Judge Kollar-Kotelly added, pointedly, "These abusive techniques did not result in any additional confessions from al-Rabiah, although he continued to parrot his previous confessions with varying degrees of consistency, and then reached her devastating conclusion:
The Court agrees with the assessment of al-Rabiah's interrogators, as well as al-Rabiah's counsel in this case, that al-Rabiah's confessions are not credible. Even beyond the countless inconsistencies associated with his confessions that interrogators identified throughout his years of detention, the confessions are also entirely incredible. The evidence in the record reflects that, in 2001, al-Rabiah was a 43 year old who was overweight, suffered from health problems, and had no known history of terrorist activities or links to terrorist activities. He had no military experience except for two weeks of compulsory basic training in Kuwait, after which he received a medical exemption. He had never traveled to Afghanistan prior to 2001. Given these facts, it defied logic that in October 2001, after completing a two-week leave form at Kuwait Airlines where he had worked for twenty years, al-Rabiah traveled to Tora Bora and began telling senior al-Qaeda leaders how they should organize their supplies in a six square mile mountain complex that he had never previously seen and that was occupied by people whom he had never met, while at the same time acting as a supply logistician and mediator of disputes that arose among various fighting factions.
It remained only for Judge Kollar-Kotelly to replay some of the more obvious discrepancies in al-Rabiah's "confessions to demolish the government's claims that they should be accepted as "reliable and credible, and to refute the government's argument that, "even if al-Rabiah's confessions in 2003 were the product of abuse or coercion " the taint " would have dissipated by the time of his CSRT in 2004, when he provided the painstakingly detailed and superficially plausible false confession that was the only publicly available account of his activities until Judge Kollar-Kotelly's ruling was released.
Taking exception to the government's argument "for both factual and legal reasons, the judge took particular note of the role played by al-Rabiah's lead interrogator, "who extracted al-Rabiah's confessions and punished his recantations, noting that he "continued to make ˜appearances' at al-Rabiah's interrogations at least as late as [redacted] -- after al-Rabiah's testimony in his CSRT proceedings. She also explained, "Such ˜appearances' appear to have been terrifying events for al-Rabiah given the description included in a [redacted] interrogation report (the details of which were, again, redacted).
On a legal basis, she dismissed the government's argument by explaining that, although "it is certainly true in the criminal context that coerced confessions do not necessarily render subsequent confessions inadmissible because the coercion can be found to have dissipated, there needs to be evidence of "a ˜clean break' between the coercion and the later confessions, which is simply not available in al-Rabiah's case. "If anything, she concluded, "the evidence suggests that there was not a ˜clean break' between the coercion and his later statements because there is evidence that [redacted] continued to appear at al-Rabiah's interrogation sessions through at least September 2004 (the date redacted in the paragraph above).
As a final stab at the government, she mentioned a statement made by al-Rabiah in May 2005, and submitted to his first annual Administrative Review Board (the military panels that reviewed the bases for prisoners' ongoing detention), which had not surfaced until the Merits Hearing, in which al-Rabiah attempted to set the record straight, "recant[ing] all of his previous confessions with the sole exception of one admission that he saw [but did not meet] Osama bin Laden during his July 2001 trip to Afghanistan.
After dealing with a few more ingenious but flawed claims by the government, it remained only for Judge Kollar-Kotelly to recap the whole sorry saga, and to deliver the final words to restore Fouad al-Rabiah's liberty:
During the merits Hearing, the Government expressly relied on "Occam's Razor, a scientific and philosophic rule suggesting that the simplest of competing explanations is preferred to the more complex " The Government's simple explanation for the evidence in this case is that al-Rabiah made confessions that the Court should accept as true. The simple response is that the Court does not accept confessions that even the Government's own interrogators did not believe. The writ of habeas corpus shall issue.
Final words
Judge Kollar-Kotelly's ruling will, hopefully, be recalled in years to come as one of the most significant examples of a judge attempting to redress some of the most egregious injustices perpetrated in Guantà namo's long, dark history. The shocking sub-text to this story is that al-Rabiah is not the only prisoner to have been brutalized into making false confessions, and then being required to repeat them. Ahmed al-Darbi, a Saudi put forward for a trial by Military Commission, made similar claims in a statement posted here, and, as I mentioned above, it is also clear that SERE-derived "enhanced interrogation techniques were applied to at least 100 prisoners in Guantà namo between 2002 and 2004, above and beyond those like Mohammed al-Qahtani and Mohamedou Ould Slahi, whose stories are well-known. Many of these men -- all the Europeans, other Arabs who had the misfortune to speak good English or to have visited the United States -- have been released, their false confessions (like those made by the "Tipton Three after months of abuse, before their lawyers proved one of them was working in a shop in England when he was supposedly videotaped at a training camp) filed away, used to justify their lifelong label as "enemy combatants, but not leading, as with Fouad al-Rabiah, to a court appearance where the supposed evidence will ever be tested.
Al-Rabiah was fortunate to meet a judge with an inquiring and diligent mind, and an acute awareness of the many problems with the gathering and interpretation of information at Guantà namo, but others have not yet had an opportunity to do the same, and although further habeas petitions are forthcoming, and others are scheduled to face either trials by Military Commission or federal court trials, where similar patterns of false allegations followed by torture and false confessions may be detected, it troubles me that the 50 or so prisoners identified by officials last week as being candidates for indefinite detention -- described by the New York Times as those who "are a continuing danger to national security but who cannot be brought to trial for various reasons, like evidence tainted by harsh interrogations -- may also have been caught up in a cynical cycle of false allegations, torture and false confessions.
As David Cynamon, one of Fouad al-Rabiah's attorneys, explained to me in an email exchange:
To date, the debate about torture in the U.S. has been skewed by the fact that the admitted victims of torture are also admitted al-Qaeda leaders, like Khalid Sheikh Mohammed. This gives the Cheneys and Wall Street Journal types the argument that torture was justified to get valuable information from these hardened terrorists. I know this argument is wrong, but it's being made, with some effect. But what happens when you declare the Geneva Conventions "quaint, and lift all limits, is that pretty quickly the abusive interrogation techniques are not being limited to the KSMs but are being applied to innocent prisoners like Fouad al-Rabiah, who have no valuable intelligence because they have no connection with al-Qaeda or the Taliban. Instead, they are tortured in support of a cynical and misguided dictum that there can be no innocent men in Guantà namo.
It is hard to believe that the U.S. could ever have sunk so low. And that the new Administration is keeping us down there. The Obama Department of Justice, with Attorney General Holder piously proclaiming that this Administration repudiates torture, and follows the rule of law, in fact is following the Bush playbook to the letter. In this case, the DoJ defended the abusive and coercive interrogation techniques used against Fouad. Thank God, though, that we have an independent judiciary. The importance of the writ of habeas corpus and independent judges has never been more clear.
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