Chapter Summary:
The Scheme
This chapter connects the interrogations of Abu Zubaydah, Jose Padilla, and Binyam Mohamed, three people who were allegedly involved in a ‘dirty bomb' plot that grew more fantastical the more the men were tortured. It traces how torture begat torture, first because bad information extracted through abusive interrogations led to more torture and more bad information, and finally because interrogations were being conducted not only, as the Bush administration has insisted, to produce new intelligence to thwart impending attacks but also to force confessions and extract information that it would use to justify its detention and torture of others.
At the center of this Chapter's “Ponzi scheme of torture” is Binyam Mohamed, a UK-based Ethiopian émigré who was arrested in Pakistan in April 2002, abused, flown to Morocco and 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 Guantánamo. Once called Jose Padilla's accomplice in several diabolical terror plots and identified, with Abu Zubaydah, as the source of information about those planned attacks, Mohamed was released last year and is now living as a free man in London.
Part 1 of this Chapter is called “The Scheme;” Part 2, which will be posted next week, is entitled, “The Story Unravels.”
Part 1: The Scheme
On November 19, 2009, U.S. Federal District Judge Gladys Kessler issued an opinion on the habeas corpus petition of a Guantánamo detainee named Farhi Saeed Bin Mohammed, ordering the government to “take all necessary and appropriate diplomatic steps to facilitate Petitioner's release forthwith.”1
Farhi Saeed Bin Mohammed is a 48 year-old Algerian who had lived as an illegal immigrant in Europe since 1989, first in France, then Italy, and finally in the United Kingdom, which he entered on a false passport on January 7, 2001, hoping, he said, to find a better job. In June, he flew to Pakistan, and he went from Pakistan to Afghanistan in July, in pursuit, he has insisted, of a Swedish woman who had agreed to marry him and help regularize his immigration status. After the September 11, 2001 terrorist attacks and the U.S. invasion of Afghanistan in October, bin Mohammed crossed back into Pakistan, where he was picked up by Pakistani police. He was interviewed by Americans, turned over to American custody, and flown to Guantanamo in February 2002.
Since the Supreme Court affirmed in 2008 that Guantanamo detainees have the constitutional right to file habeas corpus petitions in federal courts, under the prevailing legal standard the government has been required to show, by a “preponderance of evidence,” that their detention is justified; to be justified, the government must show that the detainee was a member or “substantial supporter” of al-Qaeda or the Taliban. In Farhi Saeed Bin Mohammed's case, as in many others, the government relied on a “mosaic” of evidence to establish bin Mohammed's status as an enemy combatant, in which the information supporting the allegation, taken as a whole, “comes together to support a conclusion that shows the Petitioner to be justifiably detained.”2. That evidence can include hearsay and other information not admissible in criminal proceedings; in bin Mohammed's case, it ranged from “second-level hearsay to allegations…obtained by torture to the fact that no statement purports to be a verbatim account of what was said.”3
The evidence that Farhi Saeed Bin Mohammed belonged to al-Qaeda or the Taliban consisted of the fact that he had used aliases and false passports; that he attended mosques in London with extremist affiliations; that he had traveled to Pakistan, and from there to Afghanistan; that he stayed in a guesthouse in Afghanistan that facilitated the transfer of recruits to training camps in the region; and that he went from there to train at an al-Qaeda camp before fleeing to Pakistan after the September 11, 2001 terrorist attacks. Judge Kessler ruled that the government's evidence supported all of the allegations up through the alleged stay at the guesthouse. The court said,
Mohammed's stated reason for going to Afghanistan is entirely implausible. Further, he provides inconsistent accounts of his stay at the Jalalabad guesthouse. These findings undermine his attempts to defeat credible evidence put forth by the Government that Mohammed lived among al-Qaida supporters while there. The Government has established that it is more likely than not that he traveled there as part of a recruiting pipeline. Therefore, the Court credits the Government's evidence regarding Petitioner's earlier conduct.4
But staying at a guest house with links to al Qaeda did not prove that bin Mohammed had joined al-Qaeda or the Taliban. That assertion depended on the testimony of another detainee:
The Government argues that Petitioner left the Jalalabad guesthouse to train at an al-Qaida camp, and then returned to Jalalabad before fleeing the country for Pakistan after September 11….Its chief support for this argument consists of the statement of Binyam Mohamed, who told interrogators at Guantanamo Bay in October and November of 2004 that Petitioner attended a training camp with him.5
There was, however, a problem with this allegation:
Petitioner contends that Binyam Mohamed's statements—the only other evidence placing Petitioner in a training camp—cannot be relied upon, because he suffered intense and sustained physical and psychological abuse while in American custody from 2002 to 2004. Petitioner argues that while Binyam Mohamed was detained at locations in Pakistan, Morocco, and Afghanistan, he was tortured and forced to admit a host of allegations, most of which he has since denied. When he arrived at Guantanamo Bay, Binyam Mohamed implicated Petitioner in training activities. However, after being released from Guantanamo Bay, he signed a sworn declaration claiming that he never met Petitioner until they were both detained at Guantanamo Bay, thereby disavowing the statements he made at Guantanamo Bay about training with Petitioner. In that sworn declaration Binyam Mohamed stated that he was forced to make untrue statements about many detainees, including Petitioner. Binyam Mohamed stated he made these statements because of “torture or coercion,” that he was “fed a large amount of information” while in detention, and that he resorted to making up some stories.6
“The Government does not challenge Petitioner's evidence of Binyam Mohamed's abuse,” Kessler noted. Rather, it argued that the statements made to an FBI interrogator in Guantánamo were not coerced—that, in fact, he had been “cordial and cooperative.”7 The report of his first interview, on October 29, 2004, “begins by describing various courtesies extended to the detainee, such as using a traditional Muslim greeting and offering him coffee…There was a brief exchange about Binyam Mohamed's health, and ‘[s]ubject detainee commented that he was doing well.' The meeting lasted for over two hours, was conducted in English, and was [redacted]”
After this prologue, the report indicates that Binyam Mohamed was shown a total of 27 photographs of various individuals, and identified 12 of them….He identified Petitioner by his kunya, “Abdullah,” claiming that Petitioner “trained at the Algerian Camp with [him] and … eventually traveled to Kandahar with to [sic] him….Special Agent [redacted] notes at the end of his report that the subject was “very cooperative and polite,” and that he answered questions without betraying “signs of deception or resistance techniques.” Further, Binyam Mohamed “at many times” spoke freely without being questioned or prompted, and the information that he provided was deemed to be consistent with earlier information that he provided, though it does not state where Binyam Mohamed provided the earlier information.8
Binyam Mohamed repeated the assertions about Farhi Saeed Bin Mohammed when he was interrogated again the next month—again, government attorneys insisted, without coercion. Whether or not he had been mistreated before he arrived at Guantánamo, the government argued, enough time had passed since he was abused and the circumstances of the Guantanámo interviews were sufficiently benign that these allegations were credible and admissible.
Judge Kessler disagreed. Courts have never held that after a certain amount of time the “taint of earlier mistreatment” dissipates, she ruled. “This Court concludes that the temporal break in this case was not long enough—given the length of the abuse, its severity, and the fact that it was targeted to overwhelm the Petitioner mentally as well as physically—to ‘insulate the statement from the effect of all that went before.'”9
First, Binyam Mohamed's lengthy and brutal experience in detention weighs heavily with the Court. For example, this is not a case where a person was repeatedly questioned by a police officer, in his own country, by his own fellow-citizens, at a police station, over several days without sleep and with only minimal amounts of food and water. See Ashcraft v. State of Tenn, 322 U.S. 143, 153-154 (1944); Reck v. Pate , 367 U.S. 433, 440-441 (1961) (murder suspect held incommunicado for eight days, questioned extensively for four, and interrogated while sick). While neither the Ashcroft nor Reck scenarios are to be approved, they can hardly compare with the facts alleged here.
The difference, of course, is that Binyam Mohamed's trauma lasted for two long years. During that time, he was physically and psychologically tortured. His genitals were mutilated. He was deprived of sleep and food. He was summarily transported from one foreign prison to another. Captors held him in stress positions for days at a time. He was forced to listen to piercingly loud music and the screams of other prisoners while locked in a pitch-black cell. All the while, he was forced to inculpate himself and others in various plots to imperil Americans. The Government does not dispute this evidence.10
She continues:
…[E]ven though the identity of 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 Guantanamo Bay, after being 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 Guantanamo 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.11
***
When Abu Zubaydah was captured on March 28, 2002, seven others were also taken into custody in the raid on the safe house in Faisalbad, Pakistan. Six of these men were sent directly to Guantánamo. The seventh, a 19 year-old Syrian youth named Noor al-Deen, who was also shot during the raid, was not. As the Washington Post has reported, “Perhaps because of his youth and agitated state, he readily answered U.S. questions, officials said, and the questioning went on for months, first in Pakistan and later in a detention facility in Morocco.” CIA agent John Kiriakou, who participated in the raid, told the reporter, “He was frightened—mostly over what we were going to do to him. He had come to the conclusion that his life was over.”12
What al-Deen told his captors, and what he evidently repeated after being subjected to extraordinary rendition and imprisoned in Morocco, was that Abu Zubaydah, whom he reportedly idolized, was not a senior al-Qaeda figure, but rather someone who arranged travel and logistics for recruits looking for training in a variety of camps, some affiliated with al-Qaeda and some, like the Khalden camp with which Abu Zubaydah had been associated in the 1990s, frequently at odds with al-Qaeda and geared to training young men volunteering to fight in Bosnia and Chechnya. As such, though he interacted frequently with al-Qaeda's leaders, Abu Zubaydah was neither a planner nor a party to plans for the September 11, 2001 attacks or other major al-Qaeda operations13
Despite al-Deen's warnings, on April 9, 2002, a little over a week after Abu Zubaydah had been strapped to a gurney and flown to the CIA black site in Thailand, George Bush told an audience at a Connecticut Republican Committee fundraising luncheon, “The other day, we hauled in a guy named Abu Zubaydah. He's one of the top operatives plotting death and destruction on the United States. He's not plotting and planning anymore. He's where he belongs.”14
The next day, Binyam Mohamed was arrested with a false passport at Karachi airport as he tried to board a flight bound for London, where he had lived as a legal immigrant for the past seven years.
Mohamed, who was 23 at the time, was born in Ethiopia but left the country in 1992 when his father, an executive of the state-owned airline, looked for refuge overseas following the collapse of the regime of Haile Mengistu. They lived in the Washington DC area for two years, then tried the U.K. , and then, at 16, Binyam found himself on his own in London when his father decided to return to the U.S. for work. He attended high school and junior college, but by the time he was 20 he had an admitted drug problem. He got a job as a janitor in a West London mosque when he was 22, converted to Islam, and a few months later flew to Islamabad with the intention, he has insisted, of kicking his drug habit for good.
He has admitted spending time at a guest house in Jalalabad, where he met Chechen rebels, and then taking a 45-day “boot camp” course that included small arms training at a camp in Afghanistan, hoping, he says, to support the cause in Chechnya. He fled to Pakistan in the stream of refugees following the U.S. invasion of Afghanistan, determined to return to London. He booked a flight on April 3, 2002 but was turned away because his passport looked suspicious. He tried again a week later, and this time was apprehended. He spent 10 days in a Pakistani prison without being interrogated. Then, on April 20, 2002, he was moved to a Pakistani intelligence service interrogation center, where he was greeted by FBI agents. “He asked for an attorney and refused to speak with them, since he said the Americans had nothing to do with him,” his attorney recorded in notes from his first interview with his client in Guantánamo in May of 2005. Mohamed told him, “I refused to talk in Karachi until they gave me a lawyer. I said it was my right to have a lawyer. The FBI said, The law has been changed. There are no lawyers. You can cooperate with us—the easy way, or the hard way.”15
His attorney's notes continue:
There was 4 small cells, each 2m x 2.5m. While there, he was hung up for a week by a leather strap around the wrists. He could only just stand. He was only allowed down to go to the toilet twice a day. He was given food, normally rice and beans, once every second day. “It was the first thing that happened to me. I just thought it would end. There were threats of beating, though.
Mohamed described four FBI interrogators: “Chuck,” a white male around 40; “Terry,” a white male around 50; an unnamed light-skinned black male, 35, who spoke Swahili, and “Jenny,” a fortyish white female.
The FBI seemed to think that because he had lived in the US for a short while he had plans to do something there. “But I'm going to the UK,” Binyam would say.
The FBI also seemed to think that he was some kind of top al-Qaida person.
“How? It's been less than six months since I converted to Islam! Before that, I was into using drugs,” Binyam would say. Indeed, he had traveled in part to help try to kick the habit.
On the first day of interrogations, ‘Chuck' said, “If you don't talk to me, you're going to Jordan. We can't do what we want here, the Pakistanis can't do exactly what we want them to. The Arabs will deal with you.”
It was at this point that Binyam told them his name and address. Chuck checked with the British and this was true.
‘Terry' asked the same questions. “I'm going to send you to Jordan or Israel,” he said. Then he threatened to send him to the British. “The SAS know how to deal with people like you.”
It was after Terry's visit that they started the torture.
The Pakistanis could not speak English, and Binyam could not understand them. They would just come in and beat him with a leather strap. It had a handle, and then leather with a joint making the rounded end part whip back on him.
One Pakistani pointed some kind of gun at Binyam's chest. it was a semi-automatic, and he loaded it in front of Binyam. “He pressed it against my chest. He just stood there. I knew I was going to die. He stood like that for five minutes. I looked into his eyes, and I saw my own fear reflected there. I had time to think about it. Maybe he will pull the trigger and I will not die, but be paralyzed. There was enough time to think the possibilities through.”
‘Chuck' came in after that. He said nothing. He stared at me and left.”16
This interrogation lasted for a week. It played out at exactly the same time that the FBI and CIA interrogation teams were engaged in the tug-of-war over the interrogation of Abu Zubaydah in the CIA's black site in Thailand.17 Mitchell's CIA interrogators had interrupted the apparently fruitful questioning of FBI agents Ali Soufan and his partner and instituted nudity and sleep deprivation, and Abu Zubaydah had stopped talking. As Soufan told the Senate Judiciary Committee in his May 13, 2009 testimony, “After a few days of getting no information, and after repeated inquiries from DC asking why all of a sudden no information was being transmitted (when before there had been a steady stream), we again were given control of the interrogation .”18
“We then returned to using the Informed Interrogation Approach.” Soufan told the Senate. “Within a few hours, Abu Zubaydah again started talking and gave us important actionable intelligence. This included the details of Jose Padilla, the so-called ‘dirty bomber.'”19
In The Dark Side, Jane Mayer reported, “Abu Zubaydah disclosed Padilla's role accidentally, apparently. While making small talk, he described an Al Qaeda associate he said had just visited the U.S. embassy in Pakistan. That scrap was enough for authorities to find and arrest Padilla.”20 Despite the extraordinary secrecy surrounding the CIA's RDI program, on April 23, 2002, BBC news reported “The al-Qaeda terror network knows how to build a ‘dirty bomb,' a senior Osama Bin Laden aide is reported to have told US interrogators. Abu Zubaydah—Bin Laden's chief of operations until his capture in Pakistan last month—said the organization also knew how to smuggle it into the United States, unnamed US officials have been quoted as saying.” The report went on
“But the officials said there were highly skeptical of the credibility of Abu Zubaydah's claim, who also recently said al-Qaeda was targeting banks in the United States. That report was the basis of an FBI alert last week.
“It could be he's not being truthful. It could be that he's boasting,” a US official told the Associated Press news agency.”21
Nevertheless, the dirty bomb story immediately began to shape and dominate interrogations. “Every interrogator would ask questions about it,” a former CIA officer said in an interview earlier this year.22 That week in Pakistan, Binyam Mohamed's FBI interrogators asked him if he had been trained in radiological weapons. Mohamed told ‘Chuck' that when he was at the safe house in Afghanistan , he had visited a website with instructions on how to build an atomic bomb. The instructions, in fact, were from a 1979 satirical article by Barbara Ehrenreich, Peter Biskind, and Michio Kaku titled “How to Make Your Own H-Bomb”; the piece included directions such as
First transform the gas into a liquid by subjecting it to pressure. You can use a bicycle pump for this. Then make a simple home centrifuge. Fill a standard-size bucket one-quarter full of liquid uranium hexafluoride. Attach a six-foot rope to the bucket handle. Now swing the rope (and attached bucket) around your head as fast as possible. Keep this up for about 45 minutes. Slow down gradually, and very gently put the bucket on the floor. The U-235, which is lighter, will have risen to the top, where it can be skimmed off like cream.23
“It was obviously a joke: it never crossed my mind that anyone would take it seriously,” Mohamed said in an interview earlier this year.
But that's when [Chuck] started getting all excited. Towards the end of April he began telling me about this A-bomb I was supposed to be building, and he started on about Osama Bin Laden and his top lieutenants, showing me pictures and making out I must have known them.24
Matthew Alexander 02/16/10: At this point in the interrogation, there has been little done by the interrogators to build rapport and establish a relationship of trust, necessary to convince a detainee to cooperate. There’s been little analysis of what makes Mohamed tick. If he was planning to assist Al Qaida, why? Why did he start using drugs in the UK? Mohamed was a perfect interrogation subject, a searching soul who the interrogators could have approached in a spirit of cooperation, not dominance.
Days later, on May 8, 2002, Jose Padilla was quietly arrested at Chicago O'Hare Airport. Five minutes before his flight from Zurich landed, then-U.S. District Court Judge Michael Mukasey signed a material witness warrant authorizing Padilla's arrest. That warrant was issued on the strength of a Material Witness Warrant Affidavit signed by FBI agent Joe Ennis. According to the government's description of that affidavit,
On or about April 23, 2002, Abu Zubaydah was shown two photographs, one that was taken from the U.S. passport of Jose Padilla, which had been recovered from Padilla's person. Abu Zubaydah identified the individual in that photograph as the person he knew as “Abdullah Al Muhajir.”[The name Jose Padilla adopted when he converted to Islam] The other phtotgraph was taken from a fake passport recovered from Binyam Muhammed, which Abu Zubaydah identified as the individual in the company of the “South American.”
Abu Zubaydah further stated that Padilla and Binyam Muhammad had asked Abu Zubaydah for his opinion on their plan to build an explosive device that would combine uranium or other nuclear or radioactive material with an “ordinary” explosive device (hereinafter called a “dirty bomb”) and then detonating the dirty bomb in the United States. Abu Zubaydah told Padilla and Binyam Muhammad that he (Abu Zubaydah) did not think the plan would work, but Binyam Muhammad thought it would work. Abu Zubaydah also indicated to the government that he did not think Padilla and Binyam Muhammad were members of Al Qaeda. Abu Zubaydah further stated that he believed the dirty bomb plan was still in the idea phase, as Padilla and Binyam Muhammad did not have any radioactive material yet, but they mentioned stealing radioactive material from an unnamed university. Abu Zubaydah believed that Padilla and Binyam Muhammad had consulted an unidentified Internet website to learn how to assemble a dirty bomb….
The affidavit then turned to information provided from an interview of Binyam Muhammad in early April, 2002. The affiant explained that Binyam Muhammad had been detained in Pakistan by the Pakistani authorities while trying to board a flight, on suspicions that his non-U.S. passport was fraudulent (which it was). The affiant explained that he had read reports prepared based on the interview of Binyam Muhammad, and had spoken with other law enforcement officers regarding this interview. Binyam Muhammad stated that he went to Pakistan at the behest of Abu Zubaydah to receive training in “wiring explosives.” Binyam Muhammad further stated that, while in Pakistan, he and Padilla researched the construction of a uranium-enhanced device, which would be detonated in the United States. Binyam Muhammad and Padilla discussed this plan with Abu Zubaydah, who referred them to other members of Al Qaeda for further discussion of the operation.25
The affidavit makes no mention of the conditions under which this “interview” was conducted; nor, apparently, did an April 26, 2002 communication from the U.S. to the British Security Services, the “SyS,” and the U.K. Secret Intelligence Service, the “SIS.” The U.S. had alerted the British government on April 22 that it had detained someone using a fake British passport; four days, later, the U.S. reported that the person had identified himself as Binyam Mohamed and that Mohamed had provided information that he was “planning to construct and detonate a ‘dirty bomb.'”26 Concluding from this that “BM was a person whose activities would be of importance to the SyS in protecting the vital interests of the national security of the United Kingdom,” the British government insisted on sending its own agents to interview Mohamed. Subsequent telegrams and communications from the U.S. were evidently more candid about the circumstances of his detention. Those reports, in the judgment of Britain's High Court of Justice, corroborated Mohamed's account of his interrogation in Pakistan sufficiently to “give rise to an arguable case of cruel, inhuman, or degrading treatment or torture.”
By May, 2002, the U.S. and the Blair government had already had several skirmishes about the treatment of detainees in U.S. custody. British agents had been deployed to Afghanistan in late September, 2001 to provide covert support for the impending U.S. military action, and in December the governments agreed that SyS agents could interview some detainees. The first agents arrived at Bagram Air Base on January 9, 2002, and the following day an SIS agent participated in an interrogation. Though he reported afterwards that the interview itself was conducted in accordance with the Geneva conventions, he expressed concern about the U.S. military's treatment of the detainee prior to the session. London wrote back, copying all SIS and SyS officers in Afghanistan:
With regard to the status of the prisoners, under the various Geneva Conventions and protocols, all prisoners, however they are described, are entitled to the same levels of protections. You have commented on their treatment. It appears from your description that they may not be being treated in accordance with the appropriate standards….
It is important that you do not engage in any activity yourself that involves inhumane or degrading treatment of prisoners. As a representative of a UK public authority, you are obliged to act in accordance with the Human Rights Act 2000 which prohibits torture, or inhumane or degrading treatment. Also as a Crown Servant, you are bound by Section 31 of the Criminal Justice Act 1948, which makes acts carried out overseas in the course of your official duties subject to UK criminal law. In other words, your actions incur criminal liability in the same way as if you were carrying out those acts in the UK.”27
“The torture stopped when the British came,” Mohamed told his lawyer when they met in Guantánamo in 2005. He described two British secret service agents, one named John and the other unnamed:
They gave me a cup of tea with a lot of sugar in it. I initially only took one. ‘No, you need a lot more. Where you're going you need a lot of sugar.' I didn't know exactly what he meant by this, but I figured he meant some poor country in Arabia.” One of them did tell me that I was going to get tortured by the Arabs.
‘John' questioned Binyam. Binyam said he wanted a lawyer.
“How can I help you?” he asked.
“I don't know, said Binyam.
“I'll see what we can do with the Americans,” he said, promising to tell Binyam what would happen to him. He did not see him again.28
This meeting took place at the Pakistani secret services interrogation facility in Karachi on May 17, 2002. One of the two interrogators sent a cable to his superiors immediately afterwards describing the scene this way:
I told [BM] that he had an opportunity to help us and help himself. The US authorities will be deciding what to do with him and this would depend to a very large degree on his degree of cooperation. I said that if he could persuade me he was telling the complete truth I would seek to use my influence to help him. He asked how, and said he didn't expect ever to get out of the situation he was in. I said it must be obvious to him that he would get more lenient treatment if he cooperated. I said that I could not and would not negotiate up front, but if he persuaded me he was cooperating fully then (and only then) I would explore what could be done for him with my US colleagues. It was, however, clear that, while he appeared happy to answer any questions, he was holding back a great deal of information on who and what he knew in the UK and in Afghanistan .29
The agent specifically noted that during that interview, Mohamed dismissed the “dirty bomb” allegation as “the FBI perception.” “The real story was that he had seen a file on a computer in Lahore and decided it was a joke—part of the instructions included adding bleach to uranium 238 in a bucket and rotating it around one's head for 45 minutes,” the agent recorded30
Nevertheless, despite the fact Mohamed had openly discussed his affiliations in London and his time at a training camp in Afghanistan , the agent concluded he was withholding information. And despite the fact that the agent had seen reports from US intelligence agencies describing the treatment Mohamed had endured in Pakistan prior to this interview, treatment that included prolonged strappado suspension, sleep deprivation, and mock execution, the agent concluded, “I suspect that he will only begin to provide information of genuine value if he comes to believe that it is genuinely in his interests to do so. I don't think he has yet reached this point.”31
***
On June 10, 2002, Attorney General John Ashcroft interrupted a series of meetings he was attending in Moscow to announce via satellite “a significant step forward in the war on terrorism.” “We have captured a known terrorist who was exploring a plan to build and explode a radiological dispersion device, or ‘dirty bomb,' in the United States,” Ashcroft said gravely, citing “multiple independent and corroborating sources” for the intelligence behind the arrest. Insisting that the suspect's apprehension a month before at O'Hare Airport had “disrupted an unfolding terrorist plot to attack the United States,” he broke the news that the administration was taking the historically unprecedented action of denying a U.S. citizen apprehended in the United States access to American courts.
Yesterday, after consultation with the acting secretary of defense and other senior officials, both the acting secretary of defense and I recommended that the president of the United States, in his capacity as commander in chief, determine that Abdullah al Muhajir, born Jose Padilla, is an enemy combatant who poses a serious and continued threat to the American people and our national security. After the determination, Abdullah al Muhajir was transferred from the custody of the Justice Department to the custody of the Defense Department .32
At a Justice Department press conference in Washington later that day, Deputy Secretary of Defense Paul Wolfowitz announced that “as of today” Padilla was being held at the Naval Consolidated Brig in Charleston, South Carolina, and he reiterated that Padilla had “met with senior al Qaeda members to discuss plans for exploding a radioactive device” and had “researched nuclear weapons.” But the administration was already backpedaling on Ashcroft's assertion that Padilla's arrest had thwarted an attack in progress. Pressed by reporters on whether Padilla possessed the materials for a dirty bomb, FBI Director Robert Mueller said the plot had been “in the discussion stage,” adding, “and it had not gone, as far as we know, much past the discussion stage, but there were substantial discussions undertaken.”33
The next day, Wolfowitz went on national television again, this time to say "I don't think there was actually a plot beyond some fairly loose talk and his coming in here obviously to plan further deeds.”34 At the same time, the administration was leaking to Fox News that “the American accused of plotting with al Qaeda terrorists to detonate a “dirty bomb” to spread radioactive material, possibly targeting Washington ,” had an accomplice. “Law enforcement sources told Fox News another man named Benjamin Ahmed Mohammed was implicated in the plot and was taken into custody in Pakistan ‘recently,' perhaps late last month,” Fox reported. “One official said he would continue to be detained in Pakistan and there are currently no plans to bring him to the United States.”35 At a press briefing before a meeting with Congressional leaders at the White House, a reporter asked President Bush if “107 radiation sources” the Nuclear Regulatory Commission had reported missing might be in al Qaeda's hands, and the President answered, “We will run down every lead, every hint. This guy Padilla's a bad guy, and he is where he needs to be, detained.”36
Press descriptions of Padilla stressed his criminal past; he was a former Chicago gang member who had spent several years in juvenile detention for his involvement in a robbery that ended in murder, and who had been jailed again as an adult in Florida for pulling a gun during a road rage incident. Ashcroft had suggested Padilla's path led straight from prison to Afghanistan; few follow-up reports mentioned that 10 years had passed since he had been released from jail, during which he got married, worked alongside his wife at a Taco Bell, and converted with her to Islam, a process that had begun behind bars when he pledged to turn his life around and began reading the bible. Like Binyam Mohamed, Padilla looked to Islam for a sense of structure and stability. When his marriage faltered in 1998, Padilla went to Cairo to study Arabic and teach English, married again, and had two sons. He went to Saudi Arabia for the hajj in early 2000, and later to Afghanistan, hoping, he has said, that he could join the resistance in Chechnya.
Until his transfer to the brig in South Carolina, Padilla had been held on a high security floor of the Metropolitan Correctional Facility in New York, where he had been delivered a week after he was taken into custody at O'Hare on the material witness warrant. It was by all accounts an undramatic arrest:
Agents Fincher and Donnachie, along with Chicago FBI agents Robert Holley and Todd Schmitt, participated in an interview of Padilla in a conference room, which began at approximately 3:15 p.m. and ended sometime between 7:05 and 7:35 p.m. when Padilla declined to speak further to agents without an attorney….
Near the end of the interview, but prior to actually placing Padilla under arrest, Agent Fincher told Padilla that he would like Padilla to work with him and help him more fully understand the issues they had discussed. If Padilla were to volunteer, Agent Fincher explained, the FBI would arrange for a hotel that evening and they would all travel to New York the next day so that Padilla could then testify in front of a grand jury in New York. Otherwise, Agent Fincher indicated that he would have to serve Padilla with a grand jury subpoena, which he showed to Padilla, to compel his testimony before the grand jury. Padilla asked procedural questions about the grand jury subpoena process, which Agent Fincher answered. After considering the information, Padilla stated that he was not going to volunteer to go to New York and that if Agent Fincher wanted him to go, he would have to arrest Padilla. The same thing happened again: Agent Fincher informed Padilla that he did have a Material Witness Warrant that he could use to arrest Padilla, but that he would rather have Padilla volunteer the information, and that he did not want to arrest Padilla. Padilla responded that he was not going to volunteer and that Agent Fincher would have to arrest him. Following this exchange, Padilla was arrested by Agent Fincher and read his Miranda rights pursuant to a Customs Advice of Rights Form.37
Padilla arrived at MCC on May 14, 2002. The following day he met Donna Newman, his court appointed attorney, when he was arraigned before Judge Mukasey at the federal courthouse in New York. Over the next several weeks the two met repeatedly; they were permitted to review the Ennis affidavit on which the material witness warrant was based, and Newman filed a motion arguing that material witnesses in grand jury proceedings cannot legally be held in detention. Judge Mukasey was due to rule on that motion on June 11. On Sunday, June 9, 2002, President Bush signed a military order designating Padilla as an “enemy combatant” and ordering the Justice Department to transfer him into the custody of the Secretary of Defense, and Judge Mukasey granted the government's application to vacate the material witness warrant. Newman was not informed her client had been seized by the military until shortly before Ashcroft's Moscow announcement the following day. She would not see Padilla again for almost two years.
Meanwhile, in Pakistan the British government was growing uneasy about its lack of access to Binyam Mohamed. SyS agents wanted to meet with him again after the May 17 interview, but the US had hinted he would soon be transferred to Afghanistan. On June 11, the same day President Bush was declaring Jose Padilla “a bad guy,” SyS asked where he was and requested to reinterview him, and the U.S. responded that his transfer was imminent and asked that the British wait to interview Mohamed when he was in Afghanistan. A month later, an SyS telegram expresses frustration that it has received no further information on Mohamed's whereabouts and requests urgent information about his location. On July 15, the U.S. again told the SyS he would soon be sent to Afghanistan, where they would be able to see him. Another request by SyS for an update on July 31 went unanswered.38 Finally, “[o]n August 12, 2002, the SyS sought information from the SIS. They asked if on their routine visits to Bagram the SIS could check whether three individuals, including BM were at Bagram; the telegram stated “*** appear to have no information on his current whereabouts exclam.”39
Around this time, Mohamed's brother and sister, both U.S. residents, received visits from FBI agents; when they asked where their brother was, the agents suggested he was in the custody of the Pakistani government. For the next several months, the siblings repeatedly sought further information from both the FBI and the Pakistani consulate in New York.40
By then, Binyam Mohamed was not in Pakistan. On Friday July 19, 2002 Mohamed was flown on a commercial Pakistani International Airlines flight from Karachi to Islamabad, accompanied by two Pakistani officials but unrestrained. When the flight landed he was handcuffed and driven, first by bus then by pickup truck, to a detention facility where he was held until around 10 p.m. on Sunday night.41 Then, as recorded in his attorney's notes,
On July 21 st , 2002, Binyam was taken to a military airport in Islamabad. There were two others with him. He was blindfolded, but it was very quiet. He was held there for about two hours.
Once there, he was turned over to the Americans. The U.S. soldiers were dressed in black, with masks, wearing what looked like Timberland boots. They stripped him naked, took photos, put fingers up his anus, and dressed him in a tracksuit. He was shackled, with earphones, and blindfolded.
He was put into a U.S. plane—he cannot say the size, but is sure it was some kind of official or military plane, rather than anything civilian, since it was so quiet on board before take off that there were not many others on it.
He was tied to the seat for the roughly 8 to 10 hour flight.42
Though the routine followed exactly the protocol described in the CIA's December 30, 2004 “Background Paper on CIA's Combined Use of Interrogation Techniques,” Mohamed was not bound for a secret CIA prison. And despite the fact that he had been identified publicly in the U.S. as the accomplice of Jose Padilla, who was now being held as an “enemy combatant,” he was not headed either to Bagram or Guantánamo. Instead,
He was flown to an airport in Morocco where he arrived on July 22 nd . While he was blindfolded, he is sure there were two other prisoners on the flight.
He believes it may have been near Rabat.
Binyam believes that there was a U.S. military base near it.43
Flight records obtained in a 2006 investigation by Dick Marty, the Swiss Rapporteur on Secret Detentions for the Parliamentary Assembly of the Council of Europe, confirm that on July 21, 2002 a CIA-operated Gulfstream V jet with the registration number N379P took off from Islamabad and flew to Rabat, Morocco.44
When the flight landed, Mohamed was put in a van and driven for 45 minutes to a Moroccan interrogation facility, where he says the purpose of his extraordinary rendition was immediately made clear:
When I got to Morocco they said some big people in al-Qaida were talking about me. They talked about Jose Padilla and they said I was going to testify against him and big people. They named Khalid Sheikh Mohammed, Abu Zubaydah, and Ibn Sheikh al-Libi. It was hard to pin down the exact story because what they wanted changed from Morocco to when later I was in the Dark Prison, to Bagram and again in Guantánamo Bay.
They told me that I must plead guilty. I'd have to say I was an al-Qaida operations man, an ideas man. I kept insisting that I had only been in Afghanistan a short while. “We don't care,” was all they'd say. 45
Matthew Alexander 02/16/10: It’s interesting that the interrogators asked Mohamed to plead guilty. At this point, he is still being interrogated for intelligence purposes, not law enforcement. There is no guilt or innocence in an intelligence interrogation. In fact, a good interrogator does not bring up such a subject in an interrogation or shifts the blame off the detainee. The interrogators may be mixing up a law enforcement technique taught in the Reid Course (a civilian interrogations training program) which instructs interrogators to never allow a suspect to assert his innocence and to consistently assume the suspect is guilty, never allowing doubt. This would be a mistake in an intelligence setting such as Mohamed’s.
In his May 2005 conversation with his attorney in Guantánamo and in statements and interviews since, Mohamed has provided detailed and harrowing accounts of his treatment at this and another prison in Morocco over the next 18 months. He described his “torture team” for his attorney, which included several Moroccans and one woman, “Sarah the Canadian,” who was supposedly flown in to act as an intermediary.
The “Canadian” called “Sarah” came today. She said she was supposedly a “third party” only interested in talking to me, because I had refused to talk to the Moroccans and the Americans, so maybe I would talk to a Canadian.
“If you don't talk to me, then the Americans are getting ready to carry out the torture. They're going to electrocute you, beat you, and rape you.” She seemed blasé about this, as if this was something normal. I listened to her, but I said I would not talk today.
A few days later:
Today “Sarah” came in with Mohammed, a Moroccan.
They had brought pictures, all of British people. “This is the British file,” they said. “Sarah” picked up the pictures of two British people—Yusuf Jamaici and Amin Mohammed—and told their whole story, about how they were suspected of being al Qaida and other stuff.
They also brought pictures of about 25 of the “most wanted” al Qaida people. “I don't know these people.”
“I'm giving you a last chance to think about cooperating with the U.S.,” said ‘Sarah.' They left me alone for a day to think about it, with no interrogation.46
At the end of this “softening up” phase, Mohamed was given to believe he would soon be released and returned to England. He was handcuffed as though he was about to be transported. Then, without warning, he was violently beaten. After that, Mohamed told his attorney, “the circle of torture began.
They'd ask me a question. I'd say one thing. They'd say it was a lie. I'd say another. They'd say it was a lie. I could not work out what they wanted to hear.
They say there's this guy who says you're the big man in al Qaida. I'd say it's a lie. They'd torture me. I'd say, okay it's true. They'd say, okay, tell us more. I'd say, I don't know more. They'd torture me again.47
Matthew Alexander 02/16/10: It’s not unethical in an interrogation to assert a false accusation against a detainee as long as that assertion does not violate the law or threaten the detainee. In this instance, the interrogators could have started by using a lawful, valid approach called Establish Your Identity, listed in the Army Field Manual. In this approach, the interrogator asserts that a detainee is more (or less) important than they suspect. It’s a legal, ethical interrogation technique. However, the torture is inexcusable and appalling and counters the technique’s effectiveness by reinforcing reasons why Mohamed should not be truthful in establishing his identity.
After several such sessions, interspersed with beatings, one of his interrogators cut off his clothes with a scalpel and tied him against the wall.
They took the scalpel to my right chest. It was only a small cut. Maybe an inch. At first I just screamed because the pain was just…I was just shocked, I wasn't expecting…
Then they cut my left chest. This time I didn't want to scream because I knew it was coming.
Marwan got agitated at this. “Just go ahead with the plan.”
One of them took my penis in his hand and began to make cuts. He did it once, and they stood still for maybe a minute, watching my reaction. I was in agony, crying, trying desperately to suppress myself, but I was screaming. I remember Marwan seemed to smoke a cigarette, throw it down, and start another.
They must have done this 20 to 30 times, in maybe two hours. There was blood all over.48
Then, in September or October, 2002, shortly after Mitchell's CIA team had completed its month-long “enhanced interrogation” and repeated waterboarding of Abu Zubaydah in Thailand, Binyam Mohamed was moved to another prison in Morocco. He would remain there for some 16 months. As Judge Kessler summarized Mohamed's accounts of his experiences in this second location,
His new quarters are described in his diary in extreme detail, including a listing of the color of his sheets, the type of toothpaste he was given, and the brand of soap he was supplied. For days on end, he remained handcuffed with earphones on, and loud music blasted into his ears. This tactic, as well as others, interrupted his sleep for the whole time he was in Morocco. This treatment, in Binyam Mohamed's account, was the beginning of a campaign of mental torture designed to break him. He claims that his captors put mind-altering substances in his food, forced him to listen to sounds from adult films, drugged him, and paraded naked and semi-naked woman around his cell.
He wrote that the mental torture led to “emotional breakdowns.” Through this period, he was subject to two or three interrogations per month. These sessions are described as being “more like trainings, training [him on] what to say.”49
Around the time he was moved to this second location, on September 26, 2002, seven Bush administration lawyers, several of them members of the self-proclaimed “War Council,” boarded a Gulfstream jet in Washington and flew to Guantánamo Bay, Cuba. The group, led by David Addington, included White House Counsel Alberto Gonzales; William J. “Jim” Haynes II, General Counsel of the Department of Defense; CIA attorney John Rizzo; Alice Fisher, who worked for Michael Chertoff, then head of the Criminal Division of the Justice Department; Patrick Philbin of the Office of Legal Counsel; and Jack Goldsmith, who three weeks before had taken a job in the General Counsel's office of the Pentagon.
The lawyers were on a field trip to check up on several of the administration's more accessible interrogation experiments. At Guantánamo, they toured a detention building at Camp Delta where two dozen detainees were being held in wire cages, watched an interrogation, and grilled camp commander General Michael Dunleavy about the unfolding interrogation of Mohammed al-Qahtani. Three hours later, they reboarded the plane and flew to South Carolina.
Three and a half months before, on June 10, 2002, Padilla had signed two sheets of paper on his arrival at the modern naval prison in Charleston, agreeing to the brig rules.50 Since then, he had been held alone in a wing of the brig in a cell whose windows were blackened so he couldn't tell whether it was night or day. He was being monitored constantly by video camera, fed through a slot in the door, refused a clock or calendar, and periodically denied light, a mattress, and the Koran. He had virtually no human contact other than with interrogators.51
There are no direct reports of what the White House attorneys saw during their hour tour and a briefing on Padilla's detention. After their visit, though, the lawyers flew on to Norfolk Virginia to see the brig where the administration had been holding another U.S. citizen as an enemy combatant since April under a similar regime. Like Padilla, Yaser Hamdi was being detained in almost complete isolation in his own wing of the military prison and denied all contact with attorneys or the outside world. By the time Padilla was transferred to the Charleston brig in June, Hamdi's navy jailers were already sending emails to their superiors expressing alarm about his mental state. “Unlike at Camp X-Ray this detainee has no other contact with his countrymen (as was and is still the case there), with nothing but time on his hands,” one of the officers wrote. Writing again a week later to report that Hamdi was showing signs of depression, which he attributed to “the uncertainty of the detainees future and the unknown length of time he is to be incarcerated,” the officer noted: “After eight months of incarceration in detention facilities (Kandahar, Camp X-Ray, Norfolk Brig) with no potential end in site and no encouraging news and isolated from his countrymen, I can understand how he feels.”52
As the attorneys of the War Council toured the Norfolk brig on September 26, 2002, at least one of them experienced a similar moment of empathy. Jack Goldsmith, who was celebrating his birthday that day, later wrote:
After being briefed on the conditions of Hamdi's confinement and learning about the very limited contact he had had with any human being during the previous six months, we shuffled through gloomy corridors to a guard station command center to have a look at Hamdi himself. Top administration lawyers crowded around the small black-and-white closed-circuit television bolted in the back corner of the room, and witnessed the barely twenty-two-year-old Hamdi—it was his birthday as well—in the corner of his small cell in an unused wing of the brig, crouched in a fetal position, apparently asleep.
Before I saw him on the closed-circuit television, I had no sympathy for Hamdi, whom I knew had volunteered to fight for the tyrannical Taliban. Witnessing the unmoving Hamdi on that fuzzy black-and-white screen, however, moved me. Something seemed wrong. It seemed unnecessarily extreme to hold a twenty-two-year-old foot soldier in a remote wing of a run-down prison in a tiny cell, isolated from almost all human contact and with no access to a lawyer. “This is what habeas corpus is for,” I thought to myself, somewhat embarrassed at the squishy sentiment.53
In fact, both Hamdi and Padilla had pending habeas corpus petitions challenging their confinement in these conditions. In Padilla's case, Donna Newman had filed the writ the day after the White House announced he had been detained and was in military custody. In it, she argued that the terms and conditions of Padilla's detention violated his rights under the Fourth, Fifth, and Sixth Amendments to the Constitution, and that holding him in military custody violated the Posse Comitatus Act's prohibitions on military involvement in domestic law enforcement activities.
At the end of August, as the CIA was completing its waterboarding of Abu Zubaydah and Binyam Mohamed was being tortured in Morocco, the government filed an affidavit in support of its position that the President was entitled to hold Padilla incommunicado. That affidavit, signed by Defense Department attorney Michael Mobbs, indicated that the information on which President Bush had relied in signing the June 9, 2002 order designating Padilla an enemy combatant and transferring him to military custody was largely the same as the information in the Ennis affidavit used to secure the Material Witness warrant for his arrest the month before. But now, in addition to the alleged “dirty bomb” plot, Mobbs added that Padilla's discussions with al-Qaeda operatives also encompassed “other operations including the detonation of explosives in hotel rooms and gas stations.”' In a footnote, he explained “These attacks were to involve multiple, simultaneous attacks on such targets, and also included train stations. The additional facts in this footnote were not included in the information provided to the President on June 9, 2002.”54
Mobbs again cited “multiple intelligence sources, including reports of interviews with several confidential sources, two of whom were detained at locations outside of the United States,” again without making any mention of the conditions of their detention or interrogation. In a footnote, though, he notes that one of the two “in a subsequent interview with a U.S. law enforcement officer recanted some of the information that he had provided, but most of this information has been independently corroborated by other sources.”55
On December 4, 2002 a U.S. District Court ruled that the President was entitled, as Commander-in-Chief, to arrest a U.S. citizen on American soil and transfer him to the military to hold as an enemy combatant. Moreover, in passing the 2001 Authorization for Use of Military Force, Congress had sanctioned the actions, and the courts, in deference to the president's war power, only had authority to conduct a minimal review to ensure there was “some evidence” to support his detention. However, the court ruled that Padilla should be allowed to consult with an attorney in preparing for such a review.
The administration refused, instead filing a motion for reconsideration of the ruling granting Padilla the right to see an attorney. Supporting this motion was a declaration by Vice Admiral Lowell Jacoby, Director of the Defense Intelligence Agency, insisting that any outside contact would interfere with his interrogation and making clear the administration intended to hold him until he broke. “One critical feature of the intelligence process is that it must be continuous,” Lowell asserted. “Any interruption to the intelligence gathering process, especially from an external source, risks mission failure.”56
Developing the kind of relationship of trust and dependency necessary for effective interrogations is a process that can take a significant amount of time. There are numerous examples of situations where interrogators have been unable to obtain valuable intelligence from a subject until months, or even years, after the interrogation process began.
Anything that threatens the perceived dependency and trust between the subject and interrogator directly threatens the value of interrogation as an intelligence gathering tool. Even seemingly minor interruptions can have profound psychological impacts on the delicate subject-interrogator relationship. Any insertion of counsel into the subject-interrogator relationship, for example—even if only for a limited duration or for a specific purpose—can undo months of work and may permanently shut down the interrogation process .57
“Padilla has been implicated in several plots to carry out attacks against the United States,” Jacoby alleged, citing the “possible use of a ‘dirty' radiological bomb in Washington DC or elsewhere,” and also “the possible detonation of explosives in hotel rooms, gas stations, and train stations.”58
In Pakistan, the British intelligence officer who interviewed Binyam Mohamed concluded he “would only provide information of genuine value if he comes to believe it is genuinely in his interests to do so,” and the tool for this illumination was presumably more torture. For Padilla, Jacoby suggested, the tool was despair:
Permitting Padilla any access to counsel may substantially harm our national security interests. As with most detainees, Padilla is unlikely to cooperate if he believes that an attorney will intercede in his detention. DIA's assessment is that Padilla is even more inclined to resist interrogation that most detainees. DIA is aware that Padilla has had extensive experience in the United States criminal justice system and had access to counsel when he was being held as a material witness. These experiences have likely heightened his expectations that counsel will assist him in the interrogation process. Only after such time as Padilla has perceived that help is not on the way can the United States reasonably expect to obtain all possible intelligence information from Padilla”59
Matthew Alexander 02/16/10: These comments ignore the simple fact that numerous repeat offenders are routinely interrogated successfully in the U.S. every day by competent, professional detectives despite the Constitutional guarantees given to them. The opinion of the DIA commander furthers a juvenile understanding of the interrogation process. Interrogation is not about domination or creating dependencies or intimidation or establishing a sense of futility. It is about convincing a detainee to cooperate willingly by leveraging a relationship built on trust, not dominance. When senior leaders make these wrong assumptions and promulgate erroneous conclusions about interrogations, it is more evidence that we need officer interrogators in the US Army and other Services who can advise commanders and the directors of civilian intelligence agencies. A professional, trained interrogator could have refuted these misconceptions about the art of interrogation and establish a valid interrogation plan that would have been consistent with the law and American principles.
***
For the next year, the three men remained in place, Abu Zubaydah in the hands of the CIA in the black site in Thailand, Jose Padilla under the control of the Defense Intelligence Agency at the brig in Charleston, and Binyam Mohamed in the custody of the Moroccans. Then, on January 21, 2004, the CIA dispatched another plane to Rabat , this one a Boeing 737 with the FAA registration N313P.60
“Farich—you're going home,” Mohamed recounted being told, for the second time.
By now I would not believe it. I thought there was something special coming along. The first time they said “farich” was the first time I went to the torture chamber and they hung me up.
It was a cold night. I was cuffed, blindfolded, put in a van and driven for about half an hour. Then they took me into a room, still blindfolded. It was dark.
It was January 21 st or 22 nd , 2004, at about 10 pm. After waiting about two hours, I heard a plane. I knew I was going to go. I heard an American accent. I knew then I was being transferred back to the Americans. It was me and two other prisoners.
There were five U.S. soldiers in black and grey, with face masks, and again with Timberland type boots. The did not talk to me. They cut off my clothes.
There was a white female with glasses. She took the pictures. One of the soldiers held my penis and she took digital pictures. This took a while, maybe half an hour.
She was one of the few Americans who ever showed me any sympathy. She was about 5'6”, short, blue eyes. When she saw the injuries I had she gasped. She said, “Oh, my God, look at that”” Then all her mates looked at what she was pointing at and I could see the shock and horror in her eyes.
Later, when I was in Afghanistan they took more pictures. They were treating me, and one of them explained that the photos were “to show Washington it's healing.”61
According to flight records, the Boeing 737 left Rabat at 2:05 a.m. on the morning of January 22, 2004, and landed in Kabul Afghanistan at 9:58 a.m. Mohamed was immediately transferred to a CIA black site known as the Dark Prison. Detainees who were held there have provided consistent accounts of a facility where prisoners were shackled in complete darkness virtually around the clock and bombarded with earsplitting, repetitive music and traumatizing noises. “A very very horrid horrid place,” is how Bisher al-Rawi, who was detained there for two weeks in 2002, described it. “It's pitch dark. You can't see anything. You're on the floor. You need to use the toilet. You can't see how, you don't know what to do.”62
As Binyam Mohamed reported to his attorney,
There was a hall with rooms apart from each other. I am guessing there were about 20 rooms. I was told special people were housed in it, and I was “special” which is why I was being taken there….
They knocked my head against a wall a few times until I could feel blood, then I was thrown into a cell. It was cell number 16 or 17, the second or third to last room from the shower room. The room was about 2 m by 2.5 m. The cell had a heavy metal door, all solid, then a second door with bars. There were speakers near the ceiling at both ends of the room. There was a watching hole low down on one wall. There was a hanging pole for people left there in the kneeling position. There was a bucket in the corner for a toilet.
I was put in shorts and a top, and chained to the floor with little or no room to manoeuver.
The mat was thin as a blanket, and the blanket was thin as a sheet. It was hard to use the toilet in the dark. All the shit and piss in the bucket got on my blanket, but when they let me lie down I had to use it, as it was all I had.
Showers were either weekly or monthly, as they wished.
It was pitch black, and no lights on in the rooms for most of the time. They used to turn the light on for a few hours, but that only made it worse when they turned it back off.
They hung me up. I was allowed a few hours of sleep on the second day, then hung up again, this time for two days. My legs had swollen. My wrists and hands had gone numb. I got food only once all this time. After a while I felt pretty much dead. I didn't feel I existed at all.
Then I was taken off the wall and left in the dark. There was loud music, Slim Shady and Dr. Dre for 20 days. I heard this non-stop over and over, I memorized the music, all of it, when they changed the sounds to horrible ghost laughter and Halloween sounds. It got really spooky in this black hole.63 The only light I saw came from the guards using flashlights to bring inedible food, mainly raw rice and beans for lunch, and bread and beans for dinner. Just the sauce, not the beans themselves. I lost 20 kg in the weeks of my stay. They used to come and weigh us every other day, it seemed like they were making sure we were losing weight.
Then there was a misunderstanding in interrogation that led to my being chained to the rails for a fortnight, all cause I said the truth about what I had and hadn't done, thinking the CIA interrogators looked understanding.64
In the Dark Prison, Mohamed's CIA interrogators were clear about their purpose:
I had interrogation most days. He started with pictures. I would say, “I don't know them.” He would say, “You do know them.” I'd said [sic], “Okay, I do know them.” I would describe the people and what they did. I was just making stuff up, but it made the interrogator very happy. But then he went off and did his homework. He came back angry. “If you make up stories again, we're going to torture you.” I asked him to tell me what he wanted, cos I didn't know what to say. “Just say what we want. Don't make things up.” From then on they would give me the name and the story behind each picture. Most of them were Afghanis and Pakistanis. I was surprised at that, since I rarely had much of an interaction with an Afghani while I was there, because I did not speak the language.
In the Dark Prison, American solders, dressed all in black, came to me with a story. They said, “This is the story that Washington wants.” It was about a dirty bomb. I was meant to steal the parts and build it with Padilla in New York. I did not even know what a dirty bomb was. At first, they talked about an atomic bomb, but then they talked about a dirty bomb. It was meant to be half A-bomb, half something else to make it explode. The story went round and round for the four months I spent in the Dark Prison. I could not understand what they were talking about, and got it wrong. They hung me up for ten days, almost non-stop. They had me in a sitting position on the floor, where I could not lie down. My hands were suspended above my head. There was a bucket next to me, but it was hard to maneuver to use it. I kept knocking over the bucket when I tried.65
That month, as Mohamed was being interrogated in the Dark Prison, Donna Newman and her co-counsel Andrew Patel and a delegation from the International Committee of the Red Cross were finally allowed to visit Jose Padilla in the brig in South Carolina.
On March 11, 2003, the district court granted the government's motion for reconsideration in part, but then had essentially affirmed its earlier decision, dismissing Vice Admiral Jacoby's statements as “speculative” and ruling that there was no way Padilla could pursue his habeas corpus claim without a lawyer. “Lest any confusion remain, this is not a suggestion or a request that Padilla be permitted to consult with counsel, and it is certainly not an invitation to conduct further ‘dialogue' about whether he is permitted to do so,” Judge Mukasey wrote in his opinion, insisting he ‘must have the opportunity to present evidence that undermines” the government's allegations.66
With Mukasey's ruling imminent, Newman and Patel met with Padilla on March 3, 2004. “The conditions of the meeting were extremely restrictive,” Newman wrote later. “We were restricted in the topics we could discuss. The meeting was monitored and videotaped. Accordingly, we did not engage in any confidential discussions. The materials we sent to him were reviewed by the Department of Defense and redactions were made.”67.
Topics that were off limits included any discussion of Padilla's interrogation; on the table, though, were plans for a Supreme Court argument on his habeas petition the following month. In December 2003, the Second Circuit Court of Appeals had overtuned Mukasey's ruling that the president had the power to detain a U.S. citizen detained in the U.S. as an enemy combatant in military custody. The Bush administration appealed, and on April 28, 2004, the same day 60 Minutes broadcast the first Abu Ghraib photos, the Supreme Court heard Rumsfeld v. Padilla and Hamdi v. Rumsfeld , an appeal of the Fourth Circuit's rejection of Yaser Hamdi's habeas corpus petition.
With the Supreme Court preparing to hear two cases involving American citizens being held incommunicado and interrogated by the military, the administration was under increasing pressure to justify its actions. The week before the Supreme Court hearing, Senate Judiciary Committee Chairman Orrin Hatch had written Attorney General Alberto Gonzales asking the Justice and Defense departments to turn over whatever they could about Padilla's and Hamdi's cases. On May 28, 2004, the Justice Department released a declassified document entitled “Summary of Jose Padilla's Activities With Al Qaeda ” that constructed an elaborate account of Padilla's terrorist plans based on Padilla's own admissions in custody and the interrogations of Abu Zubaydah, Binyam Mohamed (who is referred to as “the Accomplice”), Khalid Sheikh Mohammed, and two others identified as “Al Qaeda facilitators #1 and #2).
In this account, “Padilla admits he was first tasked with an operation to blow up apartment buildings in the United States with natural gas by [Mohammed] Atef…at a meeting in Qandahar in July or August 2001. Padilla accepted the tasking.” Padilla and “another al Qaeda operative, Jafar Al-Tayar, received explosives training for this purpose”; however, “the mission was apparently abandoned after the training because Padilla and Jafar could not get along and Padilla told Atef he could not do the operation on his own.” Padilla and Mohamed allegedly then proposed to Abu Zubaydah an operation “in which they would travel to the United States to detonate a nuclear bomb they learned to make on the internet.” Skeptical about their ability to carry out the plan, Abu Zubaydah is said to have arranged for them to meet Khalid Sheikh Mohammed instead. What follows is one of the document's most sensational passages:
According to one statement by senior al Qaeda detainee #2,68 Padilla and the Accomplice did not commit to the apartment bombing mission, so KSM was unsure what operation they would finally pursue in the United States. According to that and other statements by this detainee, Padilla and his Accomplice were sent to KSM by Abu Zubaydah in March 2002, so that Padilla could propose the “dirty bomb” plan.” KSM was very skeptical, and instead suggested that Padilla and his Accomplice undertake the apartment building operation originally conceived by Atef. They were to enter the United States via the Mexican border or Puerto Rico. Once in the U.S., Padilla and the Accomplice were to locate as many as three high-rise apartment buildings which had natural gas supplied to the floors. They would rent two apartments in each building, seal all the openings, turn on the gas, and set timers to detonate the building simultaneously at a later time. Selection of the target city in the United States was left up to Padilla. Padilla and his Accomplice discussed operational matters with KSM, were given communication training, and each received $20,000 for the operation. Although KSM had some doubts about the ability of Padilla and his Accomplice to successfully enter the United States, they had full authority from him to conduct an operation if they succeeded in entering the United States.
According to the Accomplice, KSM first asked Padilla and his Accomplice to consider setting fire to a hotel or a gas station in the United States, but they told him it would be almost impossible to implement. KSM then asked Padilla to instead apply the explosives training he had received in Afghanistan to destroy an entire building in the central United States by fitting aluminum plates on the side of a room holding the pillars of the building, so that side would absorb all the shock of the explosion, filling the room with natural gas, and then setting a detonator to go off in 24 hours. The Accomplice was tasked to build the detonator by connecting a programmable stopwatch to an electric detonator.
The Accomplice further states that KSM and Ammar al-Baluchi instructed Padilla and the Accomplice on the steps involved to execute this terrorist operation. Padilla would travel to Chicago after obtaining a new passport from the United States Embassy in Europe to expunge the record of Padilla's travel to Pakistan. Once in the United States, Padilla was to conduct an internet search on buildings that had natural gas heating. Padilla was to open a bank account and then obtain information about documents needed to rent an apartment; KSM advised they were to blow up approximately 20 buildings simultaneously, but Padilla pointed out that he could not possibly rent multiple apartments under one identity without drawing attention, and he might have to limit this operation to only two or three buildings. The Accomplice was to return to the United Kingdom, where he held refugee status, obtain a valid travel document, and then travel to the United States to meet Padilla in Chicago to assist him.69
The narrative is riddled with inconsistencies—first Padilla and Mohamed are supposed to enter the U.S. “via the Mexican border or Puerto Rico” and later Padilla is to secure a new passport in Europe and fly to Chicago and Mohamed is supposed to fly to the U.K. and then on to the U.S. with a valid travel document, for example—and the footnotes raise even more questions. In one, it becomes clear that KSM first identified Padilla's partner as Jafar, but in later statements “admits that the Accomplice was the second operative.” Another, after alleging that the apartment plot was corroborated by Mohamed, Abu Zubaydah, and al Qaeda facilitators #1 and #3, notes,
There are differences in detainee statements on the intended target of the apartment building mission, perhaps because it had not been finally determined, although the locations mentioned are all within the United States. Padilla states that the primary target was New York City, although Florida and Washington, D.C. were discussed with KSM as well; selection of the apartment was left to Padilla's discretion. Padilla's Accomplice has stated that KSM instructed Padilla to conduct the operation in the central United States, or Chicago, and that he was assigned to meet Padilla in Chicago to assist him. Senior al Qaeda detainee #2 has said that KSM left selection of the target city up to Padilla, and has added in other statements that KSM intended the target to be along the Mexican-U.S. border, perhaps in Texas; that KSM advised Padilla to conduct the operation in California or somewhere in the U.S. Southwest; and that New York and Florida were never considered.70
Finally, a footnote observes, “There are a number of instances in his statements where Padilla attempts to downplay or deny his commitment to al Qaeda and the apartment building mission.” It notes, for example, that “Padilla claims that he never pledged bayat (an oath of loyalty) to [Usama Bin Laden] and was not part of al Qaeda ”; that “He says he and his Acccomplice proposed the dirty bomb plot only as a way to get out of Pakistan and avoid combat in Afghanistan, yet save face with Abu Zubaydah”; and “that he returned to the U.S. with no intention of carrying out the apartment building operations.”71
These inconsistencies and qualifications were absent three days later when Deputy Attorney General James Comey stood before the press and spun the “Summary of Jose Padilla's Activities With Al Qaeda” into a spellbinding narrative of Padilla's travels, training, and intentions. At the end, he drove home the point of the story:
Much of this information has been uncovered because Jose Padilla has been detained as an enemy combatant and questioned. We have learned many things from Padilla that I'm not going to discuss today and that we did not include in our answer to Sen. Hatch.
Had we tried to make a case against Jose Padilla through our criminal justice system, something that I, as the United States attorney in New York, could not do at that time without jeopardizing intelligence sources, he would very likely have followed his lawyer's advice and said nothing, which would have been his constitutional right.
He would likely have ended up a free man, with our only hope being to try to follow him 24 hours a day, seven days a week and hope—pray, really—that we didn't lose him.
But Jose Padilla was more than a criminal defendant with a broad menu of rights that we offer in our great criminal justice system. On May the 8 th of 2002, a soldier of our enemy, a trained, funded and equipped terrorist, stepped off that plane at Chicago's O'Hare: a highly trained al Qaeda soldier who had accepted an assignment to kill hundreds of innocent men, women and children by destroying apartment buildings; an al Qaeda soldier who still hoped and planned to do even more by detonating a radiological device, a dirty bomb, in this country; an al Qaeda soldier who was trusted enough to spend hour after hour with the leaders of al Qaeda, Mohammed Atef, Abu Zubaida, Khalid Shaikh Mohammed; an al Qaeda soldier who had vital information about our enemy and its plans; and lastly an al Qaeda soldier who, as an American citizen, was free to move in, within, and out of this country.
Two years ago, the president of the United States faced a very difficult choice. After a careful process, he decided to declare Jose Padilla for what he was, an enemy combatant, a member of a terrorist army bent on waiting war against innocent civilians. And the president's decision was to hold him to protect the American people and to find out what he knows.
We now know much of what Jose Padilla knows. And what we have learned confirms that the president of the United States made the right call and that that call saved lives.72
The grandstanding bought the administration some time. Two months later, on June 28, 2004, the United States Supreme Court dismissed Jose Padilla's habeas corpus petition not on its merits but on technical grounds. The 5-4 majority held that Padilla's attorneys had improperly filed the writ in federal court in New York instead of South Carolina, where Padilla was actually being detained, and that the petition had erred in naming Secretary of Defense Donald Rumsfeld as the respondent instead of the naval brig's commanding officer.
Meanwhile, in late May, as the administration was preparing this public relations offensive, Binyam Mohamed was moved again, this time with a group of detainees by helicopter from the Dark Prison to the detention facility at Bagram Airfield. Mohamed told his attorney
I was in Bagram from the end of May until I was taken to Guantánamo in September 2004.
They said there were ten of us meant to go to court. Some had to write statements. Some just had to sign statements that had been written by U.S. interrogators. They said we were meant to go to court right on arrival in Cuba.
They made me write something out for them in Bagram. It was long—about twenty pages—but the first fifteen pages were just an autobiography. The actual story was only a couple of pages. By then, the story was something like this. First, Jose Padilla and I were meant to have good connections, because we both spoke English. We were meant to have been hanging out together. The FBI showed me Jose Padilla's picture as early as April 2002 when I was in Pakistan. When I was in Morocco I was shown a news clip of him. The truth is that I do not know Jose Padilla, I did not recognize him in the photograph.
Second, I was meant to have come from Afghanistan with him. The truth is that I have no idea whether I did. I was in a group of people for two or three days coming out of Afghanistan. I have no idea whether he was in it, or even whether he had been in Afghanistan. I did not know him, and kept to myself, and I can say that I have certainly never spoken with him. But, of course, by the time I was in Bagram I was telling them whatever they wanted to hear.
Third, I was meant to say that Jose Padilla and I were going to go to the U.S. to explode a dirty bomb.
I don't really remember, because by then I just did what they told me. But I think that was about the total of it by then.73
Mohamed's lead interrogator at Bagram is identified as Special Agent 3 in Judge Kessler's opinion granting the habeas corpus petition of Farhi Saeed Bin Mohammed. Special Agent 3 clearly leads one of the FBI's “clean teams,” groups of interrogators whose job is to reinterview detainees who had previously been tortured to try to elicit the same information by non-coercive means. “Special Agent 3 began his questioning of Binyam Mohamed at Bagram in July of 2004, just over two months after he was transferred from the Dark Prison,” Judge Kessler found. Special Agent 3 interviewed Mohamed first on July 21 and then several times at Bagram. In one of those sessions, Judge Kessler records, “Special Agent 3 made him write out his narrative.”74
Finally, on September 19, 2004, more than two years after he had been detained at the Karachi airport, Binyam Mohamed was flown to Guantánamo. There, on October 29, 2004, Mohamed and Special Agent 3 met again. In that session, which began with the “various courtesies” including the traditional Muslim greeting and the offer of coffee, Mohamed was shown 27 photos and identified 12 of them. Among those he identified was Farhi Saeed Bin Mohammed, who, he said, had been a training camp companion.
- Footnotes
- 1. Mohammed v. Obama , No. 1:05-CV-1347, 2009 WL 4884194, at *30 (D.D.C. Dec. 16, 2009), available at http://www.leagle.com/unsecure/page.htm?shortname=infdco20091217b92 [1]
- 2. Cited at Mohammed , 2009 WL 4884194, at *5
- 3. Mohammed , 2009 WL 4884194, at *4
- 4. Mohammed, 2009 WL 4884194, at *15
- 5. Mohammed, 2009 WL 4884194, at *15
- 6. Mohammed, 2009 WL 4884194, at *15; citations omitted
- 7. Mohammed, 2009 WL 4884194, at *16
- 8. Mohammed, 2009 WL 4884194, at *16
- 9. Mohammed, 2009 WL 4884194, at *24
- 10. Mohammed, 2009 WL 4884194, at *25
- 11. Mohammed, 2009 WL 4884194, at *26
- 12. Peter Finn and Joby Warrick, “Detainee's Harsh Treatment Foiled No Plots,” Washington Post, March 29, 2009, available at http://www.washingtonpost.com/wp-dyn/content/article/2009/03/28/AR200903... [2]
- 13. Noor al-Deen was reportedly eventually transferred from Morocco to Syria, but his current whereabouts are unknown
- 14. Remarks by the President at Connecticut Republican Committee Luncheon, April 9, 2002, available at http://georgewbush-whitehouse.archives.gov/news/releases/2002/04/20020409-8.html [3]
- 15. Declaration of Clive Stafford-Smith in Support of Plaintiffs'-Appellants' Opposition to United States' Motion to Dismiss, Exhibit A, Mohamed v. Jeppesen Dataplan, Inc., No. 08-15693 (9th Cir.), 1, available at http://www.aclu.org/national-security/declaration-clive-stafford-smith-s... [4]
- 16. Declaration of Clive Stafford-Smith, Exhibit A, 1-2
- 17. See Chapter 2 at footnote 18, 19
- 18. Testimony of Ali Soufan before the United States Senate Committee on the Judiciary, May 13, 2009, available at http://judiciary.senate.gov/hearings/testimony.cfm?id=3842&wit_id=7906 [5]
- 19. There are conflicting accounts of what these details were, exactly. In 2004, The New York Times reported that Abu Zubaydah “did not name Mr. Padilla but described him physically and referred to him as a Latin American man who went by a Muslim name, an official with the Department of Homeland Security said. Intelligence agents began searching commercial and law enforcement databases under that Muslim name. At about the same time, Mr. Padilla was briefly detained in Pakistan on a passport violation. This helped a customs intelligence agent link the name give by Abu Zubaydah to “an Arab alias not mentioned by the detainee,” the official said. That “alias” led the agent to Mr. Padilla's Florida driver's license, the official said. The photo was shown to “a detainee,” presumably Abu Zubaydah, who confirmed that Mr. Padilla was the “Latin American” he had been describing. The Pakistanis also viewed the photo and made a confirmation.” (Deborah Sontag, “Terror Suspect's Paths From Streets to Brig,” The New York Times , April 25, 2004, available at http://www.nytimes.com/2004/04/25/national/25PADI.html?pagewanted=1 [6])
- 20. Jane Mayer, The Dark Side, 156.
- 21. “Al-Qaeda Claims “Dirty Bomb” Know-How,” BBC News, April 23, 2002, available at http://news.bbc.co.uk/2/hi/americas/1945765.stm [7]
- 22. David Rose, “How MI5 colluded in my torture: Binyam Mohamed claims British agents fed Moroccan torturers their questions,” The Daily Mail, March 8, 2009, available at http://www.dailymail.co.uk/news/article-1160238/How-MI5-colluded-torture-Binyam-Mohamed-claims-British-agents-fed-Moroccan-torturers-questions--WORLD-EXCLUSIVE.html [8]
- 23. Barbara Ehrenreich, “My Unwitting Role In Acts of Torture,” The Guardian, February 21, 2009, available at http://www.guardian.co.uk/commentisfree/libertycentral/2009/feb/21/barba... [9] “How to Make Your Own H-Bomb” quoted at http://port80.blogsome.com/2005/03/13/how-not-to-build-a-thermonuclear-bomb [10]
- 24. David Rose, “How MI5 colluded in my torture: Binyam Mohamed claims British agents fed Moroccan torturers their questions,” The Daily Mail, March 8, 2009
- 25. Gov't's Resp. to Padilla's Objections to the Magistrate Judge's Report and Recommendation Denying Mot. to Suppress Physical Evidence and Issues Writs Ad Testificandum at 7-9, United States v. Padilla , No. 04-60001-CR (S.D. Fla. Nov. 16, 2006), available at http://www.pegc.us/archive/US_v_Padilla/gov_resp_20061116.pdf [11]
- 26. R (Mohamed) v. Sec'y of State for Foreign & Commonwealth Affairs , [2008] EWHC 2048 at ¶ 12, available at http://www.bailii.org/ew/cases/EWHC/Admin/2008/2048.html [12]
- 27. R (Mohamed) , [2008] EWHC 2048, ¶ 9x
- 28. Declaration of Clive Stafford-Smith, Exhibit A, 2-3
- 29. R (Mohamed) , [2008] EWHC 2048, ¶ 20
- 30. R (Mohamed) , [2008] EWHC 2048, ¶ 19
- 31. R (Mohamed) , [2008] EWHC 2048, ¶ 21
- 32. John Ashcroft, Text of Announcement of Arrest of Suspected Terrorist Abdullah Al Muhajir, available at http://www.foxnews.com/story/0,2933,54941,00.html [13]
- 33. Transcript of June 10, 2002 Justice Department press conference available at http://www.defense.gov/transcripts/transcript.aspx?transcriptid=3498 [14]
- 34. “Did Ashcroft Overstate Terror Arrest,” ABC News, June 13, 2002, available at http://abcnews.go.com/US/story?id=91559&page=1 [15]
- 35. “‘Dirty Bomb' Suspect had an Accomplice,' Fox News, June 11, 2002, available at http://www.foxnews.com/story/0,2933,54908,00.html [16]
- 36. Briefing available at http://www.dhs.gov/xnews/speeches/speech_0043.shtm [17]
- 37. Gov't's Resp. to Padilla's Objections, 5-6, United States v. Padilla
- 38. R (Mohamed), [2008] EWHC 2048, ¶¶ 29i-iv
- 39. R (Mohamed), [2008] EWHC 2048, ¶¶ 29v.
- 40. First Amended Complaint at ¶¶ 62-64, Mohamed v. Jeppesen Dataplan, Inc. , No. 5:07-CV-2798 (N.D. Ca. Aug. 1 2007), available at http://www.aclu.org/files/pdfs/safefree/mohamed_v_jeppesen_1stamendedcom... [18]
- 41. First Amended Complaint at ¶ 61, Mohamed v. Jeppesen Dataplan, Inc .
- 42. Declaration of Clive Stafford-Smith, Exhibit A, 3
- 43. Declaration of Clive Stafford-Smith, Exhibit A, 3
- 44. Parliamentary Assembly of the Council of Europe report “Alleged secret detentions and unlawful inter-state transfers involving Council of Europe member states,” July 6, 2006, ¶ 202, available at http://assembly.coe.int/Main.asp?Link=/CommitteeDocs/2006/20060606_Ejdoc162006PartII-FINAL.htm [19]
- 45. Binyam Mohamed, “One of them made cuts in my penis. I was in agony,” (op-ed adapted from his attorney's notes of their May 2005 interview in Guantánamo), Guardian, August 2, 2005, available at http://www.guardian.co.uk/uk/2005/aug/02/terrorism.humanrights [20]
- 46. Declaration of Clive Stafford-Smith, Exhibit A, 7-8. Documents reviewed by the British High Court corroborate that U.K. agents gave questions and a photobook to U.S. agents to pass through to his Moroccan interrogators. They also show one of the agents who interviewed Mohamed in Pakistan traveled to Morocco three times in late 2002 and early 2003. Despite this, the SyS maintains it did not know Mohamed was in Morocco ( R (Mohamed), [2008] EWHC 2048, ¶¶ 30-35)
- 47. Declaration of Clive Stafford-Smith, Exhibit A, 9
- 48. Declaration of Clive Stafford-Smith, Exhibit A, 11-12
- 49. Mohammed, 2009 WL 4884194, at *20-21
- 50. Available at http://www.aclu.org/pdfs/natsec/dod_emails_20081006.pdf [21] (“No sitting or lying on your rack between reveille and taps unless you are on medical bedrest; likewise, you may not lie on the floor”; “All meals will be eaten in your cell; you must partake of all meals”; “You may not drill or march in military formation for any purpose except as authorized and directed by the facility commander”; etc.)
- 51. see e.g., http://jurist.law.pitt.edu/pdf/YooComplaint.pdf [22]; the technical director of the Charleston brig, Sanfred Seymour, confirmed many of these details in court testimony; Carol J. Williams, “New Light on Padilla's Treatment,” Los Angeles Times , February 28, 2007, available at http://articles.latimes.com/2007/feb/28/nation/na-padilla28 [23]
- 52. Emails dated June 21 and June 28, 2002, available at, http://www.aclu.org/pdfs/natsec/dod_emails_20081006.pdf [21]
- 53. Jack Goldsmith, The Terror Presidency: Law and Judgment Inside the Bush Administration , Norton, 2007, 101-102
- 54. Declaration of Michael H. Mobbs, Special Advisor to the Under Secretary of Defense Policy, August 27, 2002, 4, available at news.findlaw.com/hdocs/docs/padilla/padillabush82702mobbs.pdf
- 55. Mobbs Declaration, 2
- 56. Declaration of Vice Admiral Lowell Jacoby, January 9, 2003, 3; available at http://www.pegc.us/archive/Padilla_vs_Rumsfeld/Jacoby_declaration_200301... [24]
- 57. Jacoby declaration, 4-5
- 58. Jacoby Declaration, 7
- 59. Jacoby declaration, 8
- 60. First Amended Complaint at ¶ 22, Mohamed v. Jeppesen Dataplan, Inc .
- 61. Declaration of Clive Stafford-Smith, Exhibit A, 15-16
- 62. ACLU interview with Bisher al-Rawi, August 30, 2009, available at http://www.aclu.org/national-security/transcript-aclu-interview-bisher-a... [25]
- 63. Mohamed elaborated on this later in his account: “For 20 days, 24 hours a day, they played some album by Slim Shady and Dr. Dre. I don't know the name of the album, and I've tried to block it out. But it has some song about “America I love you” on it. There is talking on it by a girl, and it's about her. They used this music to torture us. It was blasting loud all around. There were speakers in every cell. Then they used horror sounds, like they were from the movies. 24 hours a day, for maybe two weeks. There was hardly any way to sleep. It was like a perpetual nightmare. After that, they came with other sounds, irritating things—thunder, planes taking off, cackling laughter, the screams of women and kids, that kind of thing. It was meant to drive you nuts. There's a prisoner in Guantánamo who was there who had totally lost his head( Declaration of Clive Stafford-Smith, Exhibit A , 17)
- 64. Declaration of Clive Stafford-Smith, Exhibit A , 16-17
- 65. Declaration of Clive Stafford-Smith, Exhibit A, 18
- 66. Phil Hirschkorn, “Judge allows lawyers to visit ‘enemy combatant,'” CNN, March 11, 2003, available at http://www.cnn.com/2003/LAW/03/11/padilla.decision/index.html [26]
- 67. Donna R. Newman, “The Jose Padilla Story,” New York Law School Law Review, 2003/2004, available at http://www.nyls.edu/user_files/1/3/4/17/49/v48n1-2p39-67.pdf [27]
- 68. One of the quirks of this document, the source of the statements is identified by a descriptor such as “al Qaeda detainee #2” but then almost immediately identified by name, in this case KSM
- 69. “Summary of Jose Padilla's Activities With Al Qaeda,” 5-6, available at news.findlaw.com/cnn/docs/padilla/dod2doj52805sum.pdf
- 70. “Summary of Jose Padilla's Activities With Al Qaeda, 5-6
- 71. Summary of Jose Padilla's Activities with Al Qaeda, 7
- 72. Transcript of James Comey news conference on Jose Padilla, June 1,2004 available at http://edition.cnn.com/2004/LAW/06/01/comey.padilla.transcript/ [28]
- 73. Declaration of Clive Stafford-Smith, Exhibit A, 19
- 74. Mohammed, 2009 WL 4884194, at *22