The Justice Department has told the D.C. Circuit Court that it has no power to rule that a Guantanamo Bay detainee has been illegally tortured or otherwise coerced into making statements that may have been used to keep him imprisoned. If the Circuit Court finds that any such evidence was considered by a military Combatant Status Review Tribunal in deciding whether to prolong captivity, its only option is to send the issue back to the Pentagon “for appropriate action” — perhaps a new CSRT proceeding.
CSRTs are the military panels that decide whether a detainee is an “enemy combatant.” If such a finding is made, the detainee must remain at Guantanamo until further review is made. Federal regulations governing CSRTs require them to determine whether any evidence obtained from the individual resulted from coercion.
Its argument against Circuit Court power to make formal declarations of illegal torture of detainees was a highlight of the government’s brief, filed Thursday, urging the Circuit Court to turn aside two new legal claims by Majid Khan, one of the so-called “high-value” detainees now being held at Guantanamo who had been held overseas in secret Central Intelligence Agency operations. Khan’s lawyers from the Center for Constitutional Rights, reacting to the disclosure that the CIA had destroyed videotapes of the aggressive interrogation techniques used on other terrorist suspects, had asked the Circuit Court to issue a formal declaration that he had been tortured illegally. They also sought a court order requiring the government not to destroy any evidence bearing on torture or other forms of illegal coercion of Khan, so that Khan’s lawyers might use such evidence in challenging the CSRT conclusion that he is an “enemy combatant” and thus must remain at Guantanamo.
The new brief along with its attachments can be found here.
Among the attachments was a copy of a Pentagon memo, dated Thursday, by the acting general counsel, Daniel J. Dell’Orto, notifying all levels of the Defense Department that they must preserve all documents and records relating to any prisoner ever held by the military at Guantanamo Bay. The directive also applies, the memo said, to any detainees who arrived at Guantanamo after August 2005 and “to any detainees who may arrive at Guantanamo in the future.”
The Justice Department cited that memo as one justification for its argument that there is no need for the Circuit Court to issue any evidence-preservation order in Khan’s case. The document also had attached a sworn statement by the CIA director, Michael V. Hayden, also dated Thursday, ordering the preservation of all documents, information and evidence relating toi any Guantanamo detainee, plus “any detainee held by the CIA”; it noted that the order “is a continuing obligation that applies to future as well as past and present deadlines.”
“The relevant agencies are taking concerted action and are firmly committed to retaining any evidence relating to the treatment of [Khan] while in CIA custody,” the new brief said.
Khan’s lawyers had argued that the CSRT that found him to be an “enemy combatant” had relied upon statements obtained from him while held by the CIA. The government brief disputed that, saying that the record of his CSRT proceeding, when produced for the Circuit Court, “will reveal that the CSRT was not presented with any statements made by [Khan], or any other detainees, while in CIA custody.”
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