Archive for October, 2008

In an extraordinary and unprecedented ruling in a US District Court, Judge Ricardo Urbina has ruled that 17 wrongly imprisoned Chinese Muslims at Guantánamo must be allowed entry to the United States. It is, as the media has been reporting, the first time that a US court has directly ordered the release of a prisoner at Guantánamo, and the first time that a foreign national held at the prison has been ordered to be brought to the United States. It is also a resounding blow to the administration’s claims that it can seize anyone it wishes as an “enemy combatant,” and hold them indefinitely, even if there is no evidence whatsoever to support their detention.

The road to Guantánamo

The 17 men — Uighurs (or Uyghurs) from Xinjiang province in the People’s Republic of China (known to the Uighurs as East Turkestan) — have been a problem for the authorities since they were captured nearly seven years ago. Refugees from Chinese oppression, 13 of the men had, by accident or design, made their way to a run-down hamlet in Afghanistan’s Tora Bora mountains, where they spent their time making the place habitable, and indulging in futile dreams of rising up against their historic oppressors. After the US-led invasion of Afghanistan in October 2001, they were targeted in a US bombing raid, in which several of their companions died. The survivors made their way to the Pakistani border, where they were welcomed by villagers, who betrayed them soon after, selling them for a bounty to US forces.

The other four Uighurs were caught up in similarly bleak scenarios. One had fled from death and destruction in Kabul, and was caught as he attempted to cross the Pakistani border, and three were randomly seized in northern Afghanistan and imprisoned with several hundred foreign Taliban fighters in Qala-i-Janghi, a fort run by General Rashid Dostum, one of the leaders of the Northern Alliance. When Alliance troops, with support from US and British Special Forces, began tying the men’s hands behind their backs, some of the Taliban soldiers thought that they were about to be executed, and rose up against their captors. In the ensuing massacre — involving ground troops and bombing raids — the majority of the prisoners were killed, but the Uighurs, along with 84 others, had stayed in the basement, where they survived death by bombing, fire and flooding, and they were part of a group of around 50 survivors who were eventually transferred to Guantánamo.

According to Chris Mackey, the pseudonym of a senior interrogator at the US-run prisons in Kandahar and Bagram, which were used to process the prisoners for Guantánamo, US forces realized almost immediately that the men were not involved with al-Qaeda, but decided to hold them for their supposed intelligence value. In his book The Interrogators, Mackey explained that their arrival triggered a frenzy of activity in the upper echelons of the administration. “The requests for follow-up questions flooded in from Washington,” he wrote, “and every query that came in made it clear that US intelligence was starting from practically zero with this group.”

Twisted tribunals

Transferred to Guantánamo, so that the authorities could continue milking them for information about China, the US authorities nevertheless persisted in identifying the men with al-Qaeda and the Taliban, by claiming that they were associated with the East Turkestan Independence Movement (ETIM), a Uighur resistance group. And when the administration sought support from China for its invasion of Iraq — or, at least, a lack of opposition — it obligingly designated ETIM a terrorist organization, and allowed Chinese interrogators to visit Guantánamo, where, according to several of the prisoners, they received threats that they would be killed if they ever returned to China.

In 2004, when the Supreme Court ruled that the prisoners had habeas corpus rights (in other words, the right to challenge the basis of their detention in a federal court), the administration’s cynical response was to introduce military review boards at Guantánamo — the Combatant Status Review Tribunals (CSRTs) — to assess whether, on capture, the prisoners had been correctly designated as “enemy combatants,” who could be held without charge or trial. This was a hideously unjust process, as the prisoners were not allowed legal representation, were confronted with often spurious allegations (frequently produced through the torture or coercive interrogations of other prisoners), and were also prevented from either seeing or hearing the “classified evidence” against them, which could also have been produced in the same unjust, unprincipled, and often illegal manner.

Lt. Col. Stephen Abraham, a veteran of US intelligence who worked on the tribunals, caused a stir last year when he explained how the information used in 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 how the entire process was, essentially, designed to rubber-stamp the prisoners’ prior designation as “enemy combatants.” As a result, only 38 of the 558 prisoners were cleared for release after the tribunals, and on a few occasions, when the result of the tribunal displeased the administration, further tribunals were held until the desired result was achieved.

This happened to at least two of the Uighurs, Anwar Hassan and Hammad Mohammed, but others were among the lucky 38 who were found to be “No Longer Enemy Combatants” after the CSRTs, and five of these men were finally released in May 2006, when Albania stepped forward as the only country in the world prepared to risk the wrath of China by giving the men a new home — albeit one with no Uighur community, no work prospects, and no chance for them ever to be reunited with their families.

The five Uighurs released in Albania in May 2006. Photo by Paolo Pellegrin/Magnum, for the New York Times.

While these men struggled to survive in Albania, the other Uighurs — who were all eventually cleared for release after further review boards — remained in severe isolation in Guantanamo. Like the majority of other cleared prisoners from human rights-abusing regimes (including Algeria, Libya, Tunisia and Uzbekistan), few of the men were held in Camp 4, the only block that allowed the prisoners to share dorm-like facilities, and the majority continued to be held in maximum security cellblocks for 22 or 23 hours a day, prohibited from meeting each other and with little, if any outside stimulation to break the corrosive monotony of their existence, or their fears that they would never be released or would, in fact, be surreptitiously returned to China.

In March, a letter from Guantánamo by one of the prisoners, Abdulghappar, described the suffering of the men in painful detail. He wrote: “Being away from family, away from our homeland, and also away from the outside world and losing any contact with anyone is not suitable for a human being, as, also, is being forbidden from experiencing natural sunlight and natural air, and being surrounded by a metal box on all sides.” He also reported that one of his compatriots had embarked on a hunger strike in protest, but was being punished for it, and asked, “In the US Constitution, is it a crime for someone to ask to protect his health and to ask for his rights? If it does count as a crime, then what is the difference between the US Constitution and the Communist Constitution?”

Empty evidence

This impasse over the Uighurs’ plight was finally broken in June, after the Supreme Court, dismayed that the habeas rights it had granted the prisoners in 2004 had been removed in subsequent legislation, stamped its authority by ruling that the prisoners had constitutional habeas rights. This unblocked a queue of contested habeas cases that had been on hold pending the Supreme Court’s ruling, and when the first of the cases, Parhat v. Gates, reached the Court of Appeals in Washington, the judges’ explosive ruling led directly to Judge Urbina’s historic ruling on Tuesday.

The three Appeal Court judges — noticeably, two Conservatives and a Liberal — ruled that the CSRT’s decision that Huzaifa Parhat, one of the Uighurs, was an “enemy combatant” was “invalid,” and “directed the government to release or transfer” him (or to hold a new tribunal “consistent with the Court’s opinion”). In a savage denunciation of the CSRT decision, they lambasted the government for the flimsy and unsubstantiated allegations and associations it used to conclude that Parhat was an “enemy combatant,” and in a memorable passage compared the government’s argument that its evidence was reliable because it was mentioned in three different classified documents to a line from a nonsense poem by Lewis Carroll, the author of Alice’s Adventures in Wonderland. As Chief Judge Merrick B. Garland explained, “Lewis Carroll notwithstanding, the fact the government has ’said it thrice’ does not make an allegation true.”

With the Parhat ruling, the government’s attempts to insist that any of the Uighurs were “enemy combatants” were clearly no longer tenable. At a hearing in August, when the idea was first floated that they should be released into the United States, Judge Urbina “hinted,” as the Washington Post described it, “that he was intrigued by the detainees’ proposal,” and stated, “I don’t understand why that would not be a viable option.”

The Justice Department did not respond directly to Judge Urbina’s comments, but its lawyers argued in court that only the President had the authority to allow the men into the United States. However, the Post explained that, although the issues were “complex,” legal scholars “generally disagreed with the government’s position, saying the judge has the ultimate authority” to decide whether to bring the men to the US mainland.

The Justice Department also insisted that the judge was legally prevented from ordering the Uighurs’ entry into the US if they had ties to terrorist groups. As Parhat v. Gates showed, however, neither Huzaifa Parhat nor, by extension, the other 12 men seized with him had ties to terrorist groups, and as the weeks passed the government fatally undermined its own arguments: first it announced, in belated response to the Parhat ruling, that it would not arrange a new trial for Parhat and that it would “serve no purpose” to continue trying to prove that he was an “enemy combatant”; then it did the same for four of his compatriots; and on September 30 it added the last 12 Uighurs to its list of non-combatants.

Welcome to America

As a result, Judge Urbina came to work on Tuesday facing a stark but simple decision: to obey the US Constitution or to turn his back on all he had been brought up to believe in.

He chose to obey the Constitution. Ordering the 17 men to be brought from Guantánamo to the courtroom on Friday, he indicated that he would release them to supporters in the United States — in Florida, and in the Washington D.C. area — who would look after them while the government worked out if it could come up with another solution that did not involve their continued imprisonment.

“I think the moment has arrived for the court to shine the light of constitutionality on the reasons for detention,” Judge Urbina stated, adding, “Because the Constitution prohibits indefinite detentions without cause, the continued detention is unlawful.”

He also explained, as the New York Times described it, that “the men had never fought the United States and were not a security threat,” and impatiently rejected a government request to stay his order to permit an immediate appeal. “All of this means more delay,” he said, “and delay is the name of the game up until this point.” Drawing on the historic right of a judge to demand that a prisoner be brought before him (the core, in fact, of habeas corpus, which means, literally, “you have the body”), he added, “I want to see the individuals.”

When the government suggested that immigration officials might detain the men on arrival in the United States, Judge Urbina snapped, “I do not expect these Uighurs will be molested by any member of the United States government. I’m a federal judge, and I’ve issued an order.” Crucially, as the Times put it, he “underscored the significance of his ruling with repeated references to the constitutional separation of powers and the judiciary’s role,” rejecting arguments put forward by the Justice Department as “assertions of executive power to detain people indefinitely without court review,” which, he said, were “not in keeping with our system of government.”

As the judge rose to leave the bench, the crowded courtroom burst into applause. Members of the Washington D.C. Uighur community, who settled here in the 1980s, when they fled Chinese oppression and were regarded as anti-Communist heroes, had come to lend support, and their offers of help — and those offered by community leaders from Tallahassee, Florida, who have also been involved in plans to welcome the Uighurs — were credited with helping the judge make his decision.

Nury Turkel, a D.C.-based aviation lawyer, explained, “Our community said, ‘We are here to help. Release them into our custody.’ We have people offering them places to stay, English training, employment. We don’t want anyone to think they will be a burden on society.”

Although the government immediately pledged that it would appeal Judge Urbina’s ruling, and the White House’s press secretary, Dana Perino, claimed, somewhat hysterically, that it “could be used as precedent for other detainees held at Guantánamo Bay, including sworn enemies of the United States suspected of planning the attacks of 9/11, who may also seek release into our country,” no decision had been made by the close of business on Wednesday.

As CNN reported, the government had filed an emergency motion, reiterating its argument that “only the executive branch, not the courts, may decide whether to admit an alien into the United States,” and insisting that Judge Urbina’s ruling “threatens serious harm to the interests of the United States and its citizens by mandating that the government release in the nation’s capital 17 individuals who engaged in weapons training at a military training camp.” In response, as the Associated Press reported, the prisoners stated that Judge Urbina had “made the right decision in ordering their release since they are no longer considered enemy combatants,” and their lawyers argued that delaying their release would mean that “the government would prolong by months, and perhaps years, an imprisonment whose legal justification it has conceded away.”

In the hope that justice will prevail, I leave the final word — for now — to Sabin Willett, a Boston-based lawyer who represents some of the Uighur prisoners. Willett and his colleagues have campaigned assiduously for their clients, and after arguing the case before Judge Urbina, he stated, with a dignity sorely lacking from the government’s rhetoric, “In the history of our Republic, the military never imprisoned any man so harshly, and for so long, let alone men who are not the enemy. We have broken faith with the rule of law, and been untrue to the generosity of spirit that is our national character.”

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.

Note: The photo of Judge Urbina is by Charles Dharapak / Associated Press.

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

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), Guantánamo Uyghurs’ resettlement prospects skewered by Justice Department lies (October 2008), A Pastor’s Plea for the Guantánamo Uyghurs (October 2008), Guantánamo: Justice Delayed or Justice Denied? (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.

For a sequence of articles dealing with the Guantánamo habeas cases, see: Guantánamo and the Supreme Court: the most important habeas corpus case in modern history and Guantánamo and the Supreme Court: What Happened? (both December 2007), The Supreme Court’s Guantánamo ruling: what does it mean? (June 2008), What’s Happening with the Guantánamo cases? (July 2008), Government Says Six Years Is Not Long Enough To Prepare Evidence (September 2008), Guilt By Torture: Binyam Mohamed’s Transatlantic Quest for Justice (November 2008), After 7 Years, Judge Orders Release of Guantánamo Kidnap Victims (November 2008), Is Robert Gates Guilty of Perjury in Guantánamo Torture Case? (December 2008), The Top Ten Judges of 2008 (January 2009), No End in Sight for the “Enemy Combatants” of Guantánamo (January 2009), Judge Orders Release of Guantánamo’s Forgotten Child (January 2009), How Cooking For The Taliban Gets You Life In Guantánamo (January 2009), Lies, Damned Lies and Statistics (February 2009), The Nobodies Formerly Known As Enemy Combatants (March 2009), Farce at Guantánamo, as cleared prisoner’s habeas petition is denied (April 2009), Obama’s First 100 Days: A Start On Guantánamo, But Not Enough (May 2009), Judge Condemns “Mosaic” Of Guantánamo Intelligence, And Unreliable Witnesses (May 2009), Pain At Guantánamo And Paralysis In Government (May 2009), Guantánamo: A Prison Built On Lies (May 2009), Free The Guantánamo Uighurs! (May 2009), Guantánamo And The Courts (Part One): Exposing The Bush Administration’s Lies (July 2009), Obama’s Failure To Deliver Justice To The Last Tajik In Guantánamo (July 2009), Obama And The Deadline For Closing Guantánamo: It’s Worse Than You Think (July 2009), How Judge Huvelle Humiliated The Government In Guantánamo Case (Mohamed Jawad, July 2009), As Judge Orders Release Of Tortured Guantánamo Prisoner, Government Refuses To Concede Defeat (Mohamed Jawad, July 2009), Guantánamo As Hotel California: You Can Check Out Any Time You Like, But You Can Never Leave (August 2009), Judge Orders Release From Guantánamo Of Kuwaiti Charity Worker (August 2009). Also see: Justice extends to Bagram, Guantánamo’s Dark Mirror (April 2009), Judge Rules That Afghan “Rendered” To Bagram In 2002 Has No Rights (July 2009).

As the US courts put pressure on the government to justify the long detention of prisoners at Guantánamo without charge or trial (following the Supreme Court’s ruling, in June, that they have constitutional habeas corpus rights, and that the government must justify their imprisonment), two of Guantánamo’s oldest prisoners have been quietly repatriated: 51-year old Sudanese prisoner Mustafa Ibrahim al-Hassan, and Mammar Ameur, a 50-year old refugee from Algeria.

Al-Hassan, a 51-year old father of four — two boys and two girls — was immediately reunited with his family after arriving home. He was held at Guantánamo for six years and two months, even though there was no basis whatsoever for his imprisonment. Like others at Guantánamo, he had traveled to Pakistan in 2002, to study his religion and to seek out business opportunities, but was seized at a checkpoint by opportunistic Pakistani soldiers who were aware that the US authorities were offering bounty rewards for “al-Qaeda and Taliban suspects,” and that foreign visitors were easy prey.

Despite the fact that he had nothing whatsoever to do with al-Qaeda or the Taliban, and was one of many innocent men seized in Pakistan without ever having set foot in Afghanistan, he reported that he was treated brutally in Pakistan custody. “When the investigators were interrogating me”, he said, “when I told them I went there to trade and I went there to study, they hit me, they tortured me. They were torturing us with electricity and they made us walk on sharp objects. They hit us a lot, and because of the pain we just said anything.”

Al-Hassan also suffered horribly in Guantánamo, and was beset by medical problems. For years he complained about stomach pains, but received no treatment. Then, in 2007, medical tests revealed the cause of the pain –- a stomach ulcer that required immediate surgery. This was a source of great concern for him, as he had already had his spleen removed while he was a free man. He also suffered from liver pain in Guantánamo, and although his stomach surgery was successful, a blood test showed that he was also suffering from liver disease. In spite of this disturbing discovery, the authorities would not tell him how advanced his illness was.

Although al-Hassan’s health continued to deteriorate, he remained in Guantánamo, cruelly overlooked, even as his compatriots were freed. Last December, he was left behind after Adel Hamad and Salim Adem, two other innocent Sudanese prisoners seized in Pakistan, were released. Earlier this year, he was told that he would soon be released, but in May, when al-Jazeera journalist Sami al-Haj and two other men — Amir Yacoub al-Amir and Walid Ali — were also released, he was, inexplicably, left behind yet again.

These disappointments, added to his grave illness and the pain of separation from his family, brought Mustafa al-Hassan to the point of despair. Zachary Katznelson, one of his lawyers at the legal action charity Reprieve, recently explained, “Mustafa is a family man, but it is almost impossible to be a father from Guantánamo Bay. Mustafa is not allowed any phone calls. Mail takes months and months to arrive. When it does arrive, it is usually heavily censored, even if it contains only family news. Still, he thinks about his children all the time. He wants to protect his children as much as possible from the reality of having their father locked up so far away.”

“My children should not have to bear these troubles,” he told Katznelson during a visit at Guantánamo. “They should not feel sadness or depression, but should be allowed to be children. But their father has been taken away.” As Katznelson left, he said, “I am innocent. I didn’t do a thing to hurt anyone. All I want is to be home with my children.”

The other released prisoner, Mammar Ameur, had been living in Pakistan since 1990, and had been a registered UN refugee since 1996. Ameur was captured at the same time and in the same building as Adel Hamad, the Sudanese hospital administrator released last December. He and his wife and their four children lived in an apartment downstairs, and Hamad and his family lived upstairs.

In his tribunal at Guantánamo, Ameur specifically refuted an allegation that his house was “a suspected al-Qaeda house.” He pointed out that it was a small, two-roomed apartment near an airport used by the military, in an area that was “full of police stations,” and indicated, with some justification, that this was not an ideal location for al-Qaeda to operate in with any degree of safety.

The allegations against Ameur were as weak as those against Hamad, who was forced to refute groundless allegations that the Saudi charity who owned the hospital he worked for, the World Assembly of Muslim Youth (WAMY), was a front for terrorism. Ameur was accused of being a member of the Algerian Armed Islamic Group (GIA), but he pointed out that he left Algeria before it was founded, serving as a mujahideen fighter against the Communist regime in Afghanistan from 1990-92, and stressed, “I don’t believe in this ideology because it’s against my religion. These people are criminals, like criminals everywhere.”

Unable to come up with any other allegations, the US authorities attempted to implicate him in the purported terrorist activities of the International Islamic Relief Organization (IIRO), another huge Saudi charity that mounts enormous humanitarian aid efforts, on the spurious basis that he knew someone who worked for the organization, and with the World Assembly of Muslim Youth, because of his neighbor. Cutting to the heart of this entire folly, Ameur described what he was told by one of the Pakistanis who arrested him: “I was told by Pakistan intelligence when they captured us that we were innocent … but we have to do something for the Americans. We will have to give you as a gift to protect Pakistan.” He added, however, “Americans themselves have detained me here for nothing; I thought it was a Pakistani mistake, but it was the Americans. They have fabricated allegations as reasons to keep me here.”

It is to be hoped that the Algerian authorities pay attention to Ameur’s story, and do not subject him to a show trial on his return. The pity, of course, is that the United Nations High Commission for Refugees failed to help him, and that he must now endure the dangerous vagaries of the Algerian courts, who may decide to make some kind of pointless example of him.

An even greater pity, of course, is that both he and Mustafa Ibrahim al-Hassan were ever sent to Guantánamo in the first place. Like at least 120 other prisoners seized in Pakistan, their long imprisonment never had anything to do with al-Qaeda or the war in Afghanistan, and was, instead, the direct result of opportunism on the part of the Pakistani authorities and gullibility on the part of the US military and intelligence agencies, who somehow failed to understand that, if you offer substantial bounty payments for “al-Qaeda and Taliban suspects,” you end up with nothing more than innocent men — in this case a UN refugee and an economic migrant — packaged up as Osama bin Laden’s henchmen.

This article draws on passages from my book 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 Antiwar.com, CounterPunch and the Huffington Post.

POSTSCRIPT: According to press reports after his release, Mustafa Ibrahim al-Hassan was actually born in 1967, and is therefore 41 years old.

Note:

The prisoners’ numbers are as follows:

ISN 719: Mustafa Ibrahim al-Hassan
ISN 939: Mammar Ameur

See the following for articles about the 142 prisoners released from Guantánamo from June 2007 to January 2009, and the eleven prisoners released from February to June 2009, whose stories are covered in more detail than is available anywhere else –- either in print or on the Internet –- although many of them, of course, are also covered in The Guantánamo Files: June 2007 –- 2 Tunisians, 4 Yemenis (here, here and here); July 2007 –- 16 Saudis; August 2007 –- 1 Bahraini, 5 Afghans; September 2007 –- 16 Saudis; September 2007 –- 1 Mauritanian; September 2007 –- 1 Libyan, 1 Yemeni, 6 Afghans; November 2007 –- 3 Jordanians, 8 Afghans; November 2007 –- 14 Saudis; December 2007 –- 2 Sudanese; December 2007 –- 13 Afghans (here and here); December 2007 –- 3 British residents; December 2007 –- 10 Saudis; May 2008 –- 3 Sudanese, 1 Moroccan, 5 Afghans (here, here and here); July 2008 –- 2 Algerians; July 2008 –- 1 Qatari, 1 United Arab Emirati, 1 Afghan; August 2008 –- 2 Algerians; September 2008 –- 1 Pakistani, 2 Afghans (here and here); November 2008 –- 1 Kazakh, 1 Somali, 1 Tajik; November 2008 –- 2 Algerians; November 2008 –- 1 Yemeni (Salim Hamdan) repatriated to serve out the last month of his sentence; December 2008 –- 3 Bosnian Algerians; January 2009 –- 1 Afghan, 1 Algerian, 4 Iraqis; February 2009 — 1 British resident (Binyam Mohamed); May 2009 — 1 Bosnian Algerian (Lakhdar Boumediene); June 2009 — 1 Chadian (Mohammed El-Gharani), 4 Uighurs, 1 Iraqi, 3 Saudis (here and here).

Following last month’s analysis of the most popular articles on my website from April to August, I’ve put together the Top 20 Articles based on traffic in September, primarily as a guide for new visitors to the site. As before, this analysis does not take into account the large numbers of readers who have found the articles on other sites on which they’ve been published: primarily, Antiwar.com, AlterNet, CounterPunch and the Huffington Post, but also ZNet, Cageprisoners, ukwatch.net, American Torture, and others who regularly cross-post my articles (including Free Detainees and World Can’t Wait). It also does not include visitor stats for my book The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison, or the first four of 12 additional online chapters of The Guantánamo Files, available here, here, here and here. Note: Figures in brackets indicate the positions last month.

1 (1): Six in Guantánamo Charged with 9/11 Murders: Why Now, and What About the Torture? (February 2008)
This article, which followed the announcement that Khalid Sheikh Mohammed and five others had been put forward for trial by Military Commission at Guantánamo, was a clear winner again — in part because of the anniversary of the 9/11 attacks, but especially, I can confirm, because it is so readily found by Googling “9/11” under “Images,” although I have no idea how many of the 21,000 visitors to this page last month were 9/11 Truthers. For those interested in the truth about the “War on Terror,” the article provides background information about the six men (later reduced to five – see 18, below) and still-relevant doubts about how the US administration proposes to hide the uncomfortable truth that they were all tortured. For links to other articles chronicling my detailed coverage of the Commissions, see the bottom of this article, and for the latest on the 9/11 trials, see here.

2 (3): Sami al-Haj: the banned torture pictures of a journalist in Guantánamo (April 2008)
This article provided a detailed overview of the experiences of al-Jazeera journalist Sami al-Haj, and was published just before he was released from Guantánamo. It features five powerful drawings (based on censored drawings by Sami), which were commissioned by Sami’s lawyers at the British legal action charity Reprieve. An archive of articles about Sami is here.

3 (-): Seized at 15, Omar Khadr Turns 22 in Guantánamo (September 2008)
A lament for Omar Khadr (see 8, below), highlighting the US and Canadian governments’ refusal to abide by an UN resolution on the rights of children in wartime, to which both countries are signatories, and pointing out that Omar has now spent nearly a third of his life in US custody. An archive of articles about Omar is here.

4 (8): A Chinese Muslim’s Desperate Plea from Guantánamo (March 2008)
This article tells their story of the Uyghurs (or Uighurs) at Guantánamo — Chinese Muslims, who had no connection whatsoever with al-Qaeda or the Taliban — and focuses on a poignant letter by Abdulghappar, one of 17 Uyghurs still held because the US does not want to return them to China, but cannot find them a new home. An archive of articles about the Uyghurs is here.

5 (-): In a Legal Otherworld, 9/11 Defendants Cry Torture at Guantánamo (June 2008)
As part of the 9/11 bounce, and the resurgence of interest in the case following September’s pre-trial hearings, this article looked at the arraignment of Khalid Sheikh Mohammed and his co-defendants in June, and, in particular, at Mohammed’s sly mentions of his torture by US forces. An archive of articles about the Military Commissions is here.

6 (5): Torture allegations dog Guantánamo trials (March 2008)
Part of an ongoing series of detailed articles describing the faltering progress of the trials by Military Commission at Guantánamo, this article examined the problems facing the US administration in its attempts to conceal evidence of torture, and focused in particular on misguided attempts to prosecute two juveniles: Omar Khadr and the Afghan prisoner Mohamed Jawad (see 20, below).

7 (12): The US military’s shameless propaganda over Guantánamo’s 9/11 trials (April 2008)
Another article looking at the Military Commissions, this followed the article at 6, above, updating developments in the pre-trial hearings, and exposing Pentagon propaganda regarding the forthcoming 9/11 trials.

8 (6): The trials of Omar Khadr, Guantánamo’s “child soldier” (November 2007)
A detailed account of Omar’s story, from his capture to pre-trial hearings in his Military Commission, including psychological analysis, legal challenges to the Commissions, the shame of putting forward a child for a “war crimes” trial, and the disgraceful suppression of evidence.

9 (-): High Court rules against UK and US in case of Guantánamo torture victim Binyam Mohamed (September 2008)
A detailed analysis of the extraordinary UK High Court victory in the case of British resident Binyam Mohamed, represented by Reprieve’s lawyers, who remains imprisoned at Guantánamo, facing a trial by Military Commission. A victim of “extraordinary rendition” and torture, Binyam is now involved in a Transatlantic tussle over the disclosure of potentially exculpatory evidence in his case. An archive of articles about Binyam is here.

10 (-): A critical overview of Salim Hamdan’s Guantánamo trial and the dubious verdict (August 2008)
A comprehensive account of the first full Military Commission trial at Guantánamo –- of Salim Hamdan, one of Osama bin Laden’s drivers. The article highlights many of the problems that have plagued the Commissions since their conception in November 2001. My views on the subsequent sentence –- and its significance –- are available here.

11 (9): Waterboarding: two questions for Michael Hayden about three “high-value” detainees now in Guantánamo (February 2008)
A rebuke to Michael Hayden, the CIA’s director, after he admitted that three “high-value detainees” in Guantánamo had been waterboarded in secret prisons by the CIA. As the torture debate rolls on, this was the moment — astonishingly — that torture by the United States was openly admitted, and still no one has been called to account.

12 (-): Controversy still plagues Guantánamo’s Military Commissions (September 2008)
This article summarized developments in the Military Commissions in August and early September, focused primarily on rulings by two government-appointed military judges, barring the Commissions’ controversial legal adviser, Brig. Gen. Thomas Hartmann, from involvement in the trials of Mohamed Jawad and Omar Khadr.

13 (-): Guantánamo Bouncy Castle – in America: The Gift Shop (September 2008)
A brief introduction to Philip Toledano’s new online installation, America: The Gift Shop, featuring clever takes on the “War on Terror” imagined as merchandise, this was largely picked up through a link on Cursor.

14 (7): Book review: Road From Ar Ramadi: The Private Rebellion of Staff Sergeant Camilo Mejía (January 2008)
The story of the first deserter from the Iraq war, Camilo Mejía, capturing the camaraderie of the soldiers, the deranged incompetence of many of their leaders, and the encounters with brutality, including his own, that led him to desert. A few other articles about Iraq are here.

15 (-): Guantánamo trials: another insignificant Afghan charged (September 2008)
Another onslaught on the Military Commissions, this article provided a synopsis of the Commissions’ history to date, and looked at the woefully poor evidence against Afghan prisoner Obaidullah, the latest prisoner to be charged.

16 (-): The reviled Military Commissions collapse, and the pressure to close Guantánamo increases, but a new prisoner arrives from Africa (June 2007)
Picked up on as part of the Military Commissions story, this article looked at how two government-appointed military judges temporarily derailed the Commissions last June. It also included information about recent arrivals at Guantánamo (which generally took place while no one was looking). More here.

17 (-): The politics of David Hicks’ release from Guantánamo confirmed: plea bargain arranged between Cheney and Howard (October 2007)
As I have made clear in a recent article examining the poisoned chain of command in the Military Commissions that leads from the Pentagon officials supervising the process (who are, by law, supposed to be impartial) up to the Office of the Vice President, the first clear sign of the politicization of the process was the plea bargain negotiated by Dick Cheney for the release of the Australian David Hicks.

18 (-): Betrayals, backsliding and boycotts: the continuing collapse of Guantánamo’s Military Commissions (May 2008)
Following 6 and 7, above, this article focused on the explosive testimony of the Commissions’ former chief prosecutor, Col. Morris Davis, which led to the first exclusion from a trial of Brig. Gen. Hartmann –- that of Salim Hamdan. The article also covered the dropping of charges, in connection with the 9/11 attacks, against Guantánamo torture victim Mohammed al-Qahtani.

19 (-): Rendered to Egypt for torture, Mohammed Saad Iqbal Madni is released from Guantánamo (September 2008)
The disturbing story of Mohammed Saad Iqbal Madni, seized in Indonesia, tortured in Egypt and then sent to Guantánamo, who was released with little fanfare. The “case” against Madni neatly demonstrates the misplaced zeal of US intelligence in the “War on Terror.”

20 (-): The Afghan teenager put forward for trial by Military Commission at Guantánamo (October 2007)
The article that introduced Mohamed Jawad, the Afghan who was a teenager when seized, after he was put forward for trial by Military Commission last October, looking in detail at his testimony in Guantánamo.

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.

Today, at 5 pm Eastern Time (that’s 10 pm GMT), I’ll be discussing my book The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison on Firedoglake’s Book Salon, which is an online discussion. Just log on at Firedoglake at 5 pm and ask a question or raise a topic for discussion! During the course of the Salon, it’ll be the lead article on the home page.

Stacy Sullivan of Human Rights Watch has kindly agreed to host the Salon, and I look forward to a lively discussion, taking in all matters relating to Guantánamo –- which may include questions about who is still held, those facing trial by Military Commission, and the fate of the prisoners who have been cleared for release but cannot be repatriated because of fears that they will be tortured.

Plus, of course, anything else that readers think is of interest: the silence in the election campaign about Guantánamo and torture, for example, or the crises afflicting the Military Commissions, Dick Cheney and David Addington’s scheme for prosecuting “terror suspects” that is currently unraveling due to an accumulation of evidence of pro-prosecution bias.

POSTSCRIPT: Well, that was a fascinating two hours, even though my fingers barely left the keyboard. Thanks to Stacy for hosting, to Bev from Firedoglake for organizing everything, and to all the people who turned up to take part: Scott Horton, the Talking Dog, and the various bloggers — new to me — who helped keep the discussion going. The whole session is available here.

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.

On Tuesday, I had the pleasure of joining Scott Horton of Antiwar Radio (for the fifth time), for another healthy 45 minutes sounding off about the ills of Guantánamo, the evils of torture and the steady accumulation of chilling evidence about the command structure of the Military Commission trial system invented by Dick Cheney and David Addington in November 2001. The show is available here.

Scott had requested an interview specifically as a follow-up to an article I had written about the pre-trial hearings in the cases of Khalid Sheikh Mohammed and his four alleged co-conspirators in the 9/11 attacks, which he referred to, in his blurb for the show, as “the absolute mockery that Khalid Sheikh Mohammed is making of the ad hoc star chamber commissions.”

Our discussion of how it came to pass that the Commissions have provided Mohammed with a platform that would have been denied him in a US federal court also led to discussions about the alleged mental health problems of Ramzi bin al-Shibh, another of the accused 9/11 co-conspirators, “how the FBI interrogates someone in actual attempts to gain information from them” (as Scott put it), rather than resorting to torture (which is illegal, immoral, and counter-productive), and the case of Ramzi Yousef, Mohammed’s nephew and the original World Trade Center bomber, whose case neatly demonstrates the supremacy of pre-9/11 interrogation tactics.

We also touched on the resignation of prosecutor Lt. Col. Darrel Vandeveld in connection with the suppression of defense evidence in the case of Afghan prisoner Mohamed Jawad, the “reassignment” of Brig. Gen. Thomas Hartmann, the Commission’s legal adviser, and what these developments mean for the Commissions’ tottering legitimacy. Following the chain of command up from the Commissions to the Pentagon, and on to the office of the Vice President, these are themes that I developed into another article on Wednesday, The Dark Heart of the Guantánamo Trials.

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.

Andy Worthington, author of The Guantánamo Files, looks at recent disturbing developments in the Military Commission trial system at Guantánamo, and traces a chain of command that runs from the Commissions’ supposedly impartial “Convening Authority” all the way to the Office of the Vice President.

A prosecutor resigns

On September 24, Col. Lawrence Morris, the chief prosecutor of Guantánamo’s Military Commission trial system, announced that Lt. Col. Darrel Vandeveld, the prosecutor in the case of Mohamed Jawad (an Afghan — and a teenager at the time of his capture — who is accused of throwing a grenade at a jeep containing two US soldiers and an Afghan translator), had asked to quit his assignment before his one-year contract expired.

Although Col. Morris attempted to explain that Lt. Col. Vandeveld was leaving “for personal reasons,” the real reasons were spelled out in a statement issued by Vandeveld (PDF), in which he expressed his frustration and disappointment that “potentially exculpatory evidence” had “not been provided” to Jawad’s defense team:

My ethical qualms about continuing to serve as a prosecutor relate primarily to the procedures for affording defense counsel discovery. I am highly concerned, to the point that I believe I can no longer serve as a prosecutor at the Commissions, about the slipshod, uncertain “procedure” for affording defense counsel discovery. One would have thought … six years since the Commissions had their fitful start, that a functioning law office would have been set up and procedures and policies not only put into effect, but refined.

Instead, what I found, and what I still find, is that discovery in even the simplest of cases is incomplete or unreliable. 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.

Vandeveld also stated, “My view of the case has evolved over time,” and proceeded to explain how he had come to suspect that Jawad, who has always denied throwing the grenade, was duped into joining a militant group, and was drugged before the attack. Michael Berrigan, the Commissions’ deputy chief defense counsel, added that prosecutors also knew that the Afghan Interior Ministry said that two other men had confessed to the same crime, although Vandeveld did not mention this in his statement.

Vandeveld added, “Based on my view of the case, I have advocated a pre-trial agreement under which Mr. Jawad would serve some relatively brief additional period in custody while he receives rehabilitation services and skills that will allow him to reintegrate into either Afghan or Pakistani society.” This, however, was turned down by his commanding officers. He continued: “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.”

On October 26, as Jawad’s defense lawyer, Maj. David Frakt, sought to have the case dismissed due to “gross government misconduct,” Lt. Col. Vandeveld testified for the defense by video link from Washington D.C., explaining, as the Associated Press described it, that “the embattled military tribunal system may not be capable of delivering justice for Jawad or the victims.” “They are not served by having someone who may be innocent be convicted of the crime,” Vandeveld said, reiterating that, even after six years, “it is impossible for anyone in good conscience to stand up and say he or she is provided all the discovery in a case.”

Explaining more of his reasons for quitting his job, Vandeveld told the court that he “reached a turning point” when he chanced upon “key evidence among material scattered throughout the prosecutors’ office.” In another case file, he said he “saw for the first time a statement Jawad made to a military investigator probing prisoner abuse in Afghanistan,” and described it as “an episode that helped convert him from a ‘true believer to someone who felt truly deceived.’” He added that he had “even developed sympathy” for Jawad. “My views changed,” he said. “I am a father, and it’s not an exercise in self-pity to ask oneself how you would feel if your own son was treated in this fashion.”

Lt. Col. Vandeveld’s departure — and his reasons for leaving — are another serious blow to the credibility of the Military Commissions, which were established by Vice President Dick Cheney and his close advisers in November 2001. In June 2006, they were ruled illegal by the US Supreme Court, and although they were revived by Congress later that year in the much-criticized Military Commissions Act, they have never escaped accusations that they are a parody of justice, designed to secure convictions at all costs. Even so, Lt. Col. Vandeveld’s profound criticisms of a system that imprisons juveniles instead of rehabilitating them, and that suppresses evidence relevant to the defense, is just part of a much darker narrative that has been unfolding for the last 18 months.

The role of Brig. Gen. Hartmann

From this perspective, an even more significant event was the Pentagon’s announcement, on September 19, that Brig. Gen. Thomas Hartmann had been removed from his post as legal adviser to the Convening Authority overseeing the Commission process, which, as the Washington Post recently explained, is “a Pentagon office that is required to exercise a neutral role in the commissions, overseeing but not dictating the work of prosecutors and allocating resources to both the prosecution and defense.”

Hartmann, a reservist whose civilian job is chief counsel to the Connecticut-based Mxenergy Holdings Inc., became the legal adviser to the Convening Authority in July 2007, and was also required to “exercise a neutral role.” According to the rules set up for the Commissions, he was “supposed to provide impartial advice” to the Convening Authority (retired judge Susan Crawford), and was also supposed to “make an independent and informed appraisal of the charges and evidence,” to help Crawford “decide whether charges proposed by the prosecutors are sufficient to go to trial.”

However, complaints arose almost as soon as Hartmann was appointed. Just two months after he took the job, the Wall Street Journal revealed that Col. Morris Davis, the Commissions’ chief prosecutor, had filed a formal complaint alleging that he had “overstepped his mandate by interfering directly in cases.” In a letter, Davis suggested that both he and Hartmann should resign “for the good of the process,” adding, “If he believes in military commissions as strongly as I do, then let’s do the right thing and both of us walk away before we do more harm.”

Officials who spoke to the Journal’s Jess Bravin made it clear that Col. Davis was not alone in his complaints. A lawyer close to the process explained that, although Hartmann had complained that, after four years, the prosecution was “still unready to try cases,” and was frustrated with their “can’t do” approach, some of the prosecutors regarded him as “‘micromanaging’ cases he doesn’t fully understand.”

Brig. Gen. Hartmann escaped unscathed from Col. Davis’ accusations — and in fact it was Davis, alone, who resigned on October 4 — and he also escaped censure the following month, when, during a pre-trial hearing for Omar Khadr (the Canadian who was just 15 years old when he was captured in July 2002), Khadr’s defense team announced that they had just been informed of the existence of an eyewitness to the main crime for which Omar was being charged — the death of a US soldier in a grenade attack — whose testimony could exonerate their client. This was extraordinary enough, in and of itself, but what made the story particularly shocking was prosecutor Jeff Groharing’s admission that, as the Los Angeles Times described it, “he had been prohibited from talking about the case” by Brig. Gen. Hartmann.

Hartmann is barred from three trials

Hartmann’s luck finally ran out in May, when, after Col. Davis reprised his complaints in pre-trial hearings for Salim Hamdan (a driver for Osama bin Laden whose trial took place this summer), the judge in Hamdan’s case, Capt. Keith Allred, disqualified him from playing any role in Hamdan’s trial, ruling that he was “too closely allied with the prosecution,” and that “national attention focused on this dispute has seriously called into question the legal adviser’s ability to continue to perform his duties in a neutral and objective manner.” Allred added, “Telling the chief prosecutor (and other prosecutors) that certain types of cases would be tried and that others would not be tried, because of political factors such as whether they would capture the imagination of the American people, be sexy, or involve blood on the hands of the accused, suggests that factors other than those pertaining to the merits of the case were at play.”

In August, Hartmann was excluded from Mohamed Jawad’s trial for the same reasons. Jawad’s lawyer, Maj. David Frakt, told the judge, Col. Stephen Henley, that Hartmann “usurped the role of a prosecutor — rather than acting dispassionately — and pushed to get Jawad charged because the case involved battlefield bloodshed.” Frakt also pointed out that Hartmann had “failed to turn over defense documents” to Susan Crawford, even though these documents “outlined mitigating circumstances that might have altered her decision to endorse the charges.” He also secured testimony from an unlikely ally, Brig. Gen. Zanetti, the deputy commander of Guantánamo’s Joint Task Force, who declared that Hartmann’s demeanor was “abusive, bullying and unprofessional … pretty much across the board,” and described his approach to the Commissions as, “Spray and pray. Charge everybody. Let’s go. Speed, speed, speed.”

Three weeks ago, Hartman was barred for a third time, this time from any post-trial review in Omar Khadr’s case. The judge, Col. Patrick Parrish, had refused a request from Khadr’s lawyers to disqualify Hartmann from involvement in Khadr’s trial, but he barred Hartmann from reviewing it, in the case of a conviction, for the same reasons as those described above.

To add to the criticism, Lt. Col. Vandeveld also tore into Hartmann as he announced his departure from the Commissions. The Los Angeles Times spoke to a Pentagon official, who explained that “Vandeveld had defended Hartmann against the undue-influence allegations in the Jawad case in recent weeks but lost,” and Hartmann “had retaliated against him, causing the prosecutor emotional distress and prompting him to quit and go public with his concerns.”

News of Brig. Gen. Hartmann’s departure was telegraphed three weeks ago, in the wake of the Khadr ruling, when Charles “Cully” Stimson, a former deputy assistant secretary for detainee affairs, stepped forward to suggest that, under a “three strikes and you’re out” philosophy, Hartmann should resign. Stimson explained that he was particularly concerned about challenges and appeals frustrating the forthcoming trial of Khalid Sheikh Mohammed and his co-conspirators in the 9/11 attacks, which Hartmann “helped shepherd.”

Hartmann’s extraordinary promotion

Instead of losing his job, however, Brig. Gen. Hartmann was actually promoted to a new post, as Director of Operations, Planning and Development for the Commissions, responsible, as the Associated Press put it, for “such activities as the hiring of dozens of lawyers and paralegals and ensuring there are adequate resources for the massive legal undertaking.” His deputy, retired Army Col. Michael Chapman, took over as legal adviser.

In the Miami Herald, Carol Rosenberg shrewdly realized that the Pentagon had hoped to bury the news of Hartmann’s reassignment. Explaining that the announcement “ended weeks of speculation on the fate of Hartmann with little fanfare,” she noted that it was issued “on Friday afternoon, a time considered in Washington circles to be when the Defense Department disposes of uncomfortable business.” This was certainly true, but it soon became clear that what was particularly “uncomfortable” about the “business” was not Hartmann’s removal as legal adviser, but the significance of his effective promotion to a new job.

Although the Associated Press reported that the new job “takes Hartmann away from direct supervision of the prosecution,” other observers were not convinced. The Washington Post reported that Human Rights Watch had stated that “instead of trying to clean up house, the Pentagon has now moved a man accused of bullying prosecutors to bring cases to trial and dismissing concerns about evidence being tainted by torture into a position coordinating all matters relating to the commissions.”

In addition, Col. Davis compared the reassignment to that of Russia’s former Premier and his newly promoted protégé, saying, “Elevating his deputy and leaving him in the process, I’m afraid, will be like the Vladimir Putin-Dmitry Medvedev relationship where there’s some real doubt over who pulls the strings.” Speaking to the AP, Davis was even blunter, comparing Hartmann to a “cancer” that had infected the entire Commission process. “The only way to ensure cancer can do no harm,” he said, “is to get it out of the body.”

Noticeably, Hartmann himself confirmed that his reassignment was anything but a punishment. “I feel like it’s an elevation, a promotion, because it recognizes … the exponential growth of the commissions,” the AP reported him as saying, and in the Washington Post he claimed that, although “the recent court rulings forced him and others at the Pentagon to think about his role,” the reason for his new assignment was that “he and his superiors thought that the ‘best way to run the system was to take this more senior leadership position.”

Hartmann continued crowing in comments to the Miami Herald. Likening his new job to that of a “chief executive officer at a 250-staff corporate headquarters,” and adding that he “had no fixed budget,” he declared that his biggest challenge was “to keep the process moving, really intensely.” He added, “Everybody needs to start seeing more trials. I want those courtrooms to be as filled up as they can possibly be — six days a week.”

While this is nothing short of despicable, given the condemnation of Hartmann’s pro-prosecution bias by three government-appointed judges, what no one has yet done in the last two weeks is to look behind the scenes to see what Hartmann’s reassignment reveals about the whole command structure of the Military Commissions. And when this is looked at in detail, Hartmann appears, shockingly, to be little more than a puppet (albeit a willing and hard-working one), whose reassignment is a reward to prevent him from being a sacrifice, which was bestowed upon him by his masters — in the Pentagon, and in the Office of the Vice President –- who have no interest in establishing a fair or just process at Guantánamo.

Who’s pulling the strings?

To understand this story we need to look back, beyond Hartmann’s appointment, to February 2007, when Susan Crawford was appointed as the Commissions’ Convening Authority. In a revelatory article for Harper’s Magazine this February, Scott Horton examined the source of the “cancer” referred to by Col. Davis, and traced it back to a plea bargain struck, for political reasons, in the first trial by Military Commission to go ahead: that of the Australian David Hicks, who admitted to providing material support for terrorism in March 2007, in exchange for a nine-month sentence to be served back in Australia.

What happened, it was later revealed, was that Australian Premier John Howard, who was seeking re-election, had been struggling in the polls, partly because the previously ignored plight of Hicks had become a political hot potato. Anxious to help one of his few stout allies in the “War on Terror,” Dick Cheney paid Howard a quick visit, and on returning home appointed a new Convening Authority for the Military Commissions, retired judge Susan J. Crawford, who, as Horton noted, was “a Cheney protégée,” and was, moreover, “particularly close to Cheney’s chief of staff David Addington,” the prime architect not only of the Commissions, but also of the majority of the administration’s post-9/11 flight from the Geneva Conventions and the UN Convention Against Torture.

With Crawford in place — and assistance from William J. Haynes II, the Pentagon’s General Counsel, who was “known for his tight connections with the Vice President’s Office” — a plea bargain was negotiated with Hicks’ lawyers, and the sidelining of Col. Davis began in earnest.

As Hicks’ trial got underway, Col. Davis “confidently delivered a searing opening promising to make Hicks out as a bloodthirsty figure who had betrayed his homeland and turned to a path of ‘Islamic’ violence,” as Scott Horton described it. He was both humiliated and dismayed when the plea bargain was revealed, as neither he, nor any of the other prosecutors, had been informed of the deal cut by Cheney, Addington, Crawford and Haynes.

This, of course, explains why, although Col. Davis maintained a dignified silence at the time, his frayed patience began to unravel in July, when Brig. Gen. Hartman assumed his new role as Susan Crawford’s legal adviser. Hartmann took charge of the prosecution office while Davis was away, recovering from surgery, and he proceeded to take advantage of Davis’ absence to shake things up as he — and his masters — saw fit.

The most significant date, however, is October 3, the day before Col. Davis’ resignation, as it was then, as Scott Horton described it, that Haynes “crafted and secured Deputy Secretary of Defense Gordon England’s signature on two documents,” which sealed a significant change in the command structure of the Commissions. The first established that Hartmann would report to Paul Ney, the Defense Department’s Deputy General Counsel (Legal Counsel), who in turn reported to Haynes, and the second placed Col. Davis in the chain of command under Hartmann. This second memorandum, as Horton explained, “was particularly necessary as an after-the-fact adjustment to cover Haynes’s manipulation of the Hicks case, establishing a chain-of-command justification for his intervention to direct the plea bargain resolution of the case.”

The former chief prosecutor turns

This, then, was the specific reason why, in a blistering op-ed in the Los Angeles Times two months after his resignation, Col. Davis stated, “I was the chief prosecutor for the military commissions at Guantánamo Bay, Cuba, until Oct. 4, the day I concluded that full, fair and open trials were not possible under the current system. I resigned on that day because I felt that the system had become deeply politicized and that I could no longer do my job effectively or responsibly.”

Although Col. Davis was critical of Brig. Gen. Hartmann, he explained that the particular trigger for his decision was the memo described above, informing him that he had been placed in a chain of command under Haynes. Stating that he resigned “a few hours after” being informed of this, he mentioned that “Haynes was a controversial nominee for a lifetime appointment to the US 4th Circuit Court of Appeals, but his nomination died in January 2007, in part because of his role in authorizing the use of the aggressive interrogation techniques some call torture.” He added, “I had instructed the prosecutors in September 2005 [shortly after taking the job] that we would not offer any evidence derived by waterboarding, one of the aggressive interrogation techniques the administration has sanctioned.”

Haynes, of course, was not only involved in the approval of “enhanced interrogation techniques” for use at Guantánamo; he also helped develop the concept of holding prisoners as “enemy combatants” without charge or trial, and without the protections of the Geneva Conventions, and played a part in the process that led to holding an American citizen, Jose Padilla, as an “enemy combatant” on the US mainland.

Col. Davis was also critical of the role played not only by Hartmann and Haynes, but also by Susan Crawford, and he was dismayed by what he described as Hartmann and Crawford’s desire to conduct trials “behind closed doors.” “Transparency is critical,” he wrote, adding that it was “absolutely critical to the legitimacy of the military commissions that they be conducted in an atmosphere of honesty and impartiality,” and pointing out that “even the most perfect trial in history will be viewed with scepticism if it is conducted behind closed doors.”

Davis also directed a specific attack at Susan Crawford, explaining that “the political appointee known as the ‘convening authority’ — a title with no counterpart in civilian courts — was not living up to that obligation.” As he described it, Crawford, unlike her predecessor Maj. Gen. John Altenburg, whose staff had “kept its distance from the prosecution to preserve its impartiality,” had overstepped her administrative role, and “had her staff assessing evidence before the filing of charges, directing the prosecution’s pre-trial preparation of cases (which began while I was on medical leave), drafting charges against those who were accused and assigning prosecutors to cases.” He continued: “Intermingling convening authority and prosecutor roles perpetuates the perception of a rigged process stacked against the accused.”

In this first, considered outburst, Col. Davis laid out, with admirable clarity, a contaminated chain of command — indifferent to the use of torture by US forces, dedicated to using the poisoned fruit of that torture in trials at Guantánamo, and committed, essentially, to conducting “a rigged process stacked against the accused” — that led from Hartmann to Crawford and Haynes, and from there to Dick Cheney and David Addington.

“No acquittals”

And if further proof were needed that Haynes was the link connecting the supposedly impartial Convening Authority and her legal adviser from the ferociously biased Vice President and his chief of staff, this came in February this year, when Col. Davis told Ross Tuttle of the Nation about a conversation he had with Haynes in August 2005.

“[Haynes] said these trials will be the Nuremberg of our time,” recalled Davis, referring to the Nazi tribunals in 1945, considered the model of procedural rights in the prosecution of war crimes. In response, Davis said he noted that at Nuremberg there had been some acquittals, which had lent great credibility to the proceedings.

“I said to him that if we come up short and there are some acquittals in our cases, it will at least validate the process,” Davis continued. “At which point, [Haynes's] eyes got wide and he said, ‘Wait a minute, we can’t have acquittals. If we’ve been holding these guys for so long, how can we explain letting them get off? We can’t have acquittals. We’ve got to have convictions.’”

Although Haynes announced his sudden retirement shortly after his conversation with Col. Davis was revealed, his place as the intermediary between the Office of Military Commissions and the Vice President’s Office has been seamlessly filled by the Pentagon’s Acting General Counsel, Daniel Dell’Orto.

A “career official at the Pentagon,” as Philippe Sands described him in Vanity Fair, Dell’Orto had accompanied Haynes and then-White House Counsel Alberto Gonzales when they presented the media with a carefully calibrated justification of the administration’s actions in the wake of the Abu Ghraib scandal in June 2004, and in July 2006, after the Supreme Court had struck down the Commissions’ first incarnation as illegal (in Hamdan v. Rumsfeld), he told the Senate Committee on the Judiciary that the Commissions were “an indispensable tool for the dispensation of justice in the chaotic and irregular circumstances of armed conflict.” Ignoring the fact that prisoners seized in wartime should be granted the protections of the Geneva Conventions, he also claimed, “It would greatly impede intelligence collection essential to the war effort to tell detainees before interrogation that they are entitled to legal counsel, that they need not answer questions, and that their answers may be used against them in a criminal trial.”

The dark heart

What I find particularly fascinating, however, is the way in which Susan Crawford has, to date, been shielded from allegations of impropriety by the activities of Brig. Gen. Hartmann. I’m grateful to Scott Horton not only for demolishing notions of Crawford’s independence by pointing out her close ties with Dick Cheney and David Addington (left), but also for including a specific anecdote that demonstrates the strength of her relationship with the Vice President’s chief of staff. “At an event held last year to mark Crawford’s retirement as a military appeals judge,” Horton wrote, “she went out of her way to note the presence of and thank just one person, her friend David Addington.”

In addition, one reporter, William Glaberson, raised pertinent questions about Crawford’s role after Salim Hamdan’s trial this summer. “There were unknowns,” Glaberson wrote in the New York Times. “A Pentagon official, Susan J. Crawford, has broad power over the entire tribunal process, including naming the military officers eligible to hear the case. Her title, convening authority, has no civilian equivalent. Her decisions to grant or deny financing for items like the defense’s expert witness fees or defense lawyers’ transportation were not explained during the trial. She has never granted an interview to a reporter.”

Crawford’s mentor, David Addington, never grants interviews either, but Brig. Gen. Hartmann’s cynical promotion, and Lt. Col. Vandeveld’s resignation, will hopefully bring the crucial role in the Commission process that is played by Susan Crawford, David Addington and Dick Cheney into sharper relief. This is of critical importance, as the deliberate suppression of evidence that is essential to the defense appears to be endemic.

In Mohamed Jawad’s case, this has been highlighted twice — first in August, when Col. Henley not only excluded Hartmann from involvement in Jawad’s case, but also ordered “potentially exculpatory information” to be sent to Susan Crawford, and last Wednesday by Lt. Col. Vandeveld, who, as the Los Angeles Times reported, “said military prosecutors routinely withhold exculpatory evidence from the defense in terrorism cases.”

In August, Henley refused to order the charges against Jawad to be dropped entirely, and, instead, made a request for Crawford to review the charges, indicating that it was up to her to decide whether to “drop or reduce them,” but I believe that this analysis of the Commission’s chain of command, and the exposure of Crawford’s spectral impartiality, casts serious doubt on the trust that Henley placed in Crawford, and indicates that, seven weeks after Henley made his ruling, the Convening Authority either has not received the exculpatory information, or has chosen to ignore it.

We end, therefore, where we began, with Lt. Col. Vandeveld, and his courageous refusal to play out his role in a rigged and one-sided process that would imprison a young Afghan for life by suppressing inconvenient evidence — such as the fact that he may not have actually been responsible for the alleged crime of which he is accused. What happens next is unknown, but it’s certain that lawyers for other prisoners facing trial by Military Commission — Omar Khadr, for example, and British resident Binyam Mohamed, whose lawyers recently took his case to the British High Court in an attempt to secure access to exculpatory evidence — will be doing their damnedest to ensure that they pursue those responsible for rigging the system all the way up the chain of command.

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 AlterNet, Antiwar.com and CounterPunch . An edited version was published on the Huffington Post.

See also the follow-up article, New Evidence of Systemic Bias in Guantánamo Trials. 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), 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).