Archive for August, 2008

Salim Hamdan’s sentence signals the end of Guantánamo

Salim HamdanIn a decision that will shock those watching the conclusion of the first full US war crimes trial since the Nuremberg Trials, the military jury that yesterday convicted Salim Hamdan of providing “material support for terrorism” has sentenced him to serve five and a half years in prison. Given that the judge in his case, Navy Capt. Keith Allred, had earlier ruled that he would be given credit for time served since he was first charged under the Commission system in July 2003, this means that he will be eligible for release in five months’ time.

The verdict will do nothing to convince the many critics of the Military Commission trial system that it is valid — as there remain too many issues with the Commissions’ use of hearsay and coerced evidence, of secret testimony, and of attempts to justify elevating “material support for terrorism” to the level of a war crime, despite no precedent for doing so — but it must surely come as a relief to those who thought that the jury might have been persuaded by prosecutor John Murphy, who argued that Hamdan’s “penalty” should be a sentence of at least 30 years, something “so significant that it forecloses any possibility that he reestablishes his ties with terrorists.”

Instead, the sentence is close to the length of time proposed by Hamdan’s defense lawyer Charles Swift, the former military lawyer who brought down the Commissions’ first incarnation as illegal in the Supreme Court in June 2006. Swift argued that Hamdan should receive a sentence of less than four years because “his cooperation with US intelligence services more than outweighed his culpability as a member of [Osama] bin Laden’s motor pool.”

This is, I believe, an extremely important point, as it was apparent during Hamdan’s two-week trial that he had been exploited by those seeking to prosecute him, who had built a case against him through his own words. At issue was the Fifth Amendment protection against self-incrimination, which has been denied to all those deemed “enemy combatants” in the “War on Terror.” While this remains unacceptable — and is intimately connected with the dark heart of the administration’s deliberate policy of shredding the Geneva Conventions to facilitate the illegal interrogation of prisoners (whether coercively or not) — what made it particularly troubling in Hamdan’s case was that, whereas other, non-cooperative prisoners had been released from Guantánamo without ever incriminating themselves, Hamdan was being punished for his cooperation.

While legal challenges to the system will be more muted as a result of this verdict, it is unlikely that Hamdan’s defenders will be persuaded not to pursue their many, valid complaints about a system which, as Charles Swift explained today, remains nothing more than “a made-up tribunal to try anybody we don’t like.”

However, what this sentence also achieves, which was previously unconceivable, is to cap the disturbingly open-ended nature of the administration’s detention policies, in a way that, to date, has only been managed through a plea bargain — that of the Australian David Hicks, who, in the first of the Commission trials following their resuscitation in the fall of 2006 in the Military Commissions Act, received a nine-month sentence to add to the five years and three months he had already spent in US custody.

Until now, the administration has maintained that, if it wishes, it has the right to hold “enemy combatants” without charge or trial until the end of hostilities, which, it has also admitted, might last for generations. A sentence has now superseded that open-ended policy. If one of Osama bin Laden’s drivers gets a sentence of seven years and one month in total (five and a half years plus the 19 months of his imprisonment before he was charged) in a system specifically established by the administration to try and convict “terror suspects,” it is surely now inconceivable that those who planned the whole post-9/11 detention policy can maintain that they can still continue to hold him as an “enemy combatant” after his sentence has been served — or, for that matter, that they can continue to hold any of the 130 or so prisoners in Guantánamo who have not been cleared, and who are not scheduled to face a trial by Military Commission, beyond the end of the year.

With this sentence, it appears that the death knell has just been sounded for the whole malign Guantánamo project.

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.

As published on the Huffington Post, Antiwar.com, CounterPunch and AlterNet.

See the following for the response to the verdict by the jury and the media. 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), Four more charged, including Binyam Mohamed (June 2008), Afghan fantasist to face trial (June 2008), 9/11 trial defendants cry torture (June 2008), USS Cole bombing suspect charged (July 2008), Folly and injustice (Salim Hamdan’s trial approved, July 2008), A critical overview of Salim Hamdan’s Guantánamo trial and the dubious verdict (August 2008), 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).

A critical overview of Salim Hamdan’s Guantánamo trial and the dubious verdict

Salim HamdanAt Guantánamo, a military jury’s verdict in the first US war crimes trial since the Nuremberg Trials of Nazi leaders after the Second World War — that Yemeni prisoner Salim Hamdan is guilty of providing material support for terrorism, but not guilty of the more serious charge of conspiracy — followed two eventful weeks of often extraordinary insights into the conduct of the United States’ “War on Terror.” And yet, as Jonathan Mahler wrote in the New York Times over the weekend, the lofty ideals of the Nuremberg Trials, which opened with Chief Prosecutor Robert Jackson declaring, “That four great nations, flushed with victory and stung with injury, stay the hand of vengeance and voluntarily submit their captive enemies to the judgment of the law is one of the most significant tributes that power has ever paid to reason,” were not in evidence during Hamdan’s trial, and, it can be argued, have not been manifested in the verdict.

Vindicating the Military Commissions: a Herculean task

Instead, the limited number of outside observers attending Hamdan’s trial by Military Commission witnessed Judge Keith Allred — a principled man in an unenviable position — struggling to turn a novel legal system unconnected to the laws on which the United States were founded over 200 years ago into something resembling a fair trial that would be respected in legal circles both in the United States and the wider world. The events of the last two weeks revealed that this was, in most respects, a Herculean task.

Conceived in the wake of the 9/11 attacks by Vice President Dick Cheney and his chief counsel David Addington, today’s Commissions are a modified version of the initial system, which was ruled illegal and unconstitutional by the Supreme Court in June 2006, but the Commissions’ many critics remained unconvinced that they can provide an adequate substitute for either US law, as practiced on the mainland, or the military’s own well-established judicial processes. Little, if anything that emerged in the last fortnight helped to assuage their doubts.

A litany of dubious practices

Instead of vindicating Cheney and Addington’s belief that a new legal system was required to try “terror suspects,” Hamdan’s trial featured a litany of dubious practices masquerading as justice, including the disgraceful use of propaganda, misplaced prosecutorial zeal, the shameful employment of hearsay as evidence, abuse of the Fifth Amendment protection against self-incrimination, and woefully blurred distinctions between valid testimony and coerced testimony. The proceedings also provided observers with piercing insights into the various interrogation techniques used in the “War on Terror,” which, I believe, served only to confirm the supremacy of the agencies who favor kindness and psychological maneuvering over those who favor coercion and brutality.

Towards the end of the proceedings, two further episodes served to underline the Commissions’ failings. In the first, defense testimony from government employees was delivered to a closed court, which both undermined the essential transparency of the process and tilted perceptions of the trial in favor of the prosecution, whose entire case had been conducted in the open. In the second, senior al-Qaeda operative Khalid Sheikh Mohammed, though not present in person, delivered a statement dismissing Hamdan as nothing more than a “primitive” man, unequipped to be involved in the planning or execution of terrorist attacks, in which he also managed to further undermine the trial with some acute insights into what he described as fundamental failures of the US intelligence agencies.

Why does no one care?

Despite the supposed importance of the case, Jonathan Mahler noted in the Times that the proceedings “hardly have the feel of history in the making. They haven’t merited much discussion in the presidential campaign; nor are we [as] a nation riveted by the trial of the first defendant … Instead of a landmark case, one that serves as a resonant reminder of the gulf separating us from our enemies, we have detachment and ambiguity — not just about the extent of Hamdan’s guilt but also about the wisdom of the entire tribunal process as well as many other aspects of the prosecution of the war on terror.”

These were valid points, and although the detachment Mahler referred to can partly be explained by a general hollowing-out of political awareness, in which a prurient obsession with the peccadilloes of celebrities has taken root instead, part of the detachment — and the ambiguity — can be explained by the dissonance between the supposed importance of the trial and the reality of the figure at its heart.

Although Salim Hamdan was a driver for Osama bin Laden, he and his defense team have always maintained that the Yemeni father-of-two, who has only a fourth-grade education, was nothing more than a hired worker (one of seven drivers in total), was not privy to the inner secrets of al-Qaeda and had no knowledge of, or involvement in the attacks — on the US embassies in Africa in 1998, on the USS Cole in 2000, and on the US mainland in 2001 — that are the purported justification for the creation of the entire Military Commission system.

Even the prosecution did not attempt to insist that he was a major player. “We never put a rank on him,” Col. Lawrence Morris, the Commissions’ chief prosecutor, explained to reporters. “We never suggested he was in the top 17 or the top any-teen of al-Qaeda. I don’t want … to have anybody have us appear to be asserting that he’s more responsible than he is or that he’s higher-ranking than he is.” Col. Morris’ opinions were supported by the testimony of various agents over the course of the two-week hearing. FBI agent Craig Donnachie, for example, explained that Hamdan told him that he “had no interest in fighting after completing his time” at a training camp in Afghanistan, and when defense lawyers asked Donnachie if Hamdan had committed “to engage in terrorist acts,” the agent replied, “He did not.”

Salim Hamdan at his trial by Military Commission, July 24, 2008

In this courtroom sketch by Janet Hamlin, Salim Hamdan sits and waits during the testimony of FBI agent Craig Donnachie on July 24.

As a landmark case, therefore, Hamdan’s trial lacked the punch required to galvanize the nation, and was, at some level (as I have suggested before), equivalent to trying Adolf Hitler’s driver in the Nuremberg Trials in the absence of the Führer himself. And the entire set-up looks even more murky when the reasons for putting Hamdan forward are examined in any detail.

Testing the system and concealing torture

While the Commissions’ most significant defendants — Khalid Sheikh Mohammed (KSM) and four other prisoners accused of direct involvement in the 9/11 attacks — waited in the wings, it was clear that Hamdan was put forward first for two very specific reasons, neither of which showed the process in a good light.

The first was that he was being used as a guinea pig, to test whether the system actually worked, and the second was that he was presumed to be relatively “clean”; in other words, that he had not been subjected to the torture inflicted on the “high-value detainees,” including KSM and his alleged co-conspirators. The administration not only denies that it has been involved in torture, but also denies that waterboarding (a process of controlled drowning, which the Spanish Inquisition had the honesty to call “Tortura del Agua,” and which KSM and others were subjected to, as admitted by CIA director Gen. Michael Hayden), is actually torture. When it came to putting these men on trial, however, the authorities’ refusal to start the proceedings with KSM and his co-accused served only to confirm that legally, if not morally, they were aware that they were on shaky ground. As a result, they resembled nothing more than cowardly abusers striving hard to hide their guilty secrets.

As it happened, neither policy was entirely successful in Hamdan’s case. Observers easily rumbled the fact that, along with Hamdan, the entire system was on trial, as William Glaberson of the New York Times demonstrated in an article on July 29. “Mr. Hamdan’s trial is, in a sense, two trials,” Glaberson wrote. “Mr. Hamdan is being tried on accusations of conspiracy and material support of terrorism. And the Bush administration’s military commission system itself is on trial.”

Nor did the second ploy proceed smoothly. As I have noted before, only one of the 20 prisoners so far put forward for trial by Military Commission, an Afghan called Mohammed Hashim, resisted mentioning that he was subjected to either torture or coercion, but he appears to be nothing more than a deluded fantasist who should never be on trial at all.

The blurred distinctions between voluntary and coerced testimony

In Hamdan’s case, allegations of severe mistreatment dogged his pre-trial proceedings. His defense counsel hired an expert to examine his mental state, who concluded that prolonged isolation had led to a situation whereby he “met diagnostic criteria for Post Traumatic Stress Disorder and Major Depression,” including “nightmares, intrusive thoughts, memories and images, amnesia for details of traumatic events, lack of future orientation, anxiety, irritability, insomnia, poor concentration and memory, exaggerated startle responses, and hypervigilance.” In recent weeks it was revealed that he was subjected to sexual humiliation during interrogations, and a systematic policy of sleep deprivation, in which he was repeatedly moved from cell to cell and prevented from sleeping for a period of 50 days.

Furthermore, as the trial began, Judge Allred was required to interpret the horribly blurred distinctions between voluntary and coerced testimony that were written into the Military Commissions Act (the legislation that revived the Commissions after the Supreme Court struck them down in June 2006). This permits coerced evidence and hearsay, if the judge considers them to be “reliable” and “probative,” and Judge Allred confirmed that Hamdan had indeed been subjected to legally dubious treatment by ruling out the use of any testimony obtained when he was held in Afghanistan after his capture, both at the US-run prison at Bagram, and, as had never previously been disclosed, at an Afghan prison in the Panjshir Valley, north of Kabul. The Panjshir prison was one of several prisons in which, as my research for The Guantánamo Files revealed, numerous “ghost prisoners” who ended up in Bagram were subjected to what one of the prison’s captives, a Libyan who escaped from Bagram in July 2005, later described as “hard torture.”

In response to Hamdan’s complaints that, at Bagram, he was “kept in isolation 24 hours a day with his hands and feet restrained, and armed soldiers prompted him to talk by kneeing him in the back,” and his additional complaints that, in the Panjshir prison, his captors “repeatedly tied him up, put a bag over his head and knocked him to the ground,” Judge Allred ruled out the use of statements obtained from the interrogations because of the “highly coercive environments and conditions under which they were made.”

This, obviously, was not a good start for the prosecution, but while it served to underline how vague the parameters are for what is acceptable evidence (making the judge the sole, unchallengeable arbiter of what constitutes coercion), Judge Allred added that he foresaw no problem with other statements that Hamdan had made while he was held in other locations in Afghanistan and throughout his imprisonment at Guantánamo. Even so, the prosecution complained. “We need to evaluate … to what extent it has an impact on our ability to fully portray his criminality in this case, but also what it might set out for future cases,” Col. Morris explained.

The prosecutors in Salim Hamdan's Military Commission

Hamdan’s prosecutors. From left: Maj. Omar Ashmawy, John Murphy, Cmdr. Timothy Stone and Clayton Trivett Jr. Photo © Fred R. Conrad/The New York Times.

Shredding the Fifth Amendment

In the meantime, Hamdan’s defense team took the offensive. Michael Berrigan, the deputy chief defense counsel, described it as “a very significant ruling,” because the prosecutions “are built to make full advantage of statements obtained from detainees,” and his team immediately asked Judge Allred to throw out all of Hamdan’s interrogations, arguing that in Guantánamo he had incriminated himself under the effects of the abuse mentioned above, including the prolonged sleep deprivation and solitary confinement to which he had been subjected, and that any statements he had made were an infringement of his Fifth Amendment rights.

The appeal was denied by Judge Allred, who declared that constitutional protections against self-incrimination do not apply to “enemy combatants,” but it led the case into another contentious area, in which the significance of the Fifth Amendment played a critical role, Guantánamo’s purpose as an interrogation camp was explicitly revealed (in contravention of the Geneva Conventions, which prohibit the interrogation of prisoners seized in wartime, whether coercively or not), and, arguably, the administration was obliged to reveal far more than it would have wished about the nature of its interrogation of suspects in the “War on Terror.”

This part of the proceedings kicked off with an explosive revelation by the former FBI interrogator and “al-Qaeda expert” Ali Soufan, who explained on the trial’s second day that Guantánamo, as the Associated Press described it, “is the only place in the world where he has not informed suspects of a right against self-incrimination.” “The way it was explained to us,” Soufan said, “is Guantánamo Bay is an intelligence collection point.”

This was enormously significant, as the prison’s true — and illegal — purpose was supposed, officially, to remain hidden behind Donald Rumsfeld’s jaded rhetoric: that the prison exists because the US is keeping “committed terrorists … off the street and out of the airlines and out of nuclear power plants and out of ports across this country and across other countries.” Apologists for the “War on Terror” argue that the flight from domestic and international law is necessary to fight what they apparently regard as the greatest threat the world has ever known (hence the rather inflated Nuremberg analogies), but in reality the administration’s behavior has not only undermined the reputation of the United States abroad; it has also, as Hamdan’s self-incrimination specifically showed, led to a surreal situation in which those who cooperate with their interrogators are punished for their cooperation.

As the Los Angeles Times explained, “A parade of intelligence witnesses” described Hamdan as “cooperative, cordial and a source of reliable information about the terrorist hierarchy,” who “drew maps to al-Qaeda training camps and compounds for his captors” and “guided FBI and military intelligence agents to bin Laden’s private residences and guest houses and identified photos of terrorist kingpins still at large,” while in custody in Afghanistan. At Guantánamo, moreover, he reportedly provided “vital information” about “key perpetrators” of the terrorist attacks in 1998, 2000 and 2001. Ammar Y. Barghouty, an FBI agent, explained that Hamdan’s identification of the Saudi “high-value detainee” Abdul Rahim al-Nashiri, who is accused of directing the attack on the USS Cole, together with “his willingness to testify against him,” provided the government with “a solid basis to prosecute the Saudi.”

Revelations about interrogation techniques

As these revelations were rolled out, Hamdan’s treatment — and by extension the treatment of “enemy combatants” in general — inadvertently came under close scrutiny. Of particular interest was the testimony of FBI special agent George Crouch, who interrogated Hamdan at Guantánamo for 13 days in June 2002. Favoring the old-school approach to interrogation that focused on rapport-building rather than brute force, Crouch explained how he “built a trusting relationship with Hamdan during the marathon interrogation, bringing him special snacks and working to ease his ‘concerns.’”

“Mr. Hamdan commented that he liked McDonald’s fries and we brought fries in,” Crouch said, adding that he “even appreciated that McDonald’s fries are not good cold.” Complaining, as Reuters put it, that Hamdan “grew upset and uncooperative when he was put in solitary confinement amid a series of interrogations, prompting a heated complaint by Crouch to military guards,” the FBI agent then explained that, on another occasion, “Hamdan’s mood lifted when he was allowed to call and tell his wife that he was alive.” “Mr. Hamdan cried quite a bit,” Crouch said. “He was very grateful for the opportunity to speak to his wife. A burden had been lifted from him. At least his wife knew he was alive.”

In contrast to Crouch’s approach to interrogations, other agencies favored harsher techniques, although no evidence was provided that they were more effective, and, disturbingly, the activities of the CIA were declared off-limits in the trial, just as the CIA’s interrogations in Afghanistan were. Although Crouch successfully prevented Hamdan from being kept in solitary confinement between his visits, which, he said, made Hamdan “believe he was being punished for something,” the Los Angeles Times reported that he was “unaware … that during the night Hamdan was also brought to interrogators of another US agency,” whose identity was not revealed, under what was described, with some accuracy, as the court’s “secrecy practices.”

Like other witnesses, Crouch admitted that Hamdan was not protected by the Fifth Amendment, although he explained that he was not happy with the situation. “I would have read him his rights,” he said. He insisted, however, that although Hamdan played only a small supporting role in al-Qaeda, it was still significant. “Without people like Mr. Hamdan, bin Laden would enjoy no support, he would not enjoy protection and he probably would not have been able to elude capture up to this point,” he said. Even so, he reserved one last gesture of kindness towards Hamdan, admitting, “I don’t know if I ever thanked him.”

What was largely undiscussed, however, was the impact of Hamdan’s self-incrimination. Harry Schneider, one of Hamdan’s lawyers, asked Crouch during cross-examination, “Did anyone ever say, ‘You’ve got to understand, somebody can use this against you?’” but Crouch said he “did not remember,” and it was left to the defense to point out to both the jury and the agents the absurd situation whereby, in contrast to the case that a cooperative Hamdan had built up against himself, “the head of bin Laden’s bodyguards — Hamdan’s boss — and an al-Qaeda errand boy arrested along with Hamdan,” who had “refused to cooperate with US interrogators during their time at Guantánamo … were eventually released without being charged.” As Ben Wizer, a staff attorney with the American Civil Liberties Union, explained, “It’s perverse that the only person who agreed to cooperate is being hung with his own words, while those who stayed silent are home and free.”

The defense team in Salim Hamdan's Military Commission

Hamdan’s defense team. From left: Joseph McMillan, Lt. Cmdr. Brian Mizer, Andrea Prasow, Harry Schneider Jr. and Charles Swift. Photo © Fred R. Conrad/The New York Times.

In addition, what no one mentioned at all was a disturbing corollary: that, by prosecuting a witness who has been so cooperative, the administration has, very possibly, fatally undermined the ability of its intelligence agencies to secure the services of former insiders in terrorist organizations who are prepared to reveal all they know in exchange for protection. This might appear to be a rather obscure tangent to some readers, but those who understand the working of the intelligence agencies will be aware of the crucial importance of informers.

Jack Cloonan, a former FBI special agent, who worked closely with former al-Qaeda insider Jamal al-Fadi in the years before 9/11 — and, like his fellow agent Dan Coleman, appreciated that brutality (“all that alpha-male shit,” in Coleman’s words) was useless in terms of building a sustained and useful relationship with prisoners in possession of genuinely significant intelligence — explained to Jane Mayer of the New Yorker in 2006 that “the possibility that other people with useful information about al-Qaeda will consider becoming informants” was being severely damaged by the administration’s post-9/11 policies. “You think all of this stuff about torture is going to make people want to come to us?” he asked. “That’s why I get upset when I hear people talking about stress positions, loud music, and dogs.”

Shameless propaganda

During the first week’s proceedings, as Julia Hall of Human Rights Watch reported for Salon, the prosecution showed two videos taken shortly after Hamdan’s capture in Afghanistan, which were “harrowing both for what they depict and for the fact that they were admitted into evidence at all.” Hall described how they “show Hamdan slumped on the floor, hooded and shackled, as he is badgered by his Arabic-speaking military interrogator in a dark room with one dim light bulb overhead. An armed soldier is behind Hamdan, the interrogator in front.” She added, “There is a sickening sense in watching that Hamdan — visibly scared — is searching for the right words to appease the interrogator, trying out ideas as they occur to him in an attempt to avoid more abuse.”

While Hall noted that Judge Allred had overruled the defense team’s objection to the tapes being shown, deciding, as he was once more required to ascertain what constituted coercion, that they were “in the interests of justice,” she also pointed out that the DoD was not prepared to release the tapes to the general public, and cited a Pentagon source who had stated that they were being withheld out of an “abundance of caution.” “Perhaps,” she mused, “the DoD fears that the American public will know a coercive interrogation when it sees one.”

At the start of the trial’s second week, as if to compensate for the mixed messages in the “capture tapes,” the prosecution returned with a slice of pure propaganda. “The Al-Qaeda Plan,” modeled on “The Nazi Plan,” produced for the Nuremberg Trials, was written, produced and narrated by Evan F. Kohlmann, an “international terrorism consultant” who was paid $20,000 to produce the film, and another $25,000 to appear as an “expert witness.”

The film, as the Los Angeles Times described it, is “a graphic 90-minute film chronicling the history of al- Qaeda,” which includes “footage of mangled corpses in the rubble of the 1998 US Embassy bombing in Kenya,” and its showing caused uproar in the courtroom. Although Judge Allred told the jurors that it was being shown “to provide an understanding of al-Qaeda operations,” and that Hamdan was “not alleged to have been involved in any of these attacks,” Charles Swift, one of Hamdan’s lawyers, complained vociferously, describing the film as “extraordinarily prejudicial” and accusing the prosecution of “trying to terrorize the members” of the jury. While Col. Morris responded, bizarrely, by claiming, “It is prejudicial, which is why we show it,” and adding, “I think people think prejudicial is somehow wrong,” the showing of the film was clearly nothing more than a propaganda exercise, much like the irrelevant footage of Osama bin Laden that was shown last summer at the propaganda-fuelled trial of US “enemy combatant” Jose Padilla.

A tainted confession

The following day, demonstrating yet again that the Commission judges have, to some extent, been empowered to make the rules up as they go along, Judge Allred decided to penalize the prosecution, as they finished presenting evidence, by preventing them from using what was described as “the most complete summary of evidence against Hamdan,” compiled by Ali Soufan and Robert McFadden of the Naval Criminal Investigation Service (NCIS) in May 2003, as a penalty for the prosecution’s delay in handing over 1,200 pages of documents relating to Hamdan’s interrogations to the defense team. Despite repeated requests for the documents, the prosecution had waited until the evening before the trial began to release them, leaving the defense team little opportunity to search through the records for evidence of Hamdan’s abuse.

However, the day after — vacillating yet again — Judge Allred allowed the prosecution to present its evidence, but insisted that he would use a “higher standard” to evaluate the submission, adding that the prosecutors would have to provide “clear and convincing evidence” that Hamdan’s statements were not obtained through coercion. Whether the judge remained true to his word or not is a moot point. When McFadden took the stand, he declared that Hamdan had told him that he had sworn bayat (pledged an oath of loyalty) to bin Laden, even though no other interrogator had managed to secure such a confession.

In response, Hamdan himself took the stand to deny that he had said any such thing. As the Los Angeles Times described it, “He insisted that he had spoken only with Soufan during the more-than-nine-hour interview and that despite Soufan’s persistent questioning on the subject, he had never told him about swearing allegiance.” Hoping to capitalize on what appeared to be a key piece of evidence, lead prosecutor John Murphy then told the judge that allegations of coercion had “cast a black cloud over these agents and those who work with the detainees” and suggested that McFadden’s testimony would “dispel that taint,” which prompted an immediate riposte from Michael Berrigan, who called the day’s proceedings “a farce,” and said that the “black cloud’” was “the government’s own creation,” which it had manufactured through the use of coercion.

Silencing the defense

As the defense team was finally granted the opportunity to present its case, Brian Glyn Williams, a professor of Islamic history, attempted to explain Afghanistan’s history to the jury, focusing on the differences between what he described as “two largely separate al-Qaeda missions: supporting Islamic warriors and committing terrorist acts against enemy foreign states.” Echoing the words of FBI agent Craig Donnachie, Professor Williams said that Hamdan was recruited for a support role “because he lacked the will for carrying out attacks,” and, moreover, was incapable of assuming a role as an international terrorist. “I don’t see him being that quality of material,” he said.

After this intriguing start, most of the rest of the defense’s case took place behind closed doors, as the court heard testimony from Lt. Col. G. John Taylor and Col. L. Morgan Banks III, the senior psychologist in the military’s SERE program (Survival, Evasion, Resistance, Escape), which subjects soldiers to abuse to train them to resist interrogation by enemy agents (and which is widely regarded as the model for the brutality and humiliation to which “War on Terror” prisoners have been subjected). The defense team was, naturally, unimpressed by the secrecy. Lt. Cmdr Brian Mizer, Hamdan’s military lawyer, said, “It is not the defense that has requested this closed session, but it is necessary, according to the government, to protect the information.” He added, pointedly, “It is my hope that the American public will someday hear Mr. Hamdan’s defense.”

Quite what state secrets the two men were supposed to be protecting is, of course, unknown, but a defense statement revealed that they were called because they had been serving with US Special Forces when Hamdan arrived at Bagram on December 28, 2001, and it seems reasonable, therefore, to suggest that the court was closed because what was under discussion crossed the line of “coercion” that Judge Allred had been responsible for monitoring throughout the trial.

It was, however, yet another example of a tendency to secrecy that had marred much of the defense’s case. When Hamdan’s lawyers appealed to Judge Allred for Robert McFadden’s testimony to be excluded, citing references to Hamdan’s abuse at the time, almost all of the judge’s ruling (in McFadden’s favor) was blacked out, but the most ludicrous example of censorship occurred during the cross-examination of McFadden, when Harry Schneider Jr. wanted to ask the agent a question based on a book that he held up in the courtroom. After some discussions with the prosecution, Schneider admitted, “I’m told it’s classified, so I can’t ask you,” even though the book was the best-selling 9/11 Commission Report.

Deftly dissecting the problem with secret testimony, Lou Fisher, the author of a book about the 1942 military trial of eight alleged Nazi saboteurs (which is the basis for much of the administration’s concept of the Military Commissions), explained to the Washington Post, “No court, civilian or military, has credibility when it listens to secret evidence in a closed courtroom,” and Stacy Sullivan of Human Rights Watch, who was excluded from the courtroom during the secret testimony, declared, “The reason closed sessions are so troubling at Guantánamo is because the government has so frequently claimed things have had to be classified to cover up abuse and torture. In addition, trials of this magnitude should have a public record. If a significant amount of evidence and witness testimony is classified, it will be very hard to trust any verdict.”

The damaging testimony of Khalid Sheikh Mohammed

Despite these misgivings, the trial ended, as it had begun, with controversy. In a 16-page written submission, Khalid Sheikh Mohammed, who confessed during his administrative tribunal at Guantánamo last year that he was “responsible for the 9/11 operation, from A to Z,” delivered a defense of Hamdan that managed to be both patronizing to Hamdan himself and witheringly critical of the US administration’s pursuit of his prosecution.

Describing himself as “the executive director of 9/11,” KSM wrote, “He did not play any role. He was not a soldier, he was a driver. His nature was more primitive (Bedouin) person and far from civilization. He was not fit to plan or execute.” Elsewhere, he wrote, “He was a driver and auto mechanic … he was not at all a military man. He is fit to change trucks’ tires, change oil filters, wash and clean cars, and fasten cargo in pick up trucks.”

While this description corresponded with the defense team’s analysis of Hamdan’s role, it was unclear if the jury would be prepared to accept KSM’s opinions, especially as, elsewhere in his statement, he railed against the administration as a whole. “We are not gangs,” he wrote. “As the American Army (we) have drivers, cooks, crewmen and legal personnel. We also are human beings … we have interests in life. Our people have wives and children and schools … You can not understand terrorism and al-Qaeda from 9/11 operation.”

He added, in a section that addressed the question of how far culpability for al-Qaeda’s terrorist attacks could, realistically, extend beyond the core leadership, “One of the reasons for the success of the outside operations is the secrecy of the operations. So many of (bin Laden’s) inner circles have no knowledge of what he was planning and so many of al-Qaeda’s members and even the trainers at the military camps do not have any knowledge of the works of the outside cells. That includes the civilian employees.” Anyone who thinks that everyone involved in al-Qaeda was also involved in terror attacks, he added, “is a fool.”

The impossibility of escape

With that — and more muted testimony from Walid bin Attash, another “high-value detainee” who maintained that Hamdan “did not play any part in any planning” –the trial came to an end. All the parties summed up on Monday, but as the jury retired to consider its verdict the last of many “black clouds” to hang over the trial concerned Salim Hamdan’s fate, whether he was found to be innocent or guilty.

Over the weekend, Guantánamo’s new commander, Rear Adm. Dave Thomas, admitted that he had not yet worked out what would happen if Hamdan were found guilty. Under the Commissions’ rules, those convicted are required to be held separately from the rest of the prison’s population, raising the prospect that Hamdan would be held in complete isolation for the rest of his life. “Asked how Hamdan could be separated but not isolated,” as Reuters described it, Rear Adm. Thomas admitted, blithely, “It’s a great question. I’m not faced with it yet. We’ve thought that through and we have plans to accommodate, but I’ll cross that bridge when I come to it.”

Just as disturbing, however, was the prospect of what would happen if Hamdan was found to be innocent. As Donald Rumsfeld explained in March 2002, even if an “enemy combatant” is acquitted after a trial by Military Commission, “the United States would be irresponsible not to continue to detain them until the conflict is over.” What is particularly distressing about this, of course, is not just that the administration believes that the “War on Terror” may last for generations, but that it can so brazenly state that it can hold men forever, even if they are found innocent after a trial.

As Michael Berrigan explained, the mere possibility that the administration will hold men forever, even after their acquittal, reveals that the Commissions are nothing more than “show trials,” as their critics have long maintained. Speaking to the Associated Press, he said, “What’s the purpose here? Mr. Hamdan is going to be held until the government wants to release him. It really has no connection to the underlying reality.”

Or, he could have added, to any notions of justice.

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.

As published exclusively on AlterNet.

Also see the following articles on Salim Hamdan’s sentence, the jury’s response, and the media’s response. And 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), Four more charged, including Binyam Mohamed (June 2008), Afghan fantasist to face trial (June 2008), 9/11 trial defendants cry torture (June 2008), USS Cole bombing suspect charged (July 2008), Folly and injustice (Salim Hamdan’s trial approved, July 2008), 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).

Binyam Mohamed’s judicial review: judges grill British agent and question fairness of Guantánamo trials

Binyam MohamedOn Monday July 28, just four days after his 30th birthday, British resident and Guantánamo prisoner Binyam Mohamed was finally granted the opportunity to have his case heard, albeit in front of a British judge, rather than his American captors, and even though he was unable to attend the hearing, because he remains imprisoned in Guantánamo. There he waits in isolation to discover whether the US administration, which put him forward for trial by Military Commission at the start of June, will formally arraign him on charges of “conspiracy” and “providing material support for terrorism” over the coming weeks.

Binyam has been imprisoned without trial for six years and four months — first in Pakistan, then in Morocco, where he was tortured for 18 months on behalf of the US authorities, then for nine months, in the “Dark Prison” near Kabul, a secret prison run by the CIA and at a US military prison in Bagram airbase, and finally, since September 2004, at Guantánamo.

The judicial review that took place last week came about after Binyam’s lawyers — at Leigh Day & Co. and Reprieve, the legal action charity that represents 30 Guantánamo prisoners — requested, in April, that the British government hand over any evidence in its possession regarding its knowledge of Binyam’s long ordeal, which might provide invaluable exculpatory evidence to assist Binyam in his anticipated trial.

The lawyers were specifically seeking information relating to Binyam’s rendition from Pakistan to Morocco, which was known about in advance by British agents, who visited him in Pakistani custody and offered him a heavily-sugared cup of tea, telling him, “Where you’re going, you need a lot of sugar.” They were also concerned to establish the extent of British involvement in his subsequent torture in Morocco, where, as he told Clive Stafford Smith, Reprieve’s Director, during a visit at Guantánamo, his lowest point came not as the result of his frequent physical torture (which included having his genitals regularly cut with a razor blade), but when his captors asked him questions about his life in London, which could only have come from the British intelligence services, and he realized that he had been betrayed by the country in which he had sought asylum as a teenager.

The trigger for the judicial review was the cold-hearted response of the British government’s lawyers to the request filed by Binyam’s lawyers. The government’s legal advisers claimed 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 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 his British lawyers.

Approving an “expedited” judicial review at the start of June (meaning, it would appear, that he understood the urgency of the case), Mr. Justice Saunders explained, “If it is correct that in the course of an interrogation, in which material supplied by the Defendant [HM Government] was employed, the Claimant [Binyam Mohamed] was tortured, then it is arguable that there is an obligation to disclose material which may assist Claimant in establishing before the American Military Court that he was tortured. Whether the Court should exercise its discretion not to order disclosure can only be determined at a full hearing.”

With that final caveat, it was by no means certain that the judicial review would go Binyam’s way, but on Monday the sparks began to fly almost immediately. Dinah Rose QC, Binyam’s counsel, wasted no time in telling Lord Justice Thomas and Mr. Justice Lloyd Jones, as the Guardian described it, that “the security and intelligence agencies were ‘mixed up in wrongdoing’ in cooperating with the US in the unlawful treatment” of Mr. Mohamed, and added that, in return for information provided by the British intelligence services to their US counterparts, the US “provided the UK with the fruits of his interrogation.”

Rose explained to the judges that a British agent, identified only as “witness B,” made a “veiled threat” to Binyam, while he was in Pakistani custody, to encourage him to “cooperate with his interrogators when the officer saw him after he was first captured in Pakistan.” The implication, she noted, was “we won’t help you unless you confess.” She added that MI5 then “repeatedly” supplied the US authorities with detailed information about Mr. Mohamed’s life in London for US officials to use in his interrogation, even though, as she pointed out, the British officials “did not press the US to tell them where Mohamed was being held after he was transferred from Pakistan, and in what conditions.”

Rose also declared that the government “must have known the treatment Mohamed was likely to face [in Pakistan], ‘given the history of the Pakistan authorities.’” This provoked a response from the government’s representatives, who, rather feebly, perhaps, in light of recent revelations that the British government has colluded with the Pakistani authorities in anti-terror operations to a shocking extent, “did not dispute that Mohamed was held incommunicado for three months in Pakistan but did not accept the conditions in which he was held there were unlawful.”

After this promising start, Tuesday’s session was even more explosive. Although the hearing was only scheduled for two days, it was extended after the first half of the day was taken up in a closed court cross-examination of “witness B,” which observers interpreted as meaning that the judges were drilling mercilessly for the truth.

The second half of the day involved a similarly extraordinary scenario. This time the judges, having asked the government to vouch for the independence of Susan Crawford, the Military Commissions’ Convening Authority, who is responsible for overseeing the Commission process, brandished a letterhead which revealed that Ms. Crawford actually works for the US Department of Defense, and declared that, in light of this seemingly clear evidence of political interference in what is supposed to be an impartial trial system, they would be devoting time in their deliberations to examining whether or not the Military Commissions can be regarded as a fair process.

To everyone’s surprise, almost the whole of the rest of the week’s sessions were taken up with the continued closed court cross-examination of “witness B.” Considering that observers had indicated at the start of the judicial review that the cross-examination would probably only last for half an hour, the only rational conclusion that could be drawn was that the allegations of “wrongdoing” mentioned by Dinah Rose QC were being fully explored by the judges — possibly in a criminal context — and this undoubtedly explains why, on arriving at the court earlier in the week, “witness B” had brought his own lawyer with him.

Summing up on Friday, Ben Jaffey, another of Binyam’s lawyers, revisited the complaints made by Dinah Rose in light of the week’s developments. As the Guardian explained, Jaffey highlighted disturbing contradictions in MI5’s statements, telling the court that in his witness statement an MI5 officer had said that Britain’s security and intelligence agencies “did not know” where Mr. Mohamed was after he was flown out of Pakistan in 2002, even though MI5 had explicitly told the Intelligence and Security Committee that it believed that he was in US custody. It was as a result of this statement, Jaffey said, that the committee concluded, in its report on Mr. Mohamed’s case last year, that it was “understandable” that MI5 did not seek assurances about his treatment. Jaffey added that the committee was “not given the full picture,” and delivered a final criticism of MI5, pointing out that, although the intelligence service had indicated at the time that he was in US custody, “it now conceded that he was in a ‘location unknown.’”

Although the US authorities are still maintaining a wall of silence over Binyam’s treatment — with the Associated Press reporting that, on Friday, the Pentagon “refused to say … whether Mohamed was ever taken to Morocco” — the British judges are clearly unimpressed with a situation in which, even after six years, denials and evasion remain the norm. As the judicial review came to an end, Lord Justice Thomas said that Binyam’s case raised “many and very troublesome issues.”

The judges are expected to deliver their ruling in two weeks’ time.

Andy 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.

As published on Indymedia.

For a sequence of articles relating to Binyam Mohamed, see the following: Guantánamo: Torture victim Binyam Mohamed sues British government 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 official charges (June 2008), High Court rules against UK and US in case of Guantánamo torture victim Binyam Mohamed (August 2008), In a plea from Guantánamo, Binyam Mohamed talks of “betrayal” by the UK (September 2008), US Justice Department drops “dirty bomb plot” allegation against Binyam Mohamed (October 2008), Meltdown at the Guantánamo Trials (October 2008), Guilt By Torture: Binyam Mohamed’s Transatlantic Quest for Justice (November 2008), A History of Music Torture in the “War on Terror” (December 2008), Is Robert Gates Guilty of Perjury in Guantánamo Torture Case? (December 2008), British torture victim Binyam Mohamed to be released from Guantánamo (January 2009), Don’t Forget Guantánamo (February 2009), The betrayal of British torture victim Binyam Mohamed (February 2009), Hiding Torture And Freeing Binyam Mohamed From Guantánamo (February 2009), Binyam Mohamed’s Coming Home From Guantánamo, As Torture Allegations Mount (February 2009), Binyam Mohamed’s statement on his release from Guantánamo (February 2009), Who Is Binyam Mohamed, the British resident released from Guantánamo? (February 2009), Seven Years of Torture: Binyam Mohamed Tells His Story (March 2009), Binyam Mohamed’s Plea Bargain: Trading Torture For Freedom (March 2009), Guantánamo, Bagram and the “Dark Prison”: Binyam Mohamed talks to Moazzam Begg (March 2009), Obama’s First 100 Days: Mixed Messages On Torture (includes the Jeppesen lawsuit, May 2009), UK Government Lies Exposed; Spy Visited Binyam Mohamed In Morocco (May 2009), Daily Mail Pulls Story About Binyam Mohamed And British Spy (May 2009), Government Bans Testimony On Binyam Mohamed And The British Spy (May 2009), More twists in the tale of Binyam Mohamed (in the Guardian, May 2009), Did Hillary Clinton Threaten UK Over Binyam Mohamed Torture Disclosure? (May 2009), Outsourcing torture to foreign climes (in the Guardian, May 2009), Binyam Mohamed: Was Muhammad Salih’s Death In Guantánamo Suicide? (June 2009), Miliband Shows Leadership, Reveals Nothing About Torture To Parliamentary Committee (June 2009).

The shame of Diego Garcia

Diego Garcia“Diego Garcia: the UK’s shame” is the title of an article I wrote for the Guardian’s “Comment is free” section today, which follows revelations in TIME magazine that a senior US official, who was present in the White House Situation Room in 2002, recalled two occasions on which a CIA representative talked about a secret prison on the British-owned island (leased to the United States in 1971), in which “high-value detainees” in the “War on Terror” were held.

In the article, I run through the history of revelations relating to a secret prison on Diego Garcia, contrast this with the persistent denials that have been made by both the British and the American governments, and point out that the British position — though very possibly based on what Ministers perceived to be genuine assurances that the US had not been engaged in any kind of illegal activity — is no longer tenable.

The other option, of course, is that the British government has been lying, but whatever the case there must now be a full and open public inquiry.

Andy 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.

A more detailed analysis of the Diego Garcia scandal is available here.

Secret Prison on Diego Garcia Confirmed: Six “High-Value” Guantánamo Prisoners Held, Plus “Ghost Prisoner” Mustafa Setmariam Nasar

Diego GarciaThe existence of a secret, CIA-run prison on the island of Diego Garcia in the Indian Ocean has long been a leaky secret in the “War on Terror,” and today’s revelations in TIME — based on disclosures by a “senior American official” (now retired), who was “a frequent participant in White House Situation Room meetings” after the 9/11 attacks, and who reported that “a CIA counter-terrorism official twice said that a high-value prisoner or prisoners were being interrogated on the island” — will come as no surprise to those who have been studying the story closely.

The news will, however, be an embarrassment to the US government, which has persistently denied claims that it operated a secret “War on Terror” prison on Diego Garcia, and will be a source of even more consternation to the British government, which is more closely bound than its law-shredding Transatlantic neighbor to international laws and treaties preventing any kind of involvement whatsoever in kidnapping, “extraordinary rendition” and the practice of torture.

This is not the first time that TIME has exposed the existence of a secret prison on Diego Garcia. In 2003, the magazine broke the story that Hambali, one of 14 “high-value detainees” transferred to Guantánamo in September 2006, was being held there, and in the years since confirmation has also come from other sources. Twice, in 2004 and 2006, Barry McCaffrey, a retired four-star US general, who is now professor of international security studies at the West Point military academy, revealed the prison’s existence. In May 2004, he blithely declared on MSNBC’s Deborah Norville Tonight, “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 spoke out again, saying, in an NPR interview with Robert Siegel, “They’re behind bars … we’ve got them on Diego Garcia, in Bagram air field, in Guantánamo.”

The prison’s existence was also confirmed by Dick Marty, a Swiss senator who produced a detailed report on “extraordinary rendition” for the Council of Europe in June 2007 (PDF) and by Manfred Novak, the UN’s Special Rapporteur on Torture, in March this year. Having spoken to senior CIA officers during his research, Marty told the European Parliament, “We have 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,” and Manfred Novak explained to the Observer that “he had received credible evidence from well-placed sources familiar with the situation on the island that detainees were held on Diego Garcia between 2002 and 2003.” The penultimate piece of the jigsaw puzzle came in May, when El Pais broke the story that “ghost prisoner” Mustafa Setmariam Nasar, whose current whereabouts are unknown, was imprisoned on the island in 2005, shortly after his capture in Pakistan — although the English-speaking press failed to notice.

Despite these previous disclosures, today’s article, by Adam Zagorin, is particularly striking because of the high-level nature of the source, and his admission that “the CIA officer surprised attendees by volunteering the information, apparently to demonstrate that the agency was doing its best to obtain valuable intelligence.” In addition, the source noted that “the US may also have kept prisoners on ships within Diego Garcia’s territorial waters, a contention the US has long denied.”

Zagorin also spoke to Richard Clarke (at the time the National Security Council’s Special Advisor to President Bush regarding counter-terrorism), who explained, “In my presence, in the White House, the possibility of using Diego Garcia for detaining high value targets was discussed.” Although Clarke “did not witness a final resolution of the issue,” he added, “Given everything that we know about the administration’s approach to the law on these matters, I find the report that the US did use the island for detention or interrogation entirely credible,” and he also pointed out that using the island for interrogations or detentions without British permission “is a violation of UK law, as well as of the bi-lateral agreement governing the island.”

Zagorin’s source did not name the prisoners, but it seems clear that the period he was referring to (“2002 and possibly 2003”) was when three particular “high-value detainees” — Abu Zubaydah, Khalid Sheikh Mohammed and Ramzi bin al-Shibh — are reported to have been held on the island, and it seems entirely plausible, therefore, that after these three were transferred to another secret CIA facility in Poland, the prison was used not only to hold Hambali, but also to hold the two other “high-value detainees” captured with him — Mohammed bin Lep (aka Lillie) and Mohd Farik bin Amin (aka Zubair). The addition of Mustafa Setmariam Nasar, who, it seems, may have been held into 2006, not only confirms that a secret prison existed, but that it was possibly in use for four years straight.

These damaging revelations seal Diego Garcia’s reputation as a quagmire of injustice. A British sovereign territory — albeit one that was leased to the United States nearly 40 years ago, when the islanders were shamefully discarded by the British government and exiled to face destitution and death by misery in Mauritius — Diego Garcia has long been a source of shame to opponents of modern colonial activity. Until now, however, the only admission that any activities connected with the “War on Terror” had taken place on the island came in February, when, after years of denials on the part of the British government, David Miliband, the Foreign Secretary, finally conceded that requests for information from his US counterparts had revealed that, in 2002, two rendition flights had refuelled on the island. “In both cases,” Miliband stated with confidence, “a US plane with a single detainee on board refuelled at the US facility in Diego Garcia. 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.”

The British government had been provoked to action by critics within the UK, in particular the All-Party Parliamentary Group on Extraordinary Rendition, led by the Tory MP Andrew Tyrie, and the legal action charity Reprieve, which represents 30 prisoners in Guantánamo, but the story appeared to grind to a halt when Michael Hayden, the CIA’s director, stepped forward to deny that Diego Garcia had ever been used as a “War on Terror” prison.

“That is false,” Gen. Hayden said when asked if a secret prison had existed on Diego Garcia, adding, as the New York Times put it, that “neither of the two detainees carried aboard the rendition flights that refuelled at Diego Garcia ‘was ever part of the CIA’s high-value terrorist interrogation program.’” He also explained that one of the detainees “was ultimately transferred to Guantánamo,” while the other “was returned to his home country,” which was identified by State Department officials as Morocco. “These were rendition operations,” he added, “nothing more.”

Four weeks ago, however, the story resurfaced once more, as David Miliband reported the results of his latest request for information from his US counterparts. This concerned a list of rendition flights, which, in the opinion of Reprieve and the All-Party Parliamentary Group, may also have passed through British territory, but the Foreign Secretary was confident that there was no further evidence to be mined, stating, “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.”

Yet again, the assurances of his US colleagues did nothing to assuage the critics. Reprieve noted that the British government “intentionally failed to ask the right questions of the US, and accepted implausible US assurances at face value,” and added, presciently, “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.”

Just three days after David Miliband’s last attempt to draw a line under the story, the British Foreign Affairs Select Committee published its latest report on the British Overseas Territories (PDF), and was scathing about Diego Garcia, declaring 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.”

Today’s revelations, of course, leave the US administration looking like bald-faced liars and the British government looking like myopic dupes. Whether Michael Hayden was also duped is not known, but his strenuous denial, just five months ago, that a secret prison existed, which was manned by his own employees, will do nothing for the credibility of the US administration, which likes to pretend that it does not torture and has nothing to conceal, but is persistently discovered not only being economical with the truth, but also behaving exactly as though it has guilty secrets to hide.

Whether this scandal will awaken much indignation in the American public remains to be seen, but it is hugely damaging to the British government, which is legally responsible for the activities that take place on its territory, however much it likes to hide behind “assurances” from its leaseholders that they have done nothing wrong.

It scarcely seems possible, but Diego Garcia’s dark history has suddenly grown even darker.

The prisoners held on Diego Garcia

Abu ZubaydahAbu Zubaydah (Zayn al-Abidin Muhammad Husayn). Saudi, b. 1971. Seized in Faisalabad, Pakistan in a joint operation by Pakistani forces and the FBI on 28 March 2002, he is regarded by the administration as a senior al-Qaeda operative and training camp facilitator, although this has been disputed by former FBI interrogator Dan Coleman, who has described him as a minor logistician with a split personality.

In February 2008, Gen. Michael Hayden, the director of the CIA, admitted that Abu Zubaydah was one of three prisoners who had been subjected to waterboarding (an ancient torture technique that involves controlled drowning) in CIA custody. Held initially in Thailand, and later in Poland, he is one of 14 “high-value detainees” transferred to Guantánamo in September 2006. At his tribunal in 2007, he denied being a member of al-Qaeda, and made a point of mentioning that he had been tortured. He has not yet been put forward for trial by Military Commission.

Khalid Sheikh MohammedKhalid Sheikh Mohammed. Kuwaiti/Pakistani, b. 1964 or 1965. The supposed mastermind of the 9/11 attacks, Mohammed (commonly known as KSM) was seized in Rawalpindi, Pakistan on March 1, 2003. Like Abu Zubaydah, he was subjected to waterboarding, and is also presumed to have been held initially in Thailand, and later in Poland. Transferred to Guantánamo in September 2006, he confessed to being “responsible for the 9/11 operation, from A to Z” at his tribunal in 2007, but also made a point of mentioning that he had been tortured. He was put forward for trial by Military Commission in February, and will face the death penalty if convicted.

Rumors that KSM was held on Diego Garcia have surfaced sporadically over the years, one example being an article in the Toronto Star on July 2, 2005 (mirrored here), in which Lynda Hurst spoke to John Pike, a US defense analyst. Pike, who told Hurst that he believed that KSM had been held on Diego Garcia, explained, “Diego Garcia is an obvious place for a secret facility. They want somewhere that’s difficult to escape from, difficult to attack, not visible to prying eyes and where a lot of other activity is going on. Diego Garcia is ideal.”

Ramzi bin al-ShibhRamzi bin al-Shibh. Yemeni, b. 1972. A friend of the Hamburg cell that led the 9/11 attacks, bin al-Shibh was seized in a raid in Karachi, Pakistan on September 11, 2002. He was reportedly intended as the 20th hijacker, but was unable to obtain a visa to enter the United States, and subsequently worked closely with KSM in planning the attacks. Transferred to Guantanamo in September 2006, he is also presumed to have been held initially in Thailand, and later in Poland, but his presence on Diego Garcia has long been suspected, because analyses of flight records have revealed that a plane flew from Pakistan to Diego Garcia immediately after his capture. He refused to take part in his tribunal in 2007, but was put forward for trial by Military Commission in February, and will face the death penalty if convicted.

HambaliHambali (Riduan Isamuddin). Indonesian, b. 1966. Seized in Ayutthaya, Thailand in a joint operation by Thai forces and the CIA on 11 August 2003, he is regarded as the main link between al-Qaeda and its Indonesian counterpart, Jemaah Islamiyah (JI). He is alleged to have been one of the planners of the Bali bombings in October 2002, which killed over 200 people, and was transferred to Guantánamo in September 2006. At his tribunal in 2007, he said that he resigned from JI in 2000, and was not involved with al-Qaeda or with any bombings or plots. He has not yet been put forward for trial by Military Commission.

Lillie (Mohammed Nazir bin Lep) and Zubair (Mohd Farik bin Amin). Malaysians, seized with Hambali, little is known of these two men, beyond claims by the administration that they worked closely with Hambali, although they were both discussed in another TIME article, in October 2003, which examined Hambali’s interrogation logs. They were transferred to Guantánamo in September 2006, but have not yet been put forward for trial by Military Commission.

Mustafa Setmariam NasarMustafa Setmariam Nasar (Abu Musab al-Suri). Syrian/Spanish, b. 1958. Seized in Quetta, Pakistan in October 2005 and handed over to US forces a month later, he is not accused of being involved in direct attacks on US forces, but is wanted in Spain as a witness in connection with the 2004 Madrid train bombings. Regarded as one of the most significant proponents of universal jihad, his writings include a 1600-page book, The Global Islamic Resistance Call, which was published on the internet in 2004. A critic of al-Qaeda, he reportedly fell out with Osama bin Laden in 1998, and has stated that the 9/11 attacks were catastrophic for the jihadi cause. Unlike the six prisoners mentioned above, he was not transferred to Guantánamo in September 2006, and it is not known, therefore, whether he is being held in a secret CIA prison or if he has been rendered to a third country.

Andy Worthington is the author of The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison, which includes extensive chapters on rendition and secret prisons. The book is 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.

As published on Antiwar.com, Indymedia, CounterPunch and ZNet. An edited version was published on the Huffington Post.

For a sequence of articles dealing with the use of torture by the CIA, on “high-value detainees,” and in the secret prisons, see: Guantánamo’s tangled web: Khalid Sheikh Mohammed, Majid Khan, dubious US convictions, and a dying man (July 2007), Jane Mayer on the CIA’s “black sites,” condemnation by the Red Cross, and Guantánamo’s “high-value” detainees (including Khalid Sheikh Mohammed) (August 2007), Waterboarding: two questions for Michael Hayden about three “high-value” detainees now in Guantánamo (February 2008), Six in Guantánamo Charged with 9/11 Murders: Why Now? And What About the Torture? (February 2008), The Insignificance and Insanity of Abu Zubaydah: Ex-Guantánamo Prisoner Confirms FBI’s Doubts (April 2008), Guantánamo Trials: Another Torture Victim Charged (Abdul Rahim al-Nashiri, July 2008), Will the Bush administration be held accountable for war crimes? (December 2008), The Ten Lies of Dick Cheney (Part One) and The Ten Lies of Dick Cheney (Part Two) (December 2008), Prosecuting the Bush Administration’s Torturers (March 2009), Abu Zubaydah: The Futility Of Torture and A Trail of Broken Lives (March 2009), Ten Terrible Truths About The CIA Torture Memos (Part One), Ten Terrible Truths About The CIA Torture Memos (Part Two), 9/11 Commission Director Philip Zelikow Condemns Bush Torture Program, Who Authorized The Torture of Abu Zubaydah?, CIA Torture Began In Afghanistan 8 Months before DoJ Approval, Even In Cheney’s Bleak World, The Al-Qaeda-Iraq Torture Story Is A New Low (all April 2009), Ibn al-Shaykh al-Libi Has Died In A Libyan Prison, Dick Cheney And The Death Of Ibn al-Shaykh al-Libi, The “Suicide” Of Ibn al-Shaykh al-Libi: Why The Media Silence?, Two Experts Cast Doubt On Ibn al-Shaykh al-Libi’s “Suicide”, Lawrence Wilkerson Nails Cheney On Use Of Torture To Invade Iraq, In the Guardian: Death in Libya, betrayal by the West (in the Guardian here) (all May 2009), Lawrence Wilkerson Nails Cheney’s Iraq Lies Again (And Rumsfeld And The CIA), and WORLD EXCLUSIVE: New Revelations About The Torture Of Ibn al-Shaykh al-Libi (June 2009). Also see the extensive archive of articles about the Military Commissions.

For other stories discussing the use of torture in secret prisons, see: An unreported story from Guantánamo: the tale of Sanad al-Kazimi (August 2007), Rendered to Egypt for torture, Mohammed Saad Iqbal Madni is released from Guantánamo (September 2008), A History of Music Torture in the “War on Terror” (December 2008), Seven Years of Torture: Binyam Mohamed Tells His Story (March 2009), and also see the extensive Binyam Mohamed archive. And for other stories discussing torture at Guantánamo and/or in “conventional” US prisons in Afghanistan, see: The testimony of Guantánamo detainee Omar Deghayes: includes allegations of previously unreported murders in the US prison at Bagram airbase (August 2007), Guantánamo Transcripts: “Ghost” Prisoners Speak After Five And A Half Years, And “9/11 hijacker” Recants His Tortured Confession (September 2007), The Trials of Omar Khadr, Guantánamo’s “child soldier” (November 2007), Former US interrogator Damien Corsetti recalls the torture of prisoners in Bagram and Abu Ghraib (December 2007), Guantánamo’s shambolic trials (February 2008), Torture allegations dog Guantánamo trials (March 2008), Sami al-Haj: the banned torture pictures of a journalist in Guantánamo (April 2008), Former Guantánamo Prosecutor Condemns “Chaotic” Trials in Case of Teenage Torture Victim (Lt. Col. Darrel Vandeveld on Mohamed Jawad, January 2009), Judge Orders Release of Guantánamo’s Forgotten Child (Mohammed El-Gharani, January 2009), Bush Era Ends With Guantánamo Trial Chief’s Torture Confession (Susan Crawford on Mohammed al-Qahtani, January 2009), Forgotten in Guantánamo: British Resident Shaker Aamer (March 2009), and the extensive archive of articles about the Military Commissions.

Back to home page

Andy Worthington

Investigative journalist, author, campaigner, commentator and public speaker. Recognized as an authority on Guantánamo and the “war on terror.” Co-founder, Close Guantánamo, co-director, We Stand With Shaker. Also, singer and songwriter (The Four Fathers) and photographer.
Email Andy Worthington

CD: Love and War

Love and War by The Four Fathers

The Guantánamo Files book cover

The Guantánamo Files

The Battle of the Beanfield book cover

The Battle of the Beanfield

Stonehenge: Celebration & Subversion book cover

Stonehenge: Celebration & Subversion

Outside The Law DVD cover

Outside the Law: Stories from Guantánamo

RSS

Posts & Comments

World Wide Web Consortium

XHTML & CSS

WordPress

Powered by WordPress

Designed by Josh King-Farlow

Please support Andy Worthington, independent journalist:

Archives

In Touch

Follow me on Facebook

Become a fan on Facebook

Subscribe to me on YouTubeSubscribe to me on YouTube

Andy's Flickr photos

Campaigns

Categories

Tag Cloud

Afghans in Guantanamo Al-Qaeda Andy Worthington British prisoners CIA torture prisons Clive Stafford Smith Close Guantanamo David Cameron Donald Trump Four Fathers Guantanamo Hunger strikes London Military Commission NHS NHS privatisation Periodic Review Boards Photos President Obama Reprieve Shaker Aamer Torture UK austerity UK protest US Congress US courts Video We Stand With Shaker WikiLeaks Yemenis in Guantanamo