Mohamedou Slahi’s release highlights failure of enhanced interrogation policy

By Daphne Eviatar
Crossposted from Jurist

There may be no better example of why so-called “enhanced interrogation techniques” are a bad idea than the case of Mohamedou Ould Slahi, who a judge on Monday ordered released after seven years in US custody.

Prosecutors once insisted that Slahi was “the highest value detainee at Guantanamo Bay,” a key al-Qaeda leader involved in plotting the 9/11 terrorist attacks and deserving of the death penalty.

Critics are already chiding the federal court judge for granting Slahi’s petition for habeas corpus and using it to argue the merits of military commissions rather than civilian trials for suspected terrorists.

But the government had already tried and failed to prosecute Slahi in a military commission for what’s likely the same reason Judge Robinson ordered him freed: Slahi was tortured in US custody.

US District Judge James Robinson’s order was filed under seal and an unclassified version is not yet available. But Slahi’s lawyers argued to the court that his torture tainted his confession. The judge appears to have determined that any other evidence against him was equally unreliable or insufficient.

Lt. Col. Stuart Couch, the military commission prosecutor assigned to Slahi’s case, came to exactly that conclusion six years ago. Reviewing the classified evidence in the case, Couch concluded that Slahi, who turned himself in for questioning in Mauritania before being transferred to Jordan, Afghanistan and finally Guantanamo Bay, had been mentally and physically tortured in order to induce a confession. In addition to threatening Slahi’s life, Couch said in an interview last year, US interrogators threatened to bring his mother to the Guantanamo Bay prison camp, where, they implied, she would be gang-raped. To Couch, “that was just over the top. For lack of a better term, that’s just un-American.”

Couch resigned from the case in protest.

Setting aside any moral concerns about treating a suspect this way, the problem with confessions elicited by torture is that, as top interrogators and intelligence officials have concluded repeatedly, they’re simply unreliable.

David Boren, the former Senator from Oklahoma, has said that after receiving a classified briefing from CIA director Michael Hayden on the agency’s “enhanced” tactics, “I left the briefing by General Hayden completely unconvinced that the use of torture is an effective means of interrogation…Those who are being tortured will say anything.”

As Lt. Col. Couch, Slahi’s would-be prosecutor, said in an interview last year: “If these techniques are being used to get evidence here at Guantanamo, then we have a problem with the evidence in some of our cases.”

That problem has now come to a head. More than 180 detainees remain imprisoned at Guantanamo Bay without charge, many after having been incarcerated for more than seven years. In 34 of 45 cases, independent federal judges, some of whom were appointed by President George W. Bush, have determined that the government lacks sufficient evidence to justify continuing to imprison the men. At least one other military commission case – the case of Mohammed al-Qatani – had to be dropped altogether because the suspect had been tortured. In another case, the suspect’s statements were all suppressed for the same reason. His petition for release was granted.

Some will argue that these judicial rulings, by both civilian and military judges, are the reason the United States needs to pass a new law authorizing indefinite detention of terrorist suspects without charge or trial.

Couch would disagree. What he learned from the Slahi case, he says, is that “we cannot compromise our respect for the dignity of every human being…It’s a slippery slope if in the name of national security we decide to compromise that.””

If we compromise that,” he continued, “then Al Qaeda has been able to effect much more of an impact on this country than it has by driving a couple of airplanes into the World Trade Center or by crashing one into the Pentagon. Because they’ve torn at the very fabric of who we are as Americans.”


Published on March 25, 2010


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