Ramzi bin al-Shibh’s Lawyers Can’t Know about the Torture that Drove Him Crazy
bmaz and I have both covered the government’s Kafkaesque refusal to give Abu Zubaydah–who reportedly has very serious memory issues–his own diary back, thereby making it impossible for him to catalog just what was done to him by James Mitchell’s torturers.
Well, from a Gitmo judge’s ruling last week, it appears there’s a concerted effort to prevent defense attorneys from learning what happened to their clients while being interrogated. (h/t fatster)
Bin al Shibh, 37, is one of five men charged in a complex death penalty prosecution by military commission currently under review by the Obama administration. He allegedly helped organize the Hamburg, Germany, cell of the Sept. 11, 2001, hijackers before the suicide mission that killed 2,974 people in New York, the Pentagon and Pennsylvania.
But his lawyers say he suffers a "delusional disorder,” and hallucinations in his cell at Guantánamo may leave him neither sane enough to act as his own attorney nor to stand trial. Prison camp doctors treat him with psychotropic drugs.
Army Col. Stephen Henley, the military judge on the case, has scheduled a competency hearing for mid-September.
Meantime, the judge ruled on Aug. 6 that "evidence of specific techniques employed by various governmental agencies to interrogate the accused is . . . not essential to a fair resolution of the incompetence determination hearing in this case.” The Miami Herald obtained a copy of the ruling Monday.
According to the Red Cross, bin al-Shibh was exposed to water dousing, stress positions, food deprivation, and forced shaving. For the entire month of February 2005, he was "restrained on a bed, unable to move … and subjected to cold air conditioning." Of course, that also suggests that his intense interrogation lasted much longer than it did for Abu Zubaydah and Khalid Sheikh Mohammed (per the same Red Cross report), since that means he was subjected to intense treatment more than two years after he was captured.
But we (and more importantly, bin al-Shibh’s lawyers) can’t have the details of that treatment because if they learned why he was mentally unfit to stand trial, then it might make it clear that it was torture. And if it did, then bin al-Shibh wouldn’t be the only one standing trial.
Remind me, the appeals path from a Gitmo mil commish is… what, again?
Obama and Holder are gradually being ensnared by a spider’s web through which the opportunity to escape, if any, is rapidly closing. Do they realize the peril they are in? Or, the cynical will say, did they buy into the peril already so that they are now part of the problem?
Part of what comes to mind is Pelosi’s taking impeachment ”off the table” because they had oh, so much more important things to deal with. IMHO Pelosi will long be remembered for taking impeachment off the table, long after everything else about her will have been forgotten. Will Obama’s legacy be something similar?
Bob in HI
I’m glad to see Digby in lieu of Greenwald [http://www.salon.com/opinion/greenwald/2009/08/10/torture/index.html] pushing a point that I made here in the comments several days ago when the LATimes article hit the streets:
How can you exonerate someone from prosecution for complying with guidelines they didn’t know existed? Especially if the activity you are engaged in is otherwise known to be illegal in the first case?
So will Holder restrict the investigation to those who knew about the [improper] OLC guidelines, but did not follow them?
I would think that he’d have to be prepared for a substantial amount of ridicule, if he tries to do that.
Bob in HI
I should have added that the entire Digby column in lieu of Greenwald is well worth the read. This ranks with one of Digby’s best, IMHO.
And thanks, Mary, for your comment elucidating the issues involved.
Bob in HI
I wonder whether you might have the logic inverted on that analysis. I read the Holder/Obama position to say “We will read the OLC opinions as permission slips allowing a range of things that any professional in those black arts would necessarily know are ordinarily way, way out of bounds.” So the default is liability for any of those acts, and the opinions create a safe harbor (plus probably some penumbra at the edges, though they claim to want to limit to the “four corners”). So knowledge or not of the opinions afore the deed wouldn’t enter into the liability question. Or the charging decision.
Well, yeah; but perhaps the even more salient corollary is “how do you prosecute someone for exceeding guidelines they didn’t know existed (and under the circumstances, couldn’t know because the guidelines were classified and compartmentalized)?
Because the act was illegal in the first place?
Of course, I could imagine a situation where the torturers unwisely relied on oral assurances rather than the actual text of the OLC opinions.
I understand, but that is not what they are saying. They are saying that all the torture was legal except that which exceeded these secret guidelines. The Holder plan contemplates making the distinction between those that have committed crimes and those who have not based upon guidelines that neither set of people were aware, nor could have been aware of, at the time of the alleged offenses. That is the problem with this just freaking brilliant plan.
what about International guidelines not the ones Yoo etc rewrote
how can “I did not know” what the guidelines were….fly
They must’ve concocted the “freaking brilliant plan” while at the Mad Hatter’s Tea Party.
OT: 3D Tim Burton version of Alice in Wonderland out soon. Should be good…
Good news! DId you see the one with Martin Short?
Nope.
http://www.youtube.com/watch?v=8vwi9Yn2aF4
Better Tim Burton than Tim Tebow….
Well, Tebow wouldn’t be able to bring in the appropriate PhRMA sponsorship…
And just in time, too.
So then, have we come to this: That people will be put on trial for not complying with a secret law that they didn’t know about? Now, that would set a lovely precedent, but I can’t believe that even a Roberts court would validate it.
Bob in HI
I think I understand you now. Thanks. The problem is that you could have one guy coloring outside the lines on a vague or erroneous oral OK, vs. another guy staying inside the 4 corners because he’s seen the memo, and have both thinking they were in the clear — but now investigate only one of them. That makes sense from a mens rea perspective.
Though as I said, under the circumstances it sure seems like reliance on an oral OK would have been exceedingly unwise. And frankly anything that gives a pass to guys who should have known better but were inside Dick’s network and operating an a personal oral OK passed down from the top does not sit well with me. Laws not men, etc.
Wasn’t there a law passed specifically to immunize some people from prosecutions?
I guess you have to say “Oops” and let ‘em get back to work.
I thikn I provided a pretty good explanation for it.
There was a description of waterboarding from JPRA that was more extreme than what made it in the Bybee Memo.
Mitchell almost certainly knew of THAT–if he or Jessen didn’t write it.
So if he knew of that, which was submitted to Yoo during the drafting of the memo, but not given the memo, and told that the memo approved waterboarding, then you have Mitchell with a paper in hand saying “use gallons and gallons” and no paper in hand saying “only use a teacup.”
And then you also have the overlay of the OLC supposedly only providing atty-client types of advice (as opposed to published opinions standing as DOJ interpretations of law and regs) to members of gov – with Mitchell being a contractor. So if he did have a copy of the Yoo OLC memo, how did he get it and it sure wasn’t issued to “him” and under OLC standards it wasn’t allowed to be issued for reliance on by non-gov.
By and large the reliance memos are only issued to Rizzo, but in his capacity as Gen Counsel for CIA. So you have to figure he’s the guy in the crosshairs on what was further communicated and to whom and how. You have to kind of assume that he’s not sending out copies of memos to the same kinds of operatives who left their computers and other calling cards all across Europe. The logistics of how they got delivery is a pretty interesting topic in and of itself.
And if you had the psych contractors not just evaluating people for their capacity to be tortured *without damage* but also actually informing the CIA interrogators what were the limits, or lack there of, on what was authorized, that takes you to pretty interesting places too.
Back on Bin al-Shibh, though, you have to wonder how much is that they just don’t want anything said (like in other cases) or in his case in particular (and you know I obsess a bit on this, so I may be making mountains out of something that isn’t even a molehill) how much they just don’t want the topic of KSM’s kids who were supposedly taken at the same time to come up. Bin al Shibh and Majid Khan, both of whom touch in some way on KSM’s chldren in their overall tales, seem to be two that they try hardest to stifle and to even prevent their lawyers having access to info on interrogations.
@24 – surely you remember this not-so-oldie, not-so-goodie
http://www.washingtonmonthly.c…..007745.php
Jeebus, where the heck did you find that? If I saw that back then, I sure forgot about it. That is a real gem. Holy shit.
Well, yes, that is basically their position judge. You have to understand how hard everything was after 9/11…..
Just shoot me.
It was pretty weird stuff. All involving something pretty mundane and petty – like having to present ID somewhere, but the guy they pushed on was like a mega-millionaire or billionaire and damned if he was going to fork over without someone telling him what law they were requiring it under.
I never can remember the names so each time I google for it I get a different link, but let’s say it made an impression on me. It also made an impression on me that it got almost no coverage – that DOJ was arguing in court it should be able to inflict criminal consequences on someone over a secret law. One they could show the judge, but then they’d have to shoot him. Or something like that.
@38 – Good for you for asking. That’s what we can control – that we ask.
It’s a tough economy, but I see Kafka and Lenin still have work. In Belarus a large statue of Lenin fell over…on top of a man and killed him.
We need to resolve these crazy issues from the recent past, so we can get past all the crazy surrealism of the Bushies.
You know I asked Senator Casey’s top aide that exact same question, about the exact whereabouts of those precious,vulnerable innocent children several months ago.
I’m just guessing she lost my e-mail address,right?
The DOD knows how to spend money.
The CIA knows how to keep secrets.
The DOJ knows how to uh, do something or other.
What is happening with Bin al Shibh is basically what happened in a US court to Padilla. If you determine (and Obama apparently hasn’t, even though Chertoff apparently did) that you can’t “clean team” torture confessions, how do you clean up trial participation by a torture victim still being held by his torturers, with those torturers having closed door, complete control over what is done to him. Crazy or not, how do you have a fair trial of a torture victim who is being kept during the trial in the hands of their torturers?
@3 – this was one of the things I mentioned when the reliance opinions were first released. Then, there wasn’t any printed released indicating that the torturers didn’t have copies of or access to the opinions, but common sense dictated that it was likely they didn’t. And if they didn’t, they couldn’t claim reliance. Ditto for all the preliminaries and things done that are not covered by the memos. Not so much “exceeding” as not discussed by the memos. Rendition to a US court v rendition to a torture site, anal assaults, involuntary drugging, human experimentation in long term learned helplessness expeirments, threats to life and family members, etc.
Reliance memos need specific facts (only some of which are provided) and delivery to the client seeking reliance. There are some big failures all around.
This is a widespread problem with the prisoners at Guantanamo and elsewhere. Apparently, when the Hamdan decision came and the military commissions were set up, teams of FBI went to prisoners who were going to be tried by military commission to do their ‘rapport building’ interviews, ostensibly to ‘fill in the record’ of their prior statements, but also to generate non-torture acquired information for the trials (which the prisoners were not informed was the purpose). Unspoken in all of it is whether someone who has been ‘broken’ and knows they have given up damaging information already can tell that they need not give it up in one of these ‘follow ups’. They do have the right against self-incrimination under Article 75, clause 4(f) of the 1st 1977 Additional Protocol, which is regarded as the customary IHL interpretation of their rights under common Article 3.
Worse yet, when is it true that torture or CIDT has stopped, no matter how rapport building and sweet the interrogation is? The court records that I have been able to obtain so far (I am waiting for more) in the Aafia Siddiqui case shows that she was “interviewed” by the FBI at Craig Field Hospital at Bagram every day from July 19, 2008 to August 3rd. She was shot on July 18th and removed to the hospital from Ghazni on the 18th, and she was shipped to the U.S. when she was felt healthy enough by the doctors to be transported. So she was interrogated in the hospital, even on the day after being shot and having part of her intestines removed during the subsequent operation, by people affiliated with those who shot her (unprovoked according to her version of the events). Meanwhile, the Afghan NDS (intelligence service) were holding her 11 year old son in prison in violation of international and national law. Court records show she refused food and behaved in a depressed manner in Brooklyn over worries about her children, her son’s safety wasn’t really assured from her point of view until September 15th. Oh, and she was read her Miranda rights on August 4th in a Manhattan courtroom.
Question: Was she being interrogated under threats and in hostile conditions by people who had tried to kill her previously, or was she being given a ‘clean’ interview, albeit knowingly in advance of any Miranda rights, and with full denial of her rights to consular access?
So, the judge says the techniques are irrelevant to whether he’s competent to stand trial. Of course that’s true on the narrow point, but would his incompentence be material to questions of whether torture occurred?
[gotta love those lawyeresque calculations!]
Of course, in the alternative Yooniverse there’s no problemo, since causing a severe mental breakdown isn’tn, y’know, the same as organ failure.
18 USC 2340 says:
2C satisfys the violation of the law all by itself.
Waterboarding constitutes the threat of imminent death. Even Bybee knew that.
“For the entire month of February 2005, he was “restrained on a bed, unable to move … and subjected to cold air conditioning.”
The whole world is watching
Why can’t Tom Coburn at least admit that the United States tortures well.
Tom Coburn thinks the United States cannot do anything well, including fighting wars.
If you are from Oklahoma, PLEASE watch this clip and read this post.
http://progressnotcongress.org/?p=2480
(My Bold)
I hope you take no offense EW, but using the word “trial” lends credence to something that doesn’t come close to deserving it.
This purported “trial” is none other than a Military Commission whose kangaroo court rules of evidence were concocted by the Bush/Cheney regime, duly rubber-stamped by their co-conspirators in the then Repug-lead Congress and now, gaining new life under the Obama Administration as a means to convict people that they dare not prosecute in a real Article III court “trial”.
The result might not be so different in an Article III court.
The diary is not germane to his current competence to stand trial. Nor is how he arrived at his current state. The only issue (and it is a narrow one) is whether he can aid in his own defense. By remembering that he created diary entries, he helps satisfy the burden of the prosecution – not aiding his defense (if he truly is seeking to be declared incompetent).
This is little more than a transparent ruse on the part of defense counsel to obtain by any means evidence which they intend to use for other purposes. The fact that the evidence would “shock the conscience”, demonstrate illegal and immoral acts on behalf of agents of the government has little or nothing to do with the issue of competency and will properly be denied.
If not kangaroo, at least wallaby court.
Can you imagine the situation if the tables were turned and some other country was doing this to an American citizen?
Meantime, the judge ruled on Aug. 6 that “evidence of specific techniques employed by various governmental agencies to interrogate the accused is . . . not essential to a fair resolution of the incompetence determination hearing in this case.” The Miami Herald obtained a copy of the ruling Monday.
——————————-
The discussion about CIA programs: ARTICHOKE, BLUEBIRD, MKULTRA, and MKSEARCH is vital to the above. They are precursors to mind control programs used today.
These “programs” have been used to create Manchurian candidates or in this case, possibly or even likely, Manchurian prisoners.
The psychiatrists and psychologists have been able to create amnesia, new identities, hypnotic access codes, and new memories in their subjects.
According to 15,000 pages of documents from the CIA obtained through the Freedom of Information Act, Colin A. Ross, MD, author of CIA Doctors Human Rights Violations By American Psychiatrists gives us the vital history for today’s question:
Who is controlling this prisoners mind?
so I gather “competent to assist in his own defense” is not an applicable legal standard here?
Hey what happened to Spain pushing and investigation and accountability for the Bush administration’s torture program?
by the way, what’s the point of interrogating (much less torturing) a guy on psychotropic drugs? Even the Inquisition recognized the futility of torturing a mad man.
so that cheney and team could get what they needed.. some more false information
If Holder does not really believe that “no one is above the law”
http://www.alternet.org/blogs/…..ill_obama/
by the way, what’s the point of interrogating (much less torturing) a guy on psychotropic drugs? Even the Inquisition recognized the futility of torturing a mad man.
You’re assuming that the torture was aimed at uncovering information. Torturers don’t really care about getting information from their victims. They get a sadistic pleasure in reducing their victims to quivering jellyfish who will be submissive to their every wish. To a torturer, gathering information has nothing to do with his torturing his victim. The goal of the torture is two-fold: pleasure for the torturer and abject helplessness for the tortured.
“You’re assuming that the torture was aimed at uncovering information.”
——————————-
So sad.
Nothing to uncover.
However, torture plus information plus more torture
or
Trauma – Information – Trauma
can lead to that information being embedded
into a brain that is forced to dissociate.
And those with the “keys” can call that forth.
Sickening.
…and next, as in those confined to the torture chambers helplessly listening to the screams from the infliction of brutal pain and unanswered pleas for mercy, in some foreign language, never know how or why the professional torturers will chose their next delicious victim from the many available. This whole sickening garbage has me sick, thinking the train has left the station and their ain’t no turning back in our lifetime.
This whole sickening garbage has me sick, thinking the train has left the station and their ain’t no turning back in our lifetime.
————————-
Well, we are standing at the station
cameras in hand
and the engineer and conductor are disconcerted.
Buck up.
If the torture ended in murder was that legal?
On related news, did we comment yet on this?
Obama Admin. Asks High Court to Hear Torture Photo Case
By The Public Record, Aug 7th, 2009
Bob in HI
Keep on this, MW. Keep on it.
My struggle is with ANY legal rationale AG Holder may have that allows him to selectively prosecute some fractional demographic of torturers, yet not all of them, and most certainly none of those who promoted/formulated torture policy, given the clarity of international law and treaties to which the US is a signatory. Given the old ticking time bomb scenario argument, there seems to be ample room in the law for extenuating circumstances in truly exigent cases. Try them all, I say. Let the chips fall where they may.
And where is the American Bar on this? Are they weighing in, but just nowhere anyone can see? Seems like what the Bar was made for.
Kinda with you there. What does mens rea mean once the land of laws has been left behind? Voluntarily walking into a world beyond law means accepting the possibility of later facing responsibility for it. Why mince?
i think the Army judge, Army Col. Stephen Henley, should schedule a competency hearing for himself.
Let’s talk about tasers
by Digby
TUESDAY AUG. 11, 2009 18:11 EDT
Editor’s note: Glenn Greenwald is on vacation this week. Digby is guest-blogging today.
“Like Glenn, I write a lot about civil liberties, which have been at the heart of the national conversation since the beginning of the War On Terror and the expansion of the national security state. But my interest in civil liberties predates 9/11 and until then was usually pointed at the far more prosaic issues of police and prosecutorial misconduct (and the inevitable conclusions any study of those things brings to the issue of the death penalty). Nowadays, the theme of civil liberties seem to be a sub-plot to a James Bond flick rather than “To Kill A Mockingbird.” And yet, I think the two are intertwined much more closely that we think. In our apparent acceptance of torture as a legal method of interrogation, the bar of civilized official behavior has been lowered to the point where we are accepting torture in everyday life as if it’s nothing. Indeed, we are using it as a form of entertainment.
“I’m speaking of the ever more common use of the Taser, an electrical device used by police and other authorities to drop its victims to the ground and coerce instant compliance. The videos of various incidents make the rounds on the internet and you can see by the comments at the YouTube site that a large number of Americans find tasering to be a sort of slapstick comedy, the equivalent of someone slipping on a banana peel, with a touch of that authoritarian cruelty that always seems to amuse a certain kind of person. “Don’t tase me bro” is a national catch phrase.
“Tasers aren’t benign however. They kill people.”
http://www.salon.com/opinion/g…..11/tasers/
The use of a taser on a college journalism student asking John Kerry tough questions is the exact picture of where our country is today.
ew quoted a judge:
See, there is a big need for health care reform! I’ll bet his insurance company denied him proper care, so they messed him up.
Also possible is that he had too much knowledge about 9/11 and had to be shut up.
They probably had him take meetings with health care lobbyists for weeks on end. That would be enough to drive anybody nuts.
Thanks! I was being snarky, but this is helpful and I appreciate it.
And the fact that John Kerry decided it was wise not to intervene in police affairs is all I needed to know.
since I am nal, I have a question for those who are;
I was always under the assumption that;
1) the government can refuse even legal requests for information, however if they do
2) when they do the plaintif is given all benefit of doubt and all claims are assumed true
so, I guess that assumption was wrong?
Refusing requests for information is a problem depending on who asked for it. If the other party in the lawsuit asks for it, you are under no obligation (generally) to turn it over. Exceptions apply in criminal law if it tends to prove innocence, etc. If the court asks you to turn it over, in a civil case (such as a discovery request), you may or may not be in big trouble if you defy the order, depending on the judge, and depending on the “probative nature” of the evidence. If it proves you have lied to the court, judges will look at you very harshly from then on, and some old school types will send you to the bar for sanctions (i.e. a fine). There is an entire doctrine on the “spoilation of evidence” where you have caused evidence to go missing or be falsely presented, where the result is the presumptions against the lier of the despoiler. However, the diary in question is not evidence of competence, nor is it probative on the question of competence. Only testimony of medical and mental health professionals as to the CURRENT status of the defendent is really part of the question before the court.
But only a kangaroo court would accept the government’s denial of the defendant’s own diary at trial, and the government is going down a very hard road with this. If Kangaroo does let them have their way, there is no way the conviction (if any) stands on appeal.
Thankfully, there is no equivalent to the Anti-terrorism and Effective Death Penalty Act. While the government can rush you through the process to execute you, you have no way to accelerate the process of appeals, even once you have been ordered to be released (This paragraph is written in SarcasticFont(tm)).
If we were to apply the geneva conventions in the way they had always been applied in the past; how many soldiers, how many administrators broke the law and committed war crimes? I mean, we would have to guess but it seems that this could be a pretty big number…those who participated or knew…how many people are we talking about do you think? What would the list look like at the top theorizing from what we know?
I guess I am wanting to get a big picture of the “audacity” of “sadistic where in the hell is the freakin’ hope”.