The US Department of Defense announced today that Ahmed Khalfan Ghailani, a Tanzanian captured after a gunfight in Gujrat, Pakistan in July 2004, would be the fifteenth Guantánamo prisoner to be tried by Military Commission, in connection with his alleged involvement in the bombings of the US embassies in Kenya and Tanzania on August 7, 1998.
Specifically, Ghailani is charged with “murder in violation of the Law of War, murder of protected persons, attacking civilians, attacking civilian objects, intentionally causing serious bodily injury, destruction of property in violation of the Law of War and terrorism” — plus conspiracy to commit all the preceding offenses — for his alleged role in securing and transporting material used in the Tanzanian bomb, and for helping to purchase the truck that was used in the attack. He is also charged with “providing material support to terrorism,” based on allegations that, after the bombing, he fled to Afghanistan, where he continued working for al-Qaeda “as a document forger, physical trainer at an al-Qaeda training camp, and as a bodyguard for Osama bin Laden.”
Ghailani is the sixth of the 14 so-called “high-value detainees” — those held in secret, CIA-run prisons, who were transferred to Guantánamo in September 2006 — to be put forward for trial by Military Commission. He joins Khalid Sheikh Mohammed, Ramzi bin al-Shibh, Mustafa al-Hawsawi, Ali Abdul Aziz Ali and Walid bin Attash (plus Mohammed al-Qahtani, a notorious victim of torture in Guantánamo), who were put forward for trial in February, in connection with the 9/11 attacks.
The novel system of “War on Terror” trials, conceived by Dick Cheney and his advisors in November 2001, have yet to secure a conviction (the closest they came was the plea bargain negotiated with the Australian David Hicks last year, who returned home to serve just seven months in prison) and have been plagued by controversy since their inception. Damned by their own military defense lawyers, derailed by their own government-appointed judges, dismissed by the Supreme Court and then resuscitated by a somnambulant Congress, they are currently limping towards trials in the cases of the Canadian Omar Khadr, who was just 15 years old when he was captured, and whose alleged murder of a US soldier is seriously contested by his legal team, and Salim Hamdan, a Yemeni who was one of Osama bin Laden’s drivers.
The Commissions have stumbled at the arraignment phase in two other cases, those of Mohamed Jawad, an Afghan who was just 16 years old when he allegedly threw a grenade at a vehicle carrying two US soldiers and an Afghan translator, and Ahmed al-Darbi, a Saudi who was seized in Azerbaijan and is accused of plotting to attack shipping lanes in the Middle East.
More significantly, the Commissions appear to be fatally contaminated by allegations of torture, raising doubts that they can secure a single “clean” conviction that will be regarded as legitimate anywhere beyond the administration itself and its dwindling crowd of cheerleaders.
In this, the case of Ahmed Khalfan Ghailani appears to be no exception. Ghailani did not allege, during his military tribunal last year, that he was tortured (unlike Khalid Sheikh Mohammed, Abu Zubaydah and Abdul Rahim al-Nashiri, whose torture by waterboarding was recently admitted by CIA director Michael Hayden), but during my research for The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison, I discovered a piece of information that indicated that, whether under duress, or by some other method, he had made a false allegation against one of the prisoners at Guantánamo.
One of the more disturbing aspects of the gathering of evidence used against the Guantánamo prisoners is the accumulation of allegations from the initial Combatant Status Review Tribunals, convened from July 2004 to March 2005 to assess whether they had been correctly designated as “enemy combatants,” through successive rounds of annual Administrative Review Boards, convened to assess whether they still constitute a threat to the United States, or whether they still have ongoing intelligence value.
In tracing the accumulation of allegations, an enormous number of claims are attributed to “a senior al-Qaeda operative” or “a senior al-Qaeda lieutenant.” With no names given, it has been impossible to establish the source of these claims, although they are frequently so at odds with a previously established chronology of the prisoner’s actions — placing them at training camps and in guest houses when they were not even in Afghanistan, for example — that it’s readily apparent that many, if not most of these allegations were produced under duress, probably when supposed “high-value detainees” were being shown the “family album” of prisoners that was used from the earliest days of the US-run prisons in Afghanistan, in late December 2001.
On one occasion only, I discovered that one of these “al-Qaeda” sources had been named, and was none other than Ahmed Khalfan Ghailani. As I explained in Chapter 20 of The Guantánamo Files, “The Yemeni Mohammed al-Hanashi … admitted to his tribunal in 2004 that he arrived in Afghanistan eight or nine months before 9/11, and that he fought with the Taliban. By the time of his review in 2005, however, new allegations had been added, including the claim that Ahmed Khalfan Ghailani ‘identified him as having been at the al-Farouq camp [the main training camp for Arabs, associated in the years before 9/11 with Osama bin Laden] in 1998-99 prior to moving on to the front lines in Kabul.’ In other words, although al-Hanashi admitted traveling to Afghanistan to serve as a foot soldier for the Taliban, a man who was held in extremely dubious circumstances in another part of the world was shown his photo and came up with a story about seeing him two or three years before his arrival in Afghanistan, which would, henceforth, be regarded as evidence against him.”
It will, of course, be some time before Ghailani’s case comes to trial, as Col. Steve David, the Commissions’ chief defense lawyer, is already struggling to find enough military lawyers to represent those who have already been charged, but it’s clear from just this one example, which accidentally slipped through the net, that the quality of Ghailani’s confessions will be contentious, and that questions will be raised about the circumstances in which they were gathered.
The great irony in his case is that the main evidence against him came not from the two years and two months that he was held in secret CIA custody, but from the testimony of a number of other men, including Mohamed al-Owhali, Wadih El-Hage, Mohammed Sadiq Odeh and Khalfan Khamis Mohamed, who, although captured abroad and “rendered” to US territory in 1998 and 1999, were transferred to face a criminal trial, rather than being held in the ad-hoc system of secret prisons run by the CIA that developed after 9/11. They were subsequently interrogated, charged and successfully prosecuted for their involvement in the African embassy bombings in October 2001, and sentenced to life imprisonment, without the use of any of the torture techniques (euphemistically known as “enhanced interrogation techniques”) that the Bush administration introduced in the wake of the 9/11 attacks.
Although there are other complications in the cases of the African embassy bombers — not least the role of double agent Ali Mohammed, and the lack of communication between the CIA and the FBI — the fact that successful prosecutions could take place without the use of torture should have sent a clear message to the Bush administration, just weeks before Dick Cheney stealthily authorized the President to capture suspected terrorists anywhere in the world, designate them “enemy combatants,” hold them without charge or trial and, if required, try them before Military Commissions, that there were other ways to engage a terrorist threat without resorting to torture, imprisonment without charge and dubious show trials.
Andy Worthington is the author of The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison (published by Pluto Press, distributed by Macmillan in the US, and available from Amazon — click on the following for the US and the UK). To receive new articles in your inbox, please subscribe to my RSS feed, and see here for my definitive Guantánamo prisoner list, published in March 2009.
See the following for a sequence of articles dealing with the stumbling progress of the Military Commissions: The reviled Military Commissions collapse (June 2007), A bad week at Guantánamo (Commissions revived, September 2007), The curse of the Military Commissions strikes the prosecutors (September 2007), A good week at Guantánamo (chief prosecutor resigns, October 2007), The story of Mohamed Jawad (October 2007), The story of Omar Khadr (November 2007), Guantánamo trials: where are the terrorists? (February 2008), Six in Guantánamo charged with 9/11 attacks: why now, and what about the torture? (February 2008), Guantánamo’s shambolic trials (ex-prosecutor turns, February 2008), Torture allegations dog Guantánamo trials (March 2008), The US military’s shameless propaganda over 9/11 trials (April 2008), Betrayals, backsliding and boycotts (May 2008), Fact Sheet: The 16 prisoners charged (May 2008), Four more charged, including Binyam Mohamed (June 2008), Afghan fantasist to face trial (June 2008), 9/11 trial defendants cry torture (June 2008), USS Cole bombing suspect charged (July 2008), Folly and injustice (Salim Hamdan’s trial approved, July 2008), A critical overview of Salim Hamdan’s Guantánamo trial and the dubious verdict (August 2008), Salim Hamdan’s sentence signals the end of Guantánamo (August 2008), High Court rules against UK and US in case of Binyam Mohamed (August 2008), Controversy still plagues Guantánamo’s Military Commissions (September 2008), Another Insignificant Afghan Charged (September 2008), Seized at 15, Omar Khadr Turns 22 in Guantánamo (September 2008), Is Khalid Sheikh Mohammed Running the 9/11 Trials? (September 2008), two articles exploring the Commissions’ corrupt command structure (The Dark Heart of the Guantánamo Trials, and New Evidence of Systemic Bias in Guantánamo Trials, October 2008), Meltdown at the Guantánamo Trials (five trials dropped, October 2008), The collapse of Omar Khadr’s Guantánamo trial (October 2008), Corruption at Guantánamo (legal adviser faces military investigations, October 2008), An empty trial at Guantánamo (Ali Hamza al-Bahlul, October 2008), Life sentence for al-Qaeda propagandist fails to justify Guantánamo trials (al-Bahlul, November 2008), Guilt by Torture: Binyam Mohamed’s Transatlantic Quest for Justice (November 2008), 20 Reasons To Shut Down The Guantánamo Trials (profiles of all the prisoners charged, November 2008), How Guantánamo Can Be Closed: Advice for Barack Obama (November 2008), More Dubious Charges in the Guantánamo Trials (two Kuwaitis, November 2008), The End of Guantánamo (Salim Hamdan repatriated, November 2008), Torture, Preventive Detention and the Terror Trials at Guantánamo (December 2008), Is the 9/11 trial confession an al-Qaeda coup? (December 2008), The Dying Days of the Guantánamo Trials (January 2009), Former Guantánamo Prosecutor Condemns Chaotic Trials (Lt. Col. Vandeveld on Mohamed Jawad, January 2009), Torture taints the case of Mohamed Jawad (January 2009), Bush Era Ends with Guantánamo Trial Chief’s Torture Confession (Susan Crawford on Mohammed al-Qahtani, January 2009), Chaos and Lies: Why Obama Was Right to Halt The Guantánamo Trials (January 2009), Binyam Mohamed’s Plea Bargain: Trading Torture For Freedom (March 2009).
And for a sequence of articles dealing with the Obama administration’s response to the Military Commissions, see: Don’t Forget Guantánamo (February 2009), Who’s Running Guantánamo? (February 2009), The Talking Dog interviews Darrel Vandeveld, former Guantánamo prosecutor (February 2009), Obama’s First 100 Days: A Start On Guantánamo, But Not Enough (May 2009), Obama Returns To Bush Era On Guantánamo (May 2009), New Chief Prosecutor Appointed For Military Commissions At Guantánamo (May 2009), Pain At Guantánamo And Paralysis In Government (May 2009), My Message To Obama: Great Speech, But No Military Commissions and No “Preventive Detention” (May 2009), Guantánamo And The Many Failures Of US Politicians (May 2009), A Child At Guantánamo: The Unending Torment of Mohamed Jawad (June 2009), A Broken Circus: Guantánamo Trials Convene For One Day Of Chaos (June 2009), Obama Proposes Swift Execution of Alleged 9/11 Conspirators (June 2009), Obama’s Confusion Over Guantánamo Terror Trials (June 2009).
[…] not, however, address some uncomfortable facts about Ghailani’s last five years in US custody. As I wrote in an article when he was put forward for trial by Military Commission at Guantánamo in March 2008 (before the […]
[…] post in April 2008, Carter expressed dismay at the Bush administration’s decision to charge Ahmed Khalfan Ghailani, a “high-value detainee” held for over two years in secret CIA prisons before his transfer to […]
[…] regarding his presence in Afghanistan before he was even in the country — had been made by Ahmed Khalfan Ghailani, a “high-value detainee,” held in secret CIA prisons for over two years before his […]
[…] it should demonstrate to the Obama administration that federal courts work, whereas Ghailani’s proposed trial by Military Commission at Guantánamo (in the Dick Cheney-inspired system that Obama has hinted he wants to revive) came […]
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