FBI-CIA Collaboration
Reveals Blatant Illegitimacy of Guantánamo Trials
A US Naval officer stands at
the entrance of the US prison at Guantanamo Bay, Cuba, on October 22, 2016.JOHN
MOORE / GETTY IMAGES
January
6, 2019
Earlier last month, lawyers
for Moath Hamza Ahmed al-Alwi, a Yemeni citizen
who’s been detained in Guantánamo since January 16, 2002, petitioned the Supreme Court to review
his case. His legal team argues that the US government lacks the authority to
detain al-Alwi under the 2001 Authorization for Use of Military Force and that
indefinite detention is illegal. Previously, the district and circuit courts
denied al-Alwi’s habeas petition, which is why his lawyers are going to the
Supreme Court. Al-Alwi’s case is a reminder of Guantánamo’s reality: The
military commissions system is a kangaroo court designed to cover-up CIA
torture while dozens of men remain indefinitely detained, and it’s likely that
new prisoners could be transferred to Guantánamo.
Since 2002 when the Guantánamo
prison first opened, over 700 prisoners have spent time in Guantánamo and most
of them have been released since then. Currently, 40 detainees remain held in Guantánamo and only five are
cleared for transfer, while most have not been charged or tried. Dubbed
the “forever prisoners,” 26 are specifically
held in indefinite detention without charge or trial. Meanwhile, only two
prisoners have already been convicted and seven have been charged in the
military commissions system. Part of the US government’s justification for
indefinitely detaining certain Guantánamo detainees is that they are both too difficult to prosecute, because of
inadmissible and often torture-obtained evidence, and too dangerous to release.
However, recidivism for former Guantánamo prisoners is low — 4.6 percent. In other words, it is rare that released Guantánamo prisoners
participate in terrorist or militant activity. Indefinite detention violates international human rights law,
particularly the International Covenant on Civil and Political Rights.
New Prisoners?
During the 2016 presidential
campaign, Donald Trump promised to keep Guantánamo open and load it up with
“bad dudes.” President Trump has certainly kept his promise of keeping the
prison open. In addition, he’s elevated torturers to high levels in his
administration. CIA Director Gina Haspel oversaw the CIA’s black site in Thailand
and the torture that occurred there, including of Abd al-Rahim al-Nashiri.
Even though no new “bad dudes”
have arrived, the Trump administration is contemplating sending new prisoners
to Guantánamo. Should any new detainees come to Guantánamo, they are most likely to be ISIS fighters. American
and British officials have pondered sending captured ISIS fighters, such as Alexandar Kotey
and El Shafee ElSheikh to Guantánamo. Kotey and ElSheikh are two British
nationals and Islamic State militants who are currently detained in Syria. The
men were captured by the largely-Kurdish Syrian Democratic Forces, a US ally, in
February. They allegedly belonged to a four-person ISIS cell in Britain — known
as the Beatles because of the members’ British accents — that is suspected of
torturing and killing American and British hostages. Former Attorney General
Jeff Sessions supported sending them to Guantánamo, while British officials say
they are not opposed to the idea.
The detainees who would be
potentially sent to Guantánamo “would be drawn from a group of about 600
currently held by the US-backed Syrian Democratic Forces in a rebel-controlled
area of Syria,” according to NBC News. Many detainees are
foreign fighters ranging from “foot soldiers plucked off the battlefield to the
highest value detainees who were tracked and captured with help from the US
military.”
This is the reality of
perpetual war. Like the Bush and Obama administrations, the Trump
administration points to the 2001 Authorization for Use of Military Force,
which gives the president power to use force against nations and terrorists
linked to 9/11, as the legal authority for war-on-terror policies, such as
drone strikes, indefinite detention and keeping Guantánamo open. In an October
2017 Senate Foreign Relations Committee, then-Secretary of State Rex
Tillerson stated that the 2001 AUMF “provides
statutory authority for ongoing US military operations against al-Qaida, the
Taliban, and associated forces, including against the Islamic State in Iraq and
Syria, or ISIS,” along with a “domestic legal basis for our detention
operations at Guantánamo Bay.” “Associated forces” is a term created by the Obama administration
to cover groups fighting alongside al-Qaeda, which expanded the scope of the AUMF. In
that same hearing, Tillerson and Defense Secretary Jim Mattis said there should be no geographic or
time limit to the War on Terror.
The 2001 AUMF provides the
legal basis for the US government to justify keeping a war-on-terror prison at
Guantánamo Bay. Guantánamo is the prisoner-of-war camp for the endless war on
terror. This makes the detainees prisoners-of-war in an endless war. However,
loosely-connected militant and terrorist groups like al-Qaeda and “associated
forces” do not constitute legitimate parties “parties” to an armed conflict,
according to a UN report challenging the US
government’s targeted killing program. Therefore, the global War on Terror goes
against international legal standards that prohibit waging wars against such
amorphous enemies. As a result, this calls into question the existence of the
Guantánamo Bay prison.
This is also why al-Alwi is
challenging his detention. Most Guantánamo detainees, including al-Alwi, were
captured during the early months of the war in Afghanistan when the United
States military was engaged in actual combat. In their petition, al-Alwi’s lawyers argue that because
the United States largely ended combat operations in Afghanistan and is mostly
supporting the Afghan military, which is doing most of the current fighting,
the war in Afghanistan has radically changed. As a result, the relevant
conflict in question has virtually ended, which, his lawyers argue, is a reason
to end al-Alwi’s indefinite detention. They also argue that indefinite
detention violates the laws of war, international human rights law and raises
constitutional questions. “Continued imprisonment raises serious constitutional
questions — which the Court should avoid by limiting AUMF detention authority —
and violates the law of war and other international norms,” they write in the
petition.
CIA Influence on FBI Clean Team
Meanwhile, the military
commissions — which were established by the Bush administration to try and
convict Guantánamo detainees for acts of terrorism — are in disarray. Last
August, the former judge for the 9/11 case, Col. James Pohl, shortly before
he retired, prohibited using statements made by
detainees to the FBI “clean team” as evidence. The clean team was a group of FBI and
military interrogators who, in late 2006, set out to collect the same
information the CIA previously obtained from the half dozen high-value
detainees who were held in CIA black sites. Those detainees, who were
transferred to Guantánamo in 2006, include the alleged 9/11 plotters. The clean
team statements were produced through traditional, rapport-building
interrogation techniques rather than torture. The US government is relying on
those statements to prosecute the alleged 9/11 plotters and USS Cole bomber.
However, the FBI clean team was far from independent; its interrogation
strategy and questions had to meet CIA approval — approval from the very agency
responsible for the torture.
There are two major cases
currently being tried in the Guantánamo military commissions — the USS Cole
bombing in 2000, in which 17 US sailors were killed, and the September 11, 2001
terrorist attacks, which killed nearly 3,000 people. The alleged mastermind of
the USS Cole bombing is Abd al-Rahim al-Nashiri, while the five alleged 9/11
plotters are Khalid Sheikh Mohammed, Walid bin Attash, Ramzi bin al Shibh,
Ammar al Baluchi and Mustafa al Hawsawi.
All six defendants were among
the 119 people detained, interrogated and tortured in secret CIA
prisons across the globe. The CIA inflicted a range of torture and abuses, including physical beatings, threats
against relatives, sexual abuse, waterboarding, cramped confinement, mock
executions and stress positions. Torture is both an ineffective interrogation technique and a violation
of international and US domestic law.
Under the military commissions
rules, the prosecution cannot use statements the detainees gave to the CIA
while they were held in secret prisons. Therefore, according to the Miami Herald, “as a
substitute, prosecutors had planned to have FBI agents describe what the
suspects told them soon after their September 2006 transfers to Guantánamo in
supposedly consensual interviews.” However, Pohl ruled that the prosecution cannot use CIA detainees’ statements
given to the FBI clean team as evidence. In the ruling, Pohl declared, “Under the specific facts of this
case, in order to provide the defense with substantially the same ability to
make a defense as would discovery of or access to the specific classified
information, the Government will not be permitted introduce any FBI Clean Team
Statement from any of the Accused for any purpose.”
The prosecution opposed the judge’s ruling since the FBI
clean team statements are prosecution’s key evidence in the 9/11 case.
Recently, prosecutors pressured the new judge, US Marine Col. Keith A. Parrella,
to allow the FBI clean team statements to read details from court-approved
summaries of what the CIA did to its detainees in the secret prisons,
particularly Khalid Sheikh Mohammed. The FBI clean team was sent to interview
the suspected terrorists in late 2006. Military commissions prosecutors want to
use the responses obtained during these interrogations as evidence in the 9/11
and USS Cole bombing cases.
In order for the statements
given to the FBI clean team to be reliable, the clean team had to be
independent of CIA influence. The fact that the six men were tortured in CIA
custody taints the case against them. Information obtained through torture is
unreliable, in addition to inadmissible. So it would be hard to “un-torture”
the defendants and use that evidence in prosecution. A retired Navy rear
admiral John D. Hutson told the Washington Post in February
2008, “There’s something in American jurisprudence called ‘fruit of the
poisonous tree’: You can clean up the tree a little but it’s hard to do. Once
you torture someone, it is hard to un-torture them. The general public is going
to be concerned about the validity of the testimony.” In 2013, James Connell
III, defense attorney for Ammar al-Baluchi, argued similarly to Truthout, “If a
statement is truly independent of prior coercion, that statement can be used in
court. The problem is that after years of secret detention, it will be
difficult for the prosecution to establish that the most recent interrogation
is truly independent of what came before.” The prosecution’s case’s validity
relied on the independence of the FBI clean team.
Now, it seems the FBI clean
team was far from independent. A January 10, 2007, FBI memo disclosed to the al-Hawsawi
defense team last December in discovery and obtained by Truthout, details the
rules the FBI clean team had to follow when interviewing high-value detainees,
such as the accused 9/11 plotters. Essentially, the FBI clean team could
interview detainees, but their interrogation strategy and questions had to meet
CIA approval. For example, the memo states, “All classified materials to be
used during a detainee interview will be reviewed by the appropriate agency for
authorization to use the information in an interview. Agents should discuss
their interview strategy with the assigned DoD/DOJ prosecutor prior to the
interview to identify areas of questioning necessary to meet the elements of
the military commission offense.” It also states, “No statement made by a
detainee while that detainee was in the custody of an intelligence agency, or
any evidence obtained as a result of such statement, will be used in an
interview unless approved in advance by the assigned prosecutor and the appropriate
intelligence agencies.” Those detainee statements could include allegations of
torture.
During last December’s pretrial
hearing, defense attorneys were able to cross-examine two FBI special agents
who were assigned to the clean team. When al-Hawsawi’s defense lawyer Walter
Ruiz asked if the FBI clean team had to follow
specific rules when referring to statements of “specific torture that Mr.
al-Hawsawi alleged,” one of the agents said, “As I understood the ground rules
at that time, any statements by any high-value detainees during that time, the
2003, roughly, to 2006 time frame, if I wanted to use any of that material —
and I was not aware of the substance of that material — if I were to use any of
that material, that would have required clearance from the CIA.” Essentially,
rather than conduct an independent and impartial investigation, in order to ask
questions to the detainees, the FBI had to run their questions by the CIA for
approval.
In addition to having questions
meet CIA approval, the same memo regulates how the FBI can document their
interviews with detainees. FBI agents had to “document the interview” on a CIA
laptop and a draft of the interview had to be sent to the CIA for
classification review. If a detainee mentioned instances of torture they
experienced or details about CIA black sites, that information was considered
classified by the CIA. The memo states, “During the interview process, a detainee
may provide the agents with information concerning the interrogation techniques
previously used on him and his detention locations. Such information, even
though coming from a detainee, is deemed by the CIA to be national security
information.” Since that information is classified, the FBI had it in a
separate document that only the CIA could possess.
Moreover, a 2008 Department of
Justice Inspector General report found
that in 2003 the FBI and CIA entered into a memorandum of understanding (MOU)
concerning FBI agents who assisted the CIA “in debriefing certain high value
detainees and ‘sensitive CIA debriefing sites.'” The memo addressed “how
information obtained by FBI agents detailed to such sites will be used and
protected” and the FBI “agreed to observe strict need-to-know principles and
limit knowledge of the existence of the MOU.” This suggests that the CIA had a
significant degree of control over information obtained by FBI agents assisting
in the debriefing of high-value detainees.
The US government also imposed
restrictions on defense lawyers’ ability to investigate and interview potential
witnesses, namely CIA agents who know what happened to their clients in CIA
custody. This is part of the military commissions’ secrecy regime. Another part
is a gag order prohibiting defense attorneys, who hold top-secret security
clearances, from disclosing additional information they know about torture to
their clients and the general public because that information is classified.
Despite public disclosures, there are still many details about the CIA torture
program that remain classified. The 2014 Senate report on the CIA torture program
publicly released only 528 out of the full 6,000-page report — the rest remains
classified. So defense attorneys cannot publicly disclose details of torture they know that are not
officially declassified, even if those details are important for their client
and the public to know. Another part is classifying defendants’ thoughts and memories of the torture they
experienced as “state secrets.”
Restricting interviews with CIA
agents is another part of this system. Last year, the prosecution threatened defense attorneys with
criminal charges if they tried to interview CIA agents. Connell told Truthout,
“Prior to the restrictions on interviews, we had an extensive investigative
effort to locate and interview people with knowledge of the black sites and the
torture which went on there. The government apparently believed we were getting
too close to the truth, so they threatened to prosecute the defense if they
continued to interview CIA witnesses outside a strictly controlled pseudonym
protocol.” This “pseudonym protocol” refers to a government-provided codename
for CIA agents. Defense attorneys are not given the agents’ real names.
Ruiz told Truthout that the
prosecution has “come out with a series of protective orders claiming national
security privilege and come up with a number of procedures that do obstruct our
ability to conduct a meaningful capital defense investigation.” He added, “They
won’t reveal the identities of the CIA torturers and they won’t reveal the
black sites.” In addition, the prosecution is refusing to allow the CIA agents
to physically meet with defense attorneys for face-to-face interviews.
The military commissions are
still in pre-trial phase and no trial date has been set for the 9/11 case.
Given the conservative make-up of the Supreme Court, it seems unlikely that the
Court will rule in favor of al-Alwi. Like his predecessors, Trump is continuing
the post-9/11 perpetual war machine — a war with no end in sight.
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Adam Hudson is a journalist, writer and musician based in the
San Francisco Bay Area. He typically covers US foreign policy and national
security, Guantánamo, police brutality and Bay Area gentrification. His work
has appeared in Truthout, AlterNet, Al Akhbar English, teleSUR English and The
Nation magazine. On the side, he plays drums in an alternative rock band called
Sunata.
Donations can be sent
to the Baltimore Nonviolence Center, 325 E. 25th St., Baltimore, MD
21218. Ph: 410-323-1607; Email: mobuszewski2001 [at] comcast.net. Go to http://baltimorenonviolencecenter.blogspot.com/
"The master class
has always declared the wars; the subject class has always fought the battles.
The master class has had all to gain and nothing to lose, while the subject
class has had nothing to gain and everything to lose--especially their lives."
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