June 10, 2013
Even as a desperate hunger strike by detainees at Guantanamo prison camp continues, with dozens in medical peril, preferring death to the lawless existence of indefinite detention and ongoing planned (or some might say, capricious) abuse, human rights and civil liberties activists often point to the Article III courts as an alternative in the prosecution of "war on terror" crimes. But an examination of actual cases prosecuted in the criminal courts shows that use of accepted rules and appeal procedures merely produce their own version of unfairness and arbitrary injustice.
Ahmed Abu Ali is a young man in his early 30s, who at this point in his life should be coming into his career prime, consolidating his family, and making his mark upon the world. Instead, he is held in the extremely onerous conditions of government-imposed Special Administrative Measures (SAMs) at the Administrative Maximum Facility (ADX) in Florence, Colorado, held "in 23-hour lockdown, in a 7×12 cell", out of all practical reach to anyone, essentially buried alive.
Notoriously, Ahmed was framed up by the notorious torturing security forces of Saudi Arabia. A confession, including incredible assertions he was a member of Al Qaeda, was planning another 9/11-type terrorist plot, and planning to assassinate former President George W. Bush, was coerced out of him via use of physical and psychological torture. But the evidence for this torture was contested in court. As often happens, there was a disagreement between government and defense experts, even as to the meaning of the scars on Ahmed’s back.
Determining Evidence of Torture
The main forensic difficulty in determining that torture took place is providing convincing evidence of an event that happens understandably behind closed doors, in secret. The perpetuators of torture will not admit the act. If you are experts in torturing — and according to human rights groups, the Saudi Mabahith al-Amma, or secret police of the Ministry of the Interior, are such experts — physical evidence of torture is kept to a minimum. Much of the primary evidence of torture must come from the victim him or herself. Hence, from a judicial standpoint, the judge’s assessment of the credibility of the victim’s testimony in court is paramount.
I personally know this as I have stood as a defense expert witness in a number of asylum cases brought in the U.S. immigration courts, and have conducted psychological assessments of dozens of torture victims. Hence, it was with alarm and dismay that I read Judge Gerald Bruce Lee’s opinion on the defense suppression motion regarding Ahmed Abu Ali’s confession while in Saudi Arabian custody. (The FBI had garnered some sort of confession from Ahmed when interviewing him some three months into his incarceration by the Saudis, but that confession was never used in court because Ahmed was not read his Miranda rights.)
It is with my training and expertise that I turned to my examination of the public records on the Ali case. What I found was egregious ignorance displayed by the judge in his decision, who relied on his own arbitrary subjective experience of Ahmed’s testimony in court, and discounted the testimony of expert witnesses. Instead, he showed a notable deference to those in power and to even foreign police testimony, accepting the credibility of key officials from the Mabahith, and in allowing the torture-produced testimony to stand and deny Ali’s motion to suppress, dismiss the Ahmed’s story of his torture as "non-credible."
Here is what Judge Lee wrote in his decision (bold emphasis added):
Mr. Abu Ali’s own testimony and his demeanor cause the Court some reservations. It is not uncommon for the victim of such horrors to have difficulty recalling details of the event, or to put them out of their mind. However, while Mr. Abu Ali dramatically recounted a brutal beating and humiliating treatment, it is noteworthy that Mr. Abu Ali could not recall, even by texture, shape, or dimension, what hit him. Was it a cylinder? Belt? Whip? Stick? Baseball bat? Of course, he was blindfolded and chained to the floor when the beating allegedly occurred so he may not know the exact item used to hit him. However, it seems to the Court that he could, at the very least, provide some basic description of what the item might have been based on how it felt to him.….
The Court has already said that it finds that Mr. Abu Ali is intelligent, capable, and articulate. The Court cannot discern whether Mr. Abu Ali is sincere or just cunning.
This was followed by appellate review by the U.S. Court of Appeals for the Fourth Circuit, which noted:
… the district court found itself "left with lingering questions concerning the credibility of Mr. Abu Ali and his claim that he was tortured," id. at 378. The court credited the testimony of the Saudi Arresting Officer and the Lieutenant Colonel (the Warden at the Medina detention facility where Abu Ali was held for two days following his arrest) that no Saudi official used coercive interrogation techniques on Abu Ali. The court found that the Lieutenant Colonel’s testimony that Abu Ali was never abused was believable while Abu Ali’s contrary testimony "raise[d] questions that bear on the defendant’s credibility." Id. at 373.
It was the testimony of two defense experts, Dr. Allan Keller from the NYU School of Medicine and Bellevue Hospital, and psychiatrist Lynne Gaby from George Washington University Medical Center and the Program for Survivors of Torture and Severe Trauma in Falls Church, Virginia, that Ahmed suffered PTSD, and that his testimony regarding his torture was credible. See the written reports of Drs. Keller and Gaby here and here, respectively.
Judge Lee obviously decided to rely on the government experts (more on that down below), FBI testimony, and the word of the Saudi security officials. He did not, however, allow testimony pertaining to Saudi Arabia’s human rights record, evidence that would have corroborated Ahmed’s claims, and thrown doubt on the testimony of the Saudis.
From Amnesty International’s December 2005 special report on their observations of the Ali trial:
Amnesty International is particularly concerned that during the trial, defence lawyers for Ahmed Abu Ali were not allowed to present any evidence pertaining to Saudi Arabia’s human rights record, its record on torture and even particularly on the record of the Mabahith al-Amma. Judge Lee ruled that only evidence which related directly to Ahmed Abu Ali’s interrogation would be admissible, thus denying the defence the opportunity to present relevant evidence, including from two UK nationals who were held in al-Ha’ir prison at the same time as Ahmed Abu Ali and claim to have been tortured into confessing to terrorist offences. One of the men, William Sampson, described in detail to Amnesty International the use of torture and torture techniques during his detention in Saudi Arabia similar to Ahmed Abu Ali’s allegations.
Memory, Trauma, and Judicial Assessment of Credibility
Most egregious from my point of view was Judge Lee turning his back on psychiatric testimony to base his assessment of Ahmed’s credibility on whether or not Ahmed could remember or identify the instrument of torture used on his back, even though he was blindfolded and chained to the floor at the time, and was undergoing extreme duress.
Yet, the fact is such forgetting of elements of the trauma is a prime criterion of the PTSD diagnosis. To use such forgetting as evidence against someone who was tortured is to turn the entire clinical literature and experience of PTSD and torture on its head.
According to a governmental website, which describes the modern psychiatric diagnosis of PTSD, using criteria from the American Psychiatric Association’s Diagnostic Manual, version IV, Criterion C of the diagnosis pertains to "avoidant/numbing." It describes what this means (bold emphasis added):
Persistent avoidance of stimuli associated with the trauma and numbing of general responsiveness (not present before the trauma), as indicated by at least three of the following:
Efforts to avoid thoughts, feelings, or conversations associated with the trauma
Efforts to avoid activities, places, or people that arouse recollections of the trauma
Inability to recall an important aspect of the trauma
Judge Lee pondered whether this inability to remember what kind of instrument (to which he was blinded anyway) hit his back was due to "cunning." In fact, Lee was either ignorant of or refused to consider mainstream findings in PTSD research.
Here’s just a few examples of what are widespread findings on memory and PTSD. In the 1996 book Trauma and Memory (Sage Publications), Linda Williams writes, "Numerous studies have found that a significant proportion of adults who report a trauma histroy also describe a period of time when they did not recall the experience."
In a 2007 article in the British Journal of Psychiatry, "Asylum claims and memory of trauma: sharing our knowledge," Drs. Jane Herlihy and Stuart Turner wrote, "When it comes to memories of personal experiences, we also know that emotion plays a big part both in what is encoded at the time and what is recalled later. The Yerkes–Dodson inverted-U model of performance and emotional arousal (Yerkes & Dodson, 1908; see Deffenbacher, 1983) reminds us that high levels of emotion may impair encoding of any memory, not just traumatic memories."
In a 1998 article in Psychiatry and Clinical Neurosciences by one of the most notable of all PTSD experts, Dr. Bessel van der Kolk, Dr. van der Kolk discussed in depth issues with "Trauma and Memory":
While the vivid intrusions of traumatic images and sensations are the most dramatic expressions of PTSD, the loss of recollections for traumatic experiences is well documented….
Amnesia of traumatic experiences, with delayed recall for all or parts of the trauma, has been noted following natural disasters and accidents… war-related trauma… kidnapping, torture and concentration camp experiences… physical and sexual abuse… and after committing murder….
Christianson described how, when people feel threatened, they experience a significant narrowing of consciousness, and remain merely focused on the central perceptual details. As people are being traumatized this narrowing of consciousness seems to sometimes evolve into a complete amnesia of the experience. More than 80 years ago, Janet claimed:
"Forgetting the event which precipitated the emotion… has frequently been found to accompany intense emotional experiences in the form of continuous and retrograde amnesia…. They are an exaggerated form of a general disturbance of memory which is characteristic of all emotions".
He claimed that when people become too upset, memories cannot be transformed into a neutral narrative; a person is 'unable to make the recital which we call narrative memory, and yet he remains confronted by (the) difficult situation’. This results in 'a phobia of memory’ that prevents the integration ('synthesis’) of traumatic events and splits off the traumatic memories from ordinary consciousness…..
Similar observations have been made by other clinicians treating traumatized individuals.
One could go on and on, but the point is well-made, and if Judge Lee were an honorable man, he would come forward now to admit his mistake and help initiate a re-hearing on Ahmed’s behalf.
The defense experts are not without criticism either, but their mistakes, primarily of omission — they should have, for instance, conducted assessments for other posttraumatic responses besides PTSD, such as depression — are not in the same league as the concerted bias and willful ignorance of the prosecution and the judge in this case. Notwithstanding the terrible injustice of the use of SAMs, and solitary confinement of US prisoners like Ali (see this most recent report by Physicians for Human Rights on the torture that is solitary confinement), the capricious application of judicial assessment of credibility in this case merits widespread outrage.
According to the American Bar Association Publication, "Judging Credibility," by John L. Kane (Litigation Magazine, Volume 33, Number 3, Spring 2007), "There is no law on judging credibility. Judges and jurors receive guidelines and elementary observations in the form of stock instructions but are essentially free to decide for themselves."
An examination of Kane’s recommendations helps us better understand the trap Lee, even if he were without bias, and other judges may fall into when it comes to complex mental health considerations surrounding PTSD. Kane discusses, for instance, the issue of memory as a matter of assessing credibility:
The standard credibility instruction tells the fact-finder to consider the witness’s strength of memory, ability in the described circumstances to see and hear, and the clarity with which he is able to recall events. Tone of voice, shades of expression, and gestures are also to be considered. Motive and interest are said to create bias. The natural and acquired experience that an observant person uses to form an opinion of whether to trust the veracity of someone in the important transactions of his own life is said to be the most important qualification of all….
….internal coherence is critical in evaluating credibility. When the actions of the persons involved are shown to be in accordance with their nature or characters, when they do the kinds of things people will do (consistent with probability or necessity), credibility is enhanced….
Persuasion is determined by the strength, not the volume, of the evidence. If what the lawyer seeks to prove is suspect or differs from ordinary experience, it must be broken down into constituent parts that do reflect normality. For a statement to be believed it must fit; the story in which it takes place must be coherent and plausible. What the fact-finder believes is what resonates with his understanding of life. More than analytical rigor, judging credibility requires imagination and empathy for the human condition.
Is it "coherent and plausible" that a man chained to the floor, blindfolded, undergoing physical abuse and threat, with the concordant physiological and psychological consequences of such abuse on a person’s sensorium, will have no difficulty in recalling all aspects of his abuse?
Bias and Government "Experts"
A final word about the use of government "experts" in this case should not go unnoted.
Judge Lee’s bias in the Ali case could be determined from the very moment that he allowed the prosecution to use Dr. Gregory Saathoff as a psychiatric expert. As Judge Lee himself noted, Dr. Saathoff is "a consultant to the FBI." Given the prominence of FBI testimony in the case, one would think that the presence of potential bias by use of someone paid by the FBI would eliminate him from consideration as an expert. Sadly, I am told by someone with some knowledge of federal court procedures that while a definite conflict of interest, this kind of use of government-linked professionals as "experts" in national security case is not unknown. That doesn’t make it right, however.
Dr. Saathoff was, by the way, the government expert used in the recent prosecution of Mansour Arbabsiar. He was also provided psychiatric evaluations and testimony in the cases of Dr. Aafia Siddiqui, and former Guantanamo detainee Ahmed Khalfan Ghailani.
Dr. Saathoff has indulged in conflict-of-interest examinations in the past. In late 2009, U.S. District Court for D.C. Judge Royce C. Lamberth tagged Saathoff to write a postmortem psych eval on purported anthrax terrorist Bruce Ivins. According to the L.A. Times, Saathoff, who headed up Lamberth’s ersatz Expert Behavioral Analysis Panel on Ivins, "served as an FBI consultant during the anthrax investigation," raising basic conflict-of-interest questions. It was no surprise that Saathoff and his partners found Ivins to be as mentally disturbed as the FBI portrayed him.
Nor am I the first to raise issues about Saathoff’s conflict-of-interest problems, as this article in Clinical Psychiatry News relates.
The case of Ahmed Abu Ali represents an abomination of justice in a variety of different ways, and was in the past a subject of intense media scrutiny. See here and here for examples. When it comes down to issues of credibility, it is not Mr. Ali who is not credible, but the actions of the justice system itself. In the name of prosecuting the "war on terror," the government has revealed itself as cloaked in ignorance, addicted to unfair procedures, and allied to torturing states, even as the innocent are left to fates worse than death itself.
Jeffrey Kaye is a psychologist active in the anti-torture movement. He works clinically with torture victims at Survivors International in San Francisco, CA. His blog is Invictus; as "Valtin," he also regularly blogs at Daily Kos, Docudharma, American Torture, Progressive Historians, and elsewhere.
This essay originally ran on the Dissenter.