The (Unfinished) Story of Majid Khan, Dick Cheney and the Torture Memos
FROM THE UNPUBLISHED ARCHIVES: This post is among several unpublished, unfinished drafts — all of them works-in-progress, when I set them aside to speak out on behalf of other issues. The news in America is relentlessly bad, and it’s only getting worse. It’s difficult for the average person to stand still long enough to make sense of one horror story, before another one overtakes it. Torture is promising to be an ongoing horror — past, present and future. And I remain unconvinced that the Obama Adminstration has done enough — or intends to do enough — to ensure, “Never again.”
In this vein, we should never stop shedding light on all the terrorist acts Dick Cheney committed under the false flag of fighting terrorism. We should never stop demanding that Cheney and his gang be held accountable for their war crimes. Even as this post is unfinished, it holds value as a reference tool for shedding light onto the complex legal sleights-of-hand Cheney used to “legalize” torture.
Equally important is the need to continually shed light onto the victims of the Cheney-era war crimes. Many of these victims — if not most — are believed to be innocent. And who’s to say otherwise? Few have ever been officially charged with a crime and none have been permitted the basic right of a trial — their every effort to do so having been defeated by Team Cheney’s devious legalese, which is still a de facto part of American law. The number of these victims is seemingly countless. Majid Khan is but one of these human souls left to rot in jail, his guilt long ago sealed by accusations and confessions extracted under torture.
My apologies for not finishing this post, and for any loose ends I didn’t tie up.
The (Unfinished) Story of Majid Khan
Dick Cheney and his torture regime are like the vampire in the B-grade movie that refuses to die. Until someone drives a stake through its heart — that is, until the Department of Justice sees fit to take the gloves off and conduct an honest investigation into Cheney’s regime of corruption and torture — the monster will continue to re-injure our country, our laws, our integrity, our standing in the world. Not to mention the victims, whose stories are the stuff of nightmares. Problem is, the more time passes, the easier it becomes for Dick Cheney and daughter, Liz (who is — mark my words — being groomed to run for the vice-presidency in 2012), to re-write history and for the American public to then blindly accept their bill of goods. But, make no mistake, the rest of the world — the good, the bad and the ugly — aren’t buying.
Obama’s refusal to acknowledge America’s war crimes and hold these criminals acountable is not only short-sighted — permitting this history to exist unimpeded and ripe to repeat itself — but it also makes Obama party to the crimes. Obama’s neglect does not abrogate the DOJ from their duty to investigate these crimes to the fullest extent of the law. But that’s not how things are done in America today. Ultimately, it is up the American people to demand this. Perhaps we can pencil this fight into our busy agendas, somewhere between our battle for health care reform our own personal struggles with the collapsing American economy.
I want to be absolutely clear with our people and the world: the United States does not torture. — George W. Bush, September 6, 2006
By the time George Bush uttered those words, he was (technically, anyway) correct. That is, according to the precise letter of the law, as interpreted by Dick Cheney’s crackerjack team of attorneys at the Dept. of Justice Office of Legal Council (OLC) and published in the four Bybee and Bradbury memos, dating from August 2002 and May 2005. According to Team Cheney, we never did torture, and even if we did, the point was moot. Here’s why, according to the Bybee and Bradbury memos:
- Intention is nine-tenths (plus one-tenth) of the law: Unless the interrogators intended to inflict pain and suffering, it was not torture. And since the specific intention of the interrogators was to gather intelligence — and not to inflict pain and suffering, per se — it was not technically torture.
- Location, location, location: Under the terms Article 16 in the Geneva Convention Against Torture (CAT), the torture prohibitions apply specifically to “territories under [United States] jurisdiction.” To ascertain whether we were in compliance with this treaty obligation, the memo authors repeatedly consulted dictionary definitions of “territory” and “jurisdiction,” which neatly supported their argument that it is was not illegal for the U.S. to torture prisoners, so long as the torture took place in non-U.S. territories. Thus, the network of secret black site prisons around the globe (e.g. Afghanistan, Poland, Syria, Morocco, Thailand, etc.) where torture took place were determined to be, technically, legal, as were enhanced interrogations on any ships not registered with the U.S. (see pages 17-21 in the May 30, 2005 Bradbury Memo)
- Look that up in your Funk & Wagnalls: An existing U.S. Senate reservation states the the U.S. is bound to the obligations of the Geneva Convention Against Torture “only insofar as the term ‘cruel, inhuman or degrading treatment or punishment'[ means [that] prohibited by the Fifth, Eigth and/or Fourteenth Amendments to Constitution of the United States.” Scrutinizing the language of this reservation, Team Cheney again consulted the dictionary for clarity on the precise definitions of key words and terms, such as “torture” and “calculated” and “severe physical suffering” and “severe mental pain or suffering” and “prolonged mental harm.” After careful consideration of the dictionary definitions, they concluded that the CIA’s enhanced interrogation techniques, including waterboarding, were legal. Waterboarding cannot be considered “severe physical suffering” because, according to the dictionary, for distress to be “severe,” the intensity and duration of the distress must be taken into account. The memo explains that, by definition, waterboarding does not constitute “severe physical suffering,” since (a) the physical distress of waterboarding ends as soon as the session is over, and since (b) these sessions were, by their estimation, brief (with the maximum time set at 12 minutes per day, total, of actual waterboarding per day, with each session to last no longer than 40 seconds.) A similar argument is used to explain why waterboarding does not cause “prolonged mental harm,” as the length of these sessions do not conform to the dictionary definition of “prolonged.” You’d have to read the memos to appreciate the beauty of these definitions, as they apply to the blow-by-blow legalization of torture, as construed in these memos. Here are a few examples, as they apply to each of the following Constitutional Amendments:
- 8th Amendment – This amendment protects against the infliction of “cruel and unusual punishments.” As the memo argues, however, this amendment only applies after an individual has been convicted of a crime. Thus, the memo concludes that “Because the high-value detainees on whom the CIA might use enhanced interrogation techniques have not been convicted of any crime, the substantive requirements of the Eighth Amendment would not be relevant here.” Accordingly, so long as the due process is denied ( per the provisions of the 14th Amendment, below) then a detainee could be detained forever, being subjected all the while to “cruel and unusual punishments.”
- 5th Amendment — Unlike the Eighth and Fourteenth Amendments, the Fifth Amendment allows that NO person shall be deprived of life, liberty or property without due process of law. Setting aside the dictionary for a moment, the memo’s authors turned to case law, citing a 1952 ruling, which stated that the due process component of the 5th Amendment protects, specifically, against executive action that “shocks the conscience.” And to determine whether an action “shocks the conscience,” it is necessary to determine whether it is “arbitrary in the constitutional sense,” which, in turn, depends on whether the action is justifiable “in the service of a legitimate government objective.” The memo authors devote several pages to this concern before ultimately determining waterboarding and other enhanced interrogation techniques do not “shock the conscience” and therefore do not violate the 5th amendment. Building on this argument, the memo asserts that — since aliens (non-U.S. citizens) are not entitled to Fifth Amendment rights outside of the sovereign territory of the United States — it is not illegal to subject aliens to “cruel, inhuman or degrading treatment or punishment”so long as this takes place in the above mentioned black prison sites. This argument was no doubt used to justify the extraordinary rendition of Canadian citizen Mahar Arar to Syria. (To be sure, since the Constitution technically only applies to U.S. citizens, it stands to reason (and this is painstakingly spelled out in the Bybee-Bradbury memo) that it is perfectly legal to subject non-U.S. citizens to “cruel, inhuman, or degrading treatment or punishment.” )
- Fourteenth Amendment — While this amendment provides that “No State shall deprive any person of life, liberty or property without due process of law,” this provision does not *technically* apply in the District of Columbia, which is coincidentally where the White House is located. This gave the Bush-Cheney Administration additional license, as if they needed it, to deprive anyone they jolly well pleased — from American citizens to aliens — of life, liberty or property, without due process of law.
In other words, (according to the authority of Dick Cheney and his crackerjack team of lawyers) there are no domestic or international laws to prohibit the U.S. from torture, illegal detainment, extraordinary rendition or the denial of due process. Which brings me to the case of Majid Khan.
It is only appropriate (since his incarceration and torture would have been deemed illegal in pre-Bybee-Bradbury years) that his name is physically present in these memos. In the May 30, 2005 Bradbury memo, if you look at the 2nd paragraph on page 10, you’ll find his name. Look closely, because the words “Majid Khan” — much like the actual person — have been partially obliterated by the ubiquitious redactions.
In broad brushstrokes, the story of Majid Khan can be given in two sentences: Majid Khan, a legal U.S. resident from Baltimore, was arrested in 2003, based on accusations from a torture victim, who has since acknowledged giving false information under torture, simply to make the torture stop. Majid Khan has spent the past 6 years — and counting — in prison, without charges, during which time he, himself, has been reportedly subjected to torture, under which he confessed to crimes he never committed.
Again, my apologies to Majid Khan and his family for not finishing this post. I hope that this post will be a starting point for others to take an interest in his story. By all appearances, Mr. Khan is an innocent man: he has yet to be charged with any crime — much less been granted the basic right of a trial — and, as such, appears to be guilty of nothing more than getting mired in the web of Dick Cheney’s deceitful war on terror.
Below is a synopsis of Majid Khan’s story, quoted from the Center for Constitutional Rights (CCR), a non-profit legal and educational organization committed to the creative use of law as a positive force for social change. CCR has been actively involved in litigation on behalf of many Guantanamo detainees, including Mr. Khan, whom they’ve represented since Sept. 2006, a timeline of which can be found here, at the CCR website, along a list of PDF files of their actions throughout this case:
Mr. Khan was kidnapped in 2003 while visiting relatives in Pakistan, imprisoned in secret CIA detention for three-and-a-half years and subjected to “alternative interrogation methods” that amount to torture. He has never been formally charged with a crime.
Majid Khan had immigrated with his family to the United States in 1996. They settled in Baltimore, where he attended Owings Mills High School, graduating in 1999. Majid was granted legal asylum in the U.S. in 1998 and subsequently worked for the State of Maryland. In 2002, he went to Pakistan to get married and then came home to the United States to continue working. Shortly after returning to his wife in Pakistan, Majid and other relatives were kidnapped from their residence.
In the middle of the night, on March 5, 2003, individuals identified as Pakistan security officials pounded on the door of the home of Majid’s brother in Karachi, and rushed into the flat. The family members at home included Majid, his brother, his brother’s wife and their month-old daughter. As the family was trying to wake up, the officials hooded and bound them before placing them in a vehicle. They were all taken to an unknown location.
Majid’s sister-in-law and infant niece were imprisoned for about a week. Pakistan officials imprisoned his brother for approximately one month. When Majid’s brother was released, officials threatened him not to make any public statements or inquire after Majid. As a result of the threats, Majid’s family in Baltimore and Karachi waited anxiously and fearfully for his return. He was never released or heard from again.
Back home in the U.S., Majid’s family cooperated with U.S. authorities in every way they could; Majid’s older brother, a U.S. citizen, was interviewed hundreds of times by the FBI and he asked repeatedly about Majid’s whereabouts. Nonetheless, Majid’s family did not learn he was in U.S. custody or even that he was alive until a news reporter knocked on their door and told them President Bush announced Majid’s name in a speech before the nation on September 6, 2006.
Majid now has a young daughter he hasn’t seen.
For more on Majid Khan from the Center for Constituional Rights archives:
Court Orders Government Not to Destroy Torture Evidence … to preserve” evidence relating to Guantanamo detainee Majid Khan, including evidence of his torture by the CIA. The U.S. Court of Appeals …
Sources plus more info for further reading:
April 17, 2009 Letter from Attorney General Eric Holder to Sen. John D. Rockefeller in response to the Senator’s Feb. 2009 request for declassification and release of a narrative regarding advice provided by the CIA on the legality of certain interrogation techniques
World Socialist Website: More Revelations from Bush Torture Memos
Security Dilemmas (A blog dedicated to examining issues of international and national security, international politics, and international law): Legalizing Torture? Part II: The 30 May 2005 Bradbury Memo
Emptywheel/Firedoglake: The Gestation of Bradbury’s Torture Memos
Congressional Research Service: The U.N. Convention Against Torture: Overview of U.S. Implementation Policy Concerning the Removal of Aliens (January 21, 2009)
ACLU: FAQs on the U.N. Convention Against Torture
ACLU: On April 16, 2009, the Department of Justice released four secret Bybee-Bradbury Memos, which were used by the Bush-Cheney Administration to justify torture. This page includes links to the texts of the following memos:
- The Bybee-Memo: An 18-page memo, dated August 1, 2002, from Jay Bybee, Assistant Attorney General, OLC, to John A. Rizzo, General Counsel CIA. [PDF]
- Bradbury Memo: A 46-page memo, dated May 10, 2005, from Steven Bradbury, Acting Assistant Attorney General, OLC, to John A. Rizzo, General Counsel CIA. [PDF]
- Bradbury Memo: A 20-page memo, dated May 10, 2005, from Steven Bradbury, Acting Assistant Attorney General, OLC, to John A. Rizzo, General Counsel CIA. [PDF]
- Bradbury Memo: A 40-page memo, dated May 30, 2005, from Steven Bradbury, Acting Assistant Attorney General, OLC, to John A. Rizzo, General Counsel CIA. [PDF]
- NOTE: This is the memo where you will find mention of Majid Khan in the 2nd paragraph on page 10, which reads:
More specifically, we understand that KSM [Khalid Sheikh Mohammed] admitted he had tasked Majid Khan with delivering a large sum of money to an al Qaeda associate… Khan subsequentgly identified the associate (Zubair) who was then captured. Zubair, in turn, provided information that led to the arrest of Hambali. the information acquired from these captures allowed CIA interrogators to pose more specific questions to KSM, which led the CIA to Hambali’s brother, al-Hadi. Using information from multiple sources, al-Hadi was captured, and he subsequently identified the Guraba cell…. With the aid of this additional information, interrogations of Hambali confirmed much of what was learned from KSM.
The footnote (#6) to the above section was redacted in entirety, except for this sentence:
We discuss only a small fraction of the important intelligence CIA interrogators have obtained from KSM.
2007 International Red Cross report This ICRC report, dated February 2007, details the treatment of fourteen “high value detainees” in CIA custody. The leaked report was first published by the New York Review of Books. This report cites specific instances of ill-treatment as reported by these 14 detainees. Below are the passages that mention Majid Khan:
- Prolonged Stress Standing (Section 1.3.2): Ten of the fourteen [detainees] alleged that they were subjected to prolonged stress standing positions, during which their wrists were shackled to a bar or hook in the ceiling above the head for periods ranging from two or three days continuously, and for up to two or more months intermittently. All those detainees who reported being held in this position were allegedly kept naked throughout the use of this form of ill-treatment. For example…. Mr. Majid Khan [was shackled] for three days in Afghanistan and seven days in his third place of detention…. While being held in this position some of the detainees were allowed to defecate in a bucket. A guard would come to release their hands from the bar or hook in the ceiling so that they could sit on the bucket. None of them, however, were allowed to clean themselves afterwards. Others were made to wear a garment that resembled a diaper… Three other detainees specified that they had to defecate and urinate on themselves and remain standing in their own bodily fluids. Of these, on Mr. Bin Lep agreed that his name be transmitted to the authorities.
- Prolonged Nudity (Section 1.3.6): The most common method of ill-treatment noted during the interiews with the fourteen was the use of nudity. Eleven of the fourteen alleged that they were subjected to extended periods of nudity during detention and interrogation, ranging from several weeks continuously up to several months intermittently. For example…. Mr. Majid Khan alleged that he was kept naked for three days in Afghanistan and for seven days in his third place of detention….. Most of the detainees commented that the provision of clothes was determined by how cooperative they were perceived by the interrogators.
- Deprivation/Restricted Provision of Solid Food (Section 1.3.12) Eight of the fourteen alleged that they were deprived of solid food for periods ranging from three days to one month.This was often followed by a period with the provision of food was restricted and allegedly used as an incentive for cooperation. Two other detainees alleged that, whilst they were not totally deprived of solid food, food was provided intermittently or provided in restricted amounts. For example…. Mr. Majid Khan alleged that he did not receive any solid food for seven days in Afghanistan.
- In addition, the dates of the ICRC’s written interventions to the U.S. authorities, requesting information on Majid Khan are given in Annex 2 of this same report.
The Washington Post:
- Human Beings Without Humanity — (Excerpt: “The profoundly disgusting memos made public yesterday — in which government lawyers attempted to justify flatly unconscionable and illegal acts — provide a depressing reminder of a time when the powerful and powerless alike were stripped of their humanity. These memos gave the CIA the go-ahead to do things to people that you’d be arrested for doing to a dog. And the legalistic, mechanistic analysis shows signs of an almost inconceivable callousness. The memos serve as a vivid illustration of the moral chasm into which the nation fell — or rather, was pushed — during the Bush era. President Obama deserves great credit for defying members of the intelligence community who wanted to keep these memos secret. But in calling for the nation to move on without any further looking back, Obama put his political needs above his moral and legal obligations…..”)
- Too Embarrassing to Disclose? (Excerpt: “President Obama’s approach to government transparency is disturbingly opaque in places, particularly when it comes to disclosing information about the Bush administration’s torture legacy….”)
Salon.com: Is waterboarding torture? Ask the prisoners (November 6, 2007)
Long Excerpt: If senators such as Charles Schumer and Dianne Feinstein have doubts about whether waterboarding is torture, they should — and should be allowed to — interview the men who have likely experienced it in secret CIA detention facilities in American hands.
For example, they should interview Majid Khan, a Baltimore resident abducted and held for years in secret CIA prisons. He was a “ghost detainee” who this past year was among the “reappeared” at Guantánamo.
President Bush himself has clearly stated that Khan was held at a secret CIA facility before being transferred to Guantánamo. Bush also made clear that an “alternative set of procedures” were enforced — procedures widely believed to include waterboarding.
So, was Majid Khan really waterboarded? I don’t know. Khan has been prohibited from speaking to anyone except my colleagues, lawyers at the Center for Constitutional Rights who were finally allowed to visit him recently. One of those attorneys, Gitanjali Gutierrez, and her colleagues have also since been silenced: The government forced them to sign a protective order because Khan knew about “enhanced interrogation techniques.” Likely translation: Khan was tortured and the government is trying to cover it up by silencing him — and even his attorneys….
Those senators are perfectly within their rights and powers to pick up the phone right now and demand to interview Khan and others who were likely tortured at CIA secret sites. They can conduct classified interviews with the lawyers for the Center for Constitutional Rights about their milestone visit with Khan. They can learn exactly what happened to these men. And, if the men were waterboarded, they can learn exactly what the practice entails.
What they will likely hear are descriptions like one written by Henri Alleg, a French journalist who suffered waterboarding during the Algerian war: “I had the impression of drowning, and a terrible agony, that of death itself, took possession of me.”
…. And so the question is extremely simple: Do the men and women who serve on the Senate Judiciary Committee want to know, or not? Do they care about whether our nation has tortured?
….I believe that upon talking to victims of waterboarding any reasonable senator — or citizen — will define it as torture. There is no reasonable disagreement on this point. It was a technique invented in the Spanish Inquisition and used to terrible effect in the centuries since. The only question is whether there is any institution or group of politicians in this nation with the will to stand up for our Constitution, even at the risk of their own political prospects. If there are such men and women, then there is yet hope that our nation will rescue the Constitution from those who would shred it.
This is not a moment for political theater. This is not a moment for politics at all. This is the moment for good and decent leaders to remember that the truth still matters and to act accordingly.
This is a highly classified area. All I want to say is that there was “before” 9/11 and “after” 9/11. After 9/11 the gloves come off. Nearly three thousand al-Qa’ida terrorists and their supporters have been detained. In Afghanistan the al-Qa’ida who refused to surrender have been killed. The hunt is on. — Cofer Black (former Director of the CIA’s counterterrorism center from 199 to May 2002) in his Sept. 2002 testimony before the House/Senate Intelligence Committee Hearing in their joint investigation into September 11th
The gloves are coming off gentlemen regarding these detainees…. we want these individuals broken. — U.S. Senate Committed on Armed Services report, titled “Inquiry Into the Treatment of Detainees in U.S. Custody” November 2008, pg. 199 [quoting an August 2003 email sent by Capt. William Ponce (the battle captain in the Combined Joint Task Force 7’s Human Intelligence and Counterintelligence Office in Iraq) to interrogation elements in the field, in which he requested they submit “interrogation techniques wish lists.”]
The danger facing us is enormous. The efforts we take to meet it must be just as enormous. The time has come to remove the gloves! We must use our fists now! ….Those who do not understand this fight today will thank us on bended knee tomorrow that we took it! — Joseph Goebbels, from his 1943 speech, “Nation Rise Up and Let the Storm Break Loose”