Although Bush administration officials have denied that they transfer terrorism suspects to countries where they are likely to be abused, a classified memorandum described in a court case indicates that the Pentagon has considered sending a captured militant abroad to be interrogated under threat of torture.
The classified memo is summarized -- its actual contents are blacked out -- in a petition filed by attorneys for Majid Mahmud Abdu Ahmad, a detainee held by the Pentagon at its Guantanamo Bay, Cuba, facility.
The March 17, 2004, Defense Department memo indicated that American officials were frustrated in trying to obtain information from Ahmad, according to the description of the classified memo in the court petition. The officials suggested sending Ahmad to an unspecified foreign country that employed torture in order to increase chances of extracting information from him, according to the petition's description of the memo.
The precise contents of the Pentagon memo on Ahmad were not revealed, but the memo was described in the petition by New York attorney Marc D. Falkoff, who contested the transfer of Ahmad and 12 other Yemenis in U.S. District Court in Washington this year.
Falkoff's description was not disputed by U.S. government lawyers or by U.S. District Judge Rosemary M. Collyer, who read the actual Pentagon document. The judge ruled in favor of the Yemenis on March 12, and Ahmad has not been transferred from the Guantanamo Bay detention facility.
The memo appears to call into question repeated assertions by the administration that it does not use foreign governments to abuse suspected militants -- what critics call "torture by proxy."
Pentagon officials did not return calls Wednesday seeking comment on the memo.
The U.S. record on treatment of detainees worldwide has overshadowed Secretary of State Condoleezza Rice's trip this week to Europe. She has faced a daily barrage of related questions, especially regarding the U.S. practice of snatching and transferring suspects from foreign countries and regarding reports that the CIA maintains secret prisons across Europe for terrorism suspects.
Ahmad was captured in Pakistan after the American invasion of Afghanistan in late 2001. The federal government charges that Ahmad was a bodyguard for Osama bin Laden and participated in "military operations against the United States and/or its coalition partners." Falkoff, of Covington & Burling, represents a number of Guantanamo detainees including Ahmad, and denies that his client has any links to terrorism.
Falkoff said he was allowed to review the classified Pentagon memo in preparing the defense case but was not permitted to comment on its contents beyond what was described in his legal filing.
Falkoff filed the petition for Ahmad and 12 other detainees March 11, after learning that the government had transferred a Saudi national from Guantanamo without notifying his lawyer and that the Pentagon was considering sending other detainees to foreign countries for imprisonment.
"I called the Justice Department and asked for guarantees that it would not transfer our clients while their cases were pending in court, or at least notify us if they intended to do so," Falkoff said. "The Justice Department said no -- that we were not entitled to any advance notification."
Falkoff argued that transferring detainees overseas would "have the effect of denying them access to U.S. courts for review of their detainment status and also potentially expose them to interrogation techniques and treatment that would be contrary to the laws of the United States."
He asked the court to order the government to give 30 days' notice before transferring a detainee so the transfer could be contested. Collyer agreed; the government has appealed.
Falkoff's petition quoted a section of the memo, but the quotation was blacked out in the unclassified version that is publicly available.
After the quotation is Falkoff's interpretation of the classified memo's significance: "There is only one meaning that can be gleaned from this short passage," Falkoff's petition says. "The government believes that Mr. Ahmad has information that it wants but that it cannot extract without torturing him." The petition goes on to say that because torture is not allowed at Guantanamo, "the recommendation is that Mr. Ahmad should be sent to another country where he can be interrogated under torture."
Falkoff said that he asked the Pentagon early this year to declassify the memo but had not received a response.
Human rights advocates said the implications of the memo were significant even though Ahmad ultimately remained at Guantanamo.
"Whether they sent him or not, the memorandum reflects their understanding of how the program functions," said Scott Horton, an attorney who helped produce a New York City Bar Assn. report last year on detainee transfers.
Of hundreds of detainees who have been kept at Guantanamo, more than 175 have been released and more than 75 others have been transferred to other governments, in many cases for continued detention. U.S. officials have delivered suspects to a number of countries, including Egypt, Jordan, Morocco and Uzbekistan, that are believed to still practice torture, as the State Department has acknowledged in its human rights reports.
Horton provided The Times with a November 2002 legal analysis by a senior FBI attorney that concluded that it would be illegal to deliver detainees to any "third country" that employs coercive interrogation techniques. The analysis said that taking such action was clearly intended to circumvent American laws against torture and that anyone even discussing such a plan could be found criminally liable.