The Cover-Up Continues

*Cross-posted from The Huffington Post

The United States this week released the transcript of the military hearing for self-proclaimed 9/11 mastermind Khalid Shaikh Mohammed. Initial accounts in the New York Times and Washington Post described the “confession of a top leader” and detailed Mr. Mohammed’s participation in a laundry list of terrorist plots. Yet, the confession of Mr. Mohammed (or “KSM” as he is better known) comes as no surprise. He has long claimed a leadership role in al Qaeda and in the 9/11 attacks, as the 9/11 Commission documented. The real story is not what KSM said but how much the administration is fighting to keep secret.

Although he has been in U.S. custody for four years, KSM is one of Guantánamo’s newest detainees. In September 2006, he and thirteen, other “high-value” terrorist suspects were transferred from secret CIA prisons or “black sites” to Guantánamo. These CIA prisons were established to implement various “enhanced interrogation techniques,” the post-9/11 euphemism for torture, and to preclude any possibility that a court would review the actions of Executive branch officials. As Ron Suskind recounts in The One Percent Doctrine, interrogators subjected to KSM to water-boarding, a technique that simulates drowning, and threatened to rape and kill his family. Other “enhanced interrogation techniques” included “cold cell,” where prisoners are left to stand naked in a cell kept near 50 degrees while they are doused with cold water, and “long time standing,” where prisoners are forced to stand, handcuffed and with their feet shackled to an eye bolt in the floor for more than 40 hours.

The transfer of the 14 “high level” suspects to Guantánamo was prompted by the Supreme Court’s June 2006 decision in Hamdan v. Rumsfeld. Until Hamdan, the administration maintained that detainees were all “unlawful combatants” in a global “war on terror,” and thus fell outside any legal protections. In Hamdan, the Supreme Court rejected that position, ruling that al Qaeda members and other that suspected terrorists are protected at least by Common Article 3 of the 1949 Geneva Conventions. This provision establishes a baseline of protections for all detainees, prohibiting torture, cruel treatment and other abuse. And, the federal War Crimes Act made officials criminally liable for breaches of Common Article 3. Faced with a rejection of the legal building-block of its CIA “black sites,” as well as the potential liability of government interrogators, the President announced in a televised speech to the Nation that he was transferring the remaining secret prisoners to Guantánamo. He then engineered passage of the Military Commissions Act of 2006, which amended the War Crimes Act to help shield CIA and other officials from prosecution for past abuses while stripping the federal courts of habeas review over the cases of detainees held as “enemy combatants” at Guantánamo and elsewhere.

Since then, secrecy has dominated the treatment of KSM and the other ex-ghost detainees, just as it has pervaded the detention of the more than 700 hundred other individuals held at Guantánamo since January 2002.

To begin with, the Combatant Status Review Tribunal hearings (or “CSRTs”) of these detainees are closed to the press. Ironically, the military permitted the press to attend the CSRT hearings for Guantánamo detainees in the past. One would have expected the military to want the hearings of the “biggest fish” at Guantánamo to be open to the public to demonstrate the strength of its evidence. And, it is precisely in such cases, that the public’s interest to know is strongest. But, apparently, that calculus is different when evidence has been gained through torture.

In any event, opening KSM’s CSRT to the press would not have solved the problems of excessive secrecy nor of the kangaroo-court nature of the CSRTs themselves where detainees have no lawyer or right to see the evidence against them. KSM’s transcript is heavily redacted because his descriptions of torture and mistreatment were all deemed classified. The publicly available record thus contains no discussion of water-boarding, death threats, or other coercion.

This type of excessive secrecy is hardly unique. In another case, the government has sought to bar the detainee (Majid Khan) from discussing his interrogation at a CIA prisons with his own lawyer. Merely talking about torture, the government’s argument goes, jeopardizes national security (even though the government’s use of coercive interrogation tactics is no longer a secret). Avoiding embarrassment by suppressing discussion and debate about past illegality contradicts the essential principles of openness and accountability upon which a democracy depends.

Yet, there is another, more pernicious consequence to suppressing the truth. KSM explained at his CSRT hearing that he falsely implicated other detainees as a result of his abuse. These statements are corroborated by those of CIA officials who, according to Suskind, say that KSM later recanted prior statements made under duress. Notably, Mohammad al Qahtani, a Guantánamo detainee subjected to prolonged sleep deprivation, sexual and religious abuse, the use of painful stress positions, and other abuses reportedly implicated 30 other detainees during his interrogations. How many detainees are being held based upon statements made by KSM, al Qahtani, and others that were obtained by torture? If the administration has its way, we will never know because CSRT procedures deny detainees the right to see the evidence, call witnesses, or otherwise demonstrate they are being wrongly held based upon information gained by the rack and the screw.

Reliance upon evidence gained by torture violates our most basic principles. As the Supreme Court put it, imprisoning people based upon coerced statements is “offensive to a civilized system of justice.” It is also inherently unreliable because we know from centuries of experience stretching back to the middle ages that prisoners make false statements to avoid extreme physical or mental pain. Indeed, that is precisely why U.S. army guidelines – ignored by this administration – prohibit coercive interrogation techniques, explaining that such techniques “induce the source to say whatever he thinks the interrogator wants to hear.”

Clearly, the American public cannot expect the administration to come clean about who it is detaining and why. That is precisely the reason federal courts must retain their historic power to inquire into the facts through the Great Writ of habeas corpus. Later this month, the U.S. Supreme Court will decide whether to review a recent decision by a federal appeals court [pdf] in Washington, D.C. upholding the recent elimination of habeas corpus for Guantánamo detainees. Unless these court-stripping provisions are invalidated, and habeas corpus is preserved, America will for the first time have sanctioned imprisonment based upon torture. No nation committed to human rights and the rule of law can accept that result.

Jonathan Hafetz: “The Cover-Up Continues” (PDF)