Archive for January, 2009

British torture victim Binyam Mohamed to be released from Guantánamo

For three years, ever since I began researching and writing about the stories of the prisoners held in the US prison at Guantánamo Bay on a full-time basis, I have looked forward to writing that headline, as the story of Binyam Mohamed, 30, a British resident who was subjected to “extraordinary rendition” and torture in order to get him to confess to a non-existent terrorist plot, is one of the more disturbing stories in a prison that is full of horrendous stories of torture, abuse and misguided intelligence.

In a letter dated 29 December but only cleared by the Pentagon’s censors this week, Binyam wrote to his lawyer, Clive Stafford Smith of the legal action charity Reprieve, “It has come to my attention through several reliable sources that my release from Guantánamo to the UK had been ordered several weeks ago. It is a cruel tactic of delay to suspend my travel till the last days of this administration while I should have been home a long time ago.”

In a disturbing last line, Binyam added, “I am on a hunger strike and I am aiming to be force fed in protest to this.”

When Binyam wrote his letter, he requested that it be sent out to a number of individuals and organization, including Cageprisoners. His military defense attorney, Air Force Lt. Col. Yvonne Bradley, duly forwarded it, noting that, as soon as she received it,

I contacted the JTF [Joint Task Force] legal office to confirm whether or not Binyam was on a hunger strike and whether he was being force fed. I was told that the JTF would have to check into the matter and I had to call back at least three additional times before being told that they “will not release the information.” I was instructed that if I wanted information about Mr. Mohamed’s medical condition and whether he is on a hunger strike or being force fed that I would have to contact the OMC-P [the prosecution department for the Office of Military Commissions, responsible for Guantánamo’s unique and much-criticized system of “terror trials”] and request the medical records.

Lt. Col. Bradley continued:

I had to remind the JTF legal office that Mr. Mohamed was not charged [he was charged in June 2008, but the charges were dropped in October] and therefore he was not under the jurisdiction of the prosecution office nor the CA [Susan Crawford, the Convening Authority who oversees the trials] and that custody, control and the welfare of Mr. Mohamed was in the hands of the JTF. The JTF lawyer then put me on hold and returned with the response that they “will not release any information and if you want information released you need to go through FOIA [the Freedom of Information Act].” At this time, I do not know the health and medical status of Mr. Mohamed. I am being refused this information. Given Mr. Mohamed’s weak health and fragile condition prior to this potential current hunger strike, I have grave concerns about his condition.

Even without these serious doubts about Binyam’s current health — and Lt. Col. Bradley’s report about the distressing obfuscation on the part of the military authorities — it is clear that no celebration is possible until Binyam is actually back in the country that he has called his home since he arrived here as a teenager nearly 15 years ago. As Clive Stafford Smith pointed out to me in an email, after I asked him, “Is this for real?” “Binyam has certainly been told it is, but they have lied to him too many times to count.” But with just days to go before Barack Obama is inaugurated as the 44th President of the United States, it seems unlikely that there will be another sting in the tail, especially as developments in Binyam’s case over the last nine months have done so much to shatter any credibility whatsoever in the government’s case against him.

Binyam’s story first surfaced, in appalling detail, in August 2005, when Stafford Smith made his account of his torture in Morocco available to the Guardian. Binyam had related his story to Stafford Smith in early 2005, over the course of three days in Guantánamo (the first time he had been allowed to meet a lawyer), and had explained how, after being seized by the Pakistani authorities in April 2002 and held in brutal conditions for three months, he had been sent by the CIA to Morocco, where he had been tortured for 18 months, and had then been rendered to the “Dark Prison” near Kabul, in Afghanistan, where his torture continued for another five months. He then spent another four months at the US prison at Bagram airbase, and arrived in Guantánamo in September 2004.

Like every word uttered between the prisoners and their lawyers, Binyam’s account of his chilling ordeal was presumptively classified, until — miraculously, in light of its contents — it was cleared by the Pentagon’s censors.

In the most harrowing passage, Binyam explained:

They cut off my clothes with some kind of doctor’s scalpel. I was naked. I tried to put on a brave face. But maybe I was going to be raped. Maybe they’d electrocute me. Maybe castrate me.

They took the scalpel to my right chest. It was only a small cut. Maybe an inch. At first I just screamed … I was just shocked, I wasn’t expecting … Then they cut my left chest. This time I didn’t want to scream because I knew it was coming.

One of them took my penis in his hand and began to make cuts. He did it once, and they stood still for maybe a minute, watching my reaction. I was in agony. They must have done this 20 to 30 times, in maybe two hours. There was blood all over. “I told you I was going to teach you who’s the man,” [one] eventually said.

They cut all over my private parts. One of them said it would be better just to cut it off, as I would only breed terrorists.

Binyam’s experiences in the “Dark Prison” were also horrific. The prison was a facsimile of a medieval dungeon, but with the addition of painfully loud music, which was blasted into the cells 24 hours a day. Speaking of his time there, he said,

It was pitch black, and no lights on in the rooms for most of the time … They hung me up for two days. My legs had swollen. My wrists and hands had gone numb … There was loud music, Slim Shady and Dr. Dre for 20 days. I heard this non-stop over and over, I memorized the music, all of it, when they changed the sounds to horrible ghost laughter and Halloween sounds.  It got really spooky in this black hole … Interrogation was right from the start, and went on until the day I left there. The CIA worked on people, including me, day and night. Plenty lost their minds. I could hear people knocking their heads against the walls and the doors, screaming their heads off … Throughout my time I had all kinds of music, and irritating sounds, mentally disturbing. I call it brainwashing.

At the end of this ordeal, Binyam said he made a number of false confessions about his involvement with al-Qaeda and a plot to detonate a radioactive “dirty bomb” in New York, which came about as a direct result of his torture in Morocco and at the hands of CIA agents in Afghanistan.

In the three and a half years since Binyam’s story first surfaced, he has, of course, suffered further indignities at Guantánamo, and his lawyers first expressed concern about the precarious state of his mental health in December 2007, when Clive Stafford Smith returned from a visit to report that Binyam was smearing the walls of his cell with his own faeces. In a medical report commissioned by Reprieve and submitted to David Miliband, the British Foreign Secretary, Dr Daniel Creson, a psychiatrist from Texas with extensive experience in the treatment of the victims of torture, warned that descriptions of his recent behaviour in Guantánamo suggested that his mental health was deteriorating, that he was suffering from severe depression and post-traumatic stress disorder, and that he was “reaching the end of his psychological tether.”

Events in the last nine months have advanced Binyam’s case considerably, as courts on both sides of the Atlantic have examined his case, have found the Bush administration’s evidence wanting, and have been critical of the behaviour of both the British and the American intelligence services. In the UK, the High Court condemned British agents for their complicity in Binyam’s rendition and torture, and in the US, when the prisoners were finally allowed to have their cases reviewed by a court (following a memorable Supreme Court ruling last June, which granted them constitutional habeas corpus rights), the Justice Department dropped its long-discredited claim about the “dirty bomb” plot, and the judge expressed his doubts that the allegations “were ever true” and even summoned defense secretary Robert Gates to testify that the government was not hiding any evidence. Indirectly, Binyam also secured a victory in the Military Commissions, when his case was dropped following the resignation of his prosecutor, Lt. Col. Darrel Vandeveld, who explained that the system was incapable of providing justice, and that his experience as a prosecutor had turned him from a “true believer to someone who felt truly deceived.”

These efforts will, I believe, be regarded as amongst the most significant of the many heroic endeavours on the part of lawyers to gain justice for the prisoners at Guantánamo and to free them from the unpardonable abuse that they have all suffered (and that so many continue to suffer, to this day), but the greatest legal victories have no tangible effect on men who continue to be held in bleak isolation, day after day, with no way of knowing if any of these achievements will actually lead to their release.

As Lt. Col. Bradley explained in her letter, “It appears that the only way I may be able to get immediate information as to Mr. Mohamed’s welfare is through the press and media exposure on this issue as well as through Cageprisoners and other human rights organizations.”

To help Binyam Mohamed, please write to David Miliband, asking him to do all in his power to secure Binyam’s immediate release.

Email: here.

Phone: 020 7008 1500

Or write to:

Right Hon David Miliband MP
Foreign Secretary
Foreign & Commonwealth Office
King Charles Street
London SW1A 2AH

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.

This commentary was written exclusively for Cageprisoners.

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

For a sequence of articles dealing with the hunger strikes at Guantánamo, see Shaker Aamer, A South London Man in Guantánamo: The Children Speak (July 2007), Guantánamo: al-Jazeera cameraman Sami al-Haj fears that he will die (September 2007), The long suffering of Mohammed al-Amin, a Mauritanian teenager sent home from Guantánamo (October 2007), Guantánamo suicides: so who’s telling the truth? (October 2007), Innocents and Foot Soldiers: The Stories of the 14 Saudis Just Released From Guantánamo (Yousef al-Shehri and Murtadha Makram) (November 2007), A letter from Guantánamo (by Al-Jazeera cameraman Sami al-Haj) (January 2008), A Chinese Muslim’s desperate plea from Guantánamo (March 2008), Sami al-Haj: the banned torture pictures of a journalist in Guantánamo (April 2008), The forgotten anniversary of a Guantánamo suicide (May 2008), Binyam Mohamed embarks on hunger strike to protest Guantánamo charges (June 2008), Second anniversary of triple suicide at Guantánamo (June 2008), Guantánamo Suicide Report: Truth or Travesty? (August 2008), Seven Years Of Guantánamo, And A Call For Justice At Bagram (January 2009), Who’s Running Guantánamo? (February 2009), Obama’s “Humane” Guantánamo Is A Bitter Joke (February 2009), Forgotten in Guantánamo: British resident Shaker Aamer (March 2009), Guantánamo’s Long-Term Hunger Striker Should Be Sent Home (March 2009). Also see the following online chapters of The Guantánamo Files: Website Extras 2 (Ahmed Kuman, Mohammed Haidel), Website Extras 3 (Abdullah al-Yafi, Abdul Rahman Shalabi), Website Extras 4 (Bakri al-Samiri, Murtadha Makram), Website Extras 5 (Ali Mohsen Salih, Ali Yahya al-Raimi, Abu Bakr Alahdal, Tarek Baada, Abdul al-Razzaq Salih).

Torture Taints the Case of Guantánamo Prisoner Mohamed Jawad

In a previous article, I reported at length on an extraordinary declaration submitted to a Washington D.C. court on January 13 for the habeas corpus review of Mohamed Jawad, an Afghan prisoner at Guantánamo. The declaration, by Lt. Col. Darrel Vandeveld, a former prosecutor in Guantánamo’s Military Commission trial system, who resigned in September 2008, was enormously significant, as it traced how Vandeveld changed from being a “true believer to someone who felt truly deceived.”

Over the course of the declaration, Vandeveld revealed how, during his 16-month service, he encountered a “chaotic” prosecution office in complete disarray, which was both unwilling and unable to compile plausible evidence and to provide exculpatory evidence to the defense teams.

He also revealed how, step by step, both by accident and through a commendable diligence, he learned that Jawad, who faced a trial by Military Commission for allegedly attacking two US soldiers and a translator with a grenade, was only 16 or 17 at the time of the attack, was tricked into joining an insurgent group, was drugged at the time of the attack, was threatened with torture in Afghan custody until he made a false confession (or had a false confession made out in his name), was one of four prisoners in total who apparently confessed to the crime (although the others could not be traced), and was subjected to serious physical and psychological abuse in the US prison at Bagram airbase and at Guantánamo, including a two-week period when he was moved from cell to cell 112 times to prevent him from sleeping, under what was euphemistically termed the “frequent flier program.”

As torture has recently hit the headlines with the admission of Susan J. Crawford, the senior Pentagon official overseeing the Commissions, that the Saudi prisoner Mohammed al-Qahtani was tortured in Guantánamo, and that, as a result, she decided to drop his case, it is clear to me that tough questions need to be asked about why the policy of prolonged sleep deprivation, which was part of the standard operating procedure (according to an officer who provided testimony in Jawad’s case), and to which, according to a former interrogator, over a hundred prisoners in Guantánamo were subjected, does not also count as torture.

Although many medical reports have concluded that sleep deprivation is a form of torture, one of the most powerful descriptions was made by Menachem Begin, the former Israeli prime minister, who was tortured by the KGB. In his book, White Nights: The Story of a Prisoner in Russia, he wrote:

In the head of the interrogated prisoner, a haze begins to form. His spirit is wearied to death, his legs are unsteady, and he has one sole desire: to sleep … Anyone who has experienced this desire knows that not even hunger and thirst are comparable with it. I came across prisoners who signed what they were ordered to sign, only to get what the interrogator promised them. He did not promise them their liberty; he did not promise them food to sate themselves. He promised them — if they signed — uninterrupted sleep! And, having signed, there was nothing in the world that could move them to risk again such nights and such days.

Without Vandeveld’s persistence, little if any of Mohamed Jawad’s true story would have come to light, and his detailed testimony serves not only as a comprehensive condemnation of the Military Commissions, but also as confirmation that the administration effectively has no case against Jawad, and that not only should his trial be scrapped, but the judge in his habeas case should order his immediate release from Guantánamo.

In spite of this, the Washington Post reported that the Commissions’ chief prosecutor, Col. Lawrence Morris, responded dismissively — even insultingly — to Vandeveld’s detailed report. In an email, Morris claimed that Vandeveld “was disappointed when I did not choose him to become a team leader, and he asked to resign shortly thereafter, never having raised an ethical concern during the 9 months I supervised him. I relied on his representations to me about Jawad and other cases I entrusted to him (which included his advocacy of a 40-year sentence for Mr. Jawad the week before he departed).”

His words provoked a terse response from Vandeveld, who said, simply, “I wouldn’t believe a word he says.”

The submission of Lt. Col. Vandeveld’s declaration was not the only activity in Jawad’s case on January 13. Elsewhere in the capital, the question of torture once more surfaced when the Military Commissions appeal court (hastily convened in the summer of 2007 after two judges, Col. Peter Brownback and Capt, Keith Allred, temporarily derailed the entire Commission process) met to consider the government’s contention that a statement made by Jawad to US interrogators in December 2002, in which he apparently admitted to the grenade attack, just hours after the statement in Afghan custody that was extracted through threats of torture, should be reinstated.

Two months ago, Jawad’s judge, Col. Stephen Henley, ruled that his confession in Afghan custody could not be used because he “accepted the accused’s account of how he was threatened, while armed senior Afghan officials allied with US forces watched his interrogation,” and because 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.”

Last month, Henley also prevented the use of Jawad’s second confession, explaining that he had concluded that “the effect of the death threats which produced the accused’s first confession to the Afghan police had not dissipated by the second confession to the US. In other words, the subsequent confession was itself the product of the preceding death threats.” As the Associated Press described it, Henley noted that the US Special Forces soldiers “had used techniques to maintain ‘the shock and fearful state’ associated with his arrest by Afghan police, including blindfolding him and placing a hood over his head.”

This seems pretty clear-cut to me, but as the government knows no shame (Lt. Col. Vandeveld memorably described some of the prosecutors as having “an obdurate and credibility-destroying pursuit of laughable legal positions”), Navy Cmdr. Arthur L. Gaston III was wheeled out in court to claim, “This was a separate and distinct interrogation,” even though it had been well established that it involved blindfolding and hooding, and took place only hours after the Afghan authorities had threatened to kill Jawad and his family.

The three judges — a civilian, Frank J. Williams, the Chief Judge of the Rhode Island Supreme Court, Air Force Col. David R. Francis, and Navy Capt. Daniel E. O’Toole — did not make an immediate decision, but, as Maj. David Frakt, Jawad’s military defense attorney, explained to me in an email, “They were what we call a ‘hot bench,’ asking many, many questions. It appeared to me that they were a bit tougher, or certainly, a bit more skeptical of the government’s position.”

He added, “The government counsel had an uphill battle, because they had lost at the trial court and had to convince the court that the trial judge had erred under an ‘abuse of discretion’ standard, which would require the judges to find that Judge Henley’s findings were ‘clearly erroneous.’” This, of course, was a tall order, as Henley’s ruling was not delivered lightly.

Maj. Frakt also explained, “The government’s position was that a statement can’t be considered to be obtained by torture unless there was torture used in the specific interrogation session in which the suspect confessed. The court seemed very skeptical that the effects of torture could never carry over to a subsequent interrogation.” As the Associated Press pointed out, the judges “questioned whether they could ignore the fact that Jawad was tortured into his first confession,” and Capt. O’Toole asked, “Can we admit coerced statements that are not voluntary? That’s the basic question.”

David Brennan, a colleague of Maj. Frakt, and a Professor of International Law at Western State University, who also attended the hearing, had further comments. He explained that the judges, who were “well-versed in the Jawad case and the issues … appeared reluctant to accept the government’s suggestion that Congress could legislate away the constitutional protections attendant to an interrogation.”

He also reinforced what appeared to be a prevailing belief that the judges were particularly exercised by the timing of the second confession, noting that they “were unwilling to accept the government’s far-fetched scenario that Mr. Jawad’s interrogation by US military forces shortly after the one by Afghani officials that was undeniably the product of torture was miraculously untainted by the lingering effects of that patently illegal treatment of a prisoner.”

Although the court did not set a date for announcing its verdict, Maj. Frakt was confident that the judges would uphold Col. Henley’s ruling, leaving the case “eviscerated,” as Lt. Col. Vandeveld explained when Henley ruled out the use of the statement. “I am confident that Judge Henley’s ruling will be affirmed,” Maj. Frakt wrote in his email, “but it is appalling that the Bush administration continues to take these outrageous legal positions right up until the bitter end. The government’s oral argument was essentially the last gasps of a regime in its death throes.”

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.

As published on Global Research and After Downing Street.

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), 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), 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).

Judge Orders Release of Guantánamo’s Forgotten Child

Just two weeks ago, in a habeas corpus case in a Washington D.C. court, Judge Richard Leon turned the clock back to January 11, 2002 (the day Guantánamo opened) by ruling that the US government could continue holding two prisoners at Guantánamo — the Yemeni Muaz al-Alawi and the Tunisian Hisham Sliti — because the authorities had demonstrated, to his satisfaction, that they met the criteria for being regarded as “enemy combatants.”

According to the definition of an “enemy combatant” that Leon himself had been obliged to choose from several options before proceeding with the cases, this meant that they were “part of or supporting Taliban or al-Qaeda forces, or associated forces that are engaged in hostilities against the US or its coalition partners,” which “includes any person who has committed a belligerent act or has directly supported hostilities in aid of enemy armed forces.”

This was a disturbing development, because both men, who have been held for seven years, remain in an unprecedented legal limbo, despite having secured the right to have their cases reviewed in a court of law following a ruling by the Supreme Court last June. Unlike enemy prisoners of war, who are held in accordance with the Geneva Conventions, or criminal suspects, who are expected to face a trial in a timely manner, the “enemy combatants” imprisoned solely on the President’s whim in the wake of the 9/11 attacks can apparently be held indefinitely.

As I explained in a recent article, Judge Leon was observing the law as it currently stands when he ruled that al-Alawi and Sliti were “enemy combatants” (and when he also held, in November, that although the government had failed to establish a case against five Bosnians of Algerian origin, the sixth, Belkacem Bensayah, had also been correctly designated as an “enemy combatant”), but it remains a cruel and unjust law, as the three men in question continue to be held with less rights than those afforded to the most murderous individuals imprisoned on the US mainland, even though none of them is alleged to have harmed a single US citizen.

While this remains a deeply disturbing problem that Barack Obama will have to remedy of he is to have any chance of fulfilling his stated ambition to “regain America’s moral stature in the world,” Judge Leon struck another blow for justice yesterday by ruling (PDF) that the government had failed to establish a case against another prisoner, Mohammed El-Gharani, and ordering his release “forthwith.”

Torturing a teenager

A Chadian national and Saudi resident, El-Gharani was just 14 years old when he was seized by Pakistani forces in October 2001, in a raid on a mosque in Karachi, Pakistan, 700 miles from the battlefields of Afghanistan. As with all but three of the 22 confirmed juveniles who have been held at Guantánamo, the US authorities never treated him separately from the adult population, even though they are obliged, under the terms of the UN’s Optional Protocol to the Convention on the Rights of the Child (on the involvement of children in armed conflict) to promote “the physical and psychosocial rehabilitation and social reintegration of children who are victims of armed conflict.”

Instead, El-Gharani was treated with appalling brutality. After being tortured in Pakistani custody, he was sold to US forces, who flew him to a prison at Kandahar airport, where, he said, one particular soldier “would hold my penis, with scissors, and say he’d cut it off.” His treatment did not improve in Guantánamo. Subjected relentlessly to racist abuse, because of the color of his skin, he was hung from his wrists on numerous occasions, and was also 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 — that clearly constitute torture. As a result of this and other abuse, including regular beatings by the guard force responsible for quelling even the most minor infractions of the rules, El-Gharani has become deeply depressed, and has tried to commit suicide on several occasions.

A case without evidenceмебели

This is distressing enough, in and of itself, but as Judge Leon revealed yesterday, this sustained mistreatment took place even though the authorities had no case against El-Gharani. Although he insisted, for over seven years, that he “traveled to Pakistan from Saudi Arabia at the age of 14 to escape discrimination against Chadians in that country, acquire computer and English skills, and make a better life for himself,” and that he “remained there until his arrest,” the government claimed that he “arrived in Afghanistan at some unspecified time in 2001,” and was “part of or supporting Taliban or al-Qaeda forces,” because he

(1) stayed at an al-Qaeda-affiliated guesthouse in Afghanistan;
(2) received military training at an al-Qaeda-affiliated military training camp;
(3) served as a courier for several high-ranking al-Qaeda members;
(4) fought against US and allied forces at the battle of Tora Bora; and
(5) was a member of an al-Qaeda cell based in London.

In his ruling, Judge Leon demolished the government’s claims with the same dispassionate rigor with which he demolished the claims — from a single, unverifiable source — against five of the six Bosnian Algerians whose release he ordered in November.

“Unlike most of the other cases reviewed to date by this Court,” Leon wrote, the government’s supposed evidence against El-Gharani consisted “principally” of statements made by two other prisoners at Guantánamo. “Indeed,” he added, these statements are either exclusively, or jointly, the only evidence offered by the Government to substantiate the majority of their allegations,” and, in addition, “the credibility and reliability of the detainees being relied upon by the Government has either been directly called into question by Government personnel or has been characterized by Government personnel as undermined.”

Dismissing the allegations, one by one

Dismissing the allegation that El-Gharani stayed at an al-Qaeda-affiliated guesthouse, Leon explained that the government “relies exclusively on the statements of a particular Guantánamo detainee whose reliability had been characterized by the Government’s own interrogators as undermined,” and added that the account was “plagued with internal inconsistencies.”

Dismissing the allegation that El-Gharani took part in the battle of Tora Bora, Leon explained that the government “relies exclusively on a different detainee, to establish this fact,” but that this prisoner’s credibility has also been “seriously called into question by Government personnel who have specifically cautioned against relying on his statements without independent corroboration.” He added that the government “did not produce any such corroboration.”

Dismissing the allegation that El-Gharani attended an al-Qaeda-affiliated training camp, Leon explained that the government “pointed to statements of both of the detainees described above.” However, after noting that he suspected that the government believed that this constituted corroborating evidence, he dismissed both accounts, because, “when viewed together, [they] are not factually compatible, each placing the petitioner at the camp at different points in time, multiple months apart, during the year 2001.”

Dismissing the allegation that El-Gharani was an al-Qaeda courier, Leon explained that, although this claim relied on classified evidence — “which did not include statements of any other detainees” – the information was “woefully deficient to establish this point by a preponderance of the evidence.” He added, “besides having internal inconsistencies, the Government’s evidence raises serious questions about whether certain alleged al-Qaeda correspondence was even on the person of the petitioner as opposed to one of eight other individuals who were turned over to US authorities at Kandahar at the same time as petitioner.”

And finally, dismissing the allegation that El-Gharani was a member of an al-Qaeda cell in London in 1998, Leon explained that the government was “relying exclusively on the statements of the detainee whose reliability is described above as being undermined.” This was, indeed, the most extraordinary allegation, as El-Gharani was just 11 years old at the time, and, as his lawyer, Clive Stafford Smith, explained in his book, The Eight O’Clock Ferry to the Windward Side: Seeking Justice In Guantánamo Bay, “he must have been beamed over to the al-Qaeda meetings by the Starship Enterprise, since he never left Saudi Arabia by conventional means.”

Leon’s verdict was marginally less colorful, but no less devastating. “Putting aside the obvious and unanswered questions as to how a Saudi minor from a very poor family could have even become a member of a London-based cell,” he wrote, “the Government simply advances no corroborating evidence for these statements it believes to be reliable from a fellow detainee, the basis of whose knowledge is — at best — unknown.”

A hopeful precedent

Judge Leon then granted El-Gharani’s habeas claim, with another statement that soundly trounced the government’s basis for holding him, and that ought to have struck fear into those parts of the Pentagon and the Justice Department that are responsible for presenting the government’s evidence in the Guantánamo habeas cases. “Simply stated,” he wrote, “a mosaic of tiles bearing images this murky reveals nothing about the petitioner with sufficient clarity, either individually or collectively, that can be relied upon by this Court.”

While El-Gharani’s imminent release demonstrates, however belatedly, that justice is possible for the prisoners at Guantánamo, the fundamental problem with the definition of an “enemy combatant” — and its implications for those against whom the government manages to establish some sort of a case — must not be brushed aside because of this latest victory.

However, there is reason to hope that the ruling in El-Gharani’s case will lead to the release of other men against whom the government’s only evidence of alleged wrongdoing are statements made by other prisoners whose reliability has been called into doubt by government officials. As was revealed in a declaration in November 2007 by Lt. Col. Stephen Abraham, a veteran of US intelligence who worked for the organization responsible for compiling the evidence against prisoners, “Most of the information collected … consisted … of information obtained during interrogations of other detainees,” because the organization had little or no access to the intelligence agencies. This is worrying enough, as there is ample evidence that prisoners were tortured, coerced or bribed into producing false confessions, but what makes it even more disturbing is that lawyers for the prisoners — and those who have studied the documentation closely, as I did for my book The Guantánamo Files — are aware that statements made by a number of “unreliable” prisoners (including the two cited in El-Gharani’s case) are being used as evidence in many other cases.

As I have explained in a previous article (drawing on some exemplary research conducted by Corine Hegland for the National Journal), a military official discovered in 2004 that one of these prisoners, described as a notorious liar by the FBI, had made groundless allegations against 60 prisoners in total, which were, nonetheless, being used by the government as evidence, and this is just one example of an infection so widespread that it suggests that Judge Leon’s description of the evidence as a murky mosaic of tiles should be replaced by an even more skeptical conclusion: that it is, instead, the tip of a particularly murky iceberg.

As Clive Stafford Smith said to me today, “It is a sad day when patently false information produced by people who have been tortured to inform results in a child being imprisoned in Guantánamo Bay. Mohammed El-Gharani has spent a third of his young life in prison for the most unjustifiable of reasons, and it is my fervent hope, as the habeas cases proceed, that the revelation of other false confessions will be followed by rulings that are as just as the one delivered yesterday by Judge Leon.”

POSTSCRIPT (Jan. 16): You would think, having had its case comprehensively demolished by an appointee of the outgoing President, who is not known for his left-leaning views, that the government would capitulate to Judge Leon’s ruling and release Mohammed El-Gharani immediately. But no! Following the ruling, a Justice Department representative explained that the government was still considering its options, and that a final decision on how to proceed — including the possibility of seeking a stay! — would be forthcoming after the classified ruling and judgment were issued.

Did no one tell the Justice Department that, whatever the shortcomings of the habeas reviews — in terms of continuing to hold prisoners indefinitely as “enemy combatants” — the judges are, at least, empowered to rule that the government can no longer continue to hold prisoners on the basis of wishful thinking?

Note: For an article on Mohammed El-Gharani’s release from Guantánamo, see Guantánamo’s Youngest Prisoner Released To Chad (June 2009).

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.

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

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), After 7 Years, Judge Orders Release of Guantánamo Kidnap Victims (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), 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).

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

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

Former Guantánamo Prosecutor Condemns “Chaotic” Trials in Case of Teenage Torture Victim

On January 13, in a declaration submitted to a Washington D.C. District Court in the case of Guantánamo prisoner Mohamed Jawad, Lt. Col. Darrel Vandeveld, a former prosecutor in the Military Commission trial system, delivered perhaps the most blistering attack on the US military’s detention program by a former member of the Pentagon’s team to date.

Speaking of the man he was once tasked to prosecute, Vandeveld said prisoner Mohamed Jawad’s continued detention is “something beyond a travesty,” and urged that Jawad be released given a “lack of any credible evidence.”

Some of this information was revealed in September 2008, after Vandeveld (who has served in Bosnia, Africa, Iraq and Afghanistan in the years since the 9/11 attacks, and has received several military awards) resigned as a prosecutor, complaining that “potentially exculpatory evidence” had “not been provided” to Jawad’s defense team, and that his accidental discovery of information relating to Jawad’s abuse helped convert him from a “true believer to someone who felt truly deceived.”

However, other information has never before been revealed in public, and Vandeveld’s declaration, in a habeas corpus review triggered by a Supreme Court ruling last June, constitutes the most sustained criticism of the Bush administration’s flagship trial system for terror suspects since Col. Morris Davis, the Commissions’ former chief prosecutor, resigned in October 2007. Davis explained that he had done so because of the politicization of the trial system, attempts to endorse the use of evidence obtained through torture, and the refusal of Pentagon chief counsel William J. Haynes II to accept that any planned trials could end in acquittals.

Vandeveld’s statement explained that he joined the prosecution department of the Office of Military Commissions (OMC-P) in May 2007, and described how, based on his civilian experience as a Senior Deputy Attorney General in Pennsylvania, he initially thought that Jawad’s case “appeared to be as simple as the street crimes I had prosecuted by the dozens in civilian life.”

Jawad, an Afghan national, was accused of throwing a grenade at a jeep containing two US Special Forces soldiers and an Afghan interpreter, while the vehicle was stuck in traffic in a marketplace in Kabul on Dec. 17, 2002. Vandeveld said he initially thought Jawad was guilty because he had been arrested “almost immediately” by Afghan police officers and members of the Afghan National Army, and had, it was claimed, “freely confessed” to throwing the grenade. In addition, he had apparently explained that he had been recruited by Hezb-e-Islami Gulbuddin, an Afghan insurgent group, had “claimed sole responsibility for the attack” and had “proclaimed his pride in conducting the attack,” and had also stated “that he would repeat the attack if given the opportunity.”

Backing up this confession was another statement, made a few hours later to US Special Forces soldiers from the same unit as those who were wounded in the attack. Vandeveld explained that, according to the interrogation report, the soldiers took Jawad to a forward operating base, where, after initial denials, he “eventually confessed to his role in the attack, this time on videotape recorded by US personnel.”

However, as Vandeveld began to investigate the evidence in Jawad’s case, he was shocked to discover that locating relevant documents was extraordinarily difficult, because the Commissions’ prosecution department was in a “state of disarray” and “lack[ed] any discernable organization.” He explained that he did not “expect that potential war crimes would be presented, at least initially, in ‘tidy little packages,’” such as those that would be “assembled by civilian police agencies and prosecution offices,” but was dismayed to discover that

the evidence, such as it was, remained scattered throughout an incomprehensible labyrinth of databases … or strewn throughout the prosecution offices in desk drawers, bookcases packed with vaguely-labeled plastic containers, or even simply piled on the tops of desks vacated by prosecutors who had departed the Commissions for other assignments. I further discovered that most physical evidence that had been collected had either disappeared or had been stored in locations that no one with any tenure at, or institutional knowledge of, the Commissions could identify with any degree of specificity or certainty.

As a result, Vandeveld was unable to locate crucial documents, such as Jawad’s videotaped confession and any information that would enable him to corroborate statements made by “two alleged eyewitnesses to the attack, who had allegedly told a US interrogator that they had personally witnessed Jawad throw the grenade.” Although he explained that it was “difficult” for him “to accept that the US military could have failed so miserably in six years of effort,” he began to doubt “the propriety of attempting to prosecute Mr. Jawad without any assurance that through the exercise of due diligence I could collect and organize the evidence in a manner that would meet our common professional obligations.”

Despite these misgivings, Vandeveld stated that he clung to a belief that the case could be prosecuted “ethically and successfully” until May 2008, when a succession of discoveries led to his dramatic departure.

The first took place after a new military defense attorney, Maj. David Frakt, was assigned to Jawad’s case. While attempting to gather records for Frakt following a request for discovery, Vandeveld obtained a copy of Jawad’s Detainee Incident Management System records, which log the prisoners’ every move. In the records, he discovered that Jawad had attempted to commit suicide on December 25, 2003 “by banging his head repeatedly against one of his cell walls.” After notifying the defense team of this incident, Frakt responded by pointing out that the records also “reflected 112 unexplained moves from cell to cell over a two week period, an average of eight moves per day for 14 days.”

After further investigation, Vandeveld and Frakt ascertained that Jawad had been subjected to a sleep deprivation program known as the “frequent flier program.” Vandeveld added that Jawad had mentioned this in a hearing at the start of May, but that he had dismissed his claims as an “exaggeration,” and explained, “I lack the words to express the heartsickness I experienced when I came to understand the pointless, purely gratuitous mistreatment of Mr. Jawad by my fellow soldiers.” He later discovered that, although the program had supposedly come to an end in March 2004, it “was carried out systematically on a large number of detainees at least until 2005,” and was regarded as being “part of the standard operating procedure at the time.”

Further disturbing revelations followed. Vandeveld discovered that media accounts and intelligence reports “indicated that at least three other Afghans had been arrested for the crime and had subsequently confessed, casting considerable doubt on the claim that Mr. Jawad was solely responsible for the attack.” He also discovered that, “[t]o the extent that any evidence indicated that Mr. Jawad was present at the scene and may have thrown the hand grenade, there was also evidence that he may have acted under duress and that he may have been drugged by unscrupulous recruiters.”

Delving deeper, Vandeveld found that Jawad’s statement in Afghan custody, which was presented as his “personal confession,” could not have been written by him because he was “functionally illiterate.” He ascertained that it had actually been written one of the Afghan police officers, who had written it in Dari rather than Jawad’s native language of Pashto. Moreover, when he obtained a summary of Jawad’s subsequent US interrogation — which “required a ludicrous amount of time” to obtain — he discovered “material differences” between the statements, “causing me and other prosecutors to wonder whether either could be used to establish the truth.”

Vandeveld explained that he then began to suspect that Jawad’s first statement “had simply been contrived by one of the Afghan policemen,” who “amateurishly sought to ‘authenticate’” it by adding Jawad’s thumbprint, but added that even this turned out to be a fake. The print was “sent to the Army’s crime lab for analysis, which concluded that [it] was not Mr. Jawad’s.”

Further investigation unearthed more evidence of systematic abuse. “[B]y sheer happenstance,” he “stumbled across” a summary of an interview with Jawad, conducted by an agent from the Army Criminal Investigation Division, “which had been added to the record of trial in a case where a guard at Bagram prison had been charged with the murder of a detainee.” From this interview, Vandeveld learned that Jawad “had experienced extensive abuse” while held at Bagram from December 2002 (when two prisoners died at the hands of US forces) to February 2003, which included being “shoved down a stairwell while both hooded and shackled.” The agent, who testified at a hearing in Jawad’s case last August, explained that Jawad’s statement “was completely consistent with the statements of other prisoners held at Bagram at the time, and, more importantly, that dozens of the guards had admitted to abusing the prisoners in exactly the way described by Jawad.”

Around the same time that he found the Bagram statement, Vandeveld also received a copy of a report by a Behavioral Science Consultation Team psychologist, who had “prepared an assessment of Mr. Jawad’s mental condition.” He was disturbed to discover that

The psychological assessment was not done to assist in identifying and treating any emotional or psychological disturbances Mr. Jawad might have been suffering. It was instead conducted to assist the interrogators in extracting information from Mr. Jawad, even exploiting his mental vulnerabilities to do so. This rank betrayal of a supposed healer’s professional obligations towards a detainee struck me as particularly despicable.

Vandeveld’s final disappointment concerned issues relating to Jawad’s age at the time of his capture, and to the charge of “attempted murder in violation of the law of war” which had been leveled against him. He explained that the “working assumption” in OMC-P was that, at the time of his capture, Jawad “was probably 18 or 19 and that he had lied about his age when questioned about this matter.” Initially, Vandeveld was not particularly troubled by the fact that “[v]irtually all the documentation concerning Mr. Jawad from his first year at Guantánamo list[ed] his age as approximately 17 years,” because OMC-P had charged Omar Khadr, who was 15 at the time of his capture, and “there seemed to be little concern about the propriety of charging minors as war criminals.”

However, after hearing Maj. Frakt’s “repeated assertions that child soldiers are entitled to be treated differently from adults, and that we are obliged by treaty to provide them with opportunities for rehabilitation and reintegration,” Vandeveld explained that he became “deeply bothered by the fact that no such opportunities had been afforded to Mr. Jawad, who, no matter what he was alleged to have done, retained his fundamental rights as a human being.”

He added that this focus on fundamental rights led him to have “serious concerns about the President’s decision not to apply the Geneva Conventions to the prisoners,” because “one of the oft-repeated rationales for adherence to the law of war is that it encourages one’s enemies to reciprocate.” As an adjunct, he criticized the tribunals and review boards that had been established at Guantánamo to review the prisoners’ cases because they had not provided any of them with a “meaningful opportunity to establish their status before a tribunal legitimately interested in ascertaining the truth,” and added that the records he reviewed in Jawad’s case and others “seemed to me to be the worst sort of a joke. I concluded personally that the hearings were little more than a heavily bureaucratized charade.”

Again inspired by Maj. Frakt’s arguments, Vandeveld acknowledged that he “undertook a more comprehensive review of the traditional laws of war,” revisiting doubts that had been expressed by “one of the more astute prosecutors,” when Jawad was first charged in October 2007. At the time, this prosecutor had “questioned whether attacking a lawful target (uniformed enemy soldiers) with a lawful weapon (a hand grenade) in the midst of an armed conflict could plausibly be considered a violation of the law of war.” Vandeveld explained that he was “unpersuaded” at the time, but that, by the summer of 2008, he had changed his mind, and was reassured when, in the trial of Salim Hamdan, the judge, Navy Capt. Keith Allred, had issued a panel instruction that was “virtually indistinguishable” from the position taken by Maj. Frakt.

As a result of all these factors, Vandeveld “became convinced that Mr. Jawad should not be prosecuted.” Aware that OMC-P would be unwilling to drop the charges and that, in any case, the administration “would continue to hold Mr. Jawad indefinitely as an enemy combatant, no matter the paucity or unreliability of the evidence asserted against him,” he attempted to negotiate a plea bargain, whereby Jawad would undergo “a short period of additional custody,” which would be “devoted to rehabilitating him and preparing him to reintegrate into civilian society.”

His efforts were, however, rebuffed by OMC-P, and after his loyalty “began to be viewed with the sort of suspicion harbored by only the truly embattled,” and the Chief Prosecutor, Col. Lawrence Morris, was “harshly dismissive, and even contemptuous of any proposal to resolve the case for less than a multi-year sentence,” he “asked to be permitted to leave the Commissions.” He concluded that, because it was impossible to certify that discovery had been made in a case as simple as Jawad’s, “no Commissions prosecutor could make such representations accurately and honestly” in any other case. He added:

The chaotic state of evidence, overly broad and unnecessary restrictions imposed under the guise of national security, and the absence of any systematic, reliable method of preserving and cataloguing evidence, all of which have plagued the Tribunals and Commissions since their inception … make it impossible for anyone involved (the prosecutors) or caught up (the detainees) in the Commissions to harbor even the remotest hope that justice is an achievable goal.

Since Vandeveld’s departure, Jawad’s case has continued to crumble. He explained that, in his opinion, “any chance at a successful prosecution was lost forever — and justifiably so,” when Judge Henley “ruled that it was not enough for the government to show that a defendant was an unlawful combatant; it also had to show that the alleged crime was a violation of the law of war.” This led to the government conceding that it “had no evidence to prove a violation of the law of war,” and any lingering hopes on the part of OMC-P that Jawad could be successfully prosecuted should have been dashed when Henley then “suppressed all of Mr. Jawad’s allegedly self-incriminating statements because [he] specifically found the statements to be the product of torture.”

As Vandeveld’s declaration was filed today, Hina Shamsi of the ACLU, which represents Jawad in his habeas review, told me, “This young man doesn’t represent a threat — even his former prosecutor says so.” She added that Vandeveld’s declaration “spells out exactly why the Military Commissions are such an affront to both the law, and to notions of decency. President-Elect Obama must follow through on his promise to close Guantánamo and scrap the Military Commissions, and he should do so quickly, with a comprehensive and transparent plan that ends this travesty.”

When I spoke to Lt. Col. Vandeveld, he told me, “I think there’s a good chance that Jawad’s case will be tossed out and that the District Court will order his release.” His sentiments echoed the closing words of his declaration:

Six years is long enough for a boy of sixteen to serve in virtual solitary confinement, in a distant land, for reasons he may never fully understand. I respectfully ask this court to find that Mr. Jawad’s continued detention is unsupported by any credible evidence … Mr. Jawad should be released to resume his life in civil society, for his sake, and for our own sense of justice and perhaps to restore a measure of our basic humanity.

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.

An edited version of this article was published exclusively on The Raw Story (as “Former Gitmo prosecutor rips military trials, calling interrogators’ practices ‘despicable’”). For an update, see Torture Taints the Case of Guantánamo Prisoner Mohamed Jawad.

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), 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), 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).

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

For other stories discussing the use of torture in secret prisons, see: An unreported story from Guantánamo: the tale of Sanad al-Kazimi (August 2007), Rendered to Egypt for torture, Mohammed Saad Iqbal Madni is released from Guantánamo (September 2008), A History of Music Torture in the “War on Terror” (December 2008), Seven Years of Torture: Binyam Mohamed Tells His Story (March 2009), and also see the extensive Binyam Mohamed archive. And for other stories discussing torture at Guantánamo and/or in “conventional” US prisons in Afghanistan, see: The testimony of Guantánamo detainee Omar Deghayes: includes allegations of previously unreported murders in the US prison at Bagram airbase (August 2007), Guantánamo Transcripts: “Ghost” Prisoners Speak After Five And A Half Years, And “9/11 hijacker” Recants His Tortured Confession (September 2007), Former US interrogator Damien Corsetti recalls the torture of prisoners in Bagram and Abu Ghraib (December 2007), Sami al-Haj: the banned torture pictures of a journalist in Guantánamo (April 2008), Judge Orders Release of Guantánamo’s Forgotten Child (Mohammed El-Gharani, January 2009), Forgotten in Guantánamo: British Resident Shaker Aamer (March 2009).

No End in Sight for the “Enemy Combatants” of Guantánamo

On the seventh anniversary of the opening of the “War on Terror” prison at Guantánamo Bay, Cuba (on January 11, 2002), this is perhaps a rather bleak title, given that Barack Obama has pledged to close the prison, but recent events in a US District Court — largely overlooked in the mainstream media — have demonstrated how difficult it will be to deliver justice to the remaining prisoners, because of the veneer of legitimacy that covers the Bush administration’s self-declared right to seize anyone the President regards as an “enemy combatant” and hold them indefinitely without charge or trial.

Seven months ago, when the US Supreme Court, which had granted habeas corpus rights to the Guantánamo prisoners in June 2004, reversed subsequent legislation that purported to strip them of their fundamental right to ask why they were being held, and made their habeas rights constitutional in Boumediene v. Bush, there were high hopes that the subsequent habeas reviews would cut through the web of coerced confessions and dubious intelligence that the administration was using to justify holding the prisoners as “enemy combatants.”

At first, this was exactly what happened. Within a fortnight of the Supreme Court’s ruling, the first case to be reviewed dealt an unprecedented blow to the government’s claims, when three judges in a Washington D.C. appeals court ruled that the government had failed to establish that Huzaifa Parhat was an “enemy combatant,” and condemned what purported to be evidence in the case for being akin to a nonsense poem by Lewis Carroll, the author of Alice’s Adventures in Wonderland.

Parhat is one of 17 Uighur prisoners — Muslims from China’s Xinjiang province, who had traveled to Afghanistan to escape Chinese oppression but had been sold to US forces after fleeing to Pakistan following the US-led invasion — and in the wake of his victory, the government dropped its case against the rest of the Uighurs, and was then humiliated in a District Court when Judge Ricardo Urbina ordered the men’s release into the United States, because their continued detention was unconstitutional, because they cannot be returned to China, where they face the risk of torture, and because no other country has been found that will accept them. The government appealed, and has so far succeeded in keeping the Uighurs at Guantánamo, but their plight remains a significant blow to what little remains of Guantánamo’s credibility.

The administration was dealt a second blow in November, in a Washington D.C. District Court, when Judge Richard Leon, an appointee of George W. Bush and one of several judges dealing with the post-Boumediene habeas reviews, dismissed the government’s case against five Bosnians of Algerian descent and ordered their immediate release. In October 2001, the men had been suspected of a plot to blow up the US embassy in Sarajevo, but after the Bosnian authorities arrested them, investigated the claim and found no evidence to justify it, they were kidnapped by US agents on their release and flown to Guantánamo in the prison’s opening weeks.

Disturbingly, the bomb plot was never mentioned in Guantánamo, and the men were, instead, brutalized and exploited for their knowledge of Arabs living in Bosnia, but when their habeas case finally came to court, Judge Leon ordered their release after concluding that the government had provided no credible evidence to justify its only surviving allegation against the men: that they had intended to travel to Afghanistan to take up arms against US forces.

As with the case of Huzaifa Parhat, Judge Leon’s ruling was a vindication for the many critics of the habeas-stripping legislation that was passed by a cowed Congress in the Detainee Treatment Act of 2005 and the Military Commissions Act of 2006. However, Leon’s decision to deny the habeas claim of the sixth plaintiff, Belkacem Bensayah, hinted at another obstacle to justice that had been largely overlooked in the celebrations following the Supreme Court’s ruling.

Lawyers, human rights activists and others concerned with due process had spent so long struggling just to get a day in court for the prisoners that they had, for the most part, neglected to scrutinize the fine print of the ruling. The prisoners were given the opportunity to ask a judge why they were being held, and the judges were empowered to order the men’s release if the government failed to establish an adequate case against them, but the Supreme Court had not empowered the courts to question whether the very definition of an “enemy combatant” was sufficient to hold prisoners indefinitely without charge or trial if a plausible case was established that they were “part of or supporting Taliban or al-Qaeda forces, or associated forces that are engaged in hostilities against the US or its coalition partners,” which “includes any person who has committed a belligerent act or has directly supported hostilities in aid of enemy armed forces.”

The problem, as Bensayah’s case demonstrated, centered on the catch-all nature of the definition of an “enemy combatant,” which appeared to have been kept deliberately vague by the administration. The definition above, for example, was approved by Judge Leon in October, but it was a sign of how imprecise the whole business is that, seven years after Vice President Dick Cheney and his close advisers came up with the concept of “enemy combatants,” Leon was obliged to clarify the wording — choosing from several different versions — before reviewing any of the cases before him.

According to Leon (PDF), Bensayah fitted the definition of an “enemy combatant” not because he had been involved in a specific al-Qaeda plot, and not because he had raised arms against the United States in Afghanistan or anywhere else, but because the government provided what Leon regarded as “credible and reliable evidence,” from more than one source, establishing that he “planned to go to Afghanistan to both take up arms against US and allied forces and to facilitate the travel of unnamed others to Afghanistan and elsewhere.” Leon also agreed that this evidence “link[ed] Mr. Bensayah to al-Qaeda and, more specifically, to a senior al-Qaeda operative,” and also demonstrated his “skills and abilities to travel between and among countries using false passports in multiple names.”

Because of the secrecy surrounding the disclosure of classified evidence, Leon was not allowed to reveal what has previously been disclosed elsewhere: that the “senior al-Qaeda operative” was the “high-value detainee” Abu Zubaydah, seized in March 2002, who was held and tortured in secret CIA custody until his transfer to Guantánamo in September 2006. Notwithstanding serious doubts regarding Zubaydah’s status as a “senior al-Qaeda operative,” the difficulty raised by Judge Leon’s endorsement of the government’s evidence is, simply, that it allows the government to continue holding Bensayah indefinitely, without ever putting him forward for a trial, thereby reinforcing the government’s unjustifiable contention that prisoners seized in the “War on Terror” are a new category of prisoner who can be held neither as prisoners of war protected by the Geneva Conventions nor as criminal suspects. It is as though the legal wrangling of the last seven years never took place, and today’s date is January 11, 2002.

What makes this scenario even more disturbing is that, on December 30, Judge Leon ruled that two more prisoners — the Yemeni Muaz al-Alawi, and the Tunisian Hisham Sliti — were also correctly detained as “enemy combatants.” In the case of al-Alawi (who is described in court documents as “Moath al-Alwi”), Leon ruled (PDF) that, “by a preponderance of the evidence,” the government had established that he “was part of or supporting Taliban or al-Qaeda forces,” because he “stayed at guest houses associated with the Taliban and al-Qaeda … received military training at two separate camps closely associated with al-Qaeda and the Taliban and supported Taliban fighting forces on two different fronts in the Taliban’s war against the Northern Alliance.”

The problem with Leon’s ruling, of course, is that none of the allegations above relates to “hostilities against the US or its coalition partners.” By Leon’s own account of the evidence, al-Alawi was in Afghanistan before the 9/11 attacks, and was fighting with the Taliban against the Northern Alliance. To counter this, he endorsed the government’s additional claim that, “rather than leave his Taliban unit in the aftermath of September 11, 2001,” al-Alawi “stayed with it until after the United States initiated Operation Enduring Freedom on October 7, 2001; fleeing to Khowst and then to Pakistan only after his unit was subjected to two-to-three US bombing runs.”

In other words, Judge Leon ruled that Muaz al-Alawi can be held indefinitely without charge or trial because, despite traveling to Afghanistan to fight other Muslims before September 11, 2001, “contend[ing] that he had no association with al-Qaeda,” and stating that “his support for and association with the Taliban was minimal and not directed at US or coalition forces,” he was still in Afghanistan when that conflict morphed into a different war following the US-led invasion in October 2001. As Leon admitted in his ruling, “Although there is no evidence of petitioner actually using arms against US or coalition forces, the Government does not need to prove such facts in order for petitioner to be classified as an enemy combatant under the definition adopted by the Court.”

In the case of Hisham Sliti, Judge Leon ruled (PDF) that he too was “part of or supporting Taliban or al-Qaeda forces,” based on claims made by the government that Sliti traveled to Afghanistan as “an al-Qaeda recruit … at the expense of known al-Qaeda associates and on a false passport provided to him by the same,” that he stayed in a guest house and a mosque, and attended a training camp, which also had connections to al-Qaeda, and that he was “instrumental” in “starting a terrorist organization with close ties to al-Qaeda.”

The problem with all of these allegations is that Sliti’s story actually suggests that all these conclusions are based on guilt by association. He may well have been connected with others who were involved in or interested in terrorism, but his own trajectory is that of a junkie rather than a jihadist, or, if you prefer, a tourist rather than a terrorist. Judge Leon disregarded Sliti’s own claim that he went to Afghanistan “to kick a long-standing drug habit and to find a wife,” but it was certainly true that he had been a drug addict in Europe (where he had been imprisoned in various countries on several occasions), and, as his lawyer Clive Stafford Smith has explained, he has a worldly cynicism that is fundamentally at odds with the fanatical rigor of al-Qaeda.

In his book The Eight O’Clock Ferry to the Windward Side: Fighting the Lawless World of Guantánamo Bay, Stafford Smith described Sliti reminiscing at length about the quality of the European prisons compared to Guantánamo. “In Italy the prison was wide open for six hours a day,” he explained. “You could have anything in your room — I had a little fornello, a gas cooker. Can you imagine the Americans allowing that? Here, we call a plastic spoon a ‘Camp Delta Kalashnikov,’ as the soldiers think we’re going to attack them with it.” And in a hearing at Guantánamo, Sliti recounted at length his various exploits in Europe, and told the board that he only ended up in Afghanistan because he had begun attending mosques in Belgium, where the country had been portrayed as “a clean, uncorrupted country where he could study Sharia and further his religious education,” but that what he found instead was that “I didn’t care for the country. It was very hot, dusty and [the] women were ugly. The atmosphere and environment didn’t agree with me.”

In conclusion, then, those concerned with the rule of law can only be dismayed by Judge Leon’s recent rulings, and can only conclude that the entire basis for holding prisoners as “enemy combatants” must be scrapped as soon as possible. If there is genuinely credible evidence that Belkacem Bensayah and Hisham Sliti were involved in any meaningful way with al-Qaeda, then they should face a trial in a US federal court. As for Muaz al-Alawi, he appears to be one of many prisoners who should have been detained as an enemy prisoner of war in accordance with the Geneva Conventions, to be held until the end of hostilities. We would then be discussing whether it is legitimate for the government to claim that the war in which he was captured is a “War on Terror” that may last for generations, or if, in fact, he was captured as part of a specific conflict — namely, the invasion of Afghanistan and the overthrow of the Taliban government — which, in that particular context, came to an end many long years ago.

Note: For further doubts about Muaz al-Alawi’s case, readers may be interested to know that Judge Leon refrained from having to rule on four additional allegations based on demonstrably false confessions made by other prisoners: a claim by an unidentified “al-Qaeda operative” that he had met him at a training camp in 1998 (he traveled to Afghanistan in 2000), a claim that a “source” identified him as being captured in Afghanistan’s Tora Bora mountains (he was captured in Pakistan), a claim that he was observed “pulling security at the Kandahar, Afghanistan airport compound” belonging to Osama bin Laden, and a claim that he was a bodyguard for Osama bin Laden. As I have explained in a previous article, the first of these latter two allegations was produced by a prisoner described as a notorious liar by the FBI, and the second was produced (and later recanted) by Mohammed al-Qahtani, a Saudi who was subjected to a notorious torture program at Guantánamo, during which he falsely accused 30 prisoners of being bodyguards for Osama bin Laden.

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.

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), After 7 Years, Judge Orders Release of Guantánamo Kidnap Victims (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), 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).

Seven Years of Guantánamo, Seven Years of Torture and Lies

Seven years ago, on January 11, 2002, when photos of the first orange-clad detainees to arrive at a hastily-erected prison at Guantánamo Bay, Cuba were made available to the world’s press, defense secretary Donald Rumsfeld reacted to the widespread uproar that greeted the images of the kneeling, shackled men, wearing masks and blacked-out goggles and with earphones completing their sensory deprivation, by stating that it was “probably unfortunate” that the photos were released.

As so often with Rumsfeld’s pronouncements, it was difficult to work out quite what he meant. He appeared to be conceding that newspapers like Britain’s right-wing Daily Mail, which emblazoned its front page with the word “torture,” had a valid point to make, but what he actually meant was that it was unfortunate that the photos had been released because they had led to criticism of the administration’s anti-terror policies.

Rumsfeld proceeded to make it clear that he had no doubts about the significance of the prisoners transferred to Guantánamo, even though their treatment was unprecedented. They were, in essence, part of a novel experiment in detention and interrogation, which involved being held neither as prisoners of war nor as criminal suspects but as “enemy combatants” who could be imprisoned without charge or trial. In addition, they were deprived of the protections of the Geneva Conventions so that they could be coercively interrogated, and then, when they did not produce the intelligence that the administration thought they should have produced, they were — as a highly critical Senate Armed Services Committee report concluded last month — subjected to Chinese torture techniques, taught in US military schools to train American personnel to resist interrogation if captured.

But none of this mattered to Donald Rumsfeld. “These people are committed terrorists,” he declared on January 22, 2002, in the same press conference at which he spoke about the photos. “We are keeping them off the street and out of the airlines and out of nuclear power plants and out of ports across this country and across other countries.” On a visit to Guantánamo five days later, he called the prisoners “among the most dangerous, best-trained, vicious killers on the face of the earth.”

Seven years after Guantánamo opened, it should be abundantly clear that neither Rumsfeld nor Vice President Dick Cheney, President Bush or any of the other defenders of Guantánamo who indulged in similarly hysterical rhetoric, had any idea what they were talking about.

The administration did all in its power to prevent anyone outside the US military and the intelligence services from examining the stories of the men (or even knowing who they were) to see if there was any truth to their assertions, but as details emerged in the long years that followed, it became clear that at least 86 percent of the prisoners were not captured on the battlefields of Afghanistan, as the government alleged, but were seized by the Americans’ allies in Afghanistan — and also in Pakistan — at a time when bounty payments, averaging $5000 a head, were widespread.

Moreover, it also emerged that the military had been ordered not to hold battlefield tribunals (known as “competent tribunals”) under Article 5 of the Third Geneva Convention, which had been held close to the time and place of capture in every military conflict since Vietnam, to separate soldiers from civilians caught up in the fog of war, and that senior figures in the military and the intelligence services, who oversaw the prisoner lists from a base in Kuwait, with input from the Pentagon, had ordered that every Arab who came into US custody was to be sent to Guantánamo.

No wonder, then, that many of these men had no useful or “actionable” intelligence to offer to their interrogators at Guantánamo, and how distressing, therefore, to discover that torture techniques were introduced because, in a horrific resuscitation of the witch hunts of the 17th century, prisoners who claimed to have no knowledge of al-Qaeda or the whereabouts of Osama bin Laden were regarded not as innocent men captured by mistake, or foot soldiers recruited to help the Taliban fight an inter-Muslim civil war that began long before the 9/11 attacks and had nothing to do with bin Laden’s small and secretive terror network, but as al-Qaeda operatives who had been trained to resist interrogation.

The fruits of this torture are plain to see, in the copious number of unsubstantiated — and often contradictory or illogical — allegations that litter the government’s supposed evidence against the prisoners, but as recent reports by the Weekly Standard and the Brookings Institution have shown, those who take the government’s claims at face value end up endorsing the kind of rhetoric spouted by Donald Rumsfeld when the prison opened, and ignoring other commentators whose opinions are considerably less shrill.

These include the intelligence officials who explained in August 2002 that the authorities had netted “no big fish” in Guantánamo, that the prisoners were not “the big-time guys” who might know enough about al-Qaeda to help counter-terrorism officials unravel its secrets, and that some of them “literally don’t know the world is round,” and Maj. Gen. Michael E. Dunlavey, the prison’s operational commander in 2002, who traveled to Afghanistan to complain that too many “Mickey Mouse” prisoners were being sent to Guantánamo.

On Guantánamo’s seventh anniversary, the challenge facing Barack Obama, as he prepares to fulfill his promise to close the prison, is to untangle this web of false confessions, separate innocent men and Taliban foot soldiers from genuine terrorists, scrap the reviled system of trials by Military Commission that was established by Dick Cheney and his legal counsel (and now chief of staff) David Addington, and transfer those suspected of genuine links to al-Qaeda to the US mainland, to face trials in federal courts.

Anything less, and America’s moral standing will remain tarnished. It is, moreover, a mission that must not be subjected to unnecessary delays. As has become apparent in the last few days, at least 30 prisoners — mostly Yemenis, who now comprise 40 percent of the prison’s population — have recently embarked on hunger strikes at Guantánamo. They are, understandably, incensed that Salim Hamdan, a driver for Osama bin Laden, was repatriated in November, to serve out the last month of the meager sentence he received after a trial by Military Commission last summer, while they, who have never been charged with anything, remain imprisoned with no way of knowing if they will ever be released.

With the Associated Press announcing that Hamdan has now been released and is reunited with his family, it must surely be conceded that the hunger strikers have a valid point, and that seven years without justice is far too long.

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.

As published on the Huffington Post, Antiwar.com, CounterPunch and ZNet — and cross-posted on Common Dreams.

In the Guardian: When Will Guantánamo Close?

For the Guardian’s Comment is free, “Will Guantánamo Bay ever close?” is one of several articles that I’ve written marking the seventh anniversary of the opening of the Bush administration’s “War on Terror” prison at Guantánamo Bay, Cuba, where the remaining 248 prisoners — out of 779 prisoners in total — are still held neither as prisoners as war, protected by the Geneva Conventions, nor as criminal suspects who will face trial in federal courts.

In this article, I look at what Barack Obama will need to do to fulfil his promise to close Guantánamo, suggest that the UK needs to accept cleared prisoners to atone for its disturbing complicity in rendition and torture in the “War on Terror,” and reflect, sadly, on how recent news that 30 prisoners have embarked on a hunger strike to protest their conditions of confinement is understandable both as a cry of desperation and as a response to the repatriation in November of Salim Hamdan, a driver for Osama bin Laden who had been convicted of providing material support for terrorism last summer, but — unlike the supposedly less significant prisoners held without charge or trial — had received a surprisingly lenient sentence that came to an end two weeks ago.

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.

Seven Years Of Guantánamo, And A Call For Justice At Bagram

On Sunday 11 January, just nine days before the administration of George W. Bush hands over the reins of power to Barack Obama, the “War on Terror” prison at Guantánamo — perhaps the most bleakly iconic symbol of the outgoing administration’s hubris — marks its seventh anniversary.

A lawless experiment

The facts about the prison make for grim reading. A lawless experiment in arbitrary detention and coercive interrogations, Guantánamo was deliberately chosen as the location for the prison because it was presumed to be beyond the reach of the US courts. The authorities decided that they needed complete freedom to interrogate the prisoners as they saw fit, even though they did not know who they actually had in their custody. The warnings that emerged from the mouths of President Bush, Vice President Dick Cheney and defense secretary Donald Rumsfeld in the days and weeks following the opening of Guantánamo — in which they described the prisoners as “the worst of the worst,” who were “among the most dangerous, best-trained, vicious killers on the face of the earth”  — were in fact hollow rhetoric.

As a study of Pentagon documents by the Seton Hall Law School demonstrated (PDF) — and as I can confirm from my own research for The Guantánamo Files — at least 86 percent of the prisoners were captured not by US forces, but by their Afghan and Pakistani allies, at a time when bounty payments for “al-Qaeda and Taliban suspects,” averaging $5000 a head, were widespread, and the US authorities compounded the baleful effects of this essentially indiscriminate dragnet by refusing to grant the prisoners battlefield tribunals under Article 5 of the Geneva Conventions. Held close to the time and place of capture, these had been implemented in every US war since Vietnam, and allowed witnesses to come forward to help the military separate combatants from civilians caught up in the fog of war.

Further compounding these omissions, those in overall charge of the lists of prisoners held for processing at prisons in Kandahar and Bagram (senior figures from the Pentagon, the military and the intelligence services, who were based in Kuwait) ordered that ever Arab who came into US hands was to be transferred to Guantánamo. As a result, not a single prisoner was ever adequately screened to ascertain if they actually constituted a threat to the US, or were innocent men seized by mistake, but the Bush administration insisted that they were all “enemy combatants” without rights, and deliberately stripped them of the protections of the Geneva Conventions, which prohibit “cruel or inhuman treatment,” to facilitate their interrogation.

Approving torture

The true horror of Guantánamo — and, it should be noted, of the “War on Terror” detention policies in general — became apparent when the administration responded to the meagre flow of intelligence from the Guantánamo prisoners by deciding that this was because they had been trained to resist interrogation by al-Qaeda, and not because, as innocent men and simple Taliban recruits, they had no intelligence to offer. As a highly critical Senate Armed Services Committee inquiry made clear last month (PDF), the authorities’ response was to find new ways to “break” the prisoners psychologically, which they did by reverse engineering Chinese torture techniques taught in US military schools to train American personnel to resist interrogation if captured.

These techniques, known by the acronym SERE (Survival, Evasion, Resistance, Escape), include “stripping detainees of their clothing, placing them in stress positions, putting hoods over their heads, disrupting their sleep, treating them like animals, subjecting them to loud music and flashing lights, and exposing them to extreme temperatures.” In some circumstances, they also include waterboarding, a notorious torture technique, which involves controlled drowning.

The members of the Senate Committee were outraged that techniques that are illegal under the Geneva Conventions and the UN Convention Against Torture, and that are designed to enable US personnel to produce false confessions, formed the basis of the Bush administration’s approach to intelligence gathering in the “War on Terror,” but the policy’s many critics (including the FBI, the Naval Criminal Investigative Service, and the Defense Department’s own Criminal Investigative Task Force) were brushed aside.

Moreover, when the administration felt that even harsher techniques were required for a smaller number of prisoners regarded as particularly significant (both in Guantánamo and in secret prisons established by the CIA), lawyers close to Vice President Dick Cheney — led by David Addington, Cheney’s former legal counsel, and now his chief of staff — attempted to redefine torture as the infliction of pain “equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death,” as a replacement for its definition under the UN Convention Against Torture, to which the US is a signatory, in which torture is correctly recognized as “any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person.”

In terms of producing “actionable intelligence,” of course, the administration’s policy was an unmitigated disaster, as even the most cursory study of the history of torture reveals that it yields inaccurate information, and in Guantánamo this steady flow of coerced falsehoods was supplemented by further lies produced by bribery, as other prisoners took advantage of the promise of better living conditions to tell lies about their fellow inmates. It was, however, sufficient for the administration to claim to the world that the prison was full of dangerous “enemy combatants,” who could be held without charge or trial until the end of a “War on Terror” that the government itself admitted may last for generations.

Guantánamo now

For the prisoners still held at Guantánamo — 248 out of a total of 779 — conditions have improved to the extent that the SERE-derived torture techniques came to an end in the summer of 2004, when the US Supreme Court granted the prisoners habeas corpus rights (the right to challenge the basis of their detention before an impartial judge), and lawyers were finally allowed access to the prison. In other ways, however, Guantánamo remains an affront to all notions of decency.

The majority of the prisoners are now held in almost complete isolation in state-of-the-art cellblocks modelled on maximum-security prisons on the US mainland, their opportunities to socialize or indulge in any of the leisure activities that convicted criminals on the mainland take for granted remain minimal or non-existent, and even the most minor infringements of the prison’s rules are punished with brutal assaults by armoured response teams, and imprisonment –- for a month or more –- in total solitary confinement.

In addition, those who embark on hunger strikes as their only means of protesting their conditions of confinement are force-fed against their will, an experience that is both horribly painful and illegal. Disturbingly, the latest reports indicate that 30 prisoners are currently on hunger strike, complaining about the fact that they remain imprisoned without charge or trial while Salim Hamdan, a driver for Osama bin Laden who was convicted of providing material support for terrorism after a trial by Military Commission last summer, was repatriated in November to serve out the last month of his sentence. As David Remes, a lawyer for 17 Yemeni prisoners, explained, “They’ve actually gone ballistic at the fact that Hamdan, who was convicted of supporting terrorism, was released and they, who have been charged with nothing, continue to languish there.”

Closing Guantánamo

While the hunger strikers are undoubtedly correct in recognizing that the release of Salim Hamdan fatally undermined the rationale for Guantánamo’s continued existence, their greatest hope for release lies with President-Elect Barack Obama, who has pledged to close the prison and to ban the use of torture by US forces as part of an effort to regain America’s moral standing in the world. Even so, Obama needs to act swiftly and decisively if the prison is to be closed sooner rather than later, and he has so far provided few hints about how he proposes to deal with two outstanding problems.

The first of these concerns the 60 or so prisoners who have been cleared for release, but who cannot be freed because they are effectively stateless, or because of international treaties preventing the return of foreign nationals to countries where they face the risk of torture. They are from countries including Algeria, Iraq, Libya, Palestine, Tunisia and Uzbekistan, and they also include 17 Uighurs, Muslims from China’s Xinjiang province, who had ended up in Afghanistan after fleeing government oppression and were sold to US forces after fleeing to Pakistan.

The Uighurs were cleared of being “enemy combatants” last summer, after the first court allowed to review a Guantánamo case — that of Huzaifa Parhat — ruled that the material presented by the government as evidence was comparable to a nonsense poem written by Lewis Carroll, the author of Alice’s Adventures in Wonderland. However, when a judge ruled in October that their continued detention was unconstitutional, and that they should be released to the care of communities in the United States because no other country had been found that would accept them, the government appealed, relying on its own discredited claims that they constituted a threat to the United States.

Obama’s second problem is to assess the quality of the government’s allegations against the other prisoners, to determine who should face a trial on the US mainland (after he fulfils another promise and scraps the Military Commissions), and who should be freed.

Because of the doubts about the quality of the gathering of evidence against the prisoners — as analyzed by the Senate Armed Services Committee and also, under different circumstances, by Lt. Col. Stephen Abraham, a veteran of US intelligence who worked on the prisoner reviews at Guantánamo and single-handedly demolished the government’s integrity in a series of statements in 2007 — this should not be an insurmountable task, but Obama needs to appoint an impartial body to review the cases that is capable of separating fact from fiction. The bitter truth is that Guantánamo is built on lies, and cannot be closed until the government’s lamentable substitute for evidence is examined with rigour and a profound skepticism.

In spite of all these problems, however, the prisoners at Guantánamo can at least be reassured that a great number of people care about their plight and are actively seeking their release. As we pause to think of the prisoners on this shameful anniversary, I ask you also to think of other prisoners — also held for years without charge or trial — who have been almost forgotten by the world, and who do not have even the limited rights for which the Guantánamo prisoners and their lawyers have fought for many long years.

A plea for justice at Bagram

Last week, in a US District Court, Judge John D. Bates listened as lawyers for prisoners held in Bagram prison in Afghanistan argued that they too deserved the habeas corpus rights that the Guantánamo prisoners were granted in June 2004. The lawyers made their appeals on behalf of four prisoners they have never even met. Unlike at Guantánamo, lawyers have never been allowed access to Bagram, where approximately 670 prisoners are held. The majority of these are Afghans, who, according to a Defense Department document cited by the New York Times last January, are held for an average of fourteen and a half months before being either released or transferred to a wing of Pol-i-Charki, the main Afghan prison in Kabul, which was refurbished by US forces in 2007 and is now apparently a place of uneasy cooperation between the Afghan government and the US military.

For the Afghans in Bagram, life is hard enough, as they are held not as prisoners of war protected by the Geneva Conventions, but as a variation on the “enemy combatants” at Guantánamo, subjected to secretive military reviews about which almost nothing is known. However, they at least have more chance of being released than Bagram’s other inmates: the 30 or so prisoners who are from other countries, according to US officials who spoke to the New York Times last January.

In the District Court last week, the four cases examined by Judge Bates involved one Afghan, Haji Wazir, a businessman who was seized in Karachi, Pakistan in 2002, and three of these foreign prisoners: Redha al-Najar (PDF), a Tunisian who was seized from his house in Karachi, where he lived with his wife and child, in May 2002, Amin al-Bakri (PDF), a Yemeni gemstone dealer who was seized in Bangkok, Thailand in December 2002, and Fadi al-Maqalah, a Yemeni who was apparently seized in Afghanistan sometime in 2004.

Disturbingly, the three foreign prisoners seem to have spent time in secret CIA prisons before ending up at Bagram, but what is also disturbing about their cases is that there seems to be no distinction between these prisoners and others who were transferred to Guantánamo, except, of course, that the Bagram prisoners continue to have no rights whatsoever, and the government intends to make sure that they never do.

According to SCOTUSblog, which reports on significant court cases in the United States, Judge Bates appeared to recognize this discrepancy, as he “voic[ed] some concern over the government creating a ‘black hole’ for detainees in a ‘law-free zone’” at Bagram, and “hinted” that he may allow some of the prisoners to file court cases to challenge the basis of their imprisonment.

Everyone concerned with the exercise of justice must hope that Judge Bates will indeed grant habeas rights to prisoners like Haji Wazir, Redha al-Najar, Amin al-Bakri, Fadi al-Maqalah, and, in due course, to others — also held for years — whose identities are either completely unknown or only suspected. Anything less, and Bagram will indeed remain a law-free black hole, even as plans move ahead to close Guantánamo.

Andy Worthington is the author of The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison (published by Pluto Press, distributed by Macmillan in the US, and available from Amazon — click on the following for the US and the UK). To receive new articles in your inbox, please subscribe to the RSS feed. Andy wrote this article exclusively for Cageprisoners.

For more about the Bagram legislation, visit the website of the International Justice Network, whose lawyers, Tina Monshipour Foster and Barbara Olshansky, represent the Bagram prisoners described above.

For a sequence of articles dealing with the hunger strikes at Guantánamo, see Shaker Aamer, A South London Man in Guantánamo: The Children Speak (July 2007), Guantánamo: al-Jazeera cameraman Sami al-Haj fears that he will die (September 2007), The long suffering of Mohammed al-Amin, a Mauritanian teenager sent home from Guantánamo (October 2007), Guantánamo suicides: so who’s telling the truth? (October 2007), Innocents and Foot Soldiers: The Stories of the 14 Saudis Just Released From Guantánamo (Yousef al-Shehri and Murtadha Makram) (November 2007), A letter from Guantánamo (by Al-Jazeera cameraman Sami al-Haj) (January 2008), A Chinese Muslim’s desperate plea from Guantánamo (March 2008), Sami al-Haj: the banned torture pictures of a journalist in Guantánamo (April 2008), The forgotten anniversary of a Guantánamo suicide (May 2008), Binyam Mohamed embarks on hunger strike to protest Guantánamo charges (June 2008), Second anniversary of triple suicide at Guantánamo (June 2008), Guantánamo Suicide Report: Truth or Travesty? (August 2008), British torture victim Binyam Mohamed to be released from Guantánamo (January 2009), Don’t Forget Guantánamo (February 2009), Who’s Running Guantánamo? (February 2009), Obama’s “Humane” Guantánamo Is A Bitter Joke (February 2009), Forgotten in Guantánamo: British resident Shaker Aamer (March 2009), Guantánamo’s Long-Term Hunger Striker Should Be Sent Home (March 2009). Also see the following online chapters of The Guantánamo Files: Website Extras 2 (Ahmed Kuman, Mohammed Haidel), Website Extras 3 (Abdullah al-Yafi, Abdul Rahman Shalabi), Website Extras 4 (Bakri al-Samiri, Murtadha Makram), Website Extras 5 (Ali Mohsen Salih, Ali Yahya al-Raimi, Abu Bakr Alahdal, Tarek Baada, Abdul al-Razzaq Salih).

The Dying Days of the Guantánamo Trials

With less than two weeks until the Bush administration leaves office, Andy Worthington, author of The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison, reports on developments — or the lack of them — during the last month in the Military Commissions, the much-criticized trial system for “terror suspects” that was conceived by Vice President Dick Cheney and his close advisers in the wake of the 9/11 attacks.

Since the last blowout at Guantánamo on December 8, when dozens of reporters and relatives of victims of the 9/11 attacks watched as Khalid Sheikh Mohammed (KSM) and his alleged co-conspirators tried — and failed — to plead guilty so that they could die martyr’s deaths, few observers have witnessed the Commissions go through the motions in the Bush administration’s last days, like a preprogrammed machine, unaware that major changes are afoot, or, less charitably, like a decapitated chicken on its last round of the farmyard.

“We serve the sitting president and will continue to do so until the president-elect is inaugurated, at which time we will implement whatever policies are enacted by the next president,” Navy Cmdr. J.D. Gordon, a Pentagon spokesman, explained last month.

An ignoble history

The Military Commissions have rarely attracted the media attention that a novel, flagship program to try “terror suspects” should have attracted, even though the administration has persistently tried to sell Guantánamo as a place full of the world’s toughest terrorists, rather than what it really is: a place where a few dozen members of a small, fanatical and deeply secretive terror network have been vastly outnumbered by Taliban foot soldiers, recruited to fight an inter-Muslim civil war in Afghanistan that began long before 9/11 and had no connection to al-Qaeda or the 9/11 attacks, or completely innocent men, sold for bounty payments by the United States’ opportunistic allies in Afghanistan and Pakistan.

The rot was there from the beginning, as military defense lawyers, appointed by the government, realized to their horror that the Military Commissions were designed to secure convictions and to facilitate the use of evidence obtained through torture. The entire system should have died in June 2006, when the Supreme Court ruled it illegal, but when Congress revived the monster that fall, its new-found legitimacy was soon punctured when the first prisoner to face a trial, the Australian David Hicks, was repatriated in May 2007 following a plea bargain negotiated by Vice President Dick Cheney as a political favor to his ailing ally, Prime Minister John Howard.

Such cynicism has always been readily apparent when it comes to releasing prisoners from the general population, but for the first trial by Military Commission to be undermined in such a manner appeared to take hypocrisy to a new level, even though a trial, had it proceeded, would have been hard-pushed to present Hicks as a terrorist. Hyperbole of this kind was possible in the early days of the “War on Terror,” when the “American Taliban” John Walker Lindh received a 20-year sentence, but as John Howard found to his chagrin, by 2007 the public was less willing to indulge such hyperbole. As I discovered while writing The Guantánamo Files, far from being caught on the battlefield, Hicks was actually betrayed by an Afghan van driver as he fled northern Afghanistan, trying in vain to hide his blue eyes and blond hair, and was then brutalized mercilessly in US hands.

In the last seven months, as the Bush administration sought to construct a “War on Terror” legacy that would not consist solely of hubris and ridicule, the pressure on the Commissions to press ahead with trials intensified. To a small degree, the ploy was successful. The arraignment and pre-trial hearings of KSM et al. attracted widespread attention in June, September and December, and the trial of Salim Hamdan, a driver for Osama bin Laden, also drew a flurry of interest in the summer — although this was largely mitigated when Hamdan received an extraordinarily lenient sentence (freeing him by the end of the year), which effectively destroyed Guantánamo’s rationale.

There was further bad news in September, when, as a result of his crusading pro-prosecution bias, the Commissions’ legal adviser, Brig. Gen. Thomas Hartmann, was sacked after being disqualified by three military judges, and Lt. Col. Darrel Vandeveld, a prosecutor and a previously staunch supporter of the regime, resigned after seeking advice from a Jesuit peace activist, and left cursing the administration for its deliberate suppression of evidence vital to the defense in the case of the Afghan prisoner Mohamed Jawad. Although Jawad was accused of a grenade attack on a jeep containing US soldiers, it transpired that he was a juvenile when seized, was drugged at the time of the attack by the insurgents who had tricked him into being recruited, and had been tortured in Afghan custody until he confessed. One of Vandeveld’s discoveries was that two other men, neither of whom is held at Guantánamo, had also confessed to the attack.

However, while these stories were widely reported — and there was also sporadic interest in the baleful saga of the Canadian Omar Khadr, the other juvenile facing a trial by Military Commission — the media as a whole (with the valiant exceptions of the Miami Herald’s Carol Rosenberg, the Toronto Star’s Michelle Shephard and Jane Sutton of Reuters) showed little appetite for covering the cases of the other 16 prisoners put forward for trial. This ability to find almost anything else more newsworthy was aptly demonstrated on the eve of the Presidential election when a prisoner named Ali Hamza al-Bahlul received a life sentence — ostensibly to be served in Guantánamo in total isolation — after a one-sided show trial in which, under the Commissions’ deeply flawed rules, he had been allowed to mount no defense whatsoever.

Derailing the cases of Mohamed Jawad and Omar Khadr

Just two days after the last appearance of the KSM circus, when most of the reporters had gone home, Army Col. Stephen Henley, the judge in Mohamed Jawad’s case, “indefinitely delayed” Jawad’s trial, as Jane Sutton explained. The trial had been scheduled to begin on January 5, but Henley gave the prosecution an unspecified amount of time to work out how to appeal his earlier decision to exclude the confession obtained by the Afghan authorities shortly after Jawad’s capture in Kabul in December 2002, because it was “obtained through death threats that constituted torture,” and another confession, which he made to US interrogators the following day, because that too was the “fruit of that torture.” Whether the prosecution can come up with any further evidence is doubtful. As Lt. Col. Vandeveld explained in November, Jawad’s confession to Afghan officials was “among the most important evidence for his upcoming war crimes trial.” Vandeveld added, “To me, the case is not only eviscerated, it is now impossible to prosecute with any credibility.”

Two days later, on December 12, there was a further shock in the case of Omar Khadr. Although the US government has always claimed that Khadr was responsible for throwing a grenade that killed US Sgt. Christopher Speer during the firefight that led to Khadr’s capture in Afghanistan in July 2002, it was revealed in November 2007 — just 36 hours before Khadr’s trial was supposed to begin — that a previously undisclosed “US government employee,” who was an eye-witness to the gunfight, had “potentially exculpatory evidence” proving that another man was alive at the time, and that this other man may have thrown the grenade.

At another pre-trial hearing in March last year, Khadr’s military defense lawyer, Lt. Cmdr. William Kuebler, revealed that the report of the circumstances that led to Khadr’s capture, written by an officer identified only as “Lt. Col. W.,” had been altered after the event to implicate Khadr, and on December 12 another witness, identified only as “Soldier No. 2,” produced further evidence indicating that Khadr could not have thrown the grenade, explaining, as Michelle Shephard described it, that the teenager “was buried under rubble from a collapsed roof before he was captured.”

In a motion submitted by Khadr’s lawyers, the soldier explained that he “thought he was standing on a ‘trap door’ because the ground did not seem solid.” He then “bent down to move the brush away to see what was beneath him and discovered that he was standing on a person; and that Mr. Khadr appeared to be ‘acting dead.’” Speaking to reporters, Lt. Cmdr. Kuebler explained that photographs taken at the scene, which were not shown to observers of the trial proceedings, “show a pile of rubble from the collapsed roof, and then show the debris moved aside to reveal Khadr lying facedown in the dirt,” which “make it abundantly clear Omar Khadr could not have thrown the hand grenade that killed 1st Sgt. Speer.”

A new chief judge

As prosecutors vowed to press ahead with Khadr’s trial on January 26, brushing off the defense team’s perennial cry that juveniles should not be prosecuted for war crimes, and apparently secure that they have other evidence of Khadr making and planting roadside bombs in Afghanistan which will prove that he “knowingly” carried out crimes, the next example of the Commissions’ blinkered view of reality came on December 15, when the Pentagon announced that Army Col. James Pohl, who had presided over the courts martial of several soldiers in the Abu Ghraib scandal, had been appointed as the new chief judge.

Pohl replaced Marine Col. Ralph Kohlmann (whose retirement plans had enabled KSM to mock him for his lack of commitment in September), and had already established himself as an independent-minded judge at Guantánamo. As Carol Rosenberg explained, in March, he “sternly informed” prosecutors in the case of Ahmed al-Darbi, a Saudi seized in Azerbaijan and accused of “plotting a never-realized attack on an unnamed ship in the Strait of Hormuz,” that defense lawyers “should have easy access to their clients.” Lawyers for the 33-year old father of two maintain that al-Darbi was tortured in US custody and that the government’s allegations are reliant on 119 self-incriminating statements.

Col. Pohl also refused to endorse a request from prison commanders to approve violent “Forced Cell Extractions” when prisoners refused to come to the courtroom, and on his first day in his new job, at a pre-trial hearing for al-Darbi, allowed the Saudi to make an appeal to Barack Obama. “Waving a copy of an American Civil Liberties Union poster with a pensive Obama and his campaign’s closure pledge on it,” as Rosenberg explained, al-Darbi said, “I hope this location will be closed as he promised. He will earn back the legitimacy the United States has lost as a world leader.”

This was the last hearing before the eve of Barack Obama’s inauguration, when final pre-trial hearings are supposed to begin in Omar Khadr’s case, and a mental competency hearing is scheduled for alleged 9/11 co-conspirator Ramzi bin al-Shibh, but although Col. Pohl acknowledged that he was “aware that on Jan. 20 there will be a new commander-in-chief, which may or may not impact on these proceedings,” he advised everyone connected with the Commissions to stay focused “unless and until a competent authority tells us not to.”

While this was a fair warning, Col. Pohl’s awareness of political realities was not reflected elsewhere in the Pentagon, nor, I suspect, in the Office of the Vice President, where, as I explained in my article in October that also looked at the sacking of Brig. Gen. Hartmann and the resignation of Lt. Col. Vandeveld, the architects of the Commissions — Dick Cheney and his chief of staff David Addington — seem determined to continue playing out their deranged fantasies until the moment they leave office.

A new prisoner is charged: the story of Tarek El-Sawah

On December 16, just as three Bosnian Algerians flew home from Guantánamo, after Judge Richard Leon, a Bush appointee, threw their cases out of his habeas court for lack of evidence, the Pentagon announced that another Bosnian prisoner, Tarek El-Sawah (aka Tariq al-Sawah), a 51-year old originally from Egypt, was the 27th prisoner to be put forward for trial by Military Commission. The Pentagon also reinstated the charges (PDF) against the Sudanese prisoner Noor Uthman Muhammed, allegedly the deputy emir of the Khaldan training camp, which had been dropped in October.

In El-Sawah’s charge sheet (PDF), in which he was charged with conspiracy and providing material support for terrorism, it was alleged that, between October 2000 and November 2001, he had trained at al-Farouq (the main training camp for Arabs in the years before the 9/11 attacks), had taught “the fundamentals of how to use explosives to members of al-Qaeda, the Taliban and others,” and had “developed and successfully tested a remote controlled limpet mine for use against US warships” at the Tarnak farms training camp, which he had undertaken “at the direction of a member of al-Qaeda’s Shura Council.” It was also alleged that he had written a 400-page manual on bomb-making, and had fought against US and coalition forces in the Tora Bora mountains, until he was wounded and captured.

How much truth there is to these charges is difficult to ascertain. El-Sawah was certainly a militant, but in 2004, at his only appearance before a tribunal at Guantánamo, there was no mention of the bomb-making manual or the limpet mine, and he insisted that both his military commitment — and the training he briefly gave to others in August 2001 — was directed exclusively at the Northern Alliance.

El-Sawah explained that he had traveled to Bosnia as an aid worker in 1992, had married a Bosnian woman and had only gone to Afghanistan to see if it was suitable place to take his family. Once there, however, he clearly succumbed to the most virulent Taliban propaganda against Ahmed Shah Massoud, the leader of the Northern Alliance, who was assassinated by al-Qaeda agents on September 9, 2001. He told his tribunal, “One time in a jihad, Massoud killed about 10,000 Muslims in an hour.” Reiterating that it was his intention solely to support those who were being oppressed by the Northern Alliance, he said, “There are no rules in the United States to prevent it if you want to fight for religion. There are no rules to direct me not to defend people.” He also pointed out that he went to Afghanistan to fight the Northern Alliance before 9/11, when it was no business of the Americans, and asked, “If Massoud and Dostum are American allies, they were not an alliance before September 11th, were they?”

El-Sawah also denied an allegation that he had admitted being a member of al-Qaeda, denied an allegation that he met Osama bin Laden, saying that he saw him once at a meeting of about 250 people, but had no opportunity to actually meet him, and also denied an allegation that he had engaged in hostilities against the United States. In a comment that cut to the heart of what was essentially a proxy war, fought by Afghans with US air support, he said, “There was no fighting against Americans. If there were any American soldiers saying they were fighting in Afghanistan, bring them here to me and show the evidence.”

He also explained that he was sold for money, telling his tribunal, “because the Americans offered $5,000 to anyone who captured us, they [the Northern Alliance] were fighting us and they kept us alive to get the $5,000,” and gave a poignant description of his departure from Jalalabad into the Tora Bora mountains, in which he emphasized that the war in Afghanistan and the fall of the Taliban had triggered an exodus of all kinds of people, not just al-Qaeda and Taliban fighters. “We left everything,” he said. “We were moving through mountains and caves; there were hundreds of families, children, women and people were climbing through the mountains. What were we to do? Some people were escaping from other fronts, near Jalalabad and Kabul. There were too many people there.”

Charges referred in the case of torture victim Abdul Rahim al-Nashiri

The administration’s final gesture, before the Christmas break, was for Susan Crawford, the Commissions’ “Convening Authority” — and a close friend of both Dick Cheney and David Addington — to confirm the charges that were filed last July against Abdul Rahim al-Nashiri. A Saudi, and one of 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 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.

Al-Nashiri faces the death penalty if convicted, although his trial, should it proceed, will undoubtedly be complicated by the fact that he is one of three “high-value detainees” whom CIA director Michael Hayden admitted last February had been subjected to waterboarding in secret CIA custody. In his tribunal at Guantánamo in 2007, al-Nashiri 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.”

Charges dropped against Abdul Ghani, a minor Afghan insurgent

On the same day that the charges against al-Nashiri were confirmed, there was better news for Abdul Ghani, an Afghan prisoner put forward for trial at the end of July. Without providing any explanation, Susan Crawford dismissed the charges “without prejudice,” which meant, as the Pentagon explained, “that the government has the option of charging Ghani at a later date,” but it would surely be better for the 36-year old to sent back to Afghanistan instead, where the Afghan authorities can work out if he actually constitutes a threat.

At best a minor Afghan insurgent, Ghani was charged 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, however, “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.”

Time for change

With less than two weeks until Dick Cheney and David Addington are obliged to leave the White House, when a new broom will also no doubt sweep the corridors of the Pentagon, it remains possible that the architects of the Commissions will indulge in a final round of last-minute tinkering, hoping that their failed experiment will live on, but for the rest of us, Barack Obama’s inauguration cannot come soon enough, nor, indeed, can the fulfillment of a promise that he made in August 2007:

As President, I will close Guantánamo, reject the Military Commissions Act, and adhere to the Geneva Conventions. Our Constitution and our Uniform Code of Military Justice provide a framework for dealing with the terrorists … The separation of powers works. Our Constitution works. We will again set an example to the world that the law is not subject to the whims of stubborn rulers, and that justice is not arbitrary.

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.

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

POSTSCRIPT: On January 14, the Miami Herald reported that Noor Uthman Muhammed had been arraigned, and that the Office of Military Commissions had filed new charges against Ghassan al-Sharbi, Jabran al-Qahtani and Sufyian Barhoumi, whose charges, like those against Muhammed, had been dropped in November. What happened at the arriagnment was not noted, but the Herald‘s Carol Rosenberg noted that, bizarrely, the Defense Department “airlifted TV journalists from China Central TV, The Times of London and Korea’s Dong-a Ilbo Daily” into the prison for the arraignment.

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), 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), Former Guantánamo Prosecutor Condemns Chaotic Trials (Lt. Col. Vandeveld on Mohamed Jawad, January 2009), Torture taints the case of Mohamed Jawad (January 2009), Bush Era Ends with Guantánamo Trial Chief’s Torture Confession (Susan Crawford on Mohammed al-Qahtani, January 2009), Chaos and Lies: Why Obama Was Right to Halt The Guantánamo Trials (January 2009), Binyam Mohamed’s Plea Bargain: Trading Torture For Freedom (March 2009).

And for a sequence of articles dealing with the Obama administration’s response to the Military Commissions, see: Don’t Forget Guantánamo (February 2009), Who’s Running Guantánamo? (February 2009), The Talking Dog interviews Darrel Vandeveld, former Guantánamo prosecutor (February 2009), Obama’s First 100 Days: A Start On Guantánamo, But Not Enough (May 2009), Obama Returns To Bush Era On Guantánamo (May 2009), New Chief Prosecutor Appointed For Military Commissions At Guantánamo (May 2009), Pain At Guantánamo And Paralysis In Government (May 2009), My Message To Obama: Great Speech, But No Military Commissions and No “Preventive Detention” (May 2009), Guantánamo And The Many Failures Of US Politicians (May 2009), A Child At Guantánamo: The Unending Torment of Mohamed Jawad (June 2009), A Broken Circus: Guantánamo Trials Convene For One Day Of Chaos (June 2009), Obama Proposes Swift Execution of Alleged 9/11 Conspirators (June 2009), Obama’s Confusion Over Guantánamo Terror Trials (June 2009).

The Top Ten Judges of 2008

Or, Praise for Those Defending Rights and Liberties in the “War on Terror”

A Talking Dog/Andy Worthington co-production

Andy suggested that he and I team up on a top ten list of what we felt after at least seven years of winter in the American judicial system, when we now have some semblance of the sun breaking through. And so, we have nominated ten cracks in the judicial ceiling last year, from all levels of the judiciary, and, in one case, from a foreign court.

So I’m going to start with my own nominees. Andy’s list may be different, or overlap, or he may have different rationales. The judgments are entirely subjective, and are entirely mine, from the perspective of an attorney making his living in the American legal system here in New York, and his, from the perspective of a historian and journalist looking at this from London. Maybe we’ll let commenters or others suggest their favorites, or their preferences. Who knows? My five are below.

The Talking Dog’s Top Five Judges of 2008

1. The US Supreme Court. The Supremes’ nomination covers two cases this year. One is from the start of December, for accepting review in the case of Ali al-Marri, better called “The Case of the Executive Override of the Rest of the Constitution,” and the second most important case of our life-times after the eerily similar Jose Padilla case. The other is for their courageous, albeit 5-4, holding in June, in Boumediene v. Bush, that habeas corpus is actually still a Constitutional first principle even if terrorists get lucky and George W. Bush happens to be the President. And on the basis of Boumediene, we immediately garner two more nominations, both for judges on the District of Columbia federal district court.

2. The first of these is Judge Ricardo Urbina, who ruled that 17 Uighur detainees from China were not “enemy combatants” at all. Urbina ordered their release to human rights groups within the United States, cutting through the red tape that “legislation is needed” to enforce a remedy that the Supreme Court says is required by the Constitution. The government has appealed and obtained a stay from the D.C. Circuit Court of Appeals. However, the government is not going to return them to China (where they would almost certainly be tortured and/or killed), and unless they join their fellow Uighur former detainees in Albania (who were sent there in May 2006), it is not clear where they will go, as the Bush administration refuses to permit them to be admitted to the United States and insists they rot in solitary confinement in GTMO. In addition, it has, of course, become difficult to get other countries to take the political risk of accepting the Uighurs, when the Bush administration insists (against all facts, btw) that they are terrorists.

3. The second of these D.C. District Court judge heroes is, oddly enough, Judge Richard Leon, a habeas judge, who found that five of the six Boumediene plaintiffs themselves — Algerian/Bosnian detainees — were not “enemy combatants,” despite the government’s contesting this fact. Leon, a judicial conservative appointed by George W. Bush himself, had famously found that the detainees had no rights of legal redress in an earlier, pre-Boumediene round of legal proceedings.

And now I’m going to go to the two most courageous judges of all, IMHO, those being military judges who, like military defense attorney Lt. Cmdr. Charlie Swift and others, have put their military careers at risk by trying to do the right thing by Guantánamo detainees, even those charged in the Military Commissions (aka the worst of the worst of the worst).

4. The first is Captain Keith Allred of the US Navy, for courageously sticking to his guns despite pressure (unlawful pressure, as our next entrant will show) from the Bush administration to do what it wanted. Specifically, after managing the show trial of Salim Hamdan, at which angels dancing on the head of a pin were parsed to establish that carrying a weapon potentially used against American military forces (i.e. being part of a force that opposes the United States military) is now defined as a war crime. Despite the ludicrousness of the conviction, the military jury imposed a five and a half year sentence, sustained by Judge Allred, who concluded that, less the nearly five years Hamdan had already served, he would be released on December 26.

Notwithstanding the fact that its own kangaroo court had adjudicated an outcome and determinate sentence, the Bush administration insisted that it could still nonetheless hold Mr. Hamdan — just as it can hold Mr. al-Marri, Mr. Padilla, or, if it felt like it, Mr. Worthington or Mr. Talking Dog — as long as it feels like, up to and including for the rest of our lives. Fortunately, Judge Allred held the line and would not alter the sentence.

5. The second, rounding out my top five, is Air Force Col. Steve Henley, who, in the prosecution of a detainee named Mohamed Jawad, held that Brig. Gen. Thomas Hartmann, chief legal advisor to “the convening authority” (the official in charge of the entire Guantánamo military commissions process, Cheney/ Addington protégé Susan Crawford) was intrinsically biased, insisting on the use of coerced evidence and demanding that all cases end in conviction. Hartmann also outraged former chief prosecutor Col. Morris Davis, who resigned in October 2007, and confronted skeptical prosecutors (such as Lt. Col. Darrel Vandeveld, who resigned in September 2008) by demanding that they comply with the program.

Andy Worthington’s Top Five Judges of 2008

1. I’m with the Talking Dog on the importance of the Supreme Court’s ruling in Boumediene v. Bush, reinforcing the habeas rights the justices first granted in June 2004, only to watch as Congress then passed legislation purporting to strip the prisoners of these rights. By making the prisoners’ habeas rights constitutional, and by ruling that parts of the legislation passed by Congress were unconstitutional, five of the nine highest judges in the land asserted their powers in an ongoing struggle with a compliant Congress and an executive branch besotted with claims of unfettered Presidential authority. For the record, Justices Anthony Kennedy, John P. Stevens, David Souter, Ruth Bader Ginsburg and Stephen Breyer ruled in favor of the prisoners, while Chief Justice John G. Roberts, and Justices Antonin Scalia, Clarence Thomas and Samuel Alito dissented.

Just as significant, however, is what happened shortly after Boumediene, when Parhat v. Gates, a case that had been frozen during three years of wrangling over the prisoners’ rights, was heard in a Washington D.C. Appeals Court. My first nomination, therefore, is for Chief Judge David B. Sentelle (left), Judge Merrick B. Garland, and Judge Thomas B. Griffith (two Conservatives and a Liberal), who, after looking at the government’s material to support its claim that Huzaifa Parhat (one of the Uighurs) was connected in any way with terrorist activity, concluded that the material supposedly proving that he was an “enemy combatant” who could be held without charge or trial was in fact groundless, and resembled the reasoning used in “The Hunting of the Snark,” a nonsense poem by Lewis Carroll, the author of Alice’s Adventures in Wonderland.

The Parhat verdict was an enormous blow to the administration. Within months, the government gave up trying to prove that any of the other 16 Uighurs were “enemy combatants,” which led, as the Talking Dog has pointed out, to Judge Urbina’s eloquent assertion of constitutional rights in the Uighurs’ case in October.

2. My second nomination follows swiftly on from the first. When the government appealed Judge Urbina’s ruling to release the Uighurs into the care of communities in the United States, and the court accepted the government’s appeal, one of the three judges, Judge Judith W. Rogers, made a sweeping defense of the Uighurs’ rights — and the government’s lies — that earns her this nomination. The full story is available here, but what was particularly striking about her dissent was the way in which she repeatedly attacked the government for failing to demonstrate that the Uighurs were a danger to anyone, and also condemned the government’s lawyers for attempting to undermine the court’s powers as endorsed in Boumediene.

3. My third nomination is Judge Diana Gribbon Motz, the valiant dissenting judge in the 4th Circuit Appeals Court review of the case of US “enemy combatant” Ali al-Marri in July. With the support of three other dissenting judges, M. Blane Michael, Robert B. King and Roger L. Gregory, Judge Motz comprehensively demolished the other judges’ assertions that an American — whether a citizen or a resident — could be seized and held indefinitely as an “enemy combatant.” The full story is here (and an update on al-Marri is here), but Judge Motz’s most critical passages are worth reproducing in full.

In the first, Judge Motz wrote,

With regret, we recognize that this [dissenting] view does not command a majority of the court. Our colleagues hold that the President can order the military to seize from his home and indefinitely detain anyone — including an American citizen — even though he has never affiliated with an enemy nation, fought alongside any nation’s armed forces, or borne arms against the United States anywhere in the world. We cannot agree that in a broad and general statute, Congress silently authorized a detention power that so vastly exceeds all traditional bounds. No existing law permits this extraordinary exercise of executive power.

And this is Judge Motz’s conclusion:

To sanction such presidential authority to order the military to seize and indefinitely detain civilians, even if the President call them ‘enemy combatants,’ would have disastrous consequences for the Constitution — and the country. For a court to uphold a claim to such extraordinary power would do more than render lifeless the Suspension Clause, the Due Process Clause, and the rights to criminal process in the Fourth, Fifth, Sixth and Eighth Amendments; it would effectively undermine all of the freedoms guaranteed by the Constitution. It is that power — were a court to recognize it — that could lead all our laws “to go unexecuted, and the government itself to go to pieces.” We refuse to recognize a claim to power that would so alter the constitutional foundations of our Republic.

4. My fourth nomination is for a number of judges in the case of Binyam Mohamed, a British resident and a victim of “extraordinary rendition” and torture. Seized in Pakistan in April 2002, Mohamed was rendered by the CIA to Morocco, where he was tortured for 18 months, and was then rendered to the CIA’s “Dark Prison” near Kabul, where his torture continued for another five months, at the end of which he falsely confessed to being involved with al-Qaeda and being part of the spectral “dirty bomb” plot in which Jose Padilla had also become entangled.

For most of the year, Mohamed’s lawyers, at the London-based legal action charity Reprieve, have been engaged in reviews of his case on both sides of the Atlantic. In the UK, this took place when a judicial review was granted after Mohamed’s lawyers sued the British government for refusing to provide exculpatory evidence in its possession regarding British knowledge his rendition and torture.

In the British High Court, Lord Justice Thomas (left) and Mr. Justice Lloyd Jones earned this nomination for their handling of Mohamed’s judicial review, in which they were clearly appalled by the behavior of the British intelligence services, and were also shocked by the lawlessness of the Bush administration’s Military Commissions trial system, even though it was outside their remit to comment directly on its shortcomings.

When they delivered a judgment at the end of August, they condemned the British intelligence services for sending agents to interrogate Mohamed in May 2002, while he was being held illegally in Pakistan, and also for providing and receiving intelligence about him from July 2002 until February 2003, when they knew that he was being held incommunicado, and should not have been involved without receiving cast-iron assurances about his welfare. “[T]he relationship between the United Kingdom Government and the United States authorities,” they wrote, “went far beyond that of a bystander or witness to the alleged wrongdoing.”

Also in August, as a result of Boumediene, Mohamed’s habeas review began in the United States, when Judge Emmet G. Sullivan pressed the US government to reveal all exculpatory evidence in the case. Sullivan shares the nomination for asking, when the Justice Department suddenly dropped the allegation about the “dirty bomb” plot, “That raises a question as to whether or not the allegations were ever true,” and for then ordering defense secretary Robert Gates to testify that all exculpatory evidence had been provided. As I pointed out in a recent article, although Gates complied, his assertion that all the required evidence had been handed over was patently untrue, as the government has never once acknowledged that Mohammed was rendered and tortured in Morocco and Afghanistan, and cannot conceivably defend its allegations without providing an opportunity for Mohamed’s lawyers — or Judge Sullivan — to ascertain the circumstances in which his “confession” was produced.

5. My final nomination, with a nod to Col. Henley and especially Capt. Allred, who appeared to steer Salim Hamdan’s trial towards a just conclusion that was then endorsed by the military jury, is Col. Peter Brownback, the judge in the case of Omar Khadr, the Canadian who was just 15 when he was seized in Afghanistan in July 2002. Brownback’s finest hour actually came in June 2007, when, with Capt. Allred, he temporarily derailed the entire Commission process by ruling that the Military Commissions Act, which revived the Commissions after the Supreme Court ruled them illegal in June 2006, had empowered them to try “illegal enemy combatants,” whereas the Combatant Status Review Tribunals (the military review boards that had authorized the prisoners to be put forward for trial) had only decided that they were “enemy combatants.”

After the government hastily convened an appeals court to indicate that the judges could overrule themselves, Brownback continued to cause trouble by publicly lambasting the prosecution for not handing over evidence that was necessary for Khadr’s defense. The high point came in May last year, when, noting that the prosecution, led by Maj. Jeffrey Groharing, had failed to provide Khadr’s lawyers with records of his interrogations at Guantánamo, despite repeated requests to do so, Brownback declared, “I have been badgered, beaten and bruised by Maj. Groharing since the 7th of November to set a trial date. To get a trial date, I need to get discovery done.”

Three weeks later, Brownback was gone, and although there may be an innocent explanation — involving Brownback coming out of retirement to serve as a Commission judge, and reaching the end of his contract — the timing struck many observers as suspicious. Whatever the truth is, Col. Brownback’s “badgered, beaten and bruised” speech concludes my review of liberty’s judicial defenders in 2008.

The New Year, as the Talking Dog explained, brings some semblance of the sun breaking through, but it is clear that much work needs to be done to do away with the abominations of the Bush years. This time next year, both TD and I hope that the Supreme Court will once more be nominated, this time for ruling, in Ali al-Marri’s case, that the President has no right to seize and indefinitely detain Americans as “enemy combatants” on the US mainland, but we also both wonder whether any of the administration’s other crimes — approving the use of torture by US forces, implementing “extraordinary rendition” on an industrial scale, holding foreign prisoners neither as criminals nor as prisoners of war, but as “enemy combatants” without rights — will also have been addressed. We sincerely hope so, as, without some sort of accountability, the message that the new President will send to America and the wider world is that you can break whatever laws you feel like, and get away with it, so long as you get voted out of office at the end.

The Talking Dog is a New York attorney, and a perceptive commentator on the crimes and follies of the Bush administration. 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.

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), After 7 Years, Judge Orders Release of Guantánamo Kidnap Victims (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), 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).

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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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