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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:
No Comment — November 4, 2013, 5:17 pm
An expert panel concludes that the Pentagon and the CIA ordered physicians to violate the Hippocratic Oath
No Comment — August 12, 2013, 7:55 am
How will the Obama Administration handle Edward Snowden’s case in the long term?
No Comment — July 29, 2013, 11:36 am
Is it possible to simply disband the partisan FISA court?
Fleming awoke in the dark and his room felt loose, sloshing so badly he gripped the bed. From his window there was nothing but a hallway, and if he craned his neck, a blown lightbulb swung into view. The room pitched up and down and for a moment he thought he might be sick. The word “hallway” must have a nautical name. Why didn’t they supply a glossary for this cruise? Probably they had, in the welcome packet he’d failed to read. A glossary. A history of the boat, which would be referred to as a ship. Sunny biographies of the captain and crew, who had always dreamed of this life. Lobotomized histories of the islands they’d visit. Who else had sailed this way. Famous suckwads from the past, slicing through this very water on wooden longships.
A welcome packet, the literary genre most likely to succeed in the new millennium. Why not read about a community you don’t belong to, that doesn’t actually exist, a captain and crew who are, in reality, if that isn’t too much of a downer on your vacation, as indifferent to one another as any set of co-employees at an office or bank? Read doctored personal statements from underpaid crew members — because ocean life pays better than money! — who hate their lives but have been forced to buy into the mythology of working on a boat, separated now from loved ones and friends, growing lonelier by the second, even while they wait on you and follow your every order.
Number of people stopped and frisked by the NYPD in 2011 for “furtive movements”:
The faces of Lego people were growing angrier.
Four people were arrested for using a remote-controlled hexacopter to fly two pounds of tobacco to prisoners inside the yard at Calhoun State Prison in Georgia.
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Our congratulations to Alice Munro, winner of the 2013 Nobel Prize for Literature