Dents in the “Golden Shield”: the CIA’s Conflict of Interest in Classifying Evidence of Torture

Last week, military commission attorneys for the defendants in the September 11 trial asked President Obama to declassify evidence of their clients’ torture in CIA custody.  The attorneys argued that the government’s censorship of the defendants’ descriptions of their own treatment violates the Convention Against Torture, and makes it impossible to prepare a constitutionally adequate defense against a death sentence.

Similarly, last April, the Constitution Project’s Task Force on Detainee Treatment (for which I was staff investigator) unanimously concluded that:

acts of torture, war crimes, and crimes against humanity are not legitimate “intelligence sources and methods” under the National Security Act, and evidence of these acts cannot be properly classified, unless their disclosure would endanger specific individuals or violate specific, valid, agreements with foreign countries.

The Task Force found that ongoing secrecy about torture prevented the United States from complying with its obligations under the Convention Against Torture. It called on the Executive Branch to declassify several key documents, including a 6000 page report on the CIA program by the Senate Select Committee on Intelligence (SSCI), and stop censoring former CIA detainees’ descriptions of their own treatment.

The White House has not followed any of these recommendations. Instead, it has remained publicly neutral–which in practice means deferring entirely to the CIA. The CIA opposes the release of the SSCI report, and takes the position that the details of individual detainee’s treatment in its custody are classified.

 A few pieces of evidence about the medical condition of former CIA detainees recently emerged from the military commissions despite these restrictions. At a hearing last week, a lawyer for September 11 accused Ammar al-Baluchi said Baluchi’s medical records showed he suffered a head injury in CIA custody that caused hallucinations, headaches, and memory loss. Khalid Sheikh Mohammed’s attorney petitioned the court for permission to photograph scars on Mohammed’s wrists and ankles that he allegedly sustained in CIA custody, and to call medical witnesses to testify about his condition.

Ramzi Binalshibh has made repeated allegations of guards disrupting his sleep with noise and “vibrations,” which military prosecutors suggested might be delusions. In response, Binalshibh’s counsel offered evidence from a military psychiatrist who found that Binalshibh was not delusional, but “may be overreacting to sound stimulus due to past experiences.” Binalshibh’s actual diagnosis is redacted.

Months before, a military mental health board found that Abd al Rahim al-Nashiri, the accused mastermind of the U.S.S. Cole bombing, is competent to stand trial but suffers from posttraumatic stress disorder and depression. But the experiences that led to these symptoms are classified.

Even more secrecy surrounds the past treatment and current condition of former CIA detainees who are not facing military commissions charges. According Abu Zubaydah’s counsel, for example, Zubaydah’s torture exacerbated a prior head injury and caused “permanent brain damage and physical impairment,” including hundreds of seizures, headaches, hypersensitivity to sound, and memory loss. But they cannot reveal the details of his medical condition.

When the CIA was seeking legal authorization for the black site program from the Office of Legal Counsel (OLC), the Agency assured OLC that:

The limited public information about former high value CIA detainees’ medical conditions contradict these claims, as do high value detainees’ accounts of abuse to the Red Cross. The reliance on health professionals’ monitoring of interrogations to ensure detainees’ “safety” also conflicts with the most fundamental principles of medical ethics. The World Medical Association, American Medical Association, and United Nations prohibit clinicians from monitoring interrogation sessions where torturous or cruel methods are used, which they regard as a form of complicity in torture. As the Constitution Project Task Force found, “[h]ealth professionals cannot ethically condone any deliberate infliction of pain and suffering on detainees, even if it falls short of torture or cruel treatment.” (Chapter 6 of the Constitution Project Task Force Report includes much more information on the ethical problems with health professionals’ involvement in interrogation–including allegations on psychologists’ role in designing the CIA interrogation program and personally waterboarding detainees.)

Detainees’ medical records and accounts of their own treatment would provide much more definitive proof that the CIA misstated the facts to the OLC, and that medical monitoring provided no real safeguard against torture. So would the release of the Senate Intelligence Committee’s report on the CIA program. According to a document recently released by Senator Mark Udall of Colorado, the SSCI report contains a 128-page section on “discrepancies between the factual record” and information that the CIA provided to OLC.  

The CIA has responded that there was no evidence “that any information was known to be false when it was provided,” and no evidence that accurate information “would have altered OLC’s key judgments” about the legality of its interrogation methods.  But OLC documents, particularly from 2004 onwards, repeatedly say that their legal advice about interrogation is “based on, and limited by” the CIA’s factual assertions. Acting OLC head Steven Bradbury wrote in 2005 that the CIA’s representations about medical monitoring were “essential” to his conclusion that the CIA techniques did not rise to the level of torture even when used in combination. Bradbury’s opinions also gave great weight to the CIA’s claims that “this program is largely responsible for preventing a subsequent attack on the United States,” and quoted at length from CIA documents touting the program’s successes. We now know that many of those claims were false, and many others are unsupported by the public record. According to Senators, the SSCI report proves far more conclusively that the CIA misrepresented the efficacy of “enhanced interrogation” to both Congress and the Department of Justice. 

Former OLC head Jack Goldsmith has written that the CIA regarded the OLC memos as a “golden shield” against liability for brutal treatment of detainees. If the Senate report proves that the CIA’s legal shield rested on a foundation of false factual claims by the same agency, it will weaken the CIA’s legal defense of its treatment of prisoners. At this point, criminal investigations and prosecutions are a very remote risk–but disclosure would also greatly embarrass the individuals responsible and the CIA as a whole.

These are not valid justifications for secrecy, however. The Executive Order that governs classified information forbids agencies from keeping information classified in order to “conceal violations of law” or “prevent embarrassment to a person, organization, or agency.” The White House needs to enforce this prohibition, enforce the Convention Against Torture, and finally let the truth come out.

“You can’t gag somebody and then want to kill them”

On Tuesday, October 22, the lawyers for the September 11 accused argued that the Guantanamo military commissions’ protective order violates the United Nations Convention Against Torture. The protective order states that the defendant’s “observations and experiences” of torture at CIA black sites are classified. Defense counsel say that this violates the Convention Against Torture’s requirement that victims of torture have “a right to complain” to authorities in the countries where they are tortured, and makes the commission into “a co-conspirator in hiding evidence of war crimes.”

It is not only the defendants’ lawyers who object to the protective order. The ACLU has called the restrictions on detainees’ testimony “chillingly Orwellian.” Earlier this year, the Constitution Project’s bipartisan, independent Task Force on Detainee Treatment (for which I served as staff investigator) found that the military commissions’ censorship of detainees’ descriptions of their own torture could not be justified on grounds of national security, and violated “the public’s First Amendment right of access to those proceedings, the detainees’ right to counsel, and counsel’s First Amendment rights.” This month, the European Parliament passed a resolution that called on the United States “to stop using draconian protective orders which prevent lawyers acting for Guantánamo Bay detainees from disclosing information regarding any detail of their secret detention in Europe.”

All of this must be somewhat embarrassing to military prosecutors, who adopted the motto, “Fairness, Transparency, Justice” for the reformed commissions in 2011. But they argue that the judge has no choice but to defer to the CIA on matters of classification.

President Obama has increasingly done the same. Early in his presidency, he was sometimes willing to override the intelligence community on secrecy matters. In April 2009, over the CIA’s objections, Obama declassified four Office of Legal Counsel (OLC) opinions that described in graphic detail the brutal techniques that the CIA used against captives after September 11, because in his judgment their release was “required by the rule of law.”

But today, the administration takes the position that the release of the OLC memos only declassified the CIA’s use of torturous interrogation techniques “in the abstract.” The details of any individual detainee’s treatment in CIA custody are still top secret. The CIA claims this is necessary because disclosures about individual interrogations would “provide future terrorists with a guidebook on how to evade such questioning,” and “provide ready-made ammunition for al-Qa’ida propaganda.”

Based on these arguments, in case after case, courts have denied Freedom of Information Act requests for CIA documents about the torture program, and denied torture victims’ ability to sue for damages. To give only a few examples: the CIA Office of the Inspector General (OIG) wrote a 98-page report on the homicide of Manadel al-Jamadi, the CIA “ghost detainee” detainee whose corpse is shown in several of the Abu Ghraib photographs. The CIA successfully argued that every single sentence of that report, and eleven other OIG reports on abuses in its detention and interrogation program, is classified. Every lawsuit filed in U.S. court by victims of CIA “rendition” to torture has been dismissed on national security grounds–including suits brought by detainees now widely acknowledged to have been completely innocent.

Most of the civil suits challenging official secrecy about CIA torture have ended. But the issue will not go away so easily in the Guantanamo military commissions, because the U.S. government has two conflicting objectives. The prosecution is trying to execute six former high value CIA detainees for their role in September 11 and the bombing of the U.S.S. Cole. It is also trying to conceal the details of defendants’ torture in CIA custody, and its lasting medical and psychological effects.

This is a problem, because the defendants’ torture is the most crucial factor weighing against a death sentence. Cheryl Bormann, the lawyer for defendant Walid bin Attash, argued in court Wednesday that “[y]ou can’t gag somebody and then want to kill them….As a death-penalty lawyer, and under the Eighth Amendment, I’m required to investigate every aspect of mitigation.” But “[e]verywhere I turn in investigating this issue, we hit a brick wall. And we hit a brick wall in large part because of the classification regime that we operate under.” Borman said, “[i]f you really want to have a fair trial and execute them, then you have to ungag them.”

Prosecutor Clay Trivett argued that the defendants’ attempt to disclose the details of their torture was a form of “graymail,” and that the military commission lacked jurisdiction to enforce the Convention Against Torture or override executive classification decisions. Trivett said that the defense would have an opportunity to present relevant evidence of their clients’ treatment during the mitigation phase of the case (in secret, presumably).

The defense argued that the CIA had a clear conflict of interest: “the same government agency that tortured Mr. Mohammad is seeking to silence Mr. Mohammad,” said Major Jason Wright, Khalid Sheikh Mohammed’s military defense lawyer. Bormann noted that the CIA had allowed former employee Jose Rodriguez to publish detailed factual claims about individual detainees’ interrogations, even as it censored defendants’ statements about their own treatment.

The only point that the prosecution, defense, and Judge James Pohl agreed on was that President Obama had the authority to resolve these issues. “If the President of the United States wants to declassify this information, he certainly can and we would not be having this discussion,” Pohl said.

But the Obama White House is unwilling to even acknowledge that authority, let alone exercise it. Asked what the White House role was in resolving classification disputes in military commissions, and whether anyone in the administration could override the CIA’s classification decisions, National Security Council spokeswoman Caitlin Hayden replied:

the White House does not play a role in determining the classification of filings at the military commissions, or the classification of information presented orally at commission hearings. I’d refer you to DOD, who is responsible for the military commissions process.

Hayden was equally noncommittal in response to questions on the White House’s position on the Senate Intelligence committee’s report on the CIA program.

Email Exchange Re: White House Position on SSCI Report & Torture Secrecy

Below are the relevant excerpts from a recent email exchange I had with White House national security spokesperson Caitlin Hayden. I’m posting it for reference, so that I can link to it when a longer, related post I’m writing about these issues goes commissions live. 

My email, from Monday October 21:

Dear Ms. Hayden:

I was the investigator for the Constitution Project’s Task Force on Detainee Treatment (http://www.detaineetaskforce.org). I am writing a weblog piece for the Huffington Post on the Obama administration’s position regarding ongoing classification of: 1. the Senate Select Committee on Intelligence Report on the CIA’s Detention and Interrogation program 2. current Guantanamo detainees’ medical diagnoses, medical records, and memories of their treatment at CIA black sites (particularly in the context of the GTMO military commissions). 

With regard to the SSCI report, the most recent statement I have from the White House is from Scott Shane’s piece in July:

“In a statement on Friday, Caitlin Hayden, a White House spokeswoman, urged the committee and the C.I.A. “to continue working together to address issues associated with the report — including factual questions.”She said that at some point, “some version of the findings of the report should be made public.”

 In the same piece, Senator Feinstein said that she would seek a committee vote on declassification of the report’s executive summary, which as I understand it is over 300 pages long and rather detailed. The CIA reportedly opposes this–and your statement appears to support only the release of “some versions of the findings” of the report, which would seem to be well short of the executive summary. Questions:

1. Does the White House support or oppose the declassification of the executive summary? Or does it intend to defer to the CIA on the issue? 

2. Does the CIA’s response to the report represent the White House’s position (as some have suggested based on the fact that it is an executive agency, and the photograph of the President, his Chief of Staff, and Director Brennan with the report)? If not, and if the Senate committee and CIA do not reach consensus on the report, does the White House intend to take any position?  

3. According to documents obtained by The New Yorker, the CIA and/or the White House withheld several thousand pages of documents from the Senate on grounds that they were subject to a claim of executive privilege. There appears to be some confusion about whether the President did, in fact, officially invoke executive privilege, or the decision to withhold the documents rested with the CIA. Did the White House invoke Executive privilege with regard to those documents?

http://s3.documentcloud.org/documents/799469/qfr-udall-preston-8-09-13-responses.pdf

4. Does the White House play any role in determining the level of classification that applies to the Guantanamo military commissions? If not, is there an interagency process that addresses issues with regard to classification, or does the Original Classification Authority’s position (i.e. the CIA’s) control? Military prosecutors appear to take the position that neither they nor the judge have the authority to override the CIA on classification issues–does anyone?

Ms. Hayden sent me the following response on Wed., October 23:

On Questions #1 and 2, I would say this, on the record:

The Committee is currently discussing its classified 6,000-page report with the CIA. We supported the CIA’s cooperation with this review over the last several years, which included unprecedented support and access for the Committee. We believe that it is important for the Committee and the CIA to continue working together to address issues associated with the report – including factual questions. When that process between the Committee and the CIA is complete, we understand that the Committee will vote on its updated document and then pursue declassification of the document, in whole or in part.  The President has made clear that the program that is the subject of the Committee’s work is inconsistent with our values as a Nation. One of the President’s first acts in office was to sign an Executive Order which brought an end to the program, and prohibited so-called Enhanced Interrogation Techniques. 

On #3, I’d refer you back to the QFRs you sent me. We have nothing to add. 

On #4, the White House does not play a role in determining the classification of filings at the military commissions, or the classification of information presented orally at commission hearings.  I’d refer you to DOD, who is responsible for the military commissions process.

Although I appreciated getting a response, I do not see in these answers any acknowledgment of Presidential authority over classification and declassification decisions, or indication that the administration intends to do anything other than continue to defer to the CIA on all secrecy matters. And I remain confused about the executive privilege issue. But I wanted to provide the full text, not just my own interpretation. 

From the Archives: Al Janko v. Gates

The D.C. Circuit heard oral arguments in a case brought by an exceptionally unlucky detainee named Abd al Rahim Al Janko. Lawfare has a useful recap of the legal issues here. But the facts of this case are so sad and bizarre that to focus only on the law seems inadequate.

Janko is one of six detainees who came to Guantanamo from a Taliban jail in Kandahar. I found out about the case reviewing CSRT transcripts in 2006, and tried to write an article about it but ultimately got scooped by the dailies. I then tried to shorten it & recast it as an op-ed, without success. An excerpt is below.

From Prison to Prison (excerpt)

In one particularly absurd case, a CSRT seems to have found a detainee to be an enemy combatant partly on the strength of a false confession he made after weeks of torture by the Taliban and al Qaeda.  The prisoner, Abdul Rahim Ginco, is one of six men who came to Guantánamo by way of a notorious Taliban jail in Kandahar called Sar-e-Poza.  Three of them have been released, but Ginco and two others remain imprisoned in Cuba five years after their “liberation” by Northern Alliance troops in December 2001.

 

Ginco, a Syrian citizen studying in the United Arab Emirates, ran away to Afghanistan in early 2000 as a result of a dispute with his father.  A few weeks later, the Taliban arrested him, and accused him of spying for the United States and Israel.  According to court papers filed by his attorneys last September, Ginco’s captors, supervised by two high-level Al Qaeda members named Sayf al-Adel and Mohammed Atef, subjected him to “beatings, electric shock, near drowning, hanging from the ceiling, all the while under immediate threat of death.  His hand is still not recovered four years after it was smashed with a gun butt, and his ankles show the scars of cigarette burns….Under torture and duress, Abdul Rahim made statements videotaped by his captors.”

 

After three months of this treatment, Ginco was transferred to Sar-e-poza.  The Northern Alliance freed most of prisoners there when the Taliban fled Kandahar in December 2001, but Ginco and several other foreigners remained in the prison as “guests” until U.S. forces took them to Kandahar Air Base on January 24, 2002. 

 

The same day, U.S. Attorney General John Ashcroft held a press conference in Washington , in which he aired videotapes of Ginco and four other men.  The videos had no sound, but Ashcroft described them as “martyrdom messages from suicide terrorists,” recovered from the rubble of Mohammed Atef’s home after its destruction by a U.S. airstrike. 

 

Ginco’s interrogators at Kandahar eventually recognized him as one of the men in Ashcroft’s video, and his treatment became much worse.   “They kept pushing me, they beat and tortured me,” he testified at his CSRT.  “Military intelligence, they told me to say I’m al Qaida, so I told them ok, I’m al Qaida.  How I told the Taliban I’m a spy, now I tell you guys I’m al Qaida.” 

 

A few months later, he was sent to Guantánamo.  He has spent much of his imprisonment in the camp’s psychiatric ward, where he receives treatment for posttraumatic stress disorder and protection from other detainees who still believe he is an American spy. 

 

Ginco’s attorneys have not located the audio of the tape from Ashcroft’s press conference, but they have found a DVD of their client’s “confession” that aired on Abu Dhabi TV in 2000, and a transcript of it that the Taliban published that July.  In the transcript, Ginco does indeed “swear by Allah that nothing could be more important to me than jihad,” and he asks to be spared execution so that he can become a martyr.  But he also describes being recruited to spy for America and Israel by an Israeli agent named “Shamoyel” and two henchmen—a process that apparently began with playing video games, escalated into watching homosexual pornography, and culminated in blackmail, bribery, and unspecified “acts of impiety and debauchery.”   After this outlandish confession, Ginco’s assurances that “no one has beaten or tortured me” and that his Taliban captors remind him of the “righteous Caliphs of Islam” ring completely hollow.    

 

Ginco’s story has been corroborated by news reports from the time of his initial capture by the Taliban; published interviews with Western reporters in Kandahar in December 2001 and January 2002; detailed affidavits from family members; and testimony from the five other former Sar-e-poza prisoners.  But Camp Commander Admiral Harry Harris is certain that “I am holding no innocent men in Guantánamo,” and Ginco is no exception.  The government maintains that he is an enemy combatant, and that he has no right to prove his innocence in federal court.   Unless the Supreme Court restores the writ of habeas corpus, he will remain in prison until the military feels like releasing him.

Fortunately, a district court ordered Janko’s release during the period after Boumediene & before the D.C. Circuit made habeas review meaningless, and the government resettled him rather than appeal. But apparently a lot of the oral argument touched on the CSRT determination of “enemy combatantcy.” I wanted to refresh people’s memories about exactly how absurd those tribunals were. Hopefully the PRBs will be better.

 

 

 

 

 

 

Important New Details on the SSCI Report

Jane Mayer of the New Yorker has just posted former CIA General Counsel and newly confirmed DoD General Counsel Stephen Preston’s answers to questions submitted by Senator Mark Udall, about Senate Select Intelligence Committee’s secret 6000-page study on torture and the CIA’s response. Mayer’s article focuses on Preston’s answers, but Senator Udall’s questions are equally revealing. They provide a wealth of new details about a heated conflict between the CIA and the Senate intelligence committee that, until now, had largely occurred behind closed doors.

Udall writes that despite taking over six months to draft, the CIA response

largely responds to a small summary portion of the Committee Study, not to the material in the 300-page Executive Summary, or to the larger 6,300-page document. CIA personnel have confirmed that when the CIA response makes an affirmative statement about what the CIA believes is not in the Committee Study, the CIA response is merely referencing bullet points in a short 50-page section of the Committee Study that precedes the Executive Summary, not the larger Committee Study or its full Executive Summary. CIA personnel have further relayed that no one person at the CIA has read the full 6,300-page report.

Preston says that this was the result of a decision to take a “team approach” to the response. He does concede that “the Agency’s response does not constitute an encyclopedic treatment of the SSCI’s study.”

Another question confirms that the $40 million price-tag of the Senate report was largely due to restrictions that the CIA placed on the underlying documents. Udall writes that the CIA not only required the Committee to review documents off site in Virginia, but

 insisted that CIA personnel—and private contractors employed by the CIA—review each document multiple times to ensure unrelated documents were not provided by a small number of fully cleared Committee staff.

Preston points out that these arrangements predated him, and defends them as a sincere effort to protect national security. Personally, I cannot see the risk to national security in allowing the CIA’s oversight committee to review unrelated CIA documents. SSCI staff have very high-level clearances. And contrary to conventional wisdom about Congress, committee staffers have not leaked to the press about its report—at all. Virtually everything we know about it has come from Senators’ official statements or leaks from anonymous CIA officials.

Udall also notes that during the CIA’s document production, “the CIA removed several thousand CIA documents that the CIA believed could be subjected to executive privilege claims by the President,” without an actual decision by the President to invoke the privilege. Preston responds that the decision to withhold the documents did, in fact rest with the White House; the CIA simply set the documents aside for further review and “deferred to the White House” about whether or not they should ultimately be produced.  If so, that adds a new dimension to the Obama White House’s determination to “look forward” with regard to detainee treatment.

Udall’s questions also confirm important similarities between the SSCI report and the bipartisan, independent report that the Constitution Project’s Task Force on Detainee Treatment released in April. (I was the investigator for the Constitution Project’s report, and I have discussed its findings with Senate intelligence committee staff. One of the task force’s major recommendations was declassification of the SSCI report).

Udall writes that the SSCI report contains a 128-page section on the CIA’s factual representations to the Department of Justice about the interrogation program, which demonstrates that a great deal of inaccurate information was provided to the Department of Justice. The CIA has responded that “revisiting its factual representations and updating them as necessary…would not have had a practical effect” on the outcome of the Justice Department’s review.

Perhaps the Bush-era OLC would have found a way to uphold the legality of torture no matter what factual claims the CIA made. But many of the opinions that Udall cites from 2004 onwards say otherwise—particularly the May 2005 and July 2007 memos by acting OLC chief Steven Bradbury. Bradbury’s memos (1, 2, 3, 4) relied very heavily on now-discredited CIA’s claims that “enhanced interrogation” saved lives, and that sessions were carefully monitored by medical and psychological personnel to ensure that detainees’ suffering would not rise to the level of torture.

As chapter 7 of the Constitution Project report states, “[t]he purported efficacy of the techniques was essential to their authorization as legal by the Justice Department’s Office of Legal Counsel during the second Bush administration.”  For a detailed discussion of the problems with the CIA’s factual representations to OLC about the efficacy of torture, see pages 265-275 of the Task Force Report. That is only based on the public record; the Senate report’s discussion is likely far more detailed.

Bradbury relied equally heavily on the CIA’s assurances that personnel from the Office of Medical Services would carefully observe every interrogation, and intervene before a detainee was in danger of severe pain or suffering, or prolonged mental harm.  He wrote over and over that this was “essential” to his conclusion that techniques like waterboarding were legal. But as the Constitution Project wrote to the Senate in July,

It is a grave violation of professional ethics for doctors to participate in torture or cruel treatment, including by monitoring interrogation sessions where torturous or cruel methods are used…. Health professionals cannot ethically condone any deliberate infliction of pain and suffering on detainees, even if it falls short of torture or cruel treatment.

The Obama administration takes the position that former black site detainees’ medical diagnoses and medical records are classified, as are the detainees’ memories about their treatment in CIA custody. But even based on the limited public evidence, the CIA’s representations about lack of pain, suffering or harm to detainees are simply not credible. This is discussed at length in Chapter 6 of the task force’s report, particularly pages 222-235.

It is past time for the CIA to stop trying to conceal this evidence. And it is past time for reporters to ask the White House why President Obama is letting them. 

Another Very Secret Hearing

On September 10, the Guantanamo military commissions released a heavily redacted transcript of a closed session in the September 11 case. The subject of the closed session, which occurred on August 19, was filing number AE52. AE52 is a motion by the government whose title is classified. The government filed the same motion, under docket number AE92, in the Al Nashiri military commission. There was a closed hearing on AE92 in June, which I wrote two blog posts about:

The Very Secret Hearing

The Somewhat Less Secret Hearing

The redacted transcript of the Nashiri hearing on AE52/AE92 made clear that the motion was an attempt by the government to narrow the scope of its discovery obligations about the defendants’ torture by the CIA. But what, exactly, the government was arguing for remained a mystery, and the court did not rule on the motion. The transcript of the 9/11 closed hearing provides more clues. It appears the government took the incredible position that evidence of CIA torture was not discoverable at all. Judge James Pohl rejected that argument but did not make any rulings on precisely what evidence about CIA torture the government was obliged to provide defense counsel, about the form it would take, about whether the defense would be allowed to share any of the evidence with their clients, or about whether the public would ever see any of it.

Judge Pohl told counsel:

Understand, I’m not addressing whether or not [redacted]. I’m not addressing whether or not [redacted] is sufficient; I’m not addressing whether or not [redacted] is sufficient. That’s not what I’m doing today….What I’m making a decision now is that [redacted] will be discoverable. So the question only before me is whether this is discoverable or not.

Later on in the hearing the judge had the following exchange with Joanna Baltes, the Department of Justice prosecutor whose main function for the commission appears to be to aid the CIA in concealment of the defendant’s torture:

Baltes: …Do you want me to make a presentation or–

Judge Pohl: No, I’m just saying, the only issue I thought before me was whether or not any of these–any of this information that is in [redacted] or the variations of the theme, [redacted] was discoverable.

Baltes: Yes.

Judge Pohl: And I’m simply saying the answer is yes. [Redacted] I’m going to compel discovery on.

Baltes: So you have already made the decision about whether something would be discoverable or you are going to hear from the parties about whether something is discoverable?

Judge Pohl: What I am saying, do you want to be heard about why it is not discoverable?

Baltes: We will rest on our papers as far as why it’s not discoverable.

Pohl later elaborated that he was not ruling on the precise scope and form of discovery; his ruling from the bench “simply puts the government on notice of what their discovery responsibilities of this is because there’s an issue about whether it was even discoverable at all.”

Baltes later restated the government’s position as follows: “I mean, number one, our position is nothing is discoverable; number two, our position is that in the event something is discoverable [redacted].”

The discussion then turned to the defense’s motion to compel the prosecution to provide an unclassified summary of AE52 in order to discuss it with experts. Defense counsel James Connell argued:

At this point…there is no word in [redacted] even–[redacted] is no-named motion. There’s no word of it that is unclassified. If I could use [redacted] and [redacted] in the same sentence to describe the expertise I’m looking for, that would get me pretty much where I need to go.

Baltes replied:

there is no way to do an unclassified summary of the relief the government is requesting in [redacted]. As counsel are aware, based on briefings in this case, [redacted] is classified. So revealing [redacted] would be revealing of classified information. [redacted] so there is no way to do an unclassified summary [redacted].

When I first wrote about this motion in the Al-Nashiri case, I wrote that the prosecution was not only “concealing evidence of torture. Instead, it is concealing its concealment of evidence of torture.” How the government argues with a straight face that evidence of torture is irrelevant and non-discoverable in a capital case that will rely partly on the statements of defendants who were tortured, I have no idea. How the government argues that this legal argument is, itself, properly classified, I have even less idea. But they don’t need to tell us, really. The redaction makes the issue so opaque that you have to be fairly obsessive to even begin to infer what’s going on–and even if you manage that, it’s almost impossible to write about it in a way that’s not hopelessly confusing to the general reader. I doubt I have succeeded, but I hope this at least helps.

UPDATE: Someone who follows these issues even more closely than I do, whose opinion I greatly respect, suggests that I may be over-interpreting the transcript and raised the possibility that the government’s argument about the limits of its discovery obligations about CIA treatment of the defendants may apply only to the case-in-chief phase of the trial, not the mitigation phase. If so, the government’s position and its concealment of it would remain quite wrong, in my opinion, but somewhat less inexplicable. I am going to search through the transcripts & docket one more time to see if I can find any evidence to that effect. In any case, I want to emphasize that I am making inferences based on an incomplete record. I am doing so because I think it’s important not to let the “concealment of the concealment” strategy completely succeed–but I’m reading tea leaves and I may be wrong.

CACI’s Forgotten Role in Abu Ghraib (II)

(Before reading this post, please read part I, on the publicly available evidence of CACI interrogators’ role in directing Charles Graner, Ivan Frederick, and other soldiers to abuse prisoners at Abu Ghraib.)

It is not clear why the Department of Justice never prosecuted Steven Stefanowicz, Daniel Johnson, or any other CACI interrogator for their role in the torture at Abu Ghraib. The best clues are contained in a two part file (1, 2) from the Army Criminal Investigative Division’s (CID) investigation into the Abu Ghraib abuses, released to the ACLU after a Freedom of Information Act request. Unfortunately, virtually every proper name in the CID file is redacted–including Charles Graner’s, Ivan Frederick’s, Stefanowicz’s, Johnson’s, and others whose identities are public knowledge. But if one is familiar with the facts and chronology of the case it is sometimes possible to infer whose name has been redacted on which page.

On January 27, 2005, an Army CID investigator wrote to a Department of Justice (DOJ) oficial summarizing CID’s findings about the civilians at Abu Ghraib. The following paragraph likely refers to Stefanowicz:

[redacted] probably the ring leader of all the civilians. We have significant information, including trial testimony, that he directed and participated in the abuse of detainees while at prison. We have several witnesses, including [redacted] [redacted] and [redacted] who can testify that he gave them orders to abuse deteainees [sic]. This included the use of military working dogs on various detainees.

The following likely refers to Johnson:

We have significant information, to include photographs and a co-conspirator [redacted], that [redacted] was abusing detainees. He forced detainees in stress positions and he and [redacted] used pressure points and simulated suffocation of a detainee by covering the nose and mouth so the detainee could not breath.

DOJ’s initial reaction was skepticism. On January 31, 2005, a civilian prosecutor wrote back to the CID investigator:

Your information does not seem to be the same evidence we have and we’ve been digging into this business in detail….Could you tell me how we can overcome the guidance on the use of dogs that apparently came over from GITMO with MG [name redacted; likely refers to Geoffrey Miller]. What is [redacted, probably “Steve”] the leader of – I know he held some type of supervisory position, but I have no evidence that he was the leader of some abuse program or whatever you are suggesting.

By March 5, 2005, though, prosecutors had decided to pursue charges against at least one civilian contractor. According to a CID agent’s notes,

The AUSA’s [U.S. Attorneys] are going to proceed with actions against [redacted]. After being briefed and seeing all information from others pertaining to him, along with his interview with [redacted], they felt he should be pursued.

Another page of the CID file refers to a grand jury being convened to hear evidence against a contract interrogator. The file states that on June 15, 2005, CID agents met with a U.S. attorney who “is seeking a federal indictment against one of the civilian subjects” of the Abu Ghraib investigation. The U.S. Attorney requested the military’s help in locating a contract interpreter who “has been identified as a key witness and he will be subpoenaed to testify before a federal grand jury tentatively scheduled to begin on/about 18 Jul 05.” The interpreter’s name is redacted, as is the name of the subject(s) of the grand jury investigation.

In July 2005, CID investigators traveled to Fort Leavenworth to administer a polygraph examination to an inmate–most likely Charles Graner–in preparation for potential testimony about Abu Ghraib. The inmate’s lawyer wrote to CID agents on July 12, 2005 that

[Redacted] is VERY unhappy. He feels like he is cooperating and his conditions have not improved. He is still in max custody and is very unhappy about it. He is prepared to defy the order to cooperate, though I am trying to walk him back from that position.

On July 19, a CID agent arrived at Leavenworth to conduct the polygraph, but was rebuffed. According to notes in the CID file, the agent

met with [redacted] who said he was not taking any polygraphs. [Redacted] said he was not cooperating with SA [redacted] prosecution or the US Government anymore and didn’t care what his grant of immunity ordered him to do.

Graner, unlike fellow Leavenworth inmate Ivan Frederick, did not testify at the courts martial for military dog handlers Michael Smith and Santos Cardona in 2006. But a number of other witnesses did testify about Stefanowicz’s role in the dog handlers’ abuse of prisoners.

After Smith and Cardona were convicted, FBI and Abu Ghraib CID investigators tried to arrange for them to be interviewed under grant of immunity. But the military officers who had the authority to grant immunity declined to do so, despite repeated requests. According to CID file notes from August 2006, “[a]n interview of both dog handlers had been deemed key and essential to the successful prosecution of [redacted] by the U.S. Attorney’s office.” Another note to the file from September 2006 states that investigators believed Smith and Cardona

would provide significant information regarding several of the civilian interrogators identified in in this investigation…both were supposed to be granted testimonial immunity and interviewed regarding others identified as subject. Upon completion of the both actions, the MDW SJA [Staff Judge Advocate for the Military District of Washington] decided not to immunize either soldier. Efforts are ongoing to obtaining the immunization; however, it is not believed this will occur.

On September 18, 2006, “an operational decision was made to discontinue efforts regarding the immunity and interview of the two dog handlers…It was believed the immunity would not by forthcoming in the near future.”

The Military District of Washington is headquartered at Fort Lesley McNair in Washington, DC. Its commander at the time was Major General Guy C. Swann, and the Staff Judge Advocate was William Barto. Their reasons for denying the request to immunize Smith and Cardona are not explained in the CID file.

In August 2007, Time reported that Steven Stefanowicz and another private contractor might still face charges for Abu Ghraib, based on a source’s statement that “during a recent appearance before a federal grand jury in the Eastern District of Virginia he answered questions about the role at Abu Ghraib of Steven A. Stefanowicz… as well as of another civilian contractor.”

But Stefanowicz was never indicted, nor was any other civilian implicated in the Abu Ghraib abuses. A case against CACI dismissed this June was the last remaining civil suit brought by torture victims for compensation. A judge recently ordered the victims to pay CACI’s court costs. The evidence of CACI’s role in the torture Abu Ghraib will never see the light of day unless the Fourth Circuit reverses the district court’s decision, and allows the case to proceed to trial.