Gagging the Detainees

By JOANNE MARINER

Tuesday, Sep. 26, 2006

Americans adopted the Bill of Rights more than 200 years ago, and we signed on to the Geneva Conventions in 1949. It would seem rather late in the day for a national debate about torturing detainees.

Yet that's what we've been seeing over the past month, and it's not over yet. In early September, President Bush appeared on national television to defend the "alternative" interrogation techniques that the CIA has used on detainees in its custody. He chose not to describe these techniques, although they have already been leaked. That same day, the White House unveiled draft legislation that would have decriminalized the abuses.

Water-boarding (a form of simulated drowning), forced hypothermia, extended sleep deprivation -- these and other "extreme measures" have been explicitly authorized. Because CIA operatives feared criminal prosecution for committing what are, in fact, serious crimes, the White House military commissions bill included a number of measures to protect them.

A handful of Republican senators opposed some of the White House's worst proposals, and extended wrangling ensued. Yet because the compromise bill that the Republicans agreed on last week bars the courts from hearing cases brought by detainees held overseas, it still leaves detainees extremely vulnerable to future abuse.

And that's not all. Tucked into the bill's military commission rules are a couple of provisions meant to stop detainees from revealing the facts even of past abuses. As President Bush understood when he omitted the ugly details of the CIA's detainee program from his televised speech, what the public doesn't know can't hurt him.

Water-boarding, Threats to Children, and Mock Burials

From the testimonies of a few former CIA detainees and of several Guantanamo detainees who were previously held by the CIA, as well as from documents and intelligence sources, there is abundant information about a range of abuses committed against detainees in CIA custody. Stories of physical violence, sexual humiliation, and extended sleep deprivation have been common.

But there are other, perhaps even more serious abuses, about which we have little direct knowledge. The most notorious of these practices is water-boarding. Although anonymous intelligence sources have spoken frequently of the practice, saying that it has been employed on at least a handful of "high-value" detainees, neither journalists, nor human rights organizations, nor lawyers have ever had access to such detainees. As a result, the precise details of how the practice has been used have yet to be confirmed.

ABC News described water-boarding as follows:

The prisoner is bound to an inclined board, feet raised and head slightly below the feet. Cellophane is wrapped over the prisoner's face and water is poured over him. Unavoidably, the gag reflex kicks in and a terrifying fear of drowning leads to almost instant pleas to bring the treatment to a halt.

According to the sources, CIA officers who subjected themselves to the water boarding technique lasted an average of 14 seconds before caving in. They said al Qaeda's toughest prisoner, Khalid Sheik Mohammed, won the admiration of interrogators when he was able to last over two minutes before begging to confess.

And it was Khalid Sheikh Mohammed, whose two children were picked up with him, who was reportedly subject to another of the most extreme of the CIA's "extreme techniques." According to several former CIA officials interviewed for The One Percent Doctrine, Ron Suskind's recent book, interrogators told Mohammed that his children would be hurt if he didn't cooperate. The children, a boy and a girl, were ages seven and nine.

Finally, according to Newsweek magazine, which could not say whether the practice had actually been used, the CIA also asked for authorization to conduct "mock burials," in which the detainee would be made to believe he was being buried alive.

Methods and Activities by Which the United States Acquired Evidence

The Administration likes to talk tough about its counterterrorism policies, but it does not want the most graphic stories of abuse to be aired publicly. The president has repeatedly denied that the U.S. allows torture; a first-hand account of water-boarding would be an unwelcome rebuttal.

The fourteen detainees who have likely been subject to the worst abuses in CIA custody are now at Guantanamo, having been transferred there earlier this month. They will, at some point in the future, have access to attorneys. With attorneys and fair procedures, comes a risk that information about their treatment will become public. But the Administration has taken steps to block such revelations.

One important barrier already exists. Attorneys who represent Guantanamo detainees have to sign an agreement restricting their ability to speak publicly. They must turn over all their notes and documents before they leave Guantanamo, and they can only speak about the information they have obtained after it undergoes classification review. Only the information that is declassified can be disseminated. The result may, in some cases, be censorship of unwanted information.

The pending detainee bill also helps block such information by stripping the courts of jurisdiction over Guantanamo. The filing of a habeas action is not only a means of stopping abuse, it is also a means of divulging that abuses exist.

And the bill has a final trump card in the form of two provisions. Subchapter IV of the bill, which covers the trial procedures of military commissions, has specific provisions that allow the government to protect the "sources, methods or activities by which the United States acquired evidence" if those practices are classified. Because the government has said that all "alternative" interrogation procedures are classified, this provision could prevent military commission defendants from revealing any information about their torture or mistreatment.

When the Truth Outs

The truth will out, it is said, but this is not certain. Because defendants subject to military commissions also face the death penalty, the Administration may be hoping that the truth will not out in time.


Joanne Mariner is a human rights attorney. Her previous columns on the detainee cases and the "war on terrorism" are available in FindLaw's archive.

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