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by powwow

“Just Imagine”…Unchallenged, Government Tells Supreme Court While Torturing: “The United States Is Gonna Honor Its Treaty Obligations”

6:10 pm in Uncategorized by powwow

David Cornwell (British author John le Carré) speaking in a March, 2002 interview:

The Cold War was fought under a constant mystery: How much can we do in defense of a free and decent society and remain a free and decent society that is worth defending? So there was always a very great unease, particularly in the secret world, about the methods with which we protected our virtue, as we saw it.

[...]

When you’ve got a preconception, you can always decorate it with slightly bent intelligence.

On this ninth anniversary of the opening of the notorious American prison camp built on a U.S. Navy Base at Guantanamo Bay, Cuba to hold, and, above all, to interrogate, foreigners claimed to be law of war combatants, I’ve transcribed below part of a recent interview of an English-speaking detainee – a citizen of Britain – who was transported by cargo plane from Afghanistan to Guantanamo’s Camp X-Ray in February, 2002.  [His two British companions, Shafiq Rasul and Asif Iqbal - they're collectively known as the "Tipton Three" - were flown to Cuba a month earlier, on January 13, 2002, two days after the prison camp opened nine years ago today, 1/11/11.]

That former detainee is Ruhal Ahmed, and the transcribed portion of his joint interview with Shafiq Rasul (made especially poignant and compelling by the presence of Ahmed’s young daughter), which was conducted in East London by British writer Andy Worthington last September 18th – nine years to the day after President Bush signed the never-rescinded Congressional Authorization for Use of Military Force (war) against the perpetrators of 9/11/2001 – may be viewed here (starting about five minutes in; don’t miss Shafiq Rasul’s account in the first two minutes of the clip):

Interspersed with my transcript of Ahmed’s account of his pre-April, 2004 Guantanamo experiences, is my transcription of an exchange that took place in open court in the United States Supreme Court, on April 28, 2004, as two of the justices questioned the appointed representative of the U.S. government at the time, Deputy Solicitor General Paul Clement of the Executive Branch’s Department of Justice. Clement was resisting, in the name of the President and Congress and the American people, the efforts of another wartime detainee – U.S./Saudi citizen Yaser Hamdi – to have his claim, of being unlawfully detained as an armed-conflict combatant, heard and adjudicated by a neutral decision-maker in our independent Judicial Branch of government, or elsewhere.

Ruhal Ahmed and his two companions were seized by Northern Alliance forces in northern Afghanistan (where they’d been touring the area prior to attending the wedding of Iqbal in Pakistan, apparently partly in search of “dope,” but without even a tangential connection to any armed conflict, if one can prove a negative) in late November, 2001, were soon transferred to the custody of American Special Forces troops in Afghanistan, and then forcibly flown in January and February, 2002 to Guantanamo Bay, Cuba, where they were held, abused, and interrogated, until released to British custody – without explanation, apology, or reparations from the United States President or Congress then or since – in March, 2004.

Ahmed’s appallingly-abusive treatment and torture, while in American military custody in Afghanistan and Guantanamo, were detailed at length in a joint public account by the three British friends on July 26, 2004, part of The Guantánamo Testimonials Project of the University of California at Davis’s Center for the Study of Human Rights in the Americas (CSHRA). That laudable academic project has been voluntarily compiling, during the abdication of Congressional oversight and DOJ enforcement of the law against powerful government actors, the evidence of crimes committed by agents of our federal government, that other members of our government should have been compiling and using to impeach and prosecute, years ago.   Some excerpts from that written account:

80. During the first several weeks [in Guantanamo] the American interrogations with all three [men] consisted of pressing them to ‘just say you’re a fighter’. Asif [Iqbal] was told ‘if you just say you’re a fighter, because of the Geneva Convention when the war is over you’ll get sent back to England’. [Ruhal Ahmed] was told ‘just say you’re a fighter and you’ll go home’. He was told ‘you’ve come to kill American and British soldiers, coalition forces’. They talked about ‘allied forces’. They referred to the Northern Alliance as being the same as ‘allied forces’.

[...]

98. The interrogators very rarely introduced themselves. Occasionally they lied about the organizations they worked for and all three men believe the names they gave were almost always false. This misinformation was quite common. As an example, on one occasion [Ruhal Ahmed] told an investigator that one of her colleagues from the FBI had kept him in the interrogation room for 18 hours (this was in Camp Delta). He described the interrogator. The person to whom he was complaining told him that he knew the woman and that she was not from the FBI but from Military Intelligence.

99. In relation to the interrogators, they generally changed. It was very rare to have the same interrogator on a regular basis. Shafiq [Rasul] says ‘I only ever saw the same interrogator on three occasions at the most’.

100. The organizations that were involved in the interrogations included the CIA, FBI, DOD, MI5, NCI (Navy Crime Investigators), NSA, Army CID.

[...]

Camp Delta – Conditions
124. After Camp X-Ray all three were transferred to Camp Delta about May 2002. The conditions in Camp Delta were more permanent than those in Camp X-Ray. The cells were made out of large shipping containers. The sides at either end had been removed as had the front. Inside each container they had constructed 6 mesh cages. The back wall, the floor and the roof were from the metal container but the side walls and the front were made of mesh. In the back wall there was cut out a square to act as a window, but this also had thick mesh across it.

[...]

Interrogations at Camp Delta
170. In relation to the interrogation blocks at Delta, they fell into the following categories: yellow building, brown building, gold building, blue building, grey building and orange building. All the booths either had a miniature camera hidden in them (it was possible to see the cameras in the air vents) or they had one way glass behind which sometimes it was possible to make out other individuals using video cameras. Asif [Iqbal] states that ‘during one particular interview with MI5, I remember seeing people behind the MI5 man filming me. Most of the interrogations in Camp 1 were in the brown or the yellow building. After they built Camp 2, most of the routine interrogations took place in the gold building and the brown building was then used for the torture’.

[...]

220. After about a week [at one point, a year or more into detention] I [Asif Iqbal] was taken to interrogation [from isolation]. I was taken there by guards from 9/4. These were the Rhode Island, Massachusetts Soldiers. They had a reputation for the worst violence. I remember once General Miller had to investigate them for using excessive force as they had beaten up one man who ended up as a cabbage.

[...]

234. After about three months in isolation we were all brought out and moved to Kilo block [as, unknown to them, the time for their release neared]. This was a normal block that was also run by Intel as opposed to the Army. The three of us were placed in this block and we were no longer in isolation, we were allowed to talk to each other [all the cells were bugged].

Like every other Guantanamo prisoner, including the 173 who remain in custody today, after the release or death of the rest of the peak population of almost 800, Ruhal Ahmed was held without benefit of Prisoner of War (POW) status or treatment, despite being denied the Article 5-compliant screening mandated by pre-existing U.S. Army regulation, or any judicial or Congressional review of his detention conditions – which were in clear (and willful) violation of the Third Geneva Convention, and Common Article 3 minimum humane treatment standards (both the law of the land), for more than two years.

The U.S. President and Congress ought to be required to read the Third Geneva Convention (part of our “treaty obligations”), sometime.  It requires, in part, for screened and unscreened (default) POWs, that:

Art 13. Prisoners of war must at all times be humanely treated. Any unlawful act or omission by the Detaining Power causing death or seriously endangering the health of a prisoner of war in its custody is prohibited, and will be regarded as a serious breach of the present Convention. In particular, no prisoner of war may be subjected to physical mutilation or to medical or scientific experiments of any kind which are not justified by the medical, dental or hospital treatment of the prisoner concerned and carried out in his interest.

Likewise, prisoners of war must at all times be protected, particularly against acts of violence or intimidation and against insults and public curiosity.

Measures of reprisal against prisoners of war are prohibited.

Art 14. Prisoners of war are entitled in all circumstances to respect for their persons and their honour.

[...]

Art 17. Every prisoner of war, when questioned on the subject, is bound to give only his surname, first names and rank, date of birth, and army, regimental, personal or serial number, or failing this, equivalent information.

[...]

No physical or mental torture, nor any other form of coercion, may be inflicted on prisoners of war to secure from them information of any kind whatever. Prisoners of war who refuse to answer may not be threatened, insulted, or exposed to unpleasant or disadvantageous treatment of any kind.

[...]

Art 25. Prisoners of war shall be quartered under conditions as favourable as those for the forces of the Detaining Power who are billeted in the same area. The said conditions shall make allowance for the habits and customs of the prisoners and shall in no case be prejudicial to their health.

The foregoing provisions shall apply in particular to the dormitories of prisoners of war as regards both total surface and minimum cubic space, and the general installations, bedding and blankets.

The premises provided for the use of prisoners of war individually or collectively, shall be entirely protected from dampness and adequately heated and lighted, in particular between dusk and lights out. All precautions must be taken against the danger of fire.

[...]

Art 48. In the event of transfer, prisoners of war shall be officially advised of their departure and of their new postal address. Such notifications shall be given in time for them to pack their luggage and inform their next of kin.

They shall be allowed to take with them their personal effects, and the correspondence and parcels which have arrived for them. The weight of such baggage may be limited, if the conditions of transfer so require, to what each prisoner can reasonably carry, which shall in no case be more than twenty-five kilograms per head.

Mail and parcels addressed to their former camp shall be forwarded to them without delay.

[Etc.]

In April, 2004, the month after Ruhal Ahmed was transferred to British custody from U.S. military custody, after enduring Guantanamo detention conditions so intolerable that months earlier he’d “confessed” to being a part of Al Qaeda and having foreknowledge of the 9/11 attacks, Deputy Solicitor General of the United States Paul Clement told the justices of the United States Supreme Court that “the United States is gonna honor its treaty obligations” in the Executive Branch’s classified, unsupervised detention of foreign citizens – over whose fates the president and military assert unilateral control during the (still-ongoing) war against those non-uniformed 9/11 terrorists (and their accomplices) who survived the 2001 suicide attacks.  Clement further declared to the nine high court justices that the Executive Branch alone can and will “constrain the actions” of government agents, so as to make otherwise-unenforced treaties “binding” and capable of preventing the torture or abuse of helpless presidential prisoners, when it’s left unchecked and unsupervised by the other two branches of government.

Judge for yourselves the veracity of our government’s word, as asserted in person to the justices of the United States Supreme Court.

Ruhal Ahmed, ISN 110, describing, last September, what he experienced in Guantanamo Bay detention camps before April, 2004:

The frequent flyer program means basically a detainee is picked by his interrogator, simply because maybe he’s, they think he’s a high profile. What they would do – every fifteen minutes you would move, they would move you from cell to cell, throughout the clock. So, if you should imagine – to move a person, it takes at least twenty minutes – the procedure, to move someone. They need to be shackled, which takes about ten minutes. The door needs to be opened, there have to be three guys who need to escort the person to another cell. Um, it’s not like you go, you move from cell one to cell two – you could be from cell one, which is in Alpha Block, to Block B or Block C. So you can just imagine how long it takes for a person to be transported from one place to another. And that would happen every fifteen minutes. So I mean, as soon as you get into your cell, fifteen minutes from that time, you’re gonna get moved again, throughout the clock. So just imagine moving, and getting moved again, every fifteen minutes of the day.

You can’t sleep, for week upon weeks. Some brothers went through it for months. And eventually you become, you become like a vegetable. You know – you have no control over your head, you know, of your body. You’re just, look a zombie, living a zombie… Eventually, you can’t, you can’t kneel down… Because we had to kneel down to get shackled up, to get prepared to move from cell to cell. But what they do – because you’re so tired and so exhausted of being moved and moved to place to place, what they would do is walk into your cell and they’d kind of drag you to the next cell, to the next block. That’s the frequent flyer program.

Hamdi Supreme Court Oral Argument on April 28, 2004:

Justice John Paul Stevens [addressing Deputy Solicitor General Paul Clement]: It sounds from your argument that the principal interest that the government wants to advance is the ability to interrogate the person [in Guantanamo or elsewhere] for a sufficient length of time to determine whether they’ll get valuable information out of them or not. And to deny him counsel during the period – that period – because he may not be as willing to talk. Now it seems to me there are two things about that I wanted to ask you about: One, have you considered the possibility that perhaps a lawyer would’ve explained to this man that if you do give some information, you won’t have to stay here incommunicado for two or three years; that might be a motivation to talk. That’s one possibility.

Ruhal Ahmed, ISN 110, describing, last September, what he experienced in Guantanamo Bay detention camps before April, 2004:

Then you, then you have obviously ah, the – where they would limit your food. If you are in isolation they would limit your proportion of the food. You weren’t getting huge amounts of meals, like we get here [referencing his London location], and especially [unintelligible, to the audience with a smile]. But just imagine them getting, you know… What we used to get in a normal, in a normal blocks we’d get… Let me, how should I put this now… Just imagine, you get two pieces of bread, ahm, and probably enough sauce just to wipe that plate clean. That’s your meal, you know. And breakfast would be even smaller, you know, and lunch you would get literally nothing. So, you know, just imagine them controlling your meal now. So, you know, you don’t even get half of that or a quarter of that, if you’re on that program. And on top of that, you’re isolated. You know, you’re in isolation, you can’t speak to nobody. You can’t talk, you can’t go out your cell. You don’t get to go to the showers, for recreation, and so on.

Hamdi Supreme Court Oral Argument on April 28, 2004:

Justice Stevens: And the second thing I wanted to ask you about: Are there any cases in the international field or the law – anywhere – explaining that the interest in detaining a person incommunicado for a long period of time for the purpose of obtaining information from him is a legitimate justification for it? I understand arresting on the battlefield – that’s perfectly clear. But is this prolonged detention for that purpose the subject of judicial writing anywhere that you know about?

Deputy U.S. Solicitor General Paul Clement: Let me answer both parts of your question, Justice Stevens. [...]

Ruhal Ahmed, ISN 110, describing, last September, what he experienced in Guantanamo Bay detention camps before April, 2004:

Basically, in 2003, that’s when the condition of the prison got extremely worse, when General [Geoffrey] Miller was put in power. Um, and basically – before that it was not as bad, but when General Miller came in power, when he became the General there, they started introducing short-shackling, hot and cold temperatures, isolation for long periods of time, the frequent flyer program, and so on. So what that means is basically if you’re classed as a high-profile person, these things would apply to you, and you would have all these kind of things happening to you. You’d go to interrogation on a daily basis, be short-shackled.

Short-shackled is – I don’t know if you guys know what a “three-piece suit” is – it’s… If you watch American films, when the prisoner gets arrested, they put handcuffs on him which has a link on the chain that falls to the feet, it’s like – they call it a “three-piece suit.” And when you walk, you actually shuffle like a penguin. The restriction of the shackle itself is quite tight. The short-shackle – what they do is they put you in a room and there’s a hook on the floor. And they uncuff your hands, get a separate pair of cuffs, cuff your hands, make you bend down, and they put that link where the shackles is in that hook, padlock that, force you to bend down, put your hands behind your back, and get a second pair of cuffs and cuff you. Just imagine your hands being cuffed where your ankles are. And that’s short-shackling. Which means you can’t actually sit flat-footed. So you have – you’re constantly on your toes and the ball of your foot. If you go forward, it cuts into your wrists. And if you go backwards, it cuts into your ankles. So you can be in that position for days, sometimes for two, three days. I mean, I went through it for about 2 and a half days, I think Shafiq [Rasul] did the same. But some brothers, especially the Arab brothers, they went through it for a longer period of time. That’s short-shackling.

Hamdi Supreme Court Oral Argument on April 28, 2004:

Clement: I think – to get to your second part of the question – I don’t know that there are any authorities that I’m aware of that address exactly what you’re talking about. But I think there’re two types of authority that we would point to as being very important. First of all, it’s long been recognized that one of the major justifications for the detention of enemy combatants or prisoners of war is to gather intelligence, and we cite some sources to that effect in the brief. The second thing – and I think this is important – is that is has never been the case that prisoners of war are entitled to counsel to challenge their capture or their detention. What has happened historically, and what the Geneva Convention provides, is that if one of those enemy combatants is charged with a specific war crime, then at that point they are entitled to counsel. But if they are just being held in a preventative detention, then, in that circumstance, they are not entitled to counsel.

Ruhal Ahmed, ISN 110, describing, last September, what he experienced in Guantanamo Bay detention camps before April, 2004:

And then, obviously, if you have to urinate or go – you know, if you need to take a number two – you’d have to urinate on yourself and defecate on yourself. You wasn’t allowed to pray. During that period, they would have extremely loud music, they would have strobe lights. And you – just imagine being in that room. It’s a very small room, it’s a very, you know, confined room. It’s only like about two by two, if that. And it’s kind of sound proof. So they’ve got a system in there, and they’re playing – you know, most likely it was heavy metal music, with strobe lights. So it’s like you were being in a night club, but it’s not, you know.

And eventually, after being there for 3, 4 hours, you know – first of all, it’s the pain that’s killing you. Then afterwards, you know, you try to kind of concentrate on other things to kind of relieve yourself of the pain – think about things. But when the music’s on, it’s in your ears, constantly, and eventually you can start hearing every instrument that’s playing. Every note. At the same time they would come in with dogs and interrogate you – you know, dogs would be right, you know, by your face, barking. Um, and throwing, you know, kicking you, punching you, asking you to sign confessions – you know, you’re Al Qaeda, you’re this and that. And through – you’re just thinking in your head, you’re kind of – your mind goes blank.

Hamdi Supreme Court Oral Argument on April 28, 2004:

Justice Stevens: May I ask just one other question – I think it’s just relevant… Do you think there’s anything in the law that curtails the method of interrogation that may be employed?

Clement: Well, I, I think there is, Justice Stevens, I mean…

Justice Stevens: And what is that?

Clement: Well, I mean, just to give one example – I think that the United States is signatory to conventions that prohibit torture and that sort of thing. So that’s – you know, the United States is gonna honor its treaty obligations. The other thing that’s worth mentioning, of course…

Ruhal Ahmed, ISN 110, describing, last September, what he experienced in Guantanamo Bay detention camps before April, 2004:

And eventually you start hearing things and seeing things – even when they’re gone, you think they’re still there. So it kind of takes over your mind. And eventually I think me and Shafs [Rasul] and some other brothers who were subject to these kind of things, we all signed a confession. We, you know, we came to the point – where, you know, we came to the point, because I [had stayed there?] for about five months, as well [the video "evidence"/"confession" was apparently more than a year into his detention - pow wow]. And I said, I said to myself, you know – I’m in Guantanamo, it can’t get worse, let me just sign this piece of paper, and let me see what happens. Because if they take me to court, it’s better for me – you know, at least I can, I can tell my part of the story, and I’ll probably have a lawyer.

Hamdi Supreme Court Oral Argument on April 28, 2004:

Justice Ruth Bader Ginsburg: But you said about, something about self-executing in connection with Geneva Convention. You said well, it’s not self-executing. Would you say that – the same thing – about the torture convention?

Clement: Justice Ginsburg, I actually have the sense that, that, that, that the Torture Victim – I mean, you have the Torture Victim Protection Act, of course, which I think doesn’t actually apply to the United States, so I’m not sure that there would be any other basis for bringing a private cause of action against the United States. But as this Court noted in Footnote 14 of its Eisentrager opinion, the idea that a treaty is gonna be enforced through means other than a private cause of action doesn’t mean that it’s not a binding treaty, doesn’t mean that it’s not gonna constrain the actions of the Executive Branch.

Ruhal Ahmed, ISN 110, describing, last September, what he experienced in Guantanamo Bay detention camps before April, 2004:

So we all went into interrogation, and they had these photos. And there’s a video of bin Laden giving a speech, and there’s a crowd, just like yourself, just sitting there. And there was Mohammed Atta there. And behind him, apparently, there’s three of us – me, Shafiq [Rasul] and Asif [Iqbal]. And there was like – the pictures were a still of a video, so it was very, very poor quality. You couldn’t even see the person’s face. But simply because, in my interrogation, I said I was wearing an Adidas tracksuit bottom – and this guy had a tracksuit top, just like yourself [pointing to someone in the audience] – and they said, oh, this is you – yeah, I mean… And it was just amazing, and I thought ‘okay, yeah, that’s me’ – I said give me a piece of paper. And we all signed it. We all signed to say we were part of Al Qaeda and we knew about 9/11 and blah, blah, blah. And, Hamdallah, it stopped – all the bad feelings stopped. Which was amazing. And, I thought, why didn’t they just say/send that the first day we got there. You know. And after, you know, a few months we was released, which was quite, really strange.

[Note: The referenced bin Laden video was dated either January 8, 2000 (1/8/00) or August 1, 2000 (8/1/00), the U.S. did not know which (and didn't reveal either date to the detainees for some time). There were records in England proving that both Ahmed and Rasul were present in England on both of those dates in 2000, which, with diplomatic efforts for and by the U.K. (Tony Blair) late in 2003, apparently helped lead to the release from Guantanamo of Ahmed, Rasul and Iqbal in March, 2004 - despite their having already "confessed" in writing, weeks or months earlier, to being, among other things, "part of" Al Qaeda, informed about 9/11 planning, and out of England and in the bin Laden speech audience abroad, near 9/11 hijacker Atta, on one or both of those dates in 2000. - pow wow]

Hamdi Supreme Court Oral Argument on April 28, 2004:

Clement: Just to finish up my answer to Justice Stevens’s question – I wouldn’t want there to be any misunderstanding about this. It’s also the judgement of those involved in these processes that the last thing you wanna do is torture somebody or try to do something along those lines. I mean, if there were an artificial – if you did that, you might get information more quickly, but you’d really wonder about the reliability of the information you were getting. The judgement of the people who do this as their responsibility is that the way you get the best information from individuals is that you interrogate them, you try to develop a relationship of trust…

Ruhal Ahmed, ISN 110, describing, last September, what he experienced in Guantanamo Bay detention camps before April, 2004:

But that’s why it happens, you know, when you are subject to this kind of treatment, you eventually break, you eventually crack. Some people go to the extreme of, you know, trying to kill themselves. I witnessed many brothers who tried to hang themselves, to cut themselves, with the plates – the plastic spoons and knives, you know, to sharpen them up. Whatever method they tried, they wasn’t successful. But obviously two were – two brothers did manage to kill themselves, apparently. But, you know, it’s quite hard to believe, ’cause everyone’s tightly controlled. It’s impossible to kill yourself in Guantanamo. [Beginning of the third video clip, available for viewing here; Rasul describes seeing and talking to Omar Khadr in Guantanamo later in this clip.] But nevertheless people do try – brothers do try and especially the brothers who have families. Not the ones who are single. It’s usually the ones who are married, who had kids, who had more of a responsibility, unlike myself, at that point.

That’s what, eventually, you think about. I’m not going to say here, myself and I’m sure Shaf [Rasul] – we’ve considered to kill ourselves, because it’s the position that they put you in, and the stress you go through. Not having your family there, you know, not being able to talk to your mum, your father, your brothers, your sisters. Not being allowed to have a letter – like Shaf [Rasul] said, my mother sent me a letter which my sister wrote, and the first line was “How are you, son?” At the end – it was all, the middle was all crossed out – at the bottom “I love you, Mum.” I mean, how much hope do you get from a letter? And there’s no hope, and you think of, you think of killing yourself. That’s what happens. Hamdallah, you know, most brothers would help you, you know, talk to you and say, that’s not the right thing to do, have patience, until that patience comes through.

As Lynn Parramore recently noted about just one aspect of what Ruhal Ahmed and hundreds of others endured and continue to endure in Guantanamo’s prison camps, in her important and timely New Year’s Eve post “Tortured Until Proven Guilty,” focusing on the months-long abusive military confinement of American Bradley Manning, in advance of his trial in the regular Executive Branch-operated, UCMJ-governed military justice system (a military justice system that Congress and the President deliberately undermined, by carving out exceptions to prevent its application to the small minority of Guantanamo detainees formally accused of committing war crimes):

Charles Dickens had a keen interest in prison conditions, having witnessed his father’s detention in a Victorian debtor’s prison. When he heard about the latest American innovation in housing convicts, he came to see for himself. At Philadelphia’s Eastern State Penitentiary, the wretches he found in solitary confinement were barely human specters who picked their flesh raw and stared blankly at walls. His on-the-spot conclusion: Solitary confinement is torture. Dickens wrote:

I believe that very few men are capable of estimating the immense amount of torture and agony which this dreadful punishment, prolonged for years, inflicts upon the sufferers…I hold this slow and daily tampering with the mysteries of the brain, to be immeasurably worse than any torture of the body: and because its ghastly signs and tokens are not so palpable to the eye and sense of touch as scars upon the flesh; because its wounds are not upon the surface, and it extorts few cries that human ears can hear; therefore I the more denounce it, as a secret punishment which slumbering humanity is not roused up to stay.

A man who had seen his share of inhumanities, Dickens pronounced solitary confinement to be “rigid, strict, and hopeless…cruel and wrong.”

That was 1842. Since then, piles of scientific studies, along with the vivid accounts of victims, have confirmed what was obvious to Dickens.

[...]

The placement of human beings in solitary confinement is not a measure of their depravity. It is a measure of our own.

by powwow

“You will not leave this place innocent.” Even if you are. Just ask our Senators and Representatives, who preach that UCMJ-violative DOD detention, alone, proves the guilt of (Arab) detainees.

8:16 pm in Uncategorized by powwow

In a court declaration this spring, Kuwaiti citizen Fouad Al Rabiah, a 20-year airline employee, father of four, and college graduate from universities in Scotland and the United States, who has been held prisoner since 2002 without formal charge, or review by a Geneva Convention-compliant Article 5 tribunal, as a de facto non-POW war fighter and/or war criminal, in the off-limits-to-visitors American military prison at Guantanamo Bay Naval Base in Cuba, and coercively interrogated throughout his imprisonment, wrote:

…a senior [redacted] interrogator came to me [in Guantanamo, in 2002] 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."

That March 17, 2009 declaration by Al Rabiah for his habeas corpus court hearing only came into being because, six years after Al Rabiah filed his habeas petition on May 1, 2002, the Supreme Court – in its vital role as part of our third, independent Judicial/Article III Branch of government – in June, 2008 belatedly ordered an end to the severe and unprecedented breach of Constitutional limits by abusive federal military and police authorities, that had been selectively implemented since September, 2001 against foreign Arabs and practicing Muslims at the behest of both the Executive/Article II and Legislative/Article I Branches of our government. As a result, a year after the Supreme Court’s order in Boumediene, a federal district judge this year finally heard and ruled on the merits of Al Rabiah’s 2002 appeal, which asked simply to have the Executive Branch’s reason for its unilateral military imprisonment of Al Rabiah made known to a neutral Judicial Branch magistrate, and accepted or rejected as valid under American law and the law of armed conflict.

Following Al Rabiah’s August, 2009 merits hearing (in anticipation of which his March declaration was filed) – held seven years after it should have been, largely because of the abdication of oversight by Members of Congress of the wars they launch (or, these days, the wars they simply dangerously rubberstamp the launching/expansion of), and because of the many venal authoritarian followers in Congress who politicize and subvert justice for personal gain or personal spite, while refusing to question the far-reaching actions of the largely self-directed Pentagon and CIA – Judge Colleen Kollar-Kotelly ruled in a comprehensive and clearly-explained opinion, on September 17, 2009:

If there exists a basis for Al Rabiah’s indefinite detention, it most certainly has not been presented to this Court. Al Rabiah’s petition for habeas corpus is GRANTED.

[...]

The Court shall issue an Order requiring the Government to take all necessary and appropriate steps to facilitate Al Rabiah’s release forthwith.

That’s coming from a judge who knows far more than the average Member of Congress about the highly-classified actions of our government in its pursuit of suspicious foreign agents inside the U.S., Kollar-Kotelly having been the presiding judge of the Foreign Intelligence Surveillance Court for most of the Bush/Cheney reign.

This, on the other hand, is coming from one of the most powerful, plugged-in legislators in the House of Representatives – Dave Obey of Wisconsin, chairman of the House Appropriations Committee, and Ex Officio member of all 12 of its subcommittees, which fund every agency of the Executive Branch, speaking on the House floor Thursday, October 1, 2009:

Now, this country has a problem. After September 11 we picked up a lot of bad and dangerous characters and shipped a lot of them to Guantanamo. We also picked up, on the basis of bad information, some who didn’t belong there. From what I can tell, it would appear like virtually every single person there now deserves to be there.

To anyone actually trying to pay attention to what the Congress of the United States has allowed to transpire in our military prisons – with essentially no oversight from either its Armed Services (chaired by Carl Levin and Ike Skelton) or Foreign Relations (chaired by John Kerry and Howard Berman) Committees – it’s obvious that Dave Obey, among many, many others in our federal legislature, is not even trying to pay attention to the many horrific consequences of the Congressionally-authorized-and-unleashed years-long Executive Branch use of violent armed force abroad.

To his credit, Obey was actually attempting, without sufficient facts in hand, to rebut unproven and disproven racism-tinged accusations by Harold "Hal" Rogers of Kentucky about our military’s Arab prisoners in Guantanamo Bay. Before I quote some of the wild-eyed, specious claims of Rogers, though, and for the information of Obey and others, including our AWOL media, here’s how things now stand, after the first independent analyses by another branch of government of the Executive Branch’s claims about its military prisoners have finally been undertaken, post-Boumediene, as explained by Harper’s Scott Horton on October 1, 2009:

Seton Hall Law School students and faculty issued a series of impressive reports surveying the available evidence, and they suggested that perhaps as many as 80% of the total inmate population of Gitmo were innocent people, swept up as a result of generous bounty payments the United States offered to Afghan warlords and Pakistani security officials.

Now, as habeas corpus cases are processed, we finally have a basis to judge the Bush-Cheney claims about the Gitmo prisoners. The "judging" is being done by federal judges in Washington, nearly all of them conservative Republicans and quite a few appointed by George W. Bush himself. The results? The process is still ongoing. But at this moment, decisions have been rendered in 38 cases. The government was found to have had a tenable basis to hold eight Gitmo prisoners, and to have no basis in 30 cases. So far at least, the court judgments are remarkable in their coincidence with the numbers from the Seton Hall study. The judicial reviews—which have gotten far less press coverage than the scatter-shot attacks of Dick Cheney and his daughter–can be summarized this way: "Worst of the worst? Not so much."

Here’s the roll call, with the status, the prisoner involved, the judge who ruled, and the prisoner’s nationality:

Freedom granted—30 (20 of whom are still in custody)
17 Uighurs—Urbina (4 released to Bermuda)
5 Bosnian-Algerians—Leon—(4 released—3 to Bosnia and 1 (Lakhdar Boumediene) to France)
Mohammed el Gharani (Chadian)—Leon (released to Chad)
Yasim Muhammed Basardah—Huvelle (Yemeni)
Alla Ali Bin Ali Ahmed—Kessler (Yemeni)
Abd al Rahim Abdul Rassak Janko—Leon (Syrian)
Khalid Abdullah Mishal Thamer Al Mutairi—Kollar-Kotelly (Kuwaiti)
Mohammed Jawad—Huvelle (Afghan; released to Afghanistan)
Mohammed Al-Adahi– Kessler (Yemeni)
Fouad Al Rabiah—Kollar-Kotelly (Kuwaiti).

Freedom denied—8
Belkacem Bensayah (Bosnian)—Leon
Hisham Sliti (Tunisian)—Leon
Muaz Al Alawi (Yemeni)—Leon
Ghaleb Nassar Al Bihani (Yemeni)—Leon
Hammamy (Tunisian)—Leon
Waqas Mohammed Ali Awad (Yemeni)—Robertson
Fawzi Al Odah (Kuwaiti)—Kollar-Kotelly
Sufyian Barhoumi (Algerian)—Collyer

As for what lead to those decisions, here’s the burden of persuasion, quoting Judge Kollar-Kotelly in her Al Rabiah decision, that the entire resources of the American military and Executive Branch of government could be called on to meet to win those 38, and any future, cases, in order to keep legitimate armed conflict fighters detained (whether or not they committed any recognized offenses against the law of war) for the duration of the conflict:

Pursuant to the Amended Case Management Order that the Court adopted in this case on December 22, 2008, the Government bears the burden of proving by a preponderance of the evidence that Al Rabiah is lawfully detained.

[...]

The Government must come forward with evidence demonstrating by a preponderance of the evidence that he is lawfully detained, and if the Government fails to meet this burden, the Court must grant Al Rabiah’s petition for habeas corpus.

That’s all. Not "beyond a reasonable doubt." Not a jury conviction. Simply by "a preponderance of the evidence," in the judgement of one judge, that the years-long detention by our military of the prisoner at issue is and was lawful under our Constitution, the 2001 AUMF, and the law of armed conflict. If that low standard can’t be met, with all the odds and classified intelligence in the government’s favor, the detainee wins his case – as 30 of 38 have finally succeeded in doing since June, 2008, thanks to the help of many volunteer civilian defense counsel, and many principled active military JAG officers who are quietly working to resist and undo the unjust abuses perpetrated by their own branch of government.

Furthermore, the preponderance of the evidence needs only to demonstrate the following behavior by the prisoner, again quoting Kollar-Kotelly, who is using the same standard already established by several other judges in their Guantanamo habeas proceedings in the D.C. District:

The Court agrees that the President has the authority to detain individuals who are "part of" the Taliban, al Qaeda, or associated enemy forces, but rejects the Government’s definition insofar as it asserts the authority to detain individuals who only "substantially supported" enemy forces or who have "directly supported hostilities" in aid of enemy forces. While evidence of such support is undoubtedly probative of whether an individual is part of an enemy force, it may not by itself provide the grounds for detention. Accordingly, the Court shall consider whether Al Rabiah is lawfully detained in the context of the following standard:

The President has the authority to detain persons that the President determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, and persons who harbored those responsible for those attacks. The President also has the authority to detain persons who were part of Taliban or al-Qaida forces or associated forces that are engaged in hostilities against the United States or its coalition partners, including any person who has committed a belligerent act in aid of such enemy armed forces.8

In the context of this definition, the "key inquiry" for determining whether an individual has become "part of" one or more of these organizations is "whether the individual functions or participates within or under the command structure of the organization – i.e., whether he receives and executes orders or directions." Hamlily, 616 F. Supp. 2d at 75.

That is simply a concrete, real-world standard that spells out the limits, as partially interpreted by the Supreme Court since, of the poorly-detailed, open-ended, and never-revisited Authorization for the Use of Military Force (AUMF) passed by Congress in 2001 – apparently never to be thought of again by that body, absent a preceding presidential demand for more power.

Yet, with every advantage on their side, including good will for a new administration that is attempting to redeem years of despotic, unAmerican abuses of power and the open contempt for justice of the previous administration, the overwhelming majority of the cases defending armed conflict detention pursued by the Obama DOJ, that have so far been examined by another branch of government, have been dismissed as unlawful.

The impact of those mounting decisions has finally started to penetrate the consciences of some people deep within the same DOJ that’s defending so many specious DOD claims to the right to detain, as this very remarkable semi-anonymous statement to Andrew Sullivan from a current DOJ attorney, posted October 2, 2009, attests:

As a trial attorney with the Department of Justice, I am familiar with the al-Rabiah case (however, to be clear, I am not a trial attorney who worked on the case). My opinions stated herein, of course, are not the opinions of the Department. I write for myself and myself alone.

I had a long conversation regarding the al-Rabiah case with colleagues when the decision came down. Our expertise and experiences are varied, but we all work on matters ranging from criminal matters to civil habeas cases. We are litigators, and we know what makes a case, and when a case is weak.

The conclusion drawn by each of my colleagues – some of whom are liberal Democrats, some of whom are conservative, law-and-order Republicans – is, to a person, that the detention and interrogation program the United States implemented in the months and years following 9/11 is not only a complete abrogation and violation of international law and, in many cases, federal law – it is also fundamentally immoral. We also agree that the al-Rabiah case is by far the most egregious yet to come to light. To repeat: yet to come to light. I can only guess that there are other, far worse cases.

So we have federal judges, including the Supreme Court, currently-serving attorneys in the Obama Executive Branch Department of Justice, and principled military JAG officers all repudiating the ongoing abuses of our military detention system, in the most unmistakable terms – repudiations to which this commendable statement by Air Force Reserve and Jawad military commission defense counsel JAG Major David Frakt, focusing on the 2006/2009 Military Commissions Act, is one recent exemplary contribution:

If the military commissions law is actually rewritten to make the commissions "regularly constituted courts," as required by the Geneva Conventions, then most of the same rules that apply for "you or me" would apply to detainees. This does not mean that Miranda would apply or that Fourth Amendment search and seizure rules would apply. No one has seriously argued that Miranda or the Fourth Amendment applies to non-citizens captured on a foreign battlefield, or that a warrant would be required for a search of a person or place overseas. Simply moving the detainee into federal court would not suddenly make these constitutional requirements apply retroactively to acts which occurred overseas years ago.

The main point of contention at this point between Congress and the Administration is whether statements which were obtained by coercion, which did not rise to the level of torture, should be admitted. The [Obama] Administration [DOJ Office of Legal Counsel] has proposed a voluntariness standard for admissibility. Had we complied with the Geneva Convention Common Article 3 minimum standard of humane treatment, it is likely that virtually all statements would be considered voluntary. But by direct order of President Bush and Secretary Rumsfeld, detainees were not treated humanely, so there are many statements which were obtained involuntarily. These statements are categorically unreliable because of the circumstances under which they were obtained. We have seen, for example, that Binyam Mohammed admitted to a wild assortment of crimes that he did not do while he was being tortured.

"A well-designed military commissions law" in my opinion, would essentially reproduce a general court-martial, which would provide virtually the same due process guarantees as a federal criminal court. Thus, it would not be any easier to get a conviction in a military commission than in civilian criminal court. It is this essential truth that will prevent us from getting a well-designed military commissions law.

I think that if a person is responsible for a major terrorist attack or other serious crime, then the government should be able to prove that with non-coerced evidence. There should be witnesses. There should be physical evidence. There should be circumstantial evidence.

[...]

I reject the premise that "terror detainees" deserve anything less than equal treatment. You are talking about human beings who have been locked up for years and mistreated in the most cruel ways. If they are now to be tried for crimes, then they are entitled to a presumption of innocence and a fair trial. The rights that we afford to defendants in civilian trials are what we have determined to be the minimum standards for a fair trial. No conviction will ever be considered legitimate if acquired in a court that provides anything less.

So, who’s missing, in this fight to reclaim and redeem American principles of justice (besides, of course, most journalists, with a few, shining, exceptions)?

The United States Congress.

The same Congress that is instead saying and doing the following:

Kentucky’s Hal Rogers, October 1, 2009:

I certainly think that that is where the American people stand on this issue as well. They don’t want these terrorists in their hometowns, inciting fellow prisoners in our prisons, abusing our legal system and terrorizing their communities.

[...]

But my point is these are not criminal defendants; these are enemy combatants captured on a battlefield. They are prisoners of war and should be treated as such, as they have [NOT -ed.] been at Guantanamo. Do not bring them to the U.S. for any purpose.

[...]

This motion clarifies and says they would not be brought here for any, any, purpose, including prosecution.

Now, if you have any doubts about the kind of people we are talking about, read the resumes of these detainees. Read them, and you will have no doubt that these are enemy combatants sworn to kill you and every American they can find.

The raving Hal Rogers and others of his ilk apparently have no interest in learning or considering the following facts detailed by Elizabeth Goitein, Director of the Liberty and National Security Project at the Brennan Center for Justice at NYU School of Law, in July, 2009:

[T]he Uniform Code of Military Justice, in accordance with the Third Geneva Convention, requires the U.S. to try prisoners of war using the same courts and procedures used to try our own soldiers (which are the same procedures used in Article III [Judicial Branch] courts). If those procedures are sufficient to try regular prisoners of war—who are far more likely to be captured on an actual "battlefield"—they are sufficient to try the current [DOD-ruled non-POW] detainees.

While disregarding, and discarding, even the long history and precedents of our UCMJ-compliant system of military justice, in order to segregate into an erratic, irregular, ad-hoc system, using lesser or no standards of process and treatment, the alleged foreign adversaries – almost all of the Muslim faith – of our current conflicts abroad, here’s the House of Representatives, acting via its…

FY 2010 Homeland Security Appropriations Bill (H.R. 2892), passed 389-37, and now in secret conference with the Senate:

Sec. 552. (a) As part of a plan regarding the proposed disposition of any individual who is detained, as of April 30, 2009, at Naval Station, Guantanamo Bay, Cuba [...]

(b) Section 44903(j)(2)(C) of title 49, United States Code, is amended by adding at the end the following new clause:

`(v) INCLUSION OF DETAINEES ON NO FLY LIST- The Assistant Secretary, in coordination with the Terrorist Screening Center, shall include on the No Fly List any individual who was a detainee held at the Naval Station, Guantanamo Bay, Cuba, unless the President certifies in writing to Congress that the detainee poses no threat to the United States, its citizens, or its allies. For purposes of this clause, the term `detainee’ means an individual in the custody or under the physical control of the United States as a result of armed conflict.’.

(c) None of the funds made available in this Act may be used to provide any immigration benefit (including a visa, admission into the United States, parole into the United States, or classification as a refugee or applicant for asylum) to any individual who is detained, as of April 20, 2009, at Naval Station, Guantanamo Bay, Cuba.

(d) Nothing in subsections (b) and (c) shall be construed to prohibit a detainee held at Guantanamo Bay from being brought to the United States for prosecution.

[The comments from Rep. Rogers that I quoted above were part of his effort to strike (d), so as to prevent transfer of Guantanamo inmates to the United States even for prosecution.]

And here’s the United States Senate, passing, without committee study or review, a Graham/Lieberman measure to censor from public view America’s mistreatment of its military prisoners – mistreatment usually protested and reported by honorable members of our military – acting via its…

FY 2010 Homeland Security Appropriations Bill amendment to H.R. 2892, passed 84-6, and now in secret conference with the House:

Sec. 567. (a) Detainee Photographic Records Protection-

(1) Short title- This subsection may be cited as the ‘Detainee Photographic Records Protection Act of 2009′.

(2) DEFINITIONS- In this subsection:
(A) COVERED RECORD- The term ‘covered record’ means any record–
(i) that is a photograph that–
(I) was taken during the period beginning on September 11, 2001, through January 22, 2009; and
(II) relates to the treatment of individuals engaged, captured, or detained after September 11, 2001, by the Armed Forces of the United States in operations outside of the United States; and
(ii) for which a certification by the Secretary of Defense under paragraph (3) is in effect.
(B) PHOTOGRAPH- The term ‘photograph’ encompasses all photographic images, whether originals or copies, including still photographs, negatives, digital images, films, video tapes, and motion pictures.

(3) CERTIFICATION-
(A) IN GENERAL- For any photograph described under paragraph (2)(A)(i), the Secretary of Defense shall issue a certification, if the Secretary of Defense, in consultation with the Chairman of the Joint Chiefs of Staff, determines that the disclosure of that photograph would endanger–(i) citizens of the United States; or
(ii) members of the Armed Forces or employees of the United States Government deployed outside the United States.

[...]

(4) NONDISCLOSURE OF DETAINEE RECORDS- A covered record shall not be subject to
(A) disclosure under section 552 of title 5, United States Code (commonly referred to as the Freedom of Information Act); or
(B) disclosure under any proceeding under that section.

[...]

(6) EFFECTIVE DATE- This subsection shall take effect on the date of enactment of this Act and apply to any photograph created before, on, or after that date that is a covered record.

And again the United States Senate, acting to cement in place the Bush/Bradbury 2006 Military Commissions Act, with some superficial amendments, acting via its scarcely-debated…

FY 2010 Defense Authorization Bill (S. 1391), passed 87-7, and now in secret conference with the House:

TITLE X–GENERAL PROVISIONS

Subtitle D–Military Commissions

SEC. 1031. MILITARY COMMISSIONS.

(a) In General- Chapter 47A of title 10, United States Code [the 2006 Military Commissions Act], is amended to read as follows:

[...]

Sec. 948b. Military commissions generally

`(a) Purpose- This chapter establishes procedures governing the use of military commissions to try alien unprivileged enemy belligerents for violations of the law of war and other offenses triable by military commission.

[...]

`(d) Inapplicability of Certain Provisions- (1) The following provisions of [the UCMJ] shall not apply to trial by military commission under this chapter:

`(A) Section 810 (article 10 of the Uniform Code of Military Justice), relating to speedy trial, including any rule of courts-martial relating to speedy trial.

`(B) Sections 831(a), (b), and (d) (articles 31(a), (b), and (d) of the Uniform Code of Military Justice), relating to compulsory self-incrimination.

`(C) Section 832 (article 32 of the Uniform Code of Military Justice), relating to pretrial investigation.

Compare that portion of Carl Levin’s Armed Services Committee-revised Military Commissions For Muslims system to our venerable courts-martial system under the longstanding Uniform Code of Military Justice, established by a Congress of an earlier era that still understood, respected and honored the Constitution’s separation of powers and its safeguards for basic human rights:

The Uniform Code of Military Justice:

802. ART. 2. PERSONS SUBJECT TO THIS CHAPTER

(a) The following persons are subject to this chapter:

[...]

(9) Prisoners of war in custody of the armed forces.

(10) In time of war, persons serving with or accompanying an armed force in the field.

[...]

805. ART. 5. TERRITORIAL APPLICABILITY OF THIS CHAPTER

This chapter applies in all places.

[...]

810. ART. 10. RESTRAINT OF PERSONS CHARGED WITH OFFENSES

[...] When any person subject to this chapter is placed in arrest or confinement prior to trial, immediate steps shall be taken to inform him of the specific wrong of which he is accused and to try him or to dismiss the charges and release him.

[...]

813. ART. 13 PUNISHMENT PROHIBITED BEFORE TRIAL

No person, while being held for trial, may be subjected to punishment or penalty other than arrest or confinement upon the charges pending against him, nor shall the arrest or confinement imposed upon him be any more rigorous than the circumstances required to insure his presence, but he may be subjected to minor punishment during that period for infractions of discipline.

[...]

831. ART. 31. COMPULSORY SELF-INCRIMINATION PROHIBITED

(a) No person subject to this chapter may compel any person to incriminate himself or to answer any questions the answer to which may tend to incriminate him.

(b) No person subject to this chapter may interrogate, or request any statement from an accused or a person suspected of an offense without first informing him of the nature of the accusation and advising him that he does not have to make any statement regarding the offense of which he is accused or suspected and that any statement made by him may be used as evidence against him in a trial by court-martial.

(c) No person subject to this chapter may compel any person to make a statement or produce evidence before any military tribunal if the statement or evidence in not material to the issue and may tend to degrade him.

(d) No statement obtained from any person in violation of this article, or through the use of coercion, unlawful influence, or unlawful inducement may be received in evidence against him in a trial by court-martial.

832. ART. 32. INVESTIGATION

(a) No charge or specification may be referred to a general court-martial for trial until a through and impartial investigation of all the matters set forth therein has been made. This investigation shall include inquiry as to the truth of the matter set forth in the charges, consideration of the form of charges, and recommendation as to the disposition which should be made of the case in the interest of justice and discipline.

(b) The accused shall be advised of the charges against him and of his right to be represented at that investigation as provided in section 838 of this title (article 38) and in regulations prescribed under that section. At that investigation full opportunity shall be given to the accused to cross-examine witnesses against him if they are available and to present anything he may desire in his own behalf, either in defense or mitigation, and the investigation officer shall examine available witnesses requested by the accused. If the charges are forwarded after the investigation, they shall be accompanied by a statement of the substance of the testimony taken on both sides and a copy thereof shall be given to the accused.

(c) If an investigation of the subject matter of an offense has been conducted before the accused is charged with the offense, and if the accused was present at the investigation and afforded the opportunities for representation, cross-examination, and presentation prescribed in subsection (b), no further investigation of that charge is necessary under this article unless it is demanded by the accused after he is informed of the charge. A demand for further investigation entitles the accused to recall witnesses for further cross-examination and to offer any new evidence in his own behalf.

A UCMJ-guided military justice system that’s good enough for us, but too good for "them."

Turning again to Judge Kollar-Kotelly’s utterly damning narrative about the treatment and experiences of Fouad Al Rabiah in American military custody, after the Americans received him from an Afghan warlord – a road map by the judge describing apparently-despotic American wrongdoing, even with redactions throughout its length that cover up the most-damning details of names, dates and specifics – this is what our Congress has been, and still is, countenancing in our names, and is now quietly, but vehemently, refusing to publicly investigate:

[Al Rabiah] maintained his confessions over time because "the interrogators would continue to abuse me anytime I attempted to repudiate any of these false allegations." Ex. 175, Paragraph 13.

[...]

The record also supports Al Rabiah’s claims that he was punished for recanting.

[...]

These threats were also reinforced by placing Al Rabiah into the frequent flier program, an interrogation "technique" that, as already noted, violated the Army Field Manual and the 1949 Geneva Convention Relative to the Treatment of Prisoners of War.

[...]

As explained in the Army Field Manual, these "prohibited techniques [are] not necessary to gain the cooperation of interrogation sources." Ex. 101 at 1-8 (FM 34-52 Army Field Manual). In fact, 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." Id. (emphasis added).

[..]

In combination with this experience, there is substantial evidence in the record that Al Rabiah was led to believe that he needed to confess something in order to be eligible to be returned to Kuwait.

[...]

Significantly, the interrogators never believed these confessions, observing that they contained "inconsistencies" and "vast holes," and expressly concluding that Al Rabiah was creating a "tale" to "please interrogators." Ultimately, his interrogators grew increasingly frustrated with the inconsistencies and implausibilities associated with his confessions and began threatening him with rendition and torture, and decided to place him in the frequent flier program. These tactics violated both the Army Field Manual and the 1949 Geneva Convention Relative to the Treatment of Prisoners of War, but they did not produce any additional confessions.

It is long past time for America’s federal legislators to start behaving like Americans, to catch up with the decent people of this nation, including, thankfully, some small number of their own colleagues, such as Rep. Jose Serrano of New York, also speaking on the House floor October 1, 2009:

On every appropriations bill that we see come before the full committee, there was this notion that we couldn’t bring folks from Guantanamo here to be prosecuted. Now, I know how dangerous some of these folks may be. I know how dangerous some of these folks are. I was in New York in my city on September 11. [...]

I was there. I saw the pain. I know that they killed a lot of people, but they didn’t defeat us. Let’s be clear about that. They killed a lot of Americans, but they didn’t defeat us, and they will never defeat us unless we begin to run away from who we are as a people and as a Nation. Unless we begin to throw away and turn our back on the Constitution, on what makes us a unique country, then they have a chance to win.

[...] Why would we want to bring them here? Because we are the United States of America. Because we are a great democracy that is not afraid to bring people to justice when they deserve to come to justice. Because we [should...] have nothing to hide.

[...] Why not let the world know in the middle of our pain, in the midst of all of our anguish over September 11, we are big enough and democratic enough to bring people to trial here within our territory.