Guantanamo Trial Will Grapple With Definition Of Torture

Feb 8, 2020
Originally published on February 8, 2020 5:40 pm
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MICHEL MARTIN, HOST:

Now we want to turn to one of this country's longest-running legal sagas - the effort to prosecute the men accused of helping carry out the Sept. 11, 2001 terrorist attacks. For most of the past decades, that effort has gone nowhere. But now the process is accelerating. That's because the judge in the Sept. 11 case wants a trial to begin next January at the U.S. military court in Guantanamo Bay, Cuba, where the men are imprisoned. For that to happen, he first has to make an important decision on whether the CIA's treatment of them amounted to torture.

Sacha Pfeiffer of NPR's investigations team has traveled to Guantanamo and is with us now to talk about the possible consequences of that ruling. And before we begin, we need to note here that some listeners may find the subject matter in this next conversation disturbing.

With that being said, Sacha Pfeiffer, thanks so much for joining us.

SACHA PFEIFFER, BYLINE: Thanks for having me.

MARTIN: So the question of whether these so-called high-value detainees were tortured has been around for a very long time. I mean, this was something the Obama administration grappled with. Why is it still being debated in this case?

PFEIFFER: Right. And the CIA does not deny what it did to these prisoners. It held them for years at a network of secret overseas prisons called black sites. It waterboarded them. It slammed them into walls. It put them in painful stress positions that risked dislocating their knees and shoulders.

But the CIA doesn't like to call that torture. It calls it coercive physical pressure or enhanced interrogation techniques - methods meant to get prisoners to talk. The CIA says that after Sept. 11, it was afraid another massive attack was coming, and it had to do everything possible to stop that, including methods that many people now say was clearly torture.

MARTIN: So now the judge in the Sept. 11 case will be weighing in on that.

PFEIFFER: Yes. He's an Air Force colonel named Shane Cohen, and he will be determining whether what these prisoners were subjected to meets the definition of torture or of cruel, inhuman or degrading treatment.

After Sept. 11, you remember that George W. Bush authorized these techniques, and he said these prisoners are not protected by the Geneva Conventions. Those are the international laws that prohibit torture. But Judge Cohen said even though the president, the Justice Department and the attorney general approve these interrogation methods, he might decide they were illegal.

MARTIN: What happens if he decides that these methods qualify as torture?

PFEIFFER: The most dramatic outcome would be that he rules the United States engaged in what's called outrageous government conduct by torturing these men, and he could dismiss the whole case. That's a long shot. He could also rule that because these men were tortured, they cannot be punished with the death penalty, and at most, they can get life in prison. Or, most likely, he could throw out evidence the prisoners provided, and that could make them impossible to convict.

MARTIN: You've made several trips to Guantanamo now, and you've heard a lot of testimony there about torture. Could you just talk a little bit about that? And here again I want to remind people that this may be disturbing to some to hear.

PFEIFFER: Right. I recently got back from watching part of a pretrial hearing where two witnesses were on the stand, James Mitchell and Bruce Jessen. They are Air Force retirees who had a company paid $81 million by the U.S. government to develop what's widely called the CIA's torture program. They said their techniques weren't meant to hurt people - just cause discomfort.

Now, the media is not allowed to record military court proceedings, but I do have audio of depositions they gave as part of a lawsuit against them. And I want to play excerpts from those because they're similar to what they said at Guantanamo. So here's a portion of Jim Mitchell's deposition where he's asked by a lawyer if waterboarding was painful.

(SOUNDBITE OF ARCHIVED RECORDING)

JAMES MITCHELL: No. I thought it could be done safely. I thought he would be uncomfortable. It sucks, you know. It's - I don't know that it's painful.

UNIDENTIFIED ATTORNEY: I saw an interview...

MITCHELL: It's distressing.

UNIDENTIFIED ATTORNEY: I saw an interview with - as between somebody breaking their leg and somebody being waterboarded, most people would choose to have their leg broken. You remember saying that in an interview?

MITCHELL: No.

PFEIFFER: Now, at that point, the recording gets hard to hear. But after Mitchell says no, the lawyer plays tape of Mitchell saying that people, quote, "probably would prefer to break their legs because it's less distressing." And here's how Mitchell responds to hearing himself say that.

(SOUNDBITE OF ARCHIVED RECORDING)

MITCHELL: OK. Now you're using the word painful. I'm using the word distressing.

UNIDENTIFIED ATTORNEY: OK.

MITCHELL: Two things are not synonymous in my mind.

MARTIN: So he's downplaying what the prisoners were subjected to.

PFEIFFER: Yes. And I also want to play a deposition excerpt where Bruce Jessen very matter-of-factly describes a sleep deprivation method used on prisoners that involves a tether anchored to a prison cell ceiling.

(SOUNDBITE OF ARCHIVED RECORDING)

BRUCE JESSEN: The detainee has handcuffs, and they're attached to the tether in a way that they can't lie down or rest against the wall. They're monitored to make sure they don't get edema if they hang on the cuffs too much.

PFEIFFER: Now, when he says edema, he's talking about fluid buildup. One Guantanamo defense attorney said in court that her client was put in a sleep deprivation position that caused his ankle to swell to a circumference of more than 10 inches. Mitchell's response was that was just temporary swelling.

MARTIN: Is that a difference that matters - whether the prisoners suffered temporary damage or permanent damage?

PFEIFFER: Mitchell and Jessen, at least, made that distinction. They said if their techniques were used correctly, there should have been no long-term harm. They seemed to be trying to make the case that the torture had no lasting effect, so it shouldn't have any impact on the Sept. 11 legal case.

But defense attorneys say the Sept. 11 defendants have a whole array of psychological and physical and mental problems from their captivity. And CIA documents show some prisoners did develop psychological problems due to how they were treated. But as Jessen testified - and this is a quote - he said, "a detainee could stop interrogation at any time. All they had to do was cooperate."

MARTIN: But, Sacha, isn't that true only if the person being interrogated actually has information to offer, is actually the right person, is actually a person with information that is relevant?

PFEIFFER: Yes, that's true. I've asked many people about that, and there still seems to be some debate about whether the detainees now at Sept. 11 are really the worst of the worst or maybe people that accidentally got rounded up. And again, you can only stop the interrogation if you start talking, but you have to know something to talk. So the debate is, did they sometimes say things just to stop the torture even if they may not have been true?

MARTIN: That is Sacha Pfeiffer of NPR's investigations team. Sacha, thank you.

PFEIFFER: Thanks for having me.

(SOUNDBITE OF EMANCIPATOR'S "NEVERGREEN") Transcript provided by NPR, Copyright NPR.