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Today we post the fourth and final installment of Chapter 5, titled “Endgame,” which brings us up to date on the stories of the three main characters in this chapter, Mohammed Al-Qahtani, Mohamedou Ould Slahi, and Ibn al-Sheikh al-Libi.
As we saw in the very first chapter of this report, no sooner had the Bush administration embarked on a course of systematic violations of the Torture Convention than veteran intelligence officers and military interrogators began to ask what would happen to those who had been treated in a way that undermined any possibility of reintroducing them into the legal system for prosecution. In the heavily redacted section of CIA Inspector General John Helgerson's 2004 Special Review from which this new section takes its title, the only unredacted passage reads:
The number of detainees in CIA custody is relatively small by comparison with those in U.S. military custody. Nevertheless, the Agency, like the military, has an interest in the disposition of detainees and particular interest in those who, if not kept in isolation, would likely divulge information about the circumstances of their detention.
This was one of the most chilling passages I came across early in my journey into the torture documents, with its insinuation that the fate of some detainees might be determined, at least in part, by “an interest” in preventing detainees from telling the stories of their mistreatment. Seen in the light of what has happened to Qahtani, Slahi, and al-Libi, it's absolutely haunting.
One of the essential elements—perhaps the essential element—of an accountability process is that those who have been subjected to torture and other human rights violations have the opportunity to tell their stories publicly and have them officially corroborated. Here, though a mounting body of evidence and even official acknowledgements confirm that these three men were tortured, none has had the chance even to be seen by the citizens of the country responsible for their brutalization, let alone heard. And one of them, at least, will never have that chance.
Article 14 of the Convention Against Torture states:
Each State Party shall ensure in its legal system that the victim of an act of torture obtains redress and has an enforceable right to fair and adequate compensation including the means for as full rehabilitation as possible. In the event of the death of the victim as a result of an act of torture, his dependents shall be entitled to compensation.
Article 2 and Article 4 of the Convention, meanwhile, instruct,
No exceptional circumstances whatsoever, whether a state of war or a threat or war, internal political instability or any other public emergency, may be invoked as a justification of torture.
Each State Party shall ensure that all acts of torture are offences under its criminal law. The same shall apply to an attempt to commit torture and to an act by any person which constitutes complicity or participation in torture.
Torture is a criminal offense under U.S. civilian and military law, but not one person has been indicted in connection with the torture of Mohammed al-Qahtani and Mohamedou Ould Slahi. Nor is it clear how they might pursue the Convention-mandated restitution for their treatment. Last month a federal judge dismissed a lawsuit brought by Jose Padilla, whose ordeal we followed in Chapter 4, against Donald Rumsfeld, Jim Haynes, and other senior military officials for the abuse he endured at the U.S. naval brig in Charleston , South Carolina .
In his Order, Judge Richard Mark Gergel asserted that “at the time of Padilla's detention by the Department of Defense, there were few ‘bright lines' establishing controlling law on the rights of enemy combatants”; because Bush administration lawyers had produced memos deliberately contorting the definition of torture, “Padilla's rights at that time were unsettled.” Moreover, Gergel held,
The designation of Padilla as an enemy combatant and his detention incommunicado were made in light of the most profound and sensitive issues of national security, foreign affairs and military affairs. It is not for this Court, sitting comfortably in a federal courthouse nearly nine years after these events, to assess whether the policy was wise or the intelligence was accurate. The question is whether the Court should recognize a cause of action for money damages that by necessity entangles the Court in issues normally reserved for the Executive Branch, such as those issues related to national security and intelligence.
Two weeks after Gergel issued this opinion, protesters in Egypt stormed six buildings housing that country's State Security Investigations (SSI) bureau, whose officers carried out the torture of Ibn al-Sheikh al-Libi at the behest of the U.S. Alarmed by reports that the SSI was destroying its files, Egyptian citizens were determined to preserve, and publicize, the Mubarak government's massive record of torture and other human rights abuses—and they have begun to reconstruct the mounds of shredded documents they recovered. To our great shame, we may soon have a full accounting at least of the conspiracy to torture al-Libi, from a most unexpected source.