Flames out of the Side of My Head: Guantanamo and Torture Plea Agreements

--by Sebastian

Apparently the Administration is leveraging torture victims into plea bargained fact witnesses.  This article reveals some of the details (I know it is from February, but I somehow missed it.  And the fact that it hasn't been all over the news suggests that worrying about it hasn't gained much traction).

 

When a suburban Baltimore high school graduate steps out of the shadows of CIA detention this week to admit to serving the senior leadership of al Qaida, the Obama administration will be unveiling its latest strategy toward an endgame.

Majid Khan has agreed to be a government witness at future military commissions, sources say, in exchange for Wednesday’s guilty plea and the possibility of return to his native Pakistan in four years. It’s part of an evolving effort to quell criticism that confessions were extracted through torture by offering live testimony from willing captive witnesses.

“It’s like organized crime,” said retired Air Force Col. Morris Davis, a Bush-era Pentagon war crimes prosecutor. “Sometimes you pick the lesser of the two evils and bargain with who you can.”

Federal prosecutors describe Khan, who turns 32 Tuesday, as a one-time willing foot soldier for radical Islam. He allegedly recorded a martyr’s message and donned a fake bomb vest in 2003 in a test to see whether he was willing to kill then-Pakistani President Pervez Musharraf. He allegedly delivered $50,000 from Pakistan to Thailand, money used to fund an al Qaida affiliate’s August 2003 suicide attack on a Marriott hotel in Jakarta, Indonesia. Eleven people died, and more than 80 others were wounded.

The attack’s alleged architect, Riduan Bin Ismouddin, an Indonesian man known as Hambali, and two reputed Malaysian deputies were, like Khan, subjected to years of secret CIA interrogations — never charged but still at Guantánamo and, according to a Malaysian newspaper’s report, in the queue to face military trials.

...

Khan has always been a bit of an anomaly among the CIA’s so-called “ghost prisoners” who were subjected to “enhanced interrogation techniques.” His parents live in suburban Baltimore, where they moved the family in the ’90s and became legal residents. Khan graduated from Owings Mills High School in 1999 and went back to Pakistan after the 9/11 attacks over the objections of his parents, who hid his passport.

Pakistani security forces arrested him in 2003. FBI agents searched the family’s Baltimore house and trailed them for a time. The family heard no news of their son until September 2006 when President George W. Bush announced that “a terrorist named Majid Khan” was in custody and had confessed under interrogation to delivering “$50,000 to individuals working for a suspected terrorist leader named Hambali, the leader of al Qaeda’s Southeast Asian affiliate.”

A year later, defense attorneys filed a brief in federal court declaring him a torture victim of the CIA’s enhanced interrogation program. “Khan admitted anything his interrogators demanded of him,” his lawyers wrote, “regardless of the truth, in order to end his suffering.”

According to transcripts, Khan told a military board in April 2007 that he emerged from CIA custody so despairing of his isolation that he tried to kill himself by chewing through an artery in his arm.

So this is the person who is going to give useful factual testimony as part of his plea bargain?  This is the person whose testimony will be used to create the factual underpinnings for other convictions?  The practice of leveraging a plea bargain into flipping you for testimony against people 'higher up the chain' has serious reliability problems built in, even as currently practiced.  It seems like a great way to have the prosecution encourage perjury.  But linking it with torture makes it even more obvious: torturing someone so much that they want to kill themselves, and then offering to free them if they give the 'right' testimony is almost guaranteed to get false testimony. 

As John Quiggin wrote at Crooked Timber: "The idea that the state can torture someone, imprison them indefinitely, and then use their “voluntary” testimony (given in the hope of release) against another, then claim that this is an improvement on using confessions extracted by torture of the accused is more reminiscent of the legalisms of a totalitarian state than of anything that could be described as the rule of law."

 

Comments

[Countme-In]

"so despairing of his isolation that he tried to kill himself by chewing through an artery in his arm."

Just reading that makes ME want to confess to all of it, everything, whatever it is, yes it's safe, no it's not safe, and apologize, testify, and move directly to witness protection.

I'm sorry. I did it. Everything. Come together .... over me.

Has there ever been a violent revolution and overthrow of a government in a country wherein the grievances are so colossally bi-partisan in nature that all political parties and elected keepers of the ideologies across the spectrum from the middle to their very extreme ends are frog-marched to the stadium for quick dispatching?

Shut up, all of you! We'll call your names in alphabetical order so as to be unbiased politically. Step over here, turn in your human badge, and await hooding and placement.

I mean, other than Greece and Spain next Tuesday.

That leaves three business days for the U.S. to straighten up.

[McKinneyTexas]

A couple of thoughts. First, yeah, it all looks real sketchy. That said, I take with a grain of salt anything anyone on either side of a case like this says. Maybe he was tortured, maybe not. Was it water boarding or solitary confinement? Or did someone show him a picture of a naked woman? Did he really try to chew into an artery? This one, particularly, seems a reach.

Second point, and this is the gov't's problem: if he is lying about being tortured and lying about trying to chew his arm off, well then, he's a liar. OTOH, if he's telling the truth, then Sebastian has it nailed down tight: it's using a coerced confession to coerce more confessions.

Third point: this guy has been in custody for what, 6 years? That's a long time to finally gain someone's cooperation, which circumstantially lends credence to some form of sustained coercion, even if it falls short of actual, hands-on torture.

[Turbulence]

Maybe he was tortured, maybe not.

Let's assume that he wasn't tortured. In that case, he was faced with a choice: remain imprisoned without charge forever or take a plea deal which involves a finite term of imprisonment. Who wouldn't take the plea deal?

In addition, there's a ton of evidence indicating that isolation will destroy prisoners' minds.

[Rob in CT]

The whole Gitmo mess seems beyond redemption to me.

[Ugh]

Turb: In that case, he was faced with a choice: remain imprisoned without charge forever or take a plea deal which involves a finite term of imprisonment. Who wouldn't take the plea deal?

Yep, this is the real problem with indefinite detention and "plea bargaining." In the regular context it's plead guilty to a lesser charge (and also maybe testify against others) or face trial on a graver charge. At least there you can take your chances with a jury or judge. Here, not so much.

I understand the Obama Administration's perceived dilemma on this, but ultimately they're taking the "safe" and selfish path. They could end this all in a week and be done with it, but, maybe they'll have more room to maneuver after the election....

[McKinneyTexas]

remain imprisoned without charge forever or take a plea deal which involves a finite term of imprisonment. Who wouldn't take the plea deal?

Agreed. It's plainly coerced. I think the overall context indicates a higher level of coercion, which obviously taints not just the testimony, but the entire process.

[McKinneyTexas]

I understand the Obama Administration's perceived dilemma on this

Do you think it's political expediency or do you think that, now that Obama's had a look at the classified stuff on these guys, he's been persuaded that it's the lesser of two evils to keep them indefinitely? Or maybe some combination of the two? Maybe I'm wrong about this, but I've always assumed that Obama reached a reasonably good faith conclusion that the current batch of prisoners really are a danger even if it can't be proved in court.

That said, show trials on BS evidence is a stupid way to go.

If it's what I suspect, the right thing to do is just come clean: tell everyone that, on balance, it's too damn risky to give these guys a public trial or even to show their lawyers what, where and how the evidence against them was developed. Therefore, they will be detained indefinitely or, alternatively, a review of the evidence by a board cleared to see the intelligence will make the determination.

[Turbulence]

Do you think it's political expediency or do you think that, now that Obama's had a look at the classified stuff on these guys, he's been persuaded that it's the lesser of two evils to keep them indefinitely?

Expediency.

I'm reminded of something CharleyCarp wrote here a few years ago (describing his efforts defending a Gitmo detainee): "there are no files". We keep thinking that the government has big files on each prisoner, overflowing with evidence recounting their guilt. But there just aren't any. The CIA went into Afghanistan and paid villagers to give them terrorists without bothering to figure out if the people handed over were actually terrorists. Then they get to Gitmo and we can't prosecute them (no evidence) but we can't let them go (political suicide). So they're stuck in limbo. Some of them probably are guilty of something, but the process can't tell us who did what with any reliability.

I look at it this way: if the US government really does have awesome intelligence sources that give it accurate information about all the Gitmo detainees, then why isn't the Afghanistan war over yet? If we have such awesome intelligence, then it should be a piece of cake to determine exactly who is in the Taliban, who is working for them, etc. But we have no clue; that's why Afghanistan security forces have been so thoroughly infiltrated.

[Brett Bellmore]

"They could end this all in a week and be done with it, but, maybe they'll have more room to maneuver after the election...."

And then use it to become even worse, is my bet.

[Hartmut]

I see this as just an extension of the already broken justice system. Guilt does not really matter, if 'successes' are needed.

[sarcasm]
Unfortunately (from the government's POV) the traditional solution to this is blocked (i.e. death of 'natural' causes and 'killed while trying to escape') and the simple disappearing act has failed
[/sarcasm]

From what I see the only major difference between Bush and Obama on this is that the latter seems to have a moderately bad conscience about this and tries to at least formally stick to procedure. The Bushies followed more Stalin's alternative proposal to Nuremberg that he made to Churchill (that was to choose a limited number of Germans at random and to shoot them instead of taking the lengthy effort of regular trials to formally and legally convict the guilty). The goal is the same, i.e. the state must be seen as successfully going after the bad guys on the battlefield and in court. Becoming a target in this must be proof of guilt or it would tarnish the image of the state.
Kafka knew what he wrote about.

[liberal japonicus]

The Crooked Timber comments mentions an 'Alford plea' in the context of Australian law, but the wikipedia only lists it as a feature of US law. I'm not in top form on my google-fu, anyone followed these kinds of pleas closely?

[Sebastian]

I don't follow those kind of pleas closely, but I'm pretty sure the CT comments are talking about an Australian citizen who was captured/arrested by Americans and taken to Guantanamo giving an Alford plea under US law in order to be released to Australia.

[liberal japonicus]

Ahh, ok, that makes sense. thanks

[Ugh]

McTx: Do you think it's political expediency or do you think that, now that Obama's had a look at the classified stuff on these guys, he's been persuaded that it's the lesser of two evils to keep them indefinitely? Or maybe some combination of the two? Maybe I'm wrong about this, but I've always assumed that Obama reached a reasonably good faith conclusion that the current batch of prisoners really are a danger even if it can't be proved in court.

I'm perfectly willing to believe that there is such a batch of prisoners. But the fact that this can't be proven in court is, I'm willing to bet, in the vast majority of cases a result of government malfeasance. Either as a result of torture, failure to collect evidence and/or establish a chain, paying bounties, kidnapping, etc.

The normal answer in such as case is: that's too damn bad, you have to let the suspect (and that's what they are) go. But the normal rules apparently don't apply here because, dammit, we captured Lex Luthor and we can't just let him go! He might destroy the world! And he has kryptonite! Plus it would be really bad for the President politically. Also. Too.

Spare me. Either charge these people with whatever crimes they supposedly committed in front of an Article III court with full constitutional rights, like, you know, what we used to do with alleged terrorists and have done since then (who knows, some of them might actually plead guilty!), or let them go.

But hey, who cares if a couple hundred individuals will die in prison without due process, so long as the cowardice of the American people (as expressed individually and through their elected representatives) is assuaged and the President's re-election prospects are preserved.

[cleek]

no American President will "let these people go", for the same reason no President will tell the DHS to stop screening people at airports: there is no political upside, and the potential political downside is enormous.

perhaps if we started electing Presidents who aren't politicians, this could change. but that obviously isn't going to happen, either.

[hairshirthedonist]

there is no political upside, and the potential political downside is enormous.

Which is strange, given all the blathering on some people do about what would supposedly upset the Founding Fathers. Though I guess it's one of the places where the Ron Paul wing should get some credit, assuming his supporters are paying attention and agree with him on that particular point.

How people can square their outrage at ACA with their lack thereof over this, I don't know. I guess it's just "Eeek! Scary Muslims!" that trumps "Eeek! Scary Government!" when it comes to the indefinitely detained.

[Ugh]

cleek - I could see that w.r.t., at most, KSM and maybe 2 or 3 others, but there are ~165 other people held there now and I couldn't name a single one, and I would bet I've followed this more closely than 99% of the American public.

And let's not forget, the U.S. has already released/transferred 600 former Gittmo prisoners; I don't recall any political downside to anyone. Sure there were a few stories about released prisoners "returning" to the "battlefield" and yet... nothing, so far as I could tell.

[Hartmut]

There was that rumor that the person that blew up that big-wig council in Syria was ex-Guantanamo.
Anyway, I can only admire any ex-inmate of Guantanamo that does not feel the urge to equal the score, esp. if brought there without having done anything. Of course this very reason is given esp. by right-wingers for never letting anyone out again (You know what we did to them. By now they MUST be the ardent America-haters we painted them as).
Also, it does not matter, whether any ex-Gitmo guy does anything. It will (and has been) claimed that they go straight 'back to the battlefield' at least since (i.e. after) Bush left the WH in order to prevent Obama from going legal on the topic (I reserve judgement though on how serious Obama was about that in the first place). Bush could let even actually guilty people go, a Democrat cannot risk anything (and esp. not the l-word n-word with the suspicious middle name).

[CCDG]

I keep wondering if there are two sides to this or if there is only one side that everyone deals with differently.

One side: Torture is bad, the people at GITMO are a problem, shouldn't have been there in the first place, can't really just let them go but what to do is problematic now that they are there so it is taking way too long. Hope like heck we aren't creating another GITMO somewhere else.

This either irritates me, or incenses me, worries me, or just perturbs me, or I can live with it since I have to.

The other side?

[cleek]

The other side?

here's a random RedState comment:

Not only should terrorists be killed, either on the spot or after extreme interrogation; they must be killed. They are not legal combatants under the Law of War (not to be confused with various treaties since WW II), and the LOW is enforced by penalizing violators. Lawful comabatants, when captured, are held captive IAW the LoW. Illegal combatants, when captured, are …what? If you imprison them, they are paying zero penalty for violating the LoW. If illegal combatants pay no penalty, then what is the incentive for complying with the laws? Illegal combatants must face execution, or compliance with the LoW becomes completely voluntary. Since complying with the LoW often entails behavior which makes victory less likely, there has to be incentive to obey. I believe some Jewish comentators thousands of years ago pointed out that not punishing criminals penalizes the law-abiding. That is wrong and stupid.

... etc.

i doubt this clown is alone.

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