Friday, April 17, 2009


By William Fisher

Lawyers for a Guantanamo detainee who claims he was held and tortured in one of the “black site” secret prisons run by the U.S. Central Intelligence Agency is demanding that the CIA preserve cells and interrogation paraphernalia there as evidence of mistreatment.

In a letter to CIA Director Leon Panetta, military and civilian counsel to Abd Al-Rahim Hussain Mohammed al-Nashiri sent a letter to CIA Director Leon Panetta requesting that the CIA “black site” buildings, interrogation cells, prisoner cells, shackles, waterboards and other equipment be preserved for inspection and documentation.

Disclosure of the letter came on the heels of yesterday’s release of four more top-secret “legal memoranda” prepared by the Justice Department’s Office of Legal Counsel during the administration of former President George W. Bush. The memos approved “enhanced” interrogation techniques they claimed were not torture – a claim rejected by both the Obama Administration officials and human rights advocates. Nine other OLC memos were previously released by the Obama Administration.

OLC is the DOJ office that provides authoritative legal advice to the President and all Executive Branch agencies. It drafts legal opinions of the Attorney General and also provides its own written opinions and oral advice in response to requests from the Executive Branch.

Al-Nashiri, who is now detained at Guantánamo, was held in the secret CIA prison facilities from 2002 to 2006. While President Barack Obama has ordered the closure of CIA black sites, al-Nashiri’s attorneys are concerned that the CIA intends to destroy the sites, including the buildings and the equipment used to interrogate and torture al-Nashiri and other detainees. They say that would amount to destroying evidence of his mistreatment.

Panetta told CIA personnel on April 9, 2009, that the CIA would be “decommissioning” the CIA secret facilities. The letter asks Panetta to “preserve all the secret sites.”

The CIA has admitted that al-Nashiri was subjected to waterboarding while in CIA custody. Videotapes depicting his abusive interrogations have already been destroyed by the agency and are the subject of ongoing litigation by the American Civil Liberties Union (ACLU).

Through its John Adams Project with the National Association of Criminal Defense Lawyers, the ACLU worked with under-resourced military lawyers to provide legal counsel for several of the Guantánamo detainees including al-Nashiri during the military commissions process.

The lawyers’ letter put Panetta “on notice that we will be seeking discovery and inspection of this highly relevant evidence in whatever court Mr. Al-Nashiri finds himself.”

The lawyers added, “We have already lost the video tapes which would have allowed a jury to see what happened to Mr. Al-Nashiri in those secret prisons. We cannot lose the remaining tangible evidence of the actual prisons themselves and the instruments of torture within them.”

They note that Panetta’s predecessor, General Michael V. Hayden, has admitted that Mr. Al-Nashiri was subjected to waterboarding, “which is a form of torture, while in the custody of the CIA.”

According to the recently released report from the International Committee of the Red Cross (ICRC), ‘waterboarding was only one of the many forms of torture inflicted on Mr. Al-Nashiri while in the custody of the CIA,” the lawyers’ letter said.

They claim that, according to the ICRC report, “While in CIA custody, Mr. Al-Nashiri was also forced to stand with his wrists shackled to a bar in the ceiling for prolonged periods of time -- extending to several days— and was threatened with sodomy and with the rape and arrest of his family members.”

Throughout that time, the letter says, Al-Nashiri “was not able to communicate with his family, a lawyer or anyone. Effectively the CIA “disappeared” him for four years while it tortured him at will and beyond the eyes of the world.”

The CIA and other government agencies also admitted to the purposeful destruction of at least ninety-two video tapes of interrogations and observations of prisoners in its black sites, specifically including the destruction of video tapes of water boarding and other observations of Mr. Al-Nashiri, the letter says.

It concludes, “Had Mr. Al-Nashiri known that the CIA possessed these video tapes and intended to destroy them, he would have demanded their preservation. However, neither he, his lawyers nor the courts learned of the CIA’s plan until after the tapes had been destroyed and now they are forever gone.”

“Although we welcome your decision to cease the secret detention and mistreatment of prisoners of the United States Government, we are concerned that the CIA intends to actually destroy the sites -- including the buildings and the equipment used to interrogate and torture Mr. Al-Nashiri—before Mr. Al-Nashiri has had the opportunity to fully investigate his conditions of confinement. We write to avoid the destruction of more evidence—namely the actual secret facilities themselves.” The lawyers wrote.

Al-Nashiri was charged in the Military Commission with offenses that carried the death penalty. His lawyers note that, “Although those charges have now been dismissed, we fully expect the government to prosecute Mr. Al-Nashiri and again charge him with offenses that could carry the death penalty. In fact the government is now actively working to determine in what forum he will be prosecuted.”

Evidence held by the CIA “is exculpatory evidence” and Al-Nashiri “will be entitled to it.”

The letter concludes: “The CIA’s secret prison facilities and the inquisition-like treatment meted out to its prisoners were a tragic, immoral and illegal period in our history that we all hope has come to an end. But its effects are enduring, especially on someone like Mr. Al-Nashiri who, according to the ICRC report, lived through the horror chambers of at least three different secret prisons.”

Following yesterday’s release of the four OLC memos, it is likely that the government’s treatment of detainees will attract increased public scrutiny – despite President Obama’s pledge to close Guantanamo Bay and CIA black site prisons.

Continuing concern about U.S. credibility in war-on-terror detentions and prosecutions has been voiced by many American legal scholars. As David Cole, one of America’s preeminent constitutional authorities, told us, “For better or worse, the U.S. is a world leader on matters of human rights. When the U.S. violates human rights in the fight against terrorism, it sends a message to autocrats and dictators worldwide that they, too, can deny human rights in the name of counterterrorism.”


By William Fisher

Human rights advocates were quick to praise President Barack Obama for yesterday’s release of the infamous “torture memos” used by the Bush-era Justice Department to justify cruel, inhuman and degrading treatment of war-on-terror prisoners – but widely split on the president’s decision not to prosecute the Central Intelligence Agency operatives who used these techniques.

Amnesty International’s Tim Hancock said, 'With this statement, the U.S. Department of Justice appears to have offered a 'get-out-of-jail-free card' to people involved in torture. Torture is never acceptable and those who conduct it should not escape justice.”

He added, “Torture is banned under international and U.S. domestic laws, but those laws are only meaningful if they are enforced. 'It's welcome that the remaining memos have been published. There will only be accountability where there is transparency, and President Obama rightly wants to draw a line under the human rights abuses of the 'War on Terror'. 'But this is the wrong way to go about it. Brushing torture and rendition under the carpet will not provide closure -- the facts should be brought out into the open through an independent commission of inquiry. Those who have broken the law -- no matter what rank they hold -- should be prosecuted under the law.'

The American Civil Liberties Union (ACLU) – which brought the Freedom of Information Act lawsuit that triggered release of the memoranda – was more hopeful.

The ACLU’s Alex Abdo, an attorney in the group’s National Security Program, told us, "We're nowhere near the end of this road. President Obama has said he will not prosecute CIA operatives who administered torture because they acted in good faith based on what they were told were legal opinions from the Office of Legal Counsel, approved by President Bush.”

But, he noted, “Obama has left the door open to prosecuting those who crafted and approved these memos. And he has said no one is above the law. We remain hopeful that he will appoint a special prosecutor."

"There is still a lot of work to do,” he added. “For example, the CIA must release the report of its Inspector General into interrogation and detention."

Physicians for Human Rights said, “The tactics used by psychologists and supervised by medical personnel, including physicians, clearly constituted torture and a grave breach of medical ethics. The health professionals involved in the CIA program broke the law and shame the bedrock ethical traditions of medicine and psychology. All psychologists and physicians found to be involved in the torture of detainees must lose their license and never be allowed to practice again.”

The group said, “Strained legal rationalizations for torture techniques should provide no cover for health professionals who helped design and implement them. The White House and Congress must work together to ensure public accountability for these crimes and violations of medical ethics.”

A similar sentiment was voiced by Michael Ratner, president of the Center on Constitutional Rights, which has mobilized a small army of volunteer lawyers to provide defense counsel for Guantanamo Bay detainees. While acknowledging that “It is good that President Obama ordered the release of four more of the torture memos,” Ratner was unrelenting in his condemnation of Obama’s decision not to prosecute those responsible.

He said, “President Obama goes out of his way to praise those who engaged in these unlawful practices and assures them they will not be prosecuted. In making this decision he is acting as jury, judge and prosecutor. It is not his decision to make. Whether or not to prosecute lawbreakers is not a political decision. Laws were broken and crimes were committed. If we are truly a nation of laws as he is fond of saying, a prosecutor needs to be appointed and the decisions regarding the guilt of those involved in the torture program should be decided in a court of law.”

Many constitutional law scholars were also critical of President Obama’s decision not to prosecute CIA operatives. David Cole, a professor at Georgetown University Law Center, said, “The four legal memos released by the Obama administration on Thursday confirm in excruciating detail that the Bush administration employed twisted and macabre legal reasoning to authorize the unspeakable – the torture and cruel, inhuman and degrading treatment of human beings. The memos’ matter-of-fact clinical descriptions belie the harsh tactics to which they gave a green light. They set the C.I.A. loose to slam suspects’ heads into walls up to 30 times in a row, to deprive suspects of sleep for more than a week straight, to confine them to small dark boxes for hours at a time, to slap them repeatedly in the face and abdomen, and to suffocate them with water to induce the perception that they are drowning.”

But, he added, “Mr. Obama’s refusal to hold accountable those responsible for the wrongs so evident from the memos is unacceptable. A child would recognize these tactics as cruel and inhumane.”

High-ranking former members of the U.S. military also weighed in. Speaking on behalf of the legal advocacy organization Human Rights First, three retired admirals and generals said, “We believe the Obama Administration made the right decision in releasing the Office of Legal Counsel memos on interrogation. Airing the facts about past mistakes is essential to ensuring that the right policies are in place to prevent future abuses while making our country stronger.”

The memos, written in flat, emotionless legal language, were produced by the Justice Department's Office of Legal Counsel (OLC). They provided the legal framework for the CIA's use of waterboarding and other “enhanced interrogation” techniques used during the administration of former President George W. Bush.

The four memos were turned over to a federal judge yesterday, according to a deadline set by the court. Three of the memos were written by Steven Bradbury, then a lawyer in the Justice Department’s Office of Legal Counsel (OLC), in 2005. The fourth memo was written by then-OLC head Jay S. Bybee in August 2002. He is now a federal judge, appointed by former President George W. Bush.

OLC is the DOJ office that provides authoritative legal advice to the President and all Executive Branch agencies. It drafts legal opinions of the Attorney General and also provides its own written opinions and oral advice in response to requests from the Executive Branch.

In addition to waterboarding, the 2002 Bybee memo authorized slapping, pushing, confinement in a small, dark space, painful stress positions, and sleep deprivation for up to 11 days. It also approved a request to lock one of the ‘high-value’ prisoners, Abu Zubaydah, in a confinement box with an insect.

The memo says: "You have informed us that he appears to have a fear of insects. In particular, you would like to tell Abu Zubaydah that you intend to place a stinging insect into the box with him."

The Bybee memo authorized 10 special interrogation techniques for use against Zubaydah, including waterboarding. Under this interrogation technique, the suspect is placed on a board or table with his feet above his head, a cloth is draped over the nose and mouth, and water is poured over his face. The technique, widely considered a form of torture by human-rights experts, triggers an intense, uncontrollable sensation of drowning.

In the memo, Bybee acknowledged that waterboarding came close to violating the U.S. torture statute because it constitutes "a threat of imminent death." But he added that it would not amount to torture unless the experience resulted in "prolonged mental harm" lasting months or years.

Informed observers say the controversy over interrogations is far from over -- there are a number of additional shoes left to drop. For example, the Obama Administration must decide whether to release the tightly held reports by the CIA inspector general on torture and rendition. Disclosure of the reports will add fuel to the debate over whether Bush administration officials should be investigated for their role in the implementing the torture regime.

And, later today, the DOJ will turn over to a federal judge a number of never-before-seen images of prisoner mistreatment at Iraq’s notorious Abu Ghraib prison – or tell the judge why it refuses to do so. Release of the images – sought in another Freedom of Information Act lawsuit brought by the ACLU -- is likely to add considerable fuel to the interrogation controversy.