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It’s worth diving into one of those 38 habeas cases to get a taste of the arguments that are being made. One decided late last week by Judge Colleen Kollar-Kotelly, a no-nonsense Reagan appointee, involved a Kuwaiti named Fouad al-Rabiah. The prosecutors called him a terrorist, but for the defense he was a Kuwaiti airlines manager stuck at the wrong place and the wrong time. Judge Kollar-Kotelly reviewed the evidence and had no difficulty making the call. Al-Rabiah was to be released “forthwith.” There was no basis for his detention. And the judge makes plain that she was disturbed by the way the Bush team treated him. English journalist Andy Worthington has written a good summary of the case, and the unclassified part of the opinion can be examined here. I’ll just highlight a few points.
Al-Rabiah had been examined with care by a CIA agent shortly after his arrival in Guantanamo. The conclusion: this is an innocent man who should not be held. He had been in the Tora-Bora region at the same time Osama bin Laden was there. He offered this up freely with explanations. Now, nine years later, after a full vetting of the record, a judge makes an identical conclusion: let this man go. So what intervened between these two determinations?
Government officials, lacking any evidence to justify the detention of a man who was almost certainly innocent, decided they needed something to justify his detention. The government insists, of course, drawing on all the legal gymnastics of the torture memos—theoretically repudiated, but still fuelling absurd positions taken by Justice Department lawyers—that no torture was involved. What was done to al-Rabiah is also super-secret and the interests of national security preclude its disclosure. But prolonged sleep deprivation, prolonged isolation, the use of extreme heat and cold, short-shackling in painful stress positions, forced nudity, forced grooming, religious and sexual humiliation, and the use of loud music and noise—these techniques all belonged to the standard operating procedure of Gitmo, and they would have been applied in combination on a prisoner like al-Rabiah with the objective of “breaking” him and securing false testimony.
Under such treatment, al-Rabiah proceeded to confess to every act the prosecutors needed for their case. The judge concluded that the confessions were “entirely incredible” and that the government’s case against al-Rabiah rested on a series of almost absurd contentions that had no basis other than the torture-induced confessions. (The judge, alas, avoids use of the word “torture.” She focuses only on credibility.) Although “al-Rabiah’s interrogators ultimately extracted confessions from him,” she writes, they themselves “never believed his confessions based on the comments they included in their interrogation reports.”
One of the more puzzling aspects relates to Eric Holder and his Justice Department. Although they ostensibly reviewed all these cases, they decided to stick to the unsupported position of the Bush Justice Department to the end. The Holder Justice Department, which has denied it would proceed on torture-induced evidence, did exactly that.
One lesson from the al-Rabiah case is this. The Obama Justice Department has very little interest in justice for the detainees at Gitmo, but an obsession with guarding the dark secrets of their predecessors.
More from Scott Horton:
Conversation — August 5, 2016, 12:08 pm
Sidney Blumenthal on the origins of the Republican Party, the fallout from Clinton’s emails, and his new biography of Abraham Lincoln
Conversation — March 30, 2016, 3:44 pm
Joseph Hickman discusses his new book, The Burn Pits, which tells the story of thousands of U.S. soldiers who, after returning from Iraq and Afghanistan, have developed rare cancers and respiratory diseases.
Flor Arely Sánchez had been in bed with a fever and pains throughout her body for three days when a July thunderstorm broke over the mountainside. She got nervous when bolts of light flashed in the sky. Lightning strikes the San Julián region of western El Salvador several times a year, and her neighbors fear storms more than they fear the march of diseases — first dengue, then chikungunya, now Zika. Flor worried about a lot of things, since she was pregnant.
Late in the afternoon, when the pains had somewhat eased, Flor thought she might go to a dammed-up bit of the river near her house to bathe. She is thirty-five and has lived in the same place all her life, where wrinkled hills are planted with corn, beans, and fruit trees. She took a towel and soap and walked out into the rain. Halfway to the river, the pains returned and overcame her. The next thing Flor remembers, she was in a room she didn’t recognize, unable to move. As she soon discovered, she was in a hospital, her ankle cuffed to the bed, and she was being investigated for abortion.
Average duration of a Japanese prime minister’s tenure since August 1993, in months:
Brain shrinkage has no effect on cognition.
An Indianapolis fertility doctor was accused of using his own sperm to artificially inseminate patients, and a Delaware man pleaded guilty to fatally stabbing his former psychiatrist.
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“Matt was happy enough to sustain himself on the detritus of a world he saw as careening toward self-destruction, and equally happy to scam a government he despised. 'I’m glad everyone’s so wasteful,' he told me. 'It supports my lifestyle.'”