The Fruits of Torture

In Chapter 4, which I'll begin posting next week, I look at how torture begat torture - how bad information extracted through abusive interrogations led to the apprehension of others, who were in turn tortured until they, too, provided bad information.

At the center of the story is Binyam Mohamed, an Ethiopian émigré living in the UK who was arrested in Pakistan in April 2002, taken into U.S. custody, flown to Morocco, where he was tortured for 18 months, then flown to a secret CIA prison in Afghanistan where he was again tortured, and finally delivered, in September 2004, to Guantanamo, where he remained until he was released last year. Binyam Mohamed, who today is a free man living in London, is one of five plaintiffs who are suing Jeppesen Dataplan Inc., a subsidiary of Boeing, for providing logistical support to the CIA's illegal extraordinary rendition flights.

One of the remarkable documents I keep referring to as I make my way through the chapter is the November 17, 2009 ruling of Federal District Judge Gladys Kessler in the habeas corpus petition of another Guantánamo detainee, Farhi Saeed Bin Mohammed. The government's case that Farhi Saeed Bin Mohammed was an enemy combatant hinged on information Binyam Mohamed had provided that they had spent time together at an al-Qaeda training camp in Afghanistan. That information was likely the fruit of torture, Judge Kessler found, and ordered the government “to take all necessary and appropriate diplomatic steps to facilitate [Farhi Saeed Bin Mohammed's] release forthwith.” (He becomes the 31 st detainee to prevail in a habeas corpus petition since the Supreme Court affirmed the right of Guantánamo prisoners to raise such claims in U.S. courts.)

In one particularly striking passage in her opinion, Judge Kessler rejects the government's assertion that because Binyam made the allegations about Farhi Saeed Bin Mohammed during relatively benign interrogations after arriving at Guantánamo, rather than during his earlier torture in Morocco and Afghanistan, the information should be admissible in the habeas corpus proceeding. Citing new studies on the neurological and psychological impact of abusive interrogations, she writes:

Torture and “enhanced interrogation techniques” employed by the government during the War on Terror have been shown to be “geared toward creating anxiety or fear in the detainee while at the same time removing any form of control from the person to create a state of total helplessness.” Metin Basoglu, M. D., PhD., et al., Torture vs Other Cruel, Inhuman, and Degrading Treatment: Is the Distinction Real or Apparent? 64 Archives of Gen. Psychiatry 277, 283 (2007). Indeed, rates of Post-Traumatic Stress Disorder ("PTSD") in torture survivors far exceed the rate among the general population. Physicians for Human Rights, Leave No Marks: Enhanced Interrogation Techniques and the Risk of Criminality, 43-44; 43 n.337 (Aug. 2007), available at http://wwww.physiciansforhumanrights.org/library/documents/report s/leave-no-marks.pdf (collecting journal articles that report rates for torture victims higher than 3.6% rate of PTSD among general population).

According to a new study about to be published in a peer-reviewed journal, "prolonged and extreme stress has a deleterious effect on frontal lobe function," Shane O'Mara, Torturing the Brain: On the Folk Psychology and Folk Neurobiology Motivating "Enhanced and Coercive Interrogation Techniques" Trends in Cognitive Sciences _ (forthcoming) (manuscript at 2), available at http://download.cell.com/trends/cognitive-sciences/pdf/PIIS1364661309001... (published Sept. 24, 2009).

A common consequence of coercive interrogation techniques is "confabulation," or the "pathological production of false memories." As the author explains, "[s]tress causes heightened excitability or arousal in the brain and body. Experiencing stress causes release of stress hormones (cortisol and catecholamines. [which] provoke and control the 'fight or flight' response that, if overly prolonged, can result in compromised cognitive neurobiological function (and even tissue loss) in [the prefrontal cortex and hippocampus]." Id. at 1. Because of these physiological reactions, the brain areas function improperly, and "both memory and executive functions (intention, planning[,] and regulation of behavio[]r) can be impaired." Id. The study specifically addresses the "folk psychology that is demonstrably incorrect" underlying adoption of enhanced interrogation techniques. Id. at 1.

The author concludes that "[i]t is likely to be difficult or perhaps impossible to determine during interrogation whether the information that a suspect reveals is true: information presented by the captor to elicit responses during interrogation might inadvertently become part of the [subject's] memory, especially because [subjects] are under extreme stress and are required to tell and retell the same events that might have happened over a period of years." Id. at 2.

In this case, even though the identity of the individual interrogators changed (from nameless Pakistanis, to Moroccans, to Americans, and to Special Agent [redacted], there is no question that throughout his ordeal Binyam Mohamed was being held at the behest of the United States. Captors changed the sites of his detention, and frequently changed his location within each detention facility. He was shuttled from country to country, and interrogated and beaten without having access to counsel until arriving at Guantánamo Bay, after being re-interrogated by Special Agent [redacted]. See JE 72 (declaration of Binyam Mohamed's attorney, Clive Stafford Smith, stating that he did not meet with client until May of 2005).

From Binyam Mohamed's perspective, there was no legitimate reason to think that transfer to Guanáanamo Bay foretold more humane treatment; it was, after all, the third time that he had been forced onto a plane and shuttled to a foreign country where he would be held under United States authority. Further, throughout his detention, a constant barrage of physical and psychological abuse was employed in order to manipulate him and program him into telling investigators what they wanted to hear. It is more than plausible that, in an effort to please Special Agent [redacted] (consistent with how captors taught him how to behave), he re-told such a story, adding details, such as Petitioner's presence at training, which he thought would be helpful and, above all, would bring an end to his nightmare.
 

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