Archive for October, 2008

Torture cannot be hidden forever

Binyam MohamedYesterday’s extraordinary announcement that the Attorney General, Baroness Scotland, has been asked by Home Secretary Jacqui Smith to investigate possible “criminal wrongdoing” by MI5 and the CIA in the case of Binyam Mohamed, a British resident held in Guantánamo Bay, Cuba, is the latest, and perhaps most significant example of the use of torture coming back to haunt the torturers.

Mr. Mohamed’s lawyers have spent over three years attempting to secure information proving that their client, seized in Pakistan in April 2002, was rendered by the CIA to 18 months of torture in Morocco, and was then transferred to a CIA prison in Afghanistan, before arriving in Guantánamo in September 2004.

The Home Secretary’s unprecedented decision was based on evidence uncovered during a judicial review of Mr. Mohamed’s case in the High Court this summer. This established that an MI5 agent had acted illegally when he interrogated Mr. Mohamed during his “unlawful” detention in Pakistani custody, but there is clearly more to the story, involving other evidence of the activities of both MI5 and the CIA. Much of this was only heard in closed sessions in the high court, when the agent was being cross-examined, but the judges also gave weight to an admission, on behalf the Foreign Secretary, David Miliband, that Mr. Mohamed had “established an arguable case” that he had been subjected to torture in US control.

For defenders of the absolute ban on torture, the decision demonstrates that, whatever the circumstances, the use of torture can neither be condoned nor hidden forever. Back in 2002, when CIA planes were criss-crossing the globe, rendering kidnapped “terror suspects” to prisons in other countries, including Egypt, Jordan, Morocco and Syria, where they could be either “disappeared” or tortured on America’s behalf, few of the European countries who aided the United States in its policies of “extraordinary rendition” and torture bothered to think about the consequences.

Either through ferocious diplomatic pressure, or because they had bought into the “War on Terror” rhetoric, countries including Germany, Italy, Sweden and the UK provided key intelligence identifying suspects, assisted the kidnappings, interviewed prisoners when they were being held illegally, or provided information about them when they were already held in unknown conditions and in unknown locations.

For the Bush administration, none of this was regarded as a problem. Using wartime powers granted by Congress after the 9/11 attacks, the US government believed that national security concerns trumped its obligations under the UN Convention Against Torture and the Geneva Conventions, and in secret memos, lawyers close to Vice President Dick Cheney, who was driving the policies, granted the CIA unfettered powers to deal with “terror suspects,” sought to redefine torture, and, from the summer of 2002 onwards, authorized the CIA to run its own secret torture prisons.

Although the US administration, in its dying days, has so far managed to avoid accountability for its actions within the United States, its policies –- and the actions of other countries who provided assistance –- have come under increasing scrutiny in Europe.

In November 2006, the UN declared that the Swedish government had violated the universal torture ban in December 2001, when it handed over two Egyptian asylum seekers, Mohammed al-Zari and Ahmed Agiza, to the CIA. The men were then rendered to Egypt, where they were tortured, in spite of a “diplomatic assurance” from the Egyptian government, secured by the Swedes before the rendition took place, which purported to guarantee that they would be treated humanely.

Last year, in Germany and Italy, arrest warrants were issued for a number of CIA agents involved in the kidnapping, rendition and torture of two other men, Khaled El-Masri, a German citizen who was kidnapped in Macedonia and rendered to a CIA prison in Afghanistan, because he shared a name with someone who had allegedly aided the 9/11 hijackers, and Abu Omar, a cleric who was kidnapped in a Milan street in February 2003 and rendered to Egypt.

But while these cases have, to some extent, become mired in red tape, the latest developments in Binyam Mohamed’s case hold out the hope that, with the demise of the Bush administration, the absolute ban on the use of torture will be vigorously reinstated, if not voluntarily, then through court cases establishing that complicity in torture is unforgiveable.

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 Liberal Conspiracy.

Corruption at Guantánamo: Military Commissions Under Investigation

Brig. Gen. Thomas HartmannIn a third article looking at the corrupt chain of command in the Military Commissions at Guantanamo, Andy Worthington, author of The Guantánamo Files, looks at the implications of the recently announced military investigations into the conduct of the Commissions’ former legal adviser, Brig. Gen. Thomas Hartmann, but doubts that either investigation will be encouraged to look up the chain of command to see who was pulling Hartmann’s strings.

Last month saw the “reassignment” of Air Force Brig. Gen. Thomas Hartmann, the legal adviser to Susan Crawford, the Convening Authority who oversees the Military Commissions at Guantánamo (the system of “terror trials” conceived by Vice President Dick Cheney and his close advisers in November 2001). Hartmann, who was appointed in July 2007, was removed from his post after three government-appointed military judges had disqualified him from playing any further part in two trials — those of Salim Hamdan and Mohamed Jawad — and had also excluded him from a post-trial review in the case of Omar Khadr, because of his transparent pro-prosecution bias.

Hartmann had certainly ignored the requirement in his job description (as laid down in the Military Commissions Act of 2006) to deal impartially with both the prosecution and the defense, as two unexpected critics had confirmed over the previous months. In August, Brig. Gen. Gregory Zanetti, the deputy commander of Guantánamo’s Joint Task Force, testified that Hartmann’s demeanor was “abusive, bullying and unprofessional … pretty much across the board,” and in a memorable line described his approach as, “Spray and pray. Charge everybody. Let’s go. Speed, speed, speed.”

A few weeks ago Maj. David Frakt, the military defense lawyer for Mohamed Jawad, directed me to a deposition in Jawad’s case that was made in June by Capt. Patrick McCarthy, the Staff Judge Advocate of Joint Task Force Guantánamo, who noted that Hartmann was “remarkably aggressive” to him during meetings at Guantánamo, and that his “preferred approach” to personnel in Guantánamo was to “aggressively question” them, “and then when I attempted to interject and correct misunderstandings that were clear in the conversation, he would say things like, ‘who asked you? No one has asked you. You just be quiet.’ Things along those lines.”

As I also wrote in an article following Maj. Frakt’s correspondence with me:

Capt. McCarthy also testified that, as well as being bullying and dismissive to himself and, it seemed, every other officer below the rank of General or Admiral at Guantánamo, Hartmann had held several secure video teleconferences with the commanders at Guantánamo, and two face-to-face meetings, which, it appeared, were also part of his mission to “brief” commanders on how and when the trials would proceed, rather than allowing these issues to be developed by the prosecutors. As McCarthy described it, Hartmann “would closely identify himself with prosecutorial efforts,” was “involved at a level of detail that no other general or flag officer that I’ve ever worked for or with has ever been involved at,” and gave the impression that he was “responsible for moving forward with military commissions in all respects.”

As reported by the Los Angeles Times, which first announced the story of the investigations, Hartmann is facing investigations by both the Air Force and the Defense Department’s Office of the Inspector General. The latter, reflecting the testimony above, centers on complaints by at least two military officials about Hartmann’s “abusive and retaliatory behavior” towards them in the Office of Military Commissions, but the first is regarded as the more serious of the two, because military officials explained that “it was launched only after a preliminary inquiry found sufficient grounds to move forward.”

Investigators will look not only at allegations of Hartmann’s much-reported bullying, but more particularly at its baleful effects on the Commissions: cases proceeding to trial before they were ready (and in one instance on the basis of “charges that were unwarranted”), Hartmann’s insistence on using evidence obtained through coercion despite the objections of prosecutors, and “intentionally misleading statements,” which Hartmann made both in public and during the Commission proceedings, “in an effort to downplay the direct role that he played” on behalf of the prosecution.

These are all familiar complaints to those who have studied Hartmann’s tenure closely. As Capt. McCarthy explained in June, Hartmann had shown him a timeline of charges in November 2007, which indicated how many cases would proceed and when they would take place, and which also, of course, indicated that the decisions to proceed were not in the hands of the prosecutors, as they should have been. In a hearing at Guantánamo in the same month, Hartmann admitted that this timeline existed, but as Maj. Frakt explained, it was not until he compared the dates on Hartmann’s chart with the dates the prisoners were actually charged that he realized that they were remarkably similar. In a motion to dismiss in August, he wrote, “It is easy to come up with a sinister explanation for the congruence of the chart and the scheduling order. It is hard to come up with an innocent one.”

Col. Morris DavisMaj. Frakt also pointed out how Hartmann had persistently misrepresented his role in public announcements when charges were put forward in various cases (for example, here and here), when he “gave the impression that no decisions had been made by him, that he had no prior familiarity with the evidence and that he was taking an open-minded review of the evidence.” The issue of using coerced evidence was addressed by Col. Morris Davis (photo, left), the Commissions’ former chief prosecutor, who resigned in October 2007, the day after he had been put in a chain of command below Hartmann, who was himself answerable to the Pentagon’s chief counsel, William J. Haynes II. Complaining of political interference, and the desire by his superiors to use evidence obtained through coercion — or even through torture — to which he was implacably opposed, Davis explained last December that he resigned after concluding that “full, fair and open trials were not possible under the current system.”

Unsurprisingly, both Col. Davis and Maj. Frakt have been “interviewed at length” by the Air Force inquiry’s chief investigator, Brig. Gen. Steven J. Lepper, who was assigned to the investigation after an unidentified military defense lawyer complained about Hartmann to Lt. Gen. Jack L. Rives, the Air Force’s Judge Advocate General, who in turn “referred the matter to his advisory committee on professional responsibility, which launched a preliminary inquiry and reported that a full investigation was warranted.”

Reiterating well-trodden complaints, Davis told the Los Angeles Times that Hartmann had “grossly exceeded his role as a neutral and independent and impartial legal advisor,” and Frakt said he “came forward with allegations about Hartmann because military regulations require one lawyer to report another if there is ‘a substantial question as to that lawyer’s honesty, trustworthiness, or fitness as a lawyer.’” He added, “I do believe that Brig. Gen. Hartmann has acted in a manner that raises substantial questions as to his honesty, professionalism and fitness as a lawyer, and I believe his conduct has been prejudicial to the fair administration of justice in the military commissions.”

Another former prosecutor, who declined to be identified, told the Times that he too had been approached by Lepper. Reinforcing complaints aired above, he explained that he believed that Hartmann “was hammering on other prosecutors to move faster on cases, in one instance demanding that three or more cases a month be initiated,” even if they were not ready.

For opponents of Hartmann, the investigations will hopefully validate their many complaints about his excessive and inappropriate zeal. Although the investigations have no fixed timeline, the Times reported that, “if Hartmann was found to have acted improperly, he would face administrative sanctions that could include removal of his Judge Advocate General certification,” and other military lawyers suggested that Lt. Gen. Rives could “transfer Hartmann away from the Guantánamo cases or even ask for his retirement.”

Even more significantly, Scott Silliman of Duke University, who served in the Air Force’s Judge Advocate General Corps for 25 years, noted, “If there is a finding that Hartmann exceeded his role, I think every defense lawyer is going to walk in and move for some kind of relief in their case, and say it was not handled properly and move for the charges to be dismissed or refiled based on Hartmann’s activities.”

For me, this would be the best outcome of the investigations, for one simple reason. Much as I share numerous commentators’ delight that Hartmann’s exercise of undue command influence is being investigated, it is apparent, as I reported in a detailed article a month ago, that in many ways Hartmann was used by his superiors to act on their behalf and, simultaneously, to shield them from criticism. To understand the underlying reasons for the exercise of undue command influence in the Military Commissions, it is necessary to gaze up the chain of command to those who were directing Hartmann’s bias.

This chain of command, which caused Col. Davis to resign, leads from Hartmann to Susan Crawford, on to the Pentagon’s Chief Counsel (formerly Haynes, and now Daniel Dell’Orto), and from there to Dick Cheney and his chief of staff David Addington, the engineers of the whole malign project. For justice to have a chance to prevail, two investigations into Hartmann’s role are unlikely to be sufficient. Instead, the whole Commission process must be shut down, which will hopefully happen when a new administration takes office and the services of Cheney, Addington, Dell’Orto and Crawford are no longer required.

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 the website of the Future of Freedom Foundation.

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), Salim Hamdan’s sentence signals the end of Guantánamo (August 2008), High Court rules against UK and US in case of Binyam Mohamed (August 2008), Controversy still plagues Guantánamo’s Military Commissions (September 2008), Another Insignificant Afghan Charged (September 2008), Seized at 15, Omar Khadr Turns 22 in Guantánamo (September 2008), Is Khalid Sheikh Mohammed Running the 9/11 Trials? (September 2008), two articles exploring the Commissions’ corrupt command structure (The Dark Heart of the Guantánamo Trials, and New Evidence of Systemic Bias in Guantánamo Trials, October 2008), Meltdown at the Guantánamo Trials (five trials dropped, October 2008), The collapse of Omar Khadr’s Guantánamo trial (October 2008), 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).

Guantánamo: Justice Delayed or Justice Denied?

The US flag at GuantanamoIn the real world, guilt and innocence are clearly defined, and those believed to be responsible for a crime are considered innocent until proven guilty in a court of law. Since the 9/11 attacks, however, the US administration has done away with such long-standing conventions.

Under the guise of waging a “War on Terror,” those in charge of America’s post-9/11 policies — primarily Vice President Dick Cheney, defense secretary Donald Rumsfeld and their legal advisers — set an arrogant new course into uncharted waters. Determined that those they seized would not be protected as Enemy Prisoners of War, they discarded the Geneva Conventions, with their prohibition on “cruel and inhumane treatment” and coercive interrogations.

Less remarked upon, though no less significant, was their dismissal of the battlefield tribunals established under the Geneva Conventions. Held during every conflict in modern American history, including Vietnam and the first Gulf War, these tribunals enabled the military to call witnesses close to the time and place of capture, to separate soldiers from civilians caught up in the fog of war.

Instead of prosecuting “terror suspects” as criminals, however, the administration also turned its back on the US court system, introducing a dystopian parody of the law, in which prisoners were held without charge or trial as “illegal enemy combatants.” Based on the presumption of guilt, this new system presented those detained with little or no opportunity to ever establish their innocence.

This was revealed explicitly last June, when Lt. Col. Stephen Abraham, a veteran of US intelligence, blew the lid on the Combatant Status Review Tribunals (CSRTs), Guantánamo’s version of the battlefield tribunals. Introduced after the US Supreme Court ruled, in June 2004, that the prisoners had habeas corpus rights (in other words, the right to challenge the basis of their imprisonment in a courtroom), the tribunals were a deliberate snub to the Supreme Court, and were also a mockery of their battlefield predecessors, primarily because none of the prisoners was ever allowed to call an outside witness to testify on their behalf.

Adding insult to injury, the prisoners were not allowed legal representation, and were prevented from either seeing or hearing the classified evidence against them, which often consisted of confessions extracted from other prisoners under unknown circumstances. In addition, as Lt. Col. Abraham explained, the information compiled for the tribunals frequently consisted of intelligence “of a generalized nature — often outdated, often ‘generic,’ rarely specifically relating to the individual subjects of the CSRTs or to the circumstances related to those individuals’ status,” and was, essentially, designed to rubber-stamp the prisoners’ prior designation as “enemy combatants.”

Further proof of the administration’s disregard for justice was provided by one of Lt. Col. Abraham’s former colleagues at the Office of Administrative Review for the Detention of Enemy Combatants (OARDEC), who sent him an email supporting his actions, and also observed that, “after several detainees were found to be ‘not an enemy combatant,’ DoD took away that option and we had to start using the term ‘no longer an enemy combatant’ for those held for no apparent reason.” This was indeed the case. Anxious not to admit that a single prisoner was innocent — partly to protect itself from lawsuits, but primarily, I suspect, because those in charge maintained, as they do to this day, that they were incapable of making mistakes — the administration cleared just 38 prisoners for release through the CSRT process, and made sure that all of them were labeled as “no longer enemy combatants.”

By the time of the CSRT’s successors, the annual Administrative Review Boards (ARBs), whose stated aim was to determine whether the prisoners still constituted a threat to the United States, the authorities rapidly dispensed with the claim that prisoners were “no longer enemy combatants.” Although 14 prisoners were labeled as such, the rest of those approved to leave Guantánamo (119 in total) were still explicitly regarded as “enemy combatants,” and were only approved for transfer from Guantánamo (to the custody of their home country, or a third country). By the time that decisions were announced for the second and third rounds of the ARBs, in February 2007 and February 2008, all of those cleared to leave (55 and 33 prisoners, respectively) were still regarded as “enemy combatants.”

Aside from the inconvenient fact that a great many of these men are, in fact, innocent men swept up in raids based on poor intelligence or sold to US forces by bounty hunters, who should not be saddled for the rest of their lives with the label of “enemy combatant,” I raise these issues at this particular time for one pressing reason, which brings us back to “innocence,” that troublesome concept that has been banished by the current administration.

Of all the men held at Guantánamo, only seventeen have persuaded the government to drop its claims that they are “enemy combatants.” These men, who are all still in Guantánamo, are Uyghurs, Chinese Muslims who had fled government oppression in their homeland (East Turkestan, known to the Chinese as Xinjiang province) for the sanctuary of a run-down hamlet in Afghanistan’s Tora Bora mountains. When the US-led invasion of Afghanistan began in October 2001, US forces bombed the settlement, thinking that it belonged to al-Qaeda or the Taliban. Several of the men died, but the others fled into the mountains, hiding from the relentless bombing in a cave and eventually making their way to Pakistan, where they were sold to US forces by opportunistic locals.

Throughout their time in US custody, the Uyghurs have put up with many humiliations. Anxious to secure a lack of Chinese opposition to the invasion of Iraq, the US administration invited Chinese interrogators to visit the prisoners in Guantánamo. The authorities also designated a Uyghur separatist group, the East Turkestan Independence Movement (ETIM), as a terrorist organization, claimed that it was linked to al-Qaeda and the Taliban, and then claimed that the Uyghurs in Guantánamo were all somehow connected to the group.

Nevertheless, several of the military tribunals were unconvinced. Seven of the Uyghurs were declared to be “no longer enemy combatants” after their CSRTs, although in two of these cases the Pentagon dismissed the original tribunal members and ordered second tribunals that confirmed the men as “enemy combatants.” Unwilling to return the five cleared Uyghurs to China, the administration eventually persuaded Albania to accept them in May 2006, but since then, despite being cleared for release through the ARB process, the remaining Uyghurs have been stuck in Guantánamo, as Albania’s largesse dried up, and no other country could be found that was prepared to take them.

In July this year, after a further ruling in the Supreme Court reversed legislation that had stripped the prisoners of their habeas rights in the intervening four years, the case of one of the Uyghurs, Huzaifa Parhat, was finally reviewed by a US court. Stunned by the lack of evidence linking ETIM to al-Qaeda and the Taliban, and the Uyghurs to ETIM, the judges in the Court of Appeals in Washington D.C. “held invalid a decision of a Combatant Status Review Tribunal” that Parhat was an “enemy combatant,” and in the following months what was left of the cases against the rest of the Uyghurs crumbled, as the government admitted that it would “serve no purpose” to continue trying to prove that Parhat was an “enemy combatant,” and then did the same for the other 16 Uyghurs.

As a result, when Judge Ricardo Urbina of the US District Court in Washington D.C. was required to make a decision about the Uyghurs’ fate three weeks ago, he had no hesitation in declaring, “Because the Constitution prohibits indefinite detentions without cause, the continued detention is unlawful.” Furthermore, because no third country had been found that would accept the Uyghurs, he ordered that they be released to the care of communities in the Washington D.C. area, and Tallahassee, Florida, who had put together detailed plans for their resettlement in the United States.

The core of Judge Urbina’s ruling was his understanding that the Uyghurs — to use those words dreaded by the administration — were innocent men, and had been imprisoned by mistake. Predictably, of course, the administration appealed, but all they had in their arsenal were recycled and thoroughly discredited claims that the Uyghurs were “a danger to the public,” who had “admitted receiving weapons training at a military training camp.”

Sadly, however, the sheer hypocrisy of the government’s position was overlooked by the judges in the Court of Appeals for the District of Columbia Circuit, who granted the government a temporary stay, and on October 21 the court reiterated its position, ruling, by two votes to one, to extend the stay, and scheduling oral arguments for November 24.

In the meantime, nearly seven years after the Uyghurs were seized and sold to US forces in Pakistan, they remain imprisoned in Guantánamo, where they must, indeed, be wondering if innocence is a concept that the Bush administration has irrevocably destroyed.

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 the website of the Future of Freedom Foundation.

For a sequence of articles dealing with the Uighurs in Guantánamo, see: The Guantánamo whistleblower, a Libyan shopkeeper, some Chinese Muslims and a desperate government (July 2007), Guantánamo’s Uyghurs: Stranded in Albania (October 2007), Former Guantánamo detainee seeks asylum in Sweden (November 2007), A transcript of Sabin Willett’s speech in Stockholm (November 2007), Support for ex-Guantánamo detainee’s Swedish asylum claim (January 2008), A Chinese Muslim’s desperate plea from Guantánamo (March 2008), Former Guantánamo prisoner denied asylum in Sweden (June 2008), Six Years Late, Court Throws Out Guantánamo Case (June 2008), Guantánamo as Alice in Wonderland (July 2008), From Guantánamo to the United States: The Story of the Wrongly Imprisoned Uighurs (October 2008), Guantánamo Uyghurs’ resettlement prospects skewered by Justice Department lies (October 2008), A Pastor’s Plea for the Guantánamo Uyghurs (October 2008), Sabin Willett’s letter to the Justice Department (November 2008), Will Europe Take The Cleared Guantánamo Prisoners? (December 2008), A New Year Message to Barack Obama: Free the Guantánamo Uighurs (January 2009), Guantanamo’s refugees (February 2009), Bad News And Good News For The Guantánamo Uighurs (February 2009), and the stories in the additional chapters of The Guantánamo Files: Website Extras 1, Website Extras 6 and Website Extras 9.

Andy Worthington discusses the Guantánamo trials, the Uyghurs, Barack Obama and John McCain on KBOO FM

The Guantanamo FilesOn October 22, I was delighted to be interviewed again by Linda Olson-Osterlund on the progressive radio station KBOO FM in Portland, Oregon. The 30-minute interview is available online here, and in it Linda and I discussed, at length, the “reassignment” of Brig. Gen. Thomas Hartmann, the legal adviser to the Convening Authority responsible for overseeing the Military Commissions at Guantánamo (the “terror trials” conceived by Vice President Dick Cheney and his close advisers in November 2001), after three government-appointed judges ruled that he had demonstrated pro-prosecution bias. More on this case is available here and here.

We also talked about the case of the Uyghurs, the wrongly imprisoned Chinese Muslims at Guantánamo, who are currently engaged in a struggle to secure their freedom in the United States, as no other country can be found that will accept them, and then moved on to the resignation of Lt. Col. Darrel Vandeveld, a former prosecutor in the Military Commissions, whose departure, after something of a Damascene conversion, has spooked the administration to such an extent that it has dropped charges against five prisoners he represented in an attempt to prevent him from testifying for the defense.

Also included was a discussion about two juveniles in Guantánamo –- the case of Mohamed Jawad, in which deliberately suppressed evidence was discovered by Vandeveld, leading to his outspoken departure, and Omar Khadr, about whom I recently wrote an article following my discovery of a manual on the treatment of juveniles in Guantánamo that was clearly never implemented by Donald Rumsfeld’s Defense Department.

The show closed with a discussion of the Presidential candidates and their relative positions on Guantánamo and the “War on Terror,” in which I lamented the transformation of John McCain, a lifelong opponent of torture, into the figurehead of a campaign of hatred and fear, and my hopes that, although Barack Obama has chosen –- or been advised –- not to speak about the government’s abuse of executive power in the run-up to the election, he means what he said in a speech in August 2007:

In the dark halls of Abu Ghraib and the detention cells of Guantánamo, we have compromised our most precious values. What could have been a call to a generation has become an excuse for unchecked presidential power. A tragedy that united us was turned into a political wedge issue used to divide us.

When I am President, America will reject torture without exception. America is the country that stood against that kind of behavior, and we will do so again … As President, I will close Guantánamo, reject the Military Commissions Act, and adhere to the Geneva Conventions. Our Constitution and our Uniform Code of Military Justice provide a framework for dealing with the terrorists … The separation of powers works. Our Constitution works. We will again set an example to the world that the law is not subject to the whims of stubborn rulers, and that justice is not arbitrary.

I thoroughly enjoyed the interview, as ever, and hope to speak to Linda again in the near future.

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.

An Empty Trial at Guantánamo

Now here’s a problem that anyone with half a brain could have seen coming. Today the second trial by Military Commission at Guantánamo — in other words, the second US “war crimes” trial since the Second World War, following the underwhelming trial of Salim Hamdan this summer — opened not with a bang, and not even with a whimper, but with complete silence.

The defendant, Ali Hamza al-Bahlul, a 39-year old Yemeni, is accused of working as al-Qaeda’s “media director” and being a bodyguard for Osama bin Laden. He has, moreover, accepted in pre-trial hearings that he is a member of al-Qaeda, and his prosecution should, therefore, have been an opportunity for the administration to demonstrate that the “War on Terror” — for the most part, a brutal, law-shredding fishing expedition — has at least produced one success for the Commissions’ architects (Vice President Dick Cheney and his chief of staff David Addington) to trumpet before next week’s Presidential elections.

Ali Hamza al-Bahlul (far left) during his Military Commission hearing in May 2008

Ali Hamza al-Bahlul (far left) holds up a sign saying “boycott” at his Military Commission hearing on May 7, 2008. Courtroom sketch by Janet Hamlin.

Unfortunately for the administration, this rosy picture has been soured by al-Bahlul’s refusal to take part in his trial. As the court convened today, he sat in silence as his appointed military defense lawyer, Maj. David Frakt, announced that al-Bahlul was boycotting the trial, and that he had two specific reasons: firstly, because the judge had repeatedly denied his requests to represent himself, and secondly because he did not wish to be represented by a military lawyer.

Noting that he was obliged to respect his client’s wishes, Maj. Frakt then asked to be relieved, and when the judge, Air Force Col. Ronald Gregory, refused, he declared that he too was unable to participate. “I will be joining Mr. al-Bahlul’s boycott of the proceedings,” he said, “standing mute at the table.” He then refused to answer any further questions from Col. Gregory.

In response, Col. Gregory attempted to argue that Maj. Frakt was “obliged to participate,” as the Associated Press described it, and insisted, “The commission will not proceed with an empty defense table.” However, he then appeared to concede that it was not in his power to force Maj. Frakt to represent al-Bahlul, and determined to proceed with a trial based solely on evidence provided by the prosecution, even though this will do nothing to convince any objective observer that justice will be seen to be done.

What’s particularly bizarre about this empty trial is that the government should have known that this was what would happen. Ever since al-Bahlul was first put forward for trial by Military Commission (in the trials’ first incarnation, which was struck down as illegal by the Supreme Court in June 2006), he has tried to represent himself, and has boycotted the proceedings when prevented from doing so. Back in 2005, this prompted a crisis for his military-appointed lawyer, Army Maj. Tom Fleener, who was obliged to represent him under the Commissions’ rules at the time.

Speaking to GQ last summer, Maj. Fleener explained, “The concept of compelled representation has always bothered the crap out of me. You just don’t force lawyers on people. You don’t represent someone against his will. It’s never, ever, ever done.” Sean Flynn of GQ then explained, “The reason it’s never done is that it undermines the concept of a fair trial. When a man’s life or liberty is at stake, he gets to decide who will speak for him. That’s the way American courts work, have always worked. To eliminate that right is to begin to transform a trial into a pageant.”

Maj. Fleener, like his colleague, Navy Lt. Cmdr. William Kuebler, who was assigned to represent a similarly uncooperative prisoner, Ghassan al-Sharbi (and who is now the lawyer for Omar Khadr), knew that the Commissions were in fact nothing more than a pageant. As Fleener explained to Flynn, “I hated the fact, still hate the fact, that we were making up a trial system to convict people after we’d already decided they’re guilty. I hated that as a country we were doing that. I didn’t like the fact that we were violating the rule of law, and that what we were doing as a country was just … wrong.”

The two men, united by their considered opinion of the Commissions, and of the unpleasant role into which they had been thrust, held long conversations about the trials. “Over time,” Kuebler explained, “we figured out we’re the linchpin in this process. They want to have these bizarre trials, they don’t want to let the defendant see secret evidence — so the one thing they need is us. The government wanted this attorney-client thing to work. They really did. It’s an important part of the show.”

Fleener added, “Only the government benefits if we do a bang-up job. The administration believes the commission process will ultimately justify the detentions. They know they can’t just hold people; they don’t want to take the political heat. So they rigged the rule of law. And because it’s rigged, the only thing that’s in play is the appearance.” And as Flynn added, “the detainees know it, which is why they don’t want to go along with a charade.”

Fleener continued: “At the end of the day, that’s how these guys look at it: ‘If I’m going to get a life sentence — or a death sentence — I’d rather get one in this weird, disgusting system that everyone knows is a weird, disgusting system than have some military lawyer up there dancing and juicing it up and making it look like it’s not rigged.’”

As a result, Fleener realized, as Flynn put it, that he “had to return to active duty — specifically, to represent al-Bahlul. Or more accurately, to be the lawyer al-Bahlul would try to fire, the proxy through which an alleged terrorist could attempt to preserve the right to choose his own counsel.”

Fleener’s one and only encounter with al-Bahlul was on January 11, 2006, just before a pre-trial hearing, when he explained why he didn’t wish to be represented. In the hearing, al-Bahlul explained, as he had during his only other hearing 17 months before, that he was boycotting the proceedings, and the judge, Army Col. Peter E. Brownback III, then motioned for Fleener to move up the table to represent him. The following exchange then took place:

Fleener: Sir, is this an order? Should I consider it an order?
Brownback: Do you need an order?
Fleener: I believe I do, sir.

Fleener was not being difficult for the sake of it. The problem was not just that he was being ordered to represent a client who didn’t want to be represented, which is unethical; it was also that, outside of the specific context of the Military Commissions, in the legal world outside Guantánamo to which Fleener also belonged, he could be punished for doing so. As Flynn explained, “The defendant can sue for malpractice, and the bar can impose sanctions, even take away his license to practice.” He added, “An order to represent al-Sharbi and al- Bahlul, then, would also be an order for Fleener and Kuebler to violate their professional ethics; by obeying their superiors, they risked disobeying the rules of the bar.”

This conflict was never resolved, as the Supreme Court stepped in, and Fleener and Kuebler were not required to represent al-Bahlul and al-Sharbi again. However, it was clearly such a significant problem that when the Military Commission system was revived by Congress in the fall of 2006, it included the following: “The accused shall be permitted to represent himself, as provided for by paragraph (3).”

This appeared to address the ethical dilemmas faced by Fleener and Kuebler, but as Flynn noted, “there were reasons to be skeptical, to suspect that the provision wasn’t as clear as it seemed: The ‘paragraph (3)’ it referred to was a list of caveats that allowed self-representation to be revoked if the defendant didn’t behave to the presiding officer’s liking. So what would happen if a man’s idea of representing himself was to boycott his trial? Would a lawyer be forced on him then? That wasn’t clear at all.”

What happened, as we have seen today, and as was telegraphed in May, when al-Bahlul attended a pre-trial hearing for his Military Commission (Mk. II) and again boycotted it, was that another military lawyer — this time Maj. David Frakt — would face the same dilemma faced by Maj. Fleener and Lt. Cmdr. Kuebler in 2005 and 2006, and would again insist on his right not to compromise his ethical obligations by representing an unwilling client.

The empty chair — a symbol of lop-sided justice if ever there was one — is the inevitable result, but as I stated at the beginning of this article, anyone with half a brain — or the current US administration — should have seen this coming.

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 CounterPunch, Antiwar.com and the Huffington Post.

See here for a report on Ali Hamza al-Bahlul’s sentence. 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), A critical overview of Salim Hamdan’s Guantánamo trial and the dubious verdict (August 2008), Salim Hamdan’s sentence signals the end of Guantánamo (August 2008), High Court rules against UK and US in case of Binyam Mohamed (August 2008), Controversy still plagues Guantánamo’s Military Commissions (September 2008), Another Insignificant Afghan Charged (September 2008), Seized at 15, Omar Khadr Turns 22 in Guantánamo (September 2008), Is Khalid Sheikh Mohammed Running the 9/11 Trials? (September 2008), two articles exploring the Commissions’ corrupt command structure (The Dark Heart of the Guantánamo Trials, and New Evidence of Systemic Bias in Guantánamo Trials, October 2008), Meltdown at the Guantánamo Trials (five trials dropped, October 2008), The collapse of Omar Khadr’s Guantánamo trial (October 2008), Corruption at Guantánamo (legal adviser faces military investigations, October 2008), 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).

The Collapse of Omar Khadr’s Guantánamo Trial

Omar KhadrHardly a day goes by without some extraordinary news from the Military Commissions, the system of “terror trials” conceived in the Office of the Vice President in November 2001, and their days now seem to be as numbered as those of the Bush administration itself.

Following the outspoken resignation of former prosecutor Lt. Col. Darrel Vandeveld and the Pentagon’s desperate decision to drop charges against five prisoners to prevent Vandeveld from testifying for the defense, the latest news to rock the Commissions is that the trial of Omar Khadr — a supposedly flagship case, along with that of the Yemeni Salim Hamdan, who received a surprisingly light sentence after a trial this summer — has been delayed until after the administration leaves office.

This is a bitter blow for the government, which has been pushing to prosecute Khadr for war crimes since 2005. Its first attempt failed, when the Supreme Court ruled that the whole enterprise was illegal, but after the Commissions were bandaged up by Congress and resumed their ghoulish existence in 2007, Khadr was once more put forward for trial.

This was in spite of the fact that his tenacious lawyers — both military and civilian — have questioned the very basis of the “war crimes” charges (which essentially transform combatants in war into “terrorists”), and have unearthed evidence (despite systemic obstruction) that Khadr may not have been responsible for the main crime for which he is charged (throwing a grenade that killed a US soldier). Focusing on the fact that Khadr was just 15 years old when he was seized in July 2002, they have also persistently pointed out the cruel folly, injustice and illegality of prosecuting a juvenile for war crimes, when the UN Convention on the rights of children in wartime, to which the US is a signatory, requires juveniles — those under the age of 18 when the alleged crime took place — to be rehabilitated rather than punished.

Last week, in pre-trial hearings, they reprised some of these arguments, and also sought access to seven interrogators, from various intelligence agencies, who, they insist, extracted coerced confessions from Khadr, who was severely wounded, while he was detained in the US prison at Bagram airbase in Afghanistan, before his transfer to Guantánamo. According to the lawyers, the information extracted from Khadr under duress was then used as the basis for interrogations at Guantánamo using more “sterile” and “benign” techniques, in much the same way that the administration has attempted to cover up its torture of Khalid Sheikh Mohammed and other “high-value detainees” in secret CIA custody by using “clean teams” of FBI agents to extract new confessions in Guantánamo.

As was revealed in Salim Hamdan’s trial, the prohibition on the use of coerced evidence (which was only introduced after the Commissions’ first incarnation was struck down by the Supreme Court, and is still allowable at the judge’s discretion) may technically satisfy the absolute prohibition on the use of evidence obtained through torture, but it has the knock-on effect of effectively erasing the government’s crimes from the record, while also allowing the authorities to obtain “clean” confessions from abused prisoners in a way that would shame all but the most vile totalitarian regimes.

Last week, Khadr’s judge, Army Col. Patrick Parrish, deferred a decision on the defense’s motion, but as Judy Rabinovitz, an observer for the American Civil Liberties Union, noted, he “did not appear impressed” by the prosecution’s argument that “there ‘needs to be a showing’ by the defense that coercive interrogation practices were used,” which otherwise were only “speculative.” As Rabinovitz noted, touching on the burning issues of the suppression of evidence vital to the defense, which was highlighted in Mohamed Jawad’s case by Lt. Col. Vandeveld, “This line of argument would not likely succeed in a regular military or civilian criminal court, in which the standard for discovery generally places the burden on the government to give the defense information that may assist the defense.” She added that Col. Parrish was also not impressed by the government’s assertion that even providing information about the seven interrogators, three weeks before the trial’s scheduled start date of November 10, would be an “undue burden” on the government.

However, Col. Parrish’s decision to postpone Khadr’s trial until January 26, five days into the new administration, was prompted in particular by defense complaints about the government’s attempts to obstruct an independent psychiatric examination of their client. Although this was first requested in May, it was challenged and resisted by the government in hearings throughout the summer, and as a result a psychiatric expert met Khadr for the first time on October 13. Requesting a postponement of the trial’s start date, the defense pointed out that the expert would need time to establish a rapport with Khadr, and also argued that the delay in providing Khadr with a psychiatric evaluation was largely the government’s fault. As Judy Rabinovitz explained, even when an independent expert had been approved, the prosecution “delayed in providing her the necessary security clearance, and has also failed to provide the defense with Khadr’s psychiatric records.”

Those who have been pressing for the young Canadian’s release will now be hoping that the Canadian government (which is also a signatory to the UN Convention) will finally discover its spine, and will take advantage of the change of administration to demand his return to Canada, or that the new US government will refuse to proceed with the case. Barack Obama, who voted against the Military Commissions Act that revived the trial system in 2006, has pledged to abolish the Military Commissions, which he regards (along with the use of torture, the shredding of the Geneva Conventions, and the sidelining of the US Constitution and the Uniform Code of Military Justice) as key examples of the Bush administration’s quest for “unchecked presidential power,” and even John McCain, who voted for the legislation, may wish to transfer the ailing system to the mainland, and has already explained that he would repatriate Khadr if asked to do so by the Canadian government.

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 CounterPunch, Antiwar.com, AlterNet and the Huffington Post.

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), Salim Hamdan’s sentence signals the end of Guantánamo (August 2008), High Court rules against UK and US in case of Binyam Mohamed (August 2008), Controversy still plagues Guantánamo’s Military Commissions (September 2008), Another Insignificant Afghan Charged (September 2008), Seized at 15, Omar Khadr Turns 22 in Guantánamo (September 2008), Is Khalid Sheikh Mohammed Running the 9/11 Trials? (September 2008), two articles exploring the Commissions’ corrupt command structure (The Dark Heart of the Guantánamo Trials, and New Evidence of Systemic Bias in Guantánamo Trials, October 2008), Meltdown at the Guantánamo Trials (five trials dropped, October 2008), 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).

The Guantánamo Files: Additional Chapters Online – Escape to Pakistan (Uyghurs and others)

The Guantanamo FilesI’ve just posted the sixth 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 additional chapter complements Chapter 7 of The Guantánamo Files, looking at the stories of 15 prisoners not mentioned in the book. They were amongst the 250 or so prisoners (almost a third of Guantánamo’s entire population) who were captured crossing from Afghanistan to Pakistan in December 2001. The others seized at this time (mainly Saudis and Yemenis) are discussed in Chapters 5 and 6, and in the additional online chapters here, here and here.

Featuring some stories that were not available at the time of writing, and others that were excluded to keep the book at a manageable length, this additional chapter also focuses on the stories of eight of the 18 Uyghurs (or Uighurs), Chinese Muslims who had fled persecution in their homeland, and were living in a run-down settlement in the Tora Bora mountains.

Unconnected with either al-Qaeda or the Taliban, the Uyghurs have long been the most unfortunate group of prisoners at Guantánamo, and their story is currently very topical, as, after years of abuse, neglect and political manipulation by the authorities, their release into the United States was ordered by a District Court judge on October 7. The government has appealed, reviving long-discredited claims that the men remain a threat to the United States, but I hope the stories in this additional chapter help to demonstrate that the opposite is true; that the Uyghurs have only one enemy (the Chinese government), and that they have long looked to the United States as a potential savior, and a beacon of democracy.

Note: The first two additional online chapters are available here and here, and see the left-hand column for the other six.

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.

Meltdown at the Guantánamo Trials

Recent events at Guantánamo are turning out like some kind of Christian fable. A principled military officer — politically Conservative, and a devout Catholic — who served in Iraq, where he was “praised by his superiors for his bravery,” and was now serving his government as a prosecutor in a system of special trials conceived for prisoners held in the “War on Terror,” began to uncover information, withheld from the defense teams, which indicated that all was not right with the system.

In one of his cases — that of Mohamed Jawad, an Afghan alleged to have thrown as grenade at a jeep containing two US soldiers and an Afghan translator — he discovered that the defendant was just 16 or 17 years old at the time of the attack, and, moreover, that evidence indicating that he was drugged before the attack, and that two other men confessed to the crime, had been deliberately suppressed. As the Los Angeles Times explained, it encouraged a radical shift in his views, as he had initially been convinced that Jawad was “a war criminal who had been taught by an al-Qaeda-linked group to kill American troops and, if caught, to make up claims he had been tortured and was underage.”

Lt. Col. Darrel VandeveldDoubting his job, the officer — Lt. Col. Darrel Vandeveld — turned to a priest for advice. “I am beginning to have grave misgivings about what I am doing, and what we are doing as a country,” he explained in an email to Father John Dear, a Jesuit peace activist. “I no longer want to participate in the system, but I lack the courage to quit. I am married, with children, and not only will they suffer, I’ll lose a lot of friends.” Dear encouraged him to act, saying he might “save lives and change the direction of the entire policy.”

Fortified by the priest’s advice, Vandeveld resigned his post, denouncing the trial system — the Military Commissions — as a rigged system in which “potentially exculpatory evidence” was “not provided” to the defense teams. In a statement, he explained how the Commissions’ Convening Authority (Susan Crawford, a protégée of Dick Cheney and the Pentagon-appointed supervisor of the trials) and her legal adviser (Brig. Gen. Thomas Hartmann, who was recently removed from his post after three judges ruled that he had demonstrated pro-prosecution bias) conspired to prevent the disclosure of evidence. “I have observed,” he wrote, “that a number of defense requests which I considered to be reasonable and in some cases indicated support for were nevertheless rejected by the Convening Authority, presumably on the advice of the Legal Adviser.”

He also explained that, although his own practice “has been to relinquish immediately any piece of evidence I have come across to the defense,” this was “not universally practiced at OMC-P [the Prosecutors’ Office of the Military Commissions],” and provided an almost casual example of the suppression of evidence, which served to indicate how routine it was:

To take the Jawad case as only one example — a case where no intelligence agency had any significant involvement — I discovered just yesterday that something as basic as agents’ interrogation notes had been entered into a database, to which I do not have personal access … These and other examples too legion to list are not only appalling, they deprive the accused of basic due process and subject the well-intentioned prosecutor to claims of ethical misconduct.

After explaining that his view of Jawad’s case had “evolved over time,” as he had learnt more about it, he declared, “One of my motivations in seeking a reasonable resolution of the case is that, as a juvenile at the time of capture, Jawad should have been segregated from the adult detainees, and some serious attempt made to rehabilitate him. I am bothered by the fact that this was not done.” And then, reaching deep into the heart of his faith, he delivered an extraordinary example of Christian compassion: “I am a resolute Catholic and take as an article of faith that justice is defined as reparative and restorative, and that Christ’s most radical pronouncement — command, if you will — is to love one’s enemies.”

His former masters — at the Pentagon, and in the Office of the Vice President, whose views of the Bible are based almost exclusively on their relish for smiting their enemies — were so disturbed by Vandeveld’s conversion, and mindful of the damage caused by previous prosecutors who resigned, that, according to Maj. David Frakt, Jawad’s military defense lawyer, the chief prosecutor, Col. Lawrence Morris, sought to subject Vandeveld to a “psychological exam.”

When that failed to silence him, and after he had reiterated his complaints in testimony for Jawad’s defense, explaining that he “reached a turning point” when he chanced upon “key evidence among material scattered throughout the prosecutors’ office,” which “helped convert him from a ‘true believer to someone who felt truly deceived,’” they issued dark warnings when he subsequently conducted an email exchange with the Los Angeles Times, reminding him that he “could not talk to the press until his release from active duty is final.”

Nevertheless, his final words to the Los Angeles Times were even more damaging to the administration. He wrote that anyone who knows him “will probably tell you that I’ve been a conformist my entire life, and [that] to speak out against the injustice wrought upon our worst enemies entailed a weather shift in my worldview,” and delivered a final observation about the Commissions that managed to combine his Christian beliefs with his patriotic feelings. “I don’t know how else the creeping rot of the commissions and the politics that fostered and continued to surround them could be exposed to the curative powers of the sunlight,” he explained, adding, “I care not for myself; our enemies deserve nothing less than what we would expect from them were the situations reversed. More than anything, I hope we can rediscover some of our American values.”

Despite the administration’s attempts to silence and belittle him, Vandeveld succeeded in exposing the Commissions’ corrupt processes to the “curative powers of the sunlight.” Although his masters refused to drop the charges against Mohamed Jawad, they were so concerned that he would again testify for the defense in five other cases for which he was responsible — revealing, quite possibly, more extraordinary tales of suppressed evidence and incriminating documents stumbled upon by mistake — that they dropped all the charges against these prisoners on October 21.

Abu ZubaydahThe five men in question are loosely related. Ghassan al-Sharbi and Jabran al-Qahtani (both Saudis), Sufyian Barhoumi (an Algerian) and Noor Uthman Muhammed (from Sudan) were captured with Abu Zubaydah (photo, left), a training camp facilitator regarded by the US administration as a senior al-Qaeda operative, in a house raid in Faisalabad, Pakistan, on March 28, 2002. 13 days later, Binyam Mohamed, a British resident, was seized at an airport in Pakistan, and was subsequently accused of having a connection with Abu Zubaydah and other senior figures in al-Qaeda.

As I have explained in previous articles, the extent of the first four men’s involvement with terrorism is largely unknown, as, with the exception of al-Sharbi, who has openly declared his membership of al-Qaeda, they have either spoken little (al-Qahtani), refuted all the allegations against them (Barhoumi) or claimed that Abu Zubaydah and the training camp had nothing to do with al-Qaeda (Muhammed).

Binyam MohamedBinyam Mohamed’s case is more extreme — and more worrying for the administration — as courts in both the UK and the US have been circling ever closer to demanding evidence of his rendition by the CIA to 18 months of torture in Morocco, and his subsequent rendition to a CIA torture prison near Kabul. Such is the government’s concern about this evidence being revealed that last week the Justice Department dropped its long-standing claim that Mohamed was involved in a plot to detonate a “dirty bomb” in a US city (a claim which Mohamed says was based on a false confession extracted from him through torture), but although it’s tempting to conclude that this was the reason that the charges against him were subsequently dropped in his proposed trial by Military Commission, it is, on its own, insufficient to explain why the charges in Vandeveld’s other cases were also abandoned.

The key to this whole story, therefore, is Lt. Col. Vandeveld, even though the Pentagon denied yesterday that his testimony ”had anything to do with the charges being dropped,” and the Associated Press noted that the Pentagon reports “recommending dismissal said only that the new prosecution teams taking over the cases needed more time to evaluate them.” Although the AP also quoted comments made by the Commissions’ new legal adviser, Michael Chapman, in two reports seen by the AP, in which he stated, “I find the prosecution has been unable to complete its preparation for this case,” it’s difficult not to conclude that the Pentagon is terrified that Vandeveld knows something profoundly disturbing about the cases — perhaps to do with the FBI’s long-standing claim that Zubaydah, who was waterboarded in a secret CIA prison, was a minor logistician with a personality disorder, and not an al-Qaeda mastermind, or perhaps to do with suppressed evidence about these men’s actual role, or lack of it, in the “War on Terror.”

We have clearly not heard the end of this story, but although Binyam Mohamed’s civilian lawyer, Clive Stafford Smith of the legal action charity Reprieve, explained that “Military prosecutors have told us that they are going to refile charges in about 30 days,” I cannot understand how the Pentagon proposes to silence Lt. Col. Vandeveld if the cases are revived. Unless, of course, the authorities intend to send him to Guantánamo, to replace the prison’s only other known Christian detainee, a young Iranian named Abdul Majid Mohammed, who was released in October 2006.

As I explained in my book The Guantánamo Files, Mohammed, who was a dirt-poor well-digger, admitted that he occasionally dealt in opium and hashish, and said that he went to Afghanistan in December 2001 to make money out of drugs in order to bribe the Iranian military so that he would not be punished for desertion. In his tribunal at Guantánamo, he denied an allegation that he served as a watchman for the Taliban, explaining that the Taliban had been known to kill Iranians, and that he was particularly at risk because he was a Catholic, and said that he was captured by Northern Alliance soldiers, who decided they could sell him to US forces by pretending he was an Arab.

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 the website of the Future of Freedom Foundation.

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), Salim Hamdan’s sentence signals the end of Guantánamo (August 2008), High Court rules against UK and US in case of Binyam Mohamed (August 2008), Controversy still plagues Guantánamo’s Military Commissions (September 2008), Another Insignificant Afghan Charged (September 2008), Seized at 15, Omar Khadr Turns 22 in Guantánamo (September 2008), Is Khalid Sheikh Mohammed Running the 9/11 Trials? (September 2008), two articles exploring the Commissions’ corrupt command structure (The Dark Heart of the Guantánamo Trials, and New Evidence of Systemic Bias in Guantánamo Trials, October 2008), 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).

Diego Garcia: no return to “torture island”

A Chagos Islander protests outside the High CourtIn the end, then, it was no surprise that the exiled Chagos Islanders’ right to return to their former homes was turned down by the Law Lords in London.

In the 1960s, Diego Garcia, the centerpiece of the Chagos Islands (which are part of the British Overseas Territories) was leased to the United States for use as a strategically important airbase.

The deal had two crucial components: one was a sizeable discount on Polaris, Britain’s nuclear missile programme, and the other was the removal from the islands (to a life of poverty in Mauritius and the Seychelles) of the 2,000 inconvenient British subjects (the “residents”), who traced their ancestry back nearly 200 years to African- and Indian-born labourers from Mauritius, shipped in by French coconut planters in the years before Napoleon’s fall and the transfer of the islands’ sovereignty to the UK.

To be honest, the Chagossians never stood a chance, even though their long legal struggle had secured significant victories. In 2000, when the High Court ruled that the islanders’ expulsion had been illegal, foreign secretary Robin Cook made it clear that he supported their case, but was overruled by Prime Minister Tony Blair, who blocked their return by “orders in council,” an ancient royal prerogative that conveniently bypassed parliament.

In 2006, three judges, declaring that Blair’s actions were illegitimate, upheld the islanders’ right to return, ordering the government to pay their legal costs and attempting to withhold support for an appeal to the House of Lords, and in May 2007 the court of appeal upheld that decision, ruling that the British government’s removal of the men, who, as the Guardian explained, were “tricked out of their homes, encouraged to leave on temporary trips, and not allowed back,” was an “abuse of power.”

Nevertheless, the importance of Diego Garcia to the US government in the years since the 9/11 attacks has ensured that Tony Blair’s relentless support of the Bush administration would trump Robin Cook’s almost forgotten attempts to secure an “ethical” foreign policy for the UK. In the persistent warmongering of the last seven years, Diego Garcia’s strategic importance to the US has been more pronounced than ever.

The first ground troops in the Afghan invasion set off from Diego Garcia, countless bombers have used the base as they have embarked on the missions that have killed so many civilians in Iraq and Afghanistan, and, perhaps most importantly, other planes have arrived bearing precious cargo: allegedly important prisoners in the “War on Terror.” Some, like the Australian David Hicks and Mullah Abdul Salam Zaeef, the Taliban’s ambassador to Pakistan, were interrogated, in the early days of the “War on Terror,” in the bowels of ships moored off the coast of Diego Garcia, and others, it appears, were held in a secret prison on Diego Garcia itself, as I reported in an article this summer.

Set against such an important component in the “War on Terror,” therefore, it was clear that the demands of the Chagossians were never going to succeed. However, what made the verdict particularly galling, beyond the spinelessness of the Lords, was a statement by the current foreign secretary David Miliband — who has yet to explain in a satisfactory manner if the British government actually knew anything about a secret prison on Diego Garcia — in which he noted “the government’s regret at the way the resettlement of the Chagossians was carried out in the 1960s and 1970s and at the hardship that followed for some of them.”

It was a classic New Labour moment: an apparent gesture of contrition from a government that likes to say sorry for historic crimes, but that refuses to do anything about its own.

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 Liberal Conspiracy.

High Court shocked by US obstruction in Guantánamo torture case

Binyam Mohamed“Contempt of court” is the title of an article I wrote for the Guardian’s “Comment is free” section today, in which I looked at the UK High Court’s latest judgment in the case of British resident and Guantánamo prisoner Binyam Mohamed, a victim of “extraordinary rendition” and torture who is engaged in a transatlantic struggle to secure exculpatory evidence proving that his confessions — of involvement with al-Qaeda and a “dirty bomb” plot — were extracted through the use of torture.

On Tuesday I reported how the US Defense Department had dropped Binyam’s proposed trial by Military Commission (and those of four other prisoners) following the resignation of Lt. Col. Darrel Vandeveld, the prosecutor in all five cases, and this latest article brings the British side of the story up to date. It is, of necessity, inconclusive, as the judges are awaiting a ruling on the exculpatory evidence in a US court, but it was clear yesterday that Lord Justice Thomas and Mr. Justice Lloyd Jones were appalled by the lengths to which the US administration seems prepared to go to avoid having to release the evidence.

I intend to write about the judgment in more detail in the near future, but in the meantime I hope that this article captures the essence of yesterday’s ruling.

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.

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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.
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