2003: Abd al-Rahim al-Nashiri mock-executed at CIA black site

Around this time — “sometime between 28 December 2002 and 1 January 2003” — a CIA debriefer questioning Abd al-Rahim al-Nashiri at a CIA “black site” in Poland mock-executed his prey.

The Saudi national had been captured in October of 2002 and vanished into the 9/11-mad empire’s dark heart of secret torture dungeons scattered across the globe.

He’d already been renditioned to Afghanistan, and then to Thailand, and then onward (for the events of this post) to a onetime Third Reich base in Poland. In Afghanistan he’d been stripped and hanged up by his shackled hands, his toes barely touching the floor. In Thailand, interrogators waterboarded him and locked him in a coffin.* Graphic videos of his treatment in Thailand, at least, once existed; they are among the evidence destroyed by the CIA in 2005 in its successful project to scotch any public accountability for its torture program.

Nashiri stands accused of the bombing of the USS Cole in 2000, although different intelligence officers characterize him as anything from the “mastermind” to “the dumbest terrorist I ever met.” The only judicial hearing he’s ever had on this matter occurred in abstentia in Yemen in 2004, and resulted in a death sentence. He resides today in America’s forever oubliette at Guantanamo Bay, where a supposed prosecution began in 2011 and has been formally ongoing ever since, mired like all other cases there in the place’s intrinsic juridical incoherence. It seems likely that Nashiri will spend the rest of his days at Guantanamo, his mind a wreck from his ordeals.

One such ordeal, the one qualifying him for consideration by Executed Today, was his feigned execution by handgun and then by power drill — as disclosed by the CIA Inspector General’s report; the quoted excerpt below appears as paragraphs 91 and 92, beginning on page 49 of this pdf. The incident is likewise described in a subsequent Senate Intelligence Committee report, which can be perused here (see p. 98). The name of Nashiri’s mock-executioner is among the many bracketed redactions in this text; it has been publicly reported that the man in question is former CIA and FBI linguist Albert El Gamil.

[     ] interrogation team members, whose purpose it was to interrogate Al-Nashiri and debrief Abu Zubaydah, initially staffed [     ] The interrogation team continued EITs on Al-Nashiri for two weeks in December 2002 [     ] they assessed him to be “compliant.” Subsequently, CTC officers at Headquarters [     ] sent a [     ] senior operations officer (the debrief) [     ] to debrief and assess Al-Nashiri.

[     ]The debrief assessed Al-Nashiri as withholding information, at which point [     ] reinstated [     ] hooding, and handcuffing. Sometime between 28 December 2002 and 1 January 2003, the debriefer used an unloaded semi-automatic handgun as a prop to frighten Al-Nashiri into disclosing information. After discussing this plan with [     ] the debriefer entered the cell where Al-Nashiri sat shackled and racked the handgun once or twice close to Al-Nashiri’s head. On what was probably the same day, the debriefer used a power drill to frighten Al-Nashiri. With [     ] consent, the debriefer entered the detainee’s cell and revved the drill while the detainee stood naked and hooded. The debriefer did not touch Al-Nashiri with the power drill.

Mock execution was not among the menu of torture techniques given legal imprimatur by the Agency, and other interrogators’ protests at his methods led to El Gamil’s removal from the case shortly thereafter.

Sanctioned or no, it is not the only mock execution known to have been inflicted by CIA torturers. Scrolling past seas of black redactions to paragraphs 169-174 of that same Inspector General’s report, we find that

The debriefer who employed the handgun and power drill on Al-Nashiri [     ] advised that those actions were predicated on a technique he had participated in [     ] The debriefer stated that when he was [     ] between September and October 2002, [     ] offered to fire a handgun outside the interrogation room while the debriefer was interviewing a detainee who was thought to be withholding information. [     ] staged the incident, which included screaming and yelling outside the cell by other CIA officers and [     ] guards. When the guards moved the detainee from the interrogation room, they passed a guard who was dressed as a hooded detainee, lying motionless on the ground, and made to appear as if he had been shot to death.

The debriefer claimed he did not think he needed to report this incident because the [     ] had openly discussed this plan [     ] several days prior to and after the incident. When the debriefer was later [     ] and believed he needed a non-traditional technique to induce the detainee to cooperate he told [     ] he wanted to wave a handgun in front of the detainee to scare him. The debriefer said he did not believe he was required to notify Headquarters of this technique, citing the earlier, unreported mock execution [     ].

A senior operations officer [     ] recounted that around September 2002 [     ] heard that the debriefer had staged a mock execution. [     ] was not present but understood it went badly; it was transparently a ruse and no benefit was derived from it. [     ] observed that there is a need to be creative as long as it is not considered torture. [     ] stated that if such a proposal were made now, it would involve a great deal of consultation. It would begin with [     ] management and would include CTC/Legal, [     ] and the CTC.

The [     ] admitted staging a “mock execution” in the first days that [     ] was open. According to the [     ] the technique was his idea but was not effective because it came across as being staged. It was based on the concept, from SERE school, of showing something that looks real, but is not. The [     ] recalled that a particular CTC interrogator later told him about employing a mock execution technique. The [     ] did not know when this incident occurred or if it was successful. He viewed this technique as ineffective because it was not believable.

Four [     ] who were interviewed admitted to either participating in one of the above-described incidents or hearing ab out them. [     ] described staging a mock execution of a detainee. Reportedly, a detainee who witnessed the “body” in the aftermath of the ruse “sang like a bird.”

[     ] revealed that approximately four days before his interview with OIG, the [     ] stated he had conducted a mock execution [     ] in October or November 2002. Reportedly, the firearm was discharged outside of the building, and it was done because the detainee reportedly possessed critical threat information. [     ] stated that he told the [     ] not to do it again. He stated that he has not heard of a similar act occurring [     ] since then.

* Gina Haspel oversaw the Thailand site at the end of 2002, and her countenancing torture against Nashiri and other detainees there made for a passing controversy when Donald Trump appointed her to direct the Agency.

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1942: Six German saboteurs

Seventy-five years ago today, six German saboteurs were electrocuted in a Washington, D.C. jail … a failed World War II operation that bequeathed its target nation a controversial legal landmark.

On June 13 of 1942 — just eight weeks before they faced the electric chair — Herbert Hans Haupt, Heinrich Heinck, Edward Kerling, Herman Neubauer, Richard Quirin and Werner Thiel, all of them German nationals who had returned to the Fatherland after previous emigration to the U.S., were dropped by U-Boats along with two other men, Ernest Peter Burger and George John Dasch, in two quartets on the eastern fringe of Long Island and the Florida coast.

“Operation Pastorius” to sabotage war industries on the U.S. mainland would never even have time to get its land legs; spied in Long Island by a Coast Guard watchman whom they clumsily attempted to bribe, the agents scattered themselves to New York and Chicago. Burger and Dasch — who for this reason were not in the end electrocuted* — had their reservations about the Third Reich to begin with and guessed after the Coast Guard encounter where this fiasco was heading. They rang up the gobsmacked FBI to shop themselves and their comrades, enabling the feds to pick up the other six men in short order.

The eventual fate of the Nazi saboteurs is no surprise, but the means to obtain it was controversial then and remains so to this day.

On a substantive level, the Germans had landed in uniform for the explicit purpose of asserting POW status were they to be apprehended immediately; this didn’t cut much ice since all had then discarded their uniforms and attempted to melt away in the U.S. Attorney General Francis Biddle successfully cited the American Revolution precedent of John Andre, whom patriots hanged as a spy after detaining him out of uniform behind their lines. That they hadn’t yet done anything yet was a bit beside the point.**

Much thornier was U.S. President Franklin Delano Roosevelt’s order to try the Germans using a seven-member military tribunal that he conjured for this purpose, and seemingly with the objective of assuring the harshest possible sentence. (Bear in mind that these events transpired only months after Pearl Harbor.) Such a commission is explicitly anticipated by the U.S. Articles of War† whose 81st and 82nd provisions the saboteurs were charged with violating:

ART. 81. RELIEVING, CORRESPONDENCE WITH, OR AIDING THE ENEMY. — Whosoever relieves or attempts to relieve the enemy with arms, ammunition, supplies, money, or other thing, or knowingly harbors or protects or holds correspondence with or gives intelligence to the enemy, either directly or indirectly, shall suffer death or such other punishment as a court-martial or military commission may direct.

ART. 82. SPIES. — Any person who in time of war shall be found lurking or acting as a spy in or about any of the fortifications, posts, quarters, or encampments of any of the armies of the United States, or elsewhere, shall be tried by a general court-martial or by a military commission, and shall, on conviction thereof, suffer death.

However, the military commission did not seem very well in keeping with the American preference for regular jurisdictions as expressed by Ex parte Milligan, the post-Civil War decision forbidding the use of military courts anywhere that civilian courts are functioning.‡ The signal Milligan precedent formed the basis of a furious objection by Army defense lawyer (and future Secretary of War) Kenneth Royall, who fought his clients’ hopeless corner so vigorously that the doomed men signed a letter praising his efforts. (“unbiased, better than we could expect and probably risking the indignation of public opinion.”)

Already recessed for the summer, the Supreme Court hastily reconvened to cut this Gordian knot: the only forum of judicial review the case would ever receive. Its decision, Ex parte Quirin — titled after one of the defendants — spurned Royall’s Milligan claim and upheld Roosevelt’s statutory authority to determine this case for a military tribunal by a unanimous vote.

The court’s common front concealed a variety of stances on the reach of executive authority. While the whole court agreed that “Congress has explicitly provided … that military tribunals shall have jurisdiction to try offenses against the law of war in appropriate cases,” a concurring memorandum by Justice Robert H. Jackson — later famous for his role prosecuting the Nuremberg trials — proposed to carry the argument well beyond this point. Jackson claimed in a concurrence that he would eventually withdraw that “the Court’s decision of the question whether it complied with the Articles of War is uncalled for … it is well within the war powers of the President to create a non-statutory military tribunal of the sort here in question.” This was by no means the consensus of his colleagues.

The later publication of a “Soliloquy” memorandum by one such colleague, Felix Frankfurter, throws a less than dispassionate light on deliberations. Writing to smooth over internal disputes between the blackrobes, Justice Frankfurter shows himself personally hostile to the Germans — “You’ve done enough mischief already without leaving the seeds of a bitter conflict involving the President, the courts and Congress after your bodies will be rotting in lime,” he chides them in his own voice. “That disposes of you scoundrels.” In the end, the court took his advice to sidestep the potentially deep jurisdictional question.

But that question has not been left rotting in footnotes (they never are). Quirin in general and Jackson’s expansive claims of executive power in particular have been relied upon by 21st century Presidents to justify muscular and controversial innovations like the Guantanamo Bay prison and the drone war.

A few books about Operation Pastorius and Ex parte Quirin

Pierce O’Donnell, author of In Time of War: Hitler’s Terrorist Attack on America, discussed his book on C-SPAN here.

Jurisprudence is not the only artifact of the Nazi saboteurs’ failed infiltration.

Bizarrely, a tributary slab “in memory of agents of the German Abwehr” was discovered in 2006 illicitly placed on National Park Service land in southeast Washington DC, the same vicinity where the saboteurs had been secretly buried after their electrocution. There it had seemingly reposed some twenty-odd years, unknown but to its devotees … who if the stone’s carvings are to be credited must consist of the heirs of the (defunct since 1983) National Socialist White People’s Party, also known as the American Nazi Party.

* They would be condemned to death along with the rest, but Roosevelt commuted their sentences: a fine boon but far short of the outright pardons they had been promised for their cooperation. In 1948, President Truman had Burger and Dasch deported to Germany, where many saw them as traitors.

** After unsuccessfully attempting to trade Andre for Benedict Arnold, whose defection Andre had facilitated, and whom the American revolutionaries would have much preferred to Andre for a hanging.

† Enacted by Congress in 1920, these Articles of War are no longer operative in the U.S.: they were replaced by the Uniform Code of Military Justice in 1951.

‡ Haupt and Burger were also U.S. citizens, further complicating the commission’s suspension of their constitutional habeas corpus rights.

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2012: Three drone strike spies in Yemen

It was reported that a year ago today, Islamic militants beheaded three in the South Yemen towns of Ja’ar (in the Abyan Governorate) and ‘Azzan (in the adjacent Shabwa Governorate) on charges of providing intelligence to help the U.S. to conduct drone strikes.

The executions were announced to the media by text message.

The ongoing shadow drone war in Yemen has steadily drummed that fractious Arabian peninsula state with missiles from flying death robots, piloted from afar (under separate command structures, little difference though that makes to those on the receiving end) by the CIA or the U.S. military’s Joint Special Operations Command.

The deaths one year ago took place in the sunset of President Ali Abdullah Saleh‘s government, when much of southern Yemen was functionally controlled by militants for several months. The Obama administration significantly ramped up drone strikes in south Yemen from late 2011, and kept right on ramping throughout 2012.

The stated target of all this remote-controlled ordnance is Al Qaeda in the Arabian Peninsula, but it’s more than clear that many of the nameless casualties are not militants.

For instance (and this was obviously not the strike being avenged by our February 12 execution in that same city), a May 2012 drone raid on Ja’ar was decried by locals who insisted that not one militant was among the dead.* “Our lives are valueless in the eyes of our government, and that is why civilians are being killed without a crime,” one man told CNN.

Then again, as this post goes to press, Americans have themselves had a bracing reminder of their own killability, courtesy of a leaked memo giving a partial glimpse of the Obama administration’s startlingly expansive assertion of the right to murder American citizens or whomever else on the unilateral say-so of somebody sufficiently senior.

A generation ago, the U.S. had explicit state policies abjuring assassination. Today, there are routine “Terror Tuesdays” at which the chief executive reviews proposed additions to an official kill list.** All of this is claimed as a power of a planetwide war that can never end, but in practice bears an uncomfortable resemblance to something our militants in Ja’ar and ‘Azzan would surely appreciate — extrajudicial execution.†

* Official story: two terrorists dead, “only” eight civilians; locals said around 17 to 26 killed, none of whom were terrorists. The U.S. has been accused of using Vietnam-era “body count” rules and claiming every military-aged male killed by a drone counts as a “militant.” (Contra Vietnam, Washington depresses rather than exaggerates the overall casualty counts.)

** Many drone attacks target not named individuals, but unknown people whose activities from drone or satellite surveillance are held to match a terrorist’s pattern.

† There’s even been a Congressional proposal for a secret court to decide who goes on the secret kill list.

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