Archive for May, 2008

Exactly one year ago today, on May 30, 2007, Abdul Rahman al-Amri, a Saudi prisoner in Guantánamo who, like most of his companions, had been held without charge or trial for five and a half years, died, allegedly after committing suicide. A long-term hunger striker, according to imprisoned al-Jazeera journalist Sami al-Haj, who compiled an extraordinary report about the hunger strikes, he was apparently suffering from hepatitis and stomach problems at the time of his death.

Unlike the year before, however, when three prisoners — Ali al-Salami, Mani al-Utaybi and Yasser al-Zahrani — died in what was widely reported as a suicide pact (and was, notoriously, referred to by Guantánamo’s commander, Rear Admiral Harry Harris, as “an act of asymmetric warfare”), there was little media interest in al-Amri’s death.

Largely unchallenged, the Pentagon responded to his death by declaring that he was “a mid-level al-Qaeda operative with direct ties to higher-level members including meeting with Osama bin Laden,” whose “associations included (bin Laden’s) bodyguards and al-Qaeda recruiters.” It was also stated that he “ran al-Qaeda safe houses.”

In response, in my very first articles on my blog following the completion of the manuscript for my book The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison, I pointed out how ludicrous it was that the Pentagon’s assertions were allowed to pass unchallenged:

Quite how it was possible for al-Amri, who arrived in Afghanistan in September 2001, to become a “mid-level al-Qaeda operative” who “ran al-Qaeda safe houses” in the three months before his capture in December has not been explained, and nor is it likely that an explanation will be forthcoming. Far more probable is that these allegations were made by other prisoners – either in Guantánamo, where bribery and coercion have both been used extensively, or in the CIA’s secret prisons. In both, prisoners were regularly shown a “family album” of Guantánamo prisoners, and were encouraged – either through violence or the promise of better treatment – to come up with allegations against those shown in the photos, which, however spurious, were subsequently treated as “evidence.”

As with so many Guantánamo prisoners, the contradictory allegations against al-Amri beggar belief. By his own admission, he traveled to Afghanistan to fight with the Taliban against the Northern Alliance, having served in the Saudi army for nine years and four months. US Southern Command expanded on his activities as a Taliban recruit, claiming that, “by his own account,” he “volunteered to fight with local Taliban commander Mullah Abdul al-Hanan, and fought on the front lines north of Kabul”, and that he subsequently “fought US forces in November 2001 in the Tora Bora Mountains.” This may or may not be true, but it is at least within the realms of plausibility. Claiming that he ran al-Qaeda safe houses, on the other hand, is simply absurd, and should alert all sensible commentators to scrutinize with care the allegations made by the US authorities against the majority of those held in Guantánamo without charge or trial (I’ve studied all of them, and allegations that are either groundless or contradictory are shockingly prevalent).

I concluded my article by stating:

If we are to believe this callous attempt to blacken the name of a man who, having apparently taken his life in desperation, appears to have made the mistake of traveling to Afghanistan to fight with the Taliban at the wrong time, one question in particular needs answering: when, during the three months that al-Amri stayed in a guest house in Kabul, trained at a “school for jihad” in Kandahar, fought on the front lines, retreated to Tora Bora and crossed into Pakistan, was he supposed to have located the al-Qaeda safe houses that he was accused of running?

In the year since Abdul Rahman al-Amri’s death, the silence that followed the Pentagon’s callous outburst has been broken only once, in October, when Navy Capt. Patrick McCarthy, the senior lawyer on Guantánamo’s management team, stated in an interview that he had personally seen “all four men dead – each one hanging – and that the first three men had used sling-style nooses.” Speaking specifically about the death of al-Amri, he said that he had fashioned “a string type of noose” to kill himself.

On this somber anniversary, the best I can do to mark the shameful circumstances of Abdul Rahman al-Amri’s passing (without having been granted an opportunity to present his case in a court of law) is to repeat one of the few statements attributed to him during his imprisonment in Guantánamo, which demonstrates, I believe, how he never presented a threat to the United States or its interests.

Responding to an allegation that he admitted to “carrying an AK-47 while retreating” to Pakistan (which was supposed to suggest militancy against the United States), he pointed out that “Americans trained him during periods of his service” with the Saudi army, and insisted that, “had his desire been to fight and kill Americans, he could have done that while he was side by side with them in Saudi Arabia. His intent was to go and fight for a cause that he believed in as a Muslim toward jihad, not to go and fight against the Americans.”

As published on the Huffington Post and CounterPunch.

Today’s Independent runs a front-page story, The Last Briton in Guantánamo faces death penalty, focusing on the plight of British resident Binyam Mohamed. Seized in Pakistan in April 2002, Binyam was subsequently rendered to Morocco, where proxy torturers, working on behalf of the Americans, tortured him for 18 months, in interrogation sessions that included regularly cutting his penis with a razor blade. He was then transferred to the “Dark Prison,” a secret CIA prison near Kabul, modelled on a medieval torture dungeon, but with the addition of ear-splitting music and noise, which was blasted into the cells for 24 hours a day, and finally arrived in Guantánamo in September 2004.

In November 2005, Binyam was put forward for trial by Military Commission –- a novel system of trials for “terror suspects,” invented by Vice President Dick Cheney and his advisers in November 2001 –- but in June 2006, after one farcical episode in front of a judge, which ended up with Binyam holding up a sign declaring that the “Commissions” were “Con-missions” instead, the entire system was ruled illegal by the U.S. Supreme Court.

The Commissions were revived later that year, when Congress passed the Military Commissions Act, and it is expected that Binyam will imminently face charges under this second version of the “Con-missions,” even though they have yet to demonstrate that they can actually function, and even though Binyam and his lawyers at Reprieve, the legal action charity that works on behalf of over 30 prisoners in Guantánamo, have always maintained that not a shred of evidence of Binyam’s alleged involvement in a bomb plot conceived with various senior al-Qaeda figures was produced without the use of torture.

The Independent’s article featured excerpts from a letter to Prime Minster Gordon Brown, which was dictated by Binyam to his lawyer, Clive Stafford Smith, the director of Reprieve, during a visit at Guantánamo last week. Below is the full text of the letter, which was delivered to 10 Downing Street yesterday.

Note that Binyam’s mention of the intervention of the British government refers to the government’s request for the return of five British residents –- including Binyam –- last August. Although three residents were subsequently returned (in December), he was not one of them, as the US authorities refused to release him. His mention of the Treasury Solicitors refers to a recent lawsuit filed by Reprieve and solicitors at Leigh Day demanding that the government release any information they have regarding British knowledge of Binyam’s rendition to Morocco, and any information that was provided to US intelligence.

Guantánamo Bay
Thursday, May 22nd 2008

Dear Prime Minister Brown,

I have been held without trial by the U.S. for 6 years, 1 month & 12 days. That is 2,234 days (very long days, and often longer nights). Of this, about 550 days were in a torture chamber in Morocco, and about 150 in the “Dark Prison” in Kabul. Still there is no end in sight, no prospect of a fair trial.

Because I am a Londoner, your government states publicly that you support my right to return home there as soon as possible. I am grateful for that. I always viewed Britain as the country that stood up for human rights more than any other. That was why I came to Britain as a refugee.

Before the intervention of your government to help me, I was more resigned to my fate, to be held forever without a fair trial. When your government intervened I had hope. But it has been a cruel hope. Nine months later I am still here, no closer to home, still in this terrible prison.

When I learned that my Moroccan torturers were using information supplied by British intelligence, I felt deeply betrayed. When I learned that your government’s lawyers (the Treasury Solicitors) had told my lawyers they had no duty to help prove my innocence, or even that I had been tortured, I felt betrayed again.

It is long past time to end this matter. I have been next to committing suicide this past while. That would be one way to end it, I suppose.

Binyam Mohamed
22/MAY/08

Andy is the author of The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison.

As published on Indymedia.

As a 16th prisoner at Guantánamo, Noor Uthman Muhammed, is put forward for trial by Military Commission (the much-criticized system of trials for “terror suspects” invented in the wake of the 9/11 attacks), Andy Worthington, author of The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison, provides a guide to the 16 men, two of whom were juveniles at the time of their capture, and provides references to an extensive archive of articles about their cases.

1. David Hicks. An Australian, who was captured in Afghanistan in December 2001, Hicks accepted a plea bargain in March 2007, admitting to providing “material support for terrorism,” and dropping well-documented claims that he was abused in US custody, in exchange for a nine-month sentence, the majority of which was served in Australia. It has been claimed, plausibly, that his plea bargain was the result of political maneuvering between US Vice President Dick Cheney and Australian Prime Minister John Howard.

2. Omar Khadr. A Canadian, who was just 15 years old when he was captured after a firefight in Afghanistan in July 2002, Khadr is accused of killing a US soldier, although developments over the last six months in his pre-trial hearings suggest that exculpatory evidence, indicating that he was not responsible for the murder, was withheld from his defense team. In the latest twist in Khadr’s case, the Canadian Supreme Court ruled last week that Canadian agents acted illegally when they interrogated Khadr at Guantánamo in 2003 and handed the intelligence to US authorities.

3. Salim Hamdan. A Yemeni, who was a driver for Osama bin Laden and was captured while attempting to cross the Pakistani border in December 2001, Hamdan is accused of being an active member of al-Qaeda, although his defense team argues that he was just a paid employee. It was Hamdan’s case, Hamdan v. Rumsfeld, that caused the Supreme Court to rule that the first version of the Commissions were illegal in June 2006 (although they were later revived by Congress). In April, Hamdan decided to boycott his trial proceedings, and on May 9, following a blistering attack on the legitimacy of the Commissions by their former chief prosecutor, Col. Morris Davis, the judge in Hamdan’s case, Capt. Keith Allred, took the unprecedented step of barring the Commissions’ Pentagon-appointed legal adviser, Brig. Gen. Thomas Hartmann, from playing any further part in Hamdan’s trial. The following week, Capt. Allred made headlines again by postponing the start date of Hamdan’s trial until late July, citing the importance of a pending Supreme Court decision about the prisoners’ rights.

4. Mohamed Jawad. An Afghan, who was just 16 or 17 years old at the time of his capture, Jawad is accused of throwing a grenade that wounded two US soldiers and an Afghan interpreter in December 2002, although he has always claimed that Afghan police obtained his “confession” through torture. At his arraignment in March, he rejected the trial proceedings, and alleged that he had been tortured at the US prison at Bagram airbase in Afghanistan, and had been mistreated in Guantánamo. At a pre-trial hearing in May, Air Force Major David Frakt, who was assigned to represent him on April 28, told the court, “Mr. Jawad is an innocent man. He has been held for five years. He was a homeless boy wrongfully accused and beaten into confession by the Afghanistan police.”

5. Ahmed al-Darbi. A Saudi, who is accused of plotting attacks on shipping for al-Qaeda, al-Darbi was kidnapped in Azerbaijan and rendered to Guantánamo via Afghanistan in 2002. At his arraignment in April, he refused to take part in the Commissions, prompting his military-appointed lawyer, Army Lt. Col. Bryan Broyles, to comment that, in order to comply with established legal rules that prevent lawyers from representing clients who refuse their services (which are worryingly at odds with the Commissions’ own rules), his role in al-Darbi’s forthcoming trial was now equivalent to that of a “potted plant.”

6. Ibrahim al-Qosi. A Sudanese, who is accused of being a bodyguard and a driver for Osama bin Laden, and a quartermaster for al-Qaeda, al-Qosi, who was captured after crossing the Pakistani border in December 2001, was previously charged in the Commissions’ first aborted incarnation. In April, he also boycotted his pre-trial hearing, telling the judge, “I do not recognize the justice or the lawfulness of this court,” and adding, “What is happening in your courts is in fact a sham, which aims solely that the cases move at the pace of a turtle in order to gain some time to keep us in these boxes without any human or legal rights.”

7. Ali Hamza al-Bahlul. A Yemeni, who is accused of producing videos for al-Qaeda and servings as a bodyguard for Osama bin Laden, al-Bahlul, who was captured after crossing the Pakistani border in December 2001, was previously charged in the Commissions’ first aborted incarnation. In May, he also boycotted his pre-trial hearing, proudly proclaiming his association with Osama bin Laden, and telling the judge, “We will continue our jihad and nothing’s going to stop us. You must not oppress the people in the land. Your oppression against us and your support to the strategic ally in the region is what made me leave my house and today, I’m telling you, and you’re a man of law, if you sentence me to life … me and the others will be the reason for the continuation of the war against America.”

8. Khalid Sheikh Mohammed (KSM). Reportedly the third most important figure in al-Qaeda, after Osama bin Laden and Ayman al-Zawahiri, KSM, who was captured in Pakistan in March 2003, and the four men described below are among the 14 “high-value detainees” transferred to Guantánamo in September 2006 after being held for years in secret prisons run by the CIA. KSM confessed in his military tribunal in Guantánamo last year (convened to confirm that he was an “enemy combatant” who could be tried by Military Commission) that he was “responsible for the 9/11 operation, from A to Z.” He is one of three “high-value detainees” whom CIA director Michael Hayden admitted had been subjected to waterboarding (a torture technique that involves controlled drowning) while held in a secret prison run by the CIA.

KSM and his co-defendants, who were charged in connection with the 9/11 attacks in February, are due to be arraigned on June 5, although his recently appointed military lawyer, Navy JAG Prescott Prince, recently told the Los Angeles Times, “I think it’s the constitutional case of our time. Because in the 221st year of America, the question is whether the Constitution applies to the government.” He added, “I have no idea whether he did even half of those things he is accused of doing. But if he did commit those offenses, there are still issues of whether this court has jurisdiction, whether he is an enemy combatant who should be tried in a tribunal of this nature.” Prince also said, “He (KSM) believes his treatment has been illegal. I believe it’s been illegal too. And I personally believe that he cannot, as a result of all these things, get a fair trial.”

9. Ramzi bin al-Shibh. A Yemeni, and reportedly a friend of the 9/11 hijackers, who helped coordinate the attacks with KSM after he was unable to enter the United States to train as a pilot for the operation, as he originally planned, bin al-Shibh was captured in Pakistan in September 2002. After being held in secret CIA custody for four years, he refused to take part in his tribunal at Guantánamo, and if he speaks at his arraignment it will be his first publicly available statement since his capture.

10. Mustafa al-Hawsawi. A Saudi, who was captured with Khalid Sheikh Mohammed, al-Hawsawi is accused of sourcing funding for the 9/11 attacks from Dubai. In his tribunal at Guantánamo, he admitted providing support for jihadists, including transferring money for some of the 9/11 hijackers, although he denied that he was a member of al-Qaeda. Last week, his lawyer, Army Maj. Jon Jackson, sought fruitlessly to delay his arraignment, in particular because he has only been allowed to meet his client twice, and “has not received any potential evidence against al-Hawsawi supporting charges that ‘allege a complex conspiracy spanning several years,’” as the Associated Press put it.

11. Ali Abdul Aziz Ali. Also known as Ammar al-Baluchi, he is a nephew of KSM, and was captured in Pakistan with Walid bin Attash (see below) in April 2003. In his tribunal at Guantánamo last year, he admitted transferring money on behalf of some of the 9/11 hijackers, but insisted that he was a legitimate businessman, who regularly transferred money for Arabs, without knowing what it would be used for.

12. Walid bin Attash. A Saudi, who lost a leg in Afghanistan before 9/11, bin Attash stated in his tribunal at Guantánamo that he was the link between Osama bin Laden and the Nairobi cell during al-Qaeda’s African embassy bombings in 1998, and admitted that he played a major part in the bombing of the USS Cole in 2000, explaining that he “put together the plan for the operation for a year and a half,” and that he bought the explosives and the boat, and recruited the bombers.

13. Mohammed al-Qahtani. A Saudi, who was reportedly recruited as the 20th hijacker for the 9/11 attacks, but was refused entry into the United States by immigration officials, al-Qahtani was tortured for several months at Guantánamo in late 2002 and early 2003. Although he was put forward for trial by Military Commission in February, with KSM and the other four men described above, the charges against him were dropped in May, when the others were formally charged, either because evidence of his torture is admissible (whereas that obtained in secret prisons by the CIA is not), or because of a pronounced deterioration in his mental health since he was first charged, which led to a number of suicide attempts. It’s possible, but unlikely that he will be charged again.

14. Ahmed Khalfan Ghailani. A Tanzanian, and one of the 14 “high-value detainees” transferred to Guantánamo from secret CIA prisons in September 2006, Ghailani, who was captured after a gun battle in Gujrat, Pakistan in July 2004, is accused of being a coordinator of the African embassy bombings, and of running a document-forging operation for al-Qaeda in Afghanistan. In his tribunal, he described himself as a peripheral character in the African embassy bombings, who was duped by others around him, although he admitted forging documents for al-Qaeda in Afghanistan. Evidence of a revealing false allegation that he made in Guantánamo, which I discovered during research for The Guantánamo Files, was reported here.

15. Mohammed Kamin. An Afghan, who was captured in 2003, Kamin is accused of “providing material support for terrorism,” specifically by receiving training at “an al-Qaeda training camp,” conducting surveillance on US and coalition military bases and activities, planting two mines under a bridge, and launching missiles at the city of Khost while it was occupied by US and coalition forces. He is not charged with harming, let along killing US forces, and were it not for his supposed al-Qaeda connection — he apparently stated in interrogation that he was “recruited by an al-Qaeda cell leader” — it would, I think, be impossible to make the case that he was involved in “terrorism” at all.

For his arraignment on May 21, 2008, Kamin refused to leave his cell, and was dragged to the court by guards. The judge, Air Force Col. W. Thomas Cumbie, explained that he was handcuffed and shackled because he had “attempted to spit on and bite one of the guards” on his way to the courtroom. Refusing to be represented by a US military lawyer, Kamin called the charges “a lie and a forgery,” according to Reuters, adding that he had no connection with al-Qaeda or the Taliban, and that he “did not recognize the court’s legitimacy and would not attend future hearings.” In a brief statement, he said, “My judge is the god that has created the sky and the land. He will be my lawyer and represent me. I wait for his decision. That’s enough.”

16. Noor Uthman Muhammed. A Sudanese, Muhammed was captured in Pakistan in March 2002, during the raid that netted the alleged senior al-Qaeda operative Abu Zubaydah (whose significance is disputed, along with his mental health). While Abu Zubaydah has not been charged before the Military Commissions, Muhammed was charged with “conspiracy” and “providing material support for terrorism” on May 23, 2008. He is accused of serving as the deputy emir and a weapons instructor at the Khaldan training camp in Afghanistan from 1996 to 2000, when the camp was closed. It is also alleged that he delivered a fax machine to Osama bin Laden at a training camp in 1999.

Noticeably, these charges do not relate to the 9/11 attacks, and in his tribunal at Guantánamo in 2004, Muhammed insisted that Khaldan was “a place to get training” that had nothing to do with either al-Qaeda or the Taliban. “People come over to that camp, train for about a month to a month and a half, then they go back to their hometown,” he said, adding that what the people did with the training they received was their own business. This may well have been an evasive explanation on Muhammed’s part, but he is not the only prisoner to state that Khaldan was not connected with al-Qaeda, and that Abu Zubaydah did not have a close relationship with the leadership of al-Qaeda. Similar claims, as I reported here, were made by Abu Zubaydah himself, and by a released Saudi prisoner called Khalid al-Hubayshi, and it will be interesting to see what Muhammed will have to say when he is arraigned — unless, of course, he follows recent trends by boycotting the proceedings completely.

As published on CounterPunch, the Huffington Post and Anti-war.com.

I’ve just posted the third of 12 additional online chapters supplementing my book The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison. This chapter features stories that I could not include in the book, either for reasons of space (to keep the book at a manageable length) or, in some cases, because the information was not available at the time of writing.

This additional chapter complements Chapter 5 of The Guantánamo Files, looking at the stories of 16 prisoners not mentioned in the book, who were the first to be captured crossing from Afghanistan to Pakistan in December 2001. They are referred to as “Osama’s bodyguards,” because of dubious allegations made by Mohammed al-Qahtani, an alleged “20th hijacker” for the 9/11 attacks, during the months that he was tortured at Guantánamo in late 2002 and early 2003, but their stories also contain many other unattributed allegations made by unidentified sources and “al-Qaeda operatives” that are equally suspicious.

Nearly six and a half years since Guantánamo opened, it is to America’s shame that this is the first time that many of these men’s stories have been revealed, especially as none of them appear to have had anything whatsoever to do with the inner workings of al-Qaeda or the 9/11 attacks, which is the purported reason for their long incarceration without charge or trial.

It is, I believe, equally shameful that the majority of them –- who are from the Yemen –- remain in Guantánamo, with no sign of when, if ever, they will be released, because of the inability of the US and Yemeni governments to come to some sort of agreement about the conditions of their repatriation. The fact that the majority of the Saudis –- whose stories are remarkably similar –- were repatriated in 2006 and 2007 only adds to the realization that Guantánamo –- touted as a prison holding “the worst of the worst” –- is actually a failed experiment in torture and interrogation, and that politics, rather then justice, determines who gets to leave, and when.

NOTE: The first two additional chapters are available here and here.

As a recent decision by a military judge makes clear, the wheels of justice revolve in slow motion at Guantánamo, as those responsible for the exercise of political and judicial processes — the executive, Congress and the Supreme Court — engage in prolonged tussles that last for years. Andy Worthington, author of The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison, reports.

For most of 2008, the media’s interest in Guantánamo has focused not on the majority of the 273 prisoners who are still held there without charge or trial and largely unknown to the outside world, but on the 13 who have been plucked from the grinding obscurity of indefinite detention to face trial by Military Commission, an innovation unrelated to either the US courts or the US military’s own judicial processes that was conceived in November 2001 by Vice President Dick Cheney and his close advisers.

I have written at length about the stumbling progress of the Military Commissions, most recently here, where I ran through the problems that have beset the proposed trials in the last month alone. These include boycotts by the prisoners themselves, and the sudden and unexplained decision to drop charges against Mohammed al-Qahtani, one of six prisoners initially charged in connection with the 9/11 attacks. This was almost certainly because he, unlike the others, was tortured not in a secret prison run by the CIA (who cannot be compelled to provide evidence to the Commissions), but in Guantánamo itself, where no such exclusions apply.

The setbacks in the last month also include a blistering attack on the system by Col. Morris Davis, the former chief prosecutor of the Commissions, who accused his superiors of pressing ahead with politically motivated trials and of seeking to allow evidence obtained through torture, which, he pointed out, were destroying the trials’ credibility. So persuasive was Col. Davis’ testimony (in the case of Salim Hamdan, a Yemeni who was once one of Osama bin Laden’s drivers), that on May 9, the judge in Hamdan’s case, Navy Capt. Keith Allred, prohibited Col. Davis’ former boss, Brig. Gen. Thom Hartmann, from playing any further part in Hamdan’s forthcoming trial.

All these setbacks reflect badly on the integrity of the Commissions, of course, but until last Friday, discussions about the role of the Supreme Court in determining the prisoners’ status had been overlooked. This was understandable in one way, as it is now nearly eleven months since the Supreme Court decided to look once more at the prisoners’ rights (along the way reversing itself for the first time in 60 years), but was completely incomprehensible in another, as the Supreme Court’s pending decision has been the elephant in the room since last December, when former Solicitor General Seth Waxman (for the prisoners) and the soon-to-retire current Solicitor General Paul Clement (for the government) presented their cases in what was rightly billed at the time as “the most important habeas corpus case in modern history.”

Throughout this year, therefore, those who have been following developments at Guantánamo have been aware that a crucial decision has to be made before the Supreme Court’s current session ends in the summer. However, it was not until Capt. Allred spoke up on Friday, following on from his recently established notoriety with regard to Brig. Gen. Hartmann, that the justices were once more pushed back to center stage.

Postponing the start date for Salim Hamdan’s trial from June 2 to July 21, Capt. Allred stated that this will give the prosecutors and defense “the benefit of a decision that may well change the tenor or conduct of the trial,” as the Associated Press reported. He added that a delay will avoid the “potential embarrassment, waste of resources and prejudice to the accused,” if, as the AP put it, “the Supreme Court ruling forces a halt to the proceedings mid-trial.”

While Andrea Prasow, one of Hamdan’s lawyers, said that the defense team was “very pleased that the judge agrees that all parties will benefit from the Supreme Court’s guidance regarding the applicability of the Constitution to detainees held at Guantánamo,” it was more noticeable that Capt. Allred had, for the second time in a week, humiliated the government simply by taking his job seriously. It appears, moreover, that he has been studying his calendar closely, as he is more aware of the cycles of Supreme Court decisions than many reporters.

Although subsequently rebuffed by the executive and Congress, the Supreme Court has twice delivered rulings that have dealt severe blows to the administration’s credibility at the end of June.

On June 26, 2004, in Rasul v. Bush, the first challenge to Guantánamo that made it to the Supreme Court, the justices ruled 6-3 that the prisoners had habeas corpus rights — in other words, the right to challenge the legal limbo in which they were held — and demolished along the way the executive’s long-cherished belief that Guantánamo did not count as US territory, and was therefore beyond the reach of the US courts.

In his majority opinion, Justice John Paul Stevens emphasized the importance of habeas corpus, citing a 1945 case in which it was described as “a writ antecedent to statute … throwing its roots deep into the genius of our common law,” and a 1953 case dealing specifically with the detention of non-citizens in US custody: “Executive imprisonment has been considered oppressive and lawless since John, at Runnymede, pledged that no free man should be imprisoned, dispossessed, outlawed or exiled save by the judgment of his peers or by the law of the land. The judges of England developed the writ of habeas corpus largely to preserve these immunities from executive restraint.”

The second Supreme Court decision, on June 29, 2006, was just as significant, and the identity of its plaintiff was certainly not lost on Capt. Allred. In Hamdan v. Rumsfeld, the justices ruled 5-3 that the Military Commissions were illegal under US law and the Geneva Conventions. Concluding that Common Article 3 of the Geneva Conventions — which forbids “cruel treatment and torture” and “outrages upon personal dignity, in particular humiliating and degrading treatment” — was “applicable” to Hamdan and others facing Military Commissions, Justice Stevens stated that it was Hamdan’s right to be tried by a “regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized peoples.”

On both occasions, the executive managed, one way or another, either to neutralize or otherwise dilute the Supreme Court’s decision, confirming that the nation’s leaders — and Dick Cheney in particular — believed that the executive branch of government was beyond the law — or, at least, had the right to redefine the law without necessarily being answerable to either Congress or the judiciary. Although lawyers were finally allowed access to the prisoners, and were enabled to begin filing habeas petitions, the executive behaved as though these were minor irritants rather than fundamental reforms of the existing system.

Within a month of the decision in Rasul v. Bush, military reviews — the Combatant Status Review Tribunals — were introduced to justify the prisoners’ continued detention without charge or trial. Empowered to rely upon secret evidence — including hearsay, and information obtained through torture, coercion and bribery — the tribunals, which also prevented the prisoners from being represented by lawyers, were, as former insider Lt. Col. Stephen Abraham explained last year, manifestly unjust, consisting of information that was, for the most part, generalized, generic and badly-researched, and was, moreover, primarily designed to rubber-stamp the administration’s prior designation of the prisoners as “enemy combatants” without rights.

While the tribunals — and their equally unjust successors, the annual Administrative Review Boards — were busy behaving in a parallel world to that conceived by the Supreme Court, the executive then turned to Congress in an attempt to nullify the justices’ ruling in Rasul, hijacking the Detainee Treatment Act (DTA) of 2005, an anti-torture bill proposed by Senator John McCain, by not only excluding the CIA from legislation designed to prevent the use of torture by US forces, but also, through a peculiarly aberrant amendment to the bill, managing to strip the Guantánamo prisoners of their right to file habeas corpus claims.

The executive’s response to the ruling in Hamdan v. Rumsfeld was even swifter. Perhaps perturbed that Justice Anthony Kennedy had warned that “violations of Common Article 3 are considered ‘war crimes,’ punishable as federal offences, when committed by or against United States nationals and military personnel,” the executive responded to the implications of the justices’ ruling by removing 14 “high-value detainees” from the CIA’s secret prisons and transporting them to Guantánamo in September 2006, and then pressed Congress to revive the Commissions in the Military Commissions Act, which, for good measure, contained provisions designed to prevent the executive — or any of its agents — from ever being prosecuted for war crimes, and also reinforced the habeas-stripping terms of the DTA.

It remains to be seen what the Supreme Court will decide in its third ruling on Guantánamo, which, unlike Rasul and Hamdan, appears to be too close to call. The hope of all those who are shocked by the seemingly unending legal limbo in which the majority of the Guantánamo prisoners are held is that the Supreme Court will tackle both the excesses of the executive and the shortcomings of Congress by ruling that the prisoners have Constitutional habeas corpus rights.

Whatever the eventual outcome, however, Capt. Allred is to be commended for not only reminding the world that a Supreme Court decision is expected imminently, but also for reflecting on its importance, and applying it, correctly, to halt the rush to justice — or rush to injustice — that typifies those driving the Military Commissions towards hoped-for conclusions.

I doubt that he’s a popular figure in either the White House or the Pentagon at present, not just for postponing Salim Hamdan’s trial, but also because, in response to his ruling against Brig. Gen. Hartmann, lawyers for the five “high-value detainees” in the planned 9/11 trial have taken his lead to complain that the date set for their clients’ arraignment — June 5 — is unduly premature.

On Monday, Army Maj. Jon Jackson, the lawyer for Mustafa al-Hawsawi, who is accused of helping to finance the 9/11 attacks, sought to delay al-Hawsawi’s arraignment, arguing, as the Associated Press described it, that he has only met his client twice, that he “has been barred from discussing those meetings with his assistant defense counsel, Navy Lt. Gretchen Sosbee, because the military has not yet given her security clearance,” that he “has not received any potential evidence against al-Hawsawi supporting charges that ‘allege a complex conspiracy spanning several years,’” and that he and the other defense lawyers “have no place to store work product, discuss classified material or prepare for their case while in Cuba,” because, as the AP put it, “construction of a secure facility in Washington — which was to have been completed by the end of 2007 — has not even begun.”

In the days to come, details of other lawyers’ challenges will no doubt be made public, but for now it’s worth noting that Capt. Allred’s interventions are a shining example of one component in the system of checks and balances that is supposed to ensure justice in US society — the judiciary, albeit in an unlikely venue — acting as a necessary restraint on both Congress and the executive.

As published on CounterPunch, the Huffington Post and Anti-war.com.