Late yesterday further transcripts from Guantánamo emerged in the ACLU’s Freedom of Information Act litigation. The Obama Administration reviewed and released a few new details from a group of hearings before the highly controversial Combat Status Review Tribunal (CSRT). This entity was set up in response to the Supreme Court’s conclusion that the Bush Administration violated Article 5 of the Geneva Conventions when it failed to conduct proceedings to determine the status of the individuals it was holding in Guantánamo. Some of the military lawyers who participate in it describe the CSRT as a farce designed to give an aura of legality to a kangaroo court. One of the most vehement critics was indeed a military judge who was forced to preside over one of these sessions. Justice Department lawyers have routinely refused to have anything to do with CSRT, viewing it as a legal toxic waste dump. One source of controversy has been the testimony of prisoners about how they were tortured. At several of the CSRT hearings, when prisoners were confronted with alleged confessions of criminal conduct, they stated that they had been tortured to get these confessions.
Torture-induced testimony is considered to be inherently unreliable. Beyond this, torture is a crime, and these statements would tend to inculpate the interrogators involved in criminal acts. But the Tribunal quite properly would not rely on the prisoner’s conclusions, and it insisted on questioning them about what was done to them that they called “torture.” When the Bush Administration first released these transcripts, all this information was censored on claimed grounds of national security.
The newly released transcripts offer us more information about the prisoners’ claims. But more importantly, they give us another chance to test the Bush Administration’s claims of secrecy. Just what exactly about the testimony of these prisoners could possibly jeopardize the security of the United States? We should start by noting the converse: keeping this testimony secret does damage the security of the United States, because it makes the entire process by which prisoners are held at Guantánamo appear to be arbitrary and unjust and undermines their credibility in the eyes of the world.
Here’s an example of one of the new unredacted passages from the testimony of Khalid Sheikh Mohammed (“KSM”). The Tribunal president asks him if he made any statements because of torture. Here’s how he answers:
I ah cannot remember now [CENSORED] I be under questioning so many statements which have been some of them I make up stories just location UBL. Where is he? I don’t know. Then he tortured me. Then I said, yes, he is in this area or this is al Qaida which I don’t him. I said no, they torture me. Does he know you? I say don’t him but how come he know you? I told him I’m senior man. Many people they know me which I don’t them. I ask him even if he knew George Bush. He said, yes I do. He don’t know you, that not means its false. [CENSORED] I said yes or not. This I said.
So KSM is saying that he lied about the questions they asked to get them to stop torturing him. Is there anything surprising about that? It’s a standard response, for which thousands of examples can be found in human experience.
The real question is, why was this censored? First, it got in the way of the Bush Administration’s lies to the American public. The Bush mantra, most recently taken up by Dick Cheney and his daughter Liz, is that torture saves lives. They argue that real life is just like the Fox show “24.” Let Jack Bauer attach some electrodes to a terrorist, and he’ll get the information he needs to save Los Angeles. It undermines this fiction to learn that torture produces false answers. Second, the actual descriptions of the torture techniques used could wind up as exhibits to a criminal indictment of Bush Administration officials who authorized the torture. This is hardly idle speculation. In fact, criminal proceedings are underway in Spain, Italy, Germany, the United Kingdom, and Poland, each of which could quite plausibly result in an indictment of a Bush official or two. Someday even the U.S. Justice Department might decide that its mission includes enforcement of the criminal law even when its own staffers are the criminals.
We still don’t have the full picture, because much information has still been withheld due to an—almost certainly bad-faith—invocation of national security. But at this point, “national security” might mean this: we committed a crime, and if we divulge the details we may very well wind up being prosecuted.