A Legacy Of Torture Is Preventing Trials At Guantánamo

Editor's note: This story includes graphic descriptions of torture techniques.

The new movie The Report — which comes out Friday and tells the true story of a U.S. Senate staffer who doggedly investigated the CIA's use of torture after the Sept. 11, 2001, terrorist attacks — is a look back on a controversial part of our country's past. But the CIA's torture program continues to have huge implications at the U.S. military court and prison in Guantánamo Bay, Cuba, where 40 accused terrorists are still being held.

If you travel to Guantánamo, interview attorneys for its prisoners, read its military court transcripts, and review unclassified government documents, this becomes clear: Torture is a major reason there has still been no trial — and may never be one — for alleged Sept. 11 mastermind Khalid Sheikh Mohammed and other Guantánamo prisoners.

It's an impediment to trial partly because evidence obtained through torture is rarely admissible in court, potentially weakening prosecution efforts. In addition, information that remains secret, such as the identities of the torturers, could become public at trial, and "the CIA absolutely does not want that to happen," said Rick Kammen, the former lead defense attorney for Abd al-Rahim al-Nashiri, who is charged with orchestrating the October 2000 USS Cole naval warship bombing and has been held at Guantánamo for 13 years.

The prisoner abuse detailed in the Senate Intelligence Committee's 2014 report on the CIA's torture program "probably represents 30% of the reality," said Kammen, whose role representing a detainee gave him access to some still-classified details. "The reality is far more brutal and far worse than what is known to the public.

"As a criminal defense lawyer, I thought my ability to be shocked was pretty high," he added, "and yet some of the things I've seen and read are genuinely breathtaking and horrifying."

When the United States captured the people it believed were responsible for Sept. 11, it put them in an overseas network of secret CIA prisons called black sites, where for years they were subjected to "enhanced interrogation techniques," a euphemism for torture.

Those techniques included mock burials; aggressive body cavity searches; waterboarding, which simulates drowning; and "walling," in which prisoners were slammed against walls, a move their lawyers allege sometimes left them with traumatic brain injuries.

The CIA claims that by torturing prisoners, it extracted information from them that helped capture other terrorists, stop future attacks and ultimately save lives. The Senate torture report concluded that was not true and that torturing prisoners yielded no helpful new information. Torture was not only immoral and illegal but ineffective, according to the report.

The CIA's torture program was shut down by an executive order signed by President Barack Obama in January 2009, but the physical legacy of torture is on display in Guantánamo's courtroom.

Mustafa al-Hawsawi, who is accused of financing the Sept. 11 hijackers and has been held at Guantánamo for 13 years, was subjected at the black sites to what the CIA called "rectal rehydrations," in which a tube is inserted into the anus. CIA documents say his captors used the largest tube they had for those procedures, conducted them with "excessive force," and considered them "a means of behavior control."

CIA records show that Hawsawi was later diagnosed with rectal prolapse, an anal fissure and chronic hemorrhoids, even though an unclassified government document reports that he previously had "no sigificant medical problems."

He now sits on a pillow when he appears in court. That's because, according to his lead defense attorney, Walter Ruiz, he suffered permanent injuries at the black sites that still cause pain and bleeding a decade later. Guantánamo medical officials have not addressed publicly whether Hawsawi's health problems are related to his torture, but they have acknowledged that they tried to ease his discomfort by performing hemorrhoid surgery on him.

Ruiz describes the rectal rehydrations as "an unnecessary medical procedure" that amounted to sodomy, adding that "for them to say that it was a simple case of hemorrhoids is an absolute disgrace."

Hawsawi's physical condition has consumed hours of debate in Guantánamo's military courtroom, and it's an example of why the Sept. 11 case has proved so difficult to get to trial.

"The fact of torture is at the heart of what's delaying these trials," said Terry Rockefeller, whose only sibling, her younger sister, Laura, died at age 41 in the World Trade Center attacks.

"For the people who think the torture is in the past, they don't realize that it's coming up over and over and over again," said Rockefeller, who has made six trips to Guantánamo to watch its military court proceedings. "They don't realize how alive the issue remains."

The torture inflicted on CIA prisoners has led to years of ongoing legal fights between Guantánamo prosecutors and defense attorneys. Among the issues being debated: what evidence is admissible, what information should be classified, whether prisoners are receiving proper medical care, and whether they're entitled to more lenient sentences because they were tortured.

"If there is one feature of Guantánamo that probably can't be repeated enough, because I think it is the original sin that creates all these problems, [it] is the use of torture," said Michel Paradis, a defense attorney for Nashiri, the USS Cole bombing suspect.

"All this dysfunction, why this 9/11 case, for example, has taken all this time — the vast majority of issues that come up are in one way or another tied to the fact that they were tortured in secret for four years," Paradis added. "It just contaminates everything."

The legacy of torture has also added to the massive cost of Guantánamo's court and prison: $6 billion since 2002, despite only one finalized conviction so far. That amount includes tens of millions of dollars in annual legal expenses, including defense experts who specialize in aspects of torture ranging from how it influences false confessions to how it affects memory.

Retired Air Force Col. Gary Brown, a former top attorney for Guantánamo's military court, doubts military court trials will happen since so much evidence is tainted by torture, and he says Guantánamo has been a failure at all but one thing: "They've been successful at doing something that I would have thought never could have been done," said Brown, who has filed a federal whistleblower complaint alleging "gross financial waste" and "gross mismanagement" at Guantánamo, "and that is generating more sympathy for the detainees, and they've really turned the detainees into martyrs and victims."

Earlier this year, a new military court judge set a trial date of January 2021 for the Sept. 11 defendants, saying he is determined to finally resolve the case. But defense attorneys for the prisoners say that date is wishful at best since, nearly 20 years after the attacks, the aftermath of the CIA's torture program — and its impact on Guantánamo's legal process — continue to play out.

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