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