Archive for October, 2007

I’m pleased to report that my newly published book The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison (already on sale, I hasten to add) will be officially launched on Wednesday, 28 November at Bookmarks, 1 Bloomsbury Street, London WC1B 3QE.

The event starts at 6.30 pm, and I will be joined for a discussion about Guantánamo by Moazzam Begg, former Guantánamo detainee, spokesman for Cageprisoners and author of Enemy Combatant, and Zachary Katznelson, senior counsel for Reprieve, the legal charity that represents dozens of Guantánamo detainees.

Entrance is free, but to reserve a place please phone 020 7637 1848 or email via Bookmarks’ website.

The story of Guantánamo detainee Lofti Lagha, which I first broke here, and subsequently reported on here and here, reached a predictably sad conclusion last week when he was sentenced to three years in prison. The 39-year old, who had traveled to Afghanistan in 2001 after several years as an illegal immigrant in Italy, was captured in Pakistan at a time when bounty payments for Arabs were commonplace, and has claimed that his fingers, which were affected by frostbite as he escaped Afghanistan through the Tora Bora mountains, were unnecessarily amputated while he was in prison at the US airbase in Bagram.

Lagha’s trial –- four months after his repatriation from Guantánamo –- bore all the hallmarks of an unjust show trial. Allegations that he received military training in Afghanistan and fought with the Taliban regime were dropped, and he was, instead, convicted of “associating with a criminal group with the aim of harming or causing damage in Tunisia,” even though, as the Associated Press reported, the Tunisian authorities “did not name the group that Lagha was said to participate in or specify what its planned violence was,” and even though Lagha himself insisted during the trial, “I haven’t been involved in any terrorist activity. I went to Afghanistan for work.” Speaking after the verdict was announced, his lawyer, Samir Ben Amor, said he was “disappointed” with the verdict, and stated that he would lodge an appeal, adding, “We thought he would get justice in his own country after what he endured at Guantánamo.”

While casting the regime of Tunisian dictator Zine El Abidine Ben Ali in a predictably bad light, the verdict also does nothing to assure critics of the US administration that the “diplomatic assurances” received from Tunisia regarding the status of detainees returned from Guantánamo are anything other than worthless. This was, after all, a man that the US authorities had cleared for release after over five years in custody, as close to an admission of wrongful arrest as the notoriously unapologetic Bush regime ever gets.
Those concerned about the administration’s ongoing attempts to break international safeguards preventing the return of cleared detainees to the countries of their birth, where they face the prospect of torture, should keep a close eye on the authorities over the coming months, as they attempt to erase their many mistakes, sending cleared men not just to Tunisia, but also –- in a plot in which the British government is also complicit –- to Libya and Algeria.

A glimmer of hope was provided last month, when a principled judge, Gladys Kessler, acted to prevent the government from returning another cleared Tunisian, Mohammed Abdul Rahman, to his homeland, stating, unequivocally, that, in light of the forthcoming Supreme Court review of the detainees’ rights, which “cast a deep shadow of uncertainty” over previous rulings restricting these rights, “it would be a profound miscarriage of justice” if the court denied Abdul Rahman’s petition to remain in Guantánamo, because of “the grave harm [he] has alleged he will face if transferred.”

It’s too late for Lofti Lagha, but his case demonstrates, with appalling clarity, why the US administration must be kept under constant pressure to find other destinations –- in third countries, or even, dare I suggest, on the US mainland –- for the many men whose lives have been ruined by being in the wrong place at the wrong time. Unjustly imprisoned, held without charge or trial and subjected to wanton violence for nearly six years, they surely deserve better than this.

[Note: Mr. Lagha’s first name is spelled incorrectly. It is “Lotfi” not “Lofti.” For more on the Tunisian detainees in Guantánamo, see Human Rights Watch’s recent report, Ill-Fated Homecomings (which demonstrates the arbitrary nature of Tunisian justice by establishing that eight other Tunisians in Guantánamo have been convicted in absentia on extremely dubious evidence), and my newly published book The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison].

In a fascinating article for the Washington Post, “The Smart Way To Shut Gitmo Down,” Matthew Waxman, a teacher at Columbia Law School, who was deputy assistant secretary of defense for detainee affairs in 2004-05, calls for the closure of Guantánamo, conceding that, although “the ongoing threat of terrorism is very real … it does not follow that we must keep Guantánamo Bay open –- or even that the prison helps our fight against al-Qaeda.”

While refusing to condemn what he tellingly describes as “the improvised decision to create Guantánamo Bay’s detention site in 2002,” Waxman insists, nevertheless, that he wants “to challenge its continued operation in 2007,” adding, “Fair-minded people can differ over whether the Bush administration was justified in sending suspected al-Qaeda fighters there immediately after Sept. 11, 2001, but as time wears on, it’s almost impossible to argue that the prison is keeping us safer.” Referring to President Bush’s declaration last year that “he would like to see Guantánamo Bay closed, if he could do so without putting Americans in greater danger,” Waxman concludes, “He can, and he should,” adding, “My experience advising former defense secretary Donald H Rumsfeld and Secretary of State Condoleezza Rice on these issues has convinced me that there’s a way out, but it will take some painful truth-telling to get there. For even if Guantánamo Bay could be defended in legal or moral terms, it still hurts us more than it helps us in battling al-Qaeda.”

These are significant statements, given added weight by Waxman’s choice of wording: his references to “fair-minded people,” to questions of justification, and, in particular, to the legal and moral defense of Guantánamo, in which he chooses to write, “even if Guantánamo … could be defended,” rather than, “even if Guantánamo … can be defended.” And even his apparent swipe at some of Guantánamo’s opponents –- dismissing as “a fantasy” their “soothing notion” that “everyone at the prison is an innocent bystander erroneously swept up in post-9/11 dragnets” –- is immediately countered by the frank admission that “the Bush administration’s dogged insistence that all the detainees there are the ‘worst of the worst’” is also a fantasy.

Similarly, while defending the “valuable intelligence” obtained from Guantánamo, Waxman admits that much of this information has come “from detainees who haven’t been involved in terrorist plotting for years now,” and while critics, who are aware of the appalling isolation in which the majority of the detainees are held, may take exception to the “improved general conditions” he describes, which are “humane by the standards of US and European prisons,” he is to be applauded for another frank admission, that “Guantánamo Bay’s defenders hurt their own credibility when they refuse to acknowledge the well-documented abuse that has occurred there.”

Waxman’s proposed solutions are not always above criticism, but they are –- with a few notable exceptions –- generally balanced, and demonstrate a commitment to finding a way forward that maintains national security, but not at the expense of justice. Broadly speaking, this involves “transferring many of the detainees to their home countries, sending some to third countries and bringing the remainder –- including those who would be prosecuted for war crimes –- to secure facilities in the United States.”

While this seems to me to be both sensible and practical, I do have strong reservations about some of Waxman’s other conclusions. He writes, for example, that “the evidence against a particular suspect often can’t be presented in open civilian court without compromising intelligence sources and methods,” adding, rather coyly, I think, “Or the evidence may not be admissible under US criminal law rules.” What this means is preventing all mention of torture by US forces, whereas this is one Pandora’s Box whose lid will one day have to be prised open and dealt with, if the United States is ever to regain any kind of moral standing. And while few would dispute his point that “a durable, long-term framework for handling detainees” is needed, it’s profoundly disturbing that he seeks a solution that “lets us hold the most dangerous individuals and collect intelligence from them (including through lawful interrogation).” Read between the lines: it means, “also including through unlawful interrogation.”

These substantial caveats aside, Waxman’s overall drive –- to find a way of “forging a broad agreement about the minimum acceptable conditions for any long-term detention process, firmly within the rule of law” –- is to be commended, as a basis for crucial discussions that need to be undertaken. In the end, however, what makes his change of heart so significant is that, back in 2004 and 2005, while he was deputy assistant secretary of defense for detainee affairs, he apparently played a significant role in manipulating the results of at least one of the Combatant Status Review Tribunals, the military reviews convened to assess whether the detainees had been correctly designated as “enemy combatants.” Heavily criticized by lawyers and human rights activists for denying detainees access to lawyers and relying on classified evidence based on hearsay, coercion and torture, the tribunals have recently been subjected to severe criticism from former insiders who served on the panels or were involved in compiling the “evidence” used in them, as a collection of articles published here demonstrates in no uncertain terms.

In the case of Anwar Hassan, one of 22 Uyghur detainees (Chinese Muslims from the Xinjiang province), it was, apparently, on Waxman’s explicit instructions that Hassan, who was cleared in his first CSRT, was subjected to a second CSRT that reversed the decision made in the first tribunal. As I reported in July, Hassan’s lawyers, Angela Vigil and George Clarke, noted that, “[c]ontrary to the government’s suggestion,” the change of determination between the first and second CSRTs was not based on “additional classified information,” (of which there was none) but seemed, instead, to have been based solely on “communications” from Matthew Waxman “pressing for [a] reversal” of the first CSRT determination.

With the benefit of this information, perhaps the most personally revealing passage in Waxman’s Washington Post article is his confession that “Some of [the detainees] should never have been there (including several supposed jihadists turned over for bounty based on assertions that later proved flimsy).” His corollary, that “such imprisonments have had tragic and dangerous consequences,” is therefore welcome, as are the concluding lines of his article, in which he writes, “Both of these proposals –- shutting Guantánamo Bay and establishing robust judicial review of detentions –- carry risks. But those risks should kick-start the discussion, not end it. Detention policy is not about eliminating dangers, but about balancing and managing competing dangers. And keeping Gitmo open –- sapping US prestige, alienating our allies and handing al-Qaeda a propaganda tool –- carries downsides, too. Civil libertarians and security-minded hawks will both no doubt criticize these suggestions. But it’s past time to close Guantánamo Bay. Rumsfeld, my former boss, famously described the prison in 2002 as the ‘least bad option.’ Whatever the validity of his assessment then, my plan for shutting Gitmo is less bad now.”

As one of these “civil libertarians” myself, I may surprise Matthew Waxman by fully endorsing his attempts to kick-start a meaningful dialogue about Guantánamo and the treatment of prisoners captured in the “War on Terror,” even if I do not agree with all his conclusions. I also note, however, that by repudiating claims by the administration that Guantánamo houses the “worst of the worst,” by conceding frankly that profound mistakes have been made (which implicitly condemns the administration’s claims that those who are cleared for release are not innocent, but are, instead, “No Longer Enemy Combatants”), and by highlighting the damage caused to the reputation of the United States, Waxman has, in many significant ways, actually joined the “civil libertarian” camp.

Far from insisting that everyone in Guantánamo is an “innocent bystander” –- though many hundreds are, and many hundreds more were no more than foot soldiers in an inter-Muslim civil war which preceded 9/11 –- lawyers and human rights activists have maintained, for nearly six years now, that, whether “terrorists” or not, the only legitimate way to establish the facts and to proceed with prosecutions is to work within existing laws, and not to invent alternatives, which –- like the reviled tribunals on which Waxman has eventually cast a critical eye –- have more in common with repressive dictatorships than with the principles on which the United States was founded.

As published on CounterPunch.

[Note: For more on the tribunal process, and the legal struggles for the rights of the Guantánamo detainees, see my newly-published book The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison].

The grim story of the Guantánamo suicides –- the deaths of three men, Ali al-Salami, Mani al-Utaybi and Yasser al-Zahrani in June 2006, and another, Abdul Rahman al-Amri, in May this year –- took another turn last week, when, in the absence of the Naval Criminal Investigative Service’s long-awaited report into the deaths, Navy Capt. Patrick McCarthy, the senior lawyer on Guantánamo’s management team, spoke out in an interview, declaring that all four men had killed themselves with “craftily fashioned nooses.”

Yasser al-Zahrani.

Speaking as the ridiculous saga of smuggled underwear continued to make waves in the media, McCarthy attempted to highlight the seriousness of the administration’s response to ludicrous claims that underwear had been surreptitiously delivered to two detainees, saying, “There was a Speedo in the camp and someone can hang himself with it. The Speedo also has a drawstring on it. The drawstring can be used to tie the Speedo, the noose apparatus up onto a vent.’”

Breaking with protocol, McCarthy also spoke about the deaths in Guantánamo, claiming that he had personally seen “all four men dead –- each one hanging –- and that the first three men had used sling-style nooses.” This is the first time that a representative of the US military has spoken openly about the death of al-Amri, who, McCarthy said, had fashioned “a string type of noose” to kill himself, although Carol Rosenberg of the Miami Herald, who reported the story, added that “he did not elaborate.”

The circumstances of the men’s deaths have long been contentious. After the 2006 suicides, many former detainees who had known the men spoke of their shock and incredulity at the news. Tarek Dergoul, a British detainee released in 2004, spent three weeks in a cell beside al-Utaybi. He recalled “his indefatigable spirit and defiance,” and pointed out that he was “always on the forefront of trying to get our rights.” He had similar recollections of al-Zahrani, describing him as ”always optimistic” and “defiant,” and adding that he “was always there to stand up for his brothers when he saw injustices being carried out.”

In a press release shortly after the deaths were announced, former detainees, including the nine released British nationals, “poured scorn” on allegations that the deaths were suicides, and claimed that they were “almost certainly accidental killings caused by excessive force” on the part of the guards. A note of caution, however, was provided by British resident Shaker Aamer, who was told by a guard in Camp Echo, an isolation block where they were held for some of the time (and where Aamer himself has now spent two years and two months without any meaningful human company), “They have lost hope in life. They have no hope in their eyes. They are ghosts, and they want to die. No food will keep them alive now. Even with four feeds a day, these men get diarrhea from any protein which goes right through them.”

As the NCIS has, inexplicably, yet to conclude its investigation, it’s impossible to know at this point what the official conclusion will be. Clearly, the military has stepped back from its initial response, when the prison’s commander, Rear Admiral Harry Harris, attracted worldwide condemnation for claiming that the men’s deaths were “an act of asymmetric warfare.” As was revealed in documents released by the Pentagon earlier this year, however, which described, in minute and numbing detail, the weights of all the detainees in Guantánamo throughout their detention, all three men had been long-term hunger strikers, and two had been strapped into restraint chairs and force-fed until days before their deaths. This deliberately painful process, designed to “break” the strikers, is, it should be noted, illegal according to internationally recognized rules regarding the rights of competent prisoners to undertake hunger strikes, but in this, as with almost everything else at Guantánamo, the administration regards itself as above the law.

Al-Zahrani was force-fed several times a week from the start of October 2005, and daily from November 14 to January 18, 2006, during which time his weight fluctuated between 87.5 lbs and 98.5 lbs. Al-Utaybi, who weighed just 89 lbs at various times in September and October 2005, was force-fed several times a week from July to September 2005, and daily from December 24 to February 7, 2006. Crucially, his force-feeding began again on May 30, 2006, and continued until the records ended on June 6, just three days before his death.

Even more disturbing is the chronicle of al-Salami’s hunger strike. Although his weight loss did not appear as dramatic –- he weighed a healthy 172 lbs on arrival in Guantánamo –- he lost nearly a third of his body weight at the most severe point of his hunger strike, when his weight dropped to 120 lbs. What was particularly disturbing about his weight report, however, was the revelation that he was force-fed daily from January 11, 2006 until, as with al-Utaybi, the records ended on June 6, just three days before his death.

Ali al-Salami.

Given this information, it’s unsurprising that those who are suspicious of the administration –- and of Capt. McCarthy’s supposed frontline recollections –- might conclude, as the former detainees suggested, that it would not have taken much on the part of the authorities to finish off three men who had persistently aroused the wrath of the administration through their lack of cooperation and their hunger strikes, and who were all critically weak at the time of their deaths.

As for al-Amri’s death, Carol Rosenberg noted that suspicions over the circumstances of his death have been exacerbated by the fact that he died in Camp Five, one of the prison’s maximum security blocks. She explained that “prison camp tours for media and distinguished visitors emphasize that Camp Five is designed with suicide proofing such as towel hooks that won’t bear the weight of a detainee, to prevent him from hanging himself,” and that, moreover, “the tours emphasize that each captive, housed in a single-occupancy cell, is under constant Military Police and electronic monitoring, which means a guard is supposed to look in on him at least every three minutes.”

An even more critical approach to al-Amri’s death was presented by lawyer Candace Gorman, who reported last week on a visit in July to one of her clients, Abdul Hamid al-Ghizzawi. A Libyan shopkeeper, who is married to an Afghan woman and has a child that he has not seen for six years, al-Ghizzawi was “visibly shaken” on meeting Gorman, and immediately told her of his “despair” over al-Amri’s death. As Gorman described it, “Al-Ghizzawi knew that Amri had been suffering from Hepatitis B and tuberculosis, the same two conditions from which he himself suffers. Like al-Ghizzawi, Amri had not been treated for his illnesses. Al-Ghizzawi, now so sick he can barely walk, told me that Amri, too, had been ill and then, suddenly, he was dead.” Al-Ghizzawi’s conclusion, as described on Gorman’s website, was that al-Amri had actually died of “medical neglect,” although she also noted that al-Ghizzawi “had mentioned that Amri had engaged in hunger strikes in the past but had stopped a long time ago because of his health.”

While this was correct, one can only wonder what the effect on al-Amri’s health had been of his participation in the mass hunger strike in the fall of 2005, when his weight, which had been 150 lbs when he arrived in Guantánamo in February 2002, dropped at one point to just 88.5 lbs, and he was force-fed, often several times a week, from October 2005 to January 2006. Like the three men who died in June 2006, al-Amri was a non-cooperative detainee, who had refused to take part in any of the sham tribunals and administrative reviews at Guantánamo, and it does not take much imagination to conclude that, with his severe and untreated illnesses, he, like the three men the year before, could actually have died not through medical neglect, but as another “accidental killing caused by excessive force” on the part of the guards.

I do not profess to know the truth of the matter one way or the other, but in revisiting the stories of these men’s deaths I hope to have demonstrated that, far from clearing the air, Capt. McCarthy’s comments have, ironically, served only to revive Guantánamo’s most tragic stories, which, presumably, the rest of the administration hoped had been forgotten. Sixteen months after the first deaths, and four months after the additional death that caused such distress to Abdul Hamid al-Ghizzawi, it is surely time for the investigators of the Naval Criminal Investigative Service to deliver their verdict.

As published on CounterPunch and American Torture. An edited version also appeared on the Huffington Post.

[Note: For more on the deaths in 2006 at Guantánamo, including the feebleness of the allegations against the men, and more on the hunger strikes and other suicide attempts, see my newly published book The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison].

[Additional note: The Pentagon referred to Mani al-Utaybi as Mana al-Tabi, and to Ali al-Salami as Ali Abdullah Ahmed. Al-Utaybi’s name was also transliterated in some reports as Manei al-Oteibi, and al-Salami was also known as Salah al-Salami].

As if there was any doubt that politics, rather than justice, drives much of the US administration’s Guantánamo policy, Harper’s magazine reports that a US military officer has shed light on the murky process involved in the release of Australian detainee David Hicks from Guantánamo in May.

Hicks, a convert to Islam who was sold to US forces after the fall of the Taliban in northern Afghanistan, was sent back to Australia to serve a nine-month sentence after accepting a plea bargain during his trial by Military Commission in March. Commentators at the time were deeply suspicious of the deal, as it involved him renouncing well-documented claims that he was tortured and abused in American custody. By agreeing to drop these allegations, and to admit providing “material support for terrorism,” he was given a sentence far shorter than that which prosecutors had first mooted –- up to 20 years, according to some reports, which would have been comparable to the draconian sentence imposed on John Walker Lindh, the “American Taliban,” in 2002 –- and was allowed to fulfil his dearest wish: to be freed from Guantánamo, and to return home.

David Hicks during his trial by Military Commission in March.

According to the officer who spoke to Harper’s, Hicks’ deal was arranged by Vice President Dick Cheney and Australian Prime Minister John Howard. “One of our staffers was present when Vice President Cheney interfered directly to get Hicks’ plea bargain deal,” the officer said. “He did it, apparently, as part of a deal cut with Howard. I kept thinking: this is the sort of thing that used to go on behind the Iron Curtain, not in America.” He added, pointedly, “And then it struck me how much this entire process had disintegrated into a political charade. It’s demoralizing for all of us.”

Although Howard, perhaps protesting a little too much, claimed after the deal was cut, “We didn’t impose the sentence, the sentence was imposed by the military commission and the plea bargain was worked out between the military prosecution and Mr Hicks’ lawyers,” there are good reasons for doubting that this was the case.

In the first instance, the deal appears to have been the first time that major disagreements arose between the Commissions’ convening authority, retired judge Susan J. Crawford, who, many years ago, worked with Cheney at the Department of Defense, and Col. Morris Davis, the Commissions’ chief prosecutor, who recently resigned after complaining about interference from his superiors. In a move that would have humiliated and enraged Morris, he was sidelined completely while Crawford arranged the deal with her political masters (i.e. with Cheney).

And secondly, both Cheney and Howard had much to gain from the deal. Cheney, the chief architect of America’s post-9/11 torture policy, got to keep a lid on allegations of torture by the US military, and Howard –- who faced a growing backlash in Australia against his refusal to act on Hick’s behalf –- managed to placate his critics while ensuring that Hicks would remain in prison until after the next election.

Their ploys will hopefully backfire –- with Howard losing the forthcoming election and Cheney unable to keep the torture genie in the bottle forever –- but there seems little reason to doubt that the unnamed military officer who spoke to Harper’s was embellishing the sordid truth about political maneuvering that his recollections have revealed.

[Note: For further information about David Hicks (and John Walker Lindh), see my newly-published book The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison].