There’s an empty chair at Malcolm Nance’s hearing before a subcommittee of the House Judiciary Committee on torture this morning. That chair was supposed to be occupied by Marine Lt. Colonel Stuart Couch. In 2004, Couch, a then a prosecutor, refused to bring charges against a 9/11-linked detainee at Guantanamo Bay, Mohamedou Ould Slahi, after determining that the basis for the charges — Slahi’s confession — were yielded by torture, as the Wall Street Journal reported earlier this year.
The subcommittee wanted to hear about Couch’s experiences. But the Pentagon refused to let him testify. The Journal:
Asked last week to appear before the panel, Col. Couch says he informed his superiors and that none had any objection.
Yesterday, however, he was advised by email that the Pentagon general counsel, William J. Haynes II, “has determined that as a sitting judge and former prosecutor, it is improper for you to testify about matters still pending in the military court system, and you are not to appear before the Committee to testify tomorrow.” Mr. Haynes is a Bush appointee who has overseen the legal aspects of the Pentagon’s detention and interrogation policies since Sept. 11, 2001. The email was reviewed by The Wall Street Journal.
Subcommittee chairman Rep. Jerrold Nadler (D-NY) commented, “He was never expected to testify on behalf of, or as a representative of, the Defense Department. Indeed, Mr. Couch has already spoken extensively about this issue publicly. It is outrageous that Congress is yet again having its oversight role undermined by being denied access to an individual that could give expert testimony on the critical issue of torture.”
Here’s what happened to Slehi that shocked Couch’s conscience:
Mr. Slahi, who is alleged to have helped recruit several of the Sept. 11 hijackers, is one of two high-value Guantanamo prisoners who were authorized to undergo “special” interrogation methods. In addition to allegedly suffering physical beatings and death threats, Mr. Slahi was led to believe that the U.S. had taken his mother hostage and might ship her to Guantanamo Bay, where she would be the sole female amid hundreds of male prisoners.
Col. Couch, now a military judge, said he reluctantly concluded it would be impossible to prosecute Mr. Slahi without relying on tainted evidence. The decision was particularly difficult, Col. Couch said, because a Marine buddy, Mike Horrocks, had been the co-pilot on the hijacked United 175, which struck the World Trade Center — and because Col. Couch believed Mr. Slahi indeed had taken part in the Sept. 11 conspiracy. After Col. Couch advised superiors that the tainted evidence made it impossible to proceed against Mr. Slahi, the prosecution was shelved. A Pentagon investigation concluded the abuses didn’t meet the legal definition of torture.
Update: This post originally misstated when Couch refused to bring charges against Slahi. It was 2004, not 2007. I regret the error.