WASHINGTON -- For years, Guantanamo Bay prisoners’ memories of their time in CIA custody have been considered classified state secrets. Abu Zubaydah's lawyers can’t talk publicly about how he lost his left eye. Lawyers for Mustafa al Hawsawi, who can now only sit on a pillow, can’t tell the press or the public about anal feedings that left him with a rectal prolapse. And until recently, Majid Khan's lawyers couldn’t bring up the time he was hung from a pole for two days, naked and hooded, while interrogators threw ice water on him.
The government argued that by talking about what had happened to them, the CIA’s former prisoners, who are now detained at the Guantanamo Bay prison facility, would risk revealing classified information about the agency’s torture program.
But as James Connell, a lawyer who represents detainee Ammar al Baluchi, wrote more than three years ago in a motion to declassify the prisoners' accounts, "A person's own experiences -- whether the smell of a rose or the click of a gun near one's head -- are what make them a person, and the government can never own or control them."
The notion that a torture survivor's memories can be classified, Connell wrote, "contravenes the most basic principles of human rights." He added that detainees "were exposed to classified interrogation techniques only in the sense that Hiroshima was exposed to the classified Manhattan Project."
Now, the government is starting to change course. A Senate Intelligence Committee report, which began to pull back the curtain on the CIA’s use of torture in secret prisons known as “black sites,” compelled the government to change its rules about keeping former CIA prisoners’ memories secret. Khan became the first to successfully test the new rules by going public with his account of his imprisonment, which included details not previously disclosed in the Senate report. Citing the success of Khan’s team, defense attorneys for other Guantanamo detainees are now cautiously optimistic that they can bring their clients’ memories of their time in CIA black sites to light.
The shift began in December, with the release of the 500-page executive summary of the Senate report on the CIA’s detention and interrogation program. Though not an exhaustive list of the abuses that occurred in the secret prisons, the report detailed several of the intelligence agency’s so-called “enhanced interrogation techniques,” which had previously been secret.
The Senate’s public release of these details upended the government’s argument that the entire torture program was classified and that, therefore, detainees’ lawyers had to treat their clients' experiences as secret information. In January, the government modified its classification rules for the military commissions, the court system in which several Guantanamo detainees are being tried for war crimes. Under the new rules, the torture methods used in CIA prisons are no longer subject to classification, although any information that could reveal the locations where torture took place or the people who helped facilitate it remains secret.
“The interrogation techniques as applied to former CIA detainees, as well as those detainees' conditions of detention, are no longer subject to the military commission judges' protective orders, with the exception of information that involves places of capture and detention and identities of persons involved,” Lt. Col. Myles B. Caggins III, the Pentagon spokesman for detainee policy, told The Huffington Post in an email this week. Detainees' memories won't be declassified all at once, though, he added -- their lawyers will still have to seek declassification on a case-by-case basis.
Two months after the release of the new rules, Khan’s lawyers submitted 27 pages of notes from interviews with their client about his time in CIA detention to a federal court review board for declassification. Six weeks later, in early May, the government cleared Khan’s testimony for release. The notes, first reported by Reuters last week, described abuse that went beyond what was disclosed in the Senate Intelligence Committee report.
According to Khan, CIA interrogators touched his “private parts,” conducted simulated drownings, and kept him in metal cuffs that cut into his skin and immobilized his legs.
The CIA declined to specifically address Khan’s allegations, but reiterated that he was not one of three detainees who were subjected to waterboarding. Broadly, the agency has continued to refute claims made in the Senate study, and defends its prior use of harsh interrogation techniques.
Khan, who struck a plea deal with the government in 2012, is still awaiting his sentence. In exchange for agreeing to testify against Khalid Sheikh Mohammed and other defendants in the military commission proceedings on the 9/11 attacks, Khan faces a reduced maximum prison sentence of nineteen years.
“He took a leap of faith to trust the government despite all of these horrible things that happened to him,” J. Wells Dixon, one of Khan's lawyers at the Center for Constitutional Rights, told HuffPost. Dixon noted that the fact that Khan has not yet been sentenced makes it all the more important that the details of his treatment be made public.
“You can’t understand how difficult it was for him to become a cooperating witness for the government unless you understand exactly what the government did to him,” he said.
Now, other Guantanamo Bay defense teams are hoping to follow Khan's lawyers' lead.
“The CIA said things happened to [Khan] that proved to be way, way, understated," said Richard Kammen, an attorney for Abd al Rahim al Nashiri, who is charged for his role in bombing the USS Cole in 2000. “So I think you can assume that applies to everybody… The whole goal of Guantanamo continues to be to keep the details of what happened in the CIA black sites secret.”
Defense lawyers argue that declassifying their clients' memories of torture is critical to building their cases. “This information being classified really handicaps us in things that a lawyer would ordinarily do, like get experts and look for witnesses,” said Connell, whose client, Baluchi, is one of five co-defendants in the Sept. 11 case. Connell noted that because the details of his client’s torture are still a secret, he is limited in his ability to call upon torture or prison experts to testify on how his client’s past treatment should affect current conditions of confinement and future sentencing.
The Senate Intelligence Committee report noted that Baluchi had been exposed to “enhanced interrogation techniques,” but did not describe the treatment in any detail.
Although Connell says he welcomed the government’s new guidelines, he is still pushing to get the locations where his client was tortured declassified, along with the identities of the people who participated in the program.
“The government’s proposal to declassify some information about torture but maintain secrecy for torturers is part of an overall strategy to prevent accountability,” he wrote in a February response to the new rules. “The government can no longer successfully deny its use of torture, so it is retreating to a defense of those individuals and countries who committed crimes against the defendants.”
Despite the new rules, there’s still a big problem with overclassification at Guantanamo, Kammen says.
“It used to be if a client said he wanted a cheese sandwich for lunch, technically that was classified,” he said. “Now at least you’re not dealing with that level of absurdity, but I don’t think we have anything approaching real declassification down there.”
Defense lawyers are quick to note that Khan’s testimonial strengthens their claim that the Senate report -- which is actually a redacted summary of a 6,000-page report -- does not fully depict the abuses committed under the CIA’s detention and interrogation program.
“Naturally, the records are incomplete,” said Marine Maj. Derek Poteet, who is representing Mohammed in the 9/11 case. “People didn’t write down every single horrifying and incriminating thing they did to someone. So it’s not possible that even the herculean [Senate] report would be able to capture everything.”
“When we say this is the tip of the iceberg, this is what we mean,” added Air Force Capt. Michael Schwartz, an attorney for Walid bin Attash, another co-defendant in the 9/11 case. “When you compile a report that has a bunch of embarrassing facts about the executive branch, and then you send it to the executive branch for their redactions, what do you think you’re going to get?”
Poteet said he hopes the precedent set by Khan will allow more information about his client’s torture to be unsealed. “But," he added, "we’ve been hopeful and burned many times in the past."
Several defense lawyers representing Guantanamo detainees echoed Poteet's doubts that the government will follow through with declassifying their clients' allegations of torture. The skepticism stems in part from previous examples of intense government secrecy on this matter. In a number of instances, the government has appeared to undermine the legitimacy of the military court process which is, at least in theory, independent.
In 2013, the government remotely cut off the courtroom’s audiovisual feed to the public during the 9/11 proceedings -- a power that even the judge on the case seemed unaware the government had. Later that year, the defense lawyers in the case demanded that the government remove listening devices that were attached to the ceilings of the rooms where the attorneys met with their clients.
The 9/11 case has been effectively stalled since 2014, due to an investigation on FBI infiltration into the defense team of at least one of the alleged co-conspirators. The one hearing that took place this year was cut short after defendant Ramzi Binalshibh told the judge he recognized the court translator as a former CIA employee who worked at the black site where Binalshibh was imprisoned between 2002 and 2006.
The five alleged co-conspirators in the 9/11 attacks could face the death penalty if convicted, which adds weight to the argument that the methods used to extract information from the defendants should be aired publicly.
“When everything happens in a closed courtroom, when all of the secrets, when all of the embarrassing information can be hidden, can be swept under the rug, the impact on the outcome of the process is affected,” Schwartz said. “A panel of officers -- we don’t call it a jury -- or a single military judge can sit in the room and know that his or her consideration of the issue is never going to be revealed to the world.”
Ali Watkins contributed reporting.