Archive for May, 2008

Anyone who has kept half an eye on the proceedings at the Military Commissions in Guantánamo — the unique system of trials for “terror suspects” that was conceived in the wake of the 9/11 attacks by Vice President Dick Cheney and his close advisers — will be aware that their progress has been faltering at best. After six and a half years, in which they have been ruled illegal by the Supreme Court, derailed by their own military judges, relentlessly savaged by their own military defense lawyers, and condemned as politically motivated and a rubberstamp for torture by their own former chief prosecutor, they have only secured one contentious result: a plea bargain negotiated by the Australian David Hicks, who admitted to providing “material support for terrorism,” and dropped his well-chronicled claims of torture and abuse by US forces, in order to secure his return to Australia to serve out the remainder of a meager nine-month sentence last March.

In the last few weeks, however, Cheney’s dream has been souring at an even more alarming rate than usual. Following boycotts of pre-trial hearings in March and April by three prisoners — Mohamed Jawad, Ahmed al-Darbi and Ibrahim al-Qosi — the latest appearance by Salim Hamdan, a Yemeni who worked as a driver for Osama bin Laden, spread the words “boycott” and “Guantánamo” around the world.

Salim Hamdan’s boycott

Hamdan is no ordinary Guantánamo prisoner. It was his case, Hamdan v. Rumsfeld, that shut down the Military Commissions’ first incarnation in June 2006, when the Supreme Court ruled that they were illegal, a decision that forced the administration to press new legislation — the Military Commissions Act — through a sleeping Congress later that year.

But Hamdan’s fame meant little to him on April 29, when he too decided to boycott his trial, telling Navy Capt. Keith Allred, the judge in his last pre-trial hearing before his trial is scheduled to begin, “The law is clear. The Constitution is clear. International law is clear. Why don’t we follow the law? Where is the justice?”

For his part, Capt. Allred did not give up without attempting to persuade Hamdan that he should believe in the legal process before which he found himself. “You should have great faith in the law,” he said. “You won. Your name is all over the law books.” This was true, but it was little consolation for Hamdan, who was charged again as soon as the Commissions were revived in Congress. Nor could Capt. Allred’s addendum — “You even won the very first time you came before me” — sway him, even though that too was true.

Last June, when Hamdan appeared before Capt. Allred for the first time, in the first pre-trial hearing for his new Military Commission, Allred dismissed the case, pointing out that the Military Commissions Act, which had revived the Commissions, applied only to “unlawful enemy combatants,” whereas Hamdan, and every other prisoner in Guantánamo for that matter, had only been determined to be “enemy combatants” in the tribunals — the Combatant Status Review Tribunals — that had made them eligible for trial by Military Commission.

It was small wonder that Hamdan was despondent, however. Two months later, an appeals court reversed Allred’s decision, and Hamdan — twice a victor — was charged once more, and removed from a privileged position in Guantánamo’s Camp IV — reserved for a few dozen compliant prisoners who live communally — to Camp VI, where, like the majority of the prisoners, he has spent most of his time in conditions that amount to solitary confinement, and where, as his lawyers pointed out in February, his mental health has deteriorated significantly.

As he prepared to boycott proceedings, Hamdan had a few last questions for Capt. Allred. He asked the judge why the government had changed the law — “Is it just for my case?” — and responded to Allred’s insistence that he would do everything he could to give him a fair trial by asking, “By what law will you try me?” When Allred replied that he would be tried under the terms of the Military Commissions Act, Hamdan gave up. “But the government changed the law to its advantage,” he said. “I am not being tried by the American law.”

Col. Morris Davis condemns the Commissions (again)

Hamdan’s eloquent and restrained explanation for his boycott was the most poignant event in his hearing, but it was not the most explosive. That accolade was reserved for Col. Morris Davis, the former chief prosecutor for the Commissions, who resigned noisily last October, citing political interference in the process. Once the Commissions’ stoutest supporter — in 2006 he told reporters, “Remember if you dragged Dracula out into the sunlight he melted? Well, that’s kind of the way it is trying to drag a detainee into the courtroom” — Col. Davis explained his Damascene conversion in an op-ed for the Los Angeles Times in December.

Laying into his chain of command, Col. Davis lambasted his immediate boss, Brig. Gen. Thomas Hartmann, who had recently been appointed as the legal adviser to the Commissions’ “convening authority” Susan Crawford, for politicizing the process, attempting to hold higher profile trials behind closed doors (whereas Davis insisted that transparency was “critical”). He also criticized Crawford, a retired judge, who had served as Army counsel and defense department inspector under Dick Cheney in the first Bush administration in the 1980s, for overstepping her administrative role by “intermingling convening authority and prosecutor roles” and “perpetuat[ing] the perception of a rigged process stacked against the accused.”

Col. Davis also delivered a particularly stern rebuke to Crawford’s overall boss, the Department of Defense’s chief counsel William J. Haynes II, pointing out Haynes’ role in “authorizing the use of the aggressive interrogation techniques some call torture,” declaring, “I had instructed the prosecutors in September 2005 that we would not offer any evidence derived by waterboarding, one of the aggressive interrogation techniques the administration has sanctioned,” and declaring, unambiguously, that he resigned “a few hours after” being informed that he had been placed in a chain of command under Haynes.

On April 28, Col. Davis testified for Hamdan and reprised his complaints, telling Capt. Allred, as the Washington Post described it, that senior Pentagon officials, including deputy defense secretary Gordon England, had “made it clear to him that charging some of the highest-profile detainees before elections this year could have ‘strategic political value.’” After pointing out that he had wanted to wait until both the cases and the entire Military Commissions system had “a more solid legal footing,” he reiterated his complaints against Haynes, telling Navy Lt. Cmdr. Brian Mizer, Hamdan’s military defense lawyer, what he had told the Nation in February: that, during a discussion of the Nuremberg Trials, in which Davis had noted that there had been some acquittals, which had “lent great credibility to the proceedings,” Haynes had told him, “We can’t have acquittals. We’ve been holding these guys for years. How can we explain acquittals? We have to have convictions.”

Col. Davis also defended his uncompromising opposition to the use of evidence obtained through torture, once more directing particular criticism at Brig. Gen. Hartmann. “To allow or direct a prosecutor to come into the courtroom and offer evidence they felt was torture, it puts a prosecutor in an ethical bind,” he said, adding that, in response to his complaints, Hartmann had replied that “everything was fair game — let the judge sort it out.” He added that Hartmann “took ‘micromanagement’ of the prosecution effort to a new level and treated prosecutors with ‘cruelty and maltreatment,’” and explained that he “was trying to take over the prosecutor’s role, compromising the independence of the Office of Military Commissions, which decides which cases to bring and what evidence to use.”

Ali Hamza al-Bahlul and Omar Khadr

A week later, on May 7, the boycott bandwagon rolled on when Ali Hamza al-Bahlul, another Yemeni, also refused to cooperate. Sitting alone in Camp Justice, Guantánamo’s new courtroom, having spurned the assistance of his government-appointed attorney, al-Bahlul, who is accused of producing videos for al-Qaeda, and who famously boycotted his pre-Hamdan Commission hearings in 2006, essentially picked up where he left off over two years ago, proudly proclaiming his association with Osama bin Laden, and telling his judge, Army Col. Peter Brownback, “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.” He added that he did not intend to dispute any of the prosecution’s allegations. “I am responsible for my own actions in this world and the afterworld,” he said. “I don’t consider it to be a crime.”

While al-Bahlul’s words — delivered to full advantage from his sudden perch in the media spotlight — served only to underline, incongruously, the utter silence in which around 200 other Guantánamo prisoners are held (those considered less dangerous, or not dangerous at all, whom the administration has no intention of ever prosecuting), his words were almost immediately overshadowed when, the day after, Col. Brownback, who was on the verge of securing a dubious place in the history books by ruling that the trial of Omar Khadr — the only prisoner to date who has not boycotted his hearings — would go ahead in June, threatened his own boycott.

Furious that, despite repeated requests, the prosecution (led by Maj. Jeffrey Groharing) had failed to provide Khadr’s lawyers with their client’s Detainee Information Management System records, to analyze his treatment in an attempt to uncover reasons why incriminating statements — possibly obtained through torture — should be suppressed, Col. Brownback declared, “I have been badgered, beaten and bruised by Maj. Groharing since the 7th of November to set a trial date. To get a trial date, I need to get discovery done.” He then ordered the government to provide the records by May 22, or, he said, he would suspend the proceedings entirely.

While Khadr’s lawyer, Lt. Cmdr. William Kuebler, expressed skepticism about Col. Brownback’s exclamation, telling reporters, “What we’ve seen in this process is that military judges will give the defense pyrrhic victories when it doesn’t threaten the foundations of the system,” Brownback’s intervention at the very least delayed confirmation of his own notoriety. If he decides, after May 22, to proceed with the trial of Khadr, who was just 15 years old when he was captured after a gun battle in Afghanistan that left one US soldier dead, he will be the first judge since the Second World War to proceed with a war crimes trial against a prisoner who was just a child when he was captured.

A courtroom sketch of Omar Khadr, now 21 years old, during his most recent pre-trial hearing at Guantánamo on May 8, 2008.

Judge bars Commissions’ legal adviser

The day after Col. Brownback’s shake-up of the prosecutors in Omar Khadr’s case, Capt. Allred, having mulled over Morris Davis’ complaints against Brig. Gen. Hartmann, surprised everyone, and threatened the Commissions’ teetering legitimacy once more, by disqualifying Hartmann from playing any role in Salim Hamdan’s trial. Clearly swayed by Davis’ testimony, Capt. Allred ruled on May 9 that he was “too closely allied with the prosecution,” as the New York Times described it. “National attention focused on this dispute has seriously called into question the legal adviser’s ability to continue to perform his duties in a neutral and objective manner,” Allred wrote, explaining that public concern about the fairness of the cases was “deeply disturbing,” and that he did not find that Hartmann “retains the required independence from the prosecution.”

The Times followed up with more excerpts from Capt. Allred’s decision, which confirmed his support for Morris Davis’ views. “Telling the chief prosecutor (and other prosecutors),” he wrote, “that certain types of cases would be tried and that others would not be tried, because of political factors such as whether they would capture the imagination of the American people, be sexy, or involve blood on the hands of the accused, suggests that factors other than those pertaining to the merits of the case were at play.”

Capt. Allred also referred explicitly to Morris Davis’ statement that Brig. Gen. Hartmann had put pressure on him to use evidence obtained through torture. Noting, as the Times put it, that “prosecutors have an ethical obligation to present only evidence they consider reliable,” Capt. Allred wrote that directing the use of “evidence that the chief prosecutor considered tainted and unreliable, or perhaps obtained as a result of torture or coercion, was clearly an effort to influence the professional judgment of the chief prosecutor.”

9/11 charges confirmed, but Mohammed al-Qahtani dropped

While the administration tried to make light of Capt. Allred’s ruling, arguing that it applied only to Hamdan’s case, and that Brig. Gen. Hartmann’s position was secure, it was difficult not to whiff a stench of desperation in the Pentagon’s announcement, just three days later, that a date had been set for the first pre-trial hearing of another group of prisoners — the alleged 9/11 conspirators, including Khalid Sheikh Mohammed, who confessed in his tribunal last year that he was “responsible for the 9/11 operation, from A to Z” — against whom charges had been announced in February.

Although it’s almost certain that this decision — though perhaps rushed forward — had already been making its tortuous way through the necessary bureaucratic processes, its propaganda value was immediately undermined when it became apparent that, of the six men initially charged, one — Mohammed al-Qahtani — was missing from the final charge sheet.

As Time explained, the charges against al-Qahtani were dropped by Susan Crawford “without formal explanation,” and Brig. Gen. Hartmann’s offering — that the dismissal provided evidence of the “strength of the system and the careful, deliberative and fair legal process in place at Guantánamo” — was hardly sufficient to paper over the cracks. Although the charges were dismissed without prejudice, meaning that they could be reinstated in the future, nobody expects that this will happen.

The problem, as immediately became apparent, is that al-Qahtani, unlike the other five men, who were held for many years in secret prisons run by the CIA, was subjected to torture in Guantánamo, under a program devised specifically for him and approved by Donald Rumsfeld in late 2002. The details of his ordeal are well known, as Time published his leaked interrogation log in 2006, and even a military investigation in 2005, which stopped short of describing his treatment as torture, concluded that he had been subjected to abuse.

In the world of the Military Commissions, al-Qahtani’s case was damaging for two specific reasons: firstly, because, although the other five men were tortured in CIA custody — and the CIA has publicly acknowledged that Khalid Sheikh Mohammed was subjected to the torture technique known as waterboarding (a horrendous form of controlled drowning) — he and the others have been reinterrogated by “clean teams” of FBI agents, who have solicited confessions without resorting to torture, whereas al-Qahtani, according to his lawyers, has not.

Leaving aside for a moment the implausibility of somehow “purifying” confessions obtained through torture by using “clean teams” — and what it reveals, unintentionally, about the “dirty teams” whose activities are purportedly being airbrushed from history — the second reason for dropping charges against al-Qahtani only reinforces the legal netherworld in which the Commissions operate. According to their rules, the records of al-Qahtani’s interrogations, which took place in Guantánamo, could be produced as evidence of torture, whereas those of the “high-value detainees,” interrogated by CIA teams in secret overseas prisons, can be overlooked, because, as Time put it, “Military courts overseeing Guantánamo have indicated they cannot compel evidence from US intelligence agencies.”

In reality, of course, it’s inconceivable that the trials of tortured prisoners — even those who apparently masterminded the 9/11 attacks — can actually proceed without torture being mentioned, but for now, at least, the administration is clinging to its “clean team” alibi, and hoping to minimize the fallout from Capt. Allred’s latest ruling.

As for al-Qahtani, described by his lawyer, Gita Gutierrez, as a “broken man, broken by torture,” his only way out now is for the Saudi government to negotiate his repatriation. Gutierrez told Time that she was “extremely concerned about his ability to survive mentally and physically for much longer in Guantánamo,” and stated, unequivocally, that the dismissal of charges “clearly indicates the government’s awareness that any and all statements obtained from Mohammed [al-]Qahtani were extracted by torture or the threat of torture.” Replace his name with that of Khalid Sheikh Mohammed or any of the other four men charged — Ramzi bin al-Shibh, Mustafa al-Hawsawi, Ali Abdul Aziz Ali, and Walid bin Attash — and you see the problem that faces the administration as it prepares for the United States’ most significant trial since 9/11.

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

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

See the following for a sequence of articles dealing with the stumbling progress of the Military Commissions: profiles of 16 prisoners charged, four more charged, Afghan fantasist charged, alleged 9/11 co-conspirators arraigned, USS Cole bombing suspect charged, Salim Hamdan’s trial approved, reports on Hamdan’s trial and his sentence, British torture victim secures UK court victory, progress report September 2008, another Afghan charged, Omar Khadr turns 22, Khalid Sheikh Mohammed’s role in the 9/11 pre-trial hearings, and two articles exploring the Commissions’ corrupt command structure.

On Thursday May 15, I had the pleasure of being interviewed by Steve Rendall for CounterSpin, the radio show produced by Fairness and Accuracy in Reporting (FAIR). Picking up on the story of the release of al-Jazeera journalist Sami al-Haj from Guantánamo, which, as FAIR noted, “merited just a 72 word squib in the Washington Post, and a short report on page 14 of the New York Times,” Steve and the FAIR team had read my report about the prisoners released with Sami al-Haj (on CounterPunch), and wondered why their stories were not mentioned in the US press at all.

In the course of our conversation, I had the opportunity to explain something about the stories of these other men — held, like Sami, for five or six years without charge or trial — and also to explain how the research that I undertook for my book The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison was essential to puncture the general media silence surrounding the majority of the prisoners’ stories. Though understandable in some ways, because of the difficulties in analyzing the available documents relating to the prisoners, I pointed out that this reluctance to look in detail at their accounts only plays into the hands of the administration, which is getting away with holding men without charge or trial precisely because it has disposed of the usual methods whereby the stories of alleged wrongdoers are reported: through criminal charges, prosecution and defense counsel, a judge and a jury.

The show is available here, and my interview takes up the last ten minutes or so of the 30-minute show, after FAIR’s analysis of the week’s news, and an interview with commentator Bill Fletcher on the controversy over Barack Obama and his association with the Reverend Jeremiah Wright.

Rather horribly, it seems, a former Guantánamo prisoner, Abdullah al-Ajmi, a Kuwaiti who was repatriated in November 2005 and who later married and had a child, blew himself up as a suicide bomber in Mosul, Iraq, last month. According to the US military, al-Ajmi was one of three suicide bombers responsible for killing seven members of the Iraqi security forces on April 26.

An article in the Washington Post explained how al-Ajmi had recorded a martyrdom tape before his mission, which was translated by the US-based SITE Intelligence Group, which monitors jihadist websites. On the audiotape, al-Ajmi apparently condemned conditions at Guantánamo as “deplorable,” and stated, “Whoever can join them and execute a suicide operation, let him do so. By God, it will be a mortal blow. The Americans complain much about it. By God, in Guantánamo, all their talk was about explosives and whether you make explosives. It is as if explosives were hell to them.”

This is disturbing news, of course, although it does not follow that al-Ajmi’s release, and his subsequent actions, demonstrate that the administration’s post-9/11 anti-terror policies — abrogating from the Geneva Conventions and holding men without charge or trial in an offshore prison and interrogation center — are justified.

If al-Ajmi was a threat to the United States, he should either have been held as a Prisoner of War, protected by the Geneva Conventions, or prosecuted in a recognized court of law as a criminal. Instead, his imprisonment at Guantánamo involved “evidence” compiled by unnamed interrogators and other military personnel that was so far from the standards demanded by any acceptable judicial process that, on his return to Kuwait, he was acquitted of the charges against him — primarily, that he fought with the Taliban against US forces in Afghanistan — and set free.

At his trial, his lawyer, Ayedh al-Azemi, told the court that transcripts of interrogations conducted in Guantánamo by US officers should not be admissible as evidence, because they “do not bear signatures of the US officers nor the defendants and thus should not be admissible as legal evidence by the court.” He added that the transcripts were “not a proper investigation” but “simple reports that included neither questions nor answers.”

In Guantánamo, al-Ajmi, a lance corporal in the Kuwaiti army, had specifically denied fighting with the Taliban, saying that he had taken a leave of absence from the army in order to study in Pakistan with Jamaat-al-Tablighi, a conservative but apolitical proselytizing organization that has millions of members worldwide. He insisted that he had only confessed to fighting with the Taliban because of the circumstances in which he was held and interrogated.

“These statements were all said under pressure and threats,” he said. “I couldn’t take it. I couldn’t bear the threats and the suffering so I started saying things. When every detainee is captured they tell him that he is either Taliban or al-Qaeda and that is it. I couldn’t bear the suffering and the threatening and the pressure so I had to say I was from [the] Taliban.”

The question remains, therefore, whether al-Ajmi was lying in Guantánamo — which is, of course, a possibility — or whether the abuse he suffered for four years in US custody radicalized him and led to his final manifestation as a suicide bomber. The clues provide mixed messages. In Guantánamo, the authorities certainly regarded him as a threat, noting that his behavior had been so “aggressive and non-compliant” that he had “resided in the disciplinary blocks throughout his detention,” but there appears to be no way of knowing if he was “aggressive and non-compliant” because he was a sworn militant or because he was profoundly angered by his experiences in US custody.

Speaking to the Washington Post, US lawyer Thomas Wilner, who represented al-Ajmi and several other former Kuwaiti prisoners, recalled al-Ajmi’s anger and despair. He explained that his client was ”young and not well educated, and that he appeared deeply affected by his incarceration” at Guantánamo. He said that during five meetings in 2005 al-Ajmi had told him that he had been “badly abused after his capture in Afghanistan and later at Guantánamo, at one point coming to a meeting with a broken arm [he] said he sustained in a scuffle with guards.” Wilner added that over the course of his visits, al-Ajmi became “more and more distraught … about the way he was treated and the fact that he couldn’t do anything about it.”

While he too was unable to know for certain what had provoked al-Ajmi to become a suicide bomber, he maintained that this “horrible tragedy” could have been avoided if the administration had not turned its back on the due process of the law. “All we sought for him was a fair hearing, a process, and he was released by the US government without that process,” he said, adding pertinently, “The lack of a process leads to problems. It leads to innocent people being held unfairly and not-so-innocent people going home without any hearing.”

Disturbingly, the news of al-Ajmi’s homicidal suicide has prompted Robert Gates, the US defense secretary, to wheel out some long-discredited statistics relating to the number of prisoners released from Guantánamo who have allegedly “returned to the battlefield.” As reported by mebeliReuters, Gates declared, “I was told today that the recidivism rate … those who return to the battlefield, is probably somewhere between 5 and 10 percent — maybe 6, 7 percent, something like that,” adding, “We don’t have a lot of specific cases. We’re talking about one, two, three dozen that we have data on.”

The Washington Post, however, hinted at quite how vague this analysis was by describing how the Defense Intelligence Agency has “estimated that as many as three dozen former Guantánamo detainees are confirmed or suspected of having returned to terrorist activities” (emphasis added). The Post also took note of legitimate concerns by international human rights groups and lawyers for the Guantánamo prisoners, who have “disputed that estimate, saying only a handful of former detainees have left US custody and gone on to fight US forces.”

As I have explained before, and will, no doubt, continue to do so until I’m blue in the face, those who have studied the stories in any detail (myself included) not only dispute the Pentagon’s figures, but also, crucially, point out that the US administration has refused to acknowledge the shocking truth about its own responsibility for releasing the half-dozen men whom all parties agree were released by mistake.

When Abdullah Mehsud, a Taliban commander released from Guantánamo in March 2004, killed himself with a hand grenade after being cornered by security forces in Pakistan last July, I pointed out that, had the US administration not behaved with arrogant unilateralism, neither Mehsud nor the handful of other released Afghan and Pakistani prisoners who returned to the battlefield would have been freed from Guantánamo in the first place.

Mehsud came to prominence in October 2004, after two Chinese engineers working on a dam project in Waziristan were kidnapped, when he spoke to reporters on a satellite phone and said that his followers were responsible for the abductions. He went on to explain that he had spent two years in Guantánamo after being captured in Kunduz in November 2001 while fighting with the Taliban. At the time of his capture he was carrying a false Afghan ID card, and throughout his detention he maintained that he was an innocent Afghan tribesman. He added that US officials never realized that he was a Pakistani with deep ties to militants in both countries, and also told Gulf News, “I managed to keep my Pakistani identity hidden all these years.”

Another Taliban commander, Mullah Shahzada, who was released from Guantánamo in May 2003, gave the Americans a false name and claimed that he was an innocent rug merchant. “He stuck to his story and was fairly calm about the whole thing,” a military intelligence official told the New York Times. “He maintained over a period time that he was nothing but an innocent rug merchant who just got snatched up.” After his release, Shahzada seized control of Taliban operations in southern Afghanistan, recruiting fighters by “telling harrowing tales of his supposed ill-treatment in the cages of Guantánamo,” and masterminded a jailbreak in Kandahar in October 2003, in which he bribed the guards to allow 41 Taliban fighters to escape through a tunnel. His post-Guantánamo notoriety came to an end in May 2004, when he was killed in an ambush by US Special Forces.

Another Afghan Taliban commander, Maulvi Abdul Ghaffar, who was released in March 2004, was killed six months later in Uruzgan by Afghan soldiers, who believed that he was leading the Taliban forces in the province.

However, while right-wing commentators seized on the release of Mehsud, Shahzada and Ghaffar as evidence that no one should ever be released from Guantánamo, a rather different interpretation was offered by Gul Agha Sherzai, the post-Taliban governor of Kandahar, who pointed out that Shahzada would never have been freed if Afghan officials had been allowed to vet the Afghans in Guantánamo. “We know all these Taliban faces,” he said, adding that repeated requests for access to the Afghan prisoners had been turned down. Sherzai’s opinion was reinforced by security officials in Hamid Karzai’s government, who blamed the US for the return of Taliban commanders to the battlefield, explaining that “neither the American military officials, nor the Kabul police, who briefly process the detainees when they are sent home, consult them about the detainees they free.”

So there you have it. Abdullah Mehsud, Mullah Shahzada, Maulvi Abdul Ghaffar and at least three other Taliban commanders — Mullah Shakur, and two men known only as Sabitullah and Rahmatullah — were released, and returned to the battlefield, because the US authorities refused to allow their allies in Afghanistan to have any involvement in screening the prisoners to ascertain who was actually dangerous.

In conclusion, then, while the story of Abdullah al-Ajmi’s post-Guantánamo militancy is horrific in and of itself, it should not give the Pentagon free rein to indulge in dubious propaganda that whitewashes its own culpability for the release of Taliban fighters from Guantánamo, and nor should it deflect from the failures of the Guantánamo regime to provide an adequate method of screening, assessing and prosecuting those who are a genuine threat to the United States. The rules laid down by the Geneva Conventions — and the US courts — remain fit for purpose.

The alternative, as the right-wing bloggers are currently explaining, is to continue to allow the President to capture anyone he regards as a terrorist anywhere in the world and hold them forever without charge or trial. By this rationale, none of the 501 prisoners released from Guantánamo would ever have been released, not even the 92 or 93 percent of them –- that’s around 460 men –- who, according to the Pentagon’s own estimates, are not alleged to have returned to the battlefield.

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

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

On Tuesday, Binyam Mohamed, a 29-year old British resident in Guantánamo, sued the British government for refusing to produce evidence which, his lawyers contend, would demonstrate that he was tortured for 27 months by or on behalf of US forces in Morocco and Afghanistan, that any “evidence” against him was only obtained through torture, and that the British government and intelligence services knew about his torture and provided personal information about him — unrelated to terrorism — that was used by the Americans’ proxy torturers in Morocco.

They insist, moreover, that his case is an urgent priority, because he is about to be charged before a Military Commission in Guantánamo — the much-criticized system of trials for “terror suspects” that was conceived by the US administration in November 2001 — and they desperately need the exculpatory evidence in the possession of the British government to assist in his defence, and to prove his innocence.

Binyam’s torture

A refugee from Ethiopia, who arrived in the UK in 1994 and was later granted indefinite leave to remain, Binyam Mohamed was working as a cleaner in an Islamic Centre in west London in 2001, and attempting to recover from a drug problem, when he decided to travel to Afghanistan to see what the Taliban regime was like, and, he hoped, to steer clear of drugs because of the Taliban’s reputation as fierce opponents of drug use.

He came to the attention of both the American and British intelligence services in April 2002, when he was seized by the Pakistani authorities as he tried to board a flight to London. Although he had a valid airline ticket, his passport had been stolen, and, rather foolishly, he had borrowed a British friend’s passport instead.

In the heightened tension in Pakistan at the time — just days after Abu Zubaydah, an alleged senior al-Qaeda operative, was captured in Faisalabad — Binyam was immediately regarded with enormous suspicion by the American agents who visited him in the Pakistan prison in which he was held.

Although he later reported to his lawyer — Clive Stafford Smith of the legal action charity Reprieve, which represents 35 prisoners in Guantánamo — that the British checked out his story, and confirmed that he was a “nobody,” the Americans were not convinced, and decided to send him to Morocco, where he could be interrogated by professional torturers who were not bothered about international treaties preventing the use of torture, and who were equally unconcerned about whether evidence of their activities would ever surface.

Speaking of his time in Morocco, where he was held for 18 months, Binyam told Stafford Smith that he was subjected to horrendous torture, which, included, but was not limited to having his penis cut with a razor on a regular basis. In spite of this, the regular beatings and other torture that he did not even want to talk about, Binyam said that his lowest moment of all came when his torturers produced evidence of his life in London, which could only have come from the British intelligence services, and he realized that he had been abandoned and betrayed by his adopted homeland.

After Morocco, Binyam was transferred to Afghanistan, where he endured further torture in the “Dark Prison,” a secret “black site” near Kabul, run by the CIA, which was a grim recreation of a medieval dungeon, but with the addition of non-stop music and noise, blasted into the pitch-dark cells at an ear-piercing volume.

Moved from here to the main US prison at Bagram airbase, where at least two prisoners were murdered by US forces, Binyam was finally put on a plane to Guantánamo in September 2004, two and a half years after his ordeal began.

In Guantánamo, he was put forward for a Military Commission in November 2005, and made one memorable appearance before the military court, when he held up a hand-written placard declaring that the Commissions were in fact “Con-Missions,” but in June 2006 the judge in his case was spared further embarrassment when the entire system was ruled unconstitutional by the Supreme Court.

Revived later that year by a barely sentient Congress, the trials have since struggled to establish their legitimacy, and have yet to proceed beyond arraignment and pre-trial proceedings, with the exception of the case of the Australian David Hicks, who accepted a plea bargain last March in order to return home to serve a desultory nine-month sentence.

In recent months, however, the administration, which boldly states that it intends to try between 60 and 80 of the remaining 273 prisoners, has stepped up the rate at which new prisoners are being charged. In an attempt to save Binyam from a second dose of the Commissions, his lawyers at Reprieve, together with solicitors from Leigh Day & Co., decided that the most constructive and innovative way to secure Binyam’s release was to put pressure on the British government.

The letter to the UK government

Armed with evidence from flight logs, which confirmed that CIA planes had flown from Pakistan to Morocco in July 2002, and from Morocco to Afghanistan in January 2004, as Binyam said they had, and with numerous accounts of British complicity in his interrogations, and knowledge of his rendition to torture, the lawyers submitted a list of requests to David Miliband, the Foreign Secretary, at the end of March.

The extensive list of items requested included any evidence relating to UK knowledge of Binyam’s forthcoming rendition while he was held in Pakistan from April to July 2002, including “the identity of the US agents involved, so that they can be traced and interviewed or subpoenaed,” and any evidence relating to Binyam’s claim that representatives of the British intelligence services told him in Pakistan that they knew that he was a “nobody,” which, the lawyers stated, led them to “assume that the UK intelligence services and police have carried out investigations in to Mr. Mohamed’s activities whilst in the UK.” “We believe,” they added, “that such evidence will show that he does not represent a terrorist threat,” and that as such “it forms a necessary part of his defence.”

The lawyers also asked “to interview and take statements from the UK agents who (it is conceded) spoke to Mr. Mohamed whilst he was detained in Pakistan,” and who, Binyam stated, “informed him that he was going to be rendered to an Arab country for torture.” In December 2005, Jack Straw, who was the Foreign Secretary at the time, did indeed admit, in testimony to the Foreign Affairs Select Committee, that UK Security Service officers visited Binyam while he was in Pakistani custody, and Binyam’s recollections of that encounter were noted by Clive Stafford Smith during a meeting at Guantánamo:

“They gave me a cup of tea with a lot of sugar in it. I initially only took one. ‘No, you need a lot more. Where you’re going, you need a lot of sugar.’ I didn’t know exactly what he meant by this, but I figured he meant some poor country in Arabia. One of them did tell me I was going to get tortured by the Arabs.”

As Binyam’s lawyers pointed out, “Such evidence will be central to the defence of Mr. Mohamed because any evidence obtained as a result of torture is inadmissible.”

The lawyers also requested “information about Mr. Mohamed’s life in the United Kingdom that could only have come from UK intelligence agencies or other government sources,” which, as Binyam pointed out, caused him particular distress in Morocco, when it was used by his torturers. According to Stafford Smith, this information included “personal details about his life in the UK, such as details of his education, the name of his kick-boxing trainer and his friendships in London, which he had never mentioned during interrogations, and that could only have originated from collusion in the process by the UK security or secret intelligence services.”

In addition, the lawyers requested any evidence about rendition flights that stopped on the British territory of Diego Garcia in the Indian Ocean (which is leased to the United States). After five years of denials, the British government finally admitted in February that two flights had indeed stopped at Diego Garcia, and Binyam’s lawyers requested information about these flights, pointing out that one of the flights had “subsequently stopped in Morocco at the time that Mr. Mohamed was there,” and that it was, therefore, “almost certainly (a) taking another prisoner to Morocco for torture; or (b) taking US personnel there who were involved in Mr. Mohamed’s interrogation process.”

The lawyers also requested any evidence relating to Binyam’s time in the “Dark Prison” in Kabul, where, they noted, “it seems highly probable that the UK government has details of the conditions that prevailed there,” because various British residents — including Bisher al-Rawi and Jamil El-Banna, who returned to the UK from Guantánamo last year — were also held there, and any evidence relating to Binyam’s time in Bagram, where other British prisoners were also held.

The lawyers’ final request was for access to Binyam’s medical records from Guantánamo. They noted that these were “relevant to the question of torture, and Mr. Mohamed’s current physical and mental condition,” and added that, although the Guantánamo authorities have given the UK government access to Binyam’s records, they have refused to provide them to Stafford Smith. “The UK should provide a copy now,” they wrote, “or provide whatever information or documents they have recording the contents of the medical records.”

The lawsuit

The lawsuit filed on Tuesday by Reprieve and Leigh Day & Co. was triggered when lawyers for the government responded to the letter described above by refusing to hand over any of the evidence requested by Binyam’s lawyers, claiming that “the UK is under no obligation under international law to assist foreign courts and tribunals in assuring that torture evidence is not admitted,” and adding, “it is HM Government’s position that … evidence held by the UK government that US and Moroccan authorities engaged in torture or rendition cannot be obtained” by Binyam’s lawyers.

The government lawyers proceeded to claim that Binyam’s lawyers did not “provide any evidence” to support their assertion that “such alleged information or assistance ‘was subsequently used in the torture of [Mr. Mohamed],’” to which Reprieve and Leigh Day responded by pointing out that Binyam’s allegation that UK sources provided information to his torturers in Morocco was “found credible” by the Intelligence and Security Committee (IRC), a committee established in the UK Intelligence Services Act 1994, and empowered to examine the expenditure, administration and policies of MI5, MI6 and GCHQ. Binyam’s lawyers pointed out that the government had ignored the conclusion of the IRC’s Rendition Report in 2007, when the committee had explicitly stated, “There is a reasonable probability that intelligence passed to the Americans was used in [Binyam Mohamed]’s subsequent [Moroccan] interrogation.”

They also cited the particular passage from Binyam’s statement to Clive Stafford Smith, in which he spoke about the interrogation in Morocco that contained information that could only have come from the British intelligence services:

“Today I was questioned about my links with Britain. The interrogator told me, ‘We have been working with the British, and we have photos of people given to us by MI5. Do you know these?’ I realized that the British were sending questions to the Moroccans. I was at first surprised that the Brits were siding with the Americans. I sought asylum in Britain rather than America because it’s known as the one country that has laws that it follows. To say that I was disappointed at this moment would be an understatement.”

It remains to be seen, of course, if this novel approach taken by Binyam’s lawyers will bear fruit, but it seems plausible, as it is hardly in the interests of the British government to run the risk of further embarrassing disclosures. The lawsuit may, therefore, put pressure on the politicians to step up their efforts to secure Binyam’s return to Britain — to face charges in the UK, if any can be found that will stick to the “nobody” from west London — rather than to allow him to be tried in a much-criticized system in Guantánamo that threatens to embarrass both the British and the American governments.

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

As published on Indymedia, ZNet, ukwatch.net and American Torture.

See here for the latest developments in Binyam’s case.

For the five Afghans who returned home on the same flight as al-Jazeera journalist Sami al-Haj and the other three prisoners described in my previous article, the future is disturbingly uncertain. As I reported last December, when 13 of their compatriots were released from Guantánamo, they, like the other 19 Afghans released in August, September and November, were not freed outright, as was the case with the 152 other Afghans previously released, but were instead transferred to Block D, a wing of Pol-i-Charki, Kabul’s main prison, which was recently refurbished by the US authorities.

An Afghan soldier stands guard outside Kabul’s Pol-i-Charki prison. Photo by Musadeq Sadeq/Associated Press.

While some of these 32 men have subsequently been released from Pol-i-Charki, the whole story of US involvement in the prison is deeply disturbing, as are reports that the “trials” of the men returned from Guantánamo are “closed-door” affairs, in which, as the Washington Post explained last month, “they are often denied access to defense attorneys,” and are, essentially, tried on the basis of “evidence” provided by the United States, which they are not allowed to see; in other words, exactly the same situation that they faced in the Combatant Status Review Tribunals at Guantánamo (the military reviews convened to assess the prisoners’ status as “enemy combatants,” in which military officers took the place of lawyers, and secret evidence was withheld from the prisoners).

As Mohammed Afzal Mullahkeil, a lawyer for the returned Afghan prisoners explained, “When they were sent from Guantánamo, they were told, ‘You are innocent and you will be free once you’re in your country.’ When they got to Bagram, they just brought them to Block D and said they should have a second trial.”

In common with previous Afghan releases, the identities of the five men have been difficult to establish. The Pentagon never discloses the names of those it frees, and although lawyers representing the prisoners are informed of their clients’ departure, the identities of those who did not have legal representation — either because they refused to do so, or had not found any way of establishing contact with the legal community — remain unknown unless the media are present on their arrival (which has not happened in Afghanistan for many years), or until further investigation by lawyers or journalists turn up details of their identities.

Shortly after the men were released, the identities of only two of the five Afghans had been established, but over the weekend Sami al-Haj gave the names of the other three men, all of whom have now been positively identified. As with those described above, their stories reveal, yet again, the wholesale mockery of justice that defines the regime at Guantánamo: outright failures of intelligence, the presumption of guilt, the refusal to seek out witnesses to back up the prisoners’ stories, and a willingness to accept confessions from other prisoners as the truth, regardless of how it was obtained, and with no attempt made to investigate the veracity of the claims.

Haji Rohullah Wakil, a celebrated anti-Taliban commander

Of the two Afghans identified, by far the most significant is 46-year old Haji Rohullah Wakil (also identified as Haji Roohullah), a tribal leader in Afghanistan’s Kunar province, whose opposition to the Taliban was such that he fired the first salvo against the Taliban in Kunar after the US-led invasion in October 2001. As a result of his anti-Taliban credentials and his support for Hamid Karzai, Wakil was rewarded with an important position in the province’s post-Taliban administration, and was also made a member of the Loya Jirga, the prestigious gathering of tribal leaders that elected Karzai as President in June 2002. His influence was such that Ghulam Ullah, the head of education in Kunar, described him as “a national religious leader.”

Seized by US forces in August 2002, with his military commander Sabar Lal and eleven others, Wakil was taken to the US prison in Bagram airbase for questioning. Although the others were subsequently released, the Americans decided that both Wakil and Lal had sufficient intelligence value to be transferred to Guantánamo in August 2003. According to an Associated Press report, they believed that Wakil “had strong links with Middle Eastern fighters in Afghanistan, particularly Saudi Arabians like Osama bin Laden,” and thought it significant that he was a follower of the Wahhabi sect of Islam, even though both Wakil and Lal had had numerous meetings with senior American officials and had offered support for the campaign to oust al-Qaeda and the Taliban from the Tora Bora mountains in November and December 2001.

The outline of Wakil’s story has been reported before –- both in my book The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison, and in an article I wrote last October, when his military commander, Sabar Lal, was released from Guantánamo –- but it still appears to be a disturbing example of the incompetence of American military intelligence in Afghanistan, as the primary charge against Wakil — that he provided sanctuary to a number of significant al-Qaeda operatives who had fled from the city of Jalalabad after it fell to the Northern Alliance on November 12, 2001 — was so utterly at odds with his proven track record as an anti-Taliban tribal leader who was part of the Northern Alliance and supported Hamid Karzai.

While the full story of Haji Rohullah Wakil deserves more in-depth treatment than I can supply at present, there appear to be only two possible explanations for his capture: either that he did in fact aid the al-Qaeda members because he was working as a double agent, or that he was betrayed by a rival. Personally, I find the second explanation rather less far-fetched, particularly as so many other Afghan prisoners in Guantánamo — at least two dozen, including Abdul Razzaq Hekmati, who died in Guantánamo in December without being given the opportunity to clear his name — were actively opposed to the Taliban, but were betrayed by rivals who had gained the trust of the Americans.

According to this second version of events, Wakil was probably betrayed by Malik Zarin, the head of the rival Mushwani tribe, who had ingratiated himself with the Americans and was using them for his own ends. Although Wakil himself did not name names in Guantánamo, Sabar Lal, who was finally freed from Pol-i-Charki in February, to return to his wife and five children, had no doubt that he had been betrayed. Speaking to the Washington Post last month, he made it clear that he “was turned over to US forces by Afghans seeking revenge for his arrest of Taliban fighters near the Pakistani border.”

At Guantánamo, Lal had been even more forthright, explaining to his tribunal the injustice of imprisoning him with members of the Taliban: “The only thing I want to tell you that is so ironic here is that I see a Talib and then I see myself here too, I am in the same spot as a Talib. I see those people on an everyday basis, they are cursing at me … They say, ‘See, you got what you deserved, you are here, too.’”

Abdullah Mohammed Khan and his dubious friendship

The story of the second Afghan, Abdullah Mohammed Khan, a 36-year old ethnic Uzbek, shifts the focus from Afghanistan to Pakistan, and appears to be another example of dubious intelligence on the part of the Pakistani and American authorities. A former mujahid against the Russians, Khan, mentioned briefly in my book, but otherwise unknown, was arrested in Peshawar, in 2001, at the house of a Syrian acquaintance called Musa, who, according to the US authorities, was an al-Qaeda suspect identified as Abd al-Hamid al-Suri.

Khan denied knowing anything about any connection that Musa might have had with al-Qaeda, saying that all he knew was that he came to Pakistan from Turkey with his family for medical treatment on his feet, which were “in very bad condition.” He also denied knowing anything about a CD containing explosives-making manuals that was apparently discovered in Musa’s house. Released after being questioned by a Pakistani and an American, he was arrested a second time in January 2002, when traces of explosives were allegedly found on his fingers. Again, he denied the allegation, saying, “I never touched any kind of explosives after the Russians [left],” but this time he was seized and sent to Guantánamo, on what, it appears, was little more than a whim.

At his Administrative Review Board in Guantánamo (the successors to the tribunals, convened to assess whether the prisoners were still a threat to the US, or had ongoing intelligence value), Khan ran up against a litany of allegations made by other prisoners, which are shockingly prevalent in the transcripts of the hearings, even though there is no indication of the circumstances under which the “confessions” were elicited, and, moreover, no attempt was made to verify whether or not they were true.

When faced with these allegations, Khan duly denied a claim that “an al-Qaeda detainee” had identified him in a photo as Abdul Latif al-Turki, explaining that this was the name of the person who had provided him with a false Turkish passport to enter Pakistan, and adding that he was always known by his real name, and that “if you really showed somebody my picture and they told you my name is Abdul … he was lying.” He also denied a similar allegation from “A Libyan Islamic Fighting Group member,” who identified him as “al-Turki” and said that he saw him several times at the al-Ansar guest house in Pakistan, and an allegation from an Iraqi detainee who had apparently identified him in a photo and said that he had seen him at a guest house on the Taliban front lines in Kabul in 1999 or 2000.

On this point, his response was particularly revealing, as any detailed research into Guantánamo reveals that several prisoners — an Iraqi and a Yemeni are regularly cited — have spread false allegations against other prisoners. Most startlingly, this came to light in 2006, when, in an article for the National Journal, Corine Hegland told the story of an unnamed but principled Personal Representative for a young Yemeni prisoner, Farouq Saif (known to the Pentagon as Farouq Ali Ahmed), at his tribunal. This officer — assigned to Saif in place of a lawyer, and under no obligation to make a stand on his behalf — was so shocked at the vehemence with which Saif denied an allegation that he had been seen at Osama bin Laden’s personal airport that he went back to his file and discovered that the allegation had been made by another prisoner, who had been specifically identified by the FBI as a liar.

In another case reported by Hegland, another Personal Representative — or perhaps the same man; the details are unclear — followed a trail established in the case of a young Syrian, Mohammed al-Tumani, who denied even being in Afghanistan when he was alleged to have been at a training camp. On investigating the file of the prisoner who made the allegation, the officer discovered that he had actually made groundless accusations against 60 prisoners in total. Despite this, both Farouq Saif and Mohammed al-Tumani remain in Guantánamo, and no one has ever established the identities of the other 58 or 59 men who were falsely accused.

Khan’s version was as follows. “About two years ago,” he said, “I was prepared to be released from here. At that point I lived with some Iraqi people and because they disliked me they were lying, they were throwing some allegations on me and that’s why my process has stopped and that’s why I have not been released.”

Shorn of these additional allegations, the case against Khan was summarized by his Designated Military Officer (the officer assigned to the prisoners instead of a lawyer in the ARBs), who stated, “Detainee argues that he is innocent of all the charges brought before him other than that he was associated with Musa,” to which Khan added, “That’s correct. Again, I had some association with Musa and also I had a bad passport, that’s the only things that occurred.”

Tricked by the Taliban

The other three Afghans — identified by Sami al-Haj — were captured in what appears to have been a sly act of revenge by a member of the Taliban against one of his former colleagues who had turned against the regime. The story began when soldiers working for Jan Mohammed, the governor of Uruzgan province, north of Kandahar, stopped a car containing two men, Ismatullah, a 25-year old embroiderer, and Nasrullah, his 23-year old cousin, identified by Sami as Nasrullah al-Rosgani (from Uruzgan), and Esmatullah, his cousin. Ismatullah apparently admitted that he had just delivered a letter to a third man, Mohammed Sangaryar, which was from Abdul Razaq, the former Taliban Minister of Commerce. Sami identified the third man as Mohalim al-Rosgani, which was initially rather confusing, but on Tuesday his lawyer confirmed that Mohalim al-Rosgani was indeed Sangaryar, and that he too had been released.

Ismatullah explained that he had been going to Uruzgan to sell his car, and added that Razaq had said that he would pay his petrol if he delivered the letter. Unable to read, he said that he asked his 23-year old cousin, Nasrullah, to read it, to check that there “wasn’t any danger in it.” Nasrullah said that the letter asked Sangaryar to go to Quetta, but did not mention fighting, even though the US authorities alleged that Razaq had asked Sangaryar to report to Quetta “to fight and avoid capture by the Americans.”

According to Sangaryar, the letter was actually a trap, designed to punish him for turning his back on the Taliban and to discredit him by making it appear that he was still involved with them. He explained that he was a former deputy commander of the Taliban, who had fought with them for many years in an attempt to bring peace to his country. He added, however, that he and his tribe had turned against the Taliban before the US-led invasion, because they had become too enamored of fighting for its own sake, and, specifically, because they had dug up the corpse of Asmat Khan, a prominent tribal leader, and had deposited it in the street as an affront to his tribe. When the American-backed warlord Gul Agha Sherzai took over Kandahar, Sangaryar said that he and his men handed in all their weapons, and he then returned to his village to refurbish his home.

What’s particularly bizarre about this story is the fact that Abdul Razaq (aka Abdul Razak Iktiar Mohammed), the former Taliban Minister of Commerce, was himself seized and sent to Guantánamo, but was transferred to Pol-i-Charki last August, and fairly swiftly released. Throughout these men’s imprisonment, there was no indication that any effort was made to cross-reference their stories, and this is, I believe, an appropriate note on which to end these two surveys of the latest prisoners released from Guantánamo, in which you’ll have no doubt observed that not a single one of these prisoners was actually accused of raising arms against US forces, let alone of having any involvement in the terrible events of September 11, 2001.

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