'Imagine the Worst Possible Scenario': Why a Guantanamo Prosecutor Withdrew From the Case

Three days later, Mr. X informed Slahi that his family in Mauritania had been "incarcerated." Later, Slahi was told that his mother and brother were taken from Mauritania. Placed aboard a cargo plane, they wept during the flight.

On August 2, 2003, the White House adviser on detainee operations, a Navy officer named Captain Collins, arrived. Collins was a busy man, and minced few words. The United States had taken custody of Slahi's family. Things looked particularly bleak for his mother, who might well be transferred to Guantanamo. Camp Delta was stuffed with desperate men who hadn't seen a woman in years. Unfortunately, the United States couldn't guarantee her safety. How would Slahi feel if his mother was gang-raped? If that happened, Collins said, it would be Slahi's fault.

"Slahi had a special link to his mother, and that was used on him," a person familiar with the interrogation explained.

Captain Collins offered Slahi a way out.

"You can be part of the solution or you can be part of the problem," he said. "We are two men here in this room. We can stop the killing and make the world a better place."

After planting that seed of hope, the pressure was increased. An August 2, 2003, memorandum relates that the interrogator returned to Slahi's cell with a message.

The interrogator told Slahi to imagine "the worst possible scenario he could end up in." Surely, "beatings and physical pain are not the worst thing in the world," the interrogator said. Instead, he urged, just focus on "what scares [you] more than anything else."

On August 24, 2003, the plan called for military police in riot gear, accompanied by German shepherds, to hood Slahi, drag him from his cell, and trick Slahi into thinking he had been taken from Guantanamo to some place far worse.

When the plan was executed, Slahi was taken to a boat, in blacked-out goggles and shackles, and was beaten. Groaning in pain, he could hear discussions, in Arabic, about his fate. He was to be killed, his body dumped overboard. He urinated in his pants.

Instead, the boat made landfall and Slahi was pulled ashore. "I was moaning and I recognized a voice, and he was talking to two Arab guys," Slahi later said. "They told him in Arabic that they were there to torture me." Soon "they were hitting me all over. They put ice in my shirt until it would melt," he said. Next a doctor came in, but he "was not a regular doctor, he was a part of the team. He was cursing me and telling me very bad things," Slahi said. "He gave me a lot of medication to make me sleep."

The sensory manipulation apparently worked. "Slahi told me he is 'hearing voices' now," an interrogator wrote in an email to Lieutenant Colonel Diane Zierhoffer, an Army psychologist on the special projects team. "He is worried as he knows this is not normal . . . By the way . . . is this something that happens to people who have little external stimulus such as daylight, human interaction etc.???? Seems a little creepy," the interrogator wrote.

"Sensory deprivation can cause hallucinations, usually visual rather than auditory, but you never know," Zierhoffer responded. "In the dark you create things out of what little you have."

Slahi asked to see Captain Collins. The "detainee had made an important decision," interrogation records said. He "was not willing to continue to protect others to the detriment of himself and his family."

"After he broke, he gushed, he told us more than we could process," said a person familiar with the interrogations. "He wrote and wrote, he did homework every night. We gave him a computer, and he immediately wrote a long autobiography. Then he began to map out the structure of al Qaeda — each name with a hyperlink, showing who else he knew."

***

It would be months before Stu Couch got a fuller picture of the Slahi interrogation. But as he began to piece together the facts, he became increasingly alarmed. Each detail suggested a sustained, systematic regime of physical and psychological coercion that undermined the reliability of everything Slahi said. The trial could end up being more about what the government did to Slahi than what he did for al Qaeda.

Couch was convinced that Slahi had spent years organizing the Qaeda network in Europe, culminating with recruitment of the Hamburg cell that supplied hijackers for 9/11. If any detainee deserved the death penalty, it was Slahi.

Yet Couch hesitated. He ruminated for weeks. Was the United States justified in beating Slahi, in subjecting him to isolation, sensory deprivation, temperature extremes, and sexual humiliation? Was it justified in constructing elaborate scenarios that literally put the fear of death in him, convincing him that he was about to be killed?

One threat, Couch believed, was the worst of all: To have his mother raped.

"Military guys are real big about their mommas," Couch said. And few more than Stu Couch. "Other than my wife, my mom is my best friend," he said. "That's just who I am."

Couch wondered if he could prosecute Slahi at all.

He would lie awake for hours almost every night. During the 10-hour workdays at commissions, dark circles under Couch's eyes exaggerated his hangdog look.

One Sunday, as usual, Couch drove his family to church. He was distracted as the service unfolded, possessed by the Slahi case. He mechanically obeyed when the minister called on worshippers to stand.

"Will you seek and serve Christ in all persons, loving your neighbor as yourself ?"

"I will, with God's help," came the echo. All persons. That included Osama bin Laden. And Mohamedou Ould Slahi.

"Will you strive for justice and peace among all people, and respect the dignity of every human being?" Every human being.

He was surrounded by people, but suddenly Couch felt very, very small. It was as if he stood alone in a dark, cavernous hall, a bright, single shaft of light illuminating him, unseen persons, or powers, awaiting his answer.

"I will," he said. "With God's help."

After the service, he told his wife, Kim, of the threat to rape the prisoner's mother. It was the linchpin to the prisoner's cooperation, the foundation of the entire case.

He told Kim he would have to drop a case. A 9/11 case. "I hate to say it," he said, "but being a Christian is gonna trump being an American."

Colonel Bob Swann, a military judge at Kentucky's Fort Campbell, had been at Crystal City for three days when Couch went to see him about Detainee 760, Mohamedou Ould Slahi.

Couch sketched out the Slahi case and its many problems. He had determined that Slahi's treatment was torture, and Article 15 of the Convention Against Torture prohibited using his statements. Couch said he had reflected deeply on this troubling situation before reaching the conclusion: He could not bring charges.

Swann's small eyes bore in on him, angry and impatient.

"What makes you think you're so much better than the rest of us around here?" he said.

"That's not the issue at all! That's not the point!" Couch said, slamming his hand on Swann's desk." Swann grunted, and made a dismissive gesture with his hand. Commissions staff would grow familiar with it; they called it "the wave." It indicated the discussion wasn't worth his time.

"Gimme the stuff and I'll give it to someone else," Swann said. "Fine," Couch said. He turned to leave. Later, Swann made his thinking clear. "I don't want to hear anything else about international law," he told a staff meeting.

A week later, Couch sent Swann a memorandum. "Due to legal, ethical, and moral issues arising from past interrogations of this detainee, I refuse to be associated with any further prosecution efforts against him," it said. "As a legal matter, I am of the opinion these techniques violate provisions of the 1984 United Nations Convention Against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment, and any statements produced by them should be excluded as evidence against this detainee pursuant to Article 15 of the Convention. If these techniques are deemed to be 'torture' under the Convention, then they would also constitute criminal violations of the War Crimes Act, 18 U.S. C. §2441."

In other words, the interrogators should be prosecuted. Couch continued:

"As an ethical matter, I opine that the interrogation techniques utilized with this detainee are discoverable by defense counsel, as they relate to the credibility of any statements given by him. As discoverable material, I have an ethical duty to disclose such material to the defense.

"As a practical matter, I am morally opposed to the interrogation techniques employed with this detainee and for that reason alone, refuse to participate in his prosecution in any manner."


This post is adapted from The Terror Courts: Rough Justice at Guantanamo Bay.

Presented by

Jess Bravin is the Wall Street Journal's Supreme Court correspondent and the author of The Terror Courts: Rough Justice at Guantanamo Bay.

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