Archive for November, 2008

The End of Guantánamo

Salim HamdanThe repatriation from Guantánamo of Salim Hamdan, a former driver for Osama bin Laden, to serve out the last month of his sentence for providing material support for terrorism in Yemen, will surely hasten the demise of the prison, as promised by President-Elect Barack Obama, even though the circumstances of Hamdan’s departure were as furtive and secretive as the long years of his detention. Speaking to the Los Angeles Times, his military defense attorney, Navy Lt. Cmdr. Brian Mizer, explained, “Attorneys should have many rights under this system, and so should an accused. But those just don’t happen at Guantánamo. The way things happen in Guantánamo is that your client is whisked away in the middle of the night and you find out about it in the newspapers.”

In August, Hamdan became the first prisoner of the United States to face a war crimes trial since the Second World War, and although opponents of the system of trials by Military Commission (dreamt up by Vice President Dick Cheney and his close advisers in November 2001) maintained their disdain for the entire system, pointing out that, amongst other defects, it allowed the judge to withhold all mention of evidence obtained through coercion, the verdict in the trial was a bitter blow for the government.

Prosecutors had hoped to secure a 30-year sentence for Hamdan, who was accused of conspiracy and providing material support for terrorism, but the military jury dismissed the conspiracy charge, accepting Hamdan’s claim that he was merely a $200-a-month employee, with no inside knowledge of the workings of al-Qaeda, and sentenced him to serve just five and a half years for providing material support for terrorism. When the judge, Navy Capt. Keith Allred, allowed for time served since Hamdan was first charged, it meant that he would be free by the end of the year.

The sentence infuriated the Pentagon, which refused to rule out the possibility that it would continue to hold Hamdan as an “enemy combatant” after his sentence was served, even though this was a concept that most dictatorships would blanch at pursuing. Unwilling to acknowledge that tampering with the results of a military system of its own devising would resemble the tantrum of a small child, the Pentagon then attempted to put pressure on Capt. Allred to reconvene the jury for a new sentence, arguing that he had no right to reduce Hamdan’s sentence for time served, but on October 30, in a terse response, Allred refused to be swayed, and declared, “The prosecution motion to reconsider, reassemble, reinstruct and re-announce a sentence is denied.”

Beyond demonstrating, however belatedly, that the Bush administration is actually capable of playing by its own rules, Hamdan’s release is also enormously significant for around half the remaining prisoners at Guantánamo. Regarded, as CBS News explained on November 14, as “too dangerous to release but not guilty enough to prosecute,” these prisoners — approximately 125 in total — are caught between the 50 or so prisoners who have been cleared for release but cannot be freed because of international treaties preventing the return of foreign nationals to countries where they face the risk of torture, and the 80 or so regarded as significant enough to face a trial by Military Commission.

However, although CBS News alleged that they could not be put forward for prosecution “because the evidence against them can not be used in court,” the reality is that these are prisoners against whom suspicions of militant activity or of sympathy for militant activity are largely unjustifiable because they are derived from the torture, coercion or bribery of other prisoners, or from the torture and coercion of the prisoners themselves.

The history of Guantánamo is permeated with dubious information, masquerading as evidence, which has been used by the administration to justify holding these men, but as is evident from the verifiable stories of numerous released prisoners, from investigations by their lawyers, from explosive statements made by military officers who worked on the tribunals at Guantánamo that were responsible for presenting the information that was used as evidence, from a study of Pentagon documents by the Seton Law School (PDF), and in my own research for my book The Guantánamo Files, the reason that much of this information is inadmissible is not just because of the manner in which it was gathered, but also because so much of it would not stand up to independent scrutiny, as has been demonstrated in the only two cases that have been reviewed by a US court: those of Huzaifa Parhat, cleared of being an “enemy combatant” in June, and five Bosnian Algerians, cleared of the charges against them in a District Court last week.

The conclusion is stark, but as true as it has ever been: hearsay evidence — whether obtained through kindness (better living conditions) or cruelty (the use of “enhanced interrogation techniques”) — is fundamentally unreliable, and at Guantánamo the liberal, even credulous acceptance of hearsay evidence has produced a catalog of farcical allegations that are simply untrue.

What this means, when the window dressing is removed, is that these 125 prisoners are regarded as less significant than Salim Hamdan, who was specifically chosen for a flagship trial because of his known proximity to Osama bin Laden. As a result, when Hamdan’s sentence comes to an end, one month from now, and he is a free man once more, reunited with his wife and children, it will, I believe, be impossible for the administration to justify holding these men any longer, and Barack Obama will, if he wishes, be able to highlight the absurdity of this situation to justify a speedy review leading to their release.

Significantly, over half of these prisoners are also from Yemen. A mixture of innocent men, seized and sold for bounty payments, and lowly foot soldiers for the Taliban, who were recruited to fight an inter-Muslim civil war that began long before the 9/11 attacks, they are among the 100 or so Yemenis at Guantánamo who have watched, over the years, as hundreds of prisoners from other nations were released, and the majority of the 130 Saudis were also repatriated, to be put through a bold rehabilitation program, involving religious reprogramming and psychological and financial support, that met with the approval of the US authorities. With the government of Yemen — a poorer and more fractured country than Saudi Arabia — unable to guarantee that returned prisoners would be put through a similar program, the Yemenis have languished at Guantánamo, despite the similarities, for the most part, between their stories and those of the Saudis.

Hamdan’s release indicates that negotiations between the Yemeni and US governments are now proceeding more fruitfully than before, and suggests that their repatriation — until now a major stumbling block to the closure of Guantánamo — may be only a matter of time.

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 also see my definitive Guantánamo prisoner list, published in March 2009.

As published on Antiwar.com, Global Research, ZNet and AlterNet.

Note: Hamdan’s prisoner number is ISN 149.

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), 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), 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).

And 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); September 2008 –- 1 Sudanese, 1 Algerian; November 2008 –- 1 Kazakh, 1 Somali, 1 Tajik; November 2008 –- 2 Algerians; 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).

After 7 Years, Judge Orders Release of Guantánamo Kidnap Victims

On Thursday, in the US District Court in Washington D.C., Judge Richard Leon, an appointee of President George W. Bush, delivered a major blow to the outgoing administration’s “War on Terror” detention policies by ordering the immediate release of five Algerian-born Bosnian prisoners at Guantánamo, after concluding that the government had provided no credible evidence that, as was alleged, the men intended to travel to Afghanistan to take up arms against US forces.

Lakhdar BoumedieneThe case of the Bosnian Algerians has long been one of the more surreal episodes in Guantánamo’s long and undistinguished history of wanton cruelty and intelligence failures. The story began (PDF) in October 2001, when the US embassy in Sarajevo asked the Bosnian government to arrest six men — Lakhdar Boumediene (photo, left), Mohammed Nechla, Hadj Boudella, Mustafa Ait Idr, Sabir Lahmar and Belkacem Bensayah (all aged between 32 and 40) — because of a suspicion that they were involved in a plot to bomb the US embassy. The Americans’ request took the form of a diplomatic note, which contained no evidence to support the allegation, and the Bosnians refused to comply until the Americans threatened to close their embassy and withdraw peacekeeping forces unless the men were arrested. Human rights activist Srdjan Dizdarevic noted that “the threats from the Americans were enormous. There was a hysteria in their behavior.”

Unwilling to defy the Americans, the Bosnians then arrested the men, but after a three-month investigation, in which they conducted extensive searches of their apartments, their computers and their documents, they found “literally no evidence” to justify the arrests. The Bosnian Supreme Court ordered their release, and, with rumors circulating that the Americans were going to seize them anyway, the Bosnian Human Rights Chamber ruled that they had the right to remain in the country and were not be deported. On the night of January 17, 2002, a huge crowd of supporters gathered outside the prison in Sarajevo to protect them on their release, but riot police dispersed the crowd with tear gas, and at dawn, as the men emerged, they were seized by American agents, hooded, handcuffed and rendered to Guantánamo.

Sabir LahmarAfter they arrived in Guantánamo, the embassy plot was never mentioned. Instead, the six men were subjected to relentless allegations that they were associated with al-Qaeda. Although they had all traveled to Bosnia during the 1992-95 civil war to fight on behalf of the oppressed Muslim population, they were then granted citizenship, married Bosnian women and spent the next six years working with orphans for various Muslim charities, including the Red Crescent — and, in the case of Lahmar (photo, left), an Islamic scholar, the Saudi High Committee for Relief — and maintained that they had no connections whatsoever with terrorism.

When lawyers were finally allowed to meet the men, following the Supreme Court’s ruling, in June 2004, that the Guantánamo prisoners had habeas corpus rights (the right to ask a judge why they were being held), they discovered that a possible source of the allegations against the men was Lahmar’s embittered ex-brother-in-law, who had run a “smear campaign” against him. The only allegation that they were unable to counter — because the US authorities refused to substantiate it — was that Bensayah had made 70 phone calls to Afghanistan after the 9/11 attacks, and was “the top al-Qaeda facilitator” in Bosnia.

On Thursday, seven years and one month after the men were first arrested by the Bosnian authorities, and six years and ten months after they were cleared and then kidnapped by US agents and flown to Guantánamo, Judge Leon finally addressed the allegations against the men in a US courtroom. This unconscionable delay was the result of legislation passed in the wake of the Supreme Court’s habeas verdict in June 2004 (the Detainee Treatment Act of 2005 and the Military Commissions Act of 2006), which purported to strip the prisoners of the habeas rights granted by the Supreme Court. It was not until June this year, when the Supreme Court revisited the prisoners’ rights, and ruled that their habeas rights were constitutional, that the cases of the Bosnian Algerians — and of most of the 255 prisoners still held in Guantánamo — made their way to the District Court.

In his Memorandum Opinion (PDF), issued on November 20, Judge Leon’s crucial verdict concerned the government’s allegation that the men had “planned to travel to Afghanistan to take up arms against US and allied forces,” and that this constituted “support” of al-Qaeda under the definition of an “enemy combatant” that Judge Leon had decided four weeks previously (it is a sign of the chaotic imprecision of the government’s detention policies that no single definition existed until Leon ruled that an “enemy combatant” is someone “who was part of or supporting Taliban or al-Qaeda forces, or associated forces that are engaged in hostilities against the US or its coalition partners. This includes any person who has committed a belligerent act or has directly supported hostilities in aid of enemy armed forces”).

Countering this, the prisoners contended that the government had “not shown by a preponderance of the evidence that any of the petitioners planned to travel to Afghanistan to engage US forces, and, even if the government had shown that petitioners had such a plan, a mere plan, unaccompanied by any concrete acts, is not — as a matter of law — ‘supporting’ al-Qaeda within the meaning of the Court’s definition of ‘enemy combatant.’”

Ruling on behalf of the prisoners, Judge Leon declared that the government had “failed to show by a preponderance of the evidence that any of the petitioners, other than Mr. Bensayah, either had, or committed to, such a plan.” He explained that the government had relied “exclusively on the information contained in a classified document from an unnamed source,” but stressed that this information — “the only evidence in the record directly supporting each detainee’s alleged knowledge of, or commitment to, this supposed plan” — was inadequate, because, although the government had “provided some information about the source’s credibility and reliability,” it had not “provided the Court with enough information to adequately evaluate the credibility and reliability of this source’s information.” As an example, Leon pointed out that “the Court had no knowledge as to the circumstances under which the source obtained the information as to each petitioner’s alleged knowledge and intentions.” He also noted that “the Court was not provided with adequate corroborating evidence that these petitioners knew of and were committed to such a plan,” and added, with a clear note of regret, that “due to the classified nature of government’s evidence, I cannot be more specific about the deficiencies of the government’s case at this time.”

Judge Leon also noted that, although the source’s information was “undoubtedly sufficient for the intelligence purposes for which it was prepared,” it was manifestly “not sufficient” as the basis for detaining the men as “enemy combatants.” Referring to Hamdi v. Rumsfeld (a case dealing with the detention on the US mainland of a US citizen initially held at Guantánamo, which was decided by the Supreme Court in June 2004, at the same time as Rasul v. Bush, which granted the prisoners habeas rights), he concluded, “To allow enemy combatancy to rest on so thin a reed would be inconsistent with this Court’s obligation under the Supreme Court’s decision in Hamdi to protect petitioners from the risk of erroneous detention.”

And then, after sidestepping the question of whether committing to a plan to travel to Afghanistan to fight US forces would be enough to constitute “support” for al-Qaeda, Judge Leon delivered the final blow. Declaring that, “because the government has failed to establish by a preponderance of the evidence the plan that is the exclusive basis for the government’s claim that Messrs. Boumediene, Nechla, Boudella, Ait Idr, and Lahmar are enemy combatants, the Court must, and will, grant their petitions and order their release.”

Belkacem BensayahThere was, however, some consolation for the government, as Judge Leon also ruled that, in Belkacem Bensayah’s case, the government had provided “credible and reliable evidence,” from a number of sources, “linking Mr. Bensayah to al-Qaeda and, more specifically, to a senior al-Qaeda facilitator,” and also stated, “There can be no question that facilitating the travel of others to join the fight against the United States in Afghanistan constitutes direct support to al-Qaeda in furtherance of its objectives and that this amounts to ‘support’ within the meaning of the ‘enemy combatant’ definition governing this case.”

Even so, it would scarcely be possible to underestimate how crucial Judge Leon’s verdict is in discrediting the government’s basis for holding prisoners for nearly seven years without charge or trial, for three particular reasons: it assumes enormous symbolic resonance as the first habeas case to be decided in a courtroom; it comes at a time when Barack Obama’s transition team is beginning to look at a review of the Guantánamo cases; and it was delivered with some stern advice for the government from Judge Leon himself.

Evidently drawing on his disdain for the quality of the classified information used to detain the five men for nearly seven years, Judge Leon implored the Justice Department, the Defense Department and the intelligence agencies not to appeal his verdict, which would “at a minimum, constitute another 18 months to two years of their lives.” He added, “It seems to me that there comes a time when the desire to resolve novel, legal questions and decisions which are not binding on my colleagues pales in comparison to effecting a just result based on the state of the record.”

Mohammed NechlaWhile I will not be content with Judge Leon’s ruling until Lakhdar Boumediene, Mohammed Nechla (photo, left), Hadj Boudella, Mustafa Ait Idr and Sabir Lahmar have actually been released from Guantánamo and are reunited with their wives and children, I am also obliged to draw the attention of readers to the extraordinary brutality to which these men have been subjected in the last six years and ten months, and to ask if their release — when it comes — will be sufficient to eradicate the administration’s crimes.

As three British prisoners — Shafiq Rasul, Asif Iqbal and Rhuhel Ahmed, the so-called “Tipton Three” — explained (PDF) after their release from Guantánamo in 2004, the Bosnian Algerians “were treated particularly badly. They were moved every two hours. They were kept naked in their cells. They were taken to interrogation for hours on end. They were short-shackled for sometimes days on end. They were deprived of their sleep.” All the men were routinely abused, but Mustafa Ait Idr (on the right in the photo below; Hadj Boudella is on the left) seems to have been singled out for particularly harsh punishment.

Hajj Boudella and Mustafa Ait IdrDuring one cell search, “guards stuffed his face into the toilet and repeatedly pressed the flush button,” and on another occasion “a garden hose was pushed into his mouth and the water turned on until [it] came out of his mouth and nose and he couldn’t breathe.” During an assault by the Extreme Reaction Force (ERF), a group of armored guards responsible for dealing brutally with even the most minor infringements of the rules, he had two knuckles broken, and was thrown onto crushed stones while a man jumped on the side of his head with his full weight, which led to him suffering a stroke that left one side of his face paralyzed. Despite requesting a hospital visit after this assault, he did not receive medical treatment for ten days.

Even after the sleep deprivation, isolation and use of painful stress positions came to an end, the men were not free from pointless interrogations and false allegations. At the time I was writing my book, The Guantánamo Files, new allegations had sprung up to plague them, of which the most ludicrous was a claim that Hadj Boudella was with Osama bin Laden during the Tora Bora campaign in Afghanistan in November 2001, when of course, he was in jail in Sarajevo, but the real reason that the men were still in Guantánamo was because of the authorities’ belief that they had ongoing intelligence value.

This was unexpectedly revealed by Condoleezza Rice in March 2005, when she responded to a request for their release from the Bosnian prime minister by stating that it was not possible because “they still possess important intelligence data,” and it was explicitly stated by Mustafa Ait Idr in the military tribunal at Guantánamo in 2004 that concluded that he was being correctly detained as an “enemy combatant.” Ait Idr explained, “The interrogator told me I was there to give up information” about Arabs living in Bosnia, to which he replied, “The story on the outside was I was captured because of terrorism, and now here you are telling me you want me to give up information about rescue organizations and Arabs and how the Arabs are living.”

Judge Leon may have done the right thing, but harvesting false allegations and holding prisoners to mine them for their supposed intelligence value remain an intrinsic part of the regime at Guantánamo, and it is crucial that the government’s supposed evidence is tested as thoroughly in future habeas cases. The prisoners at Guantánamo, who have always sought nothing more than a day in court, deserve nothing less as the seventh anniversary of the opening of Guantánamo approaches.

Andy Worthington is the author of The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison (published by Pluto Press/the University of Michigan Press, and available from Amazon — click on the following for the US and the UK).

As published exclusively on the website of the Future of Freedom Foundation.

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), Guantánamo as Alice in Wonderland (Uighurs’ first court victory, June 2008), What’s Happening with the Guantánamo cases? (July 2008), Government Says Six Years Is Not Long Enough To Prepare Evidence (September 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), Guilt By Torture: Binyam Mohamed’s Transatlantic Quest for Justice (November 2008), Is Robert Gates Guilty of Perjury in Guantánamo Torture Case? (December 2008), A New Year Message to Barack Obama: Free the Guantánamo Uighurs (January 2009), 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), Bad News And Good News For The Guantánamo Uighurs (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).

Bin Laden’s Driver To Be Released From Guantánamo; Government Defeated

Salim HamdanCiting “several US sources,” CNN reports that Salim Hamdan, a former driver for Osama bin Laden, who was convicted in a trial by Military Commission at Guantánamo during the summer for providing material support for terrorism, is to be flown out of Guantánamo on Monday, to serve the rest of his sentence in his native Yemen.

At the end of his trial, a military jury refused to convict Hamdan on the more serious charge of conspiracy, and gave him a five and a half year sentence. His judge, Navy Capt. Keith Allred, then decided to take into the account the time that Hamdan had already served since he was first charged, which meant that he was eligible for release by the end of the year.

Furious at the result, the Defense Department (which had been seeking a 30-year sentence) resorted to claiming that Allred was not entitled to reduce Hamdan’s sentence for time served, and called for the jury to be reconvened, but Allred dismissed these claims in a terse judgment on October 30, when, having “read the filings and legal citations, as well as reviewing the sentencing hearing transcript” (as the Wall Street Journal explained), he declared, simply, “The prosecution motion to reconsider, reassemble, reinstruct and re-announce a sentence is denied.”

If confirmed, Hamdan’s transfer to Yemen to serve the last month of his sentence will bring to an end an ugly rumor that the administration failed to quell at the time of his sentence: the suggestion that, if the authorities so desired, they could continue to hold Hamdan as an “enemy combatant,” even after his sentence was completed. As I noted in a recent article, for the administration even to contemplate doing so, after prosecuting him in a special court of its own devising, was “a notion which would surely shame all but the most hardened dictators.”

And if confirmed, Hamdan’s release also brings the closure of Guantánamo one step closer, as I explained at the time of his sentence:

If one of Osama bin Laden’s drivers gets a sentence of seven years and one month in total (five and a half years plus the 19 months of his imprisonment before he was charged) in a system specifically established by the administration to try and convict “terror suspects,” it is surely now inconceivable that those who planned the whole post-9/11 detention policy can maintain that they can still continue to hold … any of the 130 or so prisoners in Guantánamo who have not been cleared, and who are not scheduled to face a trial by Military Commission, beyond the end of the year.

Andy Worthington is the author of The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison (published by Pluto Press/the University of Michigan Press, and available from Amazon — in the US, the UK and Canada). To receive new articles in your inbox, please subscribe to my RSS feed, and also see my definitive Guantánamo prisoner list, published in March 2009.

As published on the Huffington Post.

See the following for a sequence of articles dealing with the stumbling progress of the Military Commissions: The End of Guantánamo, Torture, Preventive Detention and the Terror Trials at Guantánamo, more 9/11 pre-trial hearings (December), The Dying Days of the Guantánamo Trials (January 2009), a devastating declaration by Mohamed Jawad’s former prosecutor, more on Jawad, Bush Era Ends with Guantánamo Trial Chief’s Torture Confession, Omar Khadr and Mohamed Jawad for the ACLU, and Chaos and Lies: Why Obama Was Right to Halt The Guantánamo Trials.

Trampling The Rights Of The Child: The Treatment Of Juveniles In Guantánamo

A child soldierAccording to the Optional Protocol to the UN Convention on the Rights of the Child (on the involvement of children in armed conflict), to which the United States has been a signatory since January 23, 2003, juvenile prisoners — those under the age of 18 when their alleged crimes took place — “require special protection.” The Optional Protocol specifically recognizes “the special needs of those children who are particularly vulnerable to recruitment or use in hostilities”, and requires its signatories to promote “the physical and psychosocial rehabilitation and social reintegration of children who are victims of armed conflict.”

In January 2003, four doctors in Guantánamo put together a fascinating document, entitled “Recommended Course of Action for Reception and Detention of Individuals Under 18 Years of Age” (PDF). This was clearly influenced by international agreements regarding the distinctions between adult and juvenile prisoners (including the Geneva Conventions, which were, in general, shredded by the administration), and it laid out, in painstaking detail, how juvenile prisoners held at Guantánamo should be treated.

Noting, in the first instance, that “all efforts should be made” to prevent juveniles from being imprisoned at Guantánamo, the doctors proceeded to explain that the exposure of juvenile prisoners to adult prisoners would “have a high likelihood of producing physical, emotional, and psychological damage,” and recommended that they be held separately from the adult population, with “a primary living space with a minimum space of 20ft by 30ft,” and an “open, outside recreation area,” measuring at least 50ft by 50ft, in which they “should be allowed to play” for at least three hours a day.”

The doctors also recommended that juvenile prisoners should be educated for four to six hours a day, and listed a large number of staff — interpreters, social workers, medical and psychiatric professionals, and a nutritionist — who should be assigned or on call to provide assistance to the prisoners. They concluded by stating that all personnel “should refrain from wearing military uniforms and utilize appropriate civilian attire.”

Although the doctors assumed that their “Recommended Course of Action” would become a “SecDef directive” (a directive from Donald Rumsfeld, the Secretary of Defense), all of their recommendations were ignored. The reality for the juveniles held at Guantánamo (twenty-two in total, according to the Pentagon’s own records) was detention in conditions akin to solitary confinement, in cells that measured 8 ft by 6 ft, little opportunity for exercise, and no educational facilities whatsoever. In addition, adult prisoners were held as their neighbors, no staff were provided with expertise in the requirements of juveniles, and their dealings with the prison’s personnel were always with people in military uniform.

As far as the administration was concerned, the age of the Guantánamo prisoners was completely irrelevant, and the premise for this was confirmed by Donald Rumsfeld at a press conference in May 2003, after the story first broke that juveniles were being held at Guantánamo. Rumsfeld stated, “This constant refrain of ‘the juveniles,’ as though there’s a hundred children in there — these are not children,” and General Richard Myers, the chairman of the Joint Chiefs of Staff, added that they “may be juveniles, but they’re not on the Little League team anywhere. They’re on a major league team, and it’s a terrorist team, and they’re in Guantánamo for a very good reason — for our safety, for your safety.”

Omar KhadrBehind this gleefully dismissive rhetoric, the truth was even darker. Guantánamo’s most celebrated juvenile, Omar Khadr, was severely wounded after a firefight in Afghanistan in July 2002, when he was just 15 years old, but on arrival at the US prison at Bagram airbase, he was subjected to chronic abuse. According to his own account, reported by Amnesty International, he “asked for pain medication for his wounds but was refused,” said that “during interrogations a bag was placed over his head and US personnel brought military dogs into the room to frighten him,” and added that he was “not allowed to use the bathroom and was forced to urinate on himself.” Like many other prisoners, he was also hung from his wrists, and explained that “his hands were tied above a door frame and he was forced to stand in this position for hours.” An article in Rolling Stone, in August 2006, added further details, noting that he was “brought into interrogation rooms on stretchers, in great pain,” and was “ordered to clean floors on his hands and knees while his wounds were still wet.”

In Guantánamo, the abuse of Khadr continued. On his arrival, in October 2002, just a few weeks after his 16th birthday, he was immediately subjected to a regime of humiliation, isolation and abuse — including extreme temperature manipulation, forced nudity and sexual humiliation — which had just been introduced in an attempt to increase the meager flow of “actionable intelligence” from the prison. He told his lawyers that he was “short-shackled by his hands and feet to a bolt in the floor and left for five to six hours,” and that “occasionally a US officer would enter the room to laugh at him.” He also said that he was “kept in extremely cold rooms,” “lifted up by the neck while shackled, and then dropped to the floor,” and “beaten by guards.” In one particularly notorious incident, the guards left him short-shackled until he urinated on himself, and then “poured a pine-scented cleaning fluid over him and used him as a ‘human mop’ to clean up the mess.”

Mohammed El-GharaniOmar Khadr was not the only juvenile to receive brutal treatment in US custody. Mohammed El-Gharani, a Chadian national and resident of Saudi Arabia, who was just 14 or 15 years old when he traveled to Pakistan in October 2001 and was seized in a random raid on a mosque, has also been subjected to a regime of “enhanced” techniques to prepare him for interrogation — including prolonged sleep deprivation, prolonged isolation and the use of painful stress positions — and has also been regularly abused by the Initial Reaction Force (IRF), a heavily-armored riot squad used to quell even the most minor infringements of the rules. On one occasion, an IRF team slammed his head into the floor of his cell, breaking one of his teeth, and on another occasion an interrogator stubbed out a cigarette on his arm. As a result of this violence he has become deeply depressed, and has attempted to commit suicide on several occasions.

Another juvenile, Mohamed Jawad, an Afghan who was 16 when he was seized after a grenade attack on a US jeep in December 2002, was also subjected to prolonged sleep deprivation, under the program known euphemistically as the “frequent flier program,” which involved moving prisoners from cell to cell every few hours to prevent them sleeping. In Jawad’s case, this took place 112 times over a two-week period in 2004.

To make matters worse, both Khadr and Jawad have been put forward for trial by Military Commission, the system of trials for “terror suspects” conceived by Vice President Dick Cheney and his close advisers in November 2001, even though, as Khadr’s lawyers pointed out in February,

If jurisdiction is exercised over Mr. Khadr, the military judge will be the first in western history to preside over the trial of alleged war crimes committed by a child. No international criminal tribunal established under the laws of war, from Nuremberg forward, has ever prosecuted former child soldiers as war criminals … A critical component of the response of our nation and the world to the tragedy of the use and abuse of child solders in war by terrorist organizations like al-Qaeda is that post-conflict legal proceedings must pursue the best interest of the victimized child — with the aim of their rehabilitation and reintegration into society, not their imprisonment or execution.

The examples above will hopefully suffice to demonstrate that, in the “War on Terror,” in which a rogue administration, devoted to unfettered executive power, has refused to be bound by the law, those seized and detained as juveniles were doubly unfortunate. After the scandal of the juvenile prisoners was revealed in 2003, the administration made a small concession to its international obligations (and to common decency) by holding three Afghan boys, who were aged between 12 and 14 at the time of their capture, in a separate block, Camp Iguana, where they received treatment that at least approached the requirements laid down by Guantánamo’s scorned doctors.

However, this was only until they were released in January 2004, and for the other 19 juveniles, including five who are still held, the administration’s disdain for the Optional Protocol, with its requirement to rehabilitate children caught up in war, has remained as pronounced as ever. It is one of many crimes that Barack Obama should address as urgently as possible.

Andy Worthington is the author of The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison (published by Pluto Press/the University of Michigan Press, and available from Amazon — in the US, the UK and Canada). To receive new articles in your inbox, please subscribe to my RSS feed, and also see my definitive Guantánamo prisoner list, published in March 2009.

As published exclusively in “Preventing Torture within the Fight against Terrorism,” Volume 2, Issue 6, November 2008, a bi-monthly newsletter published by the International Rehabilitation Council for Torture Victims (IRCT), based in Copenhagen, and the International Federation for Human Rights (FIDH), based in Paris. The newsletter is available to download here. For further information, please email Brandy Bauer, IRCT Senior Communications Officer.

Praise for “The Guantánamo Files” in the Toronto Star

The Guantanamo FilesI’m delighted to note that, in a review of five books about Guantánamo in today’s Toronto Star, Michelle Shephard, indefatigable Guantánamo commentator and author of Guantánamo’s Child: The Untold Story of Omar Khadr, singled out my book The Guantánamo Files for particular praise, describing it as “Perhaps the single most important book to cover the big picture of Guantánamo.”

This is the full review:

“Perhaps the single most important book to cover the big picture of Guantánamo is by British activist and historian Andy Worthington — a guy who has never even been to Guantánamo Bay. Yet he manages to tell the stories of all the men who have been held there in his book The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison (Pluto Press, 338 pages, $30).

“The public knows the plight of detainees such as Hamdan, Canadian Omar Khadr or prize captive Khalid Sheikh Mohammed, the self-professed mastermind of 9/11. But Worthington, relying in a large part on thousands of detainee records the Bush administration was forced to release following an Associated Press lawsuit, manages to give names, voices and stories to the hundreds of others.

“Many inmates turned out to be innocent farmers or Afghani merchants who spent two, three or four years of their lives as detainees before the U.S. administration realized it had made mistakes. Some of those captives are still held in Cuba, and won’t be freed without tough diplomatic negotiating at the highest levels of the incoming Obama administration.

“During the long presidential election campaign, Obama called Gitmo a ‘sad chapter in American history.’ Now we wait to see how he closes the book. ”

The Guantánamo Files is available from Amazon in the US, UK and Canada. To receive new articles in your inbox, please subscribe to my RSS feed, and also see my definitive Guantánamo prisoner list, published in March 2009.

The Pentagon Can’t Count: 22 Juveniles Held at Guantánamo

Omar KhadrOn Sunday, the Pentagon admitted that 12 juveniles — those under the age of 18 at the time their alleged crimes took place — have been held at Guantánamo Bay (as opposed to the figure of eight that was submitted to the UN in May). But a RAW STORY count, drawn from the Pentagon’s own records, reveals that the total number of juveniles held at Guantánamo is at least 22 — nearly double the official Pentagon figure.

In a submission to the 48th Session of the UN Committee on the Rights of the Child (PDF), the Pentagon claimed that it had only held eight juveniles during the life of the Guantánamo Bay prison. It acknowledged that three Afghans under the age of 16 were released in January 2004 (as reported in the New York Times), stated that another three juveniles were repatriated between 2004 and 2006 and claimed that it was only holding two prisoners who were juveniles at the time of their capture: the Canadian Omar Khadr and the Afghan Mohamed Jawad, who are both facing a trial by Military Commission. The much-criticized Commissions were created by the Defense Department as part of the “terror trials” conceived in the wake of the 9/11 attacks.

Mohammed El-GharaniLast week, the Center for the Study of Human Rights in the Americas, based at the University of California, issued a report pointing out that, contrary to the Pentagon’s assertions, at least 12 prisoners were juveniles at the time of their capture. The report correctly stated that, in addition to Omar Khadr and Mohamed Jawad, Mohamed El-Gharani (photo, left), a Saudi resident born to parents from Chad, was still imprisoned. Just 14 years old when he was seized in October 2001, El-Gharani had traveled to Pakistan to study information technology, but had been rounded up in a random raid on a mosque, tortured in Pakistani custody and then held in U.S. detention, first in Afghanistan, and then in Guantánamo.

The report also asserted that the Pentagon had forgotten to include Yasser Talal al-Zahrani. Al-Zahrani, a Saudi national, was 17 when he was seized in Afghanistan, and was one of three prisoners who died in Guantánamo (apparently by committing suicide) in June 2006.

After the report was issued, the Pentagon acknowledged that it had revised its figure from eight to 12, and said it had provided a corrected submission to the United Nations. Navy Cmdr. Jeffrey Gordon claimed that the problems arose because many of the prisoners did not know their dates of birth. But as Almerindo Ojeda, the director of the Center for the Study of Human Rights in the Americas explained, the Center’s report had drawn on the Pentagon’s own sources, specifically the list (PDF) of all the prisoners held at Guantánamo from January 11, 2002 until May 15, 2006, which included their names, nationalities, and dates of birth.

Close scrutiny of this list reveals that the Pentagon will need to revise its figures once more, as, by its own account, a total of 22 prisoners were juveniles at the time of capture. Moreover, contrary to the Pentagon’s account, five of these prisoners are still being held.

This imprecision seems to reflect the Pentagon’s lack of concern for whether prisoners were juvenile at the time of capture. Under the terms of Optional Protocol to the UN Convention on the Rights of the Child (on the involvement of children in armed conflict), the U.S. administration is required to promote “the physical and psychosocial rehabilitation and social reintegration of children who are victims of armed conflict,” but in May 2003, when the story first broke that juvenile prisoners were being held at Guantánamo, defense secretary Donald Rumsfeld told a press conference, “This constant refrain of ‘the juveniles,’ as though there’s a hundred children in there — these are not children.”

Although the three juveniles released in January 2004 were held separately from the adult population and given some educational and recreational opportunities, there is no evidence that the rest of the juveniles held at Guantánamo received any preferential treatment whatsoever. In many cases, they were subjected to the kind of chronic abuse that has earned Guantánamo (and the U.S. prisons in Afghanistan) a reputation as facilities where the use of torture was routine.

The following is a list of the 22 juveniles held at Guantánamo:

Including Omar Khadr, Mohamed Jawad and Mohammed El-Gharani, five prisoners who were juveniles at the time of capture are still being held at Guantánamo. The two not previously mentioned are:

Faris Muslim al-Ansari, a Yemeni, was 17 when he was seized crossing the Pakistani border. In Guantánamo, he explained (PDF, pp. 128-33) that his family had left Yemen when he was a child, and had moved to Afghanistan, where his father had fought the Russians. Denying an allegation that he was a Taliban fighter, he said, “I have never done anything military-related at all, and I don’t know anything about military fighting,” and added that he fled Jalalabad, where he was living with his parents, because “The Americans would target any Arabs, not just al-Qaeda or the Taliban, and the Northern Alliance would kill any Arab they saw.”

Hassan bin Attash, a Saudi of Yemeni descent, is the brother of a “high-value detainee” charged in connection with the 9/11 attacks, and was 16 or 17 when he was seized in Pakistan and transferred to the “Dark Prison,” a CIA prison near Kabul, which resembled a medieval dungeon, but with the addition of painfully loud music which was blasted into the cells 24 hours a day. He was then rendered to Jordan, where proxy torturers “worked on” him for 16 months. In Guantánamo, he told his lawyer that he was hung upside down, beaten and threatened with electric shocks, and added that afterwards he told his interrogators “whatever they wanted to hear.” In January 2004, he was rendered back to Afghanistan, and arrived in Guantánamo in September 2004.

In addition to the three juveniles released in January 2004 (Asadullah, Naqibullah and Mohammed Ismail), the following thirteen prisoners who were juveniles at the time of capture have also been released:

Abdul Qudus, an Afghan, was 14 when he was sold to US forces by opportunistic Afghan soldiers. In Guantánamo, he explained (PDF, pp. 22-7) that he and Mohammed Ismail (one of the three juveniles released in January 2004) had been looking for work, and had ended up spending the night at an Afghan militia post. The following morning, the soldiers wanted to give them weapons and make them fight, and when they refused they were put in a car, delivered to the Americans, and accused of being with the Taliban. He was released in 2005 or 2006.

Shams Ullah, an Afghan, was 15 or 16 he was seized by U.S. forces. In Guantánamo, it was alleged (PDF, pp. 71-4) that he had fired at U.S. and Afghan forces who had stopped him during a patrol. Shams had vague recollections of the events, but his uncle, Bostan Karim, who was seized separately, and is still held in Guantánamo, noted (PDF, pp. 138-50) that he had “a mental problem,” and explained, “When the Americans came to our house there was a Kalashnikov in our house and he knew that the Americans would take this gun. So, he took the gun and went to the mosque. The Americans asked him to stop and he didn’t stop, so they shot him and he became lame.” He was released in 2005 or 2006.

Qari Esmhatulla, an Afghan, was 16 or 17 when Afghan soldiers stopped him as he walked home from visiting a shrine. In Guantánamo, he said (PDF, pp. 1-7) that he “admitted the things that were not true only to make them stop beating me,” and added, “I heard my captors talk about receiving a bounty from American forces for people they captured. They placed a grenade near me so they could have an explanation for arresting me.” He was released in October 2006.

Peta Mohammed, an Afghan, was 17 when he was seized with two of the juvenile prisoners released in January 2004, after a raid by U.S. Special Forces on the compound of a warlord named Samoud. All were treated brutally in a U.S. base in Gardez and at Bagram, where, according to another released prisoner, Habib Rahman (PDF, pp. 84-9), they were abused until they admitted attacking U.S. forces. Mohammed was released in 2005 or 2006.

Yousef al-ShehriYousef and Abdulsalam al-Shehri, two Saudi cousins, were both 16 when they were seized in Afghanistan. Yousef (photo, left) was transported to a prison in Sheberghan run by Afghan warlord General Dostum, where he spent six weeks in horribly overcrowded conditions, surrounded by the dead and dying, before being transferred to U.S. custody. Abdulsalam was sent to Qala-i-Janghi, a fort run by Dostum, where several hundred prisoners were killed in bombing raids and by artillery fire after a number of them staged an uprising. The others, who hid in the basement, survived death by bombs and flooding. When asked at Guantánamo (PDF, pp. 158-66) if he took part in the uprising, Abdulsalam said, “How am I going to fight? With my fingers? I didn’t have a weapon.” He was released in June 2006 and Yousef was released in November 2007.

Abdulrazzaq al-Sharekh, a Saudi, was 17 when he was seized after crossing the Pakistani border from Afghanistan. He had apparently been recruited to help the Taliban fight the Northern Alliance (PDF, pp. 35-42), and was released in September 2007.

Rasul KudayevRasul Kudayev, a former wrestling champion from the Russian territory of Kabardino-Balkaria, north of Georgia, was 17, according to the Pentagon, when he was seized in Afghanistan and imprisoned in Qala-i-Janghi. He was released in March 2004, but was arrested in October 2005, after 300 gunmen attacked government buildings in his hometown, and tortured horribly in police custody, despite protesting his innocence.

Haji Mohammed Ayub, a Uighur (a Muslim from China’s Xinjiang province), had fled to Afghanistan to escape Chinese persecution, and was 17 when the settlement he shared with other Uighurs was bombed by U.S. forces (PDF, pp. 49-55). Seized by Pakistani villagers and sold to U.S. forces, he and four other Uighurs were released in May 2006 and sent to Albania, the only country prepared to accept them, where they have no work opportunities, and no prospect of ever being reunited with their families.

Mohammed OmarTwo Pakistanis, Mohammed Omar (photo, left) and Saji Ur Rahman, were, respectively, 17 and 15 years old when they were seized in Afghanistan and imprisoned in local jails for three months before being handed over (or sold) to U.S. forces. This year, they spoke to Tom Lasseter of McClatchy Newspapers (interviews here and here) as part of a survey of released prisoners, and it appeared that they had been recruited to fight, like thousands of other young Pakistanis, by militants connected to their madrassa (religious school). They were released in 2004.

In addition, two other Pakistani juveniles — Khalil Rahman Hafez and Sultan Ahmad (both 17 at the time of capture) — were released without their stories being told, and the 22nd juvenile prisoner was Yasser Talal al-Zahrani.

It remains plausible that the dates of birth of several other prisoners were recorded incorrectly by the Pentagon, and it should also be noted that Sami al-Haj, the al-Jazeera journalist released in May, told his lawyers at the legal action charity Reprieve that he believed that at least two dozen other prisoners were juveniles when they were seized.

Hundreds of juvenile prisoners are still being held in Afghanistan and Iraq. In its submission to the UN in May, the Pentagon claimed that it had held “approximately 90” in Afghanistan since 2002, and was currently holding “approximately ten,” and had held “approximately 2,400” in Iraq since 2003, and was currently holding “approximately 500.” If Guantánamo is anything to go by, these figures may not be reliable at all.

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 also see my definitive Guantánamo prisoner list, published in March 2009.

As published exclusively on The Raw Story, as “Number of juveniles held at Guantánamo almost twice official Pentagon figure.”

Note: The prisoners’ numbers on the Pentagon’s list, their ISN numbers (the Internment Serial Numbers by which they are known in Guantánamo), their dates of birth as recorded by the Pentagon and their estimated date of capture are as follows:

456. Omar Khadr (ISN 766) Born 19 September 1986, seized 19 July 2002
440. Mohamed Jawad (ISN 900) Born 1985, seized December 2002
174. Mohammed El-Gharani (ISN 269) Born 1986, seized October 2001
75. Faris Muslim al-Ansari (ISN 253) Born 1984, seized December 2001
240. Hassan bin Attash (ISN 1456) Born 1985, seized 11 September 2002
718. Asadullah (ISN 912) Born 1988, seized December 2002
720. Naqibullah (ISN 913) Born 1988, seized December 2002
428. Mohammed Ismail (ISN 930) Born 1984, according to Pentagon list, but DoD admitted on his release that he was under 16 when seized in late 2002
604. Abdul Qudus (ISN 929) Born 1988, seized late 2002
722. Shams Ullah (ISN 783) Born 1986, arrived in Guantánamo October 2002
337. Qari Esmhatulla (ISN 591) Born 1984, seized March 2002
557. Peta Mohammed (ISN 908) Born 1985, seized December 2002
204. Yousef al-Shehri (ISN 114) Born 8 September 1985, seized November 2001
360. Abdulsalam al-Shehri (ISN 132) Born 14 December 1984, seized November 2001
12. Abdulrazzaq al-Sharekh (ISN 67) Born 18 January 1984, seized November 2001
444. Rasul Kudayev (ISN 82) Born 23 January 1984, seized November 2001
276. Haji Mohammed Ayub (ISN 279) Born 15 April 1984, seized December 2001
590. Mohammed Omar (ISN 540) Born 1986, seized December 2001
724. Saji Ur Rahman (ISN 545) Born 1984, seized December 2001 (Rahman said he was 15 when captured)
375. Khalil Rahman Hafez (ISN 301) Born 20 January 1984, seized December 2001
47. Sultan Ahmad (ISN 842) Born 1 November 1984, seized before November 2002
231. Yasser Talal al-Zahrani (ISN 93) Born 22 September 1984, seized November 2001

POSTSCRIPT: At the time of writing, I was unaware that Faris Muslim al-Ansari was released in December 2007. See here.

Closing Guantánamo: Andy Worthington on CounterSpin

The Guantanamo FilesOn Thursday, I had the pleasure of joining Steve Rendall on CounterSpin, the weekly radio show produced by FAIR (Fairness and Accuracy in Reporting), to discuss how much truth there is in recent headlines warning how difficult it will be for Barack Obama to maintain his election promise to close Guantánamo. As Steve explained in the introduction to the show, “According to the New York Times, Newsweek and NPR, for Barack Obama to keep his promise to close the Guantánamo detention camp will be next to impossible, extremely complicated and easier said than done. You could get the idea that some journalists would like to put off resolving the problems created by a Bush policy to isolate detainees and totally deprive them of rights.”

Although there will, of course, be difficulties in closing the prison, I was delighted to have the opportunity to explain how much of the reticence appears to come from a lack of scrutiny of the circumstances of the prisoners’ capture, the lack of any meaningful screening process to determine their status, and the government’s own dubious assertions about their significance, and to look at practical solutions to finding new homes for cleared prisoners who cannot be repatriated, scrapping the Military Commissions and moving those considered truly dangerous to face trials on the US mainland, and releasing those considered “too dangerous to be released, but not guilty enough to prosecute.”

The show is available here, and here as an MP3 (it’s the last eight minutes or so) and for further information about how Guantánamo can be closed see my recent articles here and here, and 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 also see my definitive Guantánamo prisoner list, published in March 2009.

More Dubious Charges in the Guantánamo Trials

According to the latest reports, Barack Obama is already discussing how to close Guantánamo, but in the run-up to the Presidential elections, the Bush administration demonstrated its unwillingness to acknowledge a bitter reality — that its system of trials for “terror suspects” are a failed and thoroughly discredited project — by filing charges against two more prisoners.

Faiz al-Kandari and Fouad al-Rabia are the first two Kuwaitis to be put forward for trial by Military Commission, and are both accused of conspiracy and providing material support for terrorism, but their cases do nothing to suggest that the administration has correctly identified them as terrorists worthy of war crimes trials.

Faiz al-KandariFaiz al-Kandari was seized during the Tora Bora campaign in December 2001, when members of al-Qaeda and the Taliban were holed up in the Afghan mountains near Pakistan, and numerous other civilians were attempting to flee the chaos of war. The Pentagon has alleged that, between August and December 2001, he visited the al-Farouq training camp (the main training camp for Arabs in the years before 9/11) and “provided instruction to al-Qaeda members and trainees,” that he “served as an adviser to Osama bin Laden,” and that he “produced recruitment audio and video tapes which encouraged membership in al-Qaeda and participation in jihad.”

Throughout his imprisonment, al-Kandari has claimed that he traveled to Afghanistan to provide humanitarian aid and was involved in well-digging projects, and has explained that he was in the Tora Bora mountains as part of a general exodus of foreigners. He has maintained his story, even though, over the years, he has faced an even lengthier list of allegations, including claims that he attended two training camps, fought on the Taliban front lines against the Northern Alliance, was with Osama bin Laden in Tora Bora, was a religious leader for al-Qaeda and the Taliban, and was associated with al-Wafa, a Saudi charity that the US authorities regarded as being associated with terrorism.

To this can now be added the allegation that he was involved in producing promotional material for al-Qaeda, but this only adds to the difficulty of reconciling the allegations with the small amount of time that al-Kandari spent in Afghanistan. As he stated during a military review in 2005, “At the end of this exciting story and after all these various accusations, when I spent most of my time alongside bin Laden as his advisor and his religious leader … All this happened in a period of three months, which is the period of time I stayed in Afghanistan? I ask, are these accusations against Faiz or against Superman?”

Fouad al-RabiaIf the charges against Faiz al-Kandari are rather disconcerting, those against Fouad al-Rabia are positively surreal. The businessman and father of four is accused of fundraising for Osama bin Laden in Kuwait and traveling to Afghanistan on several occasions between June and December 2001 “for the purpose of meeting with bin Laden,” and being “in charge of an al-Qaeda supply depot at Tora Bora,” where he “distributed supplies to al-Qaeda fighters.”

The problem with this story is that al-Rabia has not denied meeting bin Laden or being present at Tora Bora, but has, over the years, provided detailed explanations of how both events were entirely innocent. As a good Muslim, he took time out every year to visit those less fortunate than himself and provide humanitarian aid. In 2001, his attention was drawn to Afghanistan, and when he visited in June he met various Taliban officials and was also introduced to Osama bin Laden, who, he said, explained that his mission was to force US troops to leave the Arabian peninsula. He said that he was shocked that, when he pointed out that this might allow Saddam Hussein to invade Kuwait again, “Bin Laden said no problem. Let Saddam come in and then something would happen and control would come back.”

Al-Rabia said that he then returned to Kuwait and gained approval for a humanitarian mission from the Kuwaiti Joint Relief Council, but explained that his return to Afghanistan coincided with the start of the US-led invasion in October 2001. Trapped, like many others, he traveled from city to city in search of an escape route, and eventually, like Faiz al-Kandari, ended up in Jalalabad and joined the exodus into the mountains. Because of his age and experience, he said he was compelled by a senior figure in al-Qaeda to look after the “issue counter,” where supplies — food and blankets, rather than weapons — were being handed out.

Overweight and suffering from a variety of ailments, al-Rabia said that he was finally allowed to leave the mountains, traveling with a Palestinian, Mahrar al-Quwari, who is also held at Guantánamo but has been approved to leave. He added, however, that, after staying with an Afghan family for a week, they were betrayed to the Northern Alliance. The US allies then sold them to other Afghans, who imprisoned them in Kabul before turning them over to US forces.

The betrayal of Fouad al-Rabia at the end of his story strikes me as something that would never have happened had he really been associated with al-Qaeda, and, in conjunction with the charges against Faiz al-Kandari, does nothing to vindicate the much criticized system of trials by Military Commission. As Barack Obama reviews his options, he should honor his pledge to repeal the legislation that established the Commissions. Those prisoners regarded as truly dangerous should be put forward for trials on the US mainland, and the rest should be freed.

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 also see my definitive Guantánamo prisoner list, published in March 2009.

As published exclusively in the Daily Star, Lebanon (as “More Funny Business at Guantánamo”).

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), 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), 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).

How Guantánamo Can Be Closed: More Advice for Barack Obama

Barack ObamaIn a previous article, Andy Worthington, author of The Guantánamo Files, examined the reasons why Barack Obama must stick to his election promise to close the “War on Terror” prison at Guantánamo Bay, focusing on the Bush administration’s callous disregard for domestic and international laws, its pursuit of unfettered executive power, the disturbing effects of its policy of offering bounty payments for al-Qaeda and Taliban suspects, the equally disturbing ramifications of its refusal to screen prisoners according to the Geneva Conventions, and the corrupt tribunals established at Guantánamo to rubber-stamp the prisoners’ designation as “enemy combatants.” This second article examines how Barack Obama’s promise to close the prison can be fulfilled.

The 50 prisoners cleared for release

Of the 255 prisoners currently held at Guantánamo, around 50 have been “approved for transfer” — many for at least three years — but they remain in Guantánamo, mostly imprisoned in conditions that would task the resilience of the most hardened convicted criminals on the US mainland, for two particular reasons. The first is because they are from countries with notoriously poor human rights records (including China, Libya, Syria, Tunisia and Uzbekistan) or unstable regimes like Iraq, and cannot be returned because of international treaties preventing the return of foreign nationals to countries where they face the risk of torture. The second reason is that the administration’s insistence that they are still “enemy combatants” (or are “no longer enemy combatants”) has deterred other countries from accepting them. Even though State Department representatives have been touring the world for the last three years in an attempt to relocate some of these men, the only third country that has been prevailed upon to accept any of them is Albania, which took eight former prisoners in 2006.

I am reliably informed that there are certain career officials in the State Department who have been anxiously awaiting a new administration, in the expectation that it will facilitate greater cooperation between the United States and its allies in Europe, and that some of these countries might now agree to help the United States out of the hole dug by the Bush administration, which regularly made matters worse by criticizing other countries for not helping out. In August 2007, for example, President Bush stated, “I did say it should be a goal of the nation to shut down Guantánamo,” but added, “I also made it clear that part of the delay was the reluctance of some nations to take back some of the people being held there.”

To this end, several prominent human rights and legal organizations — including Amnesty International, Human Rights Watch and the Center for Constitutional Rights — launched a campaign in Berlin on November 10 aimed at persuading European countries to accept cleared prisoners from Guantánamo. This is laudable, as it is clearly intolerable that these men remain imprisoned at Guantánamo (and, as it stands, makes Barack Obama’s mission to close the prison impossible), but if the President-Elect really wants to do the right thing, which will also send out a positive message to the United States’ allies abroad, then he should make the first move by allowing the 17 remaining Uighurs at Guantánamo (Muslims from China’s Xinjiang province, who had fled to Afghanistan to escape Chinese persecution) to settle in the United States.

The Uighurs scored a major victory this summer, after the Supreme Court ruled that the Guantánamo prisoners had constitutional habeas corpus rights. This ruling unlocked hundreds of habeas cases that had stalled in the lower courts following the passage of the Detainee Treatment Act of 2005 and the Military Commissions Act of 2006, which purported to strip the prisoners of the habeas rights granted by the Supreme Court in 2004. When the first of these cases, that of a Uighur prisoner called Huzaifa Parhat, was finally reviewed by the Court of Appeals in Washington D.C., the judges ruled that Parhat’s designation as an “enemy combatant” was invalid, and derided the government’s “evidence” as being akin to a nonsense poem by Lewis Carroll, the author of Alice’s Adventures in Wonderland.

In the months that followed, the cases against all 17 Uighurs 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 his 16 compatriots. In October, when Judge Ricardo Urbina of the US District Court in Washington D.C. held a hearing to determine what should happen to the Uighurs, he declared, “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 men, he ordered their release 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.

This was a proud moment for American justice, but the Uighurs never made it to Washington D.C. or Tallahassee. Instead, the government appealed, the Justice Department wheeled out its old and discredited allegations about the men being connected to terrorism (thereby stymieing attempts to find a third country to take them), and, in a brief filed for hearings next week, asserted that the executive branch “has authority to hold aliens in detention even if they are not considered enemies of the US,” adding, for good measure, “even if the detention is indefinite, it is still lawful.”

This is clearly an intolerable situation. As the only prisoners at Guantánamo who have ever persuaded the Bush administration to drop its claims that they are “enemy combatants,” the Uighurs deserve the lifeline extended to them by Judge Urbina. If the appeal goes against them, the new administration should make their release into the United States a priority.

The 80 prisoners scheduled to face trial by Military Commission

President-Elect Obama has already pledged to repeal the Military Commissions Act, which revived the Bush administration’s deeply flawed “terror trials” after the Supreme Court ruled them illegal in June 2006. This should be a priority after January 20, 2009, and should be accompanied by a thorough and independent review of the cases against the 80 or so prisoners facing (or scheduled to face) a trial by Military Commission.

Omar KhadrWhat’s important to note is that the administration’s figure can be whittled down without any difficulty. Of the 17 prisoners currently facing trial by Military Commission, for example, two — Omar Khadr (photo, left) and Mohamed Jawad — were juveniles when they were seized, and should have been rehabilitated rather then punished under the terms of the Optional Protocol to the UN Convention on the Rights of the Child (on the involvement of children in armed conflict). Moreover, significant doubts have been expressed about the quality of the evidence against them, with legitimate claims made by their military defense attorneys (and, in Jawad’s case, by his former prosecutor, who resigned in September) that evidence vital to the defense was deliberately suppressed. In addition, another three of the 17 are, at best, minor Afghan insurgents who are not accused of killing US forces, and have no connection with al-Qaeda. All these prisoners should be released.

Others who have expressed doubts about the Pentagon’s figures are senior officials who spoke to the New York Times in 2004, when a total of 749 prisoners had been held at Guantánamo. In interviews, the Times explained, “dozens of high-level military, intelligence and law-enforcement officials in the United States, Europe and the Middle East said that contrary to the repeated assertions of senior administration officials, none of the detainees at the United States Naval Base at Guantánamo Bay ranked as leaders or senior operatives of al-Qaeda. They said only a relative handful — some put the number at about a dozen, others more than two dozen — were sworn Qaeda members or other militants able to elucidate the organization’s inner workings.”

To these can be added some, or perhaps the majority of the ten prisoners transferred to Guantánamo from secret CIA prisons in September 2004, the 14 “high-value detainees” — including Khalid Sheikh Mohammed and the other alleged 9/11 conspirators — who were transferred in September 2006, and two of the six prisoners who arrived at Guantánamo between March 2007 and March 2008. These prisoners — somewhere between 35 and 50 in total — are the only ones who should be moved to the US mainland to face trials in federal courtrooms.

There will inevitably be problems — protecting confidential intelligence sources, for example, and, in particular, dealing with evidence obtained through torture — but I can see no other alternative. The trials as they stand are an abomination, permeated with systemic pro-prosecution bias, and capable of handing down a life sentence only in a one-sided show trial (that of Ali Hamza al-Bahlul), which passed largely unnoticed in the week before the Presidential election.

Holding prisoners forever without charge or trial is clearly an untenable solution, as it simply perpetuates the Bush administration’s crimes, and recent suggestions — by both Democrats and Republicans — that another new trial system should be instigated, or that a form of “preventive detention” should be introduced, are just as redolent of the arrogance of the Bush years, and indicate that those proposing them have learned nothing from the abuse of the Constitution over the last seven years.

Salim HamdanIn addition, one extra problem that President Obama may have to deal with as soon as he takes office concerns Salim Hamdan, the driver for Osama bin Laden who was convicted of material support for terrorism (but cleared of conspiracy) in a trial that took place over the summer. Hamdan was sentenced to five-and-a-half years’ imprisonment, but his judge, Navy Capt. Keith Allred, allowed for time served since he was first charged, which means that he will have finished serving his sentence by the end of the year. Allred has refused to bow to pressure from the Defense Department, which attempted to claim that he had no right to allow time served to be taken into account, but the Pentagon may yet assert that it has the right to continue holding Hamdan as an “enemy combatant,” even after his sentence is over.

Like the plight of the Uighurs, this is completely unjustifiable, as Hamdan was convicted by a military jury in a trial of the administration’s own devising, but if the outgoing President insists on holding Hamdan after his sentence is served, President Obama will have to ensure that he is allowed to return to his family in Yemen.

The 125 prisoners who are “too dangerous” to be released

The notion that prisoners can be “too dangerous to release but not guilty enough to prosecute” is another hallmark of the Bush administration’s disdain for the law, but this, too, has been embraced by enthusiasts for a new policy of “preventive detention.” The rationale is, however, also unjustifiable. As I hope to have demonstrated in my previous article, in which I dissected the failures of the interrogators at Guantánamo to distinguish between genuine intelligence and false confessions produced through the use of torture, coercion or bribery, there is no reason to elevate these prisoners to even the lowest rungs of a terrorist hierarchy, and every reason to follow the conclusions reached by senior military and intelligence officials: that no more than 35 to 50 of the prisoners had any meaningful connection with al-Qaeda.

There is, at present, some hope that these prisoners’ habeas reviews will demonstrate the weakness of the government’s evidence against these 125 prisoners. In the case of six Algerian-born Bosnians accused of plotting to blow up the US embassy in Sarajevo, for example, their habeas review began with the government dropping the claim (which, it should be noted, was dismissed by the Bosnian government in January 2002, before the men were kidnapped and sent to Guantánamo), and today (November 20) Judge Richard Leon, a Bush appointee, ordered five of the six to be released “forthwith,” as the government had “failed to show by burden of proof” that they were guilty of the only other charge that remained: an allegation that they had planned to go to Afghanistan to take up arms against US forces. It seems probable that other cases will also see the government dropping its “evidence,” before the judges can conclude, as the appeal court judges did in the case of Huzaifa Parhat, that it is no more reliable than the nonsense poetry of Lewis Carroll, or, as Judge Leon stated as he ordered the Bosnian Algerians to be freed, “To rest on so thin a reed would be inconsistent with this court’s obligation.”

I can only hope that the habeas reviews continue to force the government to drop more of its redundant claims against the prisoners, as my research has illuminated, above all, how the protestations of innocent men — and of Taliban foot soldiers recruited to fight an inter-Muslim civil war that began long before 9/11 and had nothing to do with al-Qaeda — have been overshadowed with disturbing regularity by allegations made by unnamed “senior figures in al-Qaeda,” interrogated in unknown circumstances, or by other prisoners who have made false confessions, often on a colossal scale, in the hope of securing more favorable treatment. Stark examples of both of these practices are available here and here, but many more are reported in The Guantánamo Files, and what they demonstrate, above all, is how the entire “War on Terror” detention program, as executed at Guantánamo, was designed to do away with the presumption of innocence, and was, instead, focused solely on confirming preordained guilt.

The 125 prisoners in question are from a variety of nations — a few dozen of the remaining Afghans, several dozen more from the countries of North Africa and the Gulf — but up to half are from the largest remaining group at Guantánamo: the Yemenis. Unlike the 130 Saudis, who were mostly released from Guantánamo in 2006 and 2007, after the Saudi government instigated a rehabilitation program (involving religious retraining and support in finding wives and employment), which met with the approval of the US authorities, only 13 of the 108 Yemenis in Guantánamo have been released, even though they, like the Saudis, were, for the most part, a mixture of Taliban foot soldiers and humanitarian aid workers and missionaries, caught up in an undiscriminating dragnet.

The problem, as has been repeatedly stated, is that the US authorities claim that they are not convinced that the Yemeni government will be able to guarantee that the men will not continue to pose a threat to the United States. For their part, as the Houston Chronicle reported on Saturday, “Yemeni officials say they’re ready to try many of the men and imprison those who are convicted, but they complain that US officials refuse to share evidence with them.” The Yemeni foreign minister, Abu Bakr al-Kirbi, explained, “Based on the information we have, some of the Guantánamo prisoners have nothing to do with terrorism. We cannot imprison them without a court sentence. We cannot do something that is against our laws. We are accountable to our own public.”

Al-Kirbi is undoubtedly right that some of the men pose no threat to anybody, and cannot be detained without reason, but to break the deadlock both sides need to sit down and hammer out a deal — perhaps one that involves judge Hamoud Al-Hitar, the head of Yemen’s Dialogue Committee, which, as the Yemen Times reported last December, “aims at steering extremists away from violence through a number of dialogue sessions.” Al-Hitar’s program is widely credited as the inspiration for the Saudis’ successful rehabilitation program, and it would surely, therefore, make sense for the US and Yemeni governments to work out how to come up with a suitable program for Yemen that will enable Barack Obama to close Guantánamo.

Then we can move on to what lies behind Guantánamo: the unaccountable prisons in Afghanistan and Iraq, which hold an estimated 39,000 prisoners, and the unknown number of prisoners still held in secret CIA custody, or rendered to torture in third countries, who constitute “America’s Disappeared.”

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 also see my definitive Guantánamo prisoner list, published in March 2009.

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

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), 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), 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).

And see here for an article discussing the presidential orders issued by Barack Obama in his first week in office, closing Guantánamo and banning torture.

20 Reasons To Shut Down The Guantánamo Trials

As Barack Obama and his transition team begin looking at ways to fulfill the President-Elect’s pledge to close Guantánamo, Andy Worthington, author of The Guantánamo Files, recalls that Barack Obama also promised to “reject the Military Commissions Act” (the legislation that revived the system of “terror trials” conjured up in the Office of Vice President Dick Cheney in November 2001), and provides 20 reasons why the Military Commissions should be scrapped.

David Hicks1. David Hicks. The case of David Hicks, the so-called “Australian Taliban,” was the first scheduled trial following the revival of the Commissions in the Military Commissions Act in the fall of 2006, after their first incarnation was struck down as illegal by the US Supreme Court.

His case is enormously significant, as I explained in a recent article, The Dark Heart of the Guantánamo Trials, because it involved a plea bargain negotiated by Susan Crawford, the Commissions’ newly-appointed Convening Authority (the overseer of the trial system), which completely sidelined the prosecutors — and in particular, the chief prosecutor, Col. Morris Davis, who later resigned, citing political interference in the process and a desire on the part of those directing the trials to allow the use of evidence obtained through torture. Crawford, a protégée of Dick Cheney and a close friend of Cheney’s chief of staff, David Addington (the prime architect of the administration’s post-9/11 flight from the law) negotiated the plea in March 2007 as a favor to Australian Premier John Howard, following a visit from Cheney. In exchange for admitting to providing “material support for terrorism,” and dropping well-documented claims that he was abused in US custody, Hicks received a nine-month sentence, most of which was served in Australia.

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Salim Hamdan2. Salim Hamdan. One of a pool of seven drivers for Osama bin Laden, the Yemeni — a father with two young daughters — was, like many of the prisoners, charged with conspiracy and providing material support for terrorism. After a two-week trial this summer, which was the Commissions’ first real test, a military jury cleared him of the conspiracy charge and gave him a five-and-a-half year sentence on the lesser charge of supporting terrorism. The judge, Capt. Keith Allred, then allowed credit for time served, which means that Hamdan’s sentence will be completed by the end of the year.

Critics of the system refused to accept the trial as legitimate (in particular, because the gray area regarding the admissibility of coerced evidence was never adequately addressed), but were delighted with the result. The government, however, which had been pressing for a 30-year sentence, was livid. After noting that Hamdan could still be held as an “enemy combatant” after his sentence is over (a notion which would surely shame all but the most hardened dictators), the Defense Department resorted to claiming that Allred was not entitled to reduce Hamdan’s sentence for time served, and called for the jury to be reconvened. Allred dismissed these claims in a terse judgment on October 30, when, having “read the filings and legal citations, as well as reviewing the sentencing hearing transcript” (as the Wall Street Journal explained), he declared, simply, “The prosecution motion to reconsider, reassemble, reinstruct and re-announce a sentence is denied.”

Ali Hamza al-Bahlul in 20043. Ali Hamza al-Bahlul. Al-Bahlul’s trial — the second US “war crimes” trial since the Second World War — took place at Guantánamo in the week before the Presidential election. Unlike Salim Hamdan’s trial, however, in which justice could at least be seen to be done (even if it was refracted through a dark mirror of unspoken abuse), al-Bahlul, a Yemeni accused of producing videos for al-Qaeda and serving as a bodyguard for Osama bin Laden, refused to mount a defense, and his lawyer, Maj. David Frakt, respected his client’s wishes, and also refused to speak. As I pointed out in a recent article, Frakt was obliged to remain silent because of issues of compelled representation, which could lead to lawyers being punished in the real world outside Guantánamo for representing an unwilling client. As a result, al-Bahlul’s trial highlighted another grave problem with the Commissions: if a prisoner wished to represent himself, this was acceptable, but if he boycotted the proceedings entirely, his trial proceeded as a one-sided show trial.

On November 3, the military jury gave al-Bahlul a life sentence, but without a case for the defense, the administration was allowed to sidestep the question of al-Bahlul’s alleged torture in US custody, and was also allowed to ignore Maj. Frakt’s assertion, made before the trial began, that al-Bahlul “was not an operational combatant,” “had no role in planning terrorist activities,” and “did not engage in terrorist activities.” As I wrote at the time, “The administration will crow that it has achieved a significant victory in the ‘War on Terror,’ but al-Bahlul’s guilt should have been confirmed in a federal courtroom, where he would not have been able to score a propaganda victory for al-Qaeda by being convicted in a one-sided trial.”

Omar Khadr4. Omar Khadr. A Canadian, Omar Khadr was just 15 years old when he was captured after a firefight in Afghanistan in July 2002, and, as a juvenile, should therefore have been rehabilitated rather then punished, according to the Optional Protocol to the UN Convention on the Rights of the Child (on the involvement of children in armed conflict). He is accused of throwing a grenade that killed a US soldier, although the disclosure of previously suppressed evidence in the last year indicates that another man threw the grenade. Because of obstruction by the prosecution, Khadr’s trial has been repeatedly delayed, and is now scheduled to begin on January 26, 2009, five days into the new US administration.

At the time of writing, there are hopes that the Canadian government will be obliged to demand his return to Canada, after it was revealed, in a Canadian court, that the government knew about his torture in Guantánamo and that their repeated claims that they had received assurances from the US authorities that he was being treated humanely were untrue. His civilian lawyer, Nate Whitling, told the court, “I don’t want to use the word ‘lie,’ but it was a demonstratively false statement that was made to the Canadian public.”

5. Mohamed Jawad. An Afghan, who was just 16 or 17 years old at the time of his capture, Jawad is accused of throwing a grenade that wounded two US soldiers and an Afghan interpreter in December 2002, although he has always claimed that Afghan police obtained his “confession” through torture.

In the last month, Jawad’s case has threatened the legitimacy of the entire Commission process, after his prosecutor, Lt. Col. Darrel Vandeveld, resigned. He explained that the system was designed to prevent the disclosure of evidence essential to the defense, and described how evidence proving that Jawad was a juvenile, that he was tricked into joining an insurgent group and was drugged before the attack, and that two other men had confessed to the crime, had been deliberately suppressed. Terrified that Vandeveld has more damaging revelations, the administration recently dropped the charges against five other prisoners — Noor Uthman Muhammed, Ghassan al-Sharbi, Jabran al-Qahtani, Sufyian Barhoumi and Binyam Mohamed — for whom Vandeveld was the prosecutor. The government added that it intended to refile charges against the five men in November, but did not explain how it intended to silence Vandeveld indefinitely.

Abu ZubaydahAll five were reportedly connected with Abu Zubaydah (photo, left), a training camp facilitator who is regarded by the US administration as a senior al-Qaeda operative, even though the FBI regards him only as a minor logistician with a personality disorder. The government has not explained why Zubaydah has not been charged, but in May it charged Muhammed, a Sudanese prisoner, with serving as the deputy emir and a weapons instructor at the Khaldan training camp in Afghanistan, even though Muhammed has insisted that Khaldan had nothing to do with either al-Qaeda or the Taliban. In June, al-Sharbi and al-Qahtani (both Saudis) and Barhoumi (an Algerian) were charged with various plots involving explosives, and Binyam Mohamed, a British resident whose lawyers have been engaged in a transatlantic struggle to secure evidence relating to the two years he spent being tortured in Morocco and in a secret CIA prison in Afghanistan, was charged with plotting to detonate a “dirty bomb” in a US city (the same non-existent plot that was used to hold US citizen Jose Padilla for three and a half years as an “enemy combatant” on the US mainland).

At the time of writing, the judge in Jawad’s case, Army Col. Stephen Henley, moved one step closer to dismissing the case by ruling that his “confession,” obtained in Afghan custody, was inadmissible, because it had been extracted through the use of torture (confirming Jawad’s repeated claims). As the Miami Herald reported, Henley found that there was “reason to believe Jawad was under the influence of drugs at the time of his capture and forced confession,” and also “accepted the accused’s account of how he was threatened, while armed senior Afghan officials allied with US forces watched his interrogation.” He stated that he believed Jawad’s account of an interrogator telling him, “You will be killed if you do not confess to the grenade attack. We will arrest your family and kill them if you do not confess.” He also made a point of stating that he was accepting Jawad’s account because the government had failed to provide “timely disclosure of evidence” for his trial, which is scheduled to begin on January 5, 2009.

Noting that Henley was explicitly rejecting the administration’s notorious attempts to redefine torture, Maj. David Frakt, Jawad’s tenacious defense attorney, congratulated the judge for “adopting a traditional legal definition of torture, rather than making one up,” and Lt. Col. Vandeveld also spoke out, telling the Associated Press that Jawad’s “confession” to Afghan officials was “among the most important evidence for his upcoming war crimes trial,” and adding, “To me, the case is not only eviscerated, it is now impossible to prosecute with any credibility.”

6. Ahmed al-Darbi. A Saudi, who is accused of plotting attacks on shipping for al-Qaeda, al-Darbi was kidnapped in Azerbaijan and rendered to Guantánamo in 2002, via the US prison at Bagram airbase, where he has claimed that he was severely abused. At his arraignment in April, he refused to take part in the Commissions, prompting his military-appointed lawyer, Army Lt. Col. Bryan Broyles, to comment that, in order to comply with established legal rules that prevent lawyers from representing clients who refuse their services (as in Ali Hamza al-Bahlul’s case), his role in al-Darbi’s forthcoming trial was now equivalent to that of a “potted plant.”

At a short pre-trial hearing in September, Broyles announced his resignation from the case, reiterating his complaints about compelled representation, and explaining that al-Darbi never came to trust him because “the attorney-client relationship is close to impossible to establish” in a system in which a lawyer is imposed on a prisoner, and that it was “compounded by the fact that counsel wear the same uniform as [the prisoner’s] interrogators.” As a parting shot, Broyles was asked what he thought about the chief prosecutor’s claim that al-Darbi’s trial would be completed before the new administration takes office. “It’s not about timing,” he said, “it’s about doing justice.” While a new defense team was being arranged, al-Darbi was represented by his civilian lawyer, Ramzi Kassem.

Ibrahim al-Qosi7. Ibrahim al-Qosi. A Sudanese, who is accused of being a bodyguard and a driver for Osama bin Laden, and a quartermaster for al-Qaeda, al-Qosi was previously charged in the Commissions’ first aborted incarnation. In April, he also boycotted his pre-trial hearing, telling the judge, “I do not recognize the justice or the lawfulness of this court,” and adding, “What is happening in your courts is in fact a sham, which aims solely that the cases move at the pace of a turtle in order to gain some time to keep us in these boxes without any human or legal rights.” To the best of my knowledge, no date has yet been set for al-Qosi’s trial, even though it was one of the cases that the chief prosecutor, Col. Lawrence Morris, wanted to see completed before the new administration takes office in January 2009.

Khalid Sheikh Mohammed8. Khalid Sheikh Mohammed (KSM). Reportedly the third most important figure in al-Qaeda, after Osama bin Laden and Ayman al-Zawahiri, KSM, who was captured in Pakistan in March 2003, and the four men described below are among the 14 “high-value detainees” transferred to Guantánamo in September 2006 after being held for years in secret prisons run by the CIA. KSM confessed in his military tribunal in Guantánamo last year (convened to confirm that he was an “enemy combatant” who could be tried by Military Commission) that he was “responsible for the 9/11 operation, from A to Z.” He is one of three “high-value detainees” whom CIA director Michael Hayden admitted had been subjected to waterboarding (a torture technique that involves controlled drowning) while held in CIA custody.

KSM and his co-defendants were charged in February, and arraigned in June. In September, at a pre-trial hearing, KSM dominated the proceedings. Taking advantage of the fact that the Military Commissions Act allows prisoners to represent themselves (but only if they are willing to mount a defense, as revealed in the case of Ali Hamza al-Bahlul), he cheekily quizzed the judge, Marine Col. Ralph Kohlmann, about his beliefs, as part of the voir dire process (which allows lawyers to question the judge’s impartiality), and enjoyed a media platform which, ironically, would not have been available to him if he was being prosecuted in a courtroom on the US mainland.

Ramzi bin al-Shibh9. Ramzi bin al-Shibh. A Yemeni, and reportedly a friend of the 9/11 hijackers, who helped coordinate the attacks with KSM after he was unable to enter the United States to train as a pilot for the operation, bin al-Shibh was captured in Pakistan in September 2002. After being held in secret CIA custody for four years, he refused to take part in his tribunal at Guantánamo, and only finally spoke at the pre-trial hearing in September. His lawyers, whom he is seeking to dismiss, are engaged in a legal tussle to secure an independent psychiatric evaluation of bin al-Shibh, who is receiving psychotropic drugs that are typically used for schizophrenia. At the hearing in September, Col. Kohlmann refused to allow the lawyers to visit Camp 7, the secret prison within Guantánamo where the “high-value detainees” are held, but on October 27 he relented, ruling that the lawyers should be allowed to visit the block to “inspect the defendant’s conditions of confinement as part of an inquiry into his mental health.”

Mustafa al-Hawsawi10. Mustafa al-Hawsawi. A Saudi, who was captured with KSM, al-Hawsawi is accused of sourcing funding for the 9/11 attacks from Dubai. In his tribunal at Guantánamo, he admitted providing support for jihadists, including transferring money for some of the 9/11 hijackers, although he denied that he was a member of al-Qaeda. At the arraignment in June, it appeared that KSM and some of al-Hawsawi’s other co-defendants put pressure on him to refuse the services of his lawyer, Army Maj. Jon Jackson, but at the pre-trial hearing in September Jackson was still arguing his client’s corner. Explaining that his client “doesn’t understand about a quarter of the court proceedings because of incomprehensible interpretation,” he complained that the government had opposed a request for “transcripts of each day’s proceedings to be made available in English and Arabic so that they can go over each day’s events with their clients and make corrections for the record,” adding, “I could not believe my government would not provide transcripts in the native language of the accused that it wants to put to death.”

Ali Abdul Aziz Ali11. Ali Abdul Aziz Ali. Also known as Ammar al-Baluchi, he is a nephew of KSM, and was captured in Pakistan with Walid bin Attash (see below) in April 2003. In his tribunal at Guantánamo last year, he admitted transferring money on behalf of some of the 9/11 hijackers, but insisted that he was a legitimate businessman, who regularly transferred money for Arabs, without knowing what it would be used for. At the arraignment and the pre-trial hearing, he has spoken little, but has demonstrated a firm command of English, and a desire to highlight the inadequacies of the system and his torture at the hands of US forces. At the arraignment, he responded to Col. Kohlmann’s assurance of his right to legal assistance by stating, “Everything that has happened here is unfair and unjust,” and added, referring specifically to the offer of free legal representation, “Since the first time I was arrested, I might have appreciated that. The government is talking about lawyers free of charge. The government also tortured me free of charge all these years.”

Walid bin Attash12. Walid bin Attash. A Saudi, who lost a leg in Afghanistan before 9/11, bin Attash stated in his tribunal at Guantánamo that he was the link between Osama bin Laden and the Nairobi cell during al-Qaeda’s African embassy bombings in 1998, and admitted that he played a major part in the bombing of the USS Cole in 2000, explaining that he “put together the plan for the operation for a year and a half,” and that he bought the explosives and the boat, and recruited the bombers. Like KSM and Ali Abdul Aziz Ali, he has chosen to represent himself, although he is able to take advantage of the assistance of attorneys. In early October, Col. Kohlmann ruled that the men should be provided with “enough battery power to use their prison camp laptops [which contain the government’s unclassified evidence against them] 12 hours a day,” but stopped short of allowing them to “surf the Internet.”

Initially charged with the five men above, Mohammed al-Qahtani, a Saudi who was reportedly intended to be the 20th hijacker for the 9/11 attacks, but was refused entry into the United States by immigration officials, was tortured for several months at Guantánamo in late 2002 and early 2003. The charges against him were dropped in May, when the others were formally charged, either because evidence of his torture is admissible (whereas that obtained in secret prisons by the CIA is not), or because of a pronounced deterioration in his mental health since he was first charged, which led to a number of suicide attempts. It is unlikely that he will be charged again.

Ahmed Khalfan Ghailani13. Ahmed Khalfan Ghailani. A Tanzanian, and one of the 14 “high-value detainees” transferred to Guantánamo from secret CIA prisons in September 2006, Ghailani, who was captured after a gun battle in Gujrat, Pakistan in July 2004, is accused of being a coordinator of the African embassy bombings, and of running a document-forging operation for al-Qaeda in Afghanistan. In his tribunal, he described himself as a peripheral character in the African embassy bombings, who was duped by others around him, although he admitted forging documents for al-Qaeda in Afghanistan.

On October 22, Ghailani was formally arraigned. Judy Rabinovitz, an observer for the American Civil Liberties Union, reported that the occasion “was not particularly enlightening,” and that the judge “essentially followed a script,” advising Ghailani that he had “a right to obtain civilian counsel in addition to his assigned military counsel,” and “repeatedly asking [him] if he understood what was going on.” A trial date is scheduled for February 2009. As Rabinovitz also noted, Ghailani was indicted in the United States ten years ago for the same crimes with which he is now being charged, “and several of his co-defendants in the federal proceedings have already been convicted and sentenced,” whereas Ghailani faces a dubious trial following years of mistreatment in secret CIA custody.

14. Mohammed Kamin. An Afghan seized in 2003, Kamin’s case is one of the more farcical cases put forward for trial. He is not charged with harming, let alone killing US forces, and is, instead, accused of receiving training at “an al-Qaeda training camp.” For his arraignment in May, he refused to leave his cell, and was dragged to the court by guards, arriving with bruises, cuts and a swollen eye. The judge, Air Force Col. W. Thomas Cumbie, explained that he was handcuffed and shackled because he had “attempted to spit on and bite one of the guards” on his way to the courtroom. Kamin then refused to be represented by a US military lawyer, and called the charges “a lie and a forgery.”

On October 23, a pre-trial hearing took place, although Kamin was not present. Judy Rabinovitz noted, “The officer who had been responsible for bringing him to court said that when she went to Kamin’s cell to notify him of the hearing, he ripped up the notice, began kicking and hitting the cell door and stated that he was innocent and it was President Bush who should be on trial.” She added that a prosecution motion “to compel Kamin’s presence by ‘forcibly extracting’ him from his cell was denied after defense lawyers objected on the grounds that it would put Kamin and others at risk,” although it was clear that the motion was denied in particular because the judge did not want a repeat of May’s proceedings.

The rest of the hearing was farcical. Rabinovitz explained that a mental status evaluation had found that Kamin was competent to participate in the proceedings, even though the two military doctors “had never met or observed the defendant,” and one, Col. Elspeth Cameron Ritchie, “has been criticized for assisting in the interrogation process.” As with other cases — including that of Omar Khadr — the defense sought to appoint an independent psychiatric expert, a proposal which was vigorously opposed by the prosecution, and also raised the issue of obstruction, which was timely, in the wake of Lt. Col. Vandeveld’s resignation. Although they accused the intelligence agencies of a “systemic failure” to cooperate with their requests for discovery, and asked the judge to dismiss the case, “as a sanction for the government’s failure to comply with the discovery process in a timely manner, but also as a deterrent to the intelligence agencies that continue to drag their feet, jeopardizing the integrity of the process,” the judge refused.

15. Mohammed Hashim. Another minor Afghan insurgent (at best), Hashim was charged in June with spying for al-Qaeda in Afghanistan and conducting a rocket attack on US forces. As with the case of Mohammed Kamin, it is difficult to work out how the administration construes these charges as “war crimes,” and in Hashim’s case this is complicated by the fact that his publicly available testimony — which is sprinkled with implausible references to 9/11, Osama bin Laden and links between al-Qaeda and Saddam Hussein — suggests that he either has mental health problems, or has dreamt up the biggest lies possible to secure more favorable treatment. Despite this, Susan Crawford approved the charges against Hashim on October 21.

Abdul Rahim al-Nashiri16. Abdul Rahim al-Nashiri. A Saudi, and another of the 14 “high-value detainees” transferred to Guantánamo from secret CIA prisons in September 2006, al-Nashiri, who was seized in the United Arab Emirates in November 2002, was charged at the start of July for his alleged role in the attacks on the USS The Sullivans and the USS Cole in 2000, and the French tanker Limburg in 2002. What will undoubtedly complicate his case, should it come to trial, is the fact that he is one of three “high-value detainees” whom CIA director Michael Hayden admitted had been subjected to waterboarding in secret CIA custody, and in his tribunal at Guantánamo last year he made a point of mentioning that he had made up false confessions after being tortured. “From the time I was arrested five years ago,” he said, “they have been torturing me. It happened during interviews. One time they tortured me one way, and another time they tortured me in a different way. I just said those things to make the people happy. They were very happy when I told them those things.”

17. Abdul Ghani. Yet another minor Afghan insurgent, Ghani was charged at the end of July with firing rockets at US forces, planting “land mines and other explosive devices on more than one occasion for use against US and coalition forces,” attacking Afghan soldiers, and “accept[ing] monetary payments, including payment from al-Qaeda and others known and unknown, to commit attacks on US forces and bases.” As I wrote at the time, “Apart from the inclusion of the magic words ‘al-Qaeda,’ there was nothing in Abdul Ghani’s charge sheet to indicate that he should find himself in the same trial system as those accused of involvement in the 9/11 attacks, the African embassy bombings of 1998 or the bombing of the USS Cole in 2000, or even, in fact, that he should have been sent to Guantánamo at all.”

18. Obaidullah. If anything, the case against Obaidullah, another Afghan, is even less explicable. In September, he was charged with hiding explosives, which he “knew or intended” would be “used in preparation for and in carrying out a terrorist attack.” The charges were astonishing, because he was not actually accused of attacking US forces, and, according to the transcripts of his tribunal and review boards at Guantánamo, he made it clear that he had come up with false confessions while being threatened by US forces in a prison at the airport in Khost, in eastern Afghanistan.

19. Faiz al-Kandari. The first of two Kuwaitis to be put forward for trial, al-Kandari was charged with conspiracy and providing material support for terrorism on October 22. Seized during the Tora Bora campaign in December 2001, when members of al-Qaeda and the Taliban were holed up in the Afghan mountains near Pakistan, and numerous other civilians were attempting to flee the chaos of war, al-Kandari has always maintained that he traveled to Afghanistan to provide humanitarian aid, but is accused or providing instruction to al-Qaeda members and trainees at the al-Farouq camp (the main training camp for Arabs), serving as an adviser to Osama bin Laden, and producing “recruitment audio and video tapes which encouraged membership in al-Qaeda and participation in jihad,” even though he only arrived in Afghanistan a month before the 9/11 attacks.

20. Fouad al-Rabia. Also charged with conspiracy and providing material support for terrorism, al-Rabia, a businessman — and a father of four who was 42 years old when he was seized — is accused of raising funds for al-Qaeda, and being “in charge of an al-Qaeda supply depot at Tora Bora,” where he “distributed supplies to al-Qaeda fighters.” He has never denied meeting Osama bin Laden, but has explained that, as a good Muslim who undertook humanitarian aid missions every year, he was introduced to bin Laden in 2001 while visiting Afghanistan to research the opportunities for proving aid to the region.

He has also explained that he only ended up in Tora Bora as part of a vast exodus of people — civilians like himself, as well as members of al-Qaeda and the Taliban — who were fleeing the chaos of Afghanistan after the US-led invasion of October 2001, but had conceded that a senior figure in al-Qaeda forced him to look after the “issue counter,” where supplies — food and blankets, rather then weapons — were being handed out, in exchange for arranging for him to leave the mountains, when he was promptly sold by local villagers to the Northern Alliance.

In conjunction with the continuing setbacks described above, the one-sided show trial of Ali Hamza al-Bahlul, investigations into the alleged misconduct of the Commissions’ former legal adviser (described here), and the continuing threat to the credibility of the system that is posed by Lt. Col. Vandeveld, the latest charges do nothing to suggest that the life of the Military Commissions should be extended beyond January 20, 2009.

President Obama should press Congress to repeal the Military Commissions Act, as he promised, and should rapidly establish an objective and intelligent body capable of reviewing the cases of those facing (or scheduled to face) trial by Military Commission, stripping out the juveniles and insignificant Afghan insurgents (who should be freed) from those regarded as genuinely dangerous terrorists involved with al-Qaeda and/or the 9/11 attacks, who should be moved to the US mainland to face trials in federal courts.

After the crimes of the Bush years, no solution is perfect (and these trials will inevitably involve a messy compromise over the use of torture), but I can see no other practical solution. Talk of moving prisoners to the federal court system has already provoked a rash of commentators to step forward and talk about the need for new legislation creating another new trial system or providing a mandate for special “preventive detention” for “terror suspects,” but all such innovations should be resisted. I can only wonder how it is that those proposing such ideas have managed to learn nothing at all from the abuse of the Constitution over the last seven years.

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 also see 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), 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), 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).

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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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