USA: Guantánamo and beyond - The continuing pursuit of unchecked executive power

striking with an object or being thrown into an object". It has also been alleged that one of the four soldiers charged threw a heavy box at the detainee. Major Smith acknowleged that such an object "if it was thrown with significant force, if could possibly cause rib fractures". At the hearing it was also suggested that General Mawhoush had been made to do "physical training" prior to interrogation, where he was forced to carry large rocks. He had reportedly fallen a number of times on the rocks.

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Investigator Ryan also revealed what had been learned about the interrogation on the day of the detaince's death, when the "sleeping bag technique" was used:

"...they had laid Mowhosh on the floor to ask him questions and... they had rolled him from his back to his stomach and back to his back... Mowhosh was not really answering any questions. He wasn't providing any information. And then the decision was made to put Mowhosh in the sleeping bag... [A]t the guidance of Chief Warrant Officer Welshofer. Loper assisted in placing a green Army sleeping bag... over Mowhosh's head, actually the feet area over the head so that the face was covered. And then to hold the bag tight, they wrapped a length of electrical wire: not like an extension cord, but like white wire that was used to actually run the wiring in the building over there. Maybe about 20 feet long. And then they laid Mowhosh on the floor, and Specialist Loper assisted with that. And then at that point with Mowhosh on his back, he told me that Welshofer straddled Mowhosh, one foot on either side and then kind of squatted or said on Mowhosh's upper body whie he was on the floor in the sleeping bag. He said as the interrogation continued, at one point Welshofer covered Mowhosh's face with his hand, held it there for a few seconds. and then released. He stated that he and Williams were where Mowhosh's feet were on his legs, standing on the bag so that Mowhosh wouldn't be able to kick Mr Welshofer and knock him off..

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[Specialist Loper] said at one point while the general was on the floor in the sleeping bag he was on his back, he was being questioned, he still wasn't providing information. Mr Welshofer stood up, and he said everybody kind of paused for a minute, and they were looking at the general, and it looked like the general wasn't breathing. Then he said after a few seconds, the general took a long, deep breath, and then that he shook or spasmed for a couple of seconds. He said that Mr Welshofer made the statement, Thank God. I thought he had stopped breathing.' And then at that point they rolled Mowhosh over onto his stomach, and then Mr Welshofer sat on him again, this time on his back, and continued the interrogation.

Another witness. a US army interrogator, was questioned about the “sleeping bag technique and whether she thought such a technique "can be appropriate". She replied: "Yeah, and a sleeping bag is not inherently a weapon. It's to take somebody out of their comfort zone. And I don't feel it was an inappropriate use... The sleeping bag was just placed over a detainee's head and probably to about waist level, just to make it dark and, like I said, to take them out of their comfort zone”. According to this witness, the detainee could be prone, kneeling, sitting or, standing. From this and other witness testimony at the hearing, it is clear that the purpose of the sleeping bag technique is to play on detainees claustrophobia.

119 The still operational Pentagon Working Group Report on Detainee Interrogations in the Global War on Terrorism recommends the use of "physical training" in "strategic interrogation facilities" against detainees who have “critical intelligence" and have been cleared by medical personnel for such an interrogation technique. See page 66, USA: Iuman dignity denied, supra, notc 17.

420

This technique is apparently known as "burking", a stifling technique named after William Burke who was hanged in the UK in 1829 for murdering people whose bodies he sold for medical dissection. Major Smith testified that "burking may leave no visible signs of trauma, and that the Mawhoush case "has clements of burking involved in his death".

ཟང༥ གྲྭ ཡང are t ལ གླང་ཆོལ།གུངས

14 Secrecy - the executive's weanor of mass distraction རཱུ སྶ བྷསྶ ཙཨིཙ ཡ ཨུ ཨུཏྠ ཏཐཱ ཨཏྠ་

USA Guantánamo and beyond - The continuing pursuit of unchecked executive power

interrogation that either cause a claustrophobic condition, some kind of fear. But it's not physical harm.“

Colonel Teeples testified that "My thought was that the death of Mowhosh was brought about by [redacted] and then it was “unfortunate and accidental, what had happened under an interrogation by our people". He said that even if it was proved to him that the death had been caused entirely by the interrogation of the four soldiers charged with murder, “I`m not sure I would change my mind. I mean, a lot of it has to do with intent. I think. If you take away what the [redacted] did, then I think you have to look at the intent of the interrogation".

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The three defendants who were the subject of the preliminary hearing have all denied wrongdoing, claiming that their actions had been sanctioned by commanders, a claim that has been repeated in other cases." The fourth defendant has also issued a statement saying that he had only been using what he believed were "approved techniques", and that the information gleaned under such interrogations had "prevented further insurgent attacks, thereby saving American soldiers' lives". Major Jessica Voss, head of the military intelligence unit to which the soldiers belonged has also said that she believed that the "sleeping bag technique was authorized. Indeed, according to the hearing transcript, Major General Charles H. Swannick, a senior commander of US forces in Iraq, included the following observation with letters of reprimand to soldiers involved in the Mawhoush case: "Death was from asyphxiation. I expect better adherence to standards in the future". This surely suggests that the sleeping bag technique was not, per se, considered abusive among the higher ranks.

At the time of writing. the decision as to whether the cases of the four charged soldiers would go to court-martial had not been taken. The investigating officer who held the preliminary hearing will make a recommendation to the soldiers' commander at Fort Carson who takes the final decision.

Commanders who take the decision whether to prosecute a soldier under their command have recently decided not to take up army investigators' recommendations to prosecute 11 US soldiers for offences including negligent manslaughter and assault in the death of an Iraqi detainee who died in US custody on 9 January 2004 from "blunt force injuries and asphyxia". This is believed to be the case of Abdul Jaleel who died in the Forward Operating Rifles Base in Al Asad, five days after being taken into custody. In the initial part of his detention he had allegedly been put in isolation and shackled to a pipe that ran along the ceiling. During questioning he was allegedly beaten and kicked in the stomach and ribs. Later, because he was allegedly uncooperative and disruptive, his hands were shackled to the top of his cell door, and he was gagged. He died in this position." However, commanders rejected the recommendation to prosecute, determining that the death had been the "result of a series of lawful applications of force in response to repeated aggression and misconduct by the detainee". "2

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The investigation into the death in custody in Iraq of Abdul Kareem Abdul Rutha, also known as Abu Malik Kenami, on 9 December 2003 has also left questions unanswered. Abu Malik Kenami was detained on 5 December 2003 and brought to the US detention facility at "AO [area of opcation] Glory" in Mosul. He was interrogated for the first and last time on that day. However, for the next four days, he was kept hooded with a plastic sandbag

425 Beating of Iraqi General alleged in army hearing. Washington Post, 3 April 2005, 426 Good guys? Military logic tortured. The Denver Post, 1 April 2005.

427 Brutal interrogation in Iraq. The Denver Post, 19 May 2004.

128 Army criminal investigators outline 27 confirmed or suspected detainee homicides for Operation Iraqi Freedom, Operation Enduring Freedom. United States Army Criminal Investigation Command. 25 March 2005.

USA Guantánamo and beyond - The continuing pursuit of unchecked executive power

and his hands were handcuffed in front of him with plastic zip ties. The rule in the facility at that time was that the detainee must not attempt to lift the hood or talk. As punishment for disobeying these rules, Abu Malik Kenami was repeatedly subjected to “ups and downs”, whereby the detainee is forced to stand up and sit down rapidly, in constant motion for up to 20 minutes at a time. 429 On some occasions, he would have his hands handcuffed behind his back while forced to do this. On the morning of 9 December, he was found dead. His body was put in a refrigerated van for the next six days. No family members claimed the body and it was arranged for a local mortician to pick it up. No autopsy was conducted.

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An army investigator assigned to the case said that in the absence of an autopsy, “the cause of Abu Malik Kenami's death will never be known", and that he could only "speculate" on the cause of death. He concluded that the detainee had died of a heart attack, including because "he was performing ups and downs for ten to twenty minutes several times over a two to three hour period". Neither this, nor permanent hooding and handcuffing, was seen as abusive, however. A previously secret army memorandum recording the death states: “At no time was [Abu Malik Kenami] physically abused or put under any physical duress, other than regular exercise and corrective training. Another of the sworn statements to the investigator states that "the detainee did have a bag over his head the entire time he was at the [detention facility]. He was also subjected to [physical training], that is: standing up and sitting down rapidly for hours on end". The statement concludes that, while the guards "do yell at the detainees to ensure they behave while in custody, [they] do not abuse them”.

55431

14. Secrecy - the executive's weapon of mass distraction

How can our State Department denounce countries for engaging in torture while the CIA secretly transfers detainees to the very same countries for interrogation? The President says he does not condone torture, but transferring detainees to other countries where they will be tortured does not absolve our government of responsibility. By outsourcing torture to these countries, we diminish our own values as a nation and lose our credibility as an advocate of human rights around the world.

US Senator Patrick Leahy, 17 March 2005432

In June 2002, an Amnesty International observer was due to attend a hearing in a US District Court in Virginia in the case of John Walker Lindh, a US citizen captured in the armed conflict in Afghanistan. The organization was particularly concerned at allegations that he was tortured and ill-treated in US military custody into making a "confession". The abuse to which he was allegedly subjected - stripping, blindfolding, threats, the cruel use of restraints, humiliating photography, and denial of access to legal counsel or relatives - echoed what would emerge two years later in Iraq.*** At his court hearing, a federal judge was to consider whether his "confession" should be admitted as evidence.

433

429 Additionally, "all detainees conduct a short [physical training] session daily to keep them warm....and promote a health lifestyle". At the time of the death, the facility was holding more than 60 detainees, and was described as overcrowded.

430 One of the medical personnel involved also suggested the possibility of hypothermia. given the low temperatures in the holding facility at that time, and the lack of action from the authorities on a request for heating made a few weeks earlier.

431 Memorandum for Record: Death of detainee. Department of the Army, Bravo Company, 311th MI BN (2BCT), Mosul, Iraq. 9 December 2003.

432 Statement of Senator Patrick Leahy on the Convention Against Torture Implementation Act, 17

March 2005.

433

Amnesty International had raised the case of John Walker Lindh in its Memorandum to the US Government on the rights of people in US custody in Afghanistan and Guantánamo Bay, AI Index: AMR 51/053/2002, April 2002.

USA: Guantánamo and beyond – The continuing pursuit of unchecked executive power

434

In the event, the hearing was cancelled after Lindh agreed to plead guilty to much reduced charges carrying a lesser sentence. As part of the deal, he dropped his allegations of torture and ill-treatment, signing a statement that he was "not intentionally mistreated by the US military" Any breach of the plea agreement by Lindh would open him up for prosecution to the full extent of the law" and a heavier sentence. The Justice Department reportedly insisted that the deal was only possible if John Walker Lindh agreed to it before the suppression hearing. A former attorney at the Justice Department who raised legal and ethical objections to Lindh's interrogation in Afghanistan subsequently lost her job." In contrast, the Assistant Attorney General in charge of the Justice Department division which oversaw the case was in early 2005 nominated by President Bush to the position of Secretary of Homeland Security.

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436

435

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Under international law, the US government was obliged to ensure a prompt and impartial investigation into John Walker Lindh's allegations of torture and ill-treatment.* Likewise any prosecutors involved in the case were under obligation not to use any evidence against the defendant which they had reasonable grounds to believe had been coerced by torture or ill-treatment and to ensure that anyone responsible for any such treatment was brought to justice.*** Instead, the allegations of torture and ill-treatment received no more official attention. Given what we know now about the secret memorandums that were being written in 2002 within the administration about torture and ill-treatment in the “war on terror”, and the widespread allegations of abuse that have emerged since, there has to be concern that Lindh's alleged ill-treatment and the pressure for a plea arrangement were, respectively, part of a wider policy and cover-up. Secrecy breeds abuse and secrecy can be used to leave abuse unpunished and unchecked.

Secrecy. or to put it another way, the denial of independent external or judicial scrutiny, has formed a central part of the USA's "war on terror" detentions. The CIA is the agency most frequently cited in this regard. For example, Vice Admiral Albert Church noted, when issuing the executive summary of his review into Department of Defense interrogation operations, that the CIA has independent operations in Afghanistan".*" One reported CIA detention facility was known as the Pit or the Salt Pit, an abandoned brick factory north of Kabul. In November 2002, an Afghan detainee was allegedly stripped, chained to the floor, assaulted, and left in a cell overnight without blankets, on the orders of a CIA agent. He died, with hypothermia being given as the cause of death. According to reports, he was buried by Afghan guards in an unmarked grave, his family never notified. The Washington Post quoted one US government officials as stating that he just disappeared off the face of the earth".

440

Even before the US Supreme Court's Rasul ruling in June 2004 punctured a central assumption of the administration's Guantánamo detention policy - namely that the "federal

134 See pages 91-92, USA: Human dignity denied, supra, note 17.

435

The lawyer was Jesselyn Radack. Scc. Lost in the Jihad, Why did the government's case against John Walker Lindh collapse? The New Yorker, 10 March 2003. The trials of Jesselyn Radack. The American Lawyer, 14 July 2003.

436 The Senate confirmed the nomination of Michael Chertoff. See Chertoff and torture, by Dave Lindorff. The Nation, 14 February 2005.

437

For example, Articles 12 and 16, UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.

438 Guideline 16, UN Guidelines on the Role of Prosecutors.

439

Department of Defense briefing on detention operations and interrogation techniques. 10 March

2005.

440 CLA avoids scrutiny of detainee treatment. Washington Post. 3 March 2005. The Salt Pit has since reportedly been torn down, with the CIA using another facility. The death in custody was referred to the Justice Department for possible prosecution in 2004, but no one has yet been charged. The CIA officer in charge of the case was reportedly promoted.