bailing from their high ranking intelligence jobs. You can add to the list a hard slap down by a Federal Court of the government’s continued use of bogus evidence obtained by brutal torture to try to justify continued detention of detainees at Guantanamo.

On Wednesday, Judge Henry H. Kennedy of the DC District Court issued his written opinion in the Habeas Petition by Uthman Abdul Rahim Mohammed Uthman, and it is a testament of what it looks like when a legitimate court encounters the unconscionable torture and innuendo evidence the US Government, under both the Bush and Obama Administrations, has been relying on to hold the detainees at Gitmo.

Uthman had been captured in the Afganistan/Pakistan border region (allegedly in the general area of Tora Bora, although that was never established) with a large group of others all rounded up en masse. Uthman claims he was a teacher innocently traveling, the DOJ asserted he was a key bodyguard for bin Laden. The evidence proffered against Uthman came almost exclusively from two other detainees, Sharqwi Abdu Ali AI-Hajj and Sanad Yislam Ali Al Kazimi, who both assert they fabricated the statements in response to severe torture.

Here is how the handling of Hajj and Kazimi was described by Uthman, and found credible by the court:

Uthman has submitted to the Court a declaration of Kristin B. Wilhelm, an attorney who represents Hajj, summarizing Hajj’s description to her of his treatment while in custody. The declaration states that while held in Jordan, Hajj “was regularly beaten and threatened with electrocution and molestation,” and he eventually “manufactured facts” and confessed to his interrogators’ allegations “in order to make the torture stop.” After transfer to a secret CIA-run prison in Kabul, Afghanistan, Hajj was reportedly “kept in complete darkness and was subject to continuous loud music.”

Uthman has also submitted a declaration of Martha Rayner, a Professor at Fordham University Law School who represents Kazimi, regarding Kazimi’s description of his treatment in detention. Rayner reports that while Kazimi was detained outside the United States, his interrogators beat him; held him naked and shackled in a dark, cold cell; dropped him into cold water while his hands and legs were bound; and sexually abused him. Kazimi told Rayner that eventually “[h]e made up his mind to say’ Yes’ to anything the interrogators said to avoid further torture.” According to Rayner’s declaration, Kazimi was relocated to a prison run by the CIA where he was always in darkness and where he was hooded, given injections, beaten, hit with electric cables, suspended from above, made to be naked, and subjected to continuous loud music. Kazimi reported trying to kill himself on three occasions. He told Rayner that he realized “he could mitigate the torture by telling the interrogators what they wanted to hear.” Next, Kazimi was moved to a U.S. detention facility in Bagram, Afghanistan, where, he told Rayner, he was isolated, shackled, “psychologically tortured and traumatized by guards’ desecration of the Koran” and interrogated “day and night, and very frequently.” Kazimi told Rayner that he “tried very hard” to tell his interrogators at Bagram the same information he had told his previous interrogators “so they would not hurt him.” (citations omitted)

The DOJ shamelessly attempted all types of circuitous and bootstrapped argument to try to buck up the tortured proof they were passing and the court properly called them on it at every turn. The decision is only twenty pages long and is a quick read; it is worth it to see just how many layers of unsupported and flimsy innuendo the government, through those beacons of ethical virtue at the Obama DOJ, will ply a court with and maintain a presumably straight face. It is stunning.

In order to give you an idea of the soundness of Judge Kennedy’s ruling, I will leave the legal citations in the quote from his discussion of the applicable law and his conclusion thereon:

Uthman asserts that the proximity in time between the torture Hajj and Kamizi described and their interrogations by the CITF investigator, however cordial, renders their statements unreliable. In general, “resort to coercive tactics by an interrogator renders the information less likely to be true.” Mohammedv. Obama, 2009 WL 4884194, at 23 (D.D.C. Dec. 16,2009) (citing Linkletter v. Walker, 381 U.S. 618, 638 (1965)). To determine admissibility in analogous situations criminal cases, courts assess the voluntariness of statements made after the application of coercive techniques based on a totality of the circumstances test. ld. (citing United States v. Karake, 443 F. Supp. 2d 8, 87 (D.D.C. 2006)); see also Schneckloth v. Bustamante, 412 U.S. 218,226 (1973) (“In determining whether a defendant’s will was overborne in a particular case, the Court has assessed the totality of all the surrounding circumstances. “). Judges of this Court have adopted this test in the cases of other Guantanamo Bay detainees seeking release. See, e.g., Mohammed, 2009 WL 4884194, at 23; Anam v. Obama, – F. Supp. 2d -,2010 WL 58965, at 4 (D.D.C. Jan. 6, 2010). The test calls for considering, inter alia, “the time that passes between confessions, the change in place of interrogations, and the change in identity of the interrogators.” Mohammed, 2009 WL 4884194, at 23 (quoting Oregon v. Elstad, 470 U.S. 298, 310 (1985)) (internal quotation mark omitted).

Respondents do not argue that the alleged torture of Hajj and Kazimi is sufficiently attenuated from the interviews at which they gave the relevant statements to support a conclusion that despite the coercion, the statements are nonetheless reliable. The interviews on which the relevant FM40s are based occurred in Bagram, where torture of Hajj was ongoing and where Kazimi had arrived directly from the CIA prison, at which he was tortured, only about a month earlier. Therefore, the Court concludes that there has been no “break in the stream of events … sufficient to insulate the statement from the effect of all that went before.” Clewis v. Texas, 386 U.S. 707, 71 0 (1967). Accordingly, the Court will not treat Hajj and Kazimi’ s statements as true.

Again, the full decision is worth a read. As you do, keep in mind that the standard in evaluating the lawfulness of the detention of the individuals held at Guantanamo Bay is the government may detain only “those who are ‘part of’ the ‘Taliban or al Qaida forces,'” and the key question is whether an individual ‘receive[s] and execute[s] orders’ from the enemy force’s combat apparatus”. It is not a hard standard, but there does have to be some credible evidence.

Also critical to keep in mind is the fact that the burden of proof in a Habeas proceeding is only a civil one of “preponderance of the evidence”; commonly accepted to mean anything at all more than 50%, i.e. anything that makes the asserted proposition more likely than not. It is the lowest possible burden of proof. Judge Kennedy couldn’t find the government was even close to the mark on the lowest possible scale in a civil case. Just think what this says about the ability of the government to meet any criminal burden of proof such as “beyond a reasonable doubt”.

Uthman Abdul Rahim Mohammed Uthman has been being held by the US government in brutal captivity at Gitmo since January of 2002 – over eight years – based on evidence that would not be sufficient to convict him of a parking ticket. And then remember that, as one of the far less than 200 detainees remaining at Guantanamo, Uthman is supposed to be one of the worst of the worst and that the government has a solid case on. Thanks to the Bush and Obama Administrations, this is who we are now as a country. Any more questions as to why Lindsay Graham and the Obama Administration are fighting for military commissions?

(Graphic by the one and only Darkblack)

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90 replies
  1. quake says:

    Where is the outrage in the MSM? Somehow or other this has gone on so long that the public and MSM have become completely acclimated to torture by the US govt or its agents. History will ask how sensibilities of the American people became so numbed.

    • bobschacht says:

      I think this “acclimation” is part of the Bush administration’s diabolical plan, and part of the reason why Dick Cheney and Baby Dick have talked so openly and positively about torture. The goal is to “normalize” the discussion so that it no longer “shocks the conscience.”

      It’s just disgusting.

      Bob in AZ

      • Stephen says:

        For a number of years I have been educating my 90 year old aunt after following Emptywheel and Company with all the fantastic work that has been done to expose the atrocities and lies. She usually gets her news each day from the CBC, CTV and CNN. The other day during our weekly phone conversation she proclaimed that the treatment handed out was the only way to deal with “these people”. After all the evidence I put forward to enlighten her understanding of the torture, rendition, and murder she still does not get it. No more phone calls.

  2. bobschacht says:

    Thanks for your coverage of this decision! It is heartening to know that our courts can sort through the evidence and make a sensible decision.

    What is disheartening is that the government will probably continue to detain Uthman, regardless of this court decision, probably alleging that he is “too dangerous to release.”

    This will also scare all the Chicken Littles such as Sen. Lindsey Graham, who will rant, “OMG! We can’t try KSM in a civil court! The judge might throw out all our cooked up evidence! We can’t afford that! They must be convicted!!! We must try him in a military court where we can rig the outcome!”

    And the worse thing is that the Obama administration is complicit in this legal debacle.

    Bob in AZ

  3. Jeff Kaye says:

    A truly excellent piece, bmaz, and thanks for spelling out the legal elements involved. It only makes the crime of holding Uthman even more outrageous. In a piece I wrote on this same case at The Seminal, I quoted but left unremarked how the CITF agent, who interviewed the tortured “witnesses” who turned in Uthman, had met for four hours at a time with Hajj and Kazimi during their interrogations at Bagram. Readers can peruse the quotes in bmaz’s articles to see what they were undergoing at that U.S. base prison.

    I think it’s worth quoting here.

    From Kennedy’s decision (link in bmaz’s article — bold emphasis here added):

    The investigator testified to meeting with each man in an interrogation room on several days for approximately four hours at a time. The investigator did not see Hajj or Kazimi other than during those four-hour sessions and did not inquire of them, or anyone else, about their treatment in the various prisons in which they were held.

    Hear no evil, see no evil. Or as the military and spooks say it, “Stay in your lane.” It’s a testament to the fallen moral fiber of this country that so many would look away or remain silent in the face of such evil. It is mirrored in the silence of the mainstream media when confronted with the words of a Federal Judge.

    Thanks, bmaz, for as usual taking the right stand.

  4. Arbusto says:

    Will Obama ever get schooled on this issue and his continuing failure to follow the rule of law or governance by consensus. Well at least 90% of 1/3 of government works to support the rule of law.

  5. qweryous says:

    Your post cites the descriptions of the torture of accusers Hajj and Kazimi, and the reasons that the ‘accusations’ made by them were discounted by the court.

    I’ll point out that on page 17 of the pdf is found:

    “As to the guesthouse allegation, a summary of an interrogation of Richard Dean Belmar,
    ISN 817, indicates that when shown a picture of Uthman, Belmar stated that he “may have been a lower amir,” or leader, “in the Kandahar guest house.””

    The treatment of Richard Dean Belmar seems to match that of Hajj and Kazimi.
    Note the incident with the pistol described.

    See this story titled: “Beatings, sex abuse and torture: how MI5 left me to rot in US jail”. Subtitle: “In the first eyewitness account to come out of the infamous Bagram prison, Londoner Richard Belmar talks exclusively to David Rose” BY David Rose The Observer, Sunday 27 February 2005 LINK: http://www.guardian.co.uk/politics/2005/feb/27/guantanamo.usa

    EXCERPT:

    “Belmar spent more than six months in Bagram, held in one of several cages in a gloomy basement. He was forced to undergo anal searches in front of US guards, some of them female. During one interrogation, he said he was sexually taunted by a woman interrogator, who fondled his private parts: ‘I told her she was ugly, cheap and I spat in her face. There were two guys in the room and I was shackled. They got me on the floor and started kicking me up, in the back, in the stomach, they gave me a real beating.’ “In another interrogation, he said, a handgun was forced into his mouth. ‘It tasted cold, bitter. I thought, “Yeah, this is getting serious, there’s a good chance they will pull the trigger.”‘ Bold not present in original.

    Belmar said he watched as another prisoner, a young Arab, was taken into a side room away from the main cages area after trying to escape from his cage. ‘He was fine when they brought him in. They had immobilised him, and the next thing they were carrying him out on a stretcher.’ The US military coroner has certified two homicides of prisoners at Bagram from ‘blunt force trauma’.”

    After his release to British custody a story in The Independent dated January 26, 2005 LINK: http://www.independent.co.uk/news/uk/crime/police-chief-rules-out-prosecutions-that-rely-on-guantanamo-evidence-488287.html

    EXCERPT:

    “The commissioner said he had decided to arrest the men on their arrival in Britain after reading MI5 and other intelligence files which alleged that the suspects had committed offences in this country. Asked whether material obtained while the men were in Guantanamo would be unacceptable in a British court, he responded: “Absolutely.” Bold not present in original.

  6. bmaz says:

    Hey, Pakistan has its own Gitmo:

    The Pakistani military is holding thousands of suspected militants in indefinite detention, arguing that the nation’s dysfunctional civilian justice system cannot be trusted to prevent them from walking free, according to U.S. and Pakistani officials.

    The majority of the detainees have been held for nearly a year and have been allowed no contact with family members, lawyers or humanitarian groups, the Pakistani officials and human rights advocates said.

    • bobschacht says:

      You are surprised?
      Recall also that Pakistan actually has a strong Judiciary and their lawyers are more insistant about Constitutional niceties than many of ours are, taking to the streets in protest when needed:

      Monday, 12 March 2007, 16:31 GMT
      BBC News In pictures: Lawyers’ protest
      Lawyers across Pakistan have boycotted courts and taken part in rallies – some resulting in violent clashes with police – in protest at the suspension of the country’s top judge.

      Monday, 5 November 2007, 12:32 GMT
      BBC News: Pakistan police attack protesters
      Pakistani policemen beat protesters in Lahore, 5/11/07
      As many as 2,000 lawyers attracted the attention of police in Lahore
      Police have used tear gas and baton charges to break up demonstrations by Pakistani lawyers against the country’s state of emergency.

      Lawyers said many colleagues were arrested as protests were dispersed in Lahore, Karachi and Rawalpindi….

      03/13/2009 15:05 PAKISTAN
      Lawyers’ protest continues as government warns against attacks
      by Qaiser Felix
      Laywers’ “long march” to Islamabad against President Zardari continues. They say about a thousand people have been arrested. The Human Rights Commission of Pakistan compares government action to Musharraf’s military rule.

      etc.
      And who do you think the Pakistani Government copied their police state tactics from? Oh, well, we could have a chicken and egg situation there. Did some of our “experts” learn anything from the ISI before they started using SERE-based methods?

      Bob in AZ

    • Nathan Aschbacher says:

      Becoming? The day that law enforcement were able to supply nothing more than an affidavit to the court as the “true” account of events was the day we became a police-state.

      • Gitcheegumee says:

        Reminds me of Tulia,Texas tactics from 1999.

        Anyone remember this case?

        Oh, and there is supposed to be a film out in 2011,starring Halle Berry and Billy Bob Thornton about this case ,fwiw,althought there already has been an award winning documentary done on this subject already.

        Amazon.com: Tulia: Race, Cocaine, and Corruption in a Small Texas …One morning in 1999, in the little cow town of Tulia in the Texas panhandle, … I first read about the travesty of justice in Tulia, Texas in columnist Bob …
        http://www.amazon.com › … › Recovery › Drug Dependency – Cached – Similar

  7. bobschacht says:

    Late Night O/T:
    The AP has a new list of Obama’s top ten possible nominees for the Supremes:
    In addition to old-list names such as appeals court judges Diane Wood, Merrick Garland, Solicitor General Elena Kagan, Michigan Gov. Jennifer Granholm, and recently discussed names such as Homeland Security Secretary Napolitano, names new to me include appeals court judge Sidney Thomas, former Georgia Chief Justice Leah Ward Sears, Harvard Law School Dean Martha Minow, and a newly confirmed name, federal appeals court Judge Ann Williams of Chicago. The AP thinks that a woman is likely to be the nominee (is the First Lady whispering in Obama’s ear?)

    Ann Williams is “African American,” but at 61 seems too old to have the long-lasting influence some are hoping for. Sears is 55. Minnow has written extensively about human rights, with a focus on racial and religious minorities as well as in women, children, and persons with disabilities, and seems to be in her mid 50’s. Wood is 60. Granholm, at 51, is one of the younger possibilities, topped only(?) by Kagan, at 50.

    Does Granholm have sufficient gravitas? I like what I’ve heard of her.

    Bob in AZ

    • bmaz says:

      Berkeley, Harvard Law, Asst. US Atty, Michigan AG and governor. Yeah, she probably does. Not my favorite choice, but she is certainly qualified. Other than being younger, hard to see how you pick Graholm over someone like Diane Wood. We really ought, by all rights, to be talking about Erwin Chemerinsky or Pam Karlan; but that is just too much to ask for the bi-partisany centrist Obama. The only one I really care for in the least so far is Wood; although I am intrigued a whole lot by Leah Sears

    • emptywheel says:

      Last time around I heard a lot about her candidacy from people in the know. I’m not hearing it this time. Not that that’s evidence of anything, but…

  8. michtom says:

    There is nothing centrist about Obama.

    A real political spectrum, say fascist to communist, would place Kucinich at center left.

    Obama is well right of center.

  9. 1boringoldman says:

    The interviews on which the relevant FM40s are based occurred in Bagram, where torture of Hajj was ongoing and where Kazimi had arrived directly from the CIA prison, at which he was tortured, only about a month earlier… Accordingly, the Court will not treat Hajj and Kazimi’ s statements as true.

    1. Torture happened and 2. Torture induced evidence is inadmissible

    What a fine report to wake up to! We can’t make any of this right, but at least we can stop perpetuating the wrongs…

    • bmaz says:

      It IS pretty refreshing to see such conduct unequivocally called torture instead of “what some people might call torture” or “enhanced interrogation techniques” etc, and then to actually hit the government with the full penalty possible at hand isn’t it? The US tortured.

  10. tjbs says:

    This sure goes back to two guys who insisted they testify together and only for one hour before a commission that was investigating the day the rules and the laws of nature changed. That was quite a day and these two were able to explain everything in an hour. In the end which one will hang the other out to dry?

    Can you name any other investigation, comparable this earth shattering event, where the witnesses dictate the terms and refuse to testify separately? These were public servants, although I’m hard pressed to see where they served other then then richest 1% of this country,who refused to deliver an honest open government.

    Boy that day sure did change everything, even reality.

  11. Jim White says:

    The interviews on which the relevant FM40s are based occurred in Bagram, where torture of Hajj was ongoing and where Kazimi had arrived directly from the CIA prison, at which he was tortured, only about a month earlier.

    Uhm, here we have a court opinion stating as fact that torture occurred in a CIA prison. I could have sworn that we had laws on the books that require all allegations of torture to be thoroughly investigated and prosecuted…

  12. BoxTurtle says:

    I have this image of a man in judges robes peeing in Obama’s Cheerios this morning.

    Eat hearty, Mr. President. And get used to the taste.

    Boxturtle (Ready to call ’em POWs yet, Barak?)

  13. RAMA says:

    “The interviews on which the relevant FM40s are based occurred in Bagram, where torture of Hajj was ongoing and where Kazimi had arrived directly from the CIA prison, at which he was tortured, only about a month earlier.”

    Like Jim White, I find it satisfying the courts are no longer engaging in the fiction that what was done to people in U.S. custody was anything but torture. It was not “enhanced interrogation” or “harsh interrogation.” It was torture, which is against U.S. and international law. And so I’m still holding out some hope that the monsters who directed and conducted torture in the name of the U.S. Government will someday be held to account. Not much hope, but some.

  14. Mary says:

    I know nada about Sears, but we really should be looking at someone with the chops of a Chemerinsky. That Obama feels “liberated” by the fact that the Republicans will fight anyone to choose liberally, and this is his list, is pretty sad.

    Thanks for the write ups, bmaz and JW. This is the second case I’ve read (there are probably more) where the “clean team” approach has really come up and this one has shot it down with more force than the other case, imo.

    The whole “Clean Team” process has been really disturbing to watch and – @4 – Jeff, that’s why they didn’t ask about any prior treatment. They were specifically assigned, not to gather all relevant info (including criminal treatment of detainees) but rather had a pretty narrow job description. They were to go and interview torture victims to get them to re-say what they said under torture, but without torturing them. Just, you know, sitting in the same torture chambers.

    I thought it was interesting that Judge Kennedy made this very direct statement about what was going on with one of the detainees while CITC was trying to ‘clean team’ them. He says that CITC showed up to clean team Hagg at Bagram, “where torture of Hajj was ongoing.” IOW, he calls it torture, locates it at Bagram an lists it as going on concurrently with the clean teaming – with clean team interrogator careful not to ask about any of it, even though they know that the only reason they are there asking questions at all is bc the person they are interviewing has been tortured.

    The clean team concept was first being mentioned during the Bush adminstration, despite the fact that apparently Chertoff had given them caveats that he did not believe that they could clean the stain of the torture from the statements. The Bush Admin ended up dropping the effort “clean team” Obama resurrected it and has pushed it aggressively in these habeas proceedings. It’s a really disturbing thing to watch and you know that some judge is going to go along with it. Obama is dangling bait that made Chertoff flinch and does really care what he might reel in with it. *sigh*

      • Mary says:

        Wow – that is a thorough wiki. It also reads like she’s been thinking since 2009 that she might want to be relatively free in case she got the call.

    • ondelette says:

      Correct me if I’m wrong, but this is the first ruling by a federal court that asserts that torture occurred and that it happened under U.S. control, in this case both at Bagram and at a CIA secret prison in Kabul.

      The only other assertion that I can remember that actually explicitly deduces torture, and names it that, is Susan Crawford’s in dismissing charges at Guantánamo. But she was dismissing military commission charges as the Convening Authority. This one is the federal court.

      Progress. The average time to trial for higher-ups for war crimes and crimes of humanity worldwide is 22 years. Maybe we can do better than that.

      • bmaz says:

        Not sure if it is the first or not, but it is certainly the clearest and strongest I have seen. And while Kennedy is a Democratic appointee, he is certainly no flaming liberal.

        • ondelette says:

          It seems that “clearest and strongest” would fit the bill for a “credible allegation”, as per the Convention Against Torture and the Geneva Conventions? Or, to use U.S. versioning, the Torture Act and the War Crimes Act, respectively.

      • Mary says:

        I haven’t read them all, but I think that the Kollar-Kotelly al-Rabiah opinion might have the word in redactions (of which there are many) but I think abusive was the strongest non-redacted word. Also a few opinions have still not been declassified for release at all (e.g., Farheed Saeed bin Mohammed) and there have been reference to torture not in US hands (for example, one of the guys released was described as being held and tortured by the Taliban – somewhat indicating that he wasn’t providing the Taliban material support as they tortured him)

        But I think (not a definite though) the use of the “torture” in a declassified portion and describing US conduct is new and it stopped me when I read it. Also of note, to me, is that the Judge says that torture was ongoing with one of the detainees at the time of the attempted clean teaming. (see 26 above – he calls it torture, locates it at Bagram, and refers to it as going on concurrently with the clean teaming)

        You are right, though, that I stopped short. The Judge does also locate the torture independently for the other source at a black site (he also accepts that both torturees were al-Qaeda, which I wondered at a bit). Both are very important, but the Bagram especially gave me pause bc it is a US base (which might make some jurisdictional considerations easier) and also because he is saying that it was going on even while the clean teaming was being attempted. That just floored me.

        And he didn’t say that it was “more likely than not” that the sources were tortured – he said they were tortured.

      • Mary says:

        (psst – OT)

        You’ve probably already seen it, but there has been a petition filed in Pakistan, currently set for hearing on the 27th, petitioning the court to order that the Pakistani gov proffer new evidence in Siddiqui’s US case – the new evidence being evidence that, unlike the trial assertions of arrest in Ghazni, with Maryam’s release government has evidence tht Siddiqui was instead kidnapped from Karachi.
        fwiw

        • ondelette says:

          I’ve seen it, we’ll see what happens. The daughter’s inability to speak Urdu is certainly a big hole in the alternative theory. And the daughter’s cognitive problems and the daughter saying that she was kept in a cold dark place.

          Judge Kennedy’s verdict together with all that do provide her lawyers with a lot to work with. Besides giving the FBI a black eye. The FBI got a statement out of her that her kids were in Karachi. Obviously they weren’t. It was, how shall we say this, under duress? Maybe? Morphine plus no sleep plus four point restraints plus two gunshots plus they have your kids plus prior imprisonment and mistreatment plus 24/7 observation including in the toilet is just, what? A comfortable little discussion and a little rapport building?

          One kid speaks Urdu and Dari, the other English and Dari. In Karachi?

      • skdadl says:

        Progress. The average time to trial for higher-ups for war crimes and crimes of humanity worldwide is 22 years.

        I did not know that. I’m trying to think of a way to think positively about that. At least it happens? Eventually?

      • rmadelson says:

        ondelette wrote @61: “Progress. The average time to trial for higher-ups for war crimes and crimes of humanity worldwide is 22 years. Maybe we can do better than that.”

        I suppose that means I shouldn’t give up hope but my ground-in sense of American exceptionalism had me hoping we could beat the average. Thanks for the interesting statistic for some perspective.

  15. klynn says:

    bmaz,

    Would there be any way to use this ruling to argue for the change in classification for many held at Guantanamo Bay to POW status and the protections provided under the Geneva Conventions?

    This ruling just has me thinking about how Bush decided on January 18, 2002 that detainees “as terrorists” disqualified them from POW protection under the Geneva Conventions.

    As you wrote:

    As you do, keep in mind that the standard in evaluating the lawfulness of the detention of the individuals held at Guantanamo Bay is the government may detain only “those who are ‘part of’ the ‘Taliban or al Qaida forces,’” and the key question is whether an individual ‘receive[s] and execute[s] orders’ from the enemy force’s combat apparatus”. It is not a hard standard, but there does have to be some credible evidence.

    Also critical to keep in mind is the fact that the burden of proof in a Habeas proceeding is only a civil one of “preponderance of the evidence”; commonly accepted to mean anything at all more than 50%, i.e. anything that makes the asserted proposition more likely than not. It is the lowest possible burden of proof. Judge Kennedy couldn’t find the government was even close to the mark on the lowest possible scale in a civil case. Just think what this says about the ability of the government to meet any criminal burden of proof such as “beyond a reasonable doubt”.

    (snip)

    …Uthman has been being held by the US government in brutal captivity at Gitmo since January of 2002 – over eight years – based on evidence that would not be sufficient to convict him of a parking ticket. And then remember that, as one of the far less than 200 detainees remaining at Guantanamo, Uthman is supposed to be one of the worst of the worst and that the government has a solid case on.

    (my bold)

    Article 99 under Part III of the Geneva Coventions:

    No prisoner of war may be tried or sentenced for an act which is not forbidden by the law of the Detaining Power or by international law, in force at the time the said act was committed.

    No moral or physical coercion may be exerted on a prisoner of war in order to induce him to admit himself guilty of the act of which he is accused.

    No prisoner of war may be convicted without having had an opportunity to present his defense and the assistance of a qualified advocate or counsel.

    Guess Lindsay Graham would keel over due to my suggestion.

      • klynn says:

        Yeah,

        After all, Bush/Cheney worked to make sure it was called the War on Terror and the Iraq War. They continue to this day to use the politics of fear based on the word “war”.

        Funny how we have a war and no POW’s.

        And BTW, I ask myself constantly, what the —- was the “mission” in Mission Accomplished?

  16. orionATL says:

    bmaz-

    you’ve become a journalist as well as a lawyer and a journalist who, helpfully for your readers, writes very clearly.

    has it been common for a federal judge to refer to us govt activity as “torture” or “alleged torture” ?

    or is this a new development?

  17. Mary says:

    bmaz, I think in addition to how low the standard is, it’s worth noting that the whole concept (someone who follows orders within an organization that is not an army and has no state affilliation) could as easily be applied, for example, as a justification for indefinite detention of alleged gang members if a President decides that we are “at war” with them. Or alleged Mafia.

    Or short order cooks …

    Nah – I mean who would go to the trouble to detain and torture a cook and what court would buy into that?

  18. JThomason says:

    Thanks for this. I hope the judiciary eviscerates the government over this kind of lying if they don’t have the conscience to condemn the torture.

    One suggestion: Wouldn’t “has been being held” read easier and retain meaning as “has been held”? FWIW.

  19. harpie says:

    bmaz:

    In order to give you an idea of the soundness of Judge Kennedy’s ruling, I will leave the legal citations in the quote from his discussion of the applicable law and his conclusion thereon:

    Though I plan to read Kennedy’s opinion myself, I thank you for this. I’m sort of afraid to say it out loud, but seeing those citations there, all nice and neat and proper actually gave me a twinge of hope for the first time in a long time. For a moment, I didn’t even recognize it.

  20. orionATL says:

    stephen @18

    wise words and kindly from bob.

    think of it this way:

    all the passion of political discussions from say the 1930’s is now both unknown to us and irrelevant to “our” so serious politics of 2010.

  21. bgrothus says:

    Zell Miller appointed her and Clarence Thomas is her friend. Oughta be worth an R vote or two.

    Or Not.

  22. analyzetheanalysis says:

    I suppose that the most shocking thing to me is to read a formal legal opinion that talks calmly and dispassionately about a subject being tortured, and then to realize that it is my government that they are referring to.

  23. wirerat1 says:

    The US is past the tipping point. It is officially in decline and picking up an ever increasing momentum. When historians look back on us from 2000 to 2010, they will focus on our irrational response to terrorism, the destruction of our civil rights, the immense greed of Wall St coupled with the “Great Recession”.

    There is no going back to “the way it was”. Look at the sort of crap law that Congress is fashioning these days coupled with no one but the fringe ever talking about repealing any of the horrible laws and decisions made since 2001.

    It is suicide for a politician to even speak about this unless your name is Ron Paul. If it isn’t, you’re full of hot air and when push comes to shove, you’ll do what the WH tells you (Feingold or Kucinich).

    We are a doomed state. We’re just on the downward slope.

    I look at my teenage son and I wonder if his life will be filled with as much opportunity as my own. I can’t say with any certainty it will. It isn’t a statement about my means to provide (college is paid for, when he’s ready), but look at the economy. Look at our path as a nation.

    There is no going back.

  24. dpete says:

    The Cheney media defense seems to be absent of late. The time is coming when all the rats leave that ship and with the lawyers advising “no comment” as one more admission of guilt.

    It is also time for Cal Berkeley to step up and show some courage by separating itself from Yoo. How embarrassing to hear the fear in the school’s excuses to allow Yoo to teach. Eventually academia needs to learn that the main objective of torture is fear.

    • qweryous says:

      Cheney speaks:Dick Cheney endorses Rubio in Florida Senate race

      Reuters
      Thursday, April 22, 2010; 11:10 AM

      “Cheney, in a statement issued by the Rubio campaign, said Crist has shown “time and again that he cannot be trusted in Washington to take on the Obama agenda because on issue after issue he actually supports that agenda.”

      “Lately it seems Charlie Crist cannot be trusted even to remain a Republican. I strongly urge him to either stay in the Republican primary or drop out of the race. The only winners from an independent bid by Crist would be (President) Barack Obama and (Senate Majority Leader) Harry Reid,” Cheney said.”

    • Jeff Kaye says:

      UC gets a lot of money from the feds for research. Perhaps they fear losing that if they do the right thing and kick Yoo’s ass out. Of course, UC also has decades of complicity in research projects for the feds that we would consider ethically challenged, including some of the LSD experiments for MKULTRA. To be fair, they are not any different than many universties in this country in that way.

    • bobschacht says:

      The Cheney media defense seems to be absent of late.

      Doggone it, you had to speak up and scare the Jinx away, didn’t you? Didn’t take long for the next comment to spoil the blessed silence.

      Bob in AZ

  25. rmadelson says:

    Thanks for the great post. This one has triggered lots of thoughts. Before I even finished reading it I went over to Westlaw to find the opinion and sort of “make it real.” Oddly, I couldn’t find it — opinions are usually up very quickly. Anyway, I read the opinion from the link provided. I was very gratified to read a federal judge call this what it is — torture — and to see that there are some consequences, even if it took 8 years.

    And as Jim White pointed out at comment 22, we have a judicial finding that torture occurred and a legal responsibility to investigate and prosecute. Obviously, that would require that we look back and not forward and I don’t think that will change, but it’s a legal conclusion to point at and to conclude with certainty that our country has abdicated its responsibilities. Not that there was any uncertainty about it before now, but as a lawyer myself, it means something to me pyschologically. Law of the case, I guess.

    I was also very gratified to see this clean team crap analyzed and dispatched as a court would (or should) do in a typical criminal case.

    Lots of other thoughts on this but I also want to quickly comment on Leah Sears. She swore me into practice in Fulton County and the Supreme Court of Georgia in 1997. Bunch of other lawyers and judges present and she was the only person I remember thinking well of at the time. She was a good judge by then and I was pleased to be sworn in by somebody decent in a room full of weasels. By the time the Powell opinion came out the next year (overturning Georgia’s sodomy statute) I was downright proud to have been sworn in by her. She’s certainly made plenty of right but unpopular decisions and I’d like someone like that on the US Supreme Court. I’d also be very happy with Erwin Chemerinsky or Pam Karlan.

    • bmaz says:

      Agreed with everything you said; and thanks for the info on Sears, it is good to hear from someone a little closer to her record than just reading it cold.

  26. dpete says:

    To maintain influence solely based on fear (nameless) becomes increasing transparent relying on desperation as the only recourse such as supporting Rubio, who believes voters will forever vote against their best interests.

  27. rmadelson says:

    I also love the graphic on this post — “Tell us what we want to know . . . and America stays safe.” I’d love that poster in my office and I couldn’t find it on darkblack’s site. Any idea where I can buy one? If not, I’ll send an email to darkblack.

    Thanks,

    Rob

    • bmaz says:

      Yeah I have been using that for almost a couple of years now with Darkblack’s permission. Shoot him an email, he is a very nice guy.

  28. Jeff Kaye says:

    In Canada, a parliamentary committee is investigating allegations that Canadian Forces in Afghanistan were transferring prisoners to Afghan authorities, despite the fact reports were coming back that they were being tortured. Here’s the latest on that from the Toronto Sun:

    OTTAWA — Diplomats knew detainees could be tortured but the Afghan government assured Canada they would be treated humanely, a former Canadian ambassador to Afghanistan testified Wednesday.

    “Our reports for several years indicated that there was a high likelihood that torture was going on in Afghanistan detention facilities. However, we were confident that, based on information we had, that no Canadian transfer detainees had been abused or mistreated,” said David Sproule, Canada’s ambassador in Kabul from October, 2005, to April, 2007….

    Detainees who are tortured are probably reluctant to come forward because Afghanistan’s National Directorate of Security, where they are held, is also responsible for investigating their claims, [NDP foreign affairs critic Paul Dewar] said.

    • skdadl says:

      Jeff, the prisoner-transfer scandal is being investigated by both a military-oversight commission and a parliamentary committee, and it could be heading for a constitutional crisis, since Harper & co are currently in contempt of Parliament for not producing unredacted documents to the committee … but I won’t go too deep into those weeds.

      Anyway, there is more going on than that Sun report suggests. There is some evidence that we have handed on prisoners to the NDS (Afghan intel) for purposes of extraction of intel, which we’re not supposed to be doing, and then there have also been hints that we may have been handing on some people to (please forgive, but) you — ie, McChrystal’s irregulars.

      The Globe and Mail and the Toronto Star are better sources to watch than the Sun. The Speaker of the Commons is set to rule this week on the government’s defiance of Parliament — defiance meaning that they won’t release obviously damning documents unredacted.

      I think Harper is clearly in contempt, but whoever knows these days? Wish us luck.

      • Jeff Kaye says:

        Thanks, for updating on the Canadian situation. I don’t think much of the Sun, but that’s where I happened to see an update on this.

        Thanks, too, to Mary, for the reminder about use of “clean teams”.

        Re Ondelette @68, I think the clearest earlier statement re torture by the courts came last November from U.S. Federal District Judge Gladys Kessler, who issued approved the habeas corpus petition of Guantánamo detainee Farhi Saeed Bin Mohammed.

        If you remember, the evidence on Mohammed had been coerced out of Binyam Mohamed. From the narrative of this from the ACLU’s Torture Report (with a long quote from Kessler’s opinion at the start — it’s the concluding quote that is most important, and made a stir at the time, also affecting Binyam’s UK case):

        Petitioner contends that Binyam Mohamed’s statements—the only other evidence placing Petitioner in a training camp—cannot be relied upon, because he suffered intense and sustained physical and psychological abuse while in American custody from 2002 to 2004. Petitioner argues that while Binyam Mohamed was detained at locations in Pakistan, Morocco, and Afghanistan, he was tortured and forced to admit a host of allegations, most of which he has since denied. When he arrived at Guantanamo Bay, Binyam Mohamed implicated Petitioner in training activities. However, after being released from Guantanamo Bay, he signed a sworn declaration claiming that he never met Petitioner until they were both detained at Guantanamo Bay, thereby disavowing the statements he made at Guantanamo Bay about training with Petitioner. In that sworn declaration Binyam Mohamed stated that he was forced to make untrue statements about many detainees, including Petitioner. Binyam Mohamed stated he made these statements because of “torture or coercion,” that he was “fed a large amount of information” while in detention, and that he resorted to making up some stories.6

        “The Government does not challenge Petitioner’s evidence of Binyam Mohamed’s abuse,” Kessler noted.

        • ondelette says:

          That’s what I’m talking about. She called it “abuse” and said the Petitioner called it “torture”, and does not delineate between Morocco, Pakistan and Afghanistan, and Mohamed called it “torture or coercion”. Kennedy doesn’t use any alternative terms, just the word “torture”, and he applies it himself in the passage about what Mary calls the “clean teaming” going on simultaneously to “torture” in Bagram, and clearly states that it was at the hands of the U.S. (he separates it off from that which was done by Jordan).

          When the lawsuits were dismissed, e.g. Rasul v. Myers, the reason for dismissal was that the DC Circuit found cruel, inhuman and degrading treatment by U.S. personnel outside the U.S. sovereign soil to be okay. This word, “torture” is cannot be found okay, even in that court. There is no similar reservation to the CAT that they can hang their hat on.

          • harpie says:

            Kennedy doesn’t use any alternative terms, just the word “torture”, and he applies it himself in the passage

            Yes! Is it also important, perhaps, that he describes [at least twice] the “on the record” evidence as “unrebutted” by the respondents?:

            The Court will not rely on the statements of Hajj or Kazimi because there is unrebutted evidence in the record that, at the time of the interrogations at which they made the statements, both men had recently been tortured. [p.5]

            ###########

            Not really on topic, but…I got a little kick out of this paragraph about hearsay evidence:

            Respondents also ask the Court to disregard Wilhelm and Raynor’s declarations because they are not direct, sworn statements of the detainees themselves. [6] The Court shall not do so. As noted above, the nature of these proceedings is unique, and the Court is forced to rely on evidence that would normally not be accorded weight in the legal system. Respondents themselves ask the Court to detain Uthman on the basis of hearsay. Without a reason to doubt the veracity of the declarations, the Court cannot ignore them. [p.8]

            https://ecf.dcd.uscourts.gov/cgi-bin/show_public_doc?2004cv1254-815

            • bmaz says:

              That is really pretty important. Habeas proceedings, and especially these Gitmo ones, by nature are amenable to and often rely on different levels of hearsay. But here the court here found that the government’s hearsay sucked – was of such little credibility and reliability – that it was effectively completely discounted. That is a pretty stinging rebuke.

              • harpie says:

                That is a pretty stinging rebuke.

                Yeah. Thanks. That’s what I thought, and I admit that reading it gave me a little guilty pleasure. Am I correct in thinking that this:

                Respondents themselves ask the Court to detain Uthman on the basis of hearsay.

                is a dig at the respondent’s hypocricy in asking favor for themselves which they have denied to the detainee? [IA obviously NAL]

      • Mary says:

        So has Obama sent you guys a copy of the Obama Doctrine? The one that goes – if you reveal any info about US Executive branch crimes or war crimes, then we help the terrorists bomb you?

        Forgot – /s

        Oh, wait, really forgot – apparently he does make those kinds of threats.

        • skdadl says:

          If your prezzie hadn’t sent such a message, our PM Steve would have begged for it anyway.

          Our political elites hardly need threats. The PM is a neocon wannabe, and the leader of the opposition (Ignatieff) is bff with Cass Sunstein. We are teh sunk.

    • ondelette says:

      Yes, the two children are Ahmed and Maryam. Suleman is believed dead, and a person who said (s)he witnessed the abduction said he died then, that the picture supposedly shown to Aafia Siddiqui in detention as a form of psychological torture was a picture taken that day, showing Suleman lying in a pool of blood. No secondary confirmation of that, there were also reports he died of disease.

    • orionATL says:

      you are certainly not a fool.

      you might be wondering how it was you decided to join.

      take comfort, you’re not the first to make what might seem,
      looking back, a bad choice.

      ten yrs from now, or tommorrow, you may appreciate what you learned that
      you could never have learned in other jobs.

      ten years ftom

      i for one made lots of bad moves while young (and continue to do so in my dottage).

  29. orionATL says:

    ondelette @80

    god, what cruelty!

    but if the little boy died as photographed, then there must have been some violence involved.

    does anyone know that story yet?

    or is it to be revealed in time, now that there is the possibility/likehood the mother was abducted near her home area?

  30. DWBartoo says:

    bmaz, you do my old heart good.

    Fantastically welcome post.

    Exceptionally fine thread. A significant part of the conversation this nation MUST have.

    The truth, however despicable, will out, inevitably, however much “prayer” certain “leaders” may engage in; despite the Pinochet Principle, and the Divine Right of Money.

    In the meantime, skdadl @ 82, you’ve my deepest smypathy.

    DW

  31. mattcarmody says:

    Thanks for this bmaz. I read it yesterday and then read Jeff Kaye’s piece.

    Inasmuch as the judge’s opinion definitively states that torture was used and therefore evidence against Uthamn would not be admitted, does this statement in any way make the judge liable for not initiating some sort of investigation into the use of torture in violation of the Convention against Torture and the USC provisions of our own law?

    Can we actually go forward with jurists acknowledging that there is torture being used against prisoners we hold without some sort of decision to have it stopped or is this just another brick being removed from the foundation of the rule of law in this country?

    To paraphrase Robert O. Paxton, when parliamentary democracy is seen as deadlocked and when respect for the the rule of law is tarnished because it is seen as applying to classes of people unequally, the door is open for fascism.

    Where does the ABA stand on this? I know they came out with a report re: Bush’s use of signing statements a few years ago; have they made a definitive statement on how judges can acknowledge torture while not demanding something be done to stop it?

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