Guantánamo Diary Read online

  The lead editorial in the New York Daily News on March 23, 2010, was titled “Keep the Cell Door Shut: Appeal a Judge’s Outrageous Ruling to Free 9/11 Thug.” The editorial began:

  It is shocking and true: a federal judge has ordered the release of Mohamedou Ould Slahi, one of the top recruiters for the 9/11 attacks—a man once deemed the highest-value detainee in Guantanamo.

  That ruling was Judge James Robertson’s then still-classified memorandum order granting Mohamedou’s habeas corpus petition—the petition Mohamedou handwrote in his Camp Echo cell five years before. Without access to that order or to the legal filings or court hearing that resulted in the order, the newspaper’s editorial board nevertheless conjectured that a judge was letting “a terrorist with the blood of 3,000 on his hands” go free, adding contortedly, “he possibly being a man whose guilt was certain but unprovable beyond a reasonable doubt thanks to squeamishness over evidence acquired under rough treatment.” Expressing confidence that Mohamedou was “squeezed appropriately hard after 9/11” and that his treatment made the country safer, the editors urged the Obama administration to appeal the order, adding, “What was the rush to release? The judge could have waited, should have waited, for the country to understand why this had to happen before exercising his legal authority.”14

  Two weeks later, the court released a declassified, redacted version of Judge Robertson’s order. A section of the opinion summarizing the government’s arguments for why Mohamedou must remain in Guantánamo included a footnote that might have surprised the newspaper’s readers:

  The government also argued at first that Salahi was also detainable under the “aided in 9/11” prong of the AUMF, but it has now abandoned that theory, acknowledging that Salahi probably did not even know about the 9/11 attacks.*15

  That certainly would make it a stretch to call Mohamedou a “9/11 thug.” It is also a stretch, by any measure, to call a judgment ordering a man freed nine years after he was taken into custody a “rush to release.” But there is a truth at the heart of that Daily News editorial—and much of the press coverage about Mohamedou’s case—and that truth is confusion. Nine years is now thirteen, and the country seems to be no closer to understanding the U.S. government’s case for holding Mohamedou than when Judge Robertson, the one judge who has thoroughly reviewed his case, ordered him released.

  This much seems clear from the available record: Mohamedou’s time in U.S. custody did not begin with allegations that he was a top 9/11 recruiter. When he was questioned by FBI agents on his return to Mauritania in February 2000, and again a few weeks after the 9/11 attacks, the focus was on the Millennium Plot. This appears to have been the case for his rendition to Jordan as well: “The Jordanians were investigating my part in the Millennium plot,” Mohamedou told the Administrative Review Board in 2005. “They told me they are especially concerned about the Millennium plot.”

  By the time the CIA delivered Mohamedou to Jordan, though, Ahmed Ressam had been cooperating for months with the Justice Department in the United States, and by the time the CIA retrieved Mohamedou eight months later, Ressam had testified in two terrorism trials and provided the names of more than 150 people involved in terrorism to the U.S. government and the governments of six other countries. Some of those people were Guantánamo detainees, and the U.S. government has used Ressam’s statements as evidence against them in their habeas cases. Not so with Mohamedou. Ressam “conspicuously fails to implicate Salahi,” Robertson noted in his habeas opinion.

  The CIA would have known this. The agency would also have known if the Jordanians had uncovered anything linking Mohamedou to the Millennium Plot, the September 11 attacks, or any other terrorist plots. But the CIA apparently never provided any information from his interrogation in Amman to Guantánamo prosecutors. In a 2012 interview with the Rule of Law Oral History Project at Columbia University, Lt. Col. Stuart Couch, the Marine prosecutor assigned to build a case against Mohamedou in Guantánamo, said that the CIA showed him no intelligence reports of its own, and most of the reports the agency did share with him came from Mohamedou’s Guantánamo interrogation. “He had been in their custody for six months. They knew I was the lead prosecutor. They knew we were contemplating a capital case. If we could have found his connection to 9/11, we were going to go for the death penalty.”

  “So something must have gone on,” Stuart Couch surmised in that interview. “Slahi was in the custody of the CIA, and they must have felt like they got as much information out of him as they could, or the information they had didn’t pan out to his significance, and they just kind of threw him over to U.S. military control at Bagram, Afghanistan.”16

  There is a chilling passage in the 2004 CIA inspector general’s investigation report Counterterrorism and Detention Interrogation Activities, September 2001–October 2003, one of only two unredacted passages in a four-page blacked-out section of the report headed “Endgame.” It says:

  The number of detainees in CIA custody is relatively small by comparison with those in military custody. Nevertheless, the Agency, like the military, has an interest in the disposition of detainees and a particular interest in those who, if not kept in isolation, would likely have divulged information about the circumstances of their detention.17

  In early 2002, not even Mohamedou’s family knew he was in Jordan. Few people anywhere knew that the United States was operating a rendition, detention, and interrogation program, and that it was doing so not just with the assistance of long-standing allies like the Jordanian intelligence service but also with the cooperation of other, shakier friends. Mauritania was such a friend. In 2002, Mauritania’s president and multidecade ruler Ould Taya was under fire internationally for his country’s human rights record, and at home for his close cooperation with the United States’ antiterrorism policies. That Mohamedou had been questioned by FBI agents in his own country in 2000 had been controversial enough to attract the press. What if he had returned to the country in mid-2002 with stories that he had been turned over to the Americans without extradition proceedings, in violation of an explicit Mauritanian constitutional protection; that the CIA had delivered him in secret to Jordan; and that he had been interrogated for months in a Jordanian prison?

  In any case, there is no indication that when a U.S. military C-17 carrying Mohamedou and thirty-four other prisoners landed in Guantánamo on August 5, 2002, the thirty-one-year-old Mauritanian was an especially high-value detainee. He would have stood out if so: an article published two weeks later in the Los Angeles Times titled “No Leaders of al Qaeda Found at Guantánamo Bay, Cuba” quoted government sources who said that there were “no big fish” in custody there, and the island’s nearly six hundred detainees were not “high enough in the command and control structure to help counter-terrorism experts unravel al Qaeda’s tightknit cell and security system.”18 A top secret CIA audit of the facility around the same time reportedly echoed those conclusions. When journalists visited the camp that August, the commander of Guantánamo’s detention operations told them his own uniformed officers were questioning the continuing designation of detainees as “enemy combatants” as opposed to prisoners of war entitled to Geneva convention protections. The Pentagon’s solution was to replace that commander and ratchet up the camp’s intelligence operations.

  Almost immediately a schism opened between military interrogators and the FBI and Criminal Investigation Task Force agents who had generally been leading prisoner interviews in Guantánamo. In September and October, over the fierce objections of the FBI and CITF agents, the military set up its first “Special Projects Team” and developed a written plan for the interrogation of the Saudi prisoner Mohammed al-Qahtani. That plan incorporated some of the “enhanced interrogation techniques” the CIA had been employing for several months in its own secret prison. Under the plan, which was implemented in fits and starts through the fall and finally, with the signed authorization of Defense Secretary Rumsfeld, in a harrowing fifty-day barrage starting in Nove
mber, military interrogators subjected Qahtani to a round-the-clock regime of extreme sleep deprivation, loud music and white noise, frigid temperatures, stress positions, threats, and a variety of physical and sexual humiliations.

  It was during this time, as the struggle over interrogation methods was playing out in the camp, that a link surfaced between Mohamedou Ould Slahi and the 9/11 hijackers. “September 11, 2002, America arrested a man by the name of Ramzi bin al-Shibh, who is said to be the key guy in the September 11th attacks,” Mohamedou recounted at his 2005 ARB hearing.

  It is exactly one year after September 11, and since his capture my life has changed drastically. The guy identified me as the guy that he saw in October 1999, which is correct, he was in my house. He said that I advised him to go to Afghanistan to train. Okay, then his interrogator ■■■■■■■■■■ from the FBI asked him to speculate who I was as a person. He said I think he is an operative of Usama Bin Laden and without him I would never have been involved in September 11th.19

  Bin al-Shibh had been the target of an international manhunt since 9/11 for his alleged role in coordinating the “Hamburg cell” of hijackers. He was transferred to CIA custody immediately after his capture in a shoot-out in a suburb of Karachi and was held first in the CIA’s “Dark Prison” in Afghanistan and then, through the fall, in a prison near Rabat, Morocco. During interrogations in one of those facilities, bin al-Shibh told of a chance meeting with a stranger on a train in Germany, where he and two friends talked of jihad and their desire to travel to Chechnya to join the fight against the Russians. The stranger suggested they contact Mohamedou in Duisburg, and when they did, Mohamedou put them up for a night. “When they arrived,” the 9/11 Commission recorded in a description drawn from intelligence reports from those interrogations, “Slahi explained that it was difficult to get to Chechnya at the time because many travelers were being detained in Georgia. He recommended they go through Afghanistan instead, where they could train for jihad before traveling to Chechnya.”20

  Bin al-Shibh did not assert that Mohamedou sent him to Afghanistan to join a plot against the United States. Lt. Col. Couch, who saw the bin al-Shibh intelligence report, recalled in the 2012 interview, “I never saw any mention that it was to attack America. I never saw the fact that Ramzi Bin al-Shibh had said, ‘We told him what we wanted to do, and he said, “This is where you need to go train.” ’ It was sort of, ‘This is where you can get training.’ ”21 During Mohamedou’s habeas proceedings, the U.S. government did not argue that he had persuaded the men to join bin Laden’s plot; rather, the government alleged that in suggesting that the men seek training in Afghanistan—something Mohamedou had learned was necessary to join an earlier fight involving Russians—he was serving in general as an al-Qaeda recruiter. Judge Robertson disagreed, finding that the record showed only that “Salahi provided lodging for three men for one night in Germany, that one of these was Ramzi bin al-Shibh, and that there was discussion of jihad and Afghanistan.”22

  Stuart Couch received bin al-Shibh’s intelligence reports when he was assigned Mohamedou’s case in the fall of 2003. The reports, and the assignment itself, had particular significance for the former Marine pilot: his close friend Michael Horrocks, a fellow refueling tanker pilot in the Marines, was the copilot on the United Airlines flight that the 9/11 hijackers used to bring down the World Trade Center’s South Tower. That event had drawn Stuart Couch back to active service. He joined the Guantánamo military commission’s team of prosecutors with a purpose, hoping, as he explained in a 2007 Wall Street Journal profile, “to get a crack at the guys who attacked the United States.”23

  Soon he was looking at batches of intelligence reports from another source, Mohamedou himself, the fruit of what military interrogators were already touting as their most successful Guantánamo interrogation. Those reports contained no information about the circumstances of that interrogation, but Lt. Col. Couch had his suspicions. He had been told that Mohamedou was on “Special Projects.” He had caught a glimpse, on his first visit to the base, of another prisoner shackled to the floor in an empty interrogation booth, rocking back and forth as a strobe light flashed and heavy metal blared. He had seen this kind of thing before: as a Marine pilot, he had endured a week of such techniques in a program that prepares U.S. airmen for the experience of capture and torture.

  Those suspicions were confirmed when the lieutenant colonel’s investigator, a Naval Criminal Investigative Service (NCIS) agent, gained access to military interrogators’ files. Those files included the Special Projects Team’s daily memoranda for the record, the interrogators’ detailed accounts not only of what was said in each session but also of how the information was extracted.

  Those records remain classified, but they are summarized in the U.S. Senate Armed Services Committee’s 2008 Inquiry into the Treatment of Detainees in U.S. Custody and the Justice Department’s own 2008 review of interrogations in Guantánamo, Afghanistan, and Iraq. Those reports document a “special interrogation” that followed a second painstaking, Rumsfeld-approved plan and unfolded almost exactly as Mohamedou describes it in his Guantánamo Diary. Among the specific documents described in those reports are two that, when Stuart Couch uncovered them in early 2004, convinced him that Mohamedou had been tortured.

  The first was a fake State Department letter Mohamedou had been presented in August 2003, which was clearly meant to exploit his close relationship with his mother. In its report, the Senate Armed Services Committee describes “a fictitious letter that had been drafted by the Interrogation Team Chief stating that his mother had been detained, would be interrogated, and if she were uncooperative she might be transferred to GTMO. The letter pointed out that she would be the only female detained at ‘this previously all-male prison environment.’ ”

  The second was an October 17, 2003, e-mail exchange between one of Mohamedou’s interrogators and a U.S. military psychiatrist. In it, the committee found, the interrogator “stated that ‘Slahi told me he is “hearing voices” now.… 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 psychologist responded, “Sensory deprivation can cause hallucinations, usually visual rather than auditory, but you never know.… In the dark you create things out of what little you have.”24

  In a 2009 interview, Lt. Col. Couch described the impact of these discoveries:

  Right in the middle of this time, when I had received this information from the NCIS agent—the documents, the State Department letterhead—and it was at the end of this, hearing all of this information, reading all this information, months and months and months of wrangling with the issue, that I was in church this Sunday, and we had a baptism. We got to the part of the liturgy where the congregation repeats—I’m paraphrasing here, but the essence is that we respect the dignity of every human being and seek peace and justice on earth. And when we spoke those words that morning, there were a lot of people in that church, but I could have been the only one there. I just felt this incredible, alright, there it is. You can’t come in here on Sunday, and as a Christian, subscribe to this belief of dignity of every human being and say I will seek justice and peace on the earth, and continue to go with the prosecution using that kind of evidence. And at that point I knew what I had to do. I had to get off the fence.25

  Stuart Couch withdrew from Mohamedou’s case, refusing to proceed with any effort to try him before a military commission.

  No charge sheet has ever been drawn up against Mohamedou Ould Slahi in Guantánamo, no military commission defense attorney was ever appointed to his case, and it appears there have been no further attempts to prepare a case for prosecution. The Daily News editorial decrying Judge Robertson’s habeas decision attributes this to “squeamishness” over using “evidence acquired under rough treatment,” but it is not at all clear that Mohamedou’s brutal Guantánamo interrogation yi
elded any evidence that he had a hand in any criminal or terrorist activities. At his 2005 ARB hearing, he told of manufacturing confessions under torture, but the interrogators themselves must have discounted what they knew to be induced confessions; what they passed along in their scrubbed intelligence reports consisted instead, Stuart Couch has said, of a kind of “Who’s Who of al Qaeda in Germany and all of Europe.”26

  Just as his extreme treatment is often cited as an indicator of his guilt, so those intelligence reports have come to serve as a kind of after-the-fact proof that Mohamedou himself must be among the Who’s Who. And yet, Stuart Couch has suggested, Mohamedou’s knowledge seems to have been little better than his interrogators’. “I think, if my recollection is right, that most of them had already been known to the intelligence services when he was being questioned,” Couch noted in the 2012 interview, adding:

  I’ve got to be clear on something. When you read the intelligence reports given up by Slahi, he doesn’t implicate himself in anything. The only way he implicates himself is by his knowledge of these people. He never implicates himself in any of what I would consider to be an overt act that was part of the al-Qaeda conspiracy to attack the United States on 9/11.27

  Nor, it seems, have U.S. intelligence services unearthed anything else implicating Mohamedou in other terrorist plots or attacks. In a 2013 interview, Colonel Morris Davis, who became chief prosecutor for the Guantánamo military commissions in 2005, described a last-ditch effort, almost two years after Stuart Couch withdrew from Mohamedou’s case, to develop some kind of charge against Mohamedou. Colonel Davis’s real target at the time was not Mohamedou, who by then hardly even registered on the prosecutorial radar, but rather the prisoner the military had moved into the hut next door to Mohamedou’s to mitigate the effects of his torture and almost two years of solitary confinement. That prisoner would not accept a plea bargain, however, unless Mohamedou received a similar offer. “We had to figure some kind of similar deal for Slahi,” Colonel Davis said in that interview, “which meant we had to find something we could charge him with, and that was where we were having real trouble.”