Federal Court Orders Disclosure to Detainee Who Worked for Khalid Sheikh Mohammed

U.S. District Court Judge Ricardo Urbina last month ordered the Government to provide Guantanamo inmate and habeas petitioner Abdul Raheem Ghulam Rabbani, who allegedly worked for accused 911 mastermind Khalid Sheikh Mohammed, with some of the discovery he requested about his interrogation in overseas prisons.

Judge Urbina also ruled that Rabbani can submit written questions to KSM. The declassified and redacted opinion has now been released. It's a long opinion, here are some of the more notable parts:[More...]

The interrogation plan produced by the government, even in its heavily redacted form, demonstrates that these documents contain a host of relevant information regarding the interrogation of the petitioner, including the language in which such interrogations took place, their duration, the topics of information sought, the interrogator's basic strategy and previous approaches employed. ... The petitioner also notes, and the government does not refute, that the one interrogation plan form produced to date "specifies the interrogation techniques to be used ... whether [blacked out] offered ... and whether the interrogation techniques required approval above the authority of the signer." These materials plainly fall within the ambit of § I.E.I(3). Accordingly, the court concludes that for any statement made by the petitioner on which the government relies, § I.E. 1 (3) requires the government to produce any interrogation plans, plan forms, logs or similar records pertaining to that statement, including records relating to efforts to "soften up" the petitioner prior to interrogation.

...The court is also persuaded that the "References" for authorized interrogation techniques requested by the petitioner may contain responsive circumstances" evidence. The first "Reference" listed in the interrogation plan produced by the government refers to a "Memorandum from the Secretary of Defense to the Commander, US Southern Command," dated April 16, 2003. Petr's Mot., Ex. 1 at 7. The Armed Services Committee report on detainee abuse remarks that this memorandum authorized the use of 24 specific interrogation techniques, such as "dietary manipulation, environmental manipulation, and sleep adjustment." ("Inquiry into the Treatment of Detainees in U.S. Custody, Report of the Committee on Armed Services, United States Senate") at xxii. Thus, it appears that the "References" listed on the interrogation plan defined the interrogation techniques authorized for use on the petitioner and to which he may have been subjected. Id. To the extent that this information pertains to interrogation techniques to which the petitioner was subjected, this information plainly falls within the scope of § I.E. 1. ....Accordingly, the government is required to produce all such reasonably available materials.

The court refused to order the Government to produce all interrogation materials from 2002 to the present and unredacted versions of the interrogation plans. But the Court also expressed some continuing concerns:

The court, however, is troubled by the government's representation that "the redactions in question were made by the CIA and were based on a careful determination that counsel did not have a need to know the redacted information."

...Accordingly, for all interrogation plans, plan forms, logs, records and similar documents that are produced in a redacted form, the government shall certify that a government attorney with an understanding of the law and the facts pertaining to this case has reviewed the unredacted documents and determined that no additional responsive materials are contained therein.

The court goes on to detail some of Rabbani's allegations of torture:

Here, the petitioner asserts that after his capture, he was taken to the "Dark Prison" where he was held for approximately seven months kept in the pitch dark, deprived of food and sleep, chained to a wall and threatened with hanging. Petr's Mot. at 13. It was during this period that the petitioner allegedly "confessed" to having had a relationship with Osama Bin Laden. Id.

The petitioner asserts that he was then taken to an underground prison, where he was held for nine months, during which time he was kept cold. and hungry and was subjected to frequent, threatening interrogations. Id. at 14.

The petitioner was then transferred first to Bagram and then to Guantanamo Bay, all the while subjected to harsh treatment and constant interrogation. Id. These allegations detail an unbroken stream of coercion, abuse and torture stretching from the petitioner's capture in Pakistan to his more recent interrogations in Guantanamo Bay.

The Government claims that because Rabbani recanted the statements he made in Afghanistan and Pakistan once he got to Bagram, they shouldn't have to produce them. The Court disagrees.

The mere fact that the petitioner allegedly recanted his prior inculpatory statements while at Bagram is insufficient to insulate subsequent statements from the taint of prior coerced statements, given the unbroken stream of interrogations to which the petitioner was subjected before and after Bagram as well as the highly coercive nature of the conduct alleged.

...Moreover, even if the petitioner's disavowal at Bagram weakens the inference to be drawn from evidence of prior coercion and torture, the government has hardly shown that the disavowal was of such a nature as to render such evidence immaterial....Accordingly, the court concludes that evidence that coercion, abuse or torture were used to obtain inculpatory statements from the defendant at any point during his detention must be produced under § l.D.! of the CMO

In a footnote the court states "Other detainees have testified about being detained and tortured at a facility referred to as the "Dark Prison."

As to whether Rabbani can interview Khalid Sheikh Mohammed, the Court ordered:

the petitioner may submit a list of narrowly tailored interrogatories to be answered by KSM. These interrogatories shall focus exclusively on the relationship between KSM and the petitioner prior to their apprehension and the petitioner's role, if any, in facilitating operations on behalf of AI-Qaida. The interrogatories shall not delve into matters regarding KSM's detention or interrogation.

The government shall have the opportunity to redact KSM's responses to the extent necessary to prevent the release of information implicating national security concerns.

CBS legal analyst Andrew Cohen thinks the Government will appeal the disclosure order ... and win.

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    Would that Obama's DoJ (5.00 / 1) (#1)
    by scribe on Fri Aug 21, 2009 at 01:33:37 PM EST
    were as weak-kneed and roundheeled about defending Bush/Cheney's torture program and torturers as the Administration's shown themselves to be about things like ... getting Dawn Johnsen confirmed, living up to two years of promises of public option in the health insurance reform, making the prior administration own its failures, transparency, ... the list goes on.

    From watching this administration "negotiate" (on everything other than protecting and perpetuating Bush/Cheney's policies and crimes), I would not need any convincing to conclude Obama never settled a case.  Because he's surely playing like a rookie.  And a weak one at that.