Like alcoholics queuing up drinks at closing time, the US administration is pressing charges against prisoners at Guantánamo at a frantic rate, anxious to be seen to be validating the chronic lawlessness of the last seven years before November’s Presidential election.
At the end of last week, four more prisoners were put forward for trial by Military Commission (the show trials conceived by Dick Cheney in November 2001), bringing to 20 the total number charged — although one of the 20, David Hicks, opted for a plea bargain last year so that he could return home to Australia, and another, Mohammed al-Qahtani, had his charges dropped last month, when, it appears, the authorities realized that his torture in Guantánamo was far too publicly available to risk it being brought forward as evidence in a trial.
None of the cases has yet come to trial, as the business of arraignments and pre-trial hearings has been so time-consuming and fraught with problems that the fragile veneer of Congress-sanctioned legitimacy that cloaks the Commission process has been threatened on more than one occasion; in particular, last June, when Col. Peter Brownback and Capt. Keith Allred, the judges in the first two cases following that of David Hicks — of the Canadian Omar Khadr and the Yemeni Salim Hamdan — shut down the whole process after they realized that the Military Commissions Act (the legislation that had revived the Commissions after the Supreme Court had ruled the whole process illegal in June 2006) had only authorized them to try “unlawful enemy combatants,” whereas the tribunal process at Guantánamo, which, according to the terms of the MCA, had made them eligible for trial by Military Commission in the first place, had only found them to be “enemy combatants.”
Although this disruption was dealt with when the administration cobbled together an appeal court to dismiss the judges’ concerns, both Col. Brownback and Capt. Allred have since demonstrated that, although the Commissions themselves may be nothing more than show trials (“We can’t have acquittals,” was how the Department of Defense’s chief counsel William J. Haynes II, put it), the judges themselves were not prepared to be either ciphers or puppets, and were determined, instead, to do what judges are supposed to do, which is to assess the proceedings and the cases impartially.
Capt. Allred has featured more prominently in the media of late — first by endorsing former chief prosecutor Col. Morris Davis’ complaints about the unacceptable politicization of the Commissions process (complete with Haynes’ “no acquittals” comments, and Col. Davis’ disdain for the administration’s insistence on introducing evidence obtained through torture), and then by delaying the start of Salim Hamdan’s trial to allow time for the Supreme Court to deliver a long-awaited ruling on the prisoners’ rights.
However, Col. Brownback also weighed in recently, threatening to delay the start of Omar Khadr’s trial because of what he perceived as delaying tactics on the part of the prosecution (led by Maj. Jeffrey Groharing), who, he said, had failed to provide Khadr’s lawyers with records of his interrogations at Guantánamo, despite repeated requests to do so. “I have been badgered, beaten and bruised by Maj. Groharing since the 7th of November to set a trial date,” Col. Brownback exclaimed. “To get a trial date, I need to get discovery done.”
Whilst it’s possible that Col. Brownback’s sudden removal last Thursday as the judge in Omar Khadr’s case can be explained because he had actually come out of retirement to serve as a Commission judge, and had reached the end of his required involvement, the timing has struck many observers — myself included — as more than a little suspicious, especially as the administration has refused to elaborate on the reasons for Col. Brownback’s departure — or dismissal. It remains to be seen whether any comment will eventually be forthcoming from Col. Brownback himself, or, indeed, whether his replacement, Col. Patrick Parrish, will be more inclined to do his job without raising uncomfortable questions along the way.
Compared to this drama, the latest charges are, with one exception, rather less spectacular. The four men charged — Ghassan al-Sharbi, Jabran al-Qahtani (both Saudis), Sufyian Barhoumi (an Algerian) and Binyam Mohamed (a British resident) — have all been charged before, during the Commission’s first incarnation, which was struck down as illegal in 2006. Nevertheless, doubts remain about their suitability for trials as significant “terror suspects.”
The first three — who face charges of “conspiracy and material support for terrorism” (here, here and here) — were captured with Abu Zubaydah (left), the alleged senior al-Qaeda operative whose mental health has repeatedly been called into doubt, following well-chronicled conflicts between the FBI, who interrogated him after he was first seized in March 2002, and who concluded that he had a personality disorder and was nothing more than a minor logistician, and the CIA, who believed him to be a major player, and subjected him to various forms of torture including waterboarding (the ancient torture technique that is a form of controlled drowning).
Whilst it’s noticeable that Abu Zubaydah himself has not yet been put forward for trial by Military Commission, the charges leveled against three of his supposed associates (mainly for alleged crimes relating to the planned use of explosives) will ensure that he does not escape the picture. Although two of the three men — al-Qahtani and Barhoumi — have not publicly acknowledged a significant connection with either Abu Zubaydah or al-Qaeda, al-Sharbi — a leader in the short-lived Prisoners’ Council of 2005, who was befriended by Guantánamo’s warden, Col. Mike Bumgarner, and later became one of Guantánamo’s most persistent hunger strikers — has had no such qualms.
Al-Qahtani, a graduate in electrical engineering from King Saud University in Saudi Arabia, has, for example, had little to say about the allegations against him: that he traveled to Afghanistan after 9/11 “with the intent to fight the Northern Alliance and the American forces, whom he expected would soon be fighting in Afghanistan,” and that he was part of a group at Abu Zubaydah’s house who were provided with money to buy the components to make remote-controlled explosive devices. He refused to take part in his tribunal at Guantánamo (in 2004 or 2005), and spoke very little in April 2006, during the pre-trial hearing for his first, aborted Military Commission, when he was concerned only to refuse the services of his military lawyer.
Barhoumi, who is accused of being a trainer for the bomb-making group, has gone so far as to strenuously deny the allegations against him. In his tribunal at Guantánamo, he admitted traveling to Afghanistan for military training in 1999, but pointed out that this was long before 9/11, and insisted that, having been shown a video of atrocities in Chechnya at a mosque in the UK, where he lived for two years, his intention was to train to fight in Chechnya. He explained that, after leaving Afghanistan, he traveled “from house to house,” ending up at the safe house in Faisalabad where he was seized with Abu Zubaydah. He added, however, that he was only there for ten days before the raid, and claimed that the allegations were the result of “hearsay” and of “people testifying against me.” He claimed that his interrogators told him, “people are talking about you a lot,” and suggested that, because he was arrested with Abu Zubaydah, “they dumped everything on me and said I was al-Qaeda also.” At his pre-trial hearing in 2006, he also refused legal representation, but was only concerned with showing the courtroom his hand, which was severely damaged after a land mine accident in Afghanistan, and complaining about the conditions of his imprisonment.
Ghassan al-Sharbi, on the other hand, who speaks fluent English and graduated in electrical engineering from Embry Riddle Aeronautical University in Arizona, is one of very few Guantánamo prisoners to have publicly declared membership of al-Qaeda. In his tribunal, he accepted all the allegations against him, which included claims that he received specialized training in the manufacture and use of remote-controlled explosive devices to detonate bombs against Afghan and US forces, that he “was observed chatting and laughing like pals with Osama bin Laden,” and that he was known in Guantánamo as the “electronic builder” and “Abu Zubaydah’s right-hand man.” On April 27, 2006, when he appeared at a pre-trial hearing for his first, aborted Military Commission, he was equally open about his activities, telling the judge, “I came here to tell you I did what I did and I’m willing to pay the price,” “Even if I spend hundreds of years in jail, that would be a matter of honor to me,” and “I fought the United States, I’m going to make it short and easy for you guys: I’m proud of what I did.”
While no one appears to have stepped forward to make much of the cases against the three men described above, the fourth man to be charged last week — Binyam Mohamed — is a much more difficult prospect for the US administration, as his suffering at the hands of proxy torturers in Morocco, where he was sent by US operatives in 2002 (and where he regularly had his penis cut with a razor), and his additional torture at the “Dark Prison,” a secret, CIA-run prison near Kabul, have been well-chronicled since declassified accounts were first unveiled in the press in August 2005.
I have previously reported the story of Binyam Mohamed’s torture, and the fact that all the so-called “evidence” against him was extracted through torture — most recently here, after his representatives at Reprieve, the legal action charity, and solicitors at Leigh Day & Co. sued the British government, demanding that they turn over evidence that could help prove both his innocence and the extent of his torture. Astonishingly, the government’s lawyers responded by stating 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 added that “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 the British lawyers who are trying to provide Mr. Mohamed with a fair trial.
Responding to the gauntlets thrown down by both the UK government’s lawyers and the US administration, Clive Stafford Smith, Reprieve’s Director, greeted the news that Binyam Mohamed was to face a trial by Military Commission by declaring, “I visited Binyam in Guantánamo just a week ago, and he is in a very bad state. Surely the least the British government can do is insist that no British resident be charged in a kangaroo court based on evidence tortured out of him with a razor blade. If Binyam’s trial by Military Commission proceeds, all it will produce is evidence not of terrorism, but of torture, which will embarrass both the British and the American governments.”
The last time Binyam Mohamed faced a Military Commission, he disrupted the entire proceedings, to his great advantage, by mocking both the process and the judge, humanizing himself in the eyes of the world’s media, and ending by holding up a hand-written sign that cheekily declared that the Commissions were “Con-missions” instead. It remains to be seen if — belittled by a further two years in Guantánamo, which has had a disturbing effect on his mental health — he would be able to come up with a similar display again. What his lawyers hope, however — as do his many supporters, who believe that, if there is any evidence against him, it should be tested through a fair trial in a recognized court of law — is that it will not come to this, and that the British government will indeed be persuaded to step up its remonstrations on his behalf, to avoid a torture scandal spanning the Atlantic.
Andy Worthington is the author of The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison (published by Pluto Press, distributed by Macmillan in the US, and available from Amazon — click on the following for the US and the UK). To receive new articles in your inbox, please subscribe to my RSS feed, and see here for my definitive Guantánamo prisoner list, published in March 2009.
See the following for a sequence of articles dealing with the stumbling progress of the Military Commissions: The reviled Military Commissions collapse (June 2007), A bad week at Guantánamo (Commissions revived, September 2007), The curse of the Military Commissions strikes the prosecutors (September 2007), A good week at Guantánamo (chief prosecutor resigns, October 2007), The story of Mohamed Jawad (October 2007), The story of Omar Khadr (November 2007), Guantánamo trials: where are the terrorists? (February 2008), Six in Guantánamo charged with 9/11 attacks: why now, and what about the torture? (February 2008), Guantánamo’s shambolic trials (ex-prosecutor turns, February 2008), Torture allegations dog Guantánamo trials (March 2008), African embassy bombing suspect charged (March 2008), The US military’s shameless propaganda over 9/11 trials (April 2008), Betrayals, backsliding and boycotts (May 2008), Fact Sheet: The 16 prisoners charged (May 2008), Afghan fantasist to face trial (June 2008), 9/11 trial defendants cry torture (June 2008), USS Cole bombing suspect charged (July 2008), Folly and injustice (Salim Hamdan’s trial approved, July 2008), A critical overview of Salim Hamdan’s Guantánamo trial and the dubious verdict (August 2008), Salim Hamdan’s sentence signals the end of Guantánamo (August 2008), High Court rules against UK and US in case of Binyam Mohamed (August 2008), Controversy still plagues Guantánamo’s Military Commissions (September 2008), Another Insignificant Afghan Charged (September 2008), Seized at 15, Omar Khadr Turns 22 in Guantánamo (September 2008), Is Khalid Sheikh Mohammed Running the 9/11 Trials? (September 2008), two articles exploring the Commissions’ corrupt command structure (The Dark Heart of the Guantánamo Trials, and New Evidence of Systemic Bias in Guantánamo Trials, October 2008), Meltdown at the Guantánamo Trials (five trials dropped, October 2008), The collapse of Omar Khadr’s Guantánamo trial (October 2008), Corruption at Guantánamo (legal adviser faces military investigations, October 2008), An empty trial at Guantánamo (Ali Hamza al-Bahlul, October 2008), Life sentence for al-Qaeda propagandist fails to justify Guantánamo trials (al-Bahlul, November 2008), Guilt by Torture: Binyam Mohamed’s Transatlantic Quest for Justice (November 2008), 20 Reasons To Shut Down The Guantánamo Trials (profiles of all the prisoners charged, November 2008), How Guantánamo Can Be Closed: Advice for Barack Obama (November 2008), More Dubious Charges in the Guantánamo Trials (two Kuwaitis, November 2008), The End of Guantánamo (Salim Hamdan repatriated, November 2008), Torture, Preventive Detention and the Terror Trials at Guantánamo (December 2008), Is the 9/11 trial confession an al-Qaeda coup? (December 2008), The Dying Days of the Guantánamo Trials (January 2009), Former Guantánamo Prosecutor Condemns Chaotic Trials (Lt. Col. Vandeveld on Mohamed Jawad, January 2009), Torture taints the case of Mohamed Jawad (January 2009), Bush Era Ends with Guantánamo Trial Chief’s Torture Confession (Susan Crawford on Mohammed al-Qahtani, January 2009), Chaos and Lies: Why Obama Was Right to Halt The Guantánamo Trials (January 2009), Binyam Mohamed’s Plea Bargain: Trading Torture For Freedom (March 2009).
And for a sequence of articles dealing with the Obama administration’s response to the Military Commissions, see: Don’t Forget Guantánamo (February 2009), Who’s Running Guantánamo? (February 2009), The Talking Dog interviews Darrel Vandeveld, former Guantánamo prosecutor (February 2009), Obama’s First 100 Days: A Start On Guantánamo, But Not Enough (May 2009), Obama Returns To Bush Era On Guantánamo (May 2009), New Chief Prosecutor Appointed For Military Commissions At Guantánamo (May 2009), Pain At Guantánamo And Paralysis In Government (May 2009), My Message To Obama: Great Speech, But No Military Commissions and No “Preventive Detention” (May 2009), Guantánamo And The Many Failures Of US Politicians (May 2009), A Child At Guantánamo: The Unending Torment of Mohamed Jawad (June 2009), A Broken Circus: Guantánamo Trials Convene For One Day Of Chaos (June 2009), Obama Proposes Swift Execution of Alleged 9/11 Conspirators (June 2009), Obama’s Confusion Over Guantánamo Terror Trials (June 2009).
[...] an urgency to this mission, as Binyam has just been put forward for trial by Military Commission ( http://www.andyworthington.co.uk/2008/06/03/guantanamo-trials-critical-judge-sacked-british-torture-…), on long-discredited charges of plotting to detonate a “dirty bomb” in a US city, and there is [...]
[...] for evidence (May 2008), Binyam Mohamed’s letter from Guantánamo to Gordon Brown (May 2008), Guantánamo trials: critical judge sacked, British torture victim charged (June 2008), Binyam Mohamed: UK court grants judicial review over torture allegations, as US files [...]
[...] the information obtained from Mohamed was “sought to be used as a confession in a trial [by Military Commission at Guantánamo] where the charges … are very serious and may carry the death penalty,” and that [...]
[...] Ghassan al-Sharbi and Jabran al-Qahtani (both Saudis), and Sufyian Barhoumi (another Algerian) — were charged. In addition, he might also have recognized that Labed Ahmed (also captured in the house and also [...]
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