an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman marty.lederman at comcast.net
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Alice Ristroph alice.ristroph at shu.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
On April 15, Guantanamo detainee Majid Khan was reviewed by a Combatant Status Review Tribunal; the transcript was released yesterday by the censors. The government alleges that he is a high-value captive, who had been prepped by Khalid Sheikh Mohammed for devastating attacks on the U.S. He denies it.
Majid Khan has also been [REDACTED], or so he alleges.
Exhibit D-b. MAJID KHAN written Statement of Torture for Combatant Status Review Tribunal taken March 2007 by PR 3. [REDACTED]. For me, things got better [REDACTED], and [REDACTED] I am brought to Guantanamo Bay, Cuba. I swear to God this place in some sense worst than CIA jails. I am being mentally torture here [REDACTED]. [REDACTED]. They are getten – getting even with me here under DoD, and making me suffer by mentally torturing me. They know my weaknesses, what drive me crazy and what doesn’t. [REDACTED].
Last fall, Majid Khan was at the center of an amazing piece of litigation: his lawyers filed a motion demanding that they be allowed to see him, and the government opposed it, claiming that the meeting might lead to the disclosure of classified methods of acquiring information. In other words, Majid Khan might tell his lawyers what his captors did to him. Marty posted about this Kafkaesque reply here.
According to the New York Times, Khan’s family says that Khan told them that "Americans had used torture tactics on Majid that included binding his hands and feet in a chair and tightening the bonds every hour."
The Times story continues:
Asked about those accusations, Paul Gimigliano, a C.I.A. spokesman, said that "the United States does not conduct or condone torture," and that "the agency’s terrorist interrogation program has been implemented lawfully."
What the mental torture Majid Khan alleges is, of course, [REDACTED]. But he mentions isolation, and states that out of desperation he cut or chewed through an artery in his arm twice.
In response, a Pentagon spokesman, Cmdr. Jeffrey D. Gordon, said, "Majid Khan has been treated humanely while in Department of Defense custody."
I’d like to point out that both the CIA and Pentagon replies were non-responsive. Paul Gimigliano did not say, "no, we never bound his hands and feet in a chair and tightened the bonds every hour." He said only that the U.S. doesn’t torture, and the agency follows the law. As usual, this ducks the question of whether under the U.S. and agency interpretations, this tactic is not considered torture or illegal.
Likewise, Cmdr. Gordon’s response to Khan’s description of what drove him nearly to suicide is simply to say that he was treated "humanely." But "humanely" is, once again, not a denial. "Humane" is pretty minimal, by the government’s definitions. Remember Alberto Gonzales’s answer to Ted Kennedy’s questions at his confirmation hearings: "I would define humane treatment as a basic level of decent treatment that includes such things as food, shelter, clothing, and medical care." (Written response of Alberto R. Gonzales to questions posed by Senator Edward M. Kennedy, question #15, January 2005.) You can give someone food, shelter, clothing, and medical care while isolating him, playing on his weaknesses, and doing anything in your power to drive him mad.
Are Majid Khan’s allegations true or false? Did you bind him in a chair and tighten the bonds or didn’t you? Did you isolate him and play on his weaknesses to drive him crazy, or didn’t you? What did you do to him?
Some chucklehead at RedState was cackling over how trivial the "mental torture" examples in the transcript were. I pointed out that after everything shocking is redacted, only the silly is left -- wasted words of course.
While Khan's complaints about flat basketballs, substandard deodorant and shaving do not preclude the fact that he probably underwent classified coercive interrogation techniques, it doesn't make his father's claims of "torture" which go beyond these techniques especially credible.
Basketball at Gitmo is reserved as a reward for cooperative detainees which are also allowed to fraternize with other detainees. Thus, the story about isolation at Gitmo also does not ring true.
The evidence includes the testimony and physical evidence obtained from two men convicted in the US of providing material support to al Qaeda. At minimum, the evidence indicates that Khan also provided material assistance to al Qaeda. At most, he was training to become a terrorist himself in Pakistan in coordination with Khalid Sheik Muhammad.
It is interesting to note that Khalid Sheik Muhammad was captured in Pakistan sometime before March 1, 2003 and Khan was captured shortly thereafter on March 5. The CIA supposedly intensively interrogated KSM before his capture was publicized and used this intelligence to roll up other al Qaeda cells around Pakistan. It is more than possible that Khan was one of these captures. Any intel gained from KSM would have been classified and not included in Khan's unclassified evidence summary.
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