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Mohamedou Ould Slahi’s Gitmo Memoir: A Slow Death

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Slate has a remarkable three part excerpt from the memoir of Mouhamedou Ould Slahi, a Mauritanian Gitmo detainee subjected to some of the worst torture. The intro, by Larry Siems, is here. (Some posts on his still-ongoing habeas fight are here, here, and here.) The whole thing reflects a remarkable, chilling, understanding of the Americans who kept him captive, even as he succumbs to his torture and starts lying to make the torture stop.

Reading the memoir, even as over a hundred detainees continue their hunger strike, I’m struck by the repeated theme of slow death, both in what Americans say to him, and in how he processes his own torture.

In Slahi’s story of Bagram, he tells of a “cowboy,” believing he doesn’t speak English, wishing he’ll die slowly.

Now I am sitting in front of a bunch of dead-regular U.S. citizens; my first impression, when I saw them chewing without a break: “What’s wrong with these guys, do they have to eat so much?” Most of the guards are tall, and overweight. Some of them were friendly and some very hostile. Whenever I realized that a guard [was hostile], I pretended that I understood no English. I remember one cowboy coming to me with an ugly frown on his face.

“You speak English?” he asked.

“No English,” I replied.

“We don’t like you to speak English, we want you to die slowly,” he said.

“No English,” I kept replying. I didn’t want to give him the satisfaction that his message arrived. People with hatred have always something to get off their chests, but I wasn’t ready to be that drain.

Slahi thinks about slow death as he recounts the fake rendition staged with Donald Rumsfeld’s authorization, in which a Jordanian and Egyptian took Slahi on a boat trip to make him think he might be rendered to Egypt. After hours a beating, they wrapped him in ice.

The order went as follows: They stuffed the air between my clothes and me with ice cubes from my neck to my ankles, and whenever the ice melted they put in new hard ice cubes. Read more →

A Grammar Lesson: Obama’s Executive Order on Indefinite Detention

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I hate to be pedantic, but a number of people are misreading Obama’s Executive Order on indefinite detention, with the result that they present the order as much less troublesome than it actually is. Here’s one example, from Ken Gude:

There is now a clearly articulated standard for continued detention; gone is the so-called intelligence justification for detention. A detainee must be lawfully held under the laws of war, must have had that detention upheld by a federal court in a habeas proceeding, and [sic] considered a “significant threat to the security of the United States” to be ordered held by the PRB. And for the first time, the PRB is specifically ordered to consider the reliability of all information it receives.

Here’s another one, from the WaPo:

The executive order recognizes the reality that some Guantanamo Bay detainees will remain in U.S. custody for many years, if not for life. The new system allows them the prospect of successfully arguing in the future that they should be released because they do not pose a threat.

Both of these reports suggest the standard for continued detention is whether or not the detainee, himself, poses a threat.

Here’s the actual language of Obama’s EO:

Sec. 2. Standard for Continued Detention. Continued law of war detention is warranted for a detainee subject to the periodic review in section 3 of this order if it is necessary to protect against a significant threat to the security of the United States.

The subject of the sentence is not “the detainee” but “continued law of war detention.” “Continued law of war detention” is also the subject of the clause that the Administration is cynically claiming is a great standard that will be measured in Periodic Review Boards. Thus, the standard is not–as Gude and the WaPo suggest–that the detainee himself is a significant threat to the US. Rather, the standard is whether or not his detention is necessary to protect against a significant threat.

You need to look no further than the Yemeni detainees–whom the detainee review board has determined are not themselves a threat, but whom we continue to detain because conditions in Yemen make it impossible to release them without exacerbating the threat to the US there–to understand the difference. Now, the Administration has been pretty squirrely about whether this EO applies to the Yemeni detainees. But the EO says it applies to those whom the interagency review “designated for continued law of war detention.” And the Gitmo Task Force determined the Yemenis were designated for “conditional” detention (authorized by the law of war), because,

Al-Qaeda was gaining strongholds in certain regions of the country, and the government of Yemen was facing a rebellion in other regions. Potential options for rehabilitation programs and other security measures were carefully considered throughout the course of the review, but conditions in Yemen remained a primary concern.

Taking into account the current intelligence regarding conditions in Yemen, and the individual backgrounds of each detainee, the review participants unanimously approved 36 of 97 Yemeni detainees for transfer subject to appropriate security measures. The decision to approve these detainees for transfer, however, did not require immediate implementation. Rather, by making each transfer decision contingent on the implementation of appropriate security measures, the review participants allowed for necessary flexibility in the timing of the transfers. Under these transfer decisions, detainees would be returned to Yemen only at a time, and only under conditions, deemed appropriate from a security perspective.

In short, these men are not themselves a threat, but conditions in Yemen make it impossible to release them in such a way as to make sure they don’t become one.

Whether or not the Administration intends to give Periodic Review Boards to the Yemenis, this standard would permit their continued detention even if they themselves are no threat.

But the importance of the grammar of Obama’s so-called standard extends beyond its implication for the Yemenis. By not tying the standard to the terms of the AUMF, to membership in al Qaeda, or to capture on the battlefield, the EO’s standard for review would allow the continued detention of financiers of al Qaeda, people not picked up on a battlefield, men who were members of Hezb-e-Islami Gulbuddin but not al Qaeda, highly trained mujahadeen who may never have targeted the US, or people with a “history of associations with extremist activity” (all of whom were designated for indefinite detention by the task force). In other words, the EO defines itself not by the terms which the law of war would use to define those appropriately detained, but by terms we’ve expanded to include other people we just consider scary.

And those people–the people we think are scary but who have not necessarily targeted the US militarily–would not be invited to prove that they had never targeted the US, but instead they would have to prove that the government basis for considering them scary had no merit. I can imagine an old mujahadeen talking about working with the US to oust the Russians from Afghanistan to show that he didn’t oppose the US, only to have the government respond, “right, but that means you’re so well trained that your release represents a significant threat to the US.” The government could even argue (though I’m sure they won’t in these exact words) that we can’t release those that we mistakenly tortured (say, Mohamedou Ould Slahi) because doing so would reveal the methods we used, which would represent a significant threat to the US.

Finally, I find the vague standard disturbing for another reason. It’s bad enough that the government has divorced indefinite detention from the AUMF that hypothetically justifies that detention. But it has also divorced the concept of indefinite detention from al Qaeda, from the war against al Qaeda, from terrorism itself, even from “national” (read–military) security.

The grammar of the EO is a clear admission on the government’s part that it is willing to indefinitely detain a human being not for what he has done, but because of the big swirling boogeymen it believes to lurk out there.

And it’s important that those who write about this make that distinction clear.

Task Force Conclusion: “Many” Detainees Were Legally Detained

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While I was away celebrating my 20th college reunion this weekend (thanks for filling in, bmaz), the WaPo liberated the Gitmo Review Task Force report. As the WaPo reported, the big takeaway is the government’s admission that over 55% of those reviewed by the Task Force were what it called “low level fighters” in al Qaeda, the Taliban, or “associated groups.” The claim itself is not all that credible–and that doesn’t include some of the 20% whom the Task Force described as having some organizational role in al Qaeda but might just mean they’re one of Osama bin Laden’s seemingly infinite number of bodyguards. Just 10% were the “worst of the worst” that Gitmo was supposed to hold (the report did not name Abu Zubaydah among those, for example).

All of which might explain why the report was so desperate to claim that detaining these men all these years–well, “many” of them, anyway–wasn’t illegal.

For many of the detainees approved for transfer, however, the review participants found there to be reliable evidence that the detainee had engaged in conduct providing a legal basis for his detention.

No word about the others who have been detained for up to 8 years for whom the Task Force found no legal basis to hold.

Similarly, the report implies that torture was not why the government cannot prosecute “most” of the 48 detainees it has slated for indefinite detention.

Notably, the principal obstacles to prosecution in the cases deemed infeasible by the Task Force did not stem from concerns over protecting sensitive sources or methods from disclosure, or concerns that the evidence against the detainee was tainted. While such concerns were present in some cases, most detainees were deemed infeasible for prosecution based on more fundamental evidentiary and jurisdictional limitations tied to the demands of a criminal forum, as described above.

It describes those jurisdictional limitations this way:

Second, many of the detainees cannot be prosecuted because of jurisdictional limitations. In many cases, even though the Task Force found evidence that a detainee was lawfully detainable as part of al-Qaida–e.g., based on information that he attended a training camp, or played some role in the hierarchy of the organization–the Task Force did not find evidence that the detainee participated in a specific terrorist plot. The lack of such evidence can pose obstacles to pursuing a prosecution in either federal court or a military commission. While the federal material support statutes have been used to convict persons who have merely provided services to a terrorist organization, e.g., by attending a terrorist training camp, there are potential limitations to pursuing such a charge against the detainees. 21

21 Among these limitations: First, the two relevant statutes–18 USC 2339A and 2339B–were not amended to expressly apply extraterrorially to non-US persons until October 2001 and December 2004, respectively. Thus, material support may not be available as a charge in the federal system unless there is sufficient evidence to prove that a detainee was supporting al-Qaida after October 2001 at the earliest. Second the statute of limitations for these offenses is typically eight years (see 18 USC 3286), which may bar prosecution for offenses that occurred well before the detainee’s capture. Third, because the statutory maximum for material support is 15 years (where death does not result from the offense), sentencing considerations may weigh against pursuing prosecution in certain cases. Some of these considerations would not apply to material support charges brought in the military commissions; however, the legal viability of material support charges brought in the military commission system has been challenged on appeal in commission proceedings.

Let’s take a moment to lay out what these passages all suggest, but don’t admit candidly:

  • “Concerns” about tainted evidence explained why at least “some” of these people cannot be prosecuted. I take that as a shorthand admission that these men–or their accusers–were abused in US custody. And the solution, apparently, is to just keep them in custody. The report doesn’t say how the government can trust the evidence itself if it is tainted. I guess they just know.
  • For a significant number of the 48 men slated for indefinite detention, there is no evidence that the man participated in terrorism. Indeed, given the description, it appears there isn’t even any evidence the man took part in an attack on American troops (even granting the government claim that all such attacks were necessarily illegal and not self-defense, which is itself bogus). And given the timing implied by the October 2001 deadline, there’s not even any evidence these men continued their affiliation with Al Qaeda after 9/11 made it clear the organization was attacking US civilians. In short, a significant number of these 48 men are just like the mujahadeen the US used to fund in the glorious Reagan days. But in the glorious post-9/11 days, such actions qualify a man for indefinite detention.
  • Read more →

Court Releases Slahi Decision

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Last month, we talked about Judge James Robertson’s decision that Mohamedou Slahi should be released. Robertson’s order has now been released. I’ll have comments as I read it. But the short version is that the Government abandoned its attempt to prove (first) that Slahi had knowledge of 9/11 before it happened, and (second) that any material support he had offered al Qaeda had effectively ended by the time they picked him up.

I’ll have more as I read this, but just as a reminder, this is the guy for whom Donald Rumsfeld developed a special interrogation plan including death threats.

(And in related news, Jason Leopold got a hold of the Lawrence Wilkerson declaration regarding innocent people at Gitmo.)

Another Reason to Use Civilian Courts

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This WaPo story–which tells how Mohamedou Ould Slahi and Tariq al-Sawah got special privileges and too much fast food at Gitmo in exchange for cooperation–focuses on the things the detainees get, like Subway sandwiches, their own mint garden, and their own compound. (h/t cs) But it really points to one more reason why civilian trials may be better than military commissions: because of the ability to offer something in exchange for cooperation.

With both the underwear bomber and Najibullah Zazi, officials were eventually able to get their cooperation investigating their ties with the al Qaeda network in exchange for the possibility of leniency (and for the underwear bomber, a promise not to try for the death penalty). And Jamal al-Fadl ended up being one of the key witnesses in the Embassy Bombing trial, which helped put US-based al Qaeda figures in jail for life.

Yet with Slahi and al-Sawah, there seems to be no easy way to reflect their cooperation. Rewarding these two detainees for having cooperated is considered “a hard sell.”

“I don’t see why they aren’t given asylum,” said W. Patrick Lang, a retired senior military intelligence officer. “If we don’t do this right, it will be that much harder to get other people to cooperate with us. And if I was still in the business, I’d want it known we protected them. It’s good advertising.”

A current military official at Guantanamo suggested that that argument was fair. Still, he said, it’s “a hard-sell argument around here.”

Heck, in the case of Slahi, the government is appealing Judge Robertson’s order that he be released.

And, as a number of sources admit later in the EPU range of this article, we simply don’t have the means to account for cooperation in our disposition of higher level al Qaeda detainees.

A Justice Department-led review of the cases of all detainees at Guantanamo Bay, which recently wrapped up, decided that Sawah and Slahi are owed no special treatment. An administration official, speaking before the federal court ruling on Slahi, said the government wants either to prosecute them or to hold them in some form of indefinite detention without charge.

Some current and former military officials say there should be other options. The treatment of high-profile informants such as Sawah and Slahi, they argue, will affect the government’s ability to turn other jihadists.

“We are much behind in discussing and working out details of some form of witness protection program for the most potentially important and in-danger witnesses,” said a military official who has served at Guantanamo.

The former chief military prosecutor at Guantanamo, Lawrence Morris, said officials always weighed a detainee’s cooperation, particularly its quality and timeliness, before making a charging decision.

“We were not heedless to other factors, but our job was to make our best judgment from a criminal standpoint,” said Morris, who noted that the decision to bring a case against Sawah came after prolonged deliberation and consultation with intelligence officials.

So instead of providing an incentive for al Qaeda insiders to flip in exchange for special treatment, we instead push for indefinite detention for them (albeit detention softened by fast food). And we’re left with the kind of intelligence hack contractors can collect in the field rather than real inside information.