April 2, 2010
Chapter 4, Part 1 - A Ponzi Scheme of Torture
This chapter connects the interrogations of Abu Zubaydah, Jose Padilla, and Binyam Mohamed, three people who were allegedly involved in a 'dirty bomb' plot that grew more fantastical the more the men were tortured. It traces how torture begat torture, first because bad information extracted through abusive interrogations led to more torture and more bad information, and finally because interrogations were being conducted not only, as the Bush administration has insisted, to produce new intelligence to thwart impending attacks but also to force confessions and extract information that it would use to justify its detention and torture of others.
Part 1: The Scheme
Mohammed's stated reason for going to Afghanistan is entirely implausible. Further, he provides inconsistent accounts of his stay at the Jalalabad guesthouse. These findings undermine his attempts to defeat credible evidence put forth by the Government that Mohammed lived among al-Qaida supporters while there. The Government has established that it is more likely than not that he traveled there as part of a recruiting pipeline. Therefore, the Court credits the Government's evidence regarding Petitioner's earlier conduct.
The Government argues that Petitioner left the Jalalabad guesthouse to train at an al-Qaida camp, and then returned to Jalalabad before fleeing the country for Pakistan after September 11….Its chief support for this argument consists of the statement of Binyam Mohamed, who told interrogators at Guantanamo Bay in October and November of 2004 that Petitioner attended a training camp with him.
Petitioner contends that Binyam Mohamed's statements—the only other evidence placing Petitioner in a training camp—cannot be relied upon, because he suffered intense and sustained physical and psychological abuse while in American custody from 2002 to 2004. Petitioner argues that while Binyam Mohamed was detained at locations in Pakistan, Morocco, and Afghanistan, he was tortured and forced to admit a host of allegations, most of which he has since denied. When he arrived at Guantanamo Bay, Binyam Mohamed implicated Petitioner in training activities. However, after being released from Guantanamo Bay, he signed a sworn declaration claiming that he never met Petitioner until they were both detained at Guantanamo Bay, thereby disavowing the statements he made at Guantanamo Bay about training with Petitioner. In that sworn declaration Binyam Mohamed stated that he was forced to make untrue statements about many detainees, including Petitioner. Binyam Mohamed stated he made these statements because of "torture or coercion," that he was "fed a large amount of information" while in detention, and that he resorted to making up some stories.
After this prologue, the report indicates that Binyam Mohamed was shown a total of 27 photographs of various individuals, and identified 12 of them….He identified Petitioner by his kunya, "Abdullah," claiming that Petitioner "trained at the Algerian Camp with [him] and … eventually traveled to Kandahar with to [sic] him….Special Agent [redacted] notes at the end of his report that the subject was "very cooperative and polite," and that he answered questions without betraying "signs of deception or resistance techniques." Further, Binyam Mohamed "at many times" spoke freely without being questioned or prompted, and the information that he provided was deemed to be consistent with earlier information that he provided, though it does not state where Binyam Mohamed provided the earlier information.
First, Binyam Mohamed's lengthy and brutal experience in detention weighs heavily with the Court. For example, this is not a case where a person was repeatedly questioned by a police officer, in his own country, by his own fellow-citizens, at a police station, over several days without sleep and with only minimal amounts of food and water. See Ashcraft v. State of Tenn, 322 U.S. 143, 153-154 (1944); Reck v. Pate , 367 U.S. 433, 440-441 (1961) (murder suspect held incommunicado for eight days, questioned extensively for four, and interrogated while sick). While neither the Ashcroft nor Reck scenarios are to be approved, they can hardly compare with the facts alleged here.
The difference, of course, is that Binyam Mohamed's trauma lasted for two long years. During that time, he was physically and psychologically tortured. His genitals were mutilated. He was deprived of sleep and food. He was summarily transported from one foreign prison to another. Captors held him in stress positions for days at a time. He was forced to listen to piercingly loud music and the screams of other prisoners while locked in a pitch-black cell. All the while, he was forced to inculpate himself and others in various plots to imperil Americans. The Government does not dispute this evidence.
…[E]ven though the identity of individual interrogators changed (from nameless Pakistanis, to Moroccans, to Americans, and to Special Agent [redacted]), there is no question that throughout his ordeal Binyam Mohamed was being held at the behest of the United States . Captors changed the sites of his detention, and frequently changed his location within each detention facility. He was shuttled from country to country, and interrogated and beaten without having access to counsel until arriving at Guantanamo Bay, after being interrogated by Special Agent [redacted]. See JE 72 (declaration of Binyam Mohamed's attorney, Clive Stafford Smith, stating that he did not meet with client until May of 2005).
From Binyam Mohamed's perspective, there was no legitimate reason to think that transfer to Guantanamo Bay foretold more humane treatment; it was, after all, the third time that he had been forced onto a plane and shuttled to a foreign country where he would be held under United States authority. Further, throughout his detention, a constant barrage of physical and psychological abuse was employed in order to manipulate him and program him into telling investigators what they wanted to hear. It is more than plausible that, in an effort to please Special Agent [redacted] (consistent with how captors taught him how to behave), he re-told such a story, adding details, such as Petitioner's presence at training, which he thought would be helpful and, above all, would bring an end to his nightmare.
There was 4 small cells, each 2m x 2.5m. While there, he was hung up for a week by a leather strap around the wrists. He could only just stand. He was only allowed down to go to the toilet twice a day. He was given food, normally rice and beans, once every second day. "It was the first thing that happened to me. I just thought it would end. There were threats of beating, though.
The FBI seemed to think that because he had lived in the US for a short while he had plans to do something there. "But I'm going to the UK," Binyam would say.
The FBI also seemed to think that he was some kind of top al-Qaida person.
"How? It's been less than six months since I converted to Islam! Before that, I was into using drugs," Binyam would say. Indeed, he had traveled in part to help try to kick the habit.
On the first day of interrogations, 'Chuck' said, "If you don't talk to me, you're going to Jordan. We can't do what we want here, the Pakistanis can't do exactly what we want them to. The Arabs will deal with you."
It was at this point that Binyam told them his name and address. Chuck checked with the British and this was true.
'Terry' asked the same questions. "I'm going to send you to Jordan or Israel," he said. Then he threatened to send him to the British. "The SAS know how to deal with people like you."
It was after Terry's visit that they started the torture.
The Pakistanis could not speak English, and Binyam could not understand them. They would just come in and beat him with a leather strap. It had a handle, and then leather with a joint making the rounded end part whip back on him.
One Pakistani pointed some kind of gun at Binyam's chest. it was a semi-automatic, and he loaded it in front of Binyam. "He pressed it against my chest. He just stood there. I knew I was going to die. He stood like that for five minutes. I looked into his eyes, and I saw my own fear reflected there. I had time to think about it. Maybe he will pull the trigger and I will not die, but be paralyzed. There was enough time to think the possibilities through."
'Chuck' came in after that. He said nothing. He stared at me and left."
"But the officials said there were highly skeptical of the credibility of Abu Zubaydah's claim, who also recently said al-Qaeda was targeting banks in the United States. That report was the basis of an FBI alert last week.
"It could be he's not being truthful. It could be that he's boasting," a US official told the Associated Press news agency."
First transform the gas into a liquid by subjecting it to pressure. You can use a bicycle pump for this. Then make a simple home centrifuge. Fill a standard-size bucket one-quarter full of liquid uranium hexafluoride. Attach a six-foot rope to the bucket handle. Now swing the rope (and attached bucket) around your head as fast as possible. Keep this up for about 45 minutes. Slow down gradually, and very gently put the bucket on the floor. The U-235, which is lighter, will have risen to the top, where it can be skimmed off like cream.
But that's when [Chuck] started getting all excited. Towards the end of April he began telling me about this A-bomb I was supposed to be building, and he started on about Osama Bin Laden and his top lieutenants, showing me pictures and making out I must have known them.
Matthew Alexander 02/16/10: At this point in the interrogation, there has been little done by the interrogators to build rapport and establish a relationship of trust, necessary to convince a detainee to cooperate. There’s been little analysis of what makes Mohamed tick. If he was planning to assist Al Qaida, why? Why did he start using drugs in the UK? Mohamed was a perfect interrogation subject, a searching soul who the interrogators could have approached in a spirit of cooperation, not dominance.
On or about April 23, 2002, Abu Zubaydah was shown two photographs, one that was taken from the U.S. passport of Jose Padilla, which had been recovered from Padilla's person. Abu Zubaydah identified the individual in that photograph as the person he knew as "Abdullah Al Muhajir."[The name Jose Padilla adopted when he converted to Islam] The other phtotgraph was taken from a fake passport recovered from Binyam Muhammed, which Abu Zubaydah identified as the individual in the company of the "South American."
Abu Zubaydah further stated that Padilla and Binyam Muhammad had asked Abu Zubaydah for his opinion on their plan to build an explosive device that would combine uranium or other nuclear or radioactive material with an "ordinary" explosive device (hereinafter called a "dirty bomb") and then detonating the dirty bomb in the United States. Abu Zubaydah told Padilla and Binyam Muhammad that he (Abu Zubaydah) did not think the plan would work, but Binyam Muhammad thought it would work. Abu Zubaydah also indicated to the government that he did not think Padilla and Binyam Muhammad were members of Al Qaeda. Abu Zubaydah further stated that he believed the dirty bomb plan was still in the idea phase, as Padilla and Binyam Muhammad did not have any radioactive material yet, but they mentioned stealing radioactive material from an unnamed university. Abu Zubaydah believed that Padilla and Binyam Muhammad had consulted an unidentified Internet website to learn how to assemble a dirty bomb….
The affidavit then turned to information provided from an interview of Binyam Muhammad in early April, 2002. The affiant explained that Binyam Muhammad had been detained in Pakistan by the Pakistani authorities while trying to board a flight, on suspicions that his non-U.S. passport was fraudulent (which it was). The affiant explained that he had read reports prepared based on the interview of Binyam Muhammad, and had spoken with other law enforcement officers regarding this interview. Binyam Muhammad stated that he went to Pakistan at the behest of Abu Zubaydah to receive training in "wiring explosives." Binyam Muhammad further stated that, while in Pakistan, he and Padilla researched the construction of a uranium-enhanced device, which would be detonated in the United States. Binyam Muhammad and Padilla discussed this plan with Abu Zubaydah, who referred them to other members of Al Qaeda for further discussion of the operation.
With regard to the status of the prisoners, under the various Geneva Conventions and protocols, all prisoners, however they are described, are entitled to the same levels of protections. You have commented on their treatment. It appears from your description that they may not be being treated in accordance with the appropriate standards….
It is important that you do not engage in any activity yourself that involves inhumane or degrading treatment of prisoners. As a representative of a UK public authority, you are obliged to act in accordance with the Human Rights Act 2000 which prohibits torture, or inhumane or degrading treatment. Also as a Crown Servant, you are bound by Section 31 of the Criminal Justice Act 1948, which makes acts carried out overseas in the course of your official duties subject to UK criminal law. In other words, your actions incur criminal liability in the same way as if you were carrying out those acts in the UK."
They gave me a cup of tea with a lot of sugar in it. I initially only took one. 'No, you need a lot more. Where you're going you need a lot of sugar.' I didn't know exactly what he meant by this, but I figured he meant some poor country in Arabia." One of them did tell me that I was going to get tortured by the Arabs.
'John' questioned Binyam. Binyam said he wanted a lawyer.
"How can I help you?" he asked.
"I don't know, said Binyam.
"I'll see what we can do with the Americans," he said, promising to tell Binyam what would happen to him. He did not see him again.
I told [BM] that he had an opportunity to help us and help himself. The US authorities will be deciding what to do with him and this would depend to a very large degree on his degree of cooperation. I said that if he could persuade me he was telling the complete truth I would seek to use my influence to help him. He asked how, and said he didn't expect ever to get out of the situation he was in. I said it must be obvious to him that he would get more lenient treatment if he cooperated. I said that I could not and would not negotiate up front, but if he persuaded me he was cooperating fully then (and only then) I would explore what could be done for him with my US colleagues. It was, however, clear that, while he appeared happy to answer any questions, he was holding back a great deal of information on who and what he knew in the UK and in Afghanistan .
Yesterday, after consultation with the acting secretary of defense and other senior officials, both the acting secretary of defense and I recommended that the president of the United States, in his capacity as commander in chief, determine that Abdullah al Muhajir, born Jose Padilla, is an enemy combatant who poses a serious and continued threat to the American people and our national security. After the determination, Abdullah al Muhajir was transferred from the custody of the Justice Department to the custody of the Defense Department .
Agents Fincher and Donnachie, along with Chicago FBI agents Robert Holley and Todd Schmitt, participated in an interview of Padilla in a conference room, which began at approximately 3:15 p.m. and ended sometime between 7:05 and 7:35 p.m. when Padilla declined to speak further to agents without an attorney….
Near the end of the interview, but prior to actually placing Padilla under arrest, Agent Fincher told Padilla that he would like Padilla to work with him and help him more fully understand the issues they had discussed. If Padilla were to volunteer, Agent Fincher explained, the FBI would arrange for a hotel that evening and they would all travel to New York the next day so that Padilla could then testify in front of a grand jury in New York. Otherwise, Agent Fincher indicated that he would have to serve Padilla with a grand jury subpoena, which he showed to Padilla, to compel his testimony before the grand jury. Padilla asked procedural questions about the grand jury subpoena process, which Agent Fincher answered. After considering the information, Padilla stated that he was not going to volunteer to go to New York and that if Agent Fincher wanted him to go, he would have to arrest Padilla. The same thing happened again: Agent Fincher informed Padilla that he did have a Material Witness Warrant that he could use to arrest Padilla, but that he would rather have Padilla volunteer the information, and that he did not want to arrest Padilla. Padilla responded that he was not going to volunteer and that Agent Fincher would have to arrest him. Following this exchange, Padilla was arrested by Agent Fincher and read his Miranda rights pursuant to a Customs Advice of Rights Form.
On July 21 st , 2002, Binyam was taken to a military airport in Islamabad. There were two others with him. He was blindfolded, but it was very quiet. He was held there for about two hours.
Once there, he was turned over to the Americans. The U.S. soldiers were dressed in black, with masks, wearing what looked like Timberland boots. They stripped him naked, took photos, put fingers up his anus, and dressed him in a tracksuit. He was shackled, with earphones, and blindfolded.
He was put into a U.S. plane—he cannot say the size, but is sure it was some kind of official or military plane, rather than anything civilian, since it was so quiet on board before take off that there were not many others on it.
He was tied to the seat for the roughly 8 to 10 hour flight.
He was flown to an airport in Morocco where he arrived on July 22 nd . While he was blindfolded, he is sure there were two other prisoners on the flight.
He believes it may have been near Rabat.
Binyam believes that there was a U.S. military base near it.
When I got to Morocco they said some big people in al-Qaida were talking about me. They talked about Jose Padilla and they said I was going to testify against him and big people. They named Khalid Sheikh Mohammed, Abu Zubaydah, and Ibn Sheikh al-Libi. It was hard to pin down the exact story because what they wanted changed from Morocco to when later I was in the Dark Prison, to Bagram and again in Guantánamo Bay.
They told me that I must plead guilty. I'd have to say I was an al-Qaida operations man, an ideas man. I kept insisting that I had only been in Afghanistan a short while. "We don't care," was all they'd say.
Matthew Alexander 02/16/10: It’s interesting that the interrogators asked Mohamed to plead guilty. At this point, he is still being interrogated for intelligence purposes, not law enforcement. There is no guilt or innocence in an intelligence interrogation. In fact, a good interrogator does not bring up such a subject in an interrogation or shifts the blame off the detainee. The interrogators may be mixing up a law enforcement technique taught in the Reid Course (a civilian interrogations training program) which instructs interrogators to never allow a suspect to assert his innocence and to consistently assume the suspect is guilty, never allowing doubt. This would be a mistake in an intelligence setting such as Mohamed’s.
The "Canadian" called "Sarah" came today. She said she was supposedly a "third party" only interested in talking to me, because I had refused to talk to the Moroccans and the Americans, so maybe I would talk to a Canadian.
"If you don't talk to me, then the Americans are getting ready to carry out the torture. They're going to electrocute you, beat you, and rape you." She seemed blasé about this, as if this was something normal. I listened to her, but I said I would not talk today.
Today "Sarah" came in with Mohammed, a Moroccan.
They had brought pictures, all of British people. "This is the British file," they said. "Sarah" picked up the pictures of two British people—Yusuf Jamaici and Amin Mohammed—and told their whole story, about how they were suspected of being al Qaida and other stuff.
They also brought pictures of about 25 of the "most wanted" al Qaida people. "I don't know these people."
"I'm giving you a last chance to think about cooperating with the U.S.," said 'Sarah.' They left me alone for a day to think about it, with no interrogation.
They'd ask me a question. I'd say one thing. They'd say it was a lie. I'd say another. They'd say it was a lie. I could not work out what they wanted to hear.
They say there's this guy who says you're the big man in al Qaida. I'd say it's a lie. They'd torture me. I'd say, okay it's true. They'd say, okay, tell us more. I'd say, I don't know more. They'd torture me again.
Matthew Alexander 02/16/10: It’s not unethical in an interrogation to assert a false accusation against a detainee as long as that assertion does not violate the law or threaten the detainee. In this instance, the interrogators could have started by using a lawful, valid approach called Establish Your Identity, listed in the Army Field Manual. In this approach, the interrogator asserts that a detainee is more (or less) important than they suspect. It’s a legal, ethical interrogation technique. However, the torture is inexcusable and appalling and counters the technique’s effectiveness by reinforcing reasons why Mohamed should not be truthful in establishing his identity.
They took the scalpel to my right chest. It was only a small cut. Maybe an inch. At first I just screamed because the pain was just…I was just shocked, I wasn't expecting…
Then they cut my left chest. This time I didn't want to scream because I knew it was coming.
Marwan got agitated at this. "Just go ahead with the plan."
One of them took my penis in his hand and began to make cuts. He did it once, and they stood still for maybe a minute, watching my reaction. I was in agony, crying, trying desperately to suppress myself, but I was screaming. I remember Marwan seemed to smoke a cigarette, throw it down, and start another.
They must have done this 20 to 30 times, in maybe two hours. There was blood all over.
His new quarters are described in his diary in extreme detail, including a listing of the color of his sheets, the type of toothpaste he was given, and the brand of soap he was supplied. For days on end, he remained handcuffed with earphones on, and loud music blasted into his ears. This tactic, as well as others, interrupted his sleep for the whole time he was in Morocco. This treatment, in Binyam Mohamed's account, was the beginning of a campaign of mental torture designed to break him. He claims that his captors put mind-altering substances in his food, forced him to listen to sounds from adult films, drugged him, and paraded naked and semi-naked woman around his cell.
He wrote that the mental torture led to "emotional breakdowns." Through this period, he was subject to two or three interrogations per month. These sessions are described as being "more like trainings, training [him on] what to say."
After being briefed on the conditions of Hamdi's confinement and learning about the very limited contact he had had with any human being during the previous six months, we shuffled through gloomy corridors to a guard station command center to have a look at Hamdi himself. Top administration lawyers crowded around the small black-and-white closed-circuit television bolted in the back corner of the room, and witnessed the barely twenty-two-year-old Hamdi—it was his birthday as well—in the corner of his small cell in an unused wing of the brig, crouched in a fetal position, apparently asleep.
Before I saw him on the closed-circuit television, I had no sympathy for Hamdi, whom I knew had volunteered to fight for the tyrannical Taliban. Witnessing the unmoving Hamdi on that fuzzy black-and-white screen, however, moved me. Something seemed wrong. It seemed unnecessarily extreme to hold a twenty-two-year-old foot soldier in a remote wing of a run-down prison in a tiny cell, isolated from almost all human contact and with no access to a lawyer. "This is what habeas corpus is for," I thought to myself, somewhat embarrassed at the squishy sentiment.
Developing the kind of relationship of trust and dependency necessary for effective interrogations is a process that can take a significant amount of time. There are numerous examples of situations where interrogators have been unable to obtain valuable intelligence from a subject until months, or even years, after the interrogation process began.
Anything that threatens the perceived dependency and trust between the subject and interrogator directly threatens the value of interrogation as an intelligence gathering tool. Even seemingly minor interruptions can have profound psychological impacts on the delicate subject-interrogator relationship. Any insertion of counsel into the subject-interrogator relationship, for example—even if only for a limited duration or for a specific purpose—can undo months of work and may permanently shut down the interrogation process .
Permitting Padilla any access to counsel may substantially harm our national security interests. As with most detainees, Padilla is unlikely to cooperate if he believes that an attorney will intercede in his detention. DIA's assessment is that Padilla is even more inclined to resist interrogation that most detainees. DIA is aware that Padilla has had extensive experience in the United States criminal justice system and had access to counsel when he was being held as a material witness. These experiences have likely heightened his expectations that counsel will assist him in the interrogation process. Only after such time as Padilla has perceived that help is not on the way can the United States reasonably expect to obtain all possible intelligence information from Padilla"
Matthew Alexander 02/16/10: These comments ignore the simple fact that numerous repeat offenders are routinely interrogated successfully in the U.S. every day by competent, professional detectives despite the Constitutional guarantees given to them. The opinion of the DIA commander furthers a juvenile understanding of the interrogation process. Interrogation is not about domination or creating dependencies or intimidation or establishing a sense of futility. It is about convincing a detainee to cooperate willingly by leveraging a relationship built on trust, not dominance. When senior leaders make these wrong assumptions and promulgate erroneous conclusions about interrogations, it is more evidence that we need officer interrogators in the US Army and other Services who can advise commanders and the directors of civilian intelligence agencies. A professional, trained interrogator could have refuted these misconceptions about the art of interrogation and establish a valid interrogation plan that would have been consistent with the law and American principles.
By now I would not believe it. I thought there was something special coming along. The first time they said "farich" was the first time I went to the torture chamber and they hung me up.
It was a cold night. I was cuffed, blindfolded, put in a van and driven for about half an hour. Then they took me into a room, still blindfolded. It was dark.
It was January 21 st or 22 nd , 2004, at about 10 pm. After waiting about two hours, I heard a plane. I knew I was going to go. I heard an American accent. I knew then I was being transferred back to the Americans. It was me and two other prisoners.
There were five U.S. soldiers in black and grey, with face masks, and again with Timberland type boots. The did not talk to me. They cut off my clothes.
There was a white female with glasses. She took the pictures. One of the soldiers held my penis and she took digital pictures. This took a while, maybe half an hour.
She was one of the few Americans who ever showed me any sympathy. She was about 5'6", short, blue eyes. When she saw the injuries I had she gasped. She said, "Oh, my God, look at that"" Then all her mates looked at what she was pointing at and I could see the shock and horror in her eyes.
Later, when I was in Afghanistan they took more pictures. They were treating me, and one of them explained that the photos were "to show Washington it's healing."
There was a hall with rooms apart from each other. I am guessing there were about 20 rooms. I was told special people were housed in it, and I was "special" which is why I was being taken there….
They knocked my head against a wall a few times until I could feel blood, then I was thrown into a cell. It was cell number 16 or 17, the second or third to last room from the shower room. The room was about 2 m by 2.5 m. The cell had a heavy metal door, all solid, then a second door with bars. There were speakers near the ceiling at both ends of the room. There was a watching hole low down on one wall. There was a hanging pole for people left there in the kneeling position. There was a bucket in the corner for a toilet.
I was put in shorts and a top, and chained to the floor with little or no room to manoeuver.
The mat was thin as a blanket, and the blanket was thin as a sheet. It was hard to use the toilet in the dark. All the shit and piss in the bucket got on my blanket, but when they let me lie down I had to use it, as it was all I had.
Showers were either weekly or monthly, as they wished.
It was pitch black, and no lights on in the rooms for most of the time. They used to turn the light on for a few hours, but that only made it worse when they turned it back off.
They hung me up. I was allowed a few hours of sleep on the second day, then hung up again, this time for two days. My legs had swollen. My wrists and hands had gone numb. I got food only once all this time. After a while I felt pretty much dead. I didn't feel I existed at all.
Then I was taken off the wall and left in the dark. There was loud music, Slim Shady and Dr. Dre for 20 days. I heard this non-stop over and over, I memorized the music, all of it, when they changed the sounds to horrible ghost laughter and Halloween sounds. It got really spooky in this black hole. The only light I saw came from the guards using flashlights to bring inedible food, mainly raw rice and beans for lunch, and bread and beans for dinner. Just the sauce, not the beans themselves. I lost 20 kg in the weeks of my stay. They used to come and weigh us every other day, it seemed like they were making sure we were losing weight.
Then there was a misunderstanding in interrogation that led to my being chained to the rails for a fortnight, all cause I said the truth about what I had and hadn't done, thinking the CIA interrogators looked understanding.
I had interrogation most days. He started with pictures. I would say, "I don't know them." He would say, "You do know them." I'd said [sic], "Okay, I do know them." I would describe the people and what they did. I was just making stuff up, but it made the interrogator very happy. But then he went off and did his homework. He came back angry. "If you make up stories again, we're going to torture you." I asked him to tell me what he wanted, cos I didn't know what to say. "Just say what we want. Don't make things up." From then on they would give me the name and the story behind each picture. Most of them were Afghanis and Pakistanis. I was surprised at that, since I rarely had much of an interaction with an Afghani while I was there, because I did not speak the language.
In the Dark Prison, American solders, dressed all in black, came to me with a story. They said, "This is the story that Washington wants." It was about a dirty bomb. I was meant to steal the parts and build it with Padilla in New York. I did not even know what a dirty bomb was. At first, they talked about an atomic bomb, but then they talked about a dirty bomb. It was meant to be half A-bomb, half something else to make it explode. The story went round and round for the four months I spent in the Dark Prison. I could not understand what they were talking about, and got it wrong. They hung me up for ten days, almost non-stop. They had me in a sitting position on the floor, where I could not lie down. My hands were suspended above my head. There was a bucket next to me, but it was hard to maneuver to use it. I kept knocking over the bucket when I tried.
According to one statement by senior al Qaeda detainee #2, Padilla and the Accomplice did not commit to the apartment bombing mission, so KSM was unsure what operation they would finally pursue in the United States. According to that and other statements by this detainee, Padilla and his Accomplice were sent to KSM by Abu Zubaydah in March 2002, so that Padilla could propose the "dirty bomb" plan." KSM was very skeptical, and instead suggested that Padilla and his Accomplice undertake the apartment building operation originally conceived by Atef. They were to enter the United States via the Mexican border or Puerto Rico. Once in the U.S., Padilla and the Accomplice were to locate as many as three high-rise apartment buildings which had natural gas supplied to the floors. They would rent two apartments in each building, seal all the openings, turn on the gas, and set timers to detonate the building simultaneously at a later time. Selection of the target city in the United States was left up to Padilla. Padilla and his Accomplice discussed operational matters with KSM, were given communication training, and each received $20,000 for the operation. Although KSM had some doubts about the ability of Padilla and his Accomplice to successfully enter the United States, they had full authority from him to conduct an operation if they succeeded in entering the United States.
According to the Accomplice, KSM first asked Padilla and his Accomplice to consider setting fire to a hotel or a gas station in the United States, but they told him it would be almost impossible to implement. KSM then asked Padilla to instead apply the explosives training he had received in Afghanistan to destroy an entire building in the central United States by fitting aluminum plates on the side of a room holding the pillars of the building, so that side would absorb all the shock of the explosion, filling the room with natural gas, and then setting a detonator to go off in 24 hours. The Accomplice was tasked to build the detonator by connecting a programmable stopwatch to an electric detonator.
The Accomplice further states that KSM and Ammar al-Baluchi instructed Padilla and the Accomplice on the steps involved to execute this terrorist operation. Padilla would travel to Chicago after obtaining a new passport from the United States Embassy in Europe to expunge the record of Padilla's travel to Pakistan. Once in the United States, Padilla was to conduct an internet search on buildings that had natural gas heating. Padilla was to open a bank account and then obtain information about documents needed to rent an apartment; KSM advised they were to blow up approximately 20 buildings simultaneously, but Padilla pointed out that he could not possibly rent multiple apartments under one identity without drawing attention, and he might have to limit this operation to only two or three buildings. The Accomplice was to return to the United Kingdom, where he held refugee status, obtain a valid travel document, and then travel to the United States to meet Padilla in Chicago to assist him.
There are differences in detainee statements on the intended target of the apartment building mission, perhaps because it had not been finally determined, although the locations mentioned are all within the United States. Padilla states that the primary target was New York City, although Florida and Washington, D.C. were discussed with KSM as well; selection of the apartment was left to Padilla's discretion. Padilla's Accomplice has stated that KSM instructed Padilla to conduct the operation in the central United States, or Chicago, and that he was assigned to meet Padilla in Chicago to assist him. Senior al Qaeda detainee #2 has said that KSM left selection of the target city up to Padilla, and has added in other statements that KSM intended the target to be along the Mexican-U.S. border, perhaps in Texas; that KSM advised Padilla to conduct the operation in California or somewhere in the U.S. Southwest; and that New York and Florida were never considered.
Much of this information has been uncovered because Jose Padilla has been detained as an enemy combatant and questioned. We have learned many things from Padilla that I'm not going to discuss today and that we did not include in our answer to Sen. Hatch.
Had we tried to make a case against Jose Padilla through our criminal justice system, something that I, as the United States attorney in New York, could not do at that time without jeopardizing intelligence sources, he would very likely have followed his lawyer's advice and said nothing, which would have been his constitutional right.
He would likely have ended up a free man, with our only hope being to try to follow him 24 hours a day, seven days a week and hope—pray, really—that we didn't lose him.
But Jose Padilla was more than a criminal defendant with a broad menu of rights that we offer in our great criminal justice system. On May the 8 th of 2002, a soldier of our enemy, a trained, funded and equipped terrorist, stepped off that plane at Chicago's O'Hare: a highly trained al Qaeda soldier who had accepted an assignment to kill hundreds of innocent men, women and children by destroying apartment buildings; an al Qaeda soldier who still hoped and planned to do even more by detonating a radiological device, a dirty bomb, in this country; an al Qaeda soldier who was trusted enough to spend hour after hour with the leaders of al Qaeda, Mohammed Atef, Abu Zubaida, Khalid Shaikh Mohammed; an al Qaeda soldier who had vital information about our enemy and its plans; and lastly an al Qaeda soldier who, as an American citizen, was free to move in, within, and out of this country.
Two years ago, the president of the United States faced a very difficult choice. After a careful process, he decided to declare Jose Padilla for what he was, an enemy combatant, a member of a terrorist army bent on waiting war against innocent civilians. And the president's decision was to hold him to protect the American people and to find out what he knows.
We now know much of what Jose Padilla knows. And what we have learned confirms that the president of the United States made the right call and that that call saved lives.
I was in Bagram from the end of May until I was taken to Guantánamo in September 2004.
They said there were ten of us meant to go to court. Some had to write statements. Some just had to sign statements that had been written by U.S. interrogators. They said we were meant to go to court right on arrival in Cuba.
They made me write something out for them in Bagram. It was long—about twenty pages—but the first fifteen pages were just an autobiography. The actual story was only a couple of pages. By then, the story was something like this. First, Jose Padilla and I were meant to have good connections, because we both spoke English. We were meant to have been hanging out together. The FBI showed me Jose Padilla's picture as early as April 2002 when I was in Pakistan. When I was in Morocco I was shown a news clip of him. The truth is that I do not know Jose Padilla, I did not recognize him in the photograph.
Second, I was meant to have come from Afghanistan with him. The truth is that I have no idea whether I did. I was in a group of people for two or three days coming out of Afghanistan. I have no idea whether he was in it, or even whether he had been in Afghanistan. I did not know him, and kept to myself, and I can say that I have certainly never spoken with him. But, of course, by the time I was in Bagram I was telling them whatever they wanted to hear.
Third, I was meant to say that Jose Padilla and I were going to go to the U.S. to explode a dirty bomb.
I don't really remember, because by then I just did what they told me. But I think that was about the total of it by then.
Chapter 4, Part 2 – A Ponzi Scheme of Torture
Based on the information available to me [redacted] I hereby determine that it is in the interest of the United States that Jose Padilla be released from detention by the Secretary of Defense and transferred to the control of the Attorney General for the purpose of criminal proceedings against him.
Accordingly, by the authority vested in me as President by the Constitution and the laws of the United States , I hereby direct you to transfer Mr. Padilla to the control of the Attorney General upon the Attorney General's request. This memorandum supersedes my directive to you of June 9, 2002, and, upon such transfer, your authority to detain Mr. Padilla provided in that order shall cease.
The exceedingly important question before us is whether the President of the United States possesses the authority to detain militarily a citizen of this country who is closely associated with al Qaeda, an entity with which the United States is at war; who took up arms on behalf of that enemy and against our country in a foreign combat zone of that war; and who thereafter traveled to the United States for the avowed purpose of further prosecuting that war on American soil, against American citizens and targets.
We conclude that the President does possess such authority pursuant to the Authorization for Use of Military Force Joint Resolution enacted by Congress in the wake of the attacks on the United States of September 11, 2001. Accordingly, the judgment of the district court is reversed.
The indictment alleges that Padilla traveled overseas to train as a terrorist with the intention of fighting in "violent jihad"—a short hand term to describe a radical Islamic fundamentalist ideology that advocates using physical force and violence to oppose governments, institutions, and individuals who do not share their view of Islam. These groups routinely engage in acts of physical violence such as murder, maiming, kidnapping, and hostage-taking against innocent civilians.
Mr. Padilla is now a new co-defendant—along with Canadian national Kassem Daher—in a criminal prosecution that previously charged defendants Adham Hassoun, Mohomed Youssef, and Kifah Jayyousi with terrorism-related crimes. All of these defendants are alleged members of a violent terrorist support cell that operated in the United States and Canada.
Several guards approached the door of the cell in full riot gear. They unlock a rectangular panel at the bottom, and you see these feet - kind of pale feet - slide out through the hole. He's shackled. They then unlock a panel on the top. His hands come out and are cuffed.
They unlock the door and they all push into the cell, turn him around, tie his cuffed hands to a metal belt at his waist so that he's completely chained, swivel him around and lead him out the door, at which point—very, very briefly—he gives the appearance of being somewhat catatonic. And he raises his head briefly. His eyes meet the camera completely blankly.
His head goes back down, and they put sort of a blackened ski mask over his eyes and very large noise-blocking headphones over his ears. And then the guards put their leather black-gloved hands on his shoulders and they all—they walk this masked, clanking prisoner down the hall to the dentist, and then he has a two-hour root canal procedure.
I asked him a question concerning a simple fact based on an event that had happened prior to his arrest. In observing Mr. Padilla's physical reaction to this question, I noted that his posture changed from relaxed to bolt upright in his chair. He began to blink his eyes and he appeared to have goose bumps on his arms and his neck. Mr. Padilla's reaction to my innocuous question was the same reaction that I would have expected if he had been stuck by a cattle prod.
For example, after defense counsel cross-examined FBI agents regarding their interrogation of the defendant in Chicago establishing inconsistencies and aggressive behavior, Mr. Padilla's reaction was concern that the agents could get in trouble. Instead of being pleased with his attorney's efforts to get out the truth, he was more concerned about the effect it could have upon the agents, or the possibility that these efforts on his behalf might result in his return to the brig.
Mr. Padilla was willing to affirm or deny whether he had been subject to interrogation techniques that had been commonly reported in the media. He denied being sexually assaulted or humiliated. He denied being water-boarded with uncharacteristic intensity and insistence. He acknowledged being kept in the dark or with the lights on for very long periods of time, being shackled and left alone for long periods of time, of being kept in a cold environment for long periods of time, and above all, of being certain he would die in the brig.
In particular, he described periods of sleep deprivation caused by the discomfort of lying on a steel bun without a mattress and with the lights on. Also, the slamming of adjacent cell doors at regular intervals prevented his sleep. Mr. Padilla recalled asking for medication for pain and being told by staff they were not authorized to give him anything for his pain. He also described an incident during which he felt intense pressure on his chest "like two hundred pounds" and was convinced he was going to die from that intense pressure.
During my interview, Mr. Padilla briefly conveyed obviously painful recollections of being taken out of his cell to a "recreation" cage. Mr. Padilla recalled how he begged his guards not to take him out and put him in the cage. He would not say what went on in the cage or why it upset him so. Mr. Padilla also made it clear to me that he had not told me everything that had been done to him in the brig and that he was unwilling to do so.
Mr. Padilla told me that he had no way of keeping track of time while in the brig. He was the sole occupant on the lower level of the brig. There were long periods of darkness and long periods of bright artificial light. There were no clocks or calendars. He had no access of any kind to the outside world. He was unable to put events in chronological order for me. He was clear that early on, for what seemed like months, there was a "terrible time," although he could not be more specific as to what constituted that "terrible time."
He has endured a traumatic event that involved actual or threatened death or serious injury, or a threat to the physical integrity of self or others and his response involved intense fear and helplessness. The use of prolonged isolation along with tactics designed to have an individual reveal facts they otherwise might not wish to reveal, as well as the fostering of dependence on interrogators not only creates the conditions in which individuals might reveal important information, but also the conditions that induce intense fear, feelings of helplessness and loss of control characteristic of the traumatic experience. Sleep deprivation, physiological stress, and repeated questioning only exacerbate the traumatic nature of the experience. Mr. Padilla believed he was going to die on a number of occasions during his detention. He believed his family would be harmed if he did not comply. He learned that no matter whether he was cooperative, or whether he pleaded with his captors, he was utterly helpless and absolutely dependent on them for everything. He believed and still believes they have the ultimate power to decide what happens in his life, his case, and whether he is released or ultimately is returned to the brig.
Perhaps anticipating that the request to use the videotape excerpts will be denied, counsel for Padilla signaled at the last hearing that they intend to put "hypothetical" questions to the court-appointed expert, based on what occurred during the videotaped interrogations at issue. More specifically, counsel for Padilla plan to ask whether the court-appointed expert's opinion would change if he knew that so-and-so had occurred, with the so-and-so being something that appears on the classified videotapes.
First, the fact that the governmental conduct occurred at a time and place removed from the crimes charged makes the remedy Padilla is seeking considerably more attenuated and arbitrary. Short of resorting to a 'two wrongs make a right' judicial process, it is difficult for this Court to ascertain how the remedy sought emanates from the infirmity defendant describes. This is considerably distinguishable from a government entrapment scenario, where the crime that the defendant is charged with is the crux of the outrageous government conduct claim.
Second, the outrageous conduct occurred while Padilla was under military control at the Naval Brig in Charleston , South Carolina . At this time, Padilla was being held under Presidential orders in connection with his enemy combatant status and had not been charged with the crimes he is currently facing. This further attenuates Padilla's outrageous government conduct claim. Even if Padilla's due process rights were violated while being held at the Naval Brig as an enemy combatant, he fails to explain how this violation should result in the dismissal of distinct crimes that he was not charged with at that point.
Third, Mr. Padilla fails to explain why suppressing governmental use of any evidence obtained from him at the Naval Brig is insufficient for purposes of this trial. In his motion, Padilla acknowledges that the government has already averred not to seek introduction of any of the Naval Brig evidence at trial. Despite summarily rejecting this remedy as "clearly inadequate," Padilla fails to support this contention or explain why his requested remedy is more appropriate.
The objectionable conduct Padilla claims violated his due process rights occurred during his military detainment in isolation of the crimes charged. Padilla also fails to adequately explain why excluding any unlawfully obtained evidence would not be an appropriate remedy in this case. Applying the exclusionary rule to bar inclusion of any illegally obtained evidence would sufficiently satisfy due process concerns. This may ultimately be a moot point since the government has averred not to utilize any Naval Brig evidence in its case. However, should the government decide to make use of any such evidence, an appropriate hearing will be scheduled to determine to what extent it is admissible.
Plaintiff Jose Padilla is a United States citizen who was imprisoned as an "enemy combatant" in a military brig, without charge and without ability to defend himself or challenge his conditions of confinement for three years and eight months. Throughout those years, Mr. Padilla suffered gross physical and psychological abuse at the hands of federal officials as part of a systematic program of abusive interrogation intended to break down Mr. Padilla's humanity and his will to live. For nearly two years, Mr. Padilla was held in complete isolation and denied all access to the court system, legal counsel and his family. He was subjected to mistreatment including but not limited to extreme and prolonged sleep and sensory deprivation designed to inflict severe mental pain and suffering; exposure to extreme temperatures; interrogation under threat of torture, deportation and even death; denial of access to necessary medical and psychiatric care; and interference with his ability to practice his religion. In the year and a half that Mr. Padilla remained in the Brig after he was granted limited access to legal counsel, much of this severe abuse continued….
The grave violations suffered by Padilla were not isolated occurrences by rogue lower-level officials; to the contrary, Defendant John Yoo, along with other senior officials, deliberately removed Mr. Padilla from due process protections traditionally available to U.S. citizens detained by their government and barred all access to the outside world, including to counsel. On information and belief, Defendant Yoo and other senior officials then personally formulated and/or approved and/or failed to act upon actual or constructive knowledge of, a systematic program of illegal detention and interrogation, which was specifically designed to inflict, and did inflict, severe physical and mental pain and suffering on Mr. Padilla for the purpose of extracting information from him and/or punishing him without due process of law…. Defendant Yoo personally provided numerous legal memoranda that purported to provide to senior government officials a legal basis to implement an extreme and unprecedented interrogation and detention program—even though such tactics are unprecedented in U.S. history and clearly contrary to the U.S. Constitution and the law of war.
This case, here for the second time, raises a question "of profound importance to the Nation," Does the President have authority to imprison indefinitely a United States citizen arrested on United States soil distant from a zone of combat, based on an Executive declaration that the citizen was, at the time of his arrest, an "enemy combatant"? It is a question the Court heard, and should have decided, two years ago. Nothing the Government has yet done purports to retract the assertion of Executive power Padilla protests.
Although the Government has recently lodged charges against Padilla in a civilian court, nothing prevents the Executive from returning to the road it earlier constructed and defended. A party's voluntary cessation does not make a case less capable of repetition or less evasive of review.
In light of the previous changes in his custody status and the fact that nearly four years have passed since he first was detained, Padilla, it must be acknowledged, has a continuing concern that his status might be altered again. That concern, however, can be addressed if the necessity arises….Were the Government to seek to change the status or conditions of Padilla's custody…the District Court, as well as other courts of competent jurisdiction, should act promptly to ensure that the office and purposes of the writ of habeas corpus are not compromised. Padilla, moreover, retains the option of seeking a writ of habeas corpus.
[T]he government's actions since this court's decision issued on September 9, culminating in and including its urging that our opinion be withdrawn, together with the timing of these actions in relation both to the period for which Padilla has already been held and to the government's scheduled response to Padilla's certiorari petition in the Supreme court, have given rise to at least an appearance that the purpose of these actions may be to avoid consideration of our decision by the Supreme Court…
[W]e would regard the intentional mooting by the government of a case of this import out of concern for the Supreme Court consideration not as legitimate justification but as admission of attempted avoidance of review. The government cannot be seen as conducting litigation with the enormous implications of this litigation – litigation imbued with significant public interest – in such a way as to select by which forum as between the supreme Court of the United States and an inferior appellate court it wishes to be bound.
The government has held Padilla militarily for three and a half years, steadfastly maintaining that it was imperative in the interest of national security that he be so held. However, a short time after our decision issued on the government's representation that Padilla's military custody was indeed necessary in the interest of national security, the government determined that it was no longer necessary that Padilla be held militarily. Instead, it announced, Padilla would be transferred to the custody of federal civilian law enforcement authorities and criminally prosecuted in Florida for alleged offenses considerably different from, and less serious than, those acts for which the government had militarily detained Padilla. The indictment of Padilla in Florida, unsealed the same day as the announcement of that indictment, made no mention of the acts upon which the government purported to base its military detention of Padilla and upon which we had concluded only several weeks before that the President possessed the authority to detain Padilla, namely, that Padilla had taken up arms against United States forces in Afghanistan and had thereafter entered into this country for the purpose of blowing up buildings in American cities in continued prosecution of al Qaeda's war of terrorism against the United States.
The announcement of indictment came only two business days before the government's brief in response to Padilla's petition for certiorari was due to be filed in the Supreme Court of the United States, and only days before the District Court in South Carolina, pursuant to our remand, was to accept briefing on the question whether Padilla had been properly designated an enemy combatant by the President.
The same day as Padilla's indictment was unsealed in Florida, the government filed with us a motion pursuant to Supreme Court Rule 36 for authorization to transfer Padilla to Florida, a motion that included no reference to, or explanation of, the difference in the facts asserted to justify Padilla's military detention and those for which Padilla was indicted. In a plea that was notable given that the government had held Padilla militarily for three and a half years and that the Supreme Court was expected within only days either to deny certiorari or to assume jurisdiction over the case for eventual disposition on the merits, the government urged that we act as expeditiously as possible to authorize the transfer. The government styled its motion as an "emergency application," but it provided no explanation as to what comprised the asserted exigency.
For, as the government surely must understand, although the various facts it has asserted are not necessarily inconsistent or without basis, its actions have left not only the impression that Padilla may have been held for these years, even if justifiably, by mistake – an impression we would have thought the government could ill afford to leave extant. They have left the impression that the government may even have come to the belief that the principle in reliance upon which it has detained Padilla for this time, that the President possesses the authority to detain enemy combatants who enter into this country for the purpose of attacking America and its citizens from within, can, in the end, yield to expediency with little or no cost to its conduct of the war against terror – an impression we would have thought the government likewise could ill afford to leave extant. And these impressions have been left, we fear, at what may ultimately prove to be substantial cost to the government's credibility before the courts, to whom it will one day need to argue again in support of a principle of assertedly like importance and necessity to the one that it seems to abandon today. While there could be an objective that could command such a price as all of this, it is difficult to imagine what that objective would be.
Chapter 4, Part 3 (new) – A Ponzi Scheme of Torture
1. Under the provisions of the Secretary of the Navy Memorandum, dated 29 July 2004, Implementation of Combatant Status Review Tribunal Procedures for Enemy Combatants Detained at Guantanamo Bay Naval Base Cuba, a Tribunal has been appointed to review the detainee's designation as an enemy combatant.
2. An enemy combatant has been defined as "an individual who was part of or supporting the Taliban or al Qaida forces, or associated forces that are engaged in hostilities against the United States or its coalition partners. This includes any person who committed a belligerent act or has directly supported hostilities in aid of enemy armed forces."
3. The United States Government has previously determined that the detainee is an enemy combatant. This determination is based on information possessed by the United States that indicates that the detainee is associated with al Qaida or the Taliban.
A. The detainee is associated with al Qaida or the Taliban.
1. The detainee is an Ethiopian who lived in the United States from 1992 to 1994, and in London, United Kingdom, until he departed for Pakistan in 2001.
2. The detainee arrived in Islamabad, Pakistan, in June 2001, and traveled to the al Faruq training camp in Afghanistan , to receive paramilitary training.
3. At the al Faruq camp, the detainee received 40 days of training in light arms handling, explosives, and principles of topography.
4. The detainee was taught to falsify documents, and received instruction from a senior al Qaida operative on how to encode telephone numbers before passing them to another individual.
5. The detainee proposed, to senior al Qaida leaders, the idea of attacking subway trains in the United States .
6. The detainee was extracted from Afghanistan to Karachi, Pakistan, where he received explosives and remote-controlled-detonator training from an al Qaida operative.
7. The detainee met with an al Qaida operative and was directed to travel to the United States to assist in terrorist operations.
8. The detainee attempted to leave Pakistan for the United States but was detained and interrogated by Pakistani authorities, revealing his membership in al Qaida, the identities of Mujahidins he knew, and his plan to use a "dirty bomb" to carry out a terrorist attack in the United States.
4. The detainee has the opportunity to contest his designation as an enemy combatant. The Tribunal will endeavor to arrange for the presence of any reasonably available witnesses or evidence that the detainee desires to call or introduce to prove that he is not an enemy combatant. The Tribunal President will determine the reasonable availability of evidence of witnesses.
During the initial interview on 18 Nov 04, detainee elected to NOT participate in the Tribunal. He had no witnesses or documentary evidence but requested that his Personal Representative provide statements made during the interview. Those statements follow:
Detainee informed PR that the interrogators told him that the tribunals were a "pass by" to get to the courts. He stated that he had no evidence on him (plans, materials, weapons, etc.) when captured and was interrogated by the British Secret Service (M6) who said that he was not accused of anything. He told me he made statements while being (mentally and physically) tortured while in Pakistani jails. Detainee admitted items 3A1-4 on the UNCLASS summary of evidence, but stated he went for training to fight in Chechnya, which was not illegal. The detainee stated that the other items were rubbish or made under duress. He further stated that he traveled before 11 Sep 2001, which means he had different plans other than going to fight America. After 9/11, there was no way out of AF other than the groups who could get him out of AF, through PK, and back to Britain (namely al Qaida). Finally, detainee stated that his plane ticket at time of capture was a ticket from Karachi to Zurich to England, so how could he have plans to carry out attacks in the United States.
Binyam was twenty-seven. He was tall and gangling, dark-skinned, originally from Ethiopia. He smiled and immediately told me how glad he was to see me. He spoke quietly, with a particular dignity. Some prisoners would take many hours of convincing that I was not from the CIA, but Binyam immediately opened up. I explained what we needed to do, and he started talking. He barely paused for breath during the three consecutive days we met. I have become so used to typing that the effort of handwriting notes was exhausting. Absorbing what he told me about being tortured would be far more difficult.
Providing the defense with exculpatory evidence in the government's possession promotes not only a tribunal's fairness, but also the accuracy of its results. That is why the Supreme Court has held that an "individual prosecutor has a duty to learn of any favorable evidence known to the others acting on the government's behalf in the case, including the police." Yet in the military commission system, the Prosecution had no obligation to give the Defense exculpatory evidence in the possession of other government agencies. This was significant because, according to one former military commission prosecutor, government agencies intended to deliberately exploit this gap in discovery obligations to keep the defense from obtaining exculpatory evidence. Commission prosecutor Captain John Carr wrote to the commission system's Chief Prosecutor, "In our meeting with [a government agency], they told us that the exculpatory information, if it existed, would be in the 10% that we will not get with our agreed upon searches. I again brought up the problem that this presents to us in the car on the way back from the meeting, and you told me that the rules were written in such a way as to not require that we conduct such thorough searches, and that we weren't going to worry about it."
14. In furtherance of this enterprise and conspiracy, Binyam Muhammad [sic] and other members or associates of al Qaida committed the following overt acts:
• On or about May 2001, after a recent conversion to Islam, Binyam Muhammad, a trained electrical engineer, traveled to Afghanistan and attended al Qaida's al Farouq training camp, where he received training in light weapons such as the Kalishnikov, Simonov, PKA, rocket-propelled grenades (RPGs) and crew-served weapons.
• In early summer 2001, which Binyam Muhammad was at al Farouq, Usama Bin Laden visited the camp several times and lectured Binyam Muhammad and other trainees about the importance of conducting operations against the United States, Europe, and Israel. During one of these lectures Usama bin Laden told the group "something big is going to happen in the future" and to "get ready" or words to that effect.
• During August 2001, after completing his training at al Farouq, Binyam Muhammad attended a city warfare course in Kabul where he was to receive ten days of pistol training, ten days of training on the AK-47, and ten days of "room to room" combat. Due to lack of ammunition, Binyam Muhammed only received training on the AK-47 assault rifle.
• In September 2001, after completing his abbreviated city warfare course, Binyam Muhammad moved to the front lines in Bagram to experience fighting between the Taliban and the Northern Alliance. While on the front lines, Binyam Muhammad took a course in firing mortars, map reading, targeting and firing.
• After a short time on the front lines in Bagram, Binyam Muhammad attended an explosives training camp in Kabul where he received training on explosives and "homemade" bomb-making. Also in attendance at this camp was Richard Reid.
• After traveling from Kabul to Khandahar, Binyam Muhammed was directed to go to Zormat, Afghanistan where he met with Abd al Hadi al Iraqi. While in Zormat, Binyam Muhammad was told al Qaida had a "mission" for him.
• Binyam Muhammad then traveled to Birmel, Afghanistan, and was introduced to Abu Zubayda. Abu Zubayda promised him training in Pakistan building remote-control-detonation devices for explosives that were to be used against American forces. After his training was complete, Binyam Muhammad was to return to Afghanistan to make detonation devices and teach others how to construct them.
• Binyam Muhammad traveled with Abu Zubayda from Khowst into Pakistan, stopping at several guesthouses and a madrassa (religious school) where he first met Jose Padilla, Ghassan al Sharbi and Jabran Said al Qahtani. Abd al Hadi al Iraqi and Abu Zubayda directed Binyam Muhammad (along with al Sharbi and al Qahtani) to receive training on building remote-controlled detonation devices for explosives.
• From the madrassa in Khost Binyam Muhammad traveled to a guesthouse in Lahore, Pakistan, where he and Jose Padilla reviewed instructions on a computer in the guesthouse on how to make an improvised "dirty bomb." Ghassan al Sharbi translated these instructions into Arabic and read them aloud to a group in the guest house.
• After arriving in Lahore, Binyam Muhammad and Jose Padilla met with Abu Zubayda in private and discussed plans for attacks against the United States. Abu Zubayda stated that he preferred Binyam Muhammad conduct an "overseas" operation instead of going back to Afghanistan as originally planned. Binyam Muhammad agreed to carry out an operation in the United States.
• While in Lahore, Binyam Muhammad, Jose Padilla and Abu Zubayda discussed the feasibility of constructing the improvised "dirty" bomb from the instructions they had read on the computer. Abu Zubayda also discussed other plans against the United States with Binyam Muhammad and Jose Padilla, such as blowing up gas tankers and spraying people with cyanide in nightclubs. Abu Zubayda told Binyam Muhammad that one of the purposes for the attacks on the United States was to help "free the prisoners in Cuba."
• After spending a few days in guest houses in Lahore and Faisalabad, Binyam Muhammad and Jose Padilla were sent to Karachi to meet Saif al Adel (the head of al Qaida's security committee) and Khalid Sheikh Mohammad (a top level al Qaida planner and leader). Saif al Adel and Khalid Sheikh Mohammad told Binyam Muhammad that their mission would involve targeting high-rise apartment buildings that utilized natural gas for its heat and also targeting gas stations. The apartment building plan called for renting an apartment and utilizing the natural gas in the buildings to detonate an explosion that would collapse all of the floors above. Binyam Muhammad and Jose Padilla agreed to conduct such an operation.
• In early April 2002, Binyam Muhammad was given approximately $6,000 U.S. dollars and Jose Padilla was given approximately $10,000 U.S. dollars to get to the United States and met with Khalid Sheikh Mohammad for last minute briefings.
• On of about April 4, 2002, Binyam Muhammad and Jose Padilla were both detained at passport control at the airport in Karachi (Binyam Muhammad for a forged passport and Jose Padilla due to visa violations), but were released the next morning. Khalid Skeikh Mohammad arranged to get Binyam Muhammad a different forged passport while Jose Padilla continued on to Chicago, Illinois.
15. On or about April 10, 2002, Binyam Muhammad was arrested at an airport in Karachi, Pakistan, attempting to get back to London using a forged passport.
David Frakt 04/01/10: I believe it is a bit misleading to say that there was no right to challenge "confessions exacted through torture." Statements extracted through torture are explicitly excluded from admissibility in military commissions, consistent with the United States’ obligation under the Convention Against Torture. Under the CAT, statements which are the product of torture are not admissible in any legal proceeding of any kind. State Department Legal Adviser John B. Bellinger III acknowledged this obligation in response to questions from the U.N. and asserted that the U.S. recognized that this ban also applied in Combatant Status Review Tribunals. Although there was, in theory, a ban on the use of statements produced by torture, the problem was in applying this rule. At the time of the initiation of the CSRTs and the first efforts at trying detainees in military commissions, the official position of the Bush Administration was that we never had tortured anyone. Since we hadn’t tortured anyone, there weren’t any statements produced by torture to exclude. In fairness to the officers who served on the CSRTs, it must be noted that the documents provided to them, typically summaries of statements produced in interrogation sessions, tended not to indicate the nature of the interrogation techniques used to extract the statements, so there was no reason for them to suspect that the statements were the product of torture. Furthermore, the evidence offered by the government in CSRTs, by regulation, was afforded a presumption of validity; this presumption was nearly impossible to overcome without the right to a defense lawyer (by regulation, the detainees "personal representatives" weren’t allowed to be lawyers), or any meaningful opportunity to call witnesses. Once defense lawyers were allowed to be involved, they were sometimes able to prove that a statement that had been considered by a CSRT actually was the product of torture. For example, in Mohammed Jawad’s case, his CSRT considered numerous summary interrogation reports as evidence that he was an enemy combatant. In Mr. Jawad’s habeas corpus litigation, counsel for Mr. Jawad (including myself) filed a motion to suppress these reports on the basis that the statements contained therein were the product of torture. After initially indicating to the court that the government intended to rely on these statements, the government changed course and conceded that the statements were the product of torture and the motion to suppress was granted. The government then informed the court that they no longer considered Mr. Jawad to be detainable, leading to Mr. Jawad’s release shortly thereafter.
Although statements obtained by torture were theoretically inadmissible, a major flaw of the military commissions was that statements which were merely the product of coercion were admissible. The admissibility of involuntary coerced statements is a fundamental due process violation.
You addressed me as Mr. Muhammad. I keep referring to this because this is a big issue. You have the wrong person on the seat. I mean, I don't understand what kind of system, after four years of torture and renditions, still gets the wrong person to be on the stand. I am not Mr. Muhammad, and if you are going by your books, I mean, how can you charge me with something and I am not the person. You got the wrong…the wrong man here.
Do you understand what I'm talking about? I think you're a reasonable person, that's why you're sitting over there. And to have in court a person who the cops put under interrogation for four years and then find out he's the wrong man, I mean, what kind of worthiness do these people have, man? Ask yourself, what kind of worthiness do they have bragging about Dracula and about this island that is getting them a lot of information, a gold mine? I'm innocent; I'm not—I'm not—I'm not supposed to be here. Mr. Muhammad, as you call him, is not here…is not present, so how can we go on ?
I don't know if Congress gave you the right to change names, I don't know. Sure. I mean, they give you the right to change laws and play around with them, but I don't know about names. And this is an issue. I can't call you Ralph Kallmann rather than Kohlmann, can I, and arrest you and put you in jail? Because that's not you? Four years of—what do you call it, enhanced torture techniques, and we have the wrong person in court. I mean, that bothers me; I don't know how it doesn't bother you.
BINYAM MOHAMED: I'm…maybe I'm mistaken about…could you explain what the rights are? I mean, maybe I…I don't want to look stupid in court.
COL. KOHLMANN: No, not at all.
BINYAM MOHAMED: What is this rights you're talking about? Because I have been four years without rights and now all of the sudden I got rights. I am surprised.
COL. KOHLMANN: If at any time during these proceedings you are confused, OK, you should ask for recess and then you can discuss things with your counsel. In this case I am going to explain them to you again because they are actually pretty concisely stated here in the trial guide. First, the one was—the right about a military—detailed military counsel, and I explained to you the right with regard to the Detailed Defense Counsel. And do you recall that explanation?
BINYAM MOHAMED: Yeah.
COL. KOHLMANN: OK. Do you want me to read it to you again?
BINYAM MOHAMED: I don't want to…to go too deep into this because my interest is I've had—I haven't had rights for four years. If I had rights, I don't think I would have been touring the world. Could you explain what is…what is…what is rights? I mean, she can't explain it because I've asked her.
So, I mean, I'll call it something else. I've been referring to this place as "the room." I'm happy she stood up there and said she's confused, and I can understand why she's confused about these commissions because this is not a commission, this is a con-mission, is a mission to con the world, and that's what it is, you understand.
You said…there is a saying that says preach what you practice. You're preaching something and then practice something else. America preaches democracy and then creates a con-mission because it just wants certain non-citizens to be convicted. I didn't ask for a trial. You can kill me tomorrow; I don't really care. But then I have an obligation to the world that such crap cannot be accepted because of this, I have the right to say it.
If you think your war, you are going to win the war by convicting ten people here, that is very stupid. I am not saying you. I am saying your government.
I'll give you another example. Iran goes around saying, "I have to have a nuclear bomb." America says, "You know what, you can't, because we are stronger than you are." Iran says, "You have a bomb. Why can't I have a bomb?" So tomorrow you are going to have Australia saying, "You know what, you had a con-mission. Why can't I have a con-mission?" When are you going to stop this? This is not the way to deal with this issue.
That is why I don't want to call this place a courtroom, because I don't think it is a courtroom.
I'm sure you wouldn't agree with it because if you was arrested somewhere in Arabia and bin Laden says, "You know what, you are my enemy but I am going to force you to have a lawyer and I give you some bearded turban person," I don't think you will agree with that. Forget the rules, regulations and crap…you wouldn't deal with that. That is where we are. This is a bad place. You are in charge of it. I don't know if you want to be a general. Because I can tell something, if you want to be a general you have to go along with this, but if you want to stay as colonel, like you are, you have to make real big decisions here.
I am done. You can stop looking at the watch.
The accused and his civilian counsel may be excluded from, and precluded from ever learning, what evidence was presented during, any part of the proceeding that either the Appointing Authority or the presiding officer chooses to "close." Grounds for such closure "include the protection of information classified or classifiable….intelligence and law enforcement sources, methods, or activities, and other national security interests."
The MCA, among other things, amends 28 U.S.C. § 2241 to provide that "no court, justice, or judge shall have jurisdiction" to consider either (1) habeas petitions "filed by or on behalf of an alien detained by the United States who has been determined by the United States to have been properly detained as an enemy combatant or is awaiting such determination" or (2) "any other action against the United States or its agents relating to any aspect of the detention, transfer, treatment, trial, or conditions of confinement of an alien who is or was detained by the United States" as an enemy combatant…..Further, the new amendment to § 2241 takes effect on the date of enactment and applies specifically "to all cases, without exception, pending on or after the date of the enactment of this Act which relate to any aspect of the detention, transfer, treatment, trial, or conditions of detention of an alien detained by the United States since September 11, 2001.
19) The detainee stated he met both a senior al Qaida lieutenant and Jose Padilla at a guest house in Bermil, Afghanistan. The detainee spoke privately with the al Qaida lieutenant, who told the detainee that the detainee's purpose was to train Afghans how to build explosive devices. If the Afghans did not build the device, the detainee was to assist in building them.
20) The detainee stated a senior al Qaida lieutenant promised him remote control explosives training in Pakistan. The detainee was then to return to Afghanistan to train Afghanis on how to build the devices. The detainee was told that the remote control would be used for booby traps, mines, and other improvised or homemade explosive devices.
21) The detainee stated he and the convicted al Qaida terrorist Jose Padilla traveled to meet with a senior al Qaida operative to discuss their plan. The detainee and Jose Padilla also met with one of Usama bin Laden's closest associates during the trip.
22) The detainee stated the senior al Qaida operative tasked the detainee and the convicted al Qaida terrorist with studying the feasibility of an alternative operation in which they would set fire to a hotel or gas station in the United States. The plan was dropped and the operative instead directed the convicted terrorist to devise a plan to destroy a building with explosives in the Central United States. The detainee was tasked to build the detonator. The plan initially involved blowing up 20 buildings simultaneously, but was scaled down to two or three buildings.
a) The detainee states he initially came to Afghanistan to leave his drug habit. The detainee had recently converted to Islam and saw leaving England as the only way to better himself.
b) The detainee claimed he did not swear bayat to Usama bin Laden because he did not fully understand the meaning of bayat and did not want to be under the control of al Qaida. The detainee stated that after he declined swearing bayat at al Farouq [training camp], the guards suspected the detainee was a spy.
to make an urgent request for access to the documents and evidence set out in the attached Appendix. Such documents and evidence are likely to be exculpatory in the likely forthcoming US military commission proceedings.
The context could scarcely be more important. The liberty (and possibly, the life) of Mr. Mohamed is at stake in US military commission proceedings, and there is a strong reason to believe that the UK holds exculpatory evidence that would assist in Mr. Mohamed's defence. As such, it is under a clear obligation to provide such material and assistance to Mr. Mohamed, to help ensure that he can challenge the serious allegations that are likely to be made against him. The public interest in the disclosure of such material is overwhelming.
Evidence is required to counter this. In particular, we seek the identity of the US agents involved, so that they can be traced and interviewed or subpoenaed.
Indeed, the US continues to deny that anyone was rendered to a foreign country by US agents to be tortured. It is crucial that Mr Mohamed rebut this denial in order to establish that evidence obtained under or as a result of torture is inadmissible. Since the US practice of extraordinary rendition for torture is a crime of universal jurisdiction under UK law pursuant to section 134 of the Criminal Justice Act 1988, there can be no conceivable basis on which this information should not be provided to assist in Mr Mohamed's defence. Indeed, it is our view that failure to provide this information would amount to complicity in torture, contrary to Article 4 of the UN Convention Against Torture which the UK has ratified and is committed to upholding.
Mr. Mohamed was subsequently transferred to Bagram Air Force Base, before being moved to Guantanamo Bay. Due to prohibitions imposed by the US government, Mr. Stafford Smith is unable to reveal the full nature of the case against Mr Mohamed to this firm. However, it is likely (based on the approach taken in other cases) that the US will seek to use so-called "clean team" interrogation evidence against Mr Mohamed. They will only seek to rely on evidence obtained from Mr Mohamed after his overt torture in Morocco and the Dark Prison. However, evidence of prior torture arranged or carried out by US agents is of course relevant to the admissibility and credibility of any such "clean team" interrogation evidence. In any event, we understand that British agents were often involved in the on-going interrogations at Bagram, and it is highly likely that the UK has plentiful evidence from multiple sources of allegations of coercion and abuse in Bagram (whether against Mr Mohamed or anyone else), or even of the homicides that were committed there by US forces. Please provide such evidence.
(iii) It was clear from reports that BM was held incommunicado from 10 April 2002 whilst a series of interviews was conducted by the United States authorities in April 2002 during which he had asked for a lawyer and had been refused.
(iv) In May 2002, the SyS and the SIS received reports containing information relating to BM's detention and treatment in Pakistan . The details of the reports are set out in the closed judgment.
(v) Our finding after the hearing was that the probability is that Witness B read the reports either before he left for Karachi or before he conducted the interview. Since the hearing we have been provided with the documents to which we have referred at paragraph 17 which show a briefing document was prepared for sending to him.
(vi) If, contrary to that finding we made after the hearing, Witness B had not read them prior to going to Karachi or after arrival at Karachi and prior to the interview, we have no doubt that other persons within the SyS, including persons more senior to Witness B, must have read the reports and must have appreciated what they said about BM's detention and treatment at Karachi. Those officers should have drawn to the attention of Witness B these matters either before or after the interview. It is now clear that the reports were studied by other desk officers.
(vii) In the light of Witness B's continued involvement with BM and the importance attached to BM by the SyS, it is inconceivable that he did not carefully read the materials after his return.
(viii) During the interview Witness B saw himself as having a role to play in conjunction with the United States authorities in inducing BM to cooperate by making it clear that the United Kingdom would not help unless BM cooperated. We can well understand why, given the exigencies of the time, Witness B put matters in such stark terms as he did. It is clear that what he said to BM was, in effect, that the United Kingdom would not attempt to assist him unless BM persuaded him that he was cooperating fully with the United States authorities.
(ix) By 30 September 2002, it was clear to the SyS that BM was being held at a covert location (either by the authorities of the United States or under the direct control of the United States ) which was not a United States military facility, such as Bagram. It is clear to us that they knew that he was not in a regular United States facility, that the facility in which he was being detained and questioned was that of a foreign government (other than Afghanistan) and that the United States authorities had direct access to information being obtained from him.
(x) The SyS were supplying information as well as questions which they knew were to be used in interviews of BM from the time of his arrest whilst he was held incommunicado and without access to a lawyer or review by a court or tribunal. They continued to supply information and questions after they knew of the circumstances of BM's detention and treatment as contained in the reports of the series of interviews in May 2002 and after September 2002 when they knew the circumstances related to his continued detention which we have described in subparagraph (ix).
It is of particular significance that the United States Government has refused to provide any information as to BM's location during the period between May 2002 and May 2004….It might have been thought self evident that the provision of information as to the whereabouts of a person in custody would cause no particular difficulty, given that it is a basic and long established value in any democracy that the location of those in custody is made known to the detainee's family and those representing him.
In these circumstances to leave the issue of disclosure to the processes of the Military commission at some future time would be to deny to BM a real chance of providing some support to a limited part of his account and other essential assistance to his defence. To deny him this at this time would be to deny him the opportunity of timely justice in respect of the charges against him, a principle dating back to at least the time of Magna Carta and which is so basic a part of our common law and of democratic values.
I have divulged to [Jawad's military defender] Major Frakt those items of discovery that in my professional judgment the Rules for Professional Conduct, the Military Commissions Act, and the Manual for Military Commissions (MMC) have required me to relinquish, consistent with my ethical obligations as a prosecutor. In particular, I have forwarded to him immediately those items of evidence I considered to be exculpatory or in mitigation of the acts for which Mr. Jawad stands accused. Where I was unable to provide him with evidence that he requested, I attempted to give him an explanation for why I could not provide the evidence. In some cases, that has meant acknowledging that we have been unable to locate such evidence despite extensive searches. In other cases, that has meant identifying certain agencies, offices, individuals, or procedures which were preventing the disclosure, although I can swear under oath that I never revealed any classified information Major Frakt had not been entitled to receive; nor have I singled out any particular individual for condemnation….
My ethical qualms about continuing to serve as a prosecutor relate primarily to the procedures for affording defense counsel discovery. I am highly concerned, to the point that I believe I can no longer serve as a prosecutor at the Commissions, about the slipshod, uncertain "procedure" for affording defense counsel discovery. One would have thought that after six years since the Commissions had their fitful start that a functioning law office would have been set up and procedures and policies not only put into effect, but refined….
In my view, evidence we have an obligation as prosecutors and officers of the court has not been made available to the defense. Potentially exculpatory evidence has not been provided. My own practice has been to relinquish immediately any piece of evidence I have come across to the defense, even at the peril of the case against Mohammed Jawad, and even though I sympathize and identify with the victims in the case. To take one example, when I discovered that Mr. Jawad had been placed in the "frequent flyer" program, I notified the defense, sought an investigation, spoke to witnesses who had not been identified by the law enforcement agencies assisting us, and, in the end, conceded in a court filing that I had been wrong in denouncing Mr. Jawad when he complained of the conduct toward him in one of the first Commission proceedings. My personal practice of disclosing exculpatory or mitigating evidence is not universally practiced at OMC-P. fn]Declaration of Lieutenant Colonel Darrel J. Vandeveld, September 22, 2008, at ¶¶ 4, 7, and 10, available at http://humanrights.ucdavis.edu/projects/the-guantanamo-testimonials-proj... At some point during the hearing, Mr. Jawad erupted into a series of harsh complaints about his mistreatment at Guantanamo, in which he described having been moved repeatedly from cell to cell in order to deprive him of sleep. Have at that point seen no evidence substantiating this claim, and for which I could divine no legitimate purpose, I dismissed his speech as an exaggeration….
Over the next few weeks, I set about trying to gather the records in response to Major Frakt's discovery request. I obtained a copy of the Detainee Incident Management System (DIMS) records maintained by JTF-GTMO. The DIMS are the official prison logs of all actions and activities for each detainee. Every move, medical appointment, chaplain visit, interrogation, and disciplinary action is recorded, and much more. While reviewing the records, I noticed that they referred to a suicide attempt by Mohammed Jawad on December 25, 2003, which he sought to accomplish by banging his head repeatedly against one of his cell walls. I sent a copy of the records to Major Frakt. Shortly thereafter, Major Frakt contacted me with some follow-up questions about the records. The records reflected 112 unexplained moves from cell to cell over a two week period, an average of eight moves per day for 14 days. Upon further investigation, we were able to determine that Mr. Jawad had been subjected to a sleep deprivation program popularly referred to as the "frequent flyer" program. I realized that Mr. Jawad had been telling the truth at the last hearing. I lack the words to express the heartsickness I experienced when I came to understand the pointless, purely gratuitous mistreatment of Mr. Jawad by my fellow soldiers.
Over the course of the summer, my concerns and doubts about the strength of the case continued to mount. Despite a diligent search for the videotape of Mr. Jawad's original interrogation by U.S. personnel, a search that included a service-wide inquiry about the tape and where it might be located, I was never able to find the tape. I also failed to locate two alleged eyewitnesses to the attack who had allegedly told a U.S. investigator that they had personally witnessed Jawad throw the grenade. All I had were two paragraph summaries of interviews conducted through an interpreter of these witnesses several months after the attack. The information on these summaries identifying these two witnesses consisted solely of their names, both of which were common in Afghanistan.
Ultimately, I decided that I could no longer ethically prosecute Mr. Jawad or, in good conscience, serve as a prosecutor at OMC-P. I have taken an oath to support and defend the Constitution of the United States, and I remain confident that I have done so, spending over four of the past seven years away from my family, my home, my civilian occupation—all without any expectation of or desire for any reward greater than the knowledge that I have remained true to my word and have done my level best to rise to our Nation's defense in its time of need. I did not "quit" the Commissions or resign; instead, I personally petitioned the Army's Judge Advocate General to allow me to serve the remaining six months of my two year voluntary obligation in Afghanistan or Iraq. In the exercise of his wisdom and discretion, he permitted me to be released from active duty. However, had I been returned to Afghanistan or Iraq, and had I encountered Mohammed Jawad in either of those hostile lands, where two of my friends have been killed in action and another one of my very best friends in the world had been terribly wounded, I have no doubt at all—none—that Mr. Jawad would pose no threat whatsoever to me, his former prosecutor and now-repentant persecutor. Six years is long enough for a boy of sixteen to serve in virtual solitary confinement, in a distant land, for reasons he may never fully understand. I respectfully ask this Court to find that Mr. Jawad's continued detention is unsupported by any credible evidence, any provision of the Detainee Treatment Act of 2005, the MCA, international law or our own Constitution. Mr. Jawad should be released to resume his life in a civil society, for his sake, and for our own sense of justice and perhaps to restore a measure of our basic humanity.
Q. Have you made this statement of your own free will, without benefit, promise, or reward?
A. Yes.
Q. Has the interviewing agent promised you anything?
A. No.
Q. Has the interviewing agent treated you fairly, humanely, with respect and decency?
A. Yes.
Q. During your interviews with the interviewing agent have you been provided and/or offered food, beverage and toilet facilities?
A. Yes.
Q. Have you been treated well since you have been in U.S. military custody?
A. Yes.
Q. While in U.S Military custody have you been treated in any way that you would consider abusive?
A. No.
Q. Has your ability to practice your religious beliefs been prevented since you have been in U.S. Military custody?
A. No.
Q. What would you say is your current state of health?
A. I feel healthy.
Q. While in U.S. Military custody, have you had access to medical care?
A. Yes.
Q. Are you willing to assist the U.S. Government by providing co-operative testimony and/or information during judicial proceedings and/or other legal processes?
A. I still haven't made up my mind.
Q. Has your co-operation thus far been of your own free will without benefit, reward, or promise?
A. Yes.
Q. Is the information contained in this statement the truth?
A. Yes.
If not we will have the benefit of understanding the position of the United States Government and the benefit of Judge Sullivan's views when we proceed to determine the remaining issues in relation to the provision of the 42 documents. These issues include [Mohamed's attorneys] submission that the Government of the United States is deliberately seeking to avoid disclosure of the 42 documents.
We must record that we have found the events set out in this judgment deeply disturbing. This matter must be brought to a just conclusion as soon as possible, given the delays and unexplained changes of course which have taken place on the part of the United States Government.
We refer in an annex (which it is not possible to make public now but which we will make public as soon as we can) to other matters before the Convening Authority.
i) Clause 2 provided that BM agree to plead guilty to charge 1 and 2.
ii) Clause 5 provided that BM understood that the maximum statutory penalty, should his pleas of guilty be accepted for each charge, was confinement for life.
iii) Clause 7 provided as follows:
"The accused agrees not to participate in or support in any manner any litigation or challenge, in any forum, against the United States or any other nation or official of any nation, whether military or civilian, in their personal or official capacity with regard to the accused's capacity with regard to the accused's capture, detention, prosecution, post conviction confinement and detainee combatant status. The accused further agrees to move to dismiss with prejudice any presently pending direct or collateral attack challenging the accused's capture, detention, prosection and detainee combatant status. The accused assigns to the United States all legal rights to sign and submit any necessary documents, motions, or pleadings to implement this provision on behalf of the accused."
iv) By Clause 10 BM agrees to submit to interviews and to appear before courts or Military commissions to testify if requested by the Government. By Clause 14, BM was to agree and accept as true an attachment setting out the facts supporting the charges. A copy of that was not provided to us.
v) By Clause 16, the maximum period of confinement that would be adjudged and approved would be 10 years, but the Convening Authority would order the suspension of the balance of the sentence over one year. A condition was imposed that the Convening Authority could decide that if BM failed to comply with the provisions of Clause 10 (assisting the prosecution) the Convening Authority could vacate the suspended portion of the sentence order it be served in full.
We have provided these paragraphs in this annex to the parties on the understanding that these are not to be made public at this time. We do so on the basis that we have been told that these negotiations are at this stage confidential.
However, in the light of the indications that the United States Government would require in any plea bargain a confidentiality statement by BM, we expressly enquired whether BM wished to pursue this argument. We did so as we could not, consistently with our principles of open justice and the rule of law, entertain this argument, take it into account in our decision and then refuse to make it public at an appropriate time. We were told that, notwithstanding this consequence, BM wished this issue to be addressed by us. He wanted it to be made clear to the world what had happened and how he had been treated by the United States Government since April 2002.
Accordingly, at an appropriate time after the plea bargain discussions are finally resolved, one way or the other, we shall make public this annex. We should add no plea agreement will be effective to prevent the making public of this annex, even if the proceedings are subsequently discontinued on terms that include a provision similar to clause 7 (set out at paragraph 5 iii) above). This is because this annex is an integral part of our judgment given on 22 October, 2008.
I am a lawyer and a soldier, and I act for Binyam Mohamed, who is currently on a hunger strike in Guantánamo Bay. I came to England to ask everyone to work as hard as possible to get Binyam home. The new administration in the US has said that it wants to close Guantánamo. The UK government says that it has been asking for Binyam's return since August 2007. Despite that, and despite England being the US's closest ally, Binyam is still in a cell in Guantánamo Bay. I believe that now is the time to press the new administration.
Guards told Binyam that he was going home in December, and so he is on a hunger strike (together with 50 or so other prisoners). This means that he is tube-fed while strapped to a chair, twice a day. Binyam has lost so much weight that he speaks of the pain he suffers from being strapped to the chair for hours each day—he speaks of feeling his bones against the chair. I am really worried that if Binyam does not come home soon, he will leave Guantánamo Bay in a coffin.
I profoundly hope that he is not being kept in Guantánamo to avoid information surrounding his rendition and torture [from] coming out. Clive Stafford Smith and I are testifying at the All Party Parliamentary Group on Extraordinary Rendition in Portcullis House, Westminster today, which is open to members of the public. I understand that a number of intelligence agents and politicians will also speak in an attempt to get Binyam home. I am meeting with David Miliband this Thursday, and I hope that he will assure me that Binyam is coming home.
I hope you will understand that after everything I have been through I am neither physically nor mentally capable of facing the media on the moment of my arrival back to Britain. Please forgive me if I make a simple statement through my lawyer. I hope to be able to do better in days to come, when I am on the road to recovery.
I have been through an experience that I never thought to encounter in my darkest nightmares. Before this ordeal, "torture" was an abstract word to me. I could never have imagined that I would be its victim. It is still difficult for me to believe that I was abducted, hauled from one country to the next, and torture in medieval ways—all orchestrated by the United States government….
And I have to say, more in sadness that in anger, that many have been complicit in my own horrors over the past seven years. For myself, the very worst moment came when I realised in Morocco that the people who were torturing me were receiving questions and materials from British intelligence. I had met with British intelligence in Pakistan. I had been open with them. Yet the very people who I hoped would come to my rescue, I later realised, had allied themselves with my abusers.
I am not asking for vengeance; only that the truth should be made known, so that nobody in the future should have to endure what I have endured.
[D]isclosure of these documents by order of our courts or otherwise by United Kingdom authorities would seriously harm the existing intelligence sharing arrangements between the United Kingdom and the United States and cause considerable damage to national security. I have also assessed that it may damage international relations of the United Kingdom more generally in liaison arrangements with third parties.
In reaching my assessment I have taken into account the fact that the US administration on the basis of clear, consistent, and forceful communications, both written and oral, form senior officials, including at the highest national security levels from all of the departments and agencies concerned, have indicated that such damage is likely to occur.
The court would later comment,
We characterized at several paragraphs in our fourth judgment that the reaction of the Bush Administration was a "threat." After the handing down of our judgment, the Foreign Secretary made a number of public statements disagreeing with our assessment that the statement made by the Bush Administration of the consequences which would follow could be characterized as a threat. In our judgment that is a matter of semantics. Whether this is characterised as "a threat" or "as a statement of consequences which will follow," what matters is substance.
On the evidence placed before us, it could not be disputed that the Bush Administration had made it clear that if the information in the redacted paragraphs was made public then reconsideration would be given to intelligence sharing arrangements. It was that specific matter, given the importance of intelligence sharing arrangements to the national security of the United Kingdom, that led us to conclude that the balance lay in favour of maintaining the redaction of the paragraphs from the first judgment.
She was fully aware of the issues and reiterated the US position on public disclosure in this case had not changed with the change in Administration, the protection of intelligence going beyond party politics. She indicated that the US remained opposed to the public disclosure of US intelligence information in this case. The US Secretary indicated further that public disclosure would affect intelligence sharing and would cause damage to the national security of both the US and the UK. Comment by those representing the National Security Council at the same meeting made it clear, if further clarification was needed, that this was also the position of the White House.
It was reported that a new series of interviews was conducted by the United States authorities prior to 17 May 2002 as part of a new strategy designed by an expert interviewer.
v) It was reported that at some stage during that further interview process by the United States authorities, BM had been intentionally subjected to continuous sleep deprivation. The effects of the sleep deprivation were carefully observed.
vi) It was reported that combined with the sleep deprivation, threats and inducements were made to him. His fears of being removed from United States custody and "disappearing" were played upon.
vii) It was reported that the stress brought about by these deliberate tactics was increased by him being shackled in his interviews
viii) It was clear not only from the reports of the content of the interviews but also from the report that he was being kept under self-harm observation, that the interviews were having a marked effect upon him and causing him significant mental stress and suffering.
ix) We regret to have to conclude that the reports provided to the SyS [security services] made clear to anyone reading them that BM was being subjected to the treatment that we have described and the effect upon him of that intentional treatment.
x) The treatment reported, if [it] had been administered on behalf of the United Kingdom, would clearly have been in breach of the undertakings given by the United Kingdom in 1972. Although it is not necessary for us to categorise the treatment reported, it could readily be contended to be at the very least cruel, inhuman and degrading treatment by the United States authorities.
Flight records obtained by a European Parliamentary inquiry and a parallel investigation by the Council of Europe into CIA activities in Europe, together with other flight records obtained from national civil aviation authorities in Portugal, Spain, the Netherlands, and Italy in the course of criminal and journalistic investigations in those countries, reveal that over a four-year period, beginning on or around December 16, 2001, Jeppesen provided flight and logistical support to at least fifteen aircraft which made a total of seventy flights. The European Parliament and the Council of Europe concluded that all of these flights were made in the context of the extraordinary rendition program.
Among the fifteen aircraft serviced by Jeppesen are a Gulfstream V aircraft formerly registered with the Federal Aviation Administration ("FAA") as N379P, and a Boeing-737 aircraft formerly registered with the FAA as N313P. On information and belief, Jeppesen provided flight and logistical services for all of the CIA flights for these two aircraft involving the rendition of terror suspects.
On July 21, 2002, the Gulfstream V aircraft was used to transport Plaintiff Binyam Mohamed from Islamabad to Rabat.
On January 22, 2004, the Boeing-737 aircraft was used to transport Plaintiff Binyam Mohamed from Rabat, Morocco to a U.S. detention facility in Afghanistan.
First, this lawsuit puts at issue whether or not Jeppesen assisted the CIA with any of the alleged detention and interrogation…. Disclosure of information that would tend to confirm or deny whether or not Jeppesen provided such assistance – even if such confirmations or denial come from a private party alleged to have cooperated with the United States and not the United States itself – would cause exponentially grave damage to the national security by disclosing whether or not the CIA utilizes particular sources and methods and, thus, revealing to foreign adversaries information about the CIA's intelligence capabilities or lack thereof.
Second, this lawsuit puts at issues whether or not the CIA cooperated with particular foreign governments in the conduct of alleged clandestine intelligence activities. Adducing evidence that would tend to confirm or deny such allegations would result in extremely grave damage to the foreign relations and foreign activities of the United States.
In the name of God the Merciful. Mr. President and Members of the Tribunal, I would have liked to have spoken to you today on my own, but I have been having seizures lately which have temporarily affected my ability to speak and write without difficulty. Therefore, I asked my Personal Representative to speak on my behalf. I hope from you justice, and I know that is what you seek.
Do not make the mistake [redacted] when they first arrested me on 28 March 2002. After months of suffering and torture, physically and mentally, they did not care about my injuries that they inflicted to my eye, to my stomach, to my bladder, and my left thigh and reproductive organs. They didn't care that I almost died from these injuries. Doctors told me that I nearly died four times. Then they transferred me in a way that a normal, ordinary person would be embarrassed to be treated, [four line redaction]. They did this to me because they thought I was the number three leader in al Qaida and a partner of Usama Bin Laden, as is mentioned in the unclassified Summary of Evidence against me.
After a few months went by, during which I almost lost my mind and my life, they made sure I didn't die. Therefore, year after year, I am losing my masculinity. Even my beard is falling out, not from injuries but from the lack of treatment. [Redacted[ discovered after all of this that I am not Usama Bin Laden's partner, and that I am not number three in al Qaida, and that I'm not even in al Qaida.
After this, I started feeling the symptoms of my 1992 injury to my head, including the complete loss of my memory and an inability to speak, read, or write. But these abilities slowly came back to me although I still have shrapnel in my head. Also, another form of torture was when they wouldn't give me my diary, which caused me to have nearly 40 seizures. The mental anguish that came from broken promises in which they said that they would give me my diary back contributed to the seizures. Most importantly, my diary can refute the accusations against me and it can show that I am personally against the sort of acts that were committed.
Dear Members of the Tribunal, in saying all of this, I am not trying to gain your pity. I am only trying for you to see the big picture, the true picture not the picture depicted by the media, which the CIA found out too late. Therefore, I would like you to know this truth before you make your decision. I know this is not a criminal trial, as you say, but all I hope from you is that you try me for something that I am proud of having done, not something I didn't do or am against, nor something that would shame me before the world.
I am not here to lie to you, or cheat you, or to lie to myself by saying that I am not an enemy of your injustice. I have been an enemy of yours since I was a child because of your unjust acts against my people, the Palestinians, through your help and partnership with Israel in occupying our land and by killing our men and raping our women and kicking out our people and turning them into refugees for more than 60 years. Until now, half of my people are refugees in refugee camps. I cannot deny that, since back when I was a child, I liked a lot of things in your country and your history and your culture. I am not lying by saying that, but it is the truth.
My moral position is not against the American people or America, but against the government which I see as a partner in oppression. A partner of a killer is also a killer. I also resent the military that is used by this government to inflict this oppression. In other words, dear members of the military, I am against you. My words are not hypocrisy, and I do respect you. I believe that even my enemy should be respected.
I don't deny that I am an enemy of your injustice, but I deny that I am an enemy combatant. I never conducted nor financially supported, nor helped in any operation against America. Yes, I write poetry against America and, yes, I feel good when operations by others are conducted against America but only against military targets such as the U.S.S. Cole. But, I get angry if they target civilians, such as those in the World Trade Center. This I am completely against, [one line redaction] My diary will prove that some of our accusations were not in my plans. How can I plan for operations that I don't believe in? What you call plans about what Bin Laden did on 9/11, I wrote in my diary in response to Bin Laden's action, noting that he had many choices on how to conduct war which are wrong in Islam, such as race war, killing civilians, burning cities, and targeting civilians in markets. This is what people of war do, and I am sorry you are one of them. This is the truth. If someone reads my diary with a biased mind, he will misinterpret my meaning.
Dear Members, this is what I have for you. As you have noticed, it wasn't a defense that contained much evidence [one line redaction] I also do not have a lawyer to defend me in front of this Tribunal. Take notice that if a lawyer was present, he would not have allowed me to say what I said because I said the truth without reservation. And I am willing to be hung for it for something I have done. I am not a lawyer to defend myself. I can't even speak clearly, temporarily, God willing. It is only to demonstrate to you.
ABU ZUBAYDAH: No. [conversation between Detainee and Language Analyst discussion the President's question] Actually, most of what they say I did in first months they take against me even for some things or like this they take I was—I was nearly half die plus what they do torture me—it—There I was not afraid from die because I do believe I will be shahid [Language Analyst translates] martyr, but as God make me as a human and I weak, so they say yes, I say okay, I do I do, but leave me. They say no, we don't want to. You to admit you do this, we want you to give us more information. This part I can't because I don't know. I say, "yes, I was partner of Bin Laden. I'm his number three in al Qaida and I'm his partner of [Ahmed] Ressam." I say okay but leave me. So they write but they want what's after, more information about more operations, so I can't. They keep torturing me, tell my why them self they discover you are not torturing. So some, not all, some what you have here even me say of me here in the paper, it is from FBI. But I don't know of the dealing; I was in the hands of FBI or CIA. But FBI people when I met them in the last month, I [one line redaction] And they have my part—four part of my diary and the origin is with them. So who's torture me taking over information. Maybe they are FBI, maybe are CIA, I don't know, till now. So here they say FBI—FIB, they not talk about the CIA, so I don't know.
PRESIDENT: So did you make statements during that treatment?
ABU ZUBAYDAH: A lot.
PRESIDENT: And what you said, was it correct, was it incomplete or was it not correct or untrue in any way?
ABU ZUBAYDAH: They say "this in your diary." They say "see you want to make operation against America." I say no, the idea is different. They say no, torturing, torturing. I say, "okay, I do. I was decide to make operation." This first part the second part, okay. What is the operation? I not have the specifics; I talk about open idea. So most of this here the CIA, they admitted that I admitted too. [two line redaction] They start asking again and again about this thing. I tell them no. [one line redaction] I was like this, I was like this, I want to finish this. And something they not believe all what I do, say in that time. Some they believe, some they not believe. I don't know what they need or not need. They only ask and I answer.
PRESIDENT: In your previous statement, you were saying specific treatments. Can you describe a little bit more about what those treatments were?
ABU ZUBAYDAH: [17 line redaction]
PRESIDENT: I understand.
ABU ZUBAYDAH: And they not give me chance all this. [68 line redaction] they start tell me the time for the pray and slowly, slowly circumstance became good. They told me sorry we discover that you are not number three, not a partner even not a fighter.
PRESIDENT: So I understand that during this treatment, you said things to make them stop and then those statements were actually untrue, is that correct?
ABY ZUBAYDAH: Yes.
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