GITMO Interrogators Instructed to Destroy Notes

by Kevin Jon Heller

First the judge who felt “badgered, beaten, and bruised” by prosecutors for trying to protect Khadr’s rights was removed from the case “for personnel reasons.” Now it turns out that Khadr’s interrogators were “instructed” — read: ordered — to destroy their notes, lest anyone ever find out that Khadr had been tortured or mistreated:

Navy Lieutenant Commander Bill Kuebler said in a statement sent to reporters he considers the notes crucial to the defense of his client, Canadian Omar Khadr, during his upcoming murder trial by a special military tribunal at the US naval base.

Kuebler said the instructions were handed down to interrogators from the US Department of Defense as part of a standard operating procedure or “SOP” directive that he obtained from prosecutors last week.

If they were carried out, US interrogators may have “routinely destroyed evidence” that might have been used to defend the Khadr and other detainees, Kuebler charged.

“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 alleged confessions made to military interrogators, Kuebler said.

He cited in particular one passage of the directive to military interrogators stating that “this mission has legal and political issues that may lead to interrogators being called to testify.”

“Keeping the number of documents with interrogation information to a minimum can minimize certain legal issues,” the policy statement said, according to Kuebler.

Yes, it certainly can. So can suborning perjury and fabricating evidence — but that doesn’t make them good ideas.

Can we please stop pretending that the (un)fairness of military commissions is still open to rational debate?

http://opiniojuris.org/2008/06/10/gitmo-interrogators-instructed-to-destroy-notes/

5 Responses

  1. Hand-written notes? Of what sort?

  2. Spoliation of evidence also. “Of what sort?” is the precise question.

    Best,

    Ben

  3. The post quotes from various parts of the defense lawyer’s original letter, but skips over the point that the information from the handwritten notes is first typed up in a formal intelligence report before the handwritten notes are destroyed. Why destroy them? Well, when you are making notes to yourself, you do not always use complete sentences or choose the clearest language. Later on you express your thoughts more clearly in a report intended to be read by someone else. However, if some lawyer subpoenas every scrap of paper the government has, then compares the incomplete or ambiguous wording of the notes to the sentences in the final report, he will find differences. Then he will twist the words to create the impression of an uncertainty or discrepancy that did not exist.

    Any rational person with an expectation that he will eventually be dealing with pond scum lawyers would also destroy any easily misrepresented written documents. I would add the same rule to a SOP for automating laundry lists.

    The fact that a long string of lawyers has made one unfounded complaint after another does not place a question beyond “rational debate.” Rather, a rational person would wonder why a military interrogator would write down some hypothetical misbehavior in the first place. Rather than depending on later transcription, doesn’t it make better sense not to write it down in the first place. Conspiracy theorists will always imagine what might have been in the documents destroyed. Maybe they would provide evidence of torture. Maybe they would prove that the aliens landed in Roswell. Once the document is gone, you can imagine all sorts of stuff, if that is your inclination.

    But don’t claim that it is irrational for other people to draw other conclusions about evidence that does not exist. Remember, this is an intelligence report. Every little detail matters. A report that does not accurately reflect the interrogation is useless. So maybe things actually are what they appear to be. Maybe the final report accurately represents the interrogation. It is not beyond “rational debate” that things were done in a way that makes sense rather than in a way that conforms to some cherished conspiracy theory.


  4. “Rather, a rational person would wonder why a military interrogator would write down some hypothetical misbehavior in the first place”…

    “Remember, this is an intelligence report. Every little detail matters. A report that does not accurately reflect the interrogation is useless

    I find these two quotations truely perplexing. Interrogators dont write reports about “misbehaviors”, as you like to call it.But you are absolutly right when you say that every little detail matters: they do write down bits and pieces of information the detainees say, in order to campare it with other satements to see if they catch them lying, and to be able to fill out the appropiate forms later on.

    As for the “conspiracy theory” part, I have two words: Abu Ghraib (you should Google it)

    SHREK

  5. I am afraid that I don’t understand the post or the underlying argument. The argument is that military commissions are unfair as compared to civilian courts. The evidence is that prosecutorial misconduct, in the form of coerced confessions, was uncovered in the course of the military commission.

    Doesn’t that show that the military commission is doing its job? I mean, in a civilian court, the confession is looked at for coercion. Seems like the military commission will do the same thing. So what’s the point here?

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