Archive for July, 2008

I’ve just posted the fourth of 12 additional online chapters supplementing my book The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison (published by Pluto Press/the University of Michigan Press). 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 6 of The Guantánamo Files, looking at the stories of 22 Saudi prisoners not mentioned in the book. They were amongst the 250 or so prisoners (almost one-third of Guantánamo’s entire population) who were captured crossing from Afghanistan to Pakistan in December 2001. In the next online chapter I’ll be looking at the stories of the Yemenis captured at the same time.

This is an anniversary of sorts, as this is my 250th post since I first began blogging about Guantánamo last May, and I’m delighted to be able to report that, since I posted the last online chapter two months ago, the sins of the executive with regard to the “War on Terror” (indefinite imprisonment without charge or trial, and without an adequate screening process), as mandated by a spineless Congress, have been resolutely challenged by the judiciary.

Last month, fed up with the administration’s persistent refusal to grant the prisoners a fair hearing to ascertain whether there was, in fact, any reason to hold them, the Supreme Court, which had first granted the prisoners habeas corpus rights in June 2004, only to have them removed by Congress, reinstated their habeas corpus rights, but this time grounded them in the US Constitution, beyond the whims of the executive and the politicians.

Two weeks later, the Court of Appeals, examining the first of many cases that had been on hold pending the Supreme Court’s decision, ruled decisively in favor of a Chinese prisoner, Huzaifa Parhat, stating that the tribunal which determined that he was an “enemy combatant,” who could be held indefinitely, was “invalid,” and deriding the government’s evidence as being akin to the nonsense poetry of Lewis Carroll.

And today, in the Washington Post, an article about New Yorker journalist Jane Mayer’s forthcoming book, The Dark Side, explains why these verdicts are so important, dealing another blow to the validity of the tribunal process, and reinforcing what I discovered during my research for The Guantánamo Files: that the overwhelming majority of the prisoners were either innocent men or Taliban foot soldiers with no knowledge of al-Qaeda or the 9/11 attacks.

Mayer describes the findings of a classified CIA report which, as the Post describes it, was “prepared in the summer of 2002 by a senior CIA analyst who was invited to the prison camp in Cuba to help Defense Department officials grapple with a major problem: They were gleaning very little useful information from the roughly 600 detainees in custody at the time.” After studying the prisoners’ cases, the analyst concluded that a third of them “had no connection with terrorism whatsoever.” The article continues: “Many were essentially bystanders who had been swept up in dragnets or turned over to the US military by bounty hunters.” Mayer adds that, when the findings were reported to Major Gen. Michael Dunlavey, Guantánamo’s commander, Dunlavey “not only agreed with the assessment but suggested that an even higher percentage of detentions — up to half — were in error.”

Mayer also explains why no action was taken to free all these wrongly imprisoned men, laying the blame squarely on Vice President Dick Cheney’s senior counsel (and now Chief of Staff), David Addington. Describing Addington as “adamant and imperious” (as all who have studied his recent testimony before a subcommittee of the House Judiciary Committee can confirm), Mayer quotes him as saying, “There will be no review. The president has determined that they are ALL enemy combatants. We are not going to revisit it.”

Keep David Addington in mind as you read this latest online chapter.

NOTE: The first three additional chapters are available here, here and here.

This has been a bad week for the British government, in relation to two of the running sores of its foreign policy, both centred on the Overseas Territory of Diego Garcia in the Indian Ocean.

Diego Garcia and the surrounding islands — known collectively as the Chagos Islands — were shamefully cleared of their existing population in the late 1960s, to make way for a US airbase on Diego Garcia itself. This was a manifestation of the “special relationship” between the UK and the US, which involved the old empire facilitating its successor’s global reach, in exchange for a significant discount on the UK’s Polaris nuclear missile programme.

Ever since, the exiled Chagossians have been attempting to regain access to their ancestral lands, but with limited success. Although successive British governments have toned down the racist rhetoric used at the time of the islanders’ forced removal — when official documents referred to them as “Tarzans or Men Fridays” — Diego Garcia and the Chagos Islands have remained at the forefront of a colonial mindset that has never quite been extirpated from the Foreign Office’s mentality.

Although the islanders won a stunning victory in the High Court in 2000, which ruled that their expulsion had been illegal, the government fought back in 2003, when Prime Minster Tony Blair invoked an ancient and archaic “royal prerogative” to strike down their claims once more. Although the court of appeal reversed this decision in May 2006, ruling that the islanders’ right to return was “one of the most fundamental liberties known to human beings,” it was clear that, in the struggle between a group of cruelly disposed islanders on the one hand, and the US military-industrial complex on the other, the Chagossians’ fight was far from over.

Last week, just after a party of Chagossians visited London to hear lawyers for the Foreign Office appealing in the House of Lords against the 2006 verdict and claiming, as the Guardian put it, that “[a]llowing the Chagossian islanders to go back to their Indian Ocean homes would be a ‘precarious and costly’ operation,” and that “the United States had said that it would also present an ‘unacceptable risk’ to its base on Diego Garcia,” David Miliband, the foreign secretary, delivered a short statement relating to the other scandal of Diego Garcia: its use for “extraordinary rendition” flights in the “War on Terror.”

After years of denials by the British government that rendition flights had passed through Diego Garcia, David Miliband admitted in February that he had just been informed by his US counterparts that, upon searching their records, they had discovered that two flights had stopped on Diego Garcia in 2002. “In both cases a US plane with a single detainee on board refuelled at the US facility in Diego Garcia,” Miliband said. “The detainees did not leave the plane, and the US Government has assured us that no US detainees have ever been held on Diego Garcia. US investigations show no record of any other rendition through Diego Garcia or any other Overseas Territory or through the UK itself since then.”

At the time, I noted that this appeared to be a sly form of damage limitation, as there was compelling evidence that, far from being used on just two occasions as a transit point, the island had actually housed a secret prison. Three examples will suffice for now, although it’s a safe bet that more revelations are forthcoming.

In October 2003, Time magazine ran an exclusive feature by Simon Elegant focusing on the imprisonment of Hambali, a “high-value detainee,” who spent years in various secret CIA prisons — including Diego Garcia — until he was transferred to Guantánamo in September 2006. Other evidence came from Council of Europe investigator (and Swiss senator) Dick Marty, who reported in June 2006 that, having spoken to senior CIA officers during his research, he had “received concurring confirmations that United States agencies have used Diego Garcia, which is the international legal responsibility of the UK, in the ‘processing’ of high-value detainees.’”

The final piece of evidence came from inside the US administration itself, when Barry McCaffrey, a retired four-star US general, and currently a professor of international security studies at the West Point military academy, let slip on two occasions that Diego Garcia had housed a secret prison. In May 2004, he blithely declared, “We’re probably holding around 3,000 people, you know, Bagram air field, Diego Garcia, Guantánamo, 16 camps throughout Iraq,” and in December 2006 he slipped the leash again, saying, “They’re behind bars … we’ve got them on Diego Garcia, in Bagram air field, in Guantánamo.”

David Miliband’s statement last Thursday did nothing to suggest that the British government had any intention of pushing the matter further with its US allies, even though, as the sovereign power in charge of the islands, the ministers are unable to evade responsibility for what has taken place on Diego Garcia.

Rather feebly, the foreign secretary stated that, after sending a list of possible rendition flights that may have passed through British territory to the US authorities, “The United States Government confirmed that, with the exception of two cases related to Diego Garcia in 2002, there have been no other instances in which US intelligence flights landed in the United Kingdom, our Overseas Territories, or the Crown Dependencies, with a detainee on board since 11 September 2001.”

Reprieve, the legal action charity that has spent several years investigating “extraordinary rendition” and secret prisons, responded by pointing out that the British government “intentionally failed to ask the right questions of the US, and accepted implausible US assurances at face value,” noting that the Foreign Office had declined to ask the US government for the names of the prisoners transported via Diego Garcia in 2002, that it had failed to ask if any other rendition flights had passed through Diego Garcia, even if, as the US asserted, no other planes landed there, and had also failed to ask whether any other flights passed through UK territory en route to engaging in “extraordinary rendition,” which would make the UK complicit in the crime.

The British government faced a fresh barrage of criticism just three days later, when the Foreign Affairs Select Committee published its latest report (PDF) on the Overseas Territories. With reference to Diego Garcia, the Committee declared that “it is deplorable that previous US assurances about rendition flights have turned out to be false. The failure of the United States Administration to tell the truth resulted in the UK Government inadvertently misleading our Select Committee and the House of Commons. We intend to examine further the extent of UK supervision of US activities on Diego Garcia, including all flights and ships serviced from Diego Garcia.”

For good measure, the Committee also had harsh words about the government’s treatment of the Chagossians, noting, “We conclude that there is a strong moral case for the UK permitting and supporting a return … for the Chagossians. The FCO (Foreign Office) has argued that such a return would be unsustainable, but we find these arguments less than convincing.”

Under pressure on two fronts over Diego Garcia, it remains to be seen whether the government can once more worm its way out of trouble. Tory MP Andrew Tyrie, who chairs the all-party parliamentary group on extraordinary rendition, is keen not to let this happen. Speaking after the report was published, he chastised the foreign secretary for dismissing his concerns about “extraordinary rendition” when he first raised the issue last October. “The Foreign Secretary persistently gave me the brush-off. He said we could rely on US assurances,” Tyrie said, adding, “My allegations were correct. The Foreign Secretary’s brush-off was not just misplaced, it was a disgrace.”

Reprieve was even more blunt, stating, “This remains a transatlantic cover-up of epic proportions. While the British government seems content to accept whatever nonsense it is fed by its US allies, the sordid truth about Diego Garcia’s central role in the unjust rendition and detention of prisoners in the so-called ‘War on Terror’ cannot be hidden forever.”

Andy is the author of The Guantanamo Files: The Stories of the 774 Detainees in America’s Illegal Prison (published by Pluto Press/the University of Michigan Press).

As published on Indymedia, CounterPunch and ZNet.

It doesn’t take much investigation to discover that Algeria has a bleak human rights record, which is one of the reasons that, until last week, when 49-year old Mustafa Hamlili and 28-year old Abdul Raham Houari were freed from Guantánamo, no Algerian prisoners had been repatriated. This was in spite of the fact that at least ten of the 17 Algerians held in the prison have been cleared for release — some for around two years — after multiple military review boards determined that they no longer represented a threat to the US or its allies.

The Miami Herald reported that the US administration blamed the Algerian government for the delay in repatriating cleared Algerians from Guantánamo, citing a comment by Sandra Hodgkinson, the Defense Department deputy in charge of detainee affairs, who said earlier this year that the Algerian authorities “simply decided that they do not want to accept back any of the detainees from the United States.” Hodgkinson added that the Algerian government’s stance was “discouraging,” and claimed that, last summer, as the Herald described it, “Washington and Algiers agreed on [the] repatriation of a number of Algerians she would not quantify. Then the North African nation reversed course.”

There is, undoubtedly, some truth to Hodgkinson’s claims, but it is not the whole story, as the case of another cleared prisoner, Ahmed Belbacha, demonstrates. A former football player in Algeria, who had been working for a government-owned oil company, Belbacha fled to the UK when Islamist militants threatened his life, and settled in the southern coastal town of Bournemouth, where he found steady employment and a group of close friends.

While waiting to see if his asylum claim was successful, Belbacha took a month’s vacation to visit Damascus, Tehran and an Afghan refugee camp in Pakistan, and it was while he was in Pakistan that he was seized by opportunistic soldiers and sold to US forces. When he was finally cleared for release from Guantánamo in February 2007, having been found not to pose a threat to the US or its allies — including the UK and Algeria — his return to the UK was refused by the British government, on the grounds that he was not technically a resident at the time of his capture (even though he had already spent two productive years in the UK).

His lawyers at the London-based legal action charity Reprieve were then obliged to mount a series of successful legal actions in the US courts to prevent his return to Algeria, where he is at risk not only from the terrorists who had previously threatened him, but also from the Algerian intelligence services, who, as one of his lawyers, Zachary Katznelson, explained last summer, “have told Reprieve that if Ahmed returns, they cannot ensure that he will be safe — from their own personnel.” Katznelson also said, “He says his cell in Guantánamo is like a grave and that although it sounds crazy he would rather stay in those conditions than go back to Algeria. The fact is that he is really, really scared about what might happen to him in Algeria.”

Sadly, while Ahmed Belbacha’s fears are genuine, and should, by law, be respected by the US administration, which is a signatory to international treaties preventing the return of foreign nationals to countries where they face the risk of torture, the administration has persistently demonstrated its determination to bypass its obligations by signing “memoranda of understanding” with abusive regimes including Libya, Tunisia and Jordan. For its part, Algeria has refused officially to sign a “memorandum of understanding,” but, as the case of Ahmed Belbacha shows, this has not prevented the US authorities from attempting to strike deals with the Algerian government.

Moreover, although the “memoranda of understanding” purport to guarantee humane treatment, they are clearly worthless. Last June, when two cleared Tunisians, Lotfi Lagha and Abdullah bin Omar, were repatriated, their “humane treatment” consisted of summary imprisonment, abuse, threats to rape bin Omar’s wife and daughters, and, finally, show trials based on false evidence obtained from other prisoners tortured in Tunisia, in which the two men received jail sentences of three and seven years.

The UK, too, has been involved in similar underhand activity, making equally worthless agreements with these same regimes in an attempt to rid itself of unwanted foreign nationals, who have never been charged with a crime, but who have been held in prison, or under draconian control orders, which amount to house arrest. This imprisonment without charge or trial is based on secret evidence, which has never been disclosed, but which, like the “evidence” against the Guantánamo prisoners, is often of dubious provenance. Where it has surfaced it has hinted at ineptitude on the part of the British intelligence services, or false information obtained from prisoners tortured in other countries, including Algeria.

Although a number of courts have intervened to prevent the repatriation of some of those held in Britain’s various Guantánamo-influenced forms of detention — to Libya, Jordan, and, in a few cases, Algeria — other Algerians have either failed to prevent their deportation in the courts, or have given up on the law entirely, bowing to the pressure exerted on them to force them to return “voluntarily” to the countries of their birth by doing just that. The results have been mixed, with some released, while others have been tried and sentenced for dubious terrorism-related offences (despite UK assurances to the contrary), but throughout this process the treatment appears to have been arbitrary, and it is for this reason that I chose the “Russian roulette” analogy in the heading of this article.

In Guantánamo, Ahmed Belbacha’s fear of repatriation is not unique. Several other cleared Algerian prisoners are also terrified of returning to the country of their birth, although their lawyers have not been obliged to take legal action, because the US administration has not, to date, attempted to send them home.

From what I understand, however, the two men repatriated last week had decided, unlike Ahmed Belbacha, that they preferred to take their chances with repatriation. No news has yet emerged from Algeria to indicate whether or not Mustafa Hamlili and Abdul Raham Houari were freed on their return, or whether — in the disturbing game of Russian roulette that confronts Algerians repatriated after facing allegations of impropriety, however groundless — they are, as you read this, facing ill-treatment, possible torture, show trials and further imprisonment. What is certain, however, is that neither man ever constituted a threat to either the United States or to Algeria.

The first, Abdul Raham Houari, who was just 21 years old when he was captured in Afghanistan, in November or December 2001, appears to be one of countless impressionable young men fired up by false hopes that Afghanistan would be an inspirational place for a young Muslim to visit. At a military review board hearing in December 2005, he denied an allegation that his travel had been funded by al-Qaeda, and explained that his journey to Pakistan had been facilitated by a Pakistani youth mosque, and that he had paid for his own travel. He also explained that, although he had stayed in a guest house in Bagram, Afghanistan, where he had been taught how to use a Kalashnikov, he had not engaged in hostilities against either the Northern Alliance or the United States. He added that he was injured while sleeping, when someone accidentally detonated a grenade, and that when he awoke he was in a vehicle near a hospital, and was then taken to the hospital, where he was later seized and transferred to Guantánamo.

All that can be gleaned of his behavior in Guantánamo comes from this same transcript, where it was alleged that his “[o]verall behavior has been generally non-compliant and aggressive,” and that he “has failed to comply with guards’ instructions on a number of occasions. He has been informed to keep his clothes on and has repeatedly ignored those orders and has stood in his cell naked.” A sign that this may have been less to do with deliberate insubordination, and more to do with a head injury and unaddressed mental health issues can be found in Houari’s reply. “I have never misbehaved while being a Detainee,” he said. “I am under medication for my head injury and I removed my clothes because I had a headache.”

The second man, Mustafa Hamlili, was, like at least 120 other prisoners in Guantánamo, seized in Pakistan, and not, as the administration has repeatedly alleged, on the battlefields of Afghanistan. 42 years old when he was dragged from his home, in a village near Peshawar, on May 25, 2002, the former university professor, who fought the Russians in Afghanistan, ran through his history in a dignified and eloquent manner during his tribunal at Guantánamo. Declaring his innocence, he explained, “For the last 15 years, I have not [had] any problems with anyone in my village. Anyone in my village can verify that. I am 45 and I am not going to do anything foolish. If I were going to do these things, I would have done them when I was younger. I am a Muslim. Islam is against all terrorism, violence and problems between people.”

According to the timeline of events described by Hamlili, he traveled to Pakistan from Saudi Arabia in 1987 and took up a job with the International Islamic Relief Organization, a large and well-funded Saudi charity, working in the Orphans’ Department and looking after a school until it closed in 1990. He then supported himself and his family by working as a welder and a honey seller for the next ten years, traveling to the Yemen from 1995-97, when he took the opportunity to study because he didn’t need a visa, and then returning to Pakistan.

He explained that from June to September 2001 he worked for the charity al-Wafa in Kandahar, digging wells and remodelling mosques, until the office closed. Dozens of prisoners at Guantánamo — all now released — were held because the US regarded al-Wafa as an organization that was associated with al-Qaeda and the Taliban, although Hamlili was not convinced by the associations suggested by the authorities, explaining that he “never suspected al-Wafa was a terrorist organization because they had blankets, medicine, hospitals, and equipment to repair roads.” He also told his tribunal that he began working with al-Wafa because “I was told there was a Saudi organization that was looking for employees,” adding, crucially, “The Arabs in Afghanistan didn’t want to work for al-Wafa because they considered it working for [the] Saudi government. I was proud to be working for a humanitarian organization.”

Throughout his tribunal, it was unclear what Hamlili had done to be designated as an “enemy combatant,” and his Personal Representative (the military officer appointed in place of a lawyer) duly spoke up on his behalf, saying, “The Pakistani police and the Americans confiscated his audiotapes and books but found nothing to connect him with any terrorist activities.”

Hamlili himself summed up his predicament when asked why he thought he was arrested. “From what I understand,” he said, “the Pakistani intelligence was under pressure from the Americans to deliver al-Qaeda operatives and other terrorists. The Pakistani intelligence arrested people (some were poor and innocent) so they could show Americans they were working with them. The Pakistani officer that arrested me said I had nothing to worry about. I would be released shortly since they were looking specifically for al-Qaeda members.” Shamefully, Hamlili’s story is far from unique, although other tales of opportunistic arrests were not always expressed as eloquently by other prisoners rounded up by the Pakistani authorities to “show Americans they were working with them.”

At the conclusion of his hearing, when asked, “Have you ever worked for al-Qaeda or supported them in any way?” Hamlili reinforced the case for his innocence by delivering the following stinging rebuke: “No, I would rather starve than work for that organization. They try to control you and do things to your religion.”

In his last known hearing, in July 2006, Hamlili maintained the dignity he had shown previously, speaking about the conditions in the prison that had led, the previous month, to three prisoners committing suicide. “What happened because of [the abuse of] the Koran and other things could have been avoided if you had consulted with senior detainees about some matters,” he said. “With my regret, the miscommunication and mistreatment created problems and uprising. I am sorry for the ones who killed themselves recently. If they were around me, the wise one, the senior, I would have stopped it from happening because it is against my religion. I ask God to fix things and take care of mankind.”

In conclusion, the following exchange, which touched on issues relating to his possible repatriation, contained a measured defense of his religion, and his position on extremism, which I hope has come to the attention of the Algerian authorities:

Presiding Officer: I realize that you denied a lot of the allegations against you in regards to al-Qaeda and the Taliban. Should you return to Algeria, what kind of assurances can the Board have that you are not going to return to this kind of activity again?

Detainee: If I wanted to be one of them, I would have worked for them before I got to this detention. I did not participate before and I will never do that in the future. I pray and fast; I read the Koran. I am a Muslim. I am a peaceful man. I like to do good things to people, which is what out prophets teach us. What’s happening now with these groups is not a representation of Islam because Islam is very clear. Islam religion is a humane religion. Islam teaches people to work together.”

Parts of this article are drawn from my book The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison (published by Pluto Press/the University of Michigan Press).

As published on Anti-war.com and CounterPunch. An edited version was published on the Huffington Post.

On BBC Radio 4’s The World Tonight, singer-songwriter David Gray spoke out against the use of music as torture by the US military.

Gray’s chart-topping song Babylon, played repeatedly at ear-piercing volume, is one of dozens of songs, by artists including Eminem, Bruce Springsteen, Rage Against the Machine and Britney Spears, that has been used by the US military as part of a package of “enhanced interrogation techniques,” intended to “break” prisoners held without charge or trial in the “War on Terror” — in Guantánamo, in Iraq, and in secret prisons run by the CIA.

As the Guardian recently explained, the use of Babylon first came to light “after Haj Ali, the hooded man in the notorious Abu Ghraib photographs, told of being stripped, handcuffed and forced to listen to a looped sample of Babylon, at a volume so high he feared that his head would burst.”

Complaining that the only part of the torture music story that gets noticed is its “novelty aspect” — which he compared to “Guantánamo[‘s] Greatest Hits” — Gray delivered a powerful indictment of the misappropriation of his and other artists’ music.

“What we’re talking about here is people in a darkened room, physically inhibited by handcuffs, bags over their heads and music blaring at them for 24 hours a day, seven days a week,” he told the BBC. “That is torture. That is nothing but torture. It doesn’t matter what the music is — it could be Tchaikovsky’s finest or it could be Barney the Dinosaur. It really doesn’t matter, it’s going to drive you completely nuts.” He added, “No-one wants to even think about it or discuss the fact that we’ve gone above and beyond all legal process and we’re torturing people.”

This is the second time that Gray has spoken out about the use of music as torture. Two weeks ago, he explained, “The moral niceties of whether they’re using my song or not are totally irrelevant. We are thinking below the level of the people we’re supposed to oppose, and it goes against our entire history and everything we claim to represent. It’s disgusting, really. Anything that draws attention to the scale of the horror and how low we’ve sunk is a good thing.”

Reprieve, the legal action charity that represents over 30 prisoners at Guantánamo, recently launched an initiative, Pull the Plug on Torture Music, encouraging artists to sign up to prevent the use of their music as part of the US military’s torture techniques, to insert a clause in their contracts preventing the misuse of their music, and, in general, to raise awareness of the issue by spreading the word and playing anti-torture gigs.

Others who have signed up for Reprieve’s initiative include Massive Attack (who recently hosted a series of Reprieve events at their Meltdown festival at London’s Southbank Centre), Alabama 3, Elbow, the Magic Numbers, Seize the Day, and Tom Morello of Rage Against the Machine, who told Spin magazine in 2006, “The fact that our music has been co-opted in this barbaric way is really disgusting. If you’re at all familiar with the ideological teachings of the band and its support for human rights, that’s really hard to stand.”

Whether you like David Gray’s music or not should be irrelevant. He understands what’s really going on with the use of music as torture, and he’s been brave enough to raise his head above the parapet, which is not something that musicians are always prepared to do.

Andy is the author of The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison (published by Pluto Press/the University of Michigan Press).

As published on Indymedia, DC Indymedia and NYC Indymedia.

The wheels of injustice grind so slowly at Guantánamo that it’s probably a coincidence that charges were announced against another alleged terrorist just hours after the details were revealed of how comprehensively the government had been ridiculed for its “War on Terror” detention policy in the Court of Appeals in Washington. The public barely had time to register that, in throwing out the case against the innocent Chinese Muslim prisoner Huzaifa Parhat, the largely conservative court had compared the government’s evidence to a nonsense poem by Lewis Carroll, before the charges against Abdul Rahim al-Nashiri unexpectedly surfaced to supplant the story in the headlines.

A Saudi who was held in secret CIA custody from November 2002, when he was captured in the United Arab Emirates, until September 2006, when he was transferred to Guantánamo with 13 other “high-value detainees,” including Khalid Sheikh Mohammed (KSM), al-Nashiri is the 22nd prisoner to be put forward for trial by Military Commission at Guantánamo, and the seventh of the 14 “high-value detainees” to be charged.

In the charge sheet (PDF), al-Nashiri, who has previously been described as al-Qaeda’s operations chief in the Arabian peninsula, is accused of conspiracy, murder in violation of the rules of war, using treachery or perfidy, destruction of property in violation of the law of war, intentionally causing serious bodily injury, and terrorism. The charges relate in particular to his alleged role in the attacks on the USS The Sullivans and the USS Cole in 2000, and the French tanker Limburg in 2002. To increase the impact the announcement, moreover, the Pentagon indicated that it would be seeking the death penalty if he is convicted.

The problem with this otherwise seemingly valid pursuit of justice against a genuine terrorist is that al-Nashiri is one of three prisoners whose torture at the hands of CIA operatives has been publicly admitted. In February, the CIA’s director, Gen. Michael Hayden, told Congress that three “high-value detainees” were subjected to waterboarding in CIA custody: al-Nashiri, KSM (put forward for trial in February and arraigned last month), and Abu Zubaydah (who has not yet been charged, perhaps because of conflicts over his significance). Waterboarding is a form of controlled drowning, which the administration — Gen. Hayden included — refuses to acknowledge as torture, even though the torturers of the Spanish Inquisition had no hesitation in labeling it, unambiguously, as “tortura del agua.”

Al-Nashiri may well be guilty of all the charges against him, but it’s noticeable that, at his tribunal in Guantánamo last year, he was one of only three “high-value detainees” (KSM and Abu Zubaydah were the others) to claim that he had made false allegations because he was tortured. He said that he made up stories tying him to the bombing of the USS Cole and confessed to involvement in several other plots — the attack on the Limburg (see photo), other plans to bomb American ships in the Gulf, a plan to hijack a plane and crash it into a ship, and claims that Osama bin Laden had a nuclear bomb — in order to get his captors to stop torturing him. “From the time I was arrested five years ago,” he said, “they have been torturing me. It happened during interviews. One time they tortured me one way, and another time they tortured me in a different way. I just said those things to make the people happy. They were very happy when I told them those things.”

The administration seems confident that it can exclude all mention of torture from the planned trials at Guantánamo, either by using evidence obtained by “clean teams” of FBI agents, who politely asked the prisoners to repeat what they had previously confessed under torture, or by allowing the government-appointed judges to use their discretion to pretend that the CIA’s secret prisons — and the torture that took place there — never existed.

In the real world, however, where evidence obtained through torture is inadmissible, it remains unclear whether the government’s attempts to set up an offshore judicial system for alleged terrorists, which openly mocks America’s core values, will ever be successful. It is now over six and a half years since the system of trials by Military Commission was introduced, which was conceived by Vice President Dick Cheney and his senior counsel (and now chief of staff) David Addington, and the government has yet to secure a clear victory.

The only verdict to date is in the case of the Australian David Hicks, who was repatriated to serve a nine-month sentence after accepting a plea bargain, in which he admitted providing “material support for terrorism,” in March 2007. Conveniently for the administration, this involved Hicks renouncing well-documented claims that he was tortured and abused in US custody. It also, however, involved Hicks receiving a sentence far shorter than that which prosecutors had first mooted — up to 20 years, according to some reports, which would have been comparable to the draconian sentence imposed in 2002 on John Walker Lindh, the “American Taliban” — which did nothing to reinforce the government’s long-cherished claims that Hicks was one of “the worst of the worst.”

And elsewhere, of course, as the Court of Appeals reminds us, the quality of the administration’s post-9/11 detention policies is most realistically compared to the nonsense spouted by an absurd character in a late nineteenth century English poem.

Andy is the author of The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison (published by Pluto Press/the University of Michigan Press).

As published on the Huffington Post and CounterPunch.

Note: Al-Nashiri is also referred to as Abd al-Rahim al-Nashiri.

See the following for a sequence of articles dealing with the stumbling progress of the Military Commissions: 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, two articles exploring the Commissions’ corrupt command structure, the Pentagon abandons five trials, Omar Khadr’s trial delayed until after Bush leaves office, legal adviser faces military investigations, and reports on Ali Hamza al-Bahlul’s trial and sentence.