DOD and DOJ Continue to Make Outrageous Arguments in Gitmo Cases

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Monday, August 24, 2009 at 8:49 am

Late last week, in a decision that got some attention over the weekend, U.S. District Court Judge Ricardo Urbina ruled that a Pakistani man who has been held at the Guantanamo Bay prison since 2004 has the right to submit written questions to self-described 9/11 mastermind, Khalid Sheikh Mohammed. After all, the government’s case rests on the claim that the prisoner, Abdul Raheem Ghulam Rabanni, was an al-Qaeda operative who worked closely with Mohammed, also known as KSM. Rabanni says he was just a low-level household laborer for KSM, though, not a terrorist. So if anyone can provide evidence to support either his or the government’s claims, it’s KSM himself.

The decision suggests that Guantanamo detainees may get more access to evidence that could prove their innocence than the government has hoped.

What’s gotten less attention, though, is how and why the Defense and Justice Departments “adamantly opposed” the prisoner’s request, as the judge described it in his opinion.

According to Urbina, the government claimed that allowing lawyers to submit even written questions to KSM would impose an “impermissible burden” on the government — even though KSM is imprisoned, like Rabanni, within easy reach of government officials, right at Guantanamo Bay. The government also argued that KSM could likely “transmit through any discovery responses, information that is classified at higher security levels” and that “it is impossible to know what he may reveal in his responses to interrogatories” — even if the government gets to read the responses and redact any sensitive information before turning them over to the court. (I guess the government worries he’ll be communicating to his compatriots in code, but it’s hard to imagine that after being in U.S. custody for more than six years he’d have any useful information to share.)

Urbina, quite reasonably, didn’t see how that would endanger national security, and ruled that he’ll allow the questions, so long as they’re narrowly tailored to proving Rabanni’s role, and the government gets to review and redact any sensitive information in them.

But there’s more. The government also objected to producing information about the circumstances surrounding the Rabbani’s questioning at the Bagram prison in Afghanistan and at Guantanamo Bay. Rabanni, like many detainees at Bagram and Gitmo, claims he was tortured and subjected to abusive interrogation techniques. But the government says that while he was at Bagram, he “recanted the inculpatory statements” he made in Pakistan and Afghanistan — so any other statements he made later on must not have been the result of abuse, even if he was abused again later. Therefore, the government claims, any evidence of his treatment at U.S.-run facilities is irrelevant.

Urbina didn’t buy that argument, either.  His own words explain it best:

Here, the petitioner asserts that after his capture, he was taken to the “Dark Prison,” where he was held for approximately seven months kept in the pitch dark, deprived of food and sleep, chained to a wall and threatened with hanging.  It was during this period that the petitioner allegedly “confessed” to having had a relationship with Osama Bin Laden. The petitioner asserts that he was then taken to an underground prison, where he was held for nine months, during which time he was kept cold and hungry and was subjected to frequent, threatening interrogations. The petitioner was then transferred first to Bagram and then to Guantanamo Bay, all the while subjected to harsh treatment and constant interrogation.  These allegations detail an unbroken stream of coercion, abuse and torture stretching from the petitioner’s capture in Pakistan to his more recent interrogations in Guantanamo Bay.

The mere fact that the petitioner allegedly recanted his prior inculpatory statements while at Bagram is insufficient to insulate subsequent statements from the taint of prior coerced statements, given the unbroken stream of interrogations to which the petitioner was subjected before and after Bagram as well as the highly coercive nature of the conduct alleged.

In other words, Urbina said the fact that the prisoner confessed under torture, then took back his confession doesn’t mean statements that he made later, after allegedly being tortured and abused some more, are any more reliable than his phony confession (or, for that matter, his recantation). And it certainly doesn’t mean that any evidence of his treatment at the hands of his captors is irrelevant.

Could that really be what the Obama administration’s Justice and Defense Department were arguing to the court?

You betcha.

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