Colonel discusses his refusal to prosecute a suspected terrorist

October 25, 2007Duke Law News

October 25, 2007 -- Lt. Col. Stuart Couch addressed a standing-room only crowd at Duke Law School Tuesday to explain why he made what he called the toughest decision of his military career: refusing to prosecute Mohamedou Ould Slahi.

Slahi was accused of helping to assemble the “Hamburg Cell” of terrorists, which included the hijacker of United flight 175, the second plane to hit the World Trade Center on September 11, 2001. The case against him, however, centered on admissions of guilt made during interrogations that Couch believed violated the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment. And prosecuting someone whose confession came as the result of suffering was not something Couch was willing to do.

“I’m just a trial lawyer. I’m nothing special,” Couch said, opening his remarks at the lunchtime event sponsored by the International Human Rights Law Society, Career Services, and the DBA. “With all of my cases, I’ve tried to take the approach, ‘what is the common sense evidence to present?’ That was my approach with the Slahi case.”

The Slahi case was of special interest to Couch: his former Marine friend, Michael Horrocks, was the co-pilot of United flight 175.

“I didn’t set out to be a poster-child for human rights — I really didn’t,” Couch said. “I was just starting to look at the case as a trial lawyer. I wanted to know the context of those interrogations. I wanted to know the interrogators who were in the room. I wanted to know what was going on.”

Through his investigations into the process by which statements had been obtained from Slahi, Couch eventually reached the conclusion that they had been coerced under conditions that violated the standards of UN Convention against Torture.

“[Slahi] was subject to long interrogations. He was subject to isolation. Ultimately, they spun a ruse with him that his mother and brother had been taken into custody,” Couch said, indicating that Slahi was also subject to other interrogation methods he was unable to discuss. In the end, Slahi was presented with a document on U.S. State Department letterhead that expressed concern about Slahi’s mother being the first woman prisoner at Guantanamo and what might happen to her, Couch said.

“Maybe I’ve got a small strike zone, but when I saw that document, after everything else I had seen, that’s when I finally said that’s it. What’s going on here, in my view, was a violation of the UN Convention against Torture,” Couch said. “I felt like he was enduring mental suffering and what was frustrating to me was that it was at the hands of the United States government.”

Couch had developed an understanding of what he perceived to be torture during SERE (Survival, Evasion, Resistance and Escape) school, part of his training to be a pilot. “It’s basically a school we have where you learn how to be a POW,” Couch explained. “It’s a week long and you talk a lot about the Geneva Conventions and the protections afforded by the Geneva Conventions. We talked about the code of conduct, too, and then we got to have some ‘classroom experience.’”

That “classroom experience” included four days of survival training in a simulated prisoner of war camp and then being brought in for mock interrogations. Though he called some of the interrogation techniques “interesting,” Couch made clear that his situation was voluntary and he knew the training was intended to prepare him for the worst should he fall into enemy hands. “One of the abiding senses I had while going through SERE school was, ‘thank God I’m an American and we don’t do these kinds of things,’” Couch said.

Couch said that his position as an evangelical Christian also shaped his opinions about how Slahi had been treated. One tenet of the Christian faith is that humans were created by God and have an inherent human dignity because of that, Couch said. “[Slahi] could be the most despicable person on the planet, but he’s got inherent human dignity… to the point that we shouldn’t abuse him.”

After deciding that the evidence against Slahi should not be admissible due to the circumstances under which it was gathered, Couch approached the chief prosecutor to express his concerns and, after a disagreement about the application of international law, he was pulled off of the case. Couch later served as lead prosecutor in Hamdan v. Rumsfeld. His refusal to prosecute Slahi became public when he told the story to a Wall Street Journal reporter during an interview about Hamdan. Couch says he is unsure what happened to the Slahi case after he was removed, but Slahi is still being held at Guantanamo.

Couch, now a judge on the Navy-Marine Court of Criminal Appeals, concluded his talk with advice from his own legal career. “If you take nothing else from my situation, about what I did, then take this: you have a number of experiences that you will bring to every case, but not one of those can be the prevailing factor that you base your decisions on,” he said. “You must trust your moral compass.”

“Don’t check your common sense at the door,” he added. “Take those experiences that you have and apply them — use them as a filter — and you’ll be able to make a good decision.”