In any credible court system, the eve-of-election conviction of an associate of Osama bin Laden for producing promotional material for al-Qaeda, which directly encouraged impressionable young men to join a violent jihad against the United States, would be a resounding victory for the Bush administration. It would stand, however belatedly, as a last-minute acknowledgment that the administration, whose conduct in the “War on Terror” has been widely criticized for its almost indiscriminate extra-legal brutality, was at least capable of trying, sentencing and imprisoning one important al-Qaeda insider for war crimes before handing over the reins of power to a new administration.
But this is Guantánamo, and the court system is anything but credible. After four hours’ deliberation on Friday, the military jury in the trial of Ali Hamza al-Bahlul (as presented, above, in a courtroom sketch in 2004, after his hair and beard had been shaved) announced today that it had convicted the 39-year old Yemeni on 17 counts of conspiracy, eight counts of solicitation to commit murder and 10 counts of providing material support for terrorism, and the judge, Air Force Col. Ronald Gregory, gave him a life sentence. However, when the trial began last Monday, I explained that, no matter what happened in the days that followed, the trial’s legitimacy had evaporated six months ago, when al-Bahlul refused to take part in what he regarded as a charade.
Under the rules laid down in the Military Commissions Act, which revived the trial system — conceived by Vice President Dick Cheney and his closest adviser, David Addington — after the Supreme Court ruled it illegal in June 2006, prisoners were allowed to represent themselves in the trials. This amendment arose because of ethical problems faced by defense attorneys who were required to represent unwilling clients, because, in the real world outside Guantánamo, compelled representation can lead to the lawyer being punished. As an article in GQ explained last summer, “The defendant can sue for malpractice, and the bar can impose sanctions, even take away his license to practice.”
The right to self-representation has already led to some bizarre incidents that have done nothing to improve the administration’s credibility (as, for example, when Khalid Sheikh Mohammed had the opportunity to mock his judge in pre-trial hearings in September), but, more importantly, what no one foresaw — because the MCA was a hideously rushed piece of flawed legislation — was what would happen when prisoners decided to boycott the proceedings entirely.
As was revealed last Monday, in the event of a boycott, the judge would attempt to compel the prisoner’s military defense attorney to represent him, but as this raised the same ethical problems that had plagued the lawyers in the Commissions’ first incarnation, al-Bahlul’s lawyer, Maj. David Frakt, responded by refusing to cooperate. “I will be joining Mr. al-Bahlul’s boycott of the proceedings,” he said, “standing mute at the table.” Before the trial, he explained that he had obtained an ethics opinion from the New Jersey Bar Association, which stated that he was obliged to follow his client’s instructions, and was not allowed to cross-examine witnesses or offer any kind of legal argument.
As a result, the trial proceeded like a perfect facsimile of a show trial, with no mention of the torture that al-Bahlul had apparently suffered in US custody. As the Miami Herald reported, suspicions that al-Bahlul had been tortured had led two prosecutors to resign from the Commissions’ first incarnation rather than pursue the case, and in 2004 al-Bahlul’s first military defense lawyer, Maj. Tom Fleener, had explicitly told Col. Peter Brownback, the judge at the time, “I believe Mr. al-Bahlul was tortured,” adding that it was “going to be an issue” in any trial faced by his client.
Without any of these inconvenient distractions, the prosecution was free to show the film that al-Bahlul had reportedly made, and to present testimony from FBI special agent Ali Soufan, who declared that, in interrogations, al-Bahlul had told him that he “considered it one of the best propaganda videos al-Qaeda has to date,” and that Osama bin Laden was “so impressed” with it that he promoted al-Bahlul to become his media secretary.
The prosecution also introduced testimony by videolink from three members of a group of young men from Lackawanna, New York — the so-called “Lackawanna Six” — who had been encouraged to travel to an Afghan training camp before the 9/11 attacks, to “cleanse their sins and clear a straight path to heaven by training for jihad,” and had been shown the video. Sentenced in 2003, at the height of “War on Terror” paranoia, to jail sentences of between eight and ten years for providing “material support for terrorism,” the men shed more light on their own failure to embrace terrorism than anything else.
One of the three, Yassein Taher, said that the camp’s recruits “wept and shouted praise when they saw the video,” but added that he was shocked, surprised and afraid to discover that the camp was actively recruiting suicide bombers, and had “a martyrdom sign-up sheet.” Another of the men, Sahim Alwan, said that he was shown the video at guesthouses in Pakistan and Afghanistan, and was “horrified.” “I realized myself that I was in way over my head,” he explained, adding, “I wanted to get out of there.” Taher and Alwan then stated that they “feigned family emergencies and fled the camp,” and Reuters added that the third man, Yahya Goba, “completed the training but refused to pledge loyalty to bin Laden.”
What is particularly distressing about al-Bahlul’s trial is not the question of his involvement in al-Qaeda. This is something he has never denied, and as Reuters also reported, during the showing of the film, he “sat at the defense table beaming with pride at some segments and nodding in agreement at bin Laden’s words,” and also “pounded his fist on the table once at the mention of the defilement of Muslim women.” In addition, Ali Soufan testified that al-Bahlul had told him, “Everything I believe is in that tape,” and Soufan and a Navy investigator, Robert McFadden, testified that al-Bahlul had “told them American civilians were legitimate targets since they ‘are paying taxes and supporting the war against Muslims.’”
Without a case for the defense, however, the administration has been allowed to sidestep the question of al-Bahlul’s treatment in US custody, and has also been 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.” 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.
Breaking his silence before the sentence was announced, al-Bahlul made just this point by telling Col. Gregory, “Go ahead with your trial and I will continue with my boycott. You do whatever you want. You have orders from the politicians, and I will not accept it.”
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.
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), Guilt by Torture: Binyam Mohamed’s Transatlantic Quest for Justice (November 2008), 20 Reasons To Shut Down The Guantánamo Trials (profiles of all the prisoners charged, November 2008), How Guantánamo Can Be Closed: Advice for Barack Obama (November 2008), More Dubious Charges in the Guantánamo Trials (two Kuwaitis, November 2008), The End of Guantánamo (Salim Hamdan repatriated, November 2008), Torture, Preventive Detention and the Terror Trials at Guantánamo (December 2008), Is the 9/11 trial confession an al-Qaeda coup? (December 2008), The Dying Days of the Guantánamo Trials (January 2009), Former Guantánamo Prosecutor Condemns Chaotic Trials (Lt. Col. Vandeveld on Mohamed Jawad, January 2009), Torture taints the case of Mohamed Jawad (January 2009), Bush Era Ends with Guantánamo Trial Chief’s Torture Confession (Susan Crawford on Mohammed al-Qahtani, January 2009), Chaos and Lies: Why Obama Was Right to Halt The Guantánamo Trials (January 2009), Binyam Mohamed’s Plea Bargain: Trading Torture For Freedom (March 2009).
And for a sequence of articles dealing with the Obama administration’s response to the Military Commissions, see: Don’t Forget Guantánamo (February 2009), Who’s Running Guantánamo? (February 2009), The Talking Dog interviews Darrel Vandeveld, former Guantánamo prosecutor (February 2009), Obama’s First 100 Days: A Start On Guantánamo, But Not Enough (May 2009), Obama Returns To Bush Era On Guantánamo (May 2009), New Chief Prosecutor Appointed For Military Commissions At Guantánamo (May 2009), Pain At Guantánamo And Paralysis In Government (May 2009), My Message To Obama: Great Speech, But No Military Commissions and No “Preventive Detention” (May 2009), Guantánamo And The Many Failures Of US Politicians (May 2009), A Child At Guantánamo: The Unending Torment of Mohamed Jawad (June 2009), A Broken Circus: Guantánamo Trials Convene For One Day Of Chaos (June 2009), Obama Proposes Swift Execution of Alleged 9/11 Conspirators (June 2009), Obama’s Confusion Over Guantánamo Terror Trials (June 2009).
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