Soldiers at Bagram Air Base, Afghanistan (army.mil)

GUANTANAMO BAY — His nickname wasn’t “Monster,” he admonished the lawyer. It was “The Monster.” That was what the Bagram Collection Point’s interrogators, guards — and most especially detainees — called Army interrogator Damien Corsetti. And it was important to him that the court correctly record his story.

Back then — in 2002 at Bagram, and later at Iraq’s notorious Abu Ghraib prison — Corsetti was as fearsome as his handle. Although acquitted, he went before a court-martial proceeding related to the abuse of a detainee in Iraq. Now, Corsetti is an unemployed veteran of two wars, unable to work because of post-traumatic stress disorder, and an infamous figure in the U.S.’s post-9/11 history of torture.

[Security1] But he testified on Wednesday morning from a remote location on behalf of one of the former inmates at Bagram whom he used to intimidate and brutalize: Omar Khadr, the 23-year old Canadian citizen who has been in U.S. custody for nearly eight years. The large man once known as “The Monster” — the nickname is tattooed in Italian on his stomach — provided rare sworn testimony about the abuse of detainees in U.S. custody in the Afghanistan war’s early days, the product of what he described as command pressure for intelligence and unclear rules about permissible interrogator behavior.

Corsetti didn’t directly interrogate Khadr, he told the court, but he spoke to Khadr at least two to three times a week from August to October 2002, after which Khadr was transferred here. “He was a child,” said an occasionally emotional Corsetti. “He was a 15-year old child who had been blown up, shot and grenaded. He was in one of the worst places on the earth. How could you not have compassion for that? … He was in the wrong place for a 15-year old child to be.”

It was the first moment during seven days of Khadr’s pre-trial hearing, meant to determine whether the statements Khadr gave to his interrogators may be used against him in his July military commission, that an interrogator described Khadr as a “child.” Other interrogators, testifying for the prosecution, described him clinically as a “15-year old” or “mature” or otherwise resisted the characterization of Khadr as a juvenile. Almost simultaneously with Corsetti’s testimony, Radhika Coomaraswamy, the United Nations special representative for children and armed conflict, called for Khadr’s release and decried the “dangerous international precedent” the Obama administration is setting by prosecuting him for war crimes.

That wasn’t the only time Corsetti contradicted earlier testimony. The witness before Corsetti, Army Col. Donna Hershey, the former chief nurse at Bagram, testified that she never allowed any interrogators to question detainees in Bagram’s hospital. But Corsetti testified that the first time he met Khadr, and the only time he was present for any questioning of Khadr, occurred in the hospital, on July 29, 2002, two days after Khadr suffered near-fatal wounds during his capture after a Khost, Afghanistan firefight.

“I would assume from his condition he was under excruciating pain,” Corsetti said. Despite the pain, and despite the questioning’s presentation to the court as a preliminary, in-processing brief, the questioning appeared to involve the acquisition of intelligence information, including “what kind of military training” Khadr had; what Khadr believed his offenses were that landed him in Bagram; his “knowledge of Soviet-issued weapons”; and general questions to assess “his cooperation and knowledgeability.” That spoke directly to the purpose of the hearing: To determine whether Khadr’s statements to interrogators, and information that followed from them, were coerced from him to a point rendering them unusable by the government at trial.

The pressure to acquire intelligence information was the overriding theme of Corsetti’s testimony. His unit, Alpha Company of the 519th Military Intelligence Battalion, then stationed at Bagram, had to file between “20 to 40 reports a week” or hear from higher command to complain about them “stagnat[ing].” That pressure, Corsetti said, came from the Afghanistan war command and the “Office of the Secretary of Defense” — and produced a command environment that encouraged detainee abuse.

“The only clear cut rules I remember was we weren’t allowed to strike the prisoners,” Corsetti said, and that interrogators couldn’t directly threaten detainees. “But we could do what we called ‘plant the seed’” of threats, and “let their imagination run wild with it.” One example, consistent with an affidavit Khadr submitted about his treatment at Bagram, was to suggest that detainees cooperate with interrogators to avoid being sent for more brutal treatment in other countries. “Egypt and Israel were the two big ones,” he said.

Corsetti also testified that detainees at Bagram were “regularly” placed in forced contorted positions known as “stress positions” (and, later, “safety positions,” according to an interrogator who testified on Tuesday). “Stress positions were used to inflict pain on the prisoners, to elicit information from them,” Corsetti said, rocking back and forth in his chair. “At any given time, there was always one airlock occupied by a prisoner shackled, blindfolded, earmuffed with his hands above his head.” That description came close to matching one given by an anonymous Bagram medic, known as Mr. M, who testified Monday to seeing Khadr shackled to the outermost door of his cell — known as an airlock or sallyport — with his hands shackled at about forehead-level. The level of positioning for a detainee’s restrained arms would “depend on the length of the chain they used from the top of the cage,” Corsetti calmly recounted.

Asked if he knew if Khadr would have been put in a stress position, Corsetti replied, “I can’t say if it was done to him, but it was something I would have done.”
Corsetti’s lack of direct knowledge of Khadr’s treatment repeatedly aroused objections from the chief government prosecutor, Jeffrey Groharing, a retired Marine major, pushing Corsetti’s testimony to nearly two hours. Groharing argued that the defense could only question Corsetti about any treatment of Khadr that Corsetti directly observed. But Col. Patrick Parrish, the judge presiding over Khadr’s military commission, responded that the hearing’s admission of hearsay evidence — ironically, one of the biggest civil-libertarian objections to the commissions — could work in the defense’s favor, as it had for the prosecution.

Groharing has called eight interrogators to testify so far about direct interactions with Khadr. All have largely portrayed their interrogations and interviews with him as free and uncoerced. But later this week, the defense intends to call to the stand someone known to the court as “Interrogator #1,” who interrogated Khadr at Bagram and who is expected to testify to threatening Khadr with rape.

For all the command pressure for intelligence and the harsh treatment that resulted at Bagram, Corsetti said he wasn’t sure whether it resulted in accurate intelligence. “I got some very good information while I was there and I got some very bad information while I was there,” he said.

He last saw Khadr shortly before the detainee’s October 2002 transfer to Guantanamo Bay. “I can’t say if he was afraid or not,” Corsetti said. “I remember he went from a smiling 15 year old kid to a look of defeat before he left.”

Via Jeff Stein, Sulick, a longtime CIA operative, told a gathering at his alma mater that the loss of torture techniques hasn’t hindered intelligence work:

When asked if the Obama administration’s ban on waterboarding has had serious consequences on the war against terror, Sulick answered in general terms.

“I don’t think we’ve suffered at all from an intelligence standpoint,” he said, “but I don’t want to talk about [it from] a legal, moral or ethical standpoint.”

For the record, it was the Bush administration that actually banned waterboarding after using it to horrific effect, a fact that has caused no end of cognitive dissonance in conservative torture advocates.

According to an internal investigation, [Kappes] helped tailor the agency’s paper trail regarding the death of a detainee at a secret CIA interrogation facility in Afghanistan, known internally as the Salt Pit.

The detainee froze to death after being doused with water, stripped naked, and left alone overnight, according to reports in the Washington Post and Los Angeles Times. He was secretly buried and his death kept “off-the-books,” the Post said.

According to two former officials who read a CIA inspector general’s report on the incident, Kappes coached the base chief—whose identity is being withheld at the request of the CIA—on how to respond to the agency’s investigators. They would report it as an accident.

A CIA spokesman vigorously denied all aspects of that account to Stein, whose sources stand by it. I am filing a Freedom of Information Act request this morning for the CIA inspector general’s report allegedly implicating Kappes in the Salt Pit death.

Sen. Lindsey Graham (R-S.C.) (WDCpix)

Lindsey Graham is on the verge of winning an argument. Graham, the Republican senator from South Carolina, has pledged for weeks to deliver the votes from his fellow Republicans to finally close the detention facility at Guantanamo Bay, a campaign pledge from President Obama, if and only if Obama agrees try Khalid Shaikh Mohammed and the other 9/11 conspirators in a military commission. On Friday, the White House said it was “weeks away” from any decision about whether to scrap a civilian trial for the man known as KSM — which could give Graham what he wants.

[Security1] There’s just one problem. Graham’s rationale for why KSM needs to be tried in a military commission and not a civilian court has to do with the procedures in the commissions for protecting classified information. But the revisions to the military commissions approved by Congress last year — with significant input from Graham himself — removed any significant difference between how classified information is handled in military and civilian venues. Accordingly, Chris Anders, a lobbyist for the American Civil Liberties Union, said Graham’s position was founded on “one big urban myth” — though whether that will affect Obama’s political calculation over the trial remains to be seen.

Asked to specify Graham’s objection to trying KSM in civilian court, Kevin Bishop, Graham’s chief spokesman, said that the senator is concerned about the potential for releasing classified information in open court. “Military justice and the military framework — a military commission — would allow us to better protect classified information,” Bishop said. Graham made a version of that argument on February 13 in the Republican radio address, referencing a 1995 terrorism trial and asserting, “valuable intelligence was compromised.”

But the military framework for handling classified information is almost exactly the civilian framework for handling it. The Military Commissions Act of 2009, which set procedure for the revised military commissions, explicitly instructs military judges to look to the civilian rules for protecting classified information, known as the Classified Information Procedures Act, or CIPA. Under the Act’s fifth subchapter governing the “construction of provisions” for the “protection of classified information,” the text says that “the judicial construction of the Classified Information Procedures Act (18 U.S.C. App.) shall be authoritative,” except in certain specific cases that Justice Department officials said are legally arcane.

“Any concern about the treatment of classified information in federal court is a solution in search of a problem,” said Joshua Dratel, one of a handful of defense attorneys to have taken on terrorism cases in the pre-9/11 civilian courts, in the post-9/11 civilian courts and in every version of the military commissions. “There simply has not been a problem in handling classified information in civilian federal court trials.”

The commission rules for handling classified material only outpace CIPA for marginal aspects of trial procedures, such as explicitly prohibiting the disclosure of verbal testimony and not just documents — even though judges for years have considered the distinction meaningless and have prohibited all such disclosures. Accordingly, Attorney General Eric Holder testified to the Senate Judiciary Committee in November that “the standards recently adopted by Congress to govern the use of classified information in military commissions are derived from the very CIPA rules that we use in federal court,” making the two venues a distinction without a difference from the perspective of protecting sensitive material. “We can protect classified material during trial,” Holder said.

Dean Boyd, the spokesman for the Justice Department’s National Security Division, underscored the point. “Over the years, experienced prosecutors have worked closely with the intelligence community to protect classified information in such cases, using CIPA procedures, and have successfully prosecuted many terrorists while complying with the applicable rules,” Boyd said. “The system provided by CIPA for cases prosecuted in federal court has generally worked well in protecting classified information, while also ensuring fair, credible, and effective trials.”

The CIPA system was good enough for Graham during last’s year’s debate over the commissions, when he helped craft the provisions of the Military Commissions Act of 2009 governing classified information. On July 23, 2009, Sen. Carl Levin (D-Mich.) introduced those provisions into fiscal 2010 defense authorization, the vehicle for passage of the commissions act. “Madam President,” Levin said, “the amendment I now offer, along with Senators Graham and McCain, would modify the procedures for the handling of classified evidence by military commissions… It has the support of the Justice Department and the Department of Defense.”

Graham has other reasons for supporting a military commission for Khalid Shaikh Mohammed — “Khalid Shaikh Mohammed, if he’s not an enemy combatant, who is?” Bishop said; the Obama administration has abandoned the “enemy combatant” designation for suspected terrorists — but Graham’s specific objection to the civilian trial centers on a claimed distinction between civilian and military procedures for handling classified information.

During the 30 years CIPA has governed classified disclosures in civilian courts, “the government is always in control of what gets released publicly,” said Dratel. All officers of the court, from defense counsel to a judge’s clerks, must hold security clearances to view classified information in secure facilities. “There is a court security officer, some of the most competent people if not the most competent people in the government, who operate to control these situations.” When judges permit defense counsel like Dratel — never their clients — to view classified information relevant to a case, “it doesn’t go to me; it sits in a secure room in a courthouse or other government building that no one has access to except people with a key and a combination.”

Any piece of classified information defense counsel wishes to enter into evidence must be approved by a judge. “If a judge agrees with me, then the government has a choice,” Dratel continued. “It has the choice of either declassifying the information or offering a substitution that would satisfy due process — in other words, my right to present my defense while at the same time protecting the classified information. And most classified information, in my experience, is about sources and methods.” These procedures now form the basis for how military commissions handle classified information as well.

To underscore Graham’s concerns, Bishop cited the 1995 case of Omar Abdul Rahman, the “blind sheikh” successfully prosecuted for involvement in the conspiracy to bomb the World Trade Center in 1993, in which the government’s list of Rahman’s unindicted co-conspirators reportedly leaked out of the courtroom and made its way to Osama bin Laden. “Our intelligence services later learned this list made its way back to bin Laden tipping him off about our surveillance,” Graham stated in his February radio address arguing against a civilian trial for KSM. “A conviction was obtained in that trial, but valuable intelligence was compromised. The rest is history.”

In 2008, however, a lengthy investigation into the criminal justice system’s handling of terrorism cases sponsored by Human Rights First determined that the list was never classified — and that prosecutors on the case never even sought to “invoke CIPA or other protections regarding the names on the list of unindicted co-conspirators.” The report, written by two veterans of the U.S. Attorney’s office for the Southern District of New York who did not work on the case, continues, “Had the government sought a court order restricting dissemination of the list, perhaps it would not have been disseminated to Bin Laden.” One of the authors of the report, Richard Zabel, is now the chief of the Criminal Division of the U.S. Attorney’s Office for the Southern District of New York.

“If it had been classified and only available to [security-]cleared counsel, it never would have been circulated,” said Andrew Patel, one of the lawyers for Rahman’s co-conspirators. “This is the archetype of the government saying ‘we need additional tools’ when they failed to use the tools they had.”

Indeed, Holder addressed the Rahman disclosure in a November exchange with Sen. Orrin Hatch before the Senate Judiciary Committee. “The co-conspirator list was not a classified document. Had there been a reason to try to protect it, prosecutors could have sought a protective order, but that was not a classified document,” Holder said. “The provisions designed to protect sources and methods in the military commissions are based on the CIPA Act that we use in [federal] courts.”

The ACLU’s Anders wondered whether the novelty of military commissions — especially as the legal rules under the commissions have changed three times since the Bush administration created them after 9/11 — might make them more likely avenues for inadvertent disclosure of classified information in a KSM trial. “Who is going to do a better job with applying the substantively difficult law protecting classified information,” Anders said, “federal judges who have regularly applied it in many cases, or military commission judges who have never even tried a complex criminal case, much less the most important international terrorism case in history?”

Dratel agreed, citing a case he argued at Guantanamo Bay in which a judge blurted out that something stated in court “probably” ought to have been classified. ” Any preference for military commissions based on some purported danger of release of classified information in federal courts is like worrying about ships going too far toward the horizon because they’ll fall off the edge of the earth,” he said. “It is simply without any factual foundation, and ignores the 30-year history of federal courts handling classified information in the context of criminal prosecutions.”

John C. Yoo, the former Justice official whose memorandums on torture and presidential power were used to justify some of the most controversial policies of the Bush administration, said he had not seen the material from Ms. Cheney’s group. But Professor Yoo, who now teaches at the University of California, Berkeley, and is active in the Federalist Society, said the debate about lawyers who once represented detainees at the American prison in Guantánamo Bay serving in the Justice Department was overheated.

“What’s the big whoop?” he asked. “The Constitution makes the president the chief law enforcement officer. We had an election. President Obama has softer policies on terror than his predecessor.” He said, “He can and should put people into office who share his views.” Once the American people know who the policy makers are, he said, “they can decide whether they agree with him or not.”

Chances are, when Liz Cheney thinks she needs a civics lesson, Yoo would be the guy she’d call… Dave, how many conservative lawyers have come out against the slander of Justice Department lawyers who represented Guantanamo detainees now?

A still from Keep America Safe's "Al Qaeda Seven" ad (YouTube) and Cully Stimson (heritage.org)

One of the things Charles “Cully” Stimson remembers about the interview that cost him his job is just how run down he was when it happened. His January 11, 2007 sit-down with Federal News Radio, said Stimson, was one of 40 interviews he’d given that week. That’s one of the reasons the deputy assistant secretary of defense for detainee affairs stumbled so badly when talking about a Freedom of Information Act request that would have revealed the names of attorneys who were defending prisoners detained at Gitmo.

[GOP1] “When corporate CEOs see that those firms are representing the very terrorists who hit their bottom line back in 2001,” said Stimson to Fed News, “those CEOs are going to make those law firms choose between representing terrorists or representing reputable firms, and I think that is going to have major play in the next few weeks.”

The comment, coming only days after Democrats took charge of both houses of Congress, blew up in Stimson’s face. Within three weeks, he had resigned. He apologized to the lawyers that he “allegedly was slamming.” He would never have done such a thing. Cut to last week, when he saw an ad by Keep America Safe, a national security think tank founded by Liz Cheney and Bill Kristol, that demanded the names of attorneys who’d defended Gitmo detainees — what it called “the Al Qaeda Seven” — and gone on to work for the Department of Justice.

“I think the blowback against me,” Stimson told TWI, “especially the ad hominem attacks, was unfair. And I think that these ad hominem attacks — calling the Department of Justice, where I proudly served, the Department of Jihad — are disgusting.”

Over the weekend, Stimson joined 19 other conservative lawyers, many of them fellow veterans of George W. Bush’s administration, signed a letter condemning Keep America Safe for “a shameful series of attacks on attorneys in the Department of Justice.” The letter, written by Ben Wittes of the Brookings Institution, compared what the lawyers did to what John Adams did in defending the soldiers accused in the Boston Massacre. One reason Stimson signed the letter, he told TWI, was that his “controversial” 2007 episode would bring more attention to a cause he supported.

One week after Keep America Safe launched the campaign, the strategy of Stimson and co-signers like Ken Starr and David Rivkin appeared to have paid off with plenty of articles about their criticism and a partial apology from CNN for the way it packaged its segment on the subject. But the pushback is unlikely to become what critics hoped it might — a humbling moment for Cheney, Kristol, and neoconservatives who aim to move the administration’s national security policy closer to that of the Bush administration. Sources close to Keep America Safe acknowledged that its “Al Qaeda Seven” ad had played poorly in Washington, but were confident that the “conservatives versus Cheney” story had played itself out without dealing a substantial blow to national security conservatives.

On Monday, the effort by conservative attorneys to criticize Keep America Safe had apparently peaked. In op-eds and in conversations with TWI, other Bush administration veterans largely defended Cheney, even if they agreed that the TV ad had gone too far. Curt Levey, a Bush DOJ veteran who now runs the Committee for Justice — one of several conservative legal groups that vets Obama nominees for court slots — told TWI that the criticism could have been headed off had Sen. Chuck Grassley (R-Iowa) received, as he had requested, the names of the DOJ lawyers who’d done work for terrorism suspects. (The names, as Fox News would find, could be located with some digging on the internet.)

“Attorney General [Eric] Holder brought this controversy on himself by resisting Grassley’s reasonable request,” said Curt Levey. “Despite the usual rhetorical excesses of political ads, Keep America Safe has not argued that the Al Qaeda Seven’s past work disqualifies them from working at DOJ. So the Human Rights Watch letter is aimed, at least in part, at a straw man argument. I would add that it’s curious that many of the Democrats who defended Holder’s refusal to disclose are the very same folks who gleefully investigated every detail of the Bush Justice Department’s hiring practices in the hope of proving that the department deliberately tried to increase the paltry representation of conservatives among the ranks of DOJ’s career attorneys.”

A similar argument came from Marc Thiessen, a former speechwriter for Bush and Donald Rumsfeld, in the column he now writes for The Washington Post. “Where was the moral outrage when fine lawyers like John Yoo, Jay Bybee, David Addington, Jim Haynes, Steve Bradbury and others came under vicious personal attack?” wrote Thiessen. “Their critics did not demand simple transparency; they demanded heads. They called these individuals ‘war criminals’ and sought to have them fired, disbarred, impeached and even jailed. Where were the defenders of the ‘al-Qaeda seven” when a Spanish judge tried to indict the ‘Bush six‘? Philippe Sands, author of the ‘Torture Team,’ crowed: ‘This is the end of these people’s professional reputations!’ I don’t recall anyone accusing him of ‘shameful’ personal attacks.”

Hans Von Spakovsky, a former counsel to the Assistant Attorney General for Civil Rights in the Bush administration — and like Stimson, now a Heritage Foundation scholar — aligned himself with Cheney. “I don’t think it is unfair or somehow improper to criticize those lawyers who have volunteered to help the enemies of the United States who are dedicated to killing as many innocent Americans as possible and destroying our country,” Von Spakovsky told TWI. “I certainly don’t think those same lawyers should be in the Justice Department directing policy and making decisions on prosecutions of those same terrorists. That would be like hiring Mob lawyers in the Organized Crime and Narcotics Task Force or hiring someone who volunteered to defend the Klu Klux Klan in the Civil Rights Division. Those lawyers who all come from big firms have a wide choice of who to help on a pro bono basis and their choice of terrorists says a lot about them –- I would not hire them to represent my company, either, if I were still a corporate in-house counsel, because I would not want my company’s money subsidizing that kind of legal work.”

One week after Keep America Safe launched its campaign, there was more evidence of rallying behind Keep America Safe than of more conservatives turning on Cheney. Allies of the group laughed off the idea that Democrats could stoke more controversy by re-enacting the legislative drubbing that Republicans gave MoveOn.org for its 2007 ad asking whether Gen. David Petraeus would mislead in his testimony about Iraq and become “General Betray-Us.” Democrats, they argued, knew that they didn’t have a long-term winning argument to buttress the murmurs of conservative anger. In his conversation with TWI, Stimson poured cold water on any Democrats who hoped he’d become a steady critic of Keep America Safe.

“I like Bill Kristol,” he said. “I like Debra Burlingame. If I met Liz Cheney, I’m sure I’d like her, too.”

Remember, this is the House, not the Senate, where the minority party has practically no institutional power to derail legislation. Democrats have absolutely no one to blame but themselves for once again folding after the ante.

Specifically, the proposed Cruel, Inhuman and Degrading Interrogations Prohibition Act proscribes “forcing the individual to be naked, perform sexual acts or pose in a sexual manner” — a la Abu Ghraib — “beatings, electrical shock, burns, or inflicting physical pain; waterboarding; using military working dogs; inducing hypothermia” — it happened at Guantanamo to Mohammed al-Qatani — sleep deprivation, dietary manipulation, denial of medical care, “using force or the threat of force”; “mock executions;” religious desecration in an intelligence context; “sensory deprivation”; “prolonged isolation”; “placing hoods or sacks over the heads of the individual;” “exploiting the phobias of the individual” and more. Basically, it clarifies that the entire parade of outside-the-Army-Field-Manual-on-Interrogation horrors during the Bush administration are criminal acts. We’ll see if this ever actually makes it to President Obama’s desk.

The CIA declined to comment on pending legislation.

The interrogation methods in the Army Field Manual 2-22.3 are valid approaches and sometimes applicable for interrogating members of al-Qaida, but even more effective are the techniques that I learned as a criminal investigator. I used these techniques, permitted by the Army Manual under the terms “…psychological ploys, verbal trickery, or other nonviolent or non-coercive subterfuge…” to great success and I taught these techniques to other members of my interrogation team. Just one example of a commonly used criminal investigative technique that has been adopted into the Army Field Manual is the Good Cop/Bad Cop approach, but there are numerous others that are absent from both the manual and the Army’s interrogator training. The U.S. law enforcement community has much to add to the improvement of our interrogation methods and the United States Army would do well to consult with experienced criminal investigators from our police departments and federal law enforcement agencies.

But I’m sure Marc Thiessen, a former White House speechwriter, knows more than a man who took down Zarqawi.

This is from page 201 of “Speech-Less: Tales of a White House Survivor,” a recent tell-all memoir by Bush speechwriter Matt Latimer, who recalled the following incident with his then-boss:

When Marc was writing remarks on the war in Iraq, he tried to browbeat a CIA analyst who was unwilling to state unequivocally that America was winning in the war on terror. “The president wants to say we’re winning!” Marc thundered. Just what we needed — another accusation that the Bush White House wanted to politicize intelligence.

In the index to Latimer’s book, a portion of the references to Thiessen is catalogued: “Gaffes by, 201-203.” This man is now a Washington Post columnist.