Lt. Cmdr. William Kuebler, who is serving as the defense attorney for Canadian citizen Omar Khadr’s war crimes trial (previously discussed on OTB here) has divulged that the Pentagon has been urging interrogators in Guantanamo Bay to destroy all of their notes regarding their interrogation of detainees.
The Pentagon urged interrogators at Guantanamo Bay to destroy handwritten notes in case they were called to testify about potentially harsh treatment of detainees, a military defense lawyer said Sunday.
The lawyer for Toronto-born Omar Khadr, Lt. Cmdr. William Kuebler, said the instructions were included in an operations manual shown to him by prosecutors and suggest the U.S. deliberately thwarted evidence that could help terror suspects defend themselves at trial.
Kuebler said the apparent destruction of evidence prevents him from challenging the reliability of any alleged confessions.
[…]
The case against Khadr, who was captured in Afghanistan when he was 15, is on track to be one of the first to trial. He faces war-crimes charges including murder for allegedly throwing a grenade that killed a U.S. Special Forces soldier during a 2002 firefight.
Kuebler said the nature of the interrogations is particularly relevant in Khadr’s case because prosecutors are relying on evidence “extracted” from him at Bagram air base in Afghanistan and at Guantanamo.
“If handwritten notes were destroyed in accordance with the SOP, the government intentionally deprived Omar’s lawyers of key evidence with which to challenge the reliability of his statements,” Kuebler said in an e-mail to reporters. [emphasis added]
I am racking my brain to come up with a reason to destroy interrogation notes that doesn’t involve covering up evidence of a crime, but am so far coming up short. Using torture and other coercive interrogation techniques to extract confessions is not only morally outrageous, but history has shown time and time again that the typical results are false confessions. I hope that Lt. Cmdr. Kuebler is successful in fighting this and gets the charges dismissed.
UPDATE (James Joyner): Alex has asked me to weigh in, based on my military background, about the nature of manuals, SOPs, and the like. Specifically: Who writes them? Who approves them? How do soldiers view them?
This depends largely on the type of document. Field Manuals, training manuals, and similar publications prepared for widespread dissemination — the entire DoD, one of the Services (Army, Navy, Air Force, Marines), or even an occupational specialty (Infantry, Military Police, etc.) — are typically written by a team of people supervised by someone of middle management rank (a field grade officer or civilian equivalent). Presumably, those that address matters pertaining to the Joint Staff and the like are staffed and approved at higher levels. They’re approved higher up the food chain but seldom at the level of political policy-maker. They’re taken rather seriously by the troops but generally don’t have enforcement provisions.
In this particular case, we’re talking about a much lower-level publication. Specifically, as the affidavit (PDF link provided by Lyle Denniston, who has some interesting thoughts on the legal matters Alex discusses above) makes clear, we’re talking about an organizational SOP. Specifically, a “Tiger Team SOP” with limited scope: “These procedures and responsibilities apply to Tiger Teams serving within the Interrogation Control Element (ICE), Joint Interrogation Group (JIG) of Joint Task Force (JTF) GTMO.”
Most likely, these were written by a relatively low level soldier — perhaps a senior NCO or company grade officer (I wrote these kinds of things as a 2nd Lieutenant) and approved by the JTF commander or perhaps his operations officer. Once promulgated, the members of the Tiger Teams would have felt obligated to carry them out unless they had strong moral objection or thought they were doing something illegal. Most personnel would take specific instructions in an organizational SOP as the equivalent of a written order from the commander.
Joint Task Force (JTF) GTMO, incidentally, is commanded by a one-star rear admiral.
Update (Alex Knapp)
Now that I’ve delved a little more deeply into this, a few more things have come to light.
(1) The operations manual apparently only orders the destruction of the handwritten notes after the creation of formalized typed notes or a formal intelligence report.
(2) Under normal circumstances, that type of procedure would probably be acceptable, and there’s not too much to object to there.
(3) The key words, though, are “under normal circumstances.” The Defense counsel in this case are making the argument that the handwritten notes should be preserved in order to impeach hearsay testimony. In a normal court of law, of course, this would not be necessary because hearsay is typically inadmissible (although there are exceptions). In the detainee trials at Guatanamo, however, hearsay is admissible, and so defense counsel wants access to the original notes.
As a policy matter, I would prefer that these notes be kept for detainee hearings. This is because I generally favor a maximum amount of transparency when it comes to prisoner interrogations in any setting. Indeed, if it were up to me, every interrogation in the criminal justice system would be videotaped (as is the law already in a handful of states). That said, from the standpoint of the current law, there may not be anything illegal in what has been ordered. And given that the handwritten notes are replaced with formal notes and/or reports, the taint of coverup in the initial reports is markedly diminished.
However, these issues only serve to further illustrate the legal frustrations that have shadowed the Guantanamo Bay detentions ever since 2001. Given that in the “War on Terror” we are not necessarily engaged in hostile military actions against governments, and that the duration of the “War” is pretty much indefinite–there’s always going to be “terror groups” out there, so it’s not like we can pretend we’re just holding them for the duration of hostilities–the need for a more reliable legal process is a necessity. But neither the Administration, Congress, or the Courts seems to be in much of a hurry to do so. The lack of proper procedures, the treatment of detainees, and the insistence on secrecy have cost us moral authority and prestige. Not to mention that our actions have only served to distance us from valued allies (Khadr, for example, is a Canadian citizen) while at the same time serving as convenient propagada for al-Qaeda and other guerilla outfits.
I do not necessarily subscribe to the view that the detainees in Guantanamo and other U.S. controlled foreign prisons need to tried in civilian courts in the U.S. But there does need to be fair, transparent procedures in place to protect the rights of those detainees. Transparency of the interrogation process and eliminating the use of hearsay in legal proceedings would be a good start.
