Analysis: Critique of detainee confessions

By Lyle Denniston
on Sep 26, 2009 at 9:23 am

Analysis

Of the 38 decisions so far by federal judges implementing the Supreme Court’s mandate in Boumediene v. Bush to test the legality of Guantanamo Bay detentions, the most critical assessment of government evidence has just emerged, in Al Rabiah v. U.S. (District Court docket 02-828).  Decided on Sept. 17, but just released Friday in an unclassified version, the 65-page ruling by Judge Colleen Kollar-Kotelly is measured in tone but sweeping in impact.  Despite heavy deletions, blacking out many details, what remains is a withering denunciation of military and intelligence data.  (The opinion can be read here.)

Fully half of the document consists of a detailed examination of a series of confessions given by the detainee, a Kuwaiti national named Fouad Mahmoud Al Rabiah, with the judge ultimately concluding that the government interrogators themselves decided that the admissions were not to be believed.  “Al Rabiah’s interrogators ultimately extracted confessions from him, but they never believed his confessions,” the opinion noted.

Kollar-Kotelly summed up:  “Far from providing the Court with credible and reliable evidenced as the basis for Al Rabiah’s continued detention, the Government asks this Court to simply accept the same confessions that the Government’s own interrogators did not credit, and to ignore the assessment of [a government intelligence analyst at Guantanamo “that Al Rabiah should not have been detained”].

Although at one point in the case, the government relied upon the statements made by four other Guantanamo detainees accusing Al Rabiah of links to Al Qaeda, the judge noted that the government had largely ceased to rely on those and “now relies almost exclusively on Al Rabiah’s ‘confessions.’ “  And the judge found, on her own, that none of the four detainee “eyewitnesses” was credible.

The government’s case for continued detention of Al Rabiah, the judge said, rested primarily on claims that he traveled to Afghanistan from his home in Kuwait in 2001 and met with Osama Bin Laden four times, that he fought in the Tora Bora mountains (site of a Bin Laden complex), and that he had personal links to Al Qaeda members while in Afghanistan.  The judge found that none of those claims was supported adequately by confessions, eyewitness accounts, or any other evidence.

Judge Kollar-Kotelly found some support in the case for claims by Al Rabiah and by his lawyers that his confessions were the result of coercion or harsh interrogation techniques, including warnings that he could never return to Kuwait if he did not confess, and that no one would ever leave Guantanamo Bay if they had not confessed to some link to terrorism.

 As the judge evaluated the contents of Al Rabiah’s admissions, she concluded that they amounted to no more than allegations that his interrogators told him about, then coerced him into confessing, and then, in submitting their reports, the questioners themselves stated that the admissions were not supported.  In fact, she noted, “Al Rabiah’s interrogators began to question the truthfulness of his confessions almost immediately.”

She added: “Even beyond the countless inconsistencies associated with his confessions that interrogators identified throughout his years of detention, the confessions are also entirely incredible….The Court is unwilling to credit confessions that the Government cannot evendefend as believable.”   The judge said that government lawyers had attempted to pick and choose among the alleged facts to which Al Rabiah confessed, “in order for the evidence in this case to even make sense.”  (She put that quoted comment in italics for emphasis.)

The opinion is replete with criticisms not only of the substance of the government’s evidence, but with implied criticism of Justice Department lawyers for relying on their claims.  She ticked off five separate legal arguments that those attorneys had made in trying to convince the judge to accept the confessions “as reliable and credible evidence,” and she rejected all five in turn.  “None is persuasive,” she concluded.

In the end, she summed up: “The Government’s simple explanation for the evidence in this case is that Al Rabiah made confessions that the Court should accept as true.  The simple response is that theCourt does not accept confessions that even the Government’s own interrogators did not believe.  The writ of habeas corpus shall issue.”