[Ppnews] A Truly Shocking Gitmo Story

Political Prisoner News ppnews at freedomarchives.org
Thu Oct 1 12:55:22 EDT 2009


October 1, 2009

Judge Confirms an Innocent Man Tortured to Make False Confessions

A Truly Shocking Gitmo Story


In four years of researching and writing about 
Guantánamo, I have become used to uncovering 
shocking information, but for sheer cynicism, I 
am struggling to think of anything that compares 
to the revelations contained in the unclassified 
ruling in the habeas corpus petition of Fouad 
al-Rabiah, a Kuwaiti prisoner whose release was 
ordered last week by Judge Colleen Kollar-Kotelly 
In the ruling, to put it bluntly, it was revealed 
that the U.S. government tortured an innocent man 
to extract false confessions and then threatened 
him until he obligingly repeated those lies as though they were the truth.

The background: lies hidden in plain sight for five years

To establish the background to this story, it is 
necessary for me to return to 
initial response to the ruling a week last 
Friday, before these revelations had been made 
public, when, based on what I knew of the case 
from the publicly available documents, I 
explained that I was disappointed that the Obama 
administration had pursued a case against 
al-Rabiah, alleging that he was a fundraiser for 
Osama bin Laden and had run a supply depot for 
al-Qaeda in Afghanistan’s Tora Bora mountains, for two particular reasons.

The first was because a CIA analyst had 
interviewed al-Rabiah at Guantánamo in the summer 
of 2002 and had concluded that he was an innocent 
man caught at the wrong time and in the wrong 
place; and the second was because, although 
al-Rabiah had said that he had met bin Laden and 
had been present in the Tora Bora mountains, he 
had provided an innocent explanation for both 
occurrences. He had, he said, been introduced to 
bin Laden on a trip to Afghanistan to investigate 
proposals for a humanitarian aid mission, and he 
had been at Tora Bora -- and compelled to man a 
supply depot -- because he was one of numerous 
civilians caught up with soldiers of al-Qaeda and 
the Taliban as he tried to flee the chaos of 
Afghanistan for Pakistan, and had been compelled 
to run the depot by a senior figure in al-Qaeda.

These appeared to be valid explanations, 
especially as al-Rabiah, a 42-year old father of 
four children, had no history of any involvement 
with militancy or terrorism, and had, instead, 
spent 20 years at a management desk job at Kuwait 
Airways, and had an ownership interest in some 
health clubs. Moreover, he had a history of 
legitimate refugee relief work, having taken a 
six-month approved leave of absence from work in 
1994-95 to do relief work in Bosnia, having 
visited Kosovo with the Kuwaiti Red Crescent in 
1998, and having made a trip to Bangladesh in 
2000 to delivery kidney dialysis fluid to a hospital in the capital, Dhaka.

As a result, it appeared to me a week last Friday 
that Judge Kollar-Kotelly granted al-Rabiah’s 
habeas petition because neither his meeting with 
bin Laden nor his presence in Tora Bora indicated 
that he was either a member of, or had supported al-Qaeda or the Taliban.

However, now that Judge Kollar-Kotelly’s ruling 
has been issued, I realize that the account given 
by al-Rabiah during his Combatant Status Review 
Tribunal at Guantánamo in 2004 -- on which I 
based my account of his activities -- was a 
tissue of lies, and that the truth, hidden for 
over six years, is that, like torture victims 
groomed for show trials throughout the centuries, 
he made up false stories under torture, and 
repeated them obediently, fearing further 
punishment and having been convinced that he 
would never leave Guantánamo by any other means.

An introduction to the torture revelations, and 
an endorsement of al-Rabiah’s explanations about his time in Afghanistan

In her ruling, Judge Kollar-Kotelly methodically 
dissected the government’s case to reveal the 
chilling truth. After noting, initially, that the 
“evidentiary record” was “surprisingly bare,” 
because the government “has withdrawn its 
reliance on most of the evidence and allegations 
that were once asserted against al-Rabiah, and 
now relies almost exclusively on al-Rabiah’s 
‘confessions’ to certain conduct,” she added, 
with a palpable sense of disbelief:

Not only did al-Rabiah’s interrogators repeatedly 
conclude that these same confessions were not 
believable -- which al-Rabiah’s counsel 
attributes to abuse and coercion, some of which 
is supported by the record -- but it is also 
undisputed that al-Rabiah confessed to 
information that his interrogators obtained from 
either alleged eyewitnesses who are not credible 
and as to whom the Government has now largely 
withdrawn any reliance, or from sources that 
never even existed 
 If there exists a basis for 
al-Rabiah’s indefinite detention, it most 
certainly has not been presented to this Court.

In dealing with al-Rabiah’s background, and his 
reasons for traveling to Afghanistan, Judge 
Kollar-Kotelly was required to consider his own 
assertion that, after a preliminary ten-day visit 
in July 2001 to identify areas where humanitarian 
aid might be delivered, he returned in October 
2001 “to complete a fact-finding mission related 
to Afghanistan’s refugee problems and the 
country’s non-existent medical infrastructure,” 
against the government’s claim that he was “’not 
an aspiring aid worker caught up in the front 
lines of the United States war against al-Qaeda’ 
but instead was someone who traveled to 
Afghanistan in October 2001 as a ‘devotee of 
Osama bin Laden who ran to bin Laden’s side after September 11th.’”

Concluding that “The evidence in the record 
strongly supports al-Rabiah’s explanation,” Judge 
Kollar-Kotelly noted that he had officially 
requested leave prior to his departure, and 
quoted from two letters sent to his family. In 
the first, on October 18, 2001, he explained that 
“for ten days he assisted with the delivery of 
supplies to refugees and that he was able to take 
video ‘reflecting the tragedy of the refugees,’ 
but that he was unable to leave Afghanistan 
through Iran (the route he took to enter the 
country) because the borders had been closed.” As 
a result, he “wrote in his letter that he and an 
unspecified number of other persons decided ‘to 
drive four trucks to Pakistan making our way to 
Peshawar,’” and he also asked his brother to 
notify his boss at Kuwait Airlines that he was 
having difficulties returning to Kuwait on time.

After noting that “The evidence in the record 
establishes that al-Rabiah did, in fact, travel 
across Afghanistan towards Peshawar, ultimately 
getting captured (unarmed) by villagers outside 
of Jalalabad 
 on approximately December 25, 
2001” (with Maher al-Quwari, a Palestinian who 
also ended up in Guantánamo), Judge 
Kollar-Kotelly quoted from a second letter sent 
to his family, in which -- ironically, in light 
of what was to come -- he wrote that he was 
“detained by the American troops and thanks to 
God they are good example[s] of humanitarian 
behavior.” He added that he was “detained pending 
verification of [his] identity and personality,” 
and that the “investigation and verification 
procedures may last for a long time due to the 
great number of detained Arabs and other persons” 
who had been fleeing the situation in 
Afghanistan, which “turned upside down between 
one day and night and every Arab citizen has become a suspect.”

Discrediting the government’s unreliable witnesses

Moving on to the government’s key allegations -- 
about Osama bin Laden and Tora Bora -- Judge 
Kollar-Kotelly dismissed the allegations 
regarding al-Rabiah’s supposed activities in Tora 
Bora, which were made by another prisoner who 
claimed that he “was told that al-Rabiah was in 
charge of supplies at Tora Bora,” by noting that, 
“Although his allegations are filled with 
inconsistencies and implausibilities, the 
Government continues to rely on him as an 
eyewitness.” She also noted that, although the 
witness had identified al-Rabiah as the man under 
discussion, from his kunya (nickname), Abu 
Abdullah al-Kuwaiti, the government had conceded 
that another Abu Abdullah al-Kuwaiti, an actual 
al-Qaeda operative named Hadi El-Enazi, was 
present in Tora Bora, and also noted that an 
interrogator had expressed doubt about the 
supposed eyewitness at the time (much of the 
ruling is redacted, but this seemed to involve a 
claim that al-Rabiah’s oldest son was with him in 
Afghanistan, when this was demonstrably not the case).

Judge Kollar-Kotelly also dismissed two other 
sets of allegations by the supposed eyewitness. 
Noting further “inconsistencies and 
impossibilities” in his accounts, she stated that 
“the Court has little difficulty concluding that 
[his] allegations are not credible,” and 
explained that, to reach this conclusion, she had 
also drawn on statements provided by al-Rabiah’s 
lawyers, which further undermined his 
reliability, “based on, among other things, 
undisputed inconsistencies associated with his 
allegations against other detainees,” and his 
medical records, which obviously indicated mental 
health problems (although the description was 
redacted). “At a minimum,” she added, “the 
Government would have had to corroborate [his] 
allegations with credible and reliable evidence, which it has not done.”

Osama bin Laden, it then transpired, appeared in 
allegations made by a second prisoner, who 
“alleged that al-Rabiah attended a feast hosted 
by Osama bin Laden,” where he “presented bin 
Laden with a suitcase full of money.” This source 
also alleged that al-Rabiah “served in various 
fighting capacities in the Tora Bora mountains,” 
and that he “funneled money to mujahadeen in Bosnia in 1995.”

After noting that the government had dropped 
“almost all” of these allegations, except for the 
one relating to Bosnia, Judge Kollar-Kotelly 
stated, witheringly, “the only consistency with 
respect to [these] allegations is that they 
repeatedly change over time.” For particular 
condemnation, she singled out one claim that the 
feast had taken place in August 2001 (when 
al-Rabiah was in Kuwait, before his return to 
Afghanistan in October 2001), amongst other more 
outlandish claims, including an absurd allegation 
that al-Rabiah had trained the 9/11 hijackers.

As with the first supposed eyewitness, Judge 
Kollar-Kotelly noted that there were “multiple 
exhibits in the record demonstrating [his] 
unreliability as a witness” (although, sadly, the 
exact number of prisoners against whom he had 
made verifiably false allegations was redacted), 
and concluded that, although the many 
“inconsistencies and impossibilities” in his 
statements “raise, at a minimum, a serious 
question about [his] mental capacity to 
accurately make allegations against al-Rabiah,” 
the government “did not address them at the Merits Hearing” in August.

After dismissing a third supposed eyewitness, 
because he had withdrawn his allegation (which 
was redacted) several months after making it, 
Judge Kollar-Kotelly dismissed a fourth, even 
though it was “undisputed” that al-Rabiah 
actually had contact with him in Afghanistan. 
Despite redactions, it seems that this man was 
Maher al-Quwari, and that his statement involved 
second-hand hearsay about al-Rabiah being seen 
with a gun. While this was sufficiently weak for 
the judge not to accept it without further 
corroboration, she also made a point of 
discounting it because the supposed witness only 
“made this allegation while he was undergoing a 
cell relocation program at Guantánamo called the 
‘frequent flier program,’ which prevented a 
detainee such as [redacted] from resting due to frequent cell movements.”

While the description of a “cell relocation 
program” sounds relatively benign, Judge 
Kollar-Kotelly made a point of noting that it 
was, in fact, a program of sleep deprivation, 
adding that, “According to a report published by 
the Senate Armed Services Committee concerning 
the treatment of detainees in United States 
custody, sleep deprivation was not a technique 
that was authorized by the Army Field Manual.” 
Although she also noted that “sleep deprivation 
became authorized at Guantánamo by the Secretary 
of Defense on April 16, 2003, the guidance issued 
by the Commander of USSOUTHCOM on June 2, 2003 
prohibited the use of sleep deprivation for more 
than ‘four days in succession,’” whereas the 
supposed witness’s “allegation against al-Rabiah 
was made after one week of sleep deprivation in 
the program, and he did not repeat this 
allegation either before or after the program.”

False confessions obtained through torture

Despite ruling out all of the government’s 
supposed eyewitnesses, and noting that the 
government had withdrawn “most of its reliance on 
these witnesses” by the time of the Merits 
Hearing, Judge Kollar-Kotelly added that “it is 
very significant that al-Rabiah’s interrogators 
apparently believed these allegations at the time 
they were made, and therefore sought to have 
al-Rabiah confess to them” -- despite the 
well-chronicled unreliability of the first two 
supposed witnesses, the withdrawing of the 
statement made by the third, and the fact, easily 
perceived by the judge, that the fourth made his 
statement only after being subjected to sleep 
deprivation that exceeded established guidelines 
and that was, therefore, not only unreliable, but also abusive.

The judge also noted the significance of the 
evidence in the record indicating that al-Rabiah 
“subsequently confided in interrogators 
[redacted] that he was being pressured to falsely 
confess to the allegations discussed above,” and 
also the significance of the fact that, although 
“al-Rabiah’s interrogators ultimately extracted 
confessions from him,” they “never believed his 
confessions based on the comments they included 
in their interrogation reports.”

After noting -- again with a palpable sense of 
incredulity -- that “These are the confessions 
that the Government now asks the Court to accept 
as evidence in this case,” Judge Kollar-Kotelly 
proceeded to demolish them all, breaking them 
down into three periods: the first, when “there 
were no allegations directed toward al-Rabiah and 
al-Rabiah provided no confessions”; the second, 
when the supposed eyewitnesses “made their 
now-discredited allegations and al-Rabiah was 
told of the allegations against him, but 
al-Rabiah nevertheless made no confessions”; and 
the third (which, shockingly, continued “until 
the present”), when “al-Rabiah confessed to the 
now-discredited allegations against him, as well 
as to other ‘evidence’ that interrogators told 
him they possessed, when, in fact, such evidence did not exist.”

In the first phase, Judge Kollar-Kotelly noted 
that there was no indication “that interrogators 
believed al-Rabiah had engaged in any conduct 
that made him lawfully detainable,” and explained 
that, “To the contrary, the evidence in the 
record during this period consists mainly of an 
assessment made by an intelligence analyst that 
al-Rabiah should not have been detained.” As 
discussed in my previous article, this analyst 
was “a senior CIA intelligence analyst, who, 
almost uniquely, was also an Arabic expert,” but 
although I wrote that “it amaze[d] me that no one 
in the Justice Department, under President Obama, 
investigated the CIA analyst’s report,” the 
truth, as revealed in the unclassified ruling, is even bleaker.

It transpires that Justice Department officials 
had read the report, but tried to discredit the 
analyst’s verdict, “arguing that it represented 
the opinion of only one analyst,” ignoring his 
well-chronicled expertise, and obliging the judge 
to point out that, “according to the Government’s 
own evidence, ‘[i]ntelligence analysts undergo 
rigorous tradecraft training [and] employ 
specific analytical tools to assist them in 
sorting and organizing various pieces of 
information,” and are also “trained to recognize 
and mitigate biases, not only in the information 
presented to them, but their own cognitive biases as well.”

In the second phase, despite extensive redactions 
to the ruling, it is clear that al-Rabiah was 
repeatedly interrogated, although he “express[ed] 
frustration to FBI agents that he was repeatedly 
asked, among other questions, whether he had ever 
seen Osama bin Laden, and remark[ed] that his 
answer was ‘no’ and would continue to remain 
‘no.’” What happened next, in a “new 
three-pronged approach,” is unknown, as the 
details are severely redacted, but it “did not 
result in any confessions. Al-Rabiah repeatedly 
denied the allegations against him.”

After this, apparently following some kind of 
advice given to the lead interrogator (by an 
unknown party whose identity and suggestions were 
redacted), the interrogators “began using more 
aggressive interrogation tactics.” Again, the 
details are redacted, but enough information is 
available from passages that were not redacted 
earlier in the ruling to indicate that these 
“tactics” included sleep deprivation (the 
“frequent flier program”), which, as I explained 
in my previous article, led three British men 
released in March 2004 -- the so-called “Tipton 
Three,” whose story was dramatized in the film 
“<http://www.roadtoguantanamomovie.com/>The Road 
To Guantánamo” -- to explain that al-Rabiah was 
moved every two hours, over an unspecified period 
of time (but one that clearly exceeded the 
four-day recommendation by a substantial margin), 
leaving him “suffering from serious depression, 
losing weight in a substantial way, and very 
stressed because of the constant moves, deprived 
of sleep and seriously worried about the consequences for his children.”

Possibly in reference to the use of sleep 
deprivation (although it could also have been 
another “enhanced interrogation technique”), 
Judge Kollar-Kotelly explained that, “Once it 
became authorized, it could not be used on a 
detainee until ‘the SOUTHCOM Commander ma[de] a 
determination of “military necessity” and 
notif[ied] the Secretary [of Defense] in advance’ 
of its use,” and also made a point of noting that 
“the Government was unable to produce any 
evidence that [the interrogator] obtained 
authorization to use the [redacted] technique 
with al-Rabiah despite requests by the Court at 
the Merits Hearing for such evidence.”

Although the other techniques are not described, 
they undoubtedly included some or all of the 
following -- prolonged isolation, the use of 
extreme heat and cold, short-shackling in painful 
stress positions, forced nudity, forced grooming, 
religious and sexual humiliation, and the use of 
loud music and noise -- because this whole 
package of techniques, including sleep 
deprivation, was approved for use at the highest 
levels of the Bush administration, as a Senate 
Committee explained in the detailed report in 
April this year that was cited by the judge 
The program was based on reverse engineering 
techniques taught in U.S. military schools (the 
SERE program -- Survival, Evasion, Resistance, 
Escape) to train recruits to resist interrogation if captured by enemy forces.

These techniques were acknowledged to be illegal 
and, moreover, were intended to produce false 
confessions, but this did not prevent senior Bush 
officials from pushing for their implementation, 
and, in al-Rabiah’s case, they duly led to his 
conversion from an innocent man who refused to 
falsely confess to allegations produced by 
unreliable witnesses into a modern-day version of 
the victims of the Spanish Inquisition, the 
seventeenth century “witches” of Salem and 
elsewhere, the victims of Stalin’s show trials, 
or the captured U.S. pilots on whom the North 
Koreans had practiced the techniques adopted by 
the SERE schools: a broken man prepared not only 
to falsely confess to any lies put before him, 
but also prepared to learn these confessions and 
repeat them as his masters saw fit.

As the ruling makes clear, between redactions, 
“The following day marked a turning point in 
al-Rabiah’s interrogations,” and “From that point 
forward, al-Rabiah confessed to the allegations 
that interrogators described to him.” Despite the 
extensive redactions, the following passage from 
the ruling makes clear the full horror of his confessions:

Al-Rabiah’s confessions all follow the same 
pattern: Interrogators first explain to al-Rabiah 
the “evidence” they have in their possession (and 
that, at the time, they likely believed to be 
true). Al-Rabiah then requests time to pray (or 
to think more about the evidence) before making a 
“full” confession. Finally, after a period of 
time, al-Rabiah provides a fill confession to the 
evidence through elaborate and incredible 
explanations that the interrogators themselves do 
not believe. This pattern began with his 
confession that he met with Osama bin Laden, 
continued with his confession that he undertook a 
leadership role in Tora Bora, and repeated itself 
multiple other times with respect to “evidence” 
that the Government has not even attempted to rely on as reliable or credible.

In the following pages of the ruling, which are 
again fill of redactions, it is nevertheless 
possible to glimpse the progress of this game 
that was not only grim and cynical, but also 
potentially deadly (because, as a prisoner 
forward for a trial by Military Commission, it 
was always possible that the government would 
have pressed for the death sentence had al-Rabiah been convicted).

For page after page the distressing truth peeks 
out: al-Rabiah “did not know what to admit” when 
his interrogators explained that his “full 
confession did not incorporate a description 
concerning a suitcase full of money that he 
allegedly gave bin Laden”; they “began to 
question the truthfulness of his confessions 
almost immediately”; they “began ‘grilling’ 
al-Rabiah concerning [redacted]”; al-Rabiah “was 
interrogated [redacted] during which he made a 
full confession regarding his activities at Tora 
Bora”; interrogators “pressed for additional 
details concerning Tora Bora”; they “became 
increasingly convinced that his confessions 
[redacted]”; they “concluded in one interrogation 
report [redacted]”; “One week later, his 
interrogator concluded [redacted]”; “After 
several additional interrogation sessions, 
al-Rabiah’s interrogators concluded simply [redacted].”

Readers can fill in the gaps through the judge’s 
response to the redacted passages. “Incredibly,” 
she wrote, “these are the confessions that the 
Government has asked the Court to accept as truthful in this case.”

Al-Rabiah explains his cooperation with the 
interrogators; threats and punishment described

Judge Kollar-Kotelly then dismissed further 
allegations, which again, were mostly redacted 
but included the following ironic gem: “The 
Government has not even attempted to explain how 
someone with no known connection to al-Wafa [a 
Saudi charity regarded, during Guantánamo’s 
“witch-hunt” phase, 
particular suspicion] and who had never even been 
to Afghanistan longer than a few weeks could 
ascend to such an honored position, and no 
credible explanation is contained in the record.”

She then moved on to al-Rabiah’s own explanations 
of how he came to make false confessions, noting 
that he had stated that, shortly after his 
arrival at Guantánamo, “a senior [redacted] 
interrogator came to me and said, ‘There is 
nothing against you. But there is no innocent 
person here. So, you should confess to something 
so you can be charged and sentenced and serve 
your sentence and then go back to your family and 
country, because you will not leave this place innocent.”

This is deeply disturbing, of course, as it 
indicates that at least one senior interrogator 
recognized that the Bush administration’s refusal 
to recognize that there were innocent men at 
Guantánamo -- and it has been clear for many 
years that 
of innocent men were held, who had no connection 
whatsoever to any form of militancy, let alone 
terrorism -- had set in motion a system in which, 
whether voluntarily or not, all the innocent men 
at Guantánamo were expected to make false 
confessions, either so that they could continue 
to be labeled as “enemy combatants” on release, 
to maintain the illusion that Guantánamo was full 
of “the worst of the worst,” or, as in 
al-Rabiah’s case, so that they could be tricked 
and transformed into terrorist sympathizers and facilitators.

For some (and it has been confirmed by a former 
interrogator that at least 100 prisoners in 
Guantánamo were subjected to SERE-derived 
“enhanced interrogation”), confessions clearly 
came easily, and without the use of abuse or 
torture, but for others, including al-Rabiah, 
“pressure” was involved. Judge Kollar-Kotelly 
drew on a declaration from March this year, in 
which he explained that his confessions arose out 
of “scenarios offered 
 by [his] interrogators 
which [he] believed to be the story they wanted 
[him] to tell and which [he] felt pressured to 
adopt” (emphasis added). As he also explained:

[M]y interrogators told me they knew I had met 
with Osama bin Laden, that other detainees had 
said I met with Osama bin Laden, that there was 
nothing wrong with simply meeting Osama bin 
Laden, and that I should admit meeting him so I 
could be sent home 
 In about August 2004, 
shortly before my CSRT hearing [the tribunal at 
which al-Rabiah repeated his approved confessions 
in detail], my interrogators told me the CSRT was 
just a show that would allow the United States to 
“save face.” My interrogators told me no one 
leaves Guantánamo innocent, and told me I would 
be sent home to Kuwait if I “admitted” some of 
the false things I had said in my interrogations. 
The interrogators also told me that I would never 
go home again if I denied these things, because 
the United States government would never admit I had been wrongly held.

In a key passage, he spelled out what being 
“pressured” meant. As the judge explained, he 
stated that “he made his confessions to reduce 
the abuse meted out by his interrogators ‘to 
obtain confessions that suited what [they] 
thought they knew or what they wanted [him] to 
say.’ He maintained his confessions over time 
because ‘the interrogators would continue to 
abuse me anytime I attempted to repudiate any of 
these false allegations.’” As she also noted:

There is substantial evidence in the record 
supporting al-Rabiah’s claims. The record is 
replete with examples of al-Rabiah’s 
interrogators emphasizing a stark dichotomy -- if 
he confessed to the allegations against him, his 
case would be turned over to [redacted] so that 
he could return to Kuwait; if he did not confess, 
he would not return to Kuwait, and his life would 
become increasingly miserable.

Through the veil of redactions, it is clear that 
al-Rabiah attempted, on more than one occasion, 
to withdraw his confessions, but that his 
interrogators threatened to withdraw something 
(food? comfort items?) as a result, and Judge 
Kollar-Kotelly also noted that punishment, as 
well as the threat of punishment, was meted out 
to him. “The record,” she wrote, “also supports 
al-Rabiah’s claims that he was punished for 
recanting.” Examples provided by the judge were 
redacted, but the following passage, in which she 
discussed further abuse as a result of the 
interrogators’ frustrations regarding al-Rabiah’s 
inability to invent a coherent false narrative, was not. She wrote:

The record contains evidence that al-Rabiah’s 
interrogators became increasingly frustrated 
because his confessions contained numerous 
inconsistencies or implausibilities. As a result, 
al-Rabiah’s interrogators began using abusive 
techniques that violated the Army Field Manual 
and the 1949 Geneva Convention Relative to the 
Treatment of Prisoners of War. The first of these 
techniques included threats of rendition to 
places where al-Rabiah would either be tortured and/or would never be found.

These threats were made on at least four 
occasions, and, as the judge explained, “were 
also reinforced by placing al-Rabiah into the 
frequent flier program,” discussed above. It is 
also apparent that the threats continued 
throughout this period, as the judge also noted 
that “al-Rabiah’s interrogators continued to threaten him [redacted].”

After making a point that, as explained in the 
Army Field Manual, “prohibited techniques [are] 
not necessary to gain the cooperation of 
interrogation sources,” and, in fact, that the 
use of these methods is likely to “yield 
unreliable results, may damage subsequent 
collection efforts, and can induce the source to 
say what he thinks the interrogator wants to 
hear,” Judge Kollar-Kotelly added that, 
“Underscoring the impropriety of these techniques 
is the fact that [redacted], al-Rabiah’s lead 
interrogator, was disciplined for making similar 
threats during the same period toward a 
Guantánamo detainee who was also one of the 
alleged eyewitnesses against al-Rabiah 
which he was disciplined” (the details, predictably, were redacted).

Judge Kollar-Kotelly’s devastating conclusions

Judge Kollar-Kotelly added, pointedly, “These 
abusive techniques did not result in any 
additional confessions from al-Rabiah, although 
he continued to parrot his previous confessions 
with varying degrees of consistency,” and then 
reached her devastating conclusion:

The Court agrees with the assessment of 
al-Rabiah’s interrogators, as well as al-Rabiah’s 
counsel in this case, that al-Rabiah’s 
confessions are not credible. Even beyond the 
countless inconsistencies associated with his 
confessions that interrogators identified 
throughout his years of detention, the 
confessions are also entirely incredible. The 
evidence in the record reflects that, in 2001, 
al-Rabiah was a 43 year old who was overweight, 
suffered from health problems, and had no known 
history of terrorist activities or links to 
terrorist activities. He had no military 
experience except for two weeks of compulsory 
basic training in Kuwait, after which he received 
a medical exemption. He had never traveled to 
Afghanistan prior to 2001. Given these facts, it 
defied logic that in October 2001, after 
completing a two-week leave form at Kuwait 
Airlines where he had worked for twenty years, 
al-Rabiah traveled to Tora Bora and began telling 
senior al-Qaeda leaders how they should organize 
their supplies in a six square mile mountain 
complex that he had never previously seen and 
that was occupied by people whom he had never 
met, while at the same time acting as a supply 
logistician and mediator of disputes that arose 
among various fighting factions.

It remained only for Judge Kollar-Kotelly to 
replay some of the more obvious discrepancies in 
al-Rabiah’s “confessions” to demolish the 
government’s claims that they should be accepted 
as “reliable and credible,” and to refute the 
government’s argument that, “even if al-Rabiah’s 
confessions in 2003 were the product of abuse or 
 the taint 
 would have dissipated” by 
the time of his CSRT in 2004, when he provided 
the painstakingly detailed and superficially 
plausible false confession that was the only 
publicly available account of his activities 
until Judge Kollar-Kotelly’s ruling was released.

Taking exception to the government’s argument 
“for both factual and legal reasons,” the judge 
took particular note of the role played by 
al-Rabiah’s lead interrogator, “who extracted 
al-Rabiah’s confessions and punished his 
recantations,” noting that he “continued to make 
‘appearances’ at al-Rabiah’s interrogations at 
least as late as [redacted] -- after al-Rabiah’s 
testimony in his CSRT proceedings.” She also 
explained, “Such ‘appearances’ appear to have 
been terrifying events for al-Rabiah given the 
description included in a [redacted] 
interrogation report” (the details of which were, again, redacted).

On a legal basis, she dismissed the government’s 
argument by explaining that, although “it is 
certainly true in the criminal context that 
coerced confessions do not necessarily render 
subsequent confessions inadmissible because the 
coercion can be found to have dissipated,” there 
needs to be evidence of “a ‘clean break’ between 
the coercion and the later confessions,” which is 
simply not available in al-Rabiah’s case. “If 
anything,” she concluded, “the evidence suggests 
that there was not a ‘clean break’ between the 
coercion and his later statements because there 
is evidence that [redacted] continued to appear 
at al-Rabiah’s interrogation sessions through at 
least September 2004” (the date redacted in the paragraph above).

As a final stab at the government, she mentioned 
a statement made by al-Rabiah in May 2005, and 
submitted to his first annual Administrative 
Review Board (the military panels that reviewed 
the bases for prisoners’ ongoing detention), 
which had not surfaced until the Merits Hearing, 
in which al-Rabiah attempted to set the record 
straight, “recant[ing] all of his previous 
confessions with the sole exception of one 
admission that he saw [but did not meet] Osama 
bin Laden during his July 2001 trip to Afghanistan.”

After dealing with a few more ingenious but 
flawed claims by the government, it remained only 
for Judge Kollar-Kotelly to recap the whole sorry 
saga, and to deliver the final words to restore Fouad al-Rabiah’s liberty:

During the merits Hearing, the Government 
expressly relied on “Occam’s Razor,” a scientific 
and philosophic rule suggesting that the simplest 
of competing explanations is preferred to the 
more complex 
 The Government’s simple 
explanation for the evidence in this case is that 
al-Rabiah made confessions that the Court should 
accept as true. The simple response is that the 
Court does not accept confessions that even the 
Government’s own interrogators did not believe. 
The writ of habeas corpus shall issue.

Final words

Judge Kollar-Kotelly’s ruling will, hopefully, be 
recalled in years to come as one of the most 
significant examples of a judge attempting to 
redress some of the most egregious injustices 
perpetrated in Guantánamo’s long, dark history. 
The shocking sub-text to this story is that 
al-Rabiah is not the only prisoner to have been 
brutalized into making false confessions, and 
then being required to repeat them. Ahmed 
al-Darbi, a Saudi 
forward for a trial by Military Commission, made 
similar claims in a statement posted 
and, as I mentioned above, it is also clear that 
SERE-derived “enhanced interrogation techniques” 
were applied to at least 100 prisoners in 
Guantánamo between 2002 and 2004, above and 
beyond those like 
al-Qahtani and 
Ould Slahi, whose stories are well-known. Many of 
these men -- all the Europeans, other Arabs who 
had the misfortune to speak good English or to 
have visited the United States -- have been 
released, their false confessions (like those 
made by the “Tipton Three” after months of abuse, 
before their lawyers proved one of them was 
working in a shop in England when he was 
supposedly videotaped at a training camp) filed 
away, used to justify their lifelong label as 
“enemy combatants,” but not leading, as with 
Fouad al-Rabiah, to a court appearance where the 
supposed evidence will ever be tested.

Al-Rabiah was fortunate to meet a judge with an 
inquiring and diligent mind, and an acute 
awareness of the many problems with the gathering 
and interpretation of information at Guantánamo, 
but others have not yet had an opportunity to do 
the same, and although further habeas petitions 
are forthcoming, and others are scheduled to face 
either trials by Military Commission or federal 
court trials, where similar patterns of false 
allegations followed by torture and false 
confessions may be detected, it troubles me that 
50 or so prisoners identified by officials last 
week as being candidates for indefinite detention 
-- described by the 
York Times as those who “are a continuing danger 
to national security but who cannot be brought to 
trial for various reasons, like evidence tainted 
by harsh interrogations” -- may also have been 
caught up in a cynical cycle of false 
allegations, torture and false confessions.

As David Cynamon, one of Fouad al-Rabiah’s 
attorneys, explained to me in an email exchange:

To date, the debate about torture in the U.S. has 
been skewed by the fact that the admitted victims 
of torture are also admitted al-Qaeda leaders, 
Sheikh Mohammed. This gives the Cheneys and Wall 
Street Journal types the argument that torture 
was justified to get valuable information from 
these hardened terrorists. I know this argument 
is wrong, but it's being made, with some effect. 
But what happens when you 
the Geneva Conventions “quaint,” and lift all 
limits, is that pretty quickly the abusive 
interrogation techniques are not being limited to 
the KSMs but are being applied to innocent 
prisoners like Fouad al-Rabiah, who have no 
valuable intelligence because they have no 
connection with al-Qaeda or the Taliban. Instead, 
they are tortured in support of a cynical and 
misguided dictum that there can be no innocent men in Guantánamo.

It is hard to believe that the U.S. could ever 
have sunk so low. And that the new Administration 
is keeping us down there. The Obama Department of 
Justice, with Attorney General Holder piously 
proclaiming that this Administration repudiates 
torture, and follows the rule of law, in fact is 
following the Bush playbook to the letter. In 
this case, the DoJ defended the abusive and 
coercive interrogation techniques used against 
Fouad. Thank God, though, that we have an 
independent judiciary. The importance of the writ 
of habeas corpus and independent judges has never been more clear.

Andy Worthington is a British journalist and 
historian, and the author of 
Guantánamo Files: The Stories of the 774 
Detainees in America's Illegal Prison' (published 
by Pluto Press). Visit his website at: 
He can be reached at: 
<mailto:andy at andyworthington.co.uk>andy at andyworthington.co.uk

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