Torture and Transparency in the Military Commissions

America’s war court is back in session at Guantánamo, with yet more pretrial proceedings in the case of the five 9/11 defendants (alleged mastermind Khalid Sheikh Mohammed, or KSM, and his four co-conspirators). Whatever may come of Obama’s last-ditch effort to close Guantánamo, military commissions will remain for the foreseeable future. Among other issues in the case, the judge, Army Col. James L. Pohl, must confront defense counsel’s requests for access to documents surrounding the interrogation of their clients, including the approximately 6.3 million documents that the Senate Intelligence Committee relied on for its report on CIA torture. In December 2014, the committee released its executive summary of that report, but the full report still remains classified. The summary describes in graphic detail techniques used on detainees, such as waterboarding, sleep deprivation, exposure to freezing temperatures, and rectal feeding.

In a recent turn of events, the commissions’ chief prosecutor, Brig. Gen. Mark Martins, stipulated that the facts described in the report’s executive summary actually occurred. CIA Director John Brennan, by contrast, has maintained that the report is replete with errors. This filing is not the first time that Martins has gone against other government agencies in prosecuting cases. He has also sought — unsuccessfully — to drop the controversial conspiracy charge from pending military commission cases to streamline and strengthen prosecutions.

Yet, there are reasons to be skeptical that Martins’s statement represents a significant step for transparency, which, along with Fairness and Justice, is the commissions’ official motto.

Martins is almost certainly seeking to expedite proceedings in the 9/11 case. The lead defendant, Khalid Sheikh Mohammed, has been at Guantánamo for nearly a decade, following his transfer from a CIA black site in 2006. (KSM has been in US custody since March 2003.) Had KSM been prosecuted in federal court, as the Obama administration initially proposed, there is little doubt he would have been convicted years ago. In fact, in 2011, then-Attorney General Eric Holder described the case against the self-declared 9/11 mastermind and his four co-conspirators as “one of the most well-researched and documented cases” he had seen in his decades as a prosecutor.

Today, however, the delays at Guantánamo continue. The slow pace and frequent tangential pre-trial proceedings not only undermine the commissions’ legitimacy, but also postpone justice for victims’ families. In a recent letter to family members, Martins conveyed his understanding at the families’ frustration and acknowledged that “much work remains to be done.” He also rejected a defense lawyer’s prediction that pretrial hearings could stretch another 10 years. By stipulating to the facts in the torture report’s executive summary, Martins likely hopes to eliminate some issues from contention and move the ball forward.

But there’s another potential side to the story. The stipulation may limit the defense’s effort to obtain the documents held by the CIA relating to the treatment of detainees. Agreeing to the facts in the executive summary, the logic goes, will strengthen the prosecution’s ability to forestall further discovery into CIA interrogations. By avoiding debate over the facts, the CIA may be able to avoid the disclosure the agency has so vigorously opposed in other contexts, including in Freedom of Information Act (FOIA) litigation brought by the ACLU to obtain the full Senate report. As things stand, the government has maintained that the full report is a legislative document that is exempt from disclosure under FOIA, but releasing the report to the defense in the 9/11 trial could undermine the government’s arguments. If the government had to turn over the documents as part of pre-trial discovery in the military commission, it might lose its ability to argue that the report isn’t an executive branch document. In addition, it is entirely plausible that excerpts, or perhaps the whole report — commission defense teams are seeking both — could come out through declassified court filings in the commission proceedings.

Defense counsel want the underlying CIA documents for two main reasons. First, they hope to undermine statements introduced against their clients. While the prosecution has foresworn using statements obtained from the defendants during CIA detention, they may rely on statements provided to FBI “clean teams” after the detainees were transferred from CIA custody to Guantánamo. Such statements won’t matter at the guilt phase of the trial with a defendant like KSM, where there appears to be overwhelming evidence of his role in the attacks. But the statements could potentially make a difference with other defendants, such as KSM’s nephew, Ammar al Baluchi. Either way, disclosure to defense counsel, all of whom possess top-secret security clearances, is important for ensuring that, even in cases of exceptional crimes, defendants receive the full protections of the Constitution — historically, a challenge at Guantánamo, where prisoners were brought precisely to avoid those protections.

The second reason defendants want the documents is to establish a stronger mitigation case at the sentencing phase, assuming they are convicted. As the defendants will surely maintain — and as I’ve argued in the New York Times — the brutal manner in which the defendants were treated means that the United States should not execute them, regardless of guilt. The CIA torture program has done incalculable damage to the rule of law, which will be magnified by executing the victims, despite the gravity of the crimes. While the Senate’s executive summary contains extensive details about KSM’s treatment, including his repeated waterboarding, the underlying documents could still shed additional light on the treatment of other individuals.

Aside from the documents related to the Senate’s torture report, the defendants are seeking government documents on how CIA interrogators and other officials assisted director Kathryn Bigelow and screenwriter Mark Boal in preparing the first 20 minutes of the 2012 film “Zero Dark Thirty,” in which interrogators waterboard and string up a prisoner named “Ammar,” who is described as KSM’s nephew. Defense counsel has suggested that this individual is current commission defendant Ammar al Baluchi. Baluchi’s attorneys want the court to order the government to provide them with the uncensored correspondence between the filmmakers and US officials and the opportunity to review an internal CIA memo discussing the interrogation of a character modeled after al Baluchi.

In connection with the filing, segments of the film were screened in court last week. Given the destruction of videotapes of CIA interrogations, Hollywood’s account assumed the role of a stand-in for the visual documentation of the torture program. Beyond possibly shedding additional light on real-life events, “Zero Dark Thirty” is a reminder of how the CIA has selectively released information to serve its interests and bolster its claims that torture is effective. (The film suggests that torture played an important role in helping the US locate Osama bin Laden.)

In resolving these issues, Judge Pohl faces competing pressures to move the cases forward and to salvage some shred of legitimacy for the commissions by demonstrating respect for the defendants’ fair-trial rights. Judge Pohl should keep in mind that, while much is now known about the CIA torture program, each time a layer is peeled back, more horrific abuses come to light. Recall how former CIA Director Michael Hayden initially claimed that waterboarding was used only sparingly in his February 2008 congressional testimony. Office of Legal Counsel memos released in 2009 (notably the Abu Zubaydah interrogation memo) cast waterboarding in a new, more appalling light. And then, in 2014, the torture report’s executive summary revealed yet more details about its use, along with the use of other harsh interrogation methods. Since, at least one detainee (Majid Kahn) has asserted waterboarding was used on more prisoners than the CIA admits even today. The executive summary includes a 38-page table comparing Hayden’s statements to often conflicting agency documents.

In short, facts matter. They matter not only to determinations of guilt and the imposition of sentences on individual defendants, but also to the integrity of the proceedings themselves. While stipulations designed to avoid unnecessary litigation represent a sensible step forward, they should not short-circuit a defendant’s right to obtain information as relevant as the details of his prior torture by the same government seeking to convict and execute him. History teaches that the public (or even just the defense lawyers) will know the full scope of the horrors of the CIA torture program only if all of the information is disclosed. And the full scope of horrors ultimately matters for all three of the commissions’ stated goals: fairness, transparency, and justice. 

About the Author(s)

Jonathan Hafetz

Professor of Law at Seton Hall University School of Law Follow him on Twitter (@JonathanHafetz).