Tornado Alley (PROG)

[StephanieVanbryce]

A Truly Shocking Guantánamo Story: Judge Confirms That an Innocent
Man Was Tortured to Make False Confessions

by Andy Worthington
October 1, 2009

In four years of researching and writing about Guantánamo, I have become used to uncovering shocking information, but for sheer cynicism, I am struggling to think of anything that compares to the revelations contained in the unclassified ruling in the habeas corpus petition of Fouad al-Rabiah, a Kuwaiti prisoner whose release was ordered last week by Judge Colleen Kollar-Kotelly (PDF). [ http://www.pillsburylaw.com/siteFiles/News/1259B22146574C540A8871C2C3131CA2.pdf ]

In the ruling, to put it bluntly, it was revealed that the US government tortured an innocent man to extract false confessions and then threatened him until he obligingly repeated those lies as though they were the truth.

The background: lies hidden in plain sight for five years

To establish the background to this story, it is necessary for me to return to my initial response to the ruling a week last Friday, before these revelations had been made public, when, based on what I knew of the case from the publicly available documents, I explained that I was disappointed that the Obama administration had pursued a case against al-Rabiah, alleging that he was a fundraiser for Osama bin Laden and had run a supply depot for al-Qaeda in Afghanistan's Tora Bora mountains, for two particular reasons.

The first was because a CIA analyst had interviewed al-Rabiah at Guantánamo in the summer of 2002 and had concluded that he was an innocent man caught at the wrong time and in the wrong place; and the second was because, although al-Rabiah had said that he had met bin Laden and had been present in the Tora Bora mountains, he had provided an innocent explanation for both occurrences. He had, he said, been introduced to bin Laden on a trip to Afghanistan to investigate proposals for a humanitarian aid mission, and he had been at Tora Bora - and compelled to man a supply depot - because he was one of numerous civilians caught up with soldiers of al-Qaeda and the Taliban as he tried to flee the chaos of Afghanistan for Pakistan, and had been compelled to run the depot by a senior figure in al-Qaeda.

These appeared to be valid explanations, especially as al-Rabiah, a 42-year old father of four children, had no history of any involvement with militancy or terrorism, and had, instead, spent 20 years at a management desk job at Kuwait Airways, and had an ownership interest in some health clubs. Moreover, he had a history of legitimate refugee relief work, having taken a six-month approved leave of absence from work in 1994-95 to do relief work in Bosnia, having visited Kosovo with the Kuwaiti Red Crescent in 1998, and having made a trip to Bangladesh in 2000 to delivery kidney dialysis fluid to a hospital in the capital, Dhaka.

As a result, it appeared to me a week last Friday that Judge Kollar-Kotelly granted al-Rabiah's habeas petition because neither his meeting with bin Laden nor his presence in Tora Bora indicated that he was either a member of, or had supported al-Qaeda or the Taliban.

However, now that Judge Kollar-Kotelly's ruling has been issued, I realize that the account given by al-Rabiah during his Combatant Status Review Tribunal at Guantánamo in 2004 - on which I based my account of his activities - was a tissue of lies, and that the truth, hidden for over six years, is that, like torture victims groomed for show trials throughout the centuries, he made up false stories under torture, and repeated them obediently, fearing further punishment and having been convinced that he would never leave Guantánamo by any other means.

An introduction to the torture revelations, and an endorsement of al-Rabiah's explanations about his time in Afghanistan

In her ruling, Judge Kollar-Kotelly methodically dissected the government's case to reveal the chilling truth. After noting, initially, that the "evidentiary record" was "surprisingly bare," because the government "has withdrawn its reliance on most of the evidence and allegations that were once asserted against al-Rabiah, and now relies almost exclusively on al-Rabiah's ‘confessions' to certain conduct," she added, with a palpable sense of disbelief:

..........[ Not only did al-Rabiah's interrogators repeatedly conclude that these same confessions were not believable - which al-Rabiah's counsel attributes to abuse and coercion, some of which is supported by the record - but it is also undisputed that al-Rabiah confessed to information that his interrogators obtained from either alleged eyewitnesses who are not credible and as to whom the Government has now largely withdrawn any reliance, or from sources that never even existed ... If there exists a basis for al-Rabiah's indefinite detention, it most certainly has not been presented to this Court. ]...........

In dealing with al-Rabiah's background, and his reasons for traveling to Afghanistan, Judge Kollar-Kotelly was required to consider his own assertion that, after a preliminary ten-day visit in July 2001 to identify areas where humanitarian aid might be delivered, he returned in October 2001 "to complete a fact-finding mission related to Afghanistan's refugee problems and the country's non-existent medical infrastructure," against the government's claim that he was "‘not an aspiring aid worker caught up in the front lines of the United States war against al-Qaeda' but instead was someone who traveled to Afghanistan in October 2001 as a ‘devotee of Osama bin Laden who ran to bin Laden's side after September 11th.'"

Concluding that "The evidence in the record strongly supports al-Rabiah's explanation," Judge Kollar-Kotelly noted that he had officially requested leave prior to his departure, and quoted from two letters sent to his family. In the first, on October 18, 2001, he explained that "for ten days he assisted with the delivery of supplies to refugees and that he was able to take video ‘reflecting the tragedy of the refugees,' but that he was unable to leave Afghanistan through Iran (the route he took to enter the country) because the borders had been closed." As a result, he "wrote in his letter that he and an unspecified number of other persons decided ‘to drive four trucks to Pakistan making our way to Peshawar,'" and he also asked his brother to notify his boss at Kuwait Airlines that he was having difficulties returning to Kuwait on time.

After noting that "The evidence in the record establishes that al-Rabiah did, in fact, travel across Afghanistan towards Peshawar, ultimately getting captured (unarmed) by villagers outside of Jalalabad ... on approximately December 25, 2001" (with Maher al-Quwari, a Palestinian who also ended up in Guantánamo), Judge Kollar-Kotelly quoted from a second letter sent to his family, in which - ironically, in light of what was to come - he wrote that he was "detained by the American troops and thanks to God they are good example[s] of humanitarian behavior." He added that he was "detained pending verification of [his] identity and personality," and that the "investigation and verification procedures may last for a long time due to the great number of detained Arabs and other persons" who had been fleeing the situation in Afghanistan, which "turned upside down between one day and night and every Arab citizen has become a suspect."

Discrediting the government's unreliable witnesses

Moving on to the government's key allegations - about Osama bin Laden and Tora Bora - Judge Kollar-Kotelly dismissed the allegations regarding al-Rabiah's supposed activities in Tora Bora, which were made by another prisoner who claimed that he "was told that al-Rabiah was in charge of supplies at Tora Bora," by noting that, "Although his allegations are filled with inconsistencies and implausibilities, the Government continues to rely on him as an eyewitness." She also noted that, although the witness had identified al-Rabiah as the man under discussion, from his kunya (nickname), Abu Abdullah al-Kuwaiti, the government had conceded that another Abu Abdullah al-Kuwaiti, an actual al-Qaeda operative named Hadi El-Enazi, was present in Tora Bora, and also noted that an interrogator had expressed doubt about the supposed eyewitness at the time (much of the ruling is redacted, but this seemed to involve a claim that al-Rabiah's oldest son was with him in Afghanistan, when this was demonstrably not the case).

Judge Kollar-Kotelly also dismissed two other sets of allegations by the supposed eyewitness. Noting further "inconsistencies and impossibilities" in his accounts, she stated that "the Court has little difficulty concluding that [his] allegations are not credible," and explained that, to reach this conclusion, she had also drawn on statements provided by al-Rabiah's lawyers, which further undermined his reliability, "based on, among other things, undisputed inconsistencies associated with his allegations against other detainees," and his medical records, which obviously indicated mental health problems (although the description was redacted). "At a minimum," she added, "the Government would have had to corroborate [his] allegations with credible and reliable evidence, which it has not done."

Osama bin Laden, it then transpired, appeared in allegations made by a second prisoner, who "alleged that al-Rabiah attended a feast hosted by Osama bin Laden," where he "presented bin Laden with a suitcase full of money." This source also alleged that al-Rabiah "served in various fighting capacities in the Tora Bora mountains," and that he "funneled money to mujahadeen in Bosnia in 1995."

After noting that the government had dropped "almost all" of these allegations, except for the one relating to Bosnia, Judge Kollar-Kotelly stated, witheringly, "the only consistency with respect to [these] allegations is that they repeatedly change over time." For particular condemnation, she singled out one claim that the feast had taken place in August 2001 (when al-Rabiah was in Kuwait, before his return to Afghanistan in October 2001), amongst other more outlandish claims, including an absurd allegation that al-Rabiah had trained the 9/11 hijackers.

As with the first supposed eyewitness, Judge Kollar-Kotelly noted that there were "multiple exhibits in the record demonstrating [his] unreliability as a witness" (although, sadly, the exact number of prisoners against whom he had made verifiably false allegations was redacted), and concluded that, although the many "inconsistencies and impossibilities" in his statements "raise, at a minimum, a serious question about [his] mental capacity to accurately make allegations against al-Rabiah," the government "did not address them at the Merits Hearing" in August.

After dismissing a third supposed eyewitness, because he had withdrawn his allegation (which was redacted) several months after making it, Judge Kollar-Kotelly dismissed a fourth, even though it was "undisputed" that al-Rabiah actually had contact with him in Afghanistan. Despite redactions, it seems that this man was Maher al-Quwari, and that his statement involved second-hand hearsay about al-Rabiah being seen with a gun. While this was sufficiently weak for the judge not to accept it without further corroboration, she also made a point of discounting it because the supposed witness only "made this allegation while he was undergoing a cell relocation program at Guantánamo called the ‘frequent flier program,' which prevented a detainee such as [redacted] from resting due to frequent cell movements."

While the description of a "cell relocation program" sounds relatively benign, Judge Kollar-Kotelly made a point of noting that it was, in fact, a program of sleep deprivation, adding that, "According to a report published by the Senate Armed Services Committee concerning the treatment of detainees in United States custody, sleep deprivation was not a technique that was authorized by the Army Field Manual." Although she also noted that "sleep deprivation became authorized at Guantánamo by the Secretary of Defense on April 16, 2003, the guidance issued by the Commander of USSOUTHCOM on June 2, 2003 prohibited the use of sleep deprivation for more than ‘four days in succession,'" whereas the supposed witness's "allegation against al-Rabiah was made after one week of sleep deprivation in the program, and he did not repeat this allegation either before or after the program."

False confessions obtained through torture

Despite ruling out all of the government's supposed eyewitnesses, and noting that the government had withdrawn "most of its reliance on these witnesses" by the time of the Merits Hearing, Judge Kollar-Kotelly added that "it is very significant that al-Rabiah's interrogators apparently believed these allegations at the time they were made, and therefore sought to have al-Rabiah confess to them" - despite the well-chronicled unreliability of the first two supposed witnesses, the withdrawing of the statement made by the third, and the fact, easily perceived by the judge, that the fourth made his statement only after being subjected to sleep deprivation that exceeded established guidelines and that was, therefore, not only unreliable, but also abusive.

The judge also noted the significance of the evidence in the record indicating that al-Rabiah "subsequently confided in interrogators [redacted] that he was being pressured to falsely confess to the allegations discussed above," and also the significance of the fact that, although "al-Rabiah's interrogators ultimately extracted confessions from him," they "never believed his confessions based on the comments they included in their interrogation reports."

After noting - again with a palpable sense of incredulity - that "These are the confessions that the Government now asks the Court to accept as evidence in this case," Judge Kollar-Kotelly proceeded to demolish them all, breaking them down into three periods: the first, when "there were no allegations directed toward al-Rabiah and al-Rabiah provided no confessions"; the second, when the supposed eyewitnesses "made their now-discredited allegations and al-Rabiah was told of the allegations against him, but al-Rabiah nevertheless made no confessions"; and the third (which, shockingly, continued "until the present"), when "al-Rabiah confessed to the now-discredited allegations against him, as well as to other ‘evidence' that interrogators told him they possessed, when, in fact, such evidence did not exist


omg ... I just realized how long this piece is .. I will skip it and move to Judge Kollar-Kotelly's devastating conclusions in a following post

.......cont'd