Tina M. Foster, founder and executive director of the International Justice Network.
Washington Post, Friday December 12, 2014 22.08 EST
An entire section of the Senate Intelligence Committee’s executive summary of the CIA torture report focuses on the sadistic abuse of one of my clients. The excerpt, titled “CIA Headquarters Recommends That Untrained Interrogators in Country . . . Use the CIA’s Enhanced Interrogation Techniques on [Redha al-Najar],” contains detailed descriptions of the specific methods of torture my client was subjected to while in CIA custody.
Al-Najar, a Tunisian citizen, has been detained without charge for the past 12 years. Though the U.S. government has never allowed my co-counsel and I to communicate with our client, our own investigation of his case revealed that in 2002, unknown agents broke into his home in Pakistan, seized him in front of his family and “disappeared” him.
Al-Najar’s family had no idea what had become of him until they received a letter from him delivered by the Red Cross in 2003. It was not until five years later that the family learned that our organization was providing legal assistance to detainees and asked us to file a case for him. By the time we filed a petition for writ of habeas corpus on his behalf in 2008, al-Najar had already spent five years in U.S. custody — first at black sites, then eventually at Bagram air base in Afghanistan. Though we strongly believed at the time that he had been secretly detained and tortured by the CIA prior to being transferred to military custody, the U.S. government declined to provide this information. The Senate Intelligence Committee’s report confirms what we have suspected all along.
The Senate report reveals that al-Najar was tortured by the CIA for nearly 700 days. He was subjected to a laundry list of “enhanced interrogation techniques.” These included isolation in total darkness, sound disorientation techniques, sense of time deprivation, limited light, cold temperatures, sleep deprivation, blaring loud music for 24 hours a day, bad food, and humiliation and degradation such as being made to wear a diaper and having no access to toilet facilities, hooding and shackling. The report describes how interrogators used “hanging” to try to get information from him. Despite the fact that the CIA represented to the Office of Legal Counsel that it did not shackle detainees in this way for more than two hours, the report states that interrogators handcuffed al-Najar’s hands above his head for 22 hours a day.
For those of us who have represented detainees at Guantanamo, Bagram and other notorious prisons, the use of illegal and inhumane interrogation techniques on our clients was unsurprising. But a chilling revelation of the report is that the CIA itself never suspected al-Najar of being involved in terrorist activity, or even having information about terrorist activity. The portions of the Senate report that have been declassified suggest that the CIA believed he may have worked for Osama Bin Laden in the past as a “caretaker” or “bodyguard.”
Citing the classified portions of the report dealing with al-Najar’s case, the report states that some CIA detainees “were never suspected of having information on, or a role in, terrorist plotting and were suspected only of having information on the location of [Osama Bin Laden] or other [al-Qaeda] figures.” In other words, the CIA knew that al-Najar was no terrorist. It tortured him mericilessly anyway.
After nearly two months of untrained interrogators using “enhanced interrogation techniques” on al-Najar, they described him as being reduced to “clearly a broken man” who was “on the verge of a complete breakdown.” According to these interrogators, al-Najar was willing to do whatever the CIA asked. My co-counsel and I are now in the unenviable position of confirming these facts to al-Najar’s family.
The revelations in the report will not end al-Najar’s 12-year nightmare. In 2008, we filed a habeas corpus petition on al-Najar’s behalf in U.S. federal court, arguing that there was no legal basis for his detention by the U.S. government and seeking his release. The government has never responded to our allegations that they detained and tortured an innocent man. Instead, they have argued that U.S. courts have no jurisdiction over Bagram because it is in a war zone. This remains their position despite the fact that al-Najar was not captured in Afghanistan, but forcibly brought there against his will. Since 2004, we have litigated the issue of whether the U.S. courts have jurisdiction over the habeas petitions of Bagram prisoners. So far, the courts have declined to intervene. Thus, the government successfully created a “legal black hole” at Bagram where it could detain al-Najar and others without having to justify his detention and treatment in a court of law.
The Senate report now provides conclusive proof that al-Najar’s allegations of illegal detention and torture by the CIA are true. Unfortunately, we do not expect that this will result in justice for al-Najar. On Wednesday, I received word from the government’s attorneys that they had transferred al-Najar to the custody of the Afghan government the day before — the same day the Senate report was published. By Wednesday night, the Defense Department had announced that it was no longer holding anyone at Bagram and it had closed the prison. Presumably, they will now argue that al-Najar’s case is no longer their problem.
Aside from the factual details of my clients’ interrogations by the CIA, the Senate report also sheds light on why the government has refused to let al-Najar speak with me or any attorney, and has fought so hard to prevent him from having his day in court even after all these years. If a U.S. court were ever to review his case, it would be the government, rather than my client, that would have to defend its illegal actions.