Wednesday, October 19, 2005

Motion to Suppress





No. 03 CR 978
Judge Amy J. St. Eve


Now comes Muhammad Salah, through his undersigned counsel, and pursuant to his rights under the Fourth, Fifth, Sixth and Eighth Amendments to the United States Constitution, International Human Rights Law, including the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, the International Covenant on Civil and Political Rights, Customary International Law (jus cogens), and Rule 12 of Fed. R. Crim. Pro., and moves to suppress all statements or writings, written and oral,1 he is alleged to have made to agents of the Israeli government including the Israeli police, interrogators of the General Security Service (GSS), and others working with the GSS, subsequent to his unlawful arrest by authorities of the government of the State of Israel in January of 1993,2 and the fruits of his illegal arrest3 and interrogation which the prosecution seeks to put in evidence at the trial of this cause.

In support of this motion, Mr. Salah submits the attached affidavit and memorandum of law and states the following:

1. Mr. Salah was arrested without probable cause or legal justification at a Gaza checkpoint at gunpoint on January 25, 1993 by approximately 20 soldiers. Mr. Salah was immediately blindfolded, handcuffed, and thrown into a military jeep. A group of soldiers then drove him around for hours repeatedly kicking him, hitting him with the butts of their rifles, hitting him with their fists, threatening him, and yelling racial and personal insults at him.

2. At some point Mr. Salah was taken to a military interrogation facility in Ramallah, where he was kept hooded and handcuffed, denied access to counsel pursuant to Israeli military law, and immediately placed in total isolation.

3. For more than 80 days, Mr. Salah was subjected to a highly sophisticated and terrifying regime of physical and psychological coercion carried out by a group of interrogators and their agents who were acting pursuant to written interrogation policies of the Israeli General Security Service (GSS) allowing for physical and psychological coercion.4

4. The GSS interrogators involved in this program of coercion to break the will of Mr. Salah were known by the names Abu Hassan; Nadav; Benny; Cohen; Haim (Chaim); Abu Ghazi (Abu Razi); Arik; Itzic; Amir; Majidi; Ilias; Carmel (Carmi); Victor; Dani; and Abu Daoud.

5. In addition, Israeli police officers Meron Suleyman and Hezi Eliyahu were also involved in these interrogations, along with other police officers whose names are not yet known by the defense. Some of these men forced Mr. Salah to sign statements in Hebrew, even though he did not speak, read or understand the language.

6. As part of their regime of coercion, these interrogators and others subjected Mr. Salah to intensive interrogation over long periods during all hours of the day and night. When he was not under active interrogation, he was still not allowed to sleep, but was held in a “waiting” posture, in which he had his head covered with a filthy rancid smelling hood, which severely limited his ability to breathe or see.

7. During much of the time he was held “waiting,” Mr. Salah was handcuffed in a painful fashion behind his back to a tiny, low chair, approximately 20 centimeters in height, which was slanted at a 45 degree angle. This chair is commonly known by the GSS and their victims as a “Shabi” or “Shabach.” It caused Mr. Salah severe pain and stress, including intense circulatory discomfort, intense back pain, severe cramping, and loss of sensation in his arms and legs. The use of this chair was sanctioned by written policies of the GSS and by official Israeli government policy.

8. When he was not under interrogation or hooded and “waiting,” Mr. Salah was held in freezing cold conditions in a tiny dark cell the size of a small closet, in which he could not sit or lie down. During the initial days of his interrogation, he was forced to try to sleep in this freezing tiny cell, referred to by the GSS as the “refrigerator,” without a mattress or blanket. The use of the tiny cell was specifically sanctioned by written GSS policies.

9. In addition, while Mr. Salah was in the refrigerator cell, deafening, loud music was played. Further, Mr. Salah constantly heard the chilling sounds of people crying and screaming in pain. He heard the sounds of punching and kicking. This caused him indescribable stress. Subjecting detainees to these loud and terrifying noises was specifically sanctioned by written GSS policies.

10. During his interrogation, Mr. Salah was repeatedly punched and slapped by a GSS interrogator known as “Haim,” who appeared to be in charge, and other interrogators. He was also repeatedly threatened with further violence and even death, and with harm to his family in the United States, through the FBI, who the interrogators claimed would act upon Israel’s instructions. The use of physical force and threats of violence was specifically sanctioned by written GSS policies.

11. Mr. Salah was also threatened while naked in the interrogation room with having his picture taken with a camera, a very humiliating act in his culture or any culture, and he lived in constant fear of sexual assault.

12. Further, Mr. Salah was told that if he did not provide information, he would be held indefinitely in these conditions, without ever seeing a lawyer or being brought before a judge, and that he was in a military occupation zone and only the interrogators rules and law applied.

13. Mr. Salah was denied the right to be questioned and to respond in English and was required to speak in Arabic and was forced to sign a statement in Hebrew, a language which he did not speak, read, or understand.

14. In addition, Mr. Salah was repeatedly denied his request for a lawyer and did not have access to a lawyer for several weeks. Even after attorney Avigdor Feldman, a noted Israeli defense counsel and human rights advocate, began his representation of Mr. Salah, he was denied access to his client and was unable to obtain legal correspondence which was seized by the interrogators.

15. Mr. Salah also received threats to himself and his family from others working with the GSS, including prison guards, police, and prisoners.

16. Mr. Salah was placed in a cell for days with Palestinian prisoners working with the GSS known as “birds.” These prisoner-agents, directed by the GSS, carried out a brutal and strategic plan to torture Mr. Salah and force him to create a written “statement.” The use of “birds,” “speech elicitors,” or “medovevim” was documented and sanctioned in GSS policy statements and memoranda.

17. These “birds,” agents of the GSS, viciously brutalized and tortured Mr. Salah and threatened his life and the life of family if he did not create a written statement. The GSS interrogators regularly met with the “birds” to direct the physical and psychological terror on Mr. Salah to coerce him to provide information in a written statement. Much of this information was provided to Mr. Salah in written questions and other writings to be included in the statement. If he refused, it was made clear to him that he would be further tortured by the “birds.”

18. The use of “birds” against Mr. Salah is documented in memoranda authored by GSS interrogators.5

19. These GSS interrogators then used the coerced written statement provided by Mr. Salah to continue these interrogations and further coerce Mr. Salah to ratify the information in the written statement.

20. The interrogation practices that the Mr. Salah was subjected to were part of a routine, systematic, policy of the GSS to break the spirit and will of Palestinian prisoners, and at the time of his interrogation, these policies and practices were officially sanctioned by the highest levels of the Israeli government in official policy statements of the Israeli government in the Landau Commission Report and the GSS policy memorandums.

21. These policies and methods, including the use of the small chair (“Shabach”), sleep deprivation, hooding, deafening noise, and physical force were finally condemned by the Israeli Supreme Court in 1999. The Israeli high court found that these practices constituted violations of international treaties prohibiting torture, cruel, inhumane, and degrading treatment to which Israel was a signatory and constituted unreasonable interrogation methods under Israeli domestic law. See Public Committee Against Torture in Israel et al., v. The State of Israel and The General Security Service, et al., (HCJ 5100/94 et al., decided 1999).

22. These GSS practices and policies have also been investigated, documented and condemned by Israeli, Palestinian and International Human Rights Organizations. (See, e.g. Human Rights Watch Report; Torture and Ill-Treatment, Israel’s Interrogation of Palestinians from the Occupied Territories, June 1994; see also Reports of B’Tselem-The Israeli Information Center for Human Rights in the Occupied Territories, Torture During Interrogations: Testimony of Palestinian Detainees, Testimony of Interrogators, November, 1994; Routine Torture: Interrogation Methods of the General Security Service, February, 1998; The Interrogation of Palestinians During the Intifada, March, 1992.

23. The statements alleged to have been given by Muhammad Salah were not voluntary and were not the product of his free will, but rather, were the result of torture, cruel, inhuman and degrading treatment, extreme physical and psychological coercion, and were in violation of the Fifth and Eighth Amendments to the U.S. Constitution and international law that is binding on the U.S. courts. Consequently, all of the defendant’s statements are involuntary and must be suppressed for all purposes. Additionally, the fruits of any and all such statements must be suppressed.

24. Furthermore, Mr. Salah was denied access to a lawyer and was never brought before an impartial judicial officer, in violation of his Sixth Amendment rights, and the fruits of this violation must also be suppressed.

25. In addition, Mr. Salah was not provided with any admonitions of his right to an attorney or to remain silent as required under Miranda v. Arizona. Since his arrest and interrogation were part of a “joint venture,” and additionally, because the methods employed in the interrogation of Mr. Salah “shock the judicial conscience,” all fruits of this Miranda violation must also be suppressed.

26. Finally, the statements, evidence seized, and other fruits of Mr. Salah’s arrest were the product of a violation of his Fourth Amendment rights and must be suppressed.

Wherefore, the defendant, Muhammad Salah, after the production of all relevant documents, seeks a pre-trial evidentiary hearing with the testimony of all witnesses who were present during the arrest and interrogation or have knowledge of the arrest and interrogation of Muhammad Salah, and after the conclusion of such hearing, Mr. Salah requests that this Court order the suppression of all statements and the fruits such statements which the prosecution seeks to put in evidence for any purpose at any stage of the trial of the above-entitled case.

Respectfully submitted,
People’s Law Office
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