In a filing made public Friday, lawyers for a Guantanamo detainee have asked a federal court to examine the way he was questioned while in secret CIA custody for three years and decide whether he was tortured.
If the court takes up the request, it would shift from Congress to the courts the ongoing debate over whether so-called enhanced interrogation techniques authorized by President Bush against al Qaida suspects included illegal torture. Among those techniques was waterboarding, which simulates the sensation of drowning.
Justice Department spokesman Erik Ablin said Friday the Bush administration had no immediate comment, and would respond in a brief on Thursday.
Lawyers for Majid Khan, 27, filed the motion Dec. 6 with the U.S. Court of Appeals for the District of Columbia Circuit, the only civilian court authorized under the Military Commissions Act to hear matters involving detainees at Guantanamo.
The filing was made public on Friday after an intelligence review. Two full pages of the 15-page filing were blacked out as were large sections of six other pages, apparently because they contained descriptions of Khan's treatment, which the Bush administration considers classified.
Khan, who was raised and educated in suburban Baltimore, says Pakistani security forces handed him over to the CIA in March 2003 and subjected him to a U.S. program of "state-sanctioned torture.''
President Bush announced Khan had been sent to Guantanamo in September 2006, along with 13 other "high-value detainees.'' The Pentagon, which has yet to charge him with a war crime, alleges that reputed 9/11 mastermind Khalid Sheikh Mohammed assigned Khan to research how to poison U.S. water reservoirs and blow up U.S. gas stations.
There's no way to verify either Khan's or the Pentagon's assertions.
The allegations of torture first arose at Guantanamo on April 15 when a panel of military officers met to determine whether Khan should be declared an enemy combatant. News reporters were not allowed to attend the hearing, but a censored transcript released later deleted sections where Khan's treatment was discussed.
Khan remains the only high-value detainee to have met with his lawyers. The filing made public Friday refers to declarations written by Khan's lawyers, Gitanjali
Gutierrez and Wells Dixon, in which Gutierrez describes alleged CIA interrogation techniques used on Khan and Dixon describes those allegedly used on other individuals. Those declarations have not been made public.
Earlier this week, the appeals court ordered the government to preserve any evidence of how Khan was treated while in CIA custody. The CIA recently disclosed that it had destroyed tapes of interrogations of another suspected al Qaida member, Zayn Abidin Abu Zubaydah, who was subjected to waterboarding.
But the court said the order was only preliminary, until it had time to consider both Khan's and the government's arguments.
A decision to hear the case would be a major turn in the ongoing debate on what constitutes torture.
"We don't have any case law since 9/11 to give us guidance as to what techniques fall above or below the line of what constitutes torture or ill treatment or cruel or unusual or degrading treatment,'' said retired Army Lt. Col. Jeffrey F. Addicott, a law professor and director of the Center for Terrorism Law at St. Mary's University in San Antonio, Texas.
Addicott, who retired in 2000, was senior legal counsel to the U.S. Army's Special Forces or Green Berets and argues that waterboarding is not torture because it is essentially trickery that takes seconds and "does not constitute severe physical or mental suffering.''
But others disagree. The Army's field manual specifically prohibits the procedure, and the House of Representatives this week approved a bill that would outlaw its use by the CIA as well. Republicans in the Senate, however, on Friday blocked the bill, which President Bush had threatened to veto, if passed.