They presented the federal judge Gerald Bruce Lee with the conundrum of figuring out whether they were given voluntarily—not whether they were true or false, just whether they were willing or coerced. For that he needed seven days of testimony via satellite by Saudi officials, including a captain and a brigadier general identified by pseudonyms, and eight more days of live witnesses in his Virginia courtroom, including physicians who inspected Abu Ali’s body for signs of torture and psychiatrists who inspected his mind for post-traumatic stress disorder.
To allow the confessions into the trial, the law required only a “preponderance of evidence,” meaning at least a 51 percent chance that they were voluntary. This weak but well-established standard allows judges to indulge their hunches, impressions, and instincts. So contradictory was the evidence here that Judge Lee relied on body language, demeanor, and unquantifiable feelings that some witnesses were truthful and others not. There was no way to prove definitively that Abu Ali had or had not been tortured, but the judge was forced to decide.84
Although the Saudi officials were visible only on a TV screen, Lee perceived them as credible in their steadfast denials of brutality—even the captain, who swore that he never abused anyone but got confessions or statements from every single suspect he had questioned in his seven years as an interrogator. This might have triggered a touch of skepticism: success records of 100 percent are only slightly more convincing than elections where dictators get 99 percent of the vote.
Judge Lee also credited everything the FBI agents said. They testified that when they observed Abu Ali through a one-way mirror just four or five days after he had supposedly been whipped, he showed no signs of pain but sat comfortably, rocking and swiveling in his chair. Perhaps that was true, perhaps not. The judge believed it.
This was the same FBI that later ignored Abu Ali’s complaints of mistreatment. Fearing retaliation by the Saudis, he had said nothing about torture during earlier visits from U.S. consular officers. Only when FBI agents finally interviewed him directly did he take the gamble in what he described as a daring attempt to get help. The abuse, he told them, had impelled him to give false information.85 The agents’ reaction was disappointing. “Oh yeah? I’m going to ask the general,” one said, then walked out of the room, didn’t return, and reported the allegation only to his supervisor, as Abu Ali told it. No inquiry was made of the Saudis, nor was notice given to the State Department, whose embassies are supposed to monitor treatment of Americans in foreign jails. In short, the FBI showed as much interest as it did in the Rwandans’ interrogations.
If the Saudis did torture as Abu Ali claimed, they were better than the Rwandans at leaving no marks. He had been blindfolded and chained to the floor in a kneeling position when he was whipped, he said, but nearly two years later, when doctors for the defense and the prosecution examined him, lines on his back did not have the normal features of scars: they were level with the surface of his skin, neither higher nor indented, as scars usually are. The prosecution’s professionals, predictably, did not deem them evidence of whipping. The defense expert, Dr. Allen Keller, a specialist who had interviewed and examined multiple victims of torture, spent eight hours with Abu Ali and found the marks consistent with his account of abuse. Judge Lee resolved this ambiguity in favor of the prosecution, whose dermatologist saw only color photographs of the prisoner’s back.
There are also invisible marks on the mind after you have been chained to the ceiling, told that you will undergo the amputation of your hand or your foot or your head, wrapped in a web of sleeplessness from all-night interrogations, and granted little kindnesses to reinforce the sense of vulnerability—all techniques that Abu Ali claimed to have endured. After conducting several interviews and administering a widely used test, a psychiatrist for the defense concluded that he suffered from post-traumatic stress disorder; a consulting psychiatrist for the FBI concluded the opposite and suggested that he was malingering.
The judge chose to go with the FBI’s expert and disbelieve the PTSD diagnosis, but for thin reasons. He noted that the defense psychiatrist had grown testy under cross-examination and had failed to interview guards and nurses at the local Virginia jail to check Abu Ali’s assertion that his Saudi experience had left him with a fear of all prison personnel. Judge Lee was impressed by the FBI psychiatrist’s report from prison staff “that Mr. Abu Ali was smiling when he first arrived … was jovial within a few days … that Mr. Abu Ali chats with them, gets along with them, and asks favors of many of them.” The judge did not mention another interpretation: that out of fear, a prisoner can try to ingratiate himself, precisely the dynamic that interrogators establish.
Lee was also bothered that Abu Ali could not say what instrument the Saudis had used to whip him. Had the judge accepted the diagnosis of PTSD and understood its symptoms, he might have recognized the syndrome in which memory is repressed as a method of self-protection. But while acknowledging that trauma victims sometimes “have difficulty recalling details of the event,” Lee then faulted Abu Ali for having exactly that difficulty: “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.”
It was a circular argument: no PTSD, so no excuse for forgetting what didn’t happen. Yet the memory loss may have been genuine. Would the young man have been credible had he fabricated a clear story and stuck to it?
Abu Ali had repeatedly asked for a lawyer, but the Saudi system allows no attorney during investigation. He had not been read his right to silence, because no such right exists in Saudi procedure. After what he said were forty-seven nights of questioning and solitary confinement, he was promised a return to the general prison population once he read his statement aloud. He did so, not realizing that he was being videotaped. Punchy from lack of sleep and cheerful that his conditions were about to ease, he clowned around—fatefully, as it turned out.
His thirteen-minute confession impressed both the judge and the jury, but not in the way he wanted. They found him cocky, relaxed, and cavalier, hardly the behavior of a torture victim. He smiled and laughed. He joked about how little good the training in concealing his identity had done and pantomimed himself holding a gun. He was convicted and sentenced to thirty years, a term too lenient for the Bush Justice Department, which got a ruling from the Fourth Circuit that Judge Lee had unjustifiably departed downward from the sentencing guidelines.
In pronouncing the sentence, Lee had observed: “Abu Ali never planted any bombs, shot any weapons, or injured any people, and there is no evidence that he took any steps in the United States with others to further the conspiracy.” It was a close paraphrase of another judge’s remarks in the Padilla trial. But when the case was sent back down for resentencing, the Justice Department, now under Obama, persuaded Lee to increase the term to life. The judge then shifted ground, noting Abu Ali’s “unwillingness to renounce the beliefs that led to his terrorist activities” and declaring, “I cannot put the safety of the American citizenry at risk.”86
Torture is invisibly insidious, whether practiced by an agency itself or tolerated by an agency indifferent while others do it. During this time of terrorism, the CIA has fit into the first category, the FBI into the second. There were exceptions, among them the FBI agents who complained about the abuses they witnessed at Guantánamo. But as a whole, the institutions allowed themselves to be swept along in acquiescence. A security and intelligence apparatus can be thus destroyed.
In Russia, wrote Vladimir Bukovsky, the human rights campaigner who spent a dozen years in Soviet prisons and psychiatric hospitals, one czar after another “solemnly abolished torture upon being enthroned, and every time his successor had
to abolish it all over again.… They understood that torture is the professional disease of any investigative machinery.… Investigation is a subtle process, requiring patience and fine analytical ability, as well as a skill in cultivating one’s sources. When torture is condoned, these rare talented people leave the service, having been outstripped by less gifted colleagues with their quick-fix methods, and the service itself degenerates into a playground for sadists.”87
Two days after taking office, President Obama abolished torture. A few months later, he reduced the CIA’s role in interrogations, making the FBI the lead agency. It remains to be seen whether his successor will have to abolish it all over again.
Wounds will remain in any case. During the liberalization under Mikhail Gorbachev, the Soviet leader who permitted truth telling about the Stalinist past, I sat one day in the offices of a weekly magazine, Ogonyok, reading letters to the editor, mostly unpublished. In one, signed with the initials K.A., a former secret police interrogator confessed to inflicting torture decades before, asked his nation’s forgiveness, and lamented his haunting dreams: “Now the people in the cases I investigated visit me at night, and instead of fear in their eyes I see that they despise me. How can I tell these people I tortured, how can I explain that my damned life was a tragedy, too?”88
The tortured and the torturers share a mutual trauma, Bukovsky said. He remembered a prison doctor near tears as she forced a feeding tube down his bleeding nostrils, his guards pressing for leniency. “Our rich experience in Russia has shown that many [torturers] will become alcoholics or drug addicts, violent criminals or, at the very least, despotic and abusive fathers and mothers.”
To America he put this provocative question: “How can you force your officers and your young people in the CIA to commit acts that will scar them forever? For scarred they will be, take my word for it.”89
CHAPTER TWO
Confessing Falsely
One nasty morning Comrade Stalin discovered that his favorite pipe was missing. Naturally, he called in his henchman, Lavrenti Beria, and instructed him to find the pipe. A few hours later, Stalin found it in his desk and called off the search. “But, Comrade Stalin,” stammered Beria, “five suspects have already confessed to stealing it.”
—a 1950s joke, whispered in Moscow
BETWEEN TRUTH AND ILLUSION
IF YOU HAVE NEVER been tortured, or even locked up and verbally threatened, you may find it hard to believe that anyone would admit to a crime that he didn’t commit. Intuition holds that the innocent do not confess. What on earth could be the motive? To stop the abuse? To curry favor with the interrogator? To follow some fragile thread of imaginary hope that cooperation will bring freedom?
Yes, all of the above. In desperate helplessness, for short-term gain without regard for long-term consequences, the suspect simply concedes, or comes to accept in more complex fashion his own fabrications of guilt. Any policeman or prosecutor who doubts this should read Darkness at Noon, Arthur Koestler’s masterpiece set in Stalin’s Russia, whose protagonist, Rubashov, is maneuvered by his interrogator further and further from reality. “Even he himself was beginning to get lost in the labyrinth of calculated lies and dialectic pretences, in the twilight between truth and illusion. The ultimate truth always receded a step; visible remained only the penultimate lie with which one had to serve it.”1
It does not take outright torture. In the United States, psychological studies of confessions that have proved false show an overrepresentation of children, the mentally ill or retarded, and suspects high on drugs or drunk on liquor. They are susceptible to suggestion, eager to please authority figures, disconnected from reality, or unable to defer gratification. The problem is not limited to these groups. Mature adults of normal intelligence also confess falsely, and ignorance of constitutional rights and criminal procedure compounds the vulnerability.2
Most judges and jurors have not been there, so they can only imagine. And American imaginations are dominated by fantasy worlds of television and movies, where threatening interrogations inevitably produce truth, where tricks and torture magically open minds; Hollywood has little taste for showing tough cops cleverly extracting false leads and phony admissions. So while real-life judges do suppress confessions and jurors do disbelieve them at times, it is not a common outcome. Yet false confessions figured in about 24 percent of the 289 convictions reversed by DNA evidence, according to the Innocence Project’s count as of early 2012.3 Considering that DNA has been available for only the last two decades, and in just a fraction of criminal cases, many more erroneous convictions certainly occurred, and if nearly one out of every four involves a false confession, the problem is immense.
Furthermore, in every one of the Innocence Project’s cases, the confession was given years after the Supreme Court’s 1966 Miranda decision. Whether recited or written, the warning is supposed to accomplish two ends: to prevent inhumane treatment and to get at the truth. Abusing a suspect into lying obviously subverts the fact-finding goal of the criminal justice system, jailing the wrong person and leaving the criminal free. Miranda may have reduced physical harm, but false confessions still abound even where Miranda rights are read and signed, as they were by tortured victims in Chicago.
There and elsewhere, suspects have given away their rights under duress, in the same coercive atmosphere that presses them into admissions of guilt. But even where abuse is absent, children, mentally retarded adults, and many others tend not to grasp the concepts in the Miranda warning, which is often given as a perfunctory formality. “The cops are skillful at eliciting a waiver,” said Alan Hirsch, an expert on false confessions who teaches legal studies at Williams. “They treat it almost as an afterthought, mere paperwork: ‘Just sign, and we’ll talk.’ ” There is no grand announcement, no theatrical recitation that makes the prisoner stop, consider carefully, and take an informed decision. “The awful truth is that Miranda has limited utility for protecting the innocent,” he said. About 80 percent of those who are not guilty sign and keep talking, usually for the same reason that people consent to searches: the belief that their refusal will sow suspicion and that their innocence will free them.4
Detectives Mirandized a sixteen-year-old boy named Felix in Oakland, California, and subjected him to much less than torture, yet he still confessed to complicity in a murder he couldn’t have done. He wasn’t beaten, electrically shocked, shackled into stress positions, or deprived of sleep. He was isolated, harangued, threatened, and frightened—legally approved techniques designed to break down resistance to telling the truth. The methods surely do that in some cases, but in others they overwhelm resistance to saying whatever the cops want to hear.
During questioning, police themselves are permitted to lie by pretending to have evidence or eyewitnesses, by planting a suggestion that the suspect’s memory went blank while he committed the crime. A crafty interrogator can weave fictions into a story that even an innocent may accept.
“It’s not like they put him on the rack,” said Felix’s lawyer, Richard Foxall, a public defender. “It’s just the very nature of that door clanging behind you, when they’ve taken you literally out of the arms of your mother in front of your home.… That’s the sound of doom. You’re fifteen years old, they close that door with that metallic clang, that’s as final as final can be.”
Felix was fifteen in May 2005 when Antonio Ramirez was murdered. Witnesses who heard gunshots saw two dark-haired Hispanic-looking men in their late teens to mid-twenties run off, leaving Ramirez on the ground with seven bullets in his chest. “That was all the description that was provided,” Foxall noted. “There was a direction of flight.”5
Informants gave the cops the street names of a few hoodlums, which led to other names, and months later Detective Lou Cruz and Sergeant Mark Dunakin brought Felix into an interrogation room at night to ask him about the murder. Oddly, he didn’t fit the description, Foxall noted: he looked as young as his age and had such flaming red hair that people
called him Red.
Cruz and Dunakin seemed determined to fit the boy to the crime nonetheless. “They were pretty insistent that they knew he did it,” said his lawyer. “They used a combination of the late hour, deprivation of the ability to talk to anybody for a couple of hours, a lot of shouting and screaming. He believed they weren’t going to allow him to leave. They led him through a story. He nodded. Then they turned on the tape. He didn’t tell them anything useful, said he didn’t know anything about it, so after ten minutes they turned off the tape.” They accused him of lying and assured him that he’d mess up his life if he didn’t talk. One got so close that Felix was afraid he was about to be hit and asked the cop to back off.
Foxall hadn’t been assigned yet, so the boy had no attorney present, but he asked for his mother, a request that invokes the right to silence. It is supposed to halt the questioning of a minor as decisively as an adult’s demand for a lawyer.6 “They told him he wouldn’t get to speak to his mother until he spoke to them,” Foxall said.
To defuse the rising tension, Felix “started to make up stuff,” which was hard since he didn’t know any details of the crime, even the date. So Cruz and Dunakin used the standard ploy of many frustrated interrogators: they primed the pump by asking leading questions embedded with specifics, which Felix then fed back to them.
They wanted a diagram of the crime scene, he told his lawyer later, but whatever he drew bore so little resemblance to reality that the cops never produced it. When he described escaping in one direction after the killing, they told him he wasn’t making sense, because they knew from witnesses that the shooter had gone the opposite way. When he didn’t mention an alley nearby, they told him about it, and he incorporated it into his statement. “Now we’re getting somewhere,” said one officer, as Felix recalled to his lawyer.
Rights at Risk: The Limits of Liberty in Modern America (Vintage) Page 8