Archive for February, 2009

Home Secretary ignores Court decision, kidnaps bailed men and imprisons them in Belmarsh

The Home Secretary, Jacqui Smith, appears to have declared war on the government’s own secret terror court, overruling decisions made by judges in the Special Immigration Appeals Court (SIAC) yesterday, and — in what can only be described as an act of executive fiat — unilaterally revoking their bail, kidnapping them on their way home from the London courtroom (or in raids on their homes) and imprisoning them in Belmarsh high-security prison in south east London.

After the Law Lords’ ruling last week that Abu Qatada and two Algerians — known only as U and RB — can be deported to Jordan and Algeria, the government petitioned to revoke the bail conditions of U and RB, as well as three other men — known only as Y, Z and VV — but failed to inform their lawyers until Wednesday, and then gagged them, preventing them from discussing the cases until yesterday, when they mounted a challenge at a SIAC hearing in London. An observer noted that the government’s claims that it now had the right to revoke the bail of the five men was “comprehensively trashed” by Dinah Rose QC, representing the men.

More importantly, the SIAC judges ruled that no further action in respect of the men’s cases was to be taken until next week at the earliest, and scheduled a full hearing for next Thursday morning.

However, when the two men who attended the hearing — U and VV — were driven away from the court, expecting to return home, as ordered by the SIAC judges, they were, instead, delivered to Belmarsh prison, where they were joined by the other three men, who had been seized in raids on their homes. This was clearly planned by the Home Secretary in advance, even though she had informed neither the men’s lawyers nor the SIAC judges. The first the lawyers heard about it was when one of the men’s wives rang, inquiring why he had not yet returned home.

SIAC is meeting again today, and the whole situation threatens to turn into a colossal headache for the government. The men’s lawyers will argue that the government was in contempt of court, and it is expected that Mr. Justice Mitting, the chief judge, will not be happy to hear that the government behaved as though SIAC’s decisions were irrelevant, and, moreover, that the Home Secretary then acted in a manner that would have pleased King John, in those days before England’s nobles forced him to sign the Magna Carta in 1215, establishing for the first time that the king had no right to imprison his subjects “except upon the lawful judgment of his peers or the law of the land.”

Today, we seem to be experiencing a new version of the divine right of kings: the self-declared right of an elected government official to ignore her own judges, and to cast foreign “terror suspects” into the modern day version of the Tower of London — Belmarsh prison — with no regard for the laws established over the last 794 years.

UPDATE at 1 pm: In a humiliating defeat for the government, the SIAC judges have just ruled that all of the men — except U — are to be released from Belmarsh and allowed to return home under previously agreed conditions. The humiliation of Jacqui Smith will hopefully soon be announced in greater detail.

UPDATE at 3 pm: I’ve just heard from observers that the judges’ decision to order four of the five men to be sent home was chosen as an alternative to the lawyers’ recommended course of action: nailing Jacqui Smith for contempt of court and kidnap.

SIAC will now be meeting next Wednesday (March 4) to discuss the European Court of Human Rights’ objections to the British government’s use of Special Advocates in closed court sessions, and the rules preventing the Special Advocates from reporting any information whatsoever to either the accused or their lawyers.

A hearing to review U’s bail conditions is scheduled for March 5, and another hearing, examining the government’s request to revoke all the men’s existing bail conditions and to imprison them in Belmarsh by legal means is scheduled for March 11.

Please come along if you can. Hearings start at 9.30 am. SIAC is located at Field House, 15 Bream’s Buildings, London EC4A 1DZ. A map is here.

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

For other articles dealing with Belmarsh, control orders, deportation bail, deportation and extradition, see Deals with dictators undermined by British request for return of five Guantánamo detainees (August 2007), Britain’s Guantánamo: the troubling tale of Tunisian Belmarsh detainee Hedi Boudhiba, extradited, cleared and abandoned in Spain (August 2007), Guantánamo as house arrest: Britain’s law lords capitulate on control orders (November 2007), The Guantánamo Britons and Spain’s dubious extradition request (December 2007), Britain’s Guantánamo: control orders renewed, as one suspect is freed (February 2008), Spanish drop “inhuman” extradition request for Guantánamo Britons (March 2008), UK government deports 60 Iraqi Kurds; no one notices (March 2008), Repatriation as Russian Roulette: Will the Two Algerians Freed from Guantánamo Be Treated Fairly? (July 2008), Abu Qatada: Law Lords and Government Endorse Torture (February 2009), Ex-Guantánamo prisoner refused entry into UK, held in deportation centre (February 2009), Britain’s insane secret terror evidence (March 2009).

Ex-Guantánamo prisoner Omar Deghayes talk about British agents’ visits in Islamabad and Bagram prisons (video)

With the return of torture victim Binyam Mohamed to the UK on Monday, and John Hutton’s extraordinary confession today that, despite previous denials, British forces in Iraq in 2004 handed over two terror suspects to the US who were then subjected to “extraordinary rendition” and sent to Afghanistan for interrogation, the British government’s complicity in the torture, rendition and detention of “War on Terror” prisoners in lawless conditions is very much in the news.

In the hope of contributing to the debate about the extent of British involvement in the “War on Terror,” Spectacle Productions are pleased to present a 12-minute video of former Guantánamo prisoner Omar Deghayes talking about the visits he received from British intelligence agents while he was held in a Pakistani prison in Islamabad, and in the US prison at Bagram airbase in Afghanistan, before his transfer to Guantánamo.

The video is also available in two parts via YouTube:

Omar was kidnapped from the house in Lahore where he was staying with his Afghan wife and six-month old son, and was taken briefly to a prison in Lahore, and then moved to a private prison in Islamabad, along with other prisoners kidnapped at the time, when the US government was offering bounty payments for al-Qaeda and Taliban suspects, and the Pakistani government was also put under immense pressure to hand over foreign “terror suspects.”

From here, Omar was taken to a selection of villas around the city, where US agents were present, and where he first encountered “Andrew,” a British intelligence agent. He also talks about his experiences in Bagram, which he describes as being akin to a Nazi concentration camp, where, while extremely ill, he was also visited and interrogated by British agents.

Omar’s testimony is part of a forthcoming documentary film, with the working title, “Outside the Law: The Story of Guantánamo,” a Spectacle Production, by film-makers Polly Nash and Mark Saunders, and Andy Worthington, journalist and author of The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison. To receive new articles in your inbox, please subscribe to my RSS feed.

The photo of Omar — taken during Cageprisoners’ “Two Sides One Story” tour — is from the website Tales from Bradistan.

Ex-Guantánamo prisoner refused entry into UK, held in deportation centre

As one door opens, another, it seems, closes. While British resident Binyam Mohamed was on his was back to the UK from Guantánamo, Jarallah al-Marri, the Qatari national who was released from Guantánamo last July, was detained at Heathrow airport after flying into the UK on Sunday. He is being held at the Colnbrook Immigration Removal Centre.

This is both unpleasant and inexplicable, as Jarallah came to the UK without incident last month to take part in the UK tour — “Two Sides One Story” — which was organized by Cageprisoners, and featured released prisoner Moazzam Begg and former guard Chris Arendt. Standing in at the last minute for Sami al-Haj, the al-Jazeera journalist who was supposed to be the star of the show, but whose visa was refused by the British government, Jarallah travelled around the UK with Moazzam and Chris, explaining, in his softly-spoken manner, that he did not wish to talk about himself, but was, instead, devoted to publicizing the light of his brother Ali, a legal US resident, who has been held in the United States without charge or trial for over seven years, and has spent the last four years and eight months in horrendous solitary confinement as the only “enemy combatant” on the US mainland.

Moazzam Begg explained on Tuesday that, after the tour, Jarallah returned home but made plans to return on Sunday to discuss Ali’s case with solicitor Gareth Peirce, Clive Stafford Smith, the director of the legal action charity Reprieve, and representatives of Amnesty International. Moazzam added that “even more relevant was his desire to meet Binyam Mohamed, with whom he was held for so many years,” and that he hoped to meet Binyam on Tuesday with Moazzam.

As Moazzam also explained, the reason for Jarallah’s detention and impending deportation, as he explained on the ‘phone from Colnbrook, was because he did not disclose on his visa form that he had been held in Guantánamo.

Moazzam said, “Considering this is his second time coming to the UK and in light of the very public nature of that visit, it seems astounding that he would be detained, and on the very day of Binyam’s release, at that.” In addition, it strikes me as appalling that Jarallah is being refused entry by the UK because, like all the Guantánamo prisoners, he is indelibly tainted by his association with that most notorious of prisons, even though he was never charged with a crime during the seven years that he was held in US custody, where he was abused and held in horrendous isolation.

As Jarallah stated in a telephone conversation with an Associated Press reporter, “They said, ‘We didn’t know you were in Guantánamo.’ All the world, they know. (The British government is) the last to know? It’s a shame.”

That was putting it mildly — but then, that’s typical of Jarallah.

Jarallah is being held at:
Colnbrook Immigration Removal Centre
Colnbrook Bypass
Harmondsworth
West Drayton
UB7 0FX
Telephone: 020 8607 5200 (phone lines open at 9 am)

Photos by Sarah Mirk. Visit her website Guantánamo Voices for more about the “Two Sides One Story” tour — and more on Jarallah.

UPDATE March 1: I’ve heard that Jarallah has now been returned to Qatar from the UK, but have no further news. I’ll add more details if I discover further information.

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

For other articles dealing with Belmarsh, control orders, deportation bail, deportation and extradition, see Deals with dictators undermined by British request for return of five Guantánamo detainees (August 2007), Britain’s Guantánamo: the troubling tale of Tunisian Belmarsh detainee Hedi Boudhiba, extradited, cleared and abandoned in Spain (August 2007), Guantánamo as house arrest: Britain’s law lords capitulate on control orders (November 2007), The Guantánamo Britons and Spain’s dubious extradition request (December 2007), Britain’s Guantánamo: control orders renewed, as one suspect is freed (February 2008), Spanish drop “inhuman” extradition request for Guantánamo Britons (March 2008), UK government deports 60 Iraqi Kurds; no one notices (March 2008), Repatriation as Russian Roulette: Will the Two Algerians Freed from Guantánamo Be Treated Fairly? (July 2008), Abu Qatada: Law Lords and Government Endorse Torture (February 2009), Home Secretary ignores Court decision, kidnaps bailed men and imprisons them in Belmarsh (February 2009), Britain’s insane secret terror evidence (March 2009).

Anti-Torture Groups Request Special Prosecutor for Bush, Cheney War Crimes

Lawyers’ organizations, anti-war groups, peace groups and others today issued the following statement:

Statement on Prosecution of Former High Officials

We urge Attorney General Eric Holder to appoint a non-partisan independent Special Counsel to immediately commence a prosecutorial investigation into the most serious alleged crimes of former President George W. Bush, former Vice President Richard B. Cheney, the attorneys formerly employed by the Department of Justice whose memos sought to justify torture, and other former top officials of the Bush Administration.

Our laws, and treaties that under Article VI of our Constitution are the supreme law of the land, require the prosecution of crimes that strong evidence suggests these individuals have committed. Both the former president and the former vice president have confessed to authorizing a torture procedure that is illegal under our law and treaty obligations. The former president has confessed to violating the Foreign Intelligence Surveillance Act.

We see no need for these prosecutions to be extraordinarily lengthy or costly, and no need to wait for the recommendations of a panel or “truth” commission when substantial evidence of the crimes is already in the public domain. We believe the most effective investigation can be conducted by a prosecutor, and we believe such an investigation should begin immediately.

Drafted by The Robert Jackson Steering Committee (Lawrence Velvel, Kristina Borjesson, Marjorie Cohn, Colleen Costello, Ben Davis, Valeria Gheorghiu, Chris Pyle, Elaine Scarry, David Swanson, Peter Weiss, Andy Worthington)
Contact: David Swanson

Signed By:

Center for Constitutional Rights
The National Lawyers Guild
After Downing Street
American Freedom Campaign
Ann Wright, retired US Army Reserve Colonel and US diplomat
Backbone Campaign
Brad Blog
Cities for Peace
CODE PINK: Women for Peace
Daniel Ellsberg, Truth-Telling Project
Defending Dissent Foundation
Delaware Valley Veterans for America
Democrats.com
Global Network Against Weapons & Nuclear Power in Space
Gold Star Families for Peace
Grandmothers Against the War
Grassroots America
High Road for Human Rights Advocacy Project
Iraq Veterans Against the War
Justice Through Music
Marcus Raskin, co-founder of Institute for Policy Studies, member of editorial board of the Nation, member of the special staff of the National Security Council in the Kennedy Administration
Media Freedom Foundation/Project Censored
Naomi Wolf, author of End of America: Letter of Warning to a Young Patriot, and Give Me Liberty: A Handbook for American Revolutionaries
National Accountability Network
Northeast Impeachment Coalition
Op Ed News
Peace Action
Peace Team
The Progressive
Progressive Democrats of America
Republicans for Impeachment
United for Peace and Justice
Velvet Revolution
Veteran Intelligence Professionals for Sanity
Veterans for Peace
Voters for Peace
War Crimes Times
Wisconsin Impeachment/Bring Our Troops Home Coalition
World Can’t Wait

UPDATE March 22: 168 groups and individuals have now signed up. Please visit the After Downing Street website for the latest, and visit this page for further information.

UPDATE June 25: 216 groups and individuals have now signed up.

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.

Who Is Binyam Mohamed, the British resident released from Guantánamo?

As British resident Binyam Mohamed stepped off a plane at RAF Northolt on Monday February 23, six years and ten months since he was first abducted by the Pakistani authorities at Karachi airport, it was impossible not to sympathize with the words written in a statement made by the tall, thin, slightly-stooped 30-year old, and delivered by his lawyers at a press conference.

“I hope you will understand that after everything I have been through I am neither physically nor mentally capable of facing the media on the moment of my arrival back to Britain,” the statement read. “Please forgive me if I make a simple statement through my lawyer. I hope to be able to do better in days to come, when I am on the road to recovery.”

For the last three and half years, since Binyam Mohamed’s lawyers (at Reprieve, the legal action charity) first released his harrowing account of his torture in Morocco at the hands of the CIA’s proxy torturers, the British resident’s story has, understandably, had few bright episodes. As Clive Stafford Smith, Reprieve’s director, explained in his book Eight O’Clock Ferry to the Windward Side (known in the UK as Bad Men), during the three days in Guantánamo that Binyam related the story of his horrendous ordeal — for 18 months in Morocco, and then for another five months at the CIA’s own “Dark Prison” near Kabul, until he finally made false confessions that he was involved with al-Qaeda and had planned to detonate a radioactive “dirty bomb” in New York — he explained, “I’m sorry I have no emotion when talking about the past, ’cause I have closed. You have to figure out the emotion part — I’m kind of dead in the head.”

And yet, as Binyam embarks on his long “road to recovery” — attended by his lawyers, and, mercifully, by his sister Zuhra, who flew from her home in the United States to meet him, and to fill what would otherwise have been an aching void, as Binyam has no family in the UK — it is unlikely that the media will, in general, manage to report much of the man behind the myth that has grown up around him.

To that end, I thought it appropriate to relate a few anecdotes that bring Binyam the human being, rather than Binyam the prisoner, to life. The first comes from Stafford Smith’s book, where he describes his first meeting with Binyam as follows:

Binyam was twenty-seven. He was tall and gangling, dark-skinned, originally from Ethiopia. He smiled and immediately told me how glad he was to see me. He spoke quietly, with a particular dignity. Some prisoners would take many hours of convincing that I was not from the CIA, but Binyam immediately opened up.

Of particular interest is an extraordinary chapter, “Con-mission,” which relates the farcical story of Binyam’s first hearing for his proposed trial by Military Commission at Guantánamo, in 2006, just before the Commissions were declared illegal by the US Supreme Court. It’s worth buying the book for this chapter alone, as it explains in extraordinary detail quite how farcical Guantánamo’s rigged trial system was, and how it was exploited mercilessly by Binyam, who arranged for Stafford Smith to get him “a proper type of Islamic dress,” dyed orange (he wanted a Dutch football shirt, but Reprieve couldn’t find one), to make a clear visual statement in court that he was no ordinary defendant and this was no ordinary trial. He also asked for a marker pen and a piece of card, and, during the hearing, after he had thrown the judge, Marine Col. Ralph Kolhmann, off his stride by launching into a rambling monologue about justice that Kohlmann found himself unable to interrupt, he took the marker pen, scrawled “CON-MISSION” on it, showed it to the gathered journalists, and declared, “this is not a commission, this is a con-mission, is a mission to con the world, and that’s what it is, you understand.”

Warming to his theme, as Col. Kohlmann “was staring into the headlights of Binyam’s speech and could see no way to cut him off,” he continued:

When are you going to stop this? This is not the way to deal with this issue. That is why I don’t want to call this place a courtroom, because I don’t think it is a courtroom.

I am sure you wouldn’t agree with it, because if you was arrested somewhere in Arabia and Bin Laden says, “You know what, you are my enemy but I am going to force you to have a lawyer and I give you some bearded turban person,” I don’t think you will agree with that. Forget the rules, regulations and crap … you wouldn’t deal with that. That is where we are. This is a bad place. You are in charge of it.

Stafford Smith then proceeded to explain:

It was an extraordinary lecture. Binyam finally came to a firm conclusion. “I am done. You can stop looking at the watch,” he said. He then turned away from Kohlmann, as if to ignore any response. He was holding up his sign, “CON-MISSION,” and waving it to the journalists behind him, just in case they had missed it the first time.

The other story was related by another British resident held at Guantánamo, Bisher al-Rawi, who was released in March 2007, and his words capture how Binyam’s concern for justice permeated his entire approach to his imprisonment, and, in Bisher’s opinion, also reflected a very British approach that he had learned during the seven years he had lived in the UK before his capture:

He is so British — I mean so British! The way he stands, the way he talks, his painstaking use of logic. He’s such a gentleman. And he is knowledgeable and he stands up for his rights in a really British way. Like with S.O.P. This is something the guards have. It is called Standard Operating Procedure — S.O.P. And the funny thing about this Standard Operating Procedure is that it changes every day. Every day you have new Standard Operating Procedure. And Binyam, he draws attention to this and insists on his entitlement to be treated the same way as the Standard Operating Procedure dictated the day before. And they hate him for this. But he’s just being British.

Perhaps the media snipers who are asking why Binyam should be allowed back into the UK would like to dwell on this as they ignore both the seven years that he lived in Britain, when, as MI5 confirmed, he was “a nobody,” and was not wanted in connection with any crime, and the seven years that he spent in the custody of the United States — or its proxy torturers — when, as David Miliband, the foreign secretary, has conceded, he had “established an arguable case” that “he was subject to cruel, inhuman and degrading treatment by or on behalf of the United States,” and was also “subject to torture during such detention by or on behalf of the United States.”

In addition, as the British government struggles with claims that it has regularly fed intelligence information about British “terror suspects” seized in Pakistan to Pakistani agents, knowing full well that the Pakistanis regularly use torture, those same critics might want to recall the words of the judges who reviewed Binyam’s case in the High Court last summer. The judges explained that the British government’s involvement in Binyam’s case, and its relationship to the US — which involved sending agents to interview him in Pakistan, even though he was being held illegally, and providing and receiving intelligence about him while he was being tortured in Morocco — “went far beyond that of a bystander or witness to the alleged wrongdoing.”

There are more revelations to come about torture policies that involve — or involved — the US, the UK, Morocco, Pakistan and a host of other countries, but for now I’m content to let one of its victims try to rebuild his life in peace. As Binyam also explained in his statement after his release,

I have been through an experience that I never thought to encounter in my darkest nightmares. Before this ordeal, “torture” was an abstract word to me. I could never have imagined that I would be its victim. It is still difficult for me to believe that I was abducted, hauled from one country to the next, and tortured in medieval ways — all orchestrated by the United States government.

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

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

For a sequence of articles relating to Binyam Mohamed, see the following: Urgent appeal for British resident Binyam Mohamed, “close to suicide” in Guantánamo (December 2007), 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), British torture victim Binyam Mohamed to be released from Guantánamo (January 2009), 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), 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).

Obama’s “Humane” Guantánamo Is A Bitter Joke

The “War on Terror” prison at Guantánamo Bay, Cuba, where the majority of the remaining 241 prisoners have been held for seven years without charge or trial, “complies with the humanitarian requirements of the Geneva Conventions,” according to a government official who spoke to the New York Times after reading an 85-page report prepared for President Obama by Adm. Patrick M. Walsh, the vice chief of naval operations.

The report was commissioned by the President, on his second day in office, as part of an Executive Order dealing with the closure of Guantánamo. In it, he directed defense secretary Robert Gates to ensure that the Guantánamo prisoners were being held in conditions that comply with the Geneva Conventions regarding the humane treatment of prisoners, adding, “Such review shall be completed within 30 days and any necessary corrections implemented immediately thereafter.”

According to the government official, the report’s only recommendations for improving conditions at Guantánamo are “to increase social contact among the 16 prisoners described by the Bush administration as ‘high-value detainees,’” who are held in seclusion in Camp 7, and to allow more communal recreation time for prisoners in Camps 5 and 6.

The former, modeled on the Miami Correctional Facility in Bunker Hill, Indiana, and used, initially at least, to house non-compliant prisoners and those regarded as being of significant intelligence value, was long regarded as the most oppressive of Guantánamo’s cell blocks (outside of the specific isolation blocks, including the notorious Camp Echo, where a small number of prisoners are held in permanent solitary confinement), but it soon lost its reputation after Camp 6 opened in December 2006. Modeled on a maximum-security prison in Lenawee County, Michigan, Camp 6 is one of Guantánamo’s busier blocks, and is used to house prisoners of no particular significance, as well as others who have been cleared for release, even though their confinement involves incarceration in solid-walled, windowless cells for up to 23 hours a day.

Improvements at Guantánamo

Gitanjali Gutierrez, a lawyer at the Center for Constitutional Rights, noted that the authorities at Guantánamo had “recently increased detainees’ opportunities for recreation and social interaction,” and her comments were endorsed by Candace Gorman, the lawyer for two prisoners, who described on her website, The Guantánamo Blog, a visit to her client Abdul Hamid al-Ghizzawi on February 4:

[I]n camp 6, they have now started “movie night.” Imagine my surprise when Mr. al-Ghizzawi mentioned a movie he was watching the week before my arrival. I actually stopped him in mid-thought and said, “Excuse me, movie night? When did that start?” He then explained that they have had movie nights once a week for a couple of weeks.

I of course asked if there was anything else that was new and he told me that the four cages that were the outdoor rec [recreation] area for Camp 6 were torn down and now there was one big cage and one little cage. Now eight men can go out together in the big cage and the small cage is for prisoners on punishment. How sad it is that this is a major improvement, but it is. It gives the men a chance to socialize, a chance to be a part of humanity, instead of being stuck in total isolation.

The last change he told me about was the opening of a new rec area, completely outside of Camp 6, a rec area where they can actually see the mountains in the distance, the trees, the sky, the sun (for four hours once every four or five days). The Camp 6 rec area is confined to the courtyard of Camp 6, so it is surrounded by the concrete facility that is several stories tall. All they could see in that outdoor area was the sand floor and the concrete building.

However, although these are significant changes, allowing the men, as Gorman observed, “a chance to socialize, a chance to be a part of humanity, instead of being stuck in total isolation,” it completely fails to address other outstanding problems with the treatment of the prisoners, which cannot be swept away by allowing them some limited respite from the prolonged isolation that has driven many of them to suffer severe mental health problems.

Profound isolation

Consider, for example, how the Pentagon continues to defend holding men in profound isolation, who, for the most, have never been charged with a crime, and who, in all cases, have never been convicted in a court of law. As the Times described it, the Pentagon “has long insisted that none of the men are held in solitary confinement. Military officials instead have said the prisoners are held in ‘single-occupancy cells.’” This is the kind of semantic maneuvering that typified the Bush administration, and it is, of course, brazenly dishonest. Although the report apparently concedes that “some detainees have great difficulty communicating from cell to cell,” the truth is that they are held, almost permanently, in a state of chronic isolation, which cannot be wished away by describing it as detention in a “single-occupancy cell,” and cannot be effectively mitigated by allowing the prisoners a few hours’ escape to watch a movie or chat with their fellow inmates.

James Cohen, who visited Guantánamo in February 2007, soon after Camp 6 opened, explained that conditions were worse than in any Supermax prison on the US mainland. He described a system of almost complete isolation, and pointed out that, “although the prison was built with communal areas, such as those where US maximum-security prison inmates are permitted to spend their time during the day, the prisoners of Camp 6 are not permitted access to these areas.” He contrasted this with the conditions in maximum-security prisons on the mainland, where “it is common for inmates to have jobs, to eat communally, to receive visits from family and friends and to have social contact with other inmates.”

For some first-hand perspective on the profound isolation of the cells in Camp 6, this is how I described the experiences of the Bahraini prisoner Isa al-Murbati (who was released in August 2007), as related just before his release by his lawyer, Joshua Colangelo-Bryan:

Colangelo-Bryan reported that the guards in Camp 6 “run large fans,” which “sound like jet engines and prevent captives from communicating and deprive them of sleep,” and explained, “In his cell, Isa cannot see other detainees and he can barely communicate with them. He told me that it is possible to speak with his brothers through an air conditioning vent in his cell. However, to reach the vent, Isa has to stand on his cement bunk. Most often if he tries to talk to others this way, guards tell him to get off his bunk. They also threaten to take away the few items that Isa has in his cell if he does not follow their directions,” which “forces him to crouch to talk under the door, for which he is also berated if caught.”

In May 2008, Sabin Willett, who represents the 17 Uighurs in Guantánamo who have been cleared of being “enemy combatants,” but who are still held because no other country has been found to accept them (and the United States will not take them), gave the following testimony about two of his clients to the House Committee on Foreign Affairs’ Subcommittee on International Organizations, Human Rights and Oversight:

You try talking to a man who only wants to see the sun. You will never forget the experience … In his cell, Huzaifa Parhat can crouch at the door, and yell through the crack at the bottom. The fellow in the next cell may respond, or he might be curled in the fetal position, staring at the wall. Another Uighur told us of the voices in his head. The voices were getting the better of him. His foot was tapping on the floor. I don’t know what’s happened to him: he doesn’t come out of the cell to see us anymore.

Other reports were blunter still. “I am in my tomb,” Abdulli Feghoul, an Algerian released last August, explained. Another prisoner said, “I look alive, but actually I’m dead.”

The illegality of force-feeding prisoners

More worrying still are Adm. Walsh’s opinions about the hunger strike that has been raging at Guantánamo since the start of the year, and which involves at least one-sixth of the prison’s total population, who are being force-fed against their will, using restraint chairs and tubes inserted into the stomach through the nose.

As medical practitioners have made clear for decades, and as the Lancet explained in an editorial last September, force-feeding mentally competent prisoners has no place in civilized society. The editors, recognizing that “Refusing to eat may be a prisoner’s only weapon for making demands, to get access to justice or to protest against their conditions,” stated, “Prisoners or detainees who choose to become hunger strikers are entitled, worldwide, to the highest clinical standards of care available.” They added, pointedly, “Force-feeding has no place in that care,” and also explained, “Force-feeding used to be common in many countries, and is still used in Guantánamo Bay, despite the provisions of the Geneva Conventions, and the fact it is banned by the World Medical Association (WMA) in Declarations, to which the American Medical Association is a signatory.”

Despite this, Adm. Walsh’s report turns the medical community’s opinion on its head. According to the Washington Post, the report concludes that force-feeding prisoners in Guantánamo is actually “in compliance with the Geneva Conventions’ mandate that the lives of prisoners must be preserved.”

Presumably, Adm. Walsh also believes that any method used to coerce reluctant prisoners to be force-fed is also justified by the Geneva Conventions. Two weeks ago, I reported on a visit to Binyam Mohamed (the British torture victim who has just been released from Guantánamo), by his military defense attorney, Lt. Col. Yvonne Bradley, who noted:

At least 50 people are on hunger strike, with 20 on the critical list, according to Binyam. The JTF [Joint Task Force] are not commenting because they do not want the public to know what is going on. Binyam has witnessed people being forcibly extracted from their cell. Swat teams in police gear come in and take the person out; if they resist, they are force-fed and then beaten. Binyam has seen this and has not witnessed this before. Guantánamo Bay is in the grip of a mass hunger strike and the numbers are growing; things are worsening.

It is so bad that there are not enough chairs to strap them down and force-feed them for a two- or three-hour period to digest food through a feeding tube. Because there are not enough chairs the guards are having to force-feed them in shifts. After Binyam saw a nearby inmate being beaten it scared him and he decided he was not going to resist. He thought, “I don’t want to be beat, injured or killed.” Given his health situation, one good blow could be fatal.

Random violence at Guantánamo

What is particularly disturbing about this report is not just the mass force-feeding, but the violence used by the “Swat teams” — the armored five-man teams, known as the Extreme Reaction Force (ERF), or the Immediate Reaction Force (IRF) — who have been used throughout Guantánamo’s history to quell even the most minor infractions of the rules with appalling brutality.

Moreover, the very latest report from Guantánamo suggests not only that the ERF teams are dealing heavy-handedly with the hunger strikers, but also that they are regularly involved in random assaults, as numerous prisoners have stated over the years, which have led to fractures and broken limbs, and, in two cases, to the loss of an eye, and damage to an Egyptian prisoner’s back that was so severe that he will spend the rest of his life in a wheelchair.

In a report on the medical examinations of Binyam Mohamed that were undertaken last week by British doctors who were allowed to visit him to ascertain if he was well enough to be flown back to the UK, the Observer stated that Mohamed “will return to Britain suffering from a huge range of injuries after being beaten by US guards right up to the point of his departure from Guantánamo.” During the medical examinations, he “was found to be suffering from bruising, organ damage, stomach complaints, malnutrition, sores to feet and hands, severe damage to ligaments as well as profound emotional and psychological problems which have been exacerbated by the refusal of Guantánamo’s guards to give him counseling.”

Binyam’s civilian lawyer, Clive Stafford Smith, said that his client has been beaten dozens of times “for no reason,” with “the most recent abuse occurring during recent weeks,” and Lt. Col. Bradley added, “He has been severely beaten. Sometimes I don’t like to think about it because my country is behind all this.”

A whitewash?

Clearly, the Guantánamo described by the British doctors who visited Binyam Mohamed last week is not the same as that envisaged by Adm. Walsh. Is this, then, a deliberate whitewash? Probably not. Like all official reports, Adm. Walsh’s report was not based on detailed, fly-on-the-wall observation of the conditions at Guantánamo, but on other reports submitted up the chain of command, in which the kind of brutality described — and suffered — by Binyam Mohamed simply does not register. Nevertheless, it will, presumably, be read as though it provides a true picture of the prison, even though what it leaves unsaid would drive anyone who truly believed in the humane treatment of the prisoners to fly out to Guantánamo immediately and personally direct an overhaul of the prison operations that, once and for all, did away with the casual brutality that is built into the fabric of the place, and that has dominated its malign history for the last seven years.

Speaking of the early days of Guantánamo, Asif Iqbal, a British prisoner who was released in 2004, explained how several guards told him they had been briefed that the prisoners were “wild animals,” who “would kill them with our toothbrushes at the first opportunity, that we were all members of al-Qaeda and that we had killed women and children indiscriminately.” That was seven years ago, of course, but I very much doubt that new guards arriving for their tour of duty at Guantánamo are now being told that the status of the prisoners is unknown, and that they should be regarded as innocent men until proven guilty in a court of law. Instead, I strongly suspect that the Bush administration’s myth of Guantánamo — as the repository of “the worst of the worst” — lingers on throughout the chain of command at the prison, essentially unchallenged, and still promoted virulently in the right-wing media, and, occasionally, in the liberal media too.

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 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), British torture victim Binyam Mohamed to be released from Guantánamo (January 2009), Don’t Forget Guantánamo (February 2009), Who’s Running Guantánamo? (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).

Binyam Mohamed’s statement on his release from Guantánamo

Reprieve, the legal action charity whose lawyers represent British resident and torture victim Binyam Mohamed, has just released the following statement from Binyam, who arrived back in the UK from Guantánamo this afternoon:

I hope you will understand that after everything I have been through I am neither physically nor mentally capable of facing the media on the moment of my arrival back to Britain. Please forgive me if I make a simple statement through my lawyer. I hope to be able to do better in days to come, when I am on the road to recovery.

I have been through an experience that I never thought to encounter in my darkest nightmares. Before this ordeal, “torture” was an abstract word to me. I could never have imagined that I would be its victim. It is still difficult for me to believe that I was abducted, hauled from one country to the next, and tortured in medieval ways — all orchestrated by the United States government.

While I want to recover, and put it all as far in my past as I can, I also know I have an obligation to the people who still remain in those torture chambers. My own despair was greatest when I thought that everyone had abandoned me. I have a duty to make sure that nobody else is forgotten.

I am grateful that in the end I was not simply left to my fate. I am grateful to my lawyers and other staff at Reprieve, and to Lt. Col. Yvonne Bradley, who fought for my freedom. I am grateful to the members of the British Foreign Office who worked for my release. And I want to thank people around Britain who wrote to me in Guantánamo Bay to keep my spirits up, as well as to the members of the media who tried to make sure that the world knew what was going on. I know I would not be home in Britain today if it were not for everyone’s support. Indeed, I might not be alive at all.

I wish I could say that it is all over, but it is not. There are still 241 Muslim prisoners in Guantánamo. Many have long since been cleared even by the US military, yet cannot go anywhere as they face persecution. For example, Ahmed Belbacha lived here in Britain, and desperately needs a home. Then there are thousands of other prisoners held by the US elsewhere around the world, with no charges, and without access to their families.

And I have to say, more in sadness than in anger, that many have been complicit in my own horrors over the past seven years. For myself, the very worst moment came when I realised in Morocco that the people who were torturing me were receiving questions and materials from British intelligence. I had met with British intelligence in Pakistan. I had been open with them. Yet the very people who I had hoped would come to my rescue, I later realised, had allied themselves with my abusers.

I am not asking for vengeance; only that the truth should be made known, so that nobody in the future should have to endure what I have endured.

Thank you.

Binyam Mohamed

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 further information about Ahmed Belbacha, see Return to torture: act now for Ahmed Belbacha, a British resident in Guantánamo, Treachery at Guantánamo and Guantánamo’s refugees.
Also see Shaker Aamer, a South London man in Guantánamo: the children speak for the story of Shaker Aamer, another British resident who is still held in Guantánamo.

For a sequence of articles relating to Binyam Mohamed, see the following: Urgent appeal for British resident Binyam Mohamed, “close to suicide” in Guantánamo (December 2007), 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), British torture victim Binyam Mohamed to be released from Guantánamo (January 2009), 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), 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).

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

Abu Qatada: Law Lords and Government Endorse Torture

There are times when politeness fails, and this, sadly, is one of them. On Wednesday, Britain’s Law Lords shamelessly discarded Britain’s adherence to the European Convention on Human Rights (ECHR) by ruling that Omar Mahmoud Othman (commonly known as Abu Qatada) can be deported to Jordan, and that two other men — known only as Detainee RB and Detainee U — can be deported to Algeria (PDF).

The rights and wrongs of the cases are easily obscured by the hysteria that has grown up around Abu Qatada, who is almost universally described as “al-Qaeda’s spiritual ambassador in Europe,” even though he has never been charged or tried in connection with the allegation.

The problem with the Lords’ ruling, however, is only partly connected with the British government’s refusal to try Abu Qatada and Detainees RB and U for their alleged crimes; the other is that, as a result of this refusal, the government has embarked on a seven-year campaign to imprison terror suspects without charge or trial (and without even questioning them, or telling them what they are alleged to have done), has introduced a system of control orders that amount to house arrest (to which all of these men have been subjected) and has spent long years ingratiating itself with foreign governments whose human rights records are shockingly poor, in an attempt to bypass its obligations — not only under the ECHR, but also under the UN Convention relating to the Status of Refugees, and the UN Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment — not to return foreign nationals to countries where they face the risk of torture.

As Article 3 of the Torture Convention states, “No State Party shall expel, return (“refouler”) or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture,” and adds, “For the purpose of determining whether there are such grounds, the competent authorities shall take into account all relevant considerations including, where applicable, the existence in the State concerned of a consistent pattern of gross, flagrant or mass violations of human rights.”

Is this a big deal? In his book Enemy Combatant, Moazzam Begg described briefly meeting Abu Qatada in 2005, shortly after Begg was released from Guantánamo:

We exchanged greetings and spoke for a while about the hardships of detention without trial. Before I left I asked him one final question. “Sheikh, what’s your opinion about the September 11 attacks?”
“Listen, brother. If I had known anything about it beforehand I would have done all in my power to prevent them.”

In an email exchange last week, Begg explained that he was convinced that Abu Qatada made this comment “not because he loves the USA, but because he believed it would divert attention and support from the very real struggles taking place in the Muslim world.”

This is not, of course, the only time that Abu Qatada has denied being involved in terrorist activities. He has, for example, also denied ever meeting Osama bin Laden, and has stated that all talk of his being a “mentor” to convicted terrorists is mistaken, as he is, instead, a scholar, and a mentor to no one. However, his rhetoric about violent jihad, which can be found by anyone with access to a search engine, is genuinely disturbing, and when government officials describe him as a “dangerous individual,” it appears that they are basing their opinions primarily on first-hand reports made by Omar Nasiri, the pseudonym of a fascinating and eloquent Moroccan, who worked for both the French and British intelligence services in the 1990s. Nasiri, who later wrote Inside the Jihad, an extraordinary book about his experiences, infiltrated Abu Qatada’s meetings at a club in north London, and reported to his masters (and later to his readers) the hypnotic power that Abu Qatada exercised over those who attended.

What is important, however, is that when it comes to the government’s seven-year mission to deport Abu Qatada to Jordan, none of this matters. None of it. What matters instead is the absolute prohibition on deporting anyone to a country where they face the risk of torture, and the knots in which the government has tied itself, by refusing to put these men on trial in the UK.

In the Lords’ ruling on Wednesday, Lord Phillips, citing a British case from 1996 that was reviewed by the European Court of Human Rights, illustrated the importance of Article 3 of the ECHR, which states, simply, “No one shall be subjected to torture or to inhuman or degrading treatment or punishment”:

Article 3 enshrines one of the most fundamental values of democratic society. The Court is well aware of the immense difficulties faced by States in modern times in protecting their communities from terrorist violence. However, even in these circumstances, the Convention prohibits in absolute terms torture or inhuman or degrading treatment or punishment, irrespective of the victim’s conduct. Unlike most of the substantive clauses of the Convention and of Protocols Nos. 1 and 4, Article 3 makes no provision for exceptions and no derogation from it is permissible under Article 15 even in the event of a public emergency threatening the life of the nation. [Note: Article 15 declares that countries may derogate from some parts of the Convention “[i]n time of war or other public emergency threatening the life of the nation,” but not, as noted, Article 3].

Nevertheless, as Lord Phillips proceeded to explain why, in spite of this, he thought it appropriate for Abu Qatada, Detainee RB and Detainee U to be deported, it became clear that a great deal of ingenuity was required to justify his decision and that of his fellow judges. The key to the government’s claims that it is safe to deport Abu Qatada lies with the Memorandum of Understanding (MoU), signed between the UK and Jordan on 10 August 2005, which purported to guarantee that he would not be subjected to torture or ill-treatment, and would receive a fair trial.

It was, to put it mildly, difficult to see how these agreements could be guaranteed in Abu Qatada’s case, firstly because, as Human Rights Watch reported last October, “Torture in Jordan’s prison system is widespread even two years after King Abdullah called for reforms to stop it once and for all … The mechanisms for preventing torture by holding torturers accountable are simply not working.” In a 95-page report (PDF), Human Rights Watch noted that “The most common forms of torture include beatings with cables and sticks and the suspension by the wrists from metal grates for hours at a time, during which guards flog a defenseless prisoner.”

However, a second reason for doubting the Jordanian government’s assurances is that torture hangs over all of Abu Qatada’s history in Jordan. As the Law Lords themselves admitted, when Abu Qatada applied for asylum in the UK in 1993, he did so “on the ground that he had been tortured by the Jordanian authorities, a claim that SIAC [the Special Immigration Appeals Court, the secret court that deals with much of the government’s “War on Terror” detention policies] accepted may well be true.” Moreover, the claim that he could receive a fair trial in Jordan has to be weighed against the fact that he was sentenced in absentia in Jordan in 1999 and 2000 for his alleged involvement with terrorist attacks, even though the defendants who had claimed that he was involved “sought, unsuccessfully, to have reliance on their statements excluded on the ground that they had been obtained by torture.”

Such was the fear that Abu Qatada might not receive a fair trial that, last April, the Court of Appeal reversed an earlier ruling by SIAC, approving his deportation, and concluded that he could not be deported because SIAC had “erred in law” in concluding that he did not face “a real risk of a flagrant denial of a fair trial in Jordan.” The issue, as the Court of Appeal saw it, was that “the unfairness in issue related to the possible use of evidence obtained through torture.”

In reversing the Court of Appeal’s ruling, the Law Lords expended considerable effort analyzing these conflicting viewpoints, but essentially concluded that Abu Qatada would receive a fair trial — or at least, would not receive “a flagrant denial of a fair trial” — for the same reasons that they concluded that he would not be tortured on his return; firstly, because, in October 2005, the Adaleh Centre for Human Rights in Jordan “signed an agreement with the United Kingdom government under which it would monitor the due performance of the obligations undertaken by Jordan under the MoU,” and, secondly, because “the fact that he would have a very high profile, coupled with the MoU, and the diplomatic capital invested in it, meant that the Jordanian authorities were likely to make sure that he was not ill-treated in custody or when he emerged from it.”

I’ve highlighted the word “likely,” because it seems clear that the Law Lords’ basis for endorsing the government’s attempts to sidestep the absolute prohibition on torture is a probability — or perhaps only a possibility — that the Jordanian government will treat Abu Qatada in a humane manner because it might otherwise get a slap on the wrist from David Miliband

Again, you may ask, why does this matter? If Abu Qatada is as significant, and as dangerous, as the government claims, why should we care what happens to him?

In response, I can only state that endorsing the Law Lords’ view detracts, yet again, from a fundamental issue — mentioned briefly at the start of this article — which no one is discussing. Instead of embracing the reviled policy of internment that failed so miserably in the 1970s when it was used on Irish “terror suspects,” or introducing house arrest, whose previous enthusiasts are not renowned for their belief in democracy, or signing deals with dictators to sidestep the absolute prohibition on torture, which, in all honesty, are not worth the paper that they are written on, why does the government not put these men on trial in the UK?

The answer, incredibly, is that “the UK is the only common law jurisdiction to prohibit completely the use of intercepted communications in criminal proceedings,” as the UK-based human rights and law reform organization JUSTICE explained in a detailed report in 2007 (PDF). “By contrast,” the report stated, “intercept evidence has been used in other countries to help convict many of those involved in serious organized crime and terrorism, including al-Qaeda cells operating in the United States following 9/11, the Five Godfathers of the New York Mafia, and war criminals in the Hague.”

The British government’s refusal to use intercept evidence is in spite of the fact that “A significant number of senior police officers, prosecutors, judges and politicians have now called for intercept evidence to be used in criminal trials.” As the report added, in July 2006 the Home Affairs Committee noted that “outside the government there is universal support for the use of intercept evidence in the courts.”

In November 2001, when the government was attempting to defend its decision to hold foreign suspects without charge or trial in Belmarsh — a policy that was ruled illegal three years later by the Law Lords, but was then replaced by control orders — David Blunkett, the home secretary, was asked why SIAC was “being used to review decisions to incarcerate [terror suspects] and [to] imprison [them], indefinitely, without trial and, indeed, without charge,” and, “If evidence exists against the people about whom we have heard, why are they not being charged and tried in this country?”

Blunkett’s reply was, “if the evidence that would be adduced and presented in a normal court were available, of course we would use it, as we have done in the past … [However] in some cases the nature of the evidence from the security and intelligence services will be such that it would put at risk the operation of those services and the lives of those who act clandestinely to help them if that evidence were presented in normal open court.”

It was, and remains, an unintelligible position for the government to take. As JUSTICE explained, “opponents of intercept evidence appear either to dramatically understate or ignore altogether the ability of existing safeguards to protect sensitive intelligence capabilities from being revealed in court proceedings” — for example, through the use of public interest immunity certificates (PII), which “prevent details of methods of covert surveillance, including the identity or even the existence of informants, from being disclosed to defendants.”

Moreover, as Andrew Mitchell MP noted during debates on the Serious Organized Crime and Police Bill in 2005,

The withholding of sensitive information is an uncontroversial and unexceptional daily occurrence in the criminal courts. There is a clear public interest in preserving the anonymity of informers; of the identity of a person who has allowed his premises to be used for surveillance, and of anything that would reveal his identity or the location of his premises; of other police observation techniques; and of police and intelligence service reports, manuals and methods. The police order manual, for example, is protected from disclosure. Techniques relating to intercept systems, procedures, technology and methodology fall into the same category.

Perhaps, after all this, you still think that none of this matters, and that Abu Qatada should, as the government and the Law Lords believe, be deported to Jordan, where he will find out how “likely” it is that he will be treated humanely and receive a fair trial. Perhaps you don’t care, because you are have judged him in advance, without the need for a trial, and you think that, regardless of the possibility that he will be abused in some manner on his return, the absolute prohibition on torture is an unacceptable luxury in these times, when, if certain people in power are to be believed, we face an existential threat more grave than at any other time in our recent history.

If so, I am deeply disturbed, not just because this absolute prohibition only came about after centuries of struggle, and is intended to apply to everyone, and not to include convenient get-out clauses that allow certain people to be scapegoated but not others; but also because, if we peer just beyond the case of Abu Qatada, we can see clearly that the government does not just intend to jeopardize the absolute prohibition on torture in the case of someone it regards as “al-Qaeda’s spiritual ambassador in Europe,” but also in the cases of other men regarded as far less significant, like Detainee RB, an Algerian asylum seeker who is to be deported because he was arrested in 2003 “on charges that included offences under the Terrorism Act 2000,” even though these charges “were later withdrawn,” and even though a government lawyer has described him as nothing more than a “small fish.”

As with Abu Qatada, however, the government’s refusal to join the rest of the world in accepting intercept evidence — if, indeed, there is any in his case — has been replaced by his incarceration without charge or trial, and, as of Wednesday, a ruling that he is to be deported to Algeria. As with Abu Qatada, the government and the Law Lords have had to utilize a great deal of ingenuity to justify their decision. Unlike Jordan, Algeria has not signed a Memorandum of Understanding with the UK, but that has not stopped the British government from deporting Algerians prior to this decision, on the basis that President Bouteflika has improved Algeria’s human rights record, and has “acknowledged and approved a letter from the Prime Minister which included the statement that ‘this exchange of letters underscores the absolute commitment of our two governments to human rights and fundamental freedoms.’” As the Law Lords noted, approvingly, “By longstanding diplomatic convention this amounted to a commitment on the part of the Algerian government to respect those rights.”

As with Jordan, SIAC assured itself that Algeria’s new leaf would be sufficient to ensure that the rights of returned prisoners would be respected. They noted “significant and strengthening mutual ties between Algeria and the United Kingdom,” the importance of “UK investment in Algeria, said to be the largest of any foreign state,” and “the supply and purchase of gas,” as if any of this, which sounded like an international trade brochure, had anything to do with notions of justice. Shifting into hyperbole, the SIAC judges stated, stridently, “Very considerable efforts have been made at the highest political levels on both sides to strengthen these ties,” and concluded that, as a result, “it is barely conceivable, let alone likely, that the Algerian government would put them at risk by reneging on solemn assurances.”

This was an improvement on Jordan, to be sure, as, if returned prisoners did find themselves abused, they could be assured that the government, SIAC and the Law Lords had not only thought that it was not “likely,” but that it was “barely conceivable.” What was particularly disturbing, however, was the Algerian government’s refusal to allow any British representatives to monitor what happened to those who were returned. Bewilderingly, SIAC “concluded that there was nothing sinister in this,” and suggested, incredibly, that human rights organizations could be relied upon to play a proxy role that would ensure compliance. In SIAC’s exact words, “Amnesty International and other non-governmental agencies could be relied upon to find out if the assurances were breached and to publicize the fact.”

There is much more in the Law Lords’ ruling that is worth investigating, for those who have the time and the inclination, but that passage above is so outrageous that, for me, any more commentary just now would be superfluous.

In conclusion, then, from what I have come to understand of the government’s motives, Detainee RB’s case indicates, much more clearly than Abu Qatada’s, that what interests the government more than anything else is the creation of a system that enables it to conveniently circumvent the absolute prohibition on torture so that it can dispose of any foreigners it regards as a threat to national security, without the burden of having to justify its actions in any manner that conforms to the notions of open justice that are the backbone of British society.

I find this absolutely intolerable, and urge anyone who also thinks so to read up on the government’s refusal to accept the use of intercept evidence, and to demand that the British government turns its attention to trials for terror suspects, and not to arbitrary and indefinite imprisonment, house arrest and creative attempts to bypass the absolute prohibition on torture. In the end, these are not only a betrayal of the high ideals of justice on which this country has long prided itself, but are also, as with internment and the “War on the Irish,” dangerously counter-productive.

Note: For information on Detainee U, see “Besieged in Britain,” Victoria Brittain’s excellent article in Race & Class (PDF) and the statement here.
For further information on Detainee RB (also known as BB), see this letter.

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

As written exclusively for Cageprisoners.

For other articles dealing with Belmarsh, control orders, deportation bail, deportation and extradition, see Deals with dictators undermined by British request for return of five Guantánamo detainees (August 2007), Britain’s Guantánamo: the troubling tale of Tunisian Belmarsh detainee Hedi Boudhiba, extradited, cleared and abandoned in Spain (August 2007), Guantánamo as house arrest: Britain’s law lords capitulate on control orders (November 2007), The Guantánamo Britons and Spain’s dubious extradition request (December 2007), Britain’s Guantánamo: control orders renewed, as one suspect is freed (February 2008), Spanish drop “inhuman” extradition request for Guantánamo Britons (March 2008), UK government deports 60 Iraqi Kurds; no one notices (March 2008), Repatriation as Russian Roulette: Will the Two Algerians Freed from Guantánamo Be Treated Fairly? (July 2008), Ex-Guantánamo prisoner refused entry into UK, held in deportation centre (February 2009), Home Secretary ignores Court decision, kidnaps bailed men and imprisons them in Belmarsh (February 2009), Britain’s insane secret terror evidence (March 2009).

Binyam Mohamed’s Coming Home From Guantánamo, As Torture Allegations Mount

The Washington Post broke the news on Friday that Binyam Mohamed, British resident, Guantánamo prisoner, victim of “extraordinary rendition” and torture, and the subject of high-profile court cases on both sides of the Atlantic, will be returning to the UK “early next week,” according to “a source involved in the process, who spoke on the condition of anonymity because he is not authorized to speak on the subject.”

Binyam has heard these rumors before — since December, in fact, when he told his lawyers, “It has come to my attention through several reliable sources that my release from Guantánamo to the UK had been ordered several weeks ago” — but there now seems little reason to doubt that the rumors are true. Although the story of Binyam’s rendition and torture (for 18 months in Morocco, from July 2002 to January 2004, and then at the CIA’s “Dark Prison” in Afghanistan) has been in the public domain for three and a half years — and it has long been established that the plot to detonate a radioactive “dirty bomb” in New York, in which he was allegedly involved, was not a plot at all, and that he had only confessed to having a role in it because of the torture to which he was subjected — the Bush administration only reluctantly abandoned its claims last October, when a US judge demanded to see the evidence.

In the UK, Binyam’s case has been even more significant. Last August, two High Court judges condemned Britain’s intelligence services for their role in his rendition and torture. The judges were disturbed to discover that MI5 had sent agents to interrogate him in May 2002, five weeks after he was seized at Karachi airport, because it should have been clear that he was being held illegally in Pakistan, and they also criticized the intelligence services 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. The relationship of the United Kingdom to the United States, the judges stated, “went far beyond that of a bystander or witness to the alleged wrongdoing.”

The US State Department v. David Miliband

The judges also indicated that they thought that information contained in 42 documents in the possession of the British government, which related to Binyam’s rendition and torture, should be made available to the public. However, the foreign secretary, David Miliband, responded by invoking issues of national security to prevent disclosure of the documents, and also produced a letter from the US State Department’s senior legal adviser, John Bellinger, which indicated that disclosure would damage the relationship between the British and American intelligence agencies. “We want to affirm in the clearest terms,” the letter stated, “that the public disclosure of these documents or of the information contained therein is likely to result in serious damage to US national security and could harm existing intelligence-sharing arrangements.”

Despite the foreign secretary’s most fervent wishes, however, questions about Binyam’s treatment — and about British complicity in his rendition and torture — have not gone away. Just last weekend, the focus on the British government’s role sharpened considerably when, after David Miliband denied that the US had made a specific threat, and attempted to explain that the issue was only one of the “fundamental principle” of confidentiality between one country and another, a “former senior State Department official” told the Observer that the letter that mentioned possible “harm” to the intelligence-sharing relationship between the US and the UK had been solicited directly by the Foreign Office.

“Far from being a threat,” the former official stated, “it was solicited [by the Foreign Office]. The Foreign Office asked for it in writing. They said: ‘Give us something in writing so that we can put it on the record.’ If you give us a letter explaining you are opposed to this, then we can provide that to the court.”

As the Observer reported, the Foreign Office immediately tried to play down the significance of its role, confirming that it had requested the letter from the State Department, but claiming that it was merely “sensible and proper” to require a US statement as part of the legal proceedings. Others were not convinced, however, and Tory MP David Davis accused the foreign secretary of acting to “prevent his own government’s embarrassment.”

Pakistani torture as “part of a deliberate British policy”

If Sunday’s news was troubling enough for the government, its credibility declined still further during the week, after the Guardian examined testimony made last summer, during Binyam’s judicial review, by an MI5 agent identified only as Witness B, who was responsible for questioning Binyam in Pakistan, prior to his rendition to Morocco. As the Guardian explained, the testimony of Witness B indicated that the circumstances of Binyam’s interrogation in Pakistan were part of a deliberate British policy, devised by legal advisers to the security services and the government.

The statements came towards the end of the following exchange, in which Witness B was questioned by Dinah Rose QC, who began by reading out the following extract from the agent’s notes of his interview with Binyam in May 2002: “I told Mohamed he had an opportunity to help us and help himself. The US authorities will be deciding what to do with him and this will depend to a very large degree on his degree of cooperation.”

Q. Why did you say to him that the US authorities would be deciding what to do with him?
A. Because I expected the Pakistani authorities to transfer him to the US authorities.
Q. Why did you expect that to happen?
A. Because that had happened in previous cases of which I was aware and also at some point I may have been told that that was the intention of the US authorities.
Q. Did you speak to any Americans before you interviewed Mr. Mohamed?
A. I am not sure whether I can give a full answer to that in open session.
Q. I am content to leave that for Mr. De La Mare to pursue [the Special Advocate appointed to represent Binyam in closed sessions, in which secret evidence was discussed]. Was it your understanding that it was lawful for Mr. Mohamed to be transferred to the US authorities in this way?
A. I consider that to be a matter for the Security Service top management and for Government.
Q. Had anyone ever told you that it was or was not lawful?
A. I do not recall being told that at all, no.
Q. Did it concern you at all?
A. I was always, whenever conducting an interview, careful to make sure that I had the clearance of my management to proceed and I did so in this case. I was aware that the general question of interviewing detainees had been discussed at length by Security Service management legal advisers and Government and I acted in this case, as in others, under the strong impression that it was considered to be proper and lawful.

Opening a can of worms: other examples of torture

The Guardian also suggested that what it described as “an official interrogation policy” had led to the torture and abuse of other British prisoners, a can of worms that the British government has also been trying desperately to conceal. Last July, for example, the Guardian’s Ian Cobain first reported allegations that the British intelligence services had “outsourced” the torture of British citizens to Pakistan’s security services. Cobain’s article mentioned three particular cases:

A medical student, who did not wish to be identified, explained that he “was abducted at gunpoint in August 2005 and held for two months at the offices of Pakistan’s Intelligence Bureau opposite the British Deputy High Commission in Karachi,” where he was “whipped, beaten, deprived of sleep, threatened with execution and witnessed other inmates being tortured.” He added that he was questioned about the July 2005 terrorist attacks in London, and that “after being tortured by Pakistani agents he was questioned by British intelligence officers.” He is now working in a hospital in southern England, having qualified in 2007, but remains traumatized by what happened to him.

Tariq Mahmood, 35, a taxi driver from Sparkhill, Birmingham, was abducted in Rawalpindi in October 2003 and released without charge about five months later. His family explained that “he was tortured, and that MI5 officers and American intelligence officers had a hand in his mistreatment.”

Tahir Shah, an author from London, was seized in 2005 and held for 16 days. Also interrogated about the July 2005 bombings, he has stated that he was interrogated in “a fully-equipped torture chamber,” containing “mangles, whips and electrical equipment,” where “he was hooded and shackled for long periods and deprived of sleep.” According to the Guardian, “He [did] not allege that British officials were involved, but believe[d] it is unlikely they would not have been informed.”

In December 2008, two other examples came to light. In “The Testimony of Zeeshan Siddiqui” (PDF), published by Cageprisoners, the former engineering student explained how he had been abducted in May 2005 and tortured horribly for ten days. He was then held for another seven months. Although he had no knowledge that the British intelligence services were involved in any way with his treatment in Pakistan, it is clear that the British government subsequently acted on the basis of information that was obtained from him through the use of torture. After returning to the UK, he was placed under a control order, tagged and, essentially, subjected to a form of house arrest. “Eventually,” as Cageprisoners explained, “he took off the control order tag and absconded from the order. Siddiqui is still missing today.”

Even more shocking is the story of Rangzieb Ahmed, from Rochdale, who was convicted in a British court and sentenced to a minimum of ten years in prison for being a member of al-Qaeda and running a three-man terrorist cell. As the Guardian reported, the jury was not allowed to hear that three of Ahmed’s fingernails were removed with pliers during a year-long ordeal in Pakistan, from August 2006 to August 2007, at the hands of the ISI (Inter-Services Intelligence), Pakistan’s largest intelligence agency, nor that he was “beaten with sticks, whipped with electric cables, sexually humiliated and deprived of sleep.” The jury was also not informed that the British High Commission had not been told that he was being held until just before his release to the UK (where he was subsequently re-arrested), that “MI5 and Greater Manchester police passed questions to the ISI to be put to Ahmed during his interrogation,” and that MI5 officers also questioned him while he was in ISI custody.

Before the trial began, Ahmed’s barrister, Michael Topolski QC, tried unsuccessfully to have it halted, arguing, with some justification, that, “because of his treatment in Pakistan, it would be an abuse of the court’s process for his trial to go ahead.” Topolski pointed out that British agents, the security services and the police “condoned or connived in his torture by providing his torturers with questions,” and that proceeding with the trial “would put Britain under a clear breach of its obligations, under international law, to suppress and discourage torture.” For a detailed account of Ahmed’s experiences, and his explanation of how he was in Pakistan to assist in relief work, see “The Testimony of Rangzieb Ahmed” (PDF), published by Cageprisoners just after his conviction.

The full extent of the murky connections between MI5 and the Pakistani intelligence agencies has yet to be revealed, of course, but it is clearly an issue that needs a thorough investigation, especially as the Guardian stated last week that it had “learned from other sources that the interrogation policy was directed at a high level within Whitehall and that it has been further developed since [Binyam] Mohamed’s detention in Pakistan.” Fortunately, the Joint Committee on Human Rights, chaired by Andrew Dismore MP, is pursuing the matter, and, two weeks ago, stated that the home secretary, Jacqui Smith, would be called to give evidence. Dismore explained that he had come to believe “that the security services may be operating under a James Bond-style get-out clause.”

Some pragmatic reasons for Binyam’s return

As a result of all this activity, it is no surprise that Binyam Mohamed may be back in the UK by Monday. However, while the British government is to be congratulated for pushing for his release for the last 18 months — since first requesting his return to the UK in August 2007 — I hope I don’t sound overly cynical when I add that securing his return will also have the knock-on effect of reducing public discussion of his case to the bare minimum. Like the British residents returned in March and December 2007, Binyam will have no rights on his return, and, until the British government sorts out his residency status, will be unwilling to talk about his experiences, even if he should wish to do so. More significantly, perhaps, his supporters will also be obliged to remain quiet on his behalf.

This is not to say that the government is attempting to shirk all of its responsibilities for what happened to Binyam. As was made clear in October, when Jacqui Smith asked the attorney general, Baroness Scotland, to look into “possible criminal wrongdoing” on the part of MI5 and the CIA, the government has certainly opened up high-level channels to investigate Binyam’s case, and his supporters were, no doubt, pleased to hear on Wednesday that Baroness Scotland has now sought the advice of Keir Starmer, the Director of Public Prosecutions.

As the Guardian reported, Baroness Scotland wrote a letter to Andrew Dismore, in which she explained that she had seen evidence that MI5 had given in secret to the High Court, and stated, “I am, with the advice of the DPP, considering the material in order to determine whether there is a basis for inviting the police to conduct a criminal investigation in relation to one or more individuals.”

Even so, it remains to be seen whether a full-blown investigation into Binyam’s case will be pursued, and, if so, what sort of timescale is envisaged. As the High Court judges pointed out two weeks ago, another avenue to the truth remains open, as the Intelligence Services Committee (ISC), an independent investigative committee that has already looked into Binyam’s case, in 2005 and 2007, has been given copies of the 42 documents whose disclosure the government has fought so hard to suppress, and will, in the judges’ words, be able to “ask searching and difficult questions” from witnesses in the intelligence services “on the very important issues raised.” However, I maintain, in spite of this, that Binyam’s imminent return to the UK is useful to the government on a number of different levels, not all of which involve the pursuit of justice.

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 written exclusively for Cageprisoners.

For a sequence of articles relating to Binyam Mohamed, see the following: Urgent appeal for British resident Binyam Mohamed, “close to suicide” in Guantánamo (December 2007), 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), British torture victim Binyam Mohamed to be released from Guantánamo (January 2009), 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 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).

The Talking Dog interviews Darrel Vandeveld, former Guantánamo prosecutor

I don’t often cross-post articles from other sites, but my good friend the Talking Dog has just posted an interview with Darrel Vandeveld, the former prosecutor in Guantánamo’s Military Commissions, whose resignation in September, and declaration, last month, in the habeas corpus case of the Afghan prisoner Mohamed Jawad demonstrated, with a marvelous clarity, how the Commission system (conceived by Dick Cheney and his close advisers in November 2001, and revived by Congress in the fall of 2006 after the Supreme Court ruled it illegal) was incapable of delivering justice to those accused of war crimes. As Darrel explains, this was primarily because the gathering of evidence was “a shambles, in a state of disorganization that had me reeling in disbelief,” and, as a result, “no lawyer could certify to the Commissions and to opposing counsel that the discovery requirements mandated by the Military Commissions Act and its implementing regulations had been met, so dismal was the condition and organization of the evidence,” and, therefore, “none of the detainees … could be guaranteed a fair trial.”

I reproduce the interview here, as I have covered Darrel’s story extensively over the last five months, and believe that his contribution to understanding — and undermining — the supposed legitimacy of the policies implemented by the Bush administration in the wake of the 9/11 attacks is of great importance.

Darrel Vandeveld is an attorney and former military officer, who, in civilian life is a prosecuting attorney in Erie, PA. In the military, he attained the rank of Lieutenant Colonel in the Army Reserve, serving, among other places, in Bosnia, Iraq, Afghanistan and Africa, as well as serving as a senior prosecutor for the military commissions prosecuting Guantánamo detainees. Last year, he became the seventh attorney to resign as a prosecutor from the military commissions. On February 20, 2009, I had the privilege of interviewing Col. Vandeveld by e-mail exchange.

The Talking Dog: For various reasons (including perhaps my own proximity both then and now to “Ground Zero”), the customary first question of Talking Dog interviews is “where were you on 11 Sept. 2001?”

Darrel Vandeveld: When American Airlines Flight 11 struck the north WTC tower, I happened to be working in my office in the placid Northwestern Pennsylvania city of Erie. Within minutes of the first collision, a secretary burst into my office and told me excitedly what had just been reported on one of the network television morning shows. My entire office spent the next hour watching in horror as the subsequent attacks and their aftermath unfolded. We then closed the office for the day, and, along with the rest of the world, remained transfixed as the extent of the attacks became clearer. I knew that day that my life would never be the same again.

The Talking Dog: I understand that, in civilian life, you work as an attorney and that you reside in the Erie, PA area. My limited knowledge of Erie is that also from that area are former governor and Homeland Security Secretary Tom Ridge and General Michael Dunlavey, the former commander of Joint Task Force (JTF) 170, created in February 2002. Gen. Dunlavey was placed in charge of interrogating detainees transferred to what was then the only prison in operation in Guantánamo, Camp X-Ray. Gen. Dunlavey is a trial court judge in Erie County in his civilian life. Have you had occasion, either before, during or since your involvement with the Guantánamo prosecutions to speak with Gen. Dunlavey, and if so, what can you tell us about your conversation or conversations?

Darrel Vandeveld: In February 2002, Secretary of Defense Donald Rumsfeld appointed Major General Dunlavey, now retired from the Army Reserve, as the commander of the joint operations unit that had been given the mission of interrogating detainees transferred to Guantánamo in the early stages of the October 2001 U.S. invasion of Afghanistan. Gen. Dunlavey was and is a well-known figure in the Erie community, and his military background, focused on military intelligence and intelligence interrogations, began with his service in the Vietnam War. According to what I’ve been told, Gen. Dunlavey had conducted thousands of interrogations in the course of his career, and the Army obviously thought well enough of his abilities to promote him to the rank of two-star general, a rarity in the Army Reserve. Although I thought Gen. Dunlavey was highly qualified for the position, it struck me as unusual that in the first attack on U.S. soil since Pearl Harbor, that the active duty military would choose a part-time, reserve officer to command one of the most important missions in the nascent struggle against terrorists — usually the active Army hoards such positions for their own. I was heartened that Gen. Dunlavey had been selected for the mission, not only because of his military experience, but also because of his legal training and reputation for fairness. Before 2001, I had met Gen. Dunlavey several times at social events, had always been impressed by his decisiveness and obvious intelligence, and hence voted for him when he ran for judge. He seemed qualified by experience and judgment to fill the role he had been assigned.

After February 2002, Gen. Dunlavey’s military duties kept him away from Erie for long periods of time, as did my own, and so I never had the opportunity to speak to him about the so-called Global War on Terrorism or his own service. Since returning to Erie late last year, I have avoided contacting Judge Dunlavey because of the controversies that surround us both. I’ve read extensively about Judge Dunlavey’s service at Guantánamo, and believe that he acted reasonably and honorably during a period of intense political and social pressure, in a very demanding position. Weaker personalities might have succumbed to some of the obviously inhumane directives he received from the Office of the Secretary of Defense, so I personally give Judge Dunlavey great credit for limiting what we now know were serious excesses and misconduct concerning the treatment of the detainees. That Defense Secretary Rumsfeld essentially relieved Gen. Dunlavey of command and replaced him with Major General Geoffrey Miller — of Abu Ghraib infamy — stands as a silent testament to Gen. Dunlavey’s moral courage and strong sense of restraint. I should add that I have not appeared before Judge Dunlavey since returning to Erie, do not have any cases pending before him, and do not expect to in the future, since he is currently assigned to the Juvenile Division of the court, an area in which I do not practice.

The Talking Dog: My understanding is that you have described yourself as fitting the classic model of the rock-ribbed, God-fearing military man. And in this model, my understanding is that, at least before your assignment to the Guantánamo prosecutions, you believed that, in fact, the United States was holding a bunch of hardened fighters and terrorists, and you meant to prosecute as many as you could and send them to jail for as long as possible (and at one time, were associated with at least six different GTMO prosecutions). How have your personal observations and experiences affected your political world-view overall (if it has), and in particular, your view of what the United States government is doing at Guantánamo Bay? If you can answer this — and I understand you are a devout Catholic and had sought the advice of a Jesuit priest and peace activist named John Dear, who gave you the response “quit GTMO” to your expression of personal misgivings about your prosecution work. Has your religious faith been shaken in any way by your experiences, or has it been strengthened and reinforced?

Darrel Vandeveld: When I left Erie for Bosnia in November 2001, I harbored the views of most Americans: I was beyond angry that Americans had been killed in a sneak attack, I viewed al-Qaeda as a manifestation of pure evil, and I was determined to do whatever I could to contribute to their wholesale, final destruction. Despite my Christian beliefs, I hungered for revenge and retribution against Osama bin Laden and his criminal organization, and I made little distinction between al-Qaeda and its accomplices, the Taliban. I distinctly recall feeling a keen sense of disappointment that I had not been able to secure a position in the invasion of Afghanistan. I accepted, without question, the cynical notion that sometimes brutality has to be met with brutality, and I was prepared to put this notion into practice if the Army ever gave me the opportunity. My motivation was entirely apolitical.

Much has been made of my Catholic faith since I left the Commissions, because I cited, almost in passing, that my professional, ethical qualms over the conduct of the Commissions and the treatment of the detainees led me to consult with a Jesuit priest before I asked to be relieved of my duties as a prosecutor at the Commissions. However, the claim that I am a “devout” Catholic is so self-aggrandizing and lacking in humility that I sometimes regret not characterizing myself as a “resolute” Catholic (that is, one convinced of the truth of the Catholic Church’s claims), as opposed to “devout” (the adjective the media has adopted, which I view as implying a fidelity to the church’s teachings and degree of personal holiness that I will be the first to admit I do not possess.) In fact, I’ve always considered myself to be a rationalist, and for many years — had I given the matter much thought — I would have characterized myself as an atheist. Over the past decade or so, however, without any real effort on my part, I gradually came to embrace the Catholic faith and made Kierkegaard’s “leap of faith,” from which I have never retreated. If anything, my study of works such as N.T. Wright’s The Resurrection of the Son of God has reinforced what I’ve accepted as matters of faith. Likewise, my moral misgivings while at the Commissions led me to an intense re-examination of the Gospels, Biblical exegesis, and various theological tracts on Christian morality and, in particular, the Just War theory. From this study and from my experiences, my religious convictions are better informed and more deeply held than ever. Certainly I found solace in the church as I struggled to act on principles I knew to be morally and ethically correct.

Getting back to the Commissions, at the time I joined them, I had served in three different combat zones, and had been on active duty for four of the preceding six years. In Iraq, I participated in dozens upon dozens of missions “outside the wire,” i.e. outside the relatively safe confines of the massive U.S. bases there. Some of the events occurring on these missions stripped me of any illusions about the supposed glamour of war. I have had friends killed in action, friends who committed suicide, and another friend, one of my best friends in the world, gravely wounded in a rocket attack. Whatever romantic impressions I’d harbored about the “glory” of combat or the civilian’s naïve concept of “honor” had long since been replaced by an unimpeded view of the terrible realities of war. As a soldier, of course, I had pledged to sacrifice my life, if necessary, to accomplish our ultimate mission of defending the Constitution, and I emerged from my time overseas with an unshakeable conviction that I would continue to honor that pledge, even though I knew in an object manner the degree of sacrifice, suffering, and the horrors the endeavor might exact or engender. My deepest yearning, then, when I joined the Commissions, was to further my desire for revenge for the September 2001 attacks, and to avenge those Americans who had not survived their tours of duty, who had made the greatest sacrifice possible in this life: the loss of their own lives. In doing so, I reasoned, I would be protecting and defending the Constitution and our Nation, as well as contributing in some small measure to ensure that the fallen had not done so in vain.

So, far from being cynical and disillusioned, or feeling betrayed or used by the Bush administration to advance its misbegotten mission in Iraq, I had reduced my grand ideals to their essential core: day-by-day I would, I told myself, work as hard as I could to see those deserving of punishment suffer as much punishment as I could convince a Commissions panel to impose, even the death penalty if at all possible.

However, I had not been so transformed by my time overseas that I had banished my essential self, or the idealism that led me to become a lawyer in the first place. As a career prosecutor who had tried well over one hundred criminal jury trials by the time I arrived at the Commissions, I had certain professional expectations regarding the status of the cases under consideration for prosecution. When I arrived in May 2007, the Commissions and their predecessor tribunals had been underway for almost six years. I fully expected that, in that lengthy period of time, the evidence against the detainees would have been collected and systematized, that prosecution packages or files would have long since been assembled, and that informed, prudential decisions would have already been made about which detainees had committed war crimes, and which detainees had not.

Instead, what I found was precisely the opposite: despite the best efforts of the Chief Prosecutor at the time, Air Force Colonel Morris Davis, and his deputy, who I will not identify in order to respect his personal privacy, the prosecution enterprise was a shambles, in a state of disorganization that had me reeling in disbelief. It became clear to me within weeks after I reported for duty that the various military services had not assigned officers with the experience, skills, and motivation necessary to conduct the vital mission of prosecuting the war criminals with the sense of urgency and diligence the task required. As I’ve explained elsewhere — and my assertions have been confirmed by “senior Bush administration officials” familiar with the Commissions — the evidence and, more importantly, the missing evidence, had neither been assembled nor sought after with any diligence after prosecutors and investigators had discovered the evidence to be missing. The prosecution office, after detaining supposed enemy combatants for as long as six years, seemed to have accomplished little more than to install a security door in order to separate the prosecution offices from where the convening authority’s offices had then been located. Still, I saw this appalling situation as yet another obstacle to mission accomplishment, believed that these challenges could be overcome by sheer effort, and undertook my duties with a degree of optimism and resolve that, while undoubtedly tempered by my observations, nonetheless remained vibrant and, I thought, realistic.

The Talking Dog: You joined six others (Robert Preston, John Carr, Carrie Wolf, Fred Borch, Stuart Couch and Morris Davis) in resigning from the Guantánamo prosecutions because of the perceived injustice or ethical or other improprieties of them (Col. Borch resigned perhaps for different reasons) [in fact, Borsh, who was the Chief Prosecutor, resigned because of the complaints made by Preston, Carr and Wolf, who stated that he had told them that all the exculpatory evidence would be classified, so the suspect’s Defense counsel would never get to see it, and that all the Commission members who would be serving as the judges were to be picked from officers who could be counted on voting for conviction]. Can you tell me, in your own words, what it was specifically about the Mohammad Jawad case, or the GTMO prosecutions in general, or anything else, that caused you to resign from the prosecution? If you can tell us, what is your current status with the military (e.g. have you resigned your commission)? My understanding is that, for calling into question what you believed to be unethical and illegal conduct, you were subjected to a mental status review by the military. Can you comment on that?

Darrel Vandeveld: As to the Jawad case, I filed a lengthy personal declaration in support of his habeas petition, and anyone interested in the details of my personal revelations and what I’m sure was viewed by the Commissions hierarchy as a disturbing volte face, can read the declaration here (PDF). The declaration is as detailed a dissertation on my evaluation of the case as I could muster under the time constraints, and presents an accurate portrayal of my assessment of the case. My fundamental conclusion, after eighteen months with the Commissions, was that no lawyer could certify to the Commissions and to opposing counsel that the discovery requirements mandated by the Military Commissions Act and its implementing regulations had been met, so dismal was the condition and organization of the evidence. Hence, I concluded, none of the detainees, or at least those whose cases I examined and evaluated, could be guaranteed a fair trial — not a perfect trial, which is impossible to achieve in any case, but a trial that afforded the detainees with evident and ascertainable fairness and transparency. The ineluctable consequence of this assessment required me, I believe, as a lawyer, military officer, and a human being, to refuse to participate in the Commissions any longer.

Regarding the other cases I was assigned to prosecute (at one point, I was responsible for one out of three cases filed before the Commissions), I have refrained from public comment and will continue to do so unless and until competent authority permits me to address the issues raised by those cases. I can say, however, that the intelligence agencies involved in those cases have undertaken massive, organized efforts to assist the Commissions in the pending prosecutions. Even these Herculean efforts, I believe, have been unsuccessful in attaining compliance with our notions of due process and the MCA and Manual for Military Commissions (PDF), not to mention the deeply-ingrained American tradition of fairness.

I also formed the belief, and this is purely my own conjecture, that the more astute among those agencies probably realized that risking the potential compromise of sources and methods of information collection, in an effort to assist a process that had resulted in a grand total of three “trials” in seven years, would have exhibited a certain lack of prudence, to understate the matter significantly. There can be no dispute that revealing sources and methods can lead to lethal consequences for others, and intelligence officers, in my experience, will go to extreme lengths to protect such information.

Finally, Brigadier General Thomas Hartmann did ask me to undergo a mental status evaluation after I had voiced my opposition to the Commissions. He seemed genuine in his concern for my well-being, largely because my derogation of the Commissions appeared to him, as I say, as an abrupt about face — an aggressive prosecutor who had displayed nothing but the most doctrinaire of beliefs about the propriety of the Commissions, into someone whose observations of the injustices at GTMO resulted in a lengthy period of anguish and a re-evaluation of my beliefs and motivations. Gen. Hartmann did not realize, because I had not confided in him, that my disaffection with the Commissions had evolved over a period of months, and after careful study and self-examination. I therefore do not question his motives for “requesting” the examination (a general officer’s “request” is invariably treated as a military order). I know the defense has developed a deep animus for Gen. Hartmann, but my own interactions with him were nothing but cordial and characterized by mutual respect. Whatever the reason he asked for the evaluation, though, the actual examination lasted for all of five minutes before the examining psychiatrist pronounced me fit to return to duty as soon as I could return to my office at the Commissions. The experience was nonetheless one of the most humiliating of my life, a feeling only enhanced when I saw the physician’s patients who were waiting to be seen. I needed no more than the briefest glance at the anguished, confused faces of these other soldiers to understand that they were genuinely in need of treatment and, as I hope and pray they’ve accomplished, a lasting peace and healing.

The Talking Dog: Following up on the Jawad case, in prior statements to the BBC, and in your court submissions, you noted that Jawad, who attempted suicide in custody, was mistreated in a number of ways, including being hooded, shackled and shoved down a stairway at Bagram, and, at GTMO, subjected to “the frequent flier program” (i.e. being moved every few hours to prevent him from sleeping), and subjected to “fear up” interrogation designed to take advantage of vulnerable medical and mental health conditions (and aided by medical professionals). This was done in order to get Jawad to confess — and Jawad did confess (perhaps after sleep deprivation and death threats), albeit with a thumbprint (that wasn’t his!) to a document in Farsi, a language with which he was not familiar (as he was an illiterate Pashto speaker)! Without disclosing anything classified of course, can you describe what else you determined Jawad was subjected to, whether you’d consider it “torture” or otherwise, and what you became aware of other detainees being subjected to, and again, whether you would consider it torture or otherwise?

Darrel Vandeveld: I did not know, at the time I left the Commissions, that Jawad had been subjected to torture, as the MCA and federal law define the term. In the months following my departure, however, the Military Judge presiding over Jawad’s case did find that Jawad’s supposed confessions had been obtained through the use of torture by the Afghans, and that Jawad’s subsequent statements could not be separated in any meaningful, acceptable manner from his torture only hours earlier by the Afghans. Thus, the Military Judge suppressed all of Jawad’s “confessions,” thereby eviscerating the government’s ability to prove Jawad’s alleged guilt beyond a reasonable doubt. The government, of course, has appealed the Military Judge’s suppression rulings, but the more compelling legal analysis by far is that the appellate court, the Court of Military Commissions Review, will uphold the rulings. (The CMCR has delayed issuing an opinion in the government’s appeal pending the review of Guantánamo and the Commissions ordered by President Obama).

The Talking Dog: Again, on the Jawad case, I was struck that, similar to the Omar Khadr case (also chosen for prosecution), Jawad was absurdly young (16 or so at the time of capture) and his supposed “crime” (throwing a grenade at soldiers) appeared to be traditionally covered by “belligerent immunity.” And while Jawad might certainly be a “POW” or “enemy combatant,” a war crime seemed more than a stretch. Am I correct that somewhere along the line you came to the same conclusion? I take it somewhere along the line, you discovered exculpatory evidence about Jawad that was not provided to the defense team. Can you tell us about that, and the reaction of your superiors in the commissions prosecution about that?

Darrel Vandeveld: Again, I submitted a declaration and testified (as ordered by the Military Judge) in a pre-trial hearing in Jawad’s case, and specifically mentioned items that I believed had not been relinquished to the defense by the deadlines the Military Judge had previously established. (The deadlines, I should mention in all candor, had not been anticipated or even requested by the defense, and the Military Judge’s surprise ruling afforded the prosecution very little time in which to comply. Errors made under those severe time constraints were probably inevitable and, in my view, excusable and remedied easily enough. Jawad’s defense had not by then been so firmly articulated that he suffered any appreciable prejudice by the omissions, in my admittedly minority view.) The omitted evidence, I discovered, had been entered into a database maintained by the Criminal Investigation Task Force (CITF) in the month preceding the hearing, without any notice to the prosecution that CITF had done so. I therefore testified that I did not believe these omissions had been intentional. I continue to believe, though, that the failure to turn over arguably exculpatory or mitigating evidence, even if unintentional, only served to underscore the travails of the Commission’s process, otherwise so evident to me and to the world.

My declaration also describes the seminal and compelling work of Professor Madeline Morris of the Duke University Law School, whose comprehensive knowledge of the history, evolution, and application of the law of war is the most cogent I’ve seen expressed by anyone to date. Professor Morris submitted to the Commissions a summary analysis of the charges against Jawad, and later testified as a defense expert witness on the subject. Professor Morris’s explication — again, as clear and cogent of any I have seen — would convince any objective observer that Jawad’s conduct, even if true and provable, did not amount to a violation of the law of war.

The Talking Dog: You and the current chief prosecutor (Col. Lawrence Morris) don’t seem to have particularly nice things to say about each other, Col. Morris essentially calling you a disgruntled former employee who quit because you weren’t happy with your recommendations not being followed and you essentially saying that Col. Morris lacks credibility. Is there anything you’d like to add to that, and was there something more going on there than disagreement over the handling of the Jawad case? Can you tell me about your relationship with the prior GTMO chief prosecutor, Col. Morris Davis, who also resigned as a prosecutor, and what misgivings Col. Davis expressed to you (and you to him)?

Darrel Vandeveld: Col. Morris and I are vastly different people, with vastly different personalities and professional and military experience. We have irreconcilable differences in our assessments of the propriety and effectiveness of the Commissions, and, regrettably, what should have been a dispassionate debate (if a debate at all), degenerated into a personal series of accusations and counter-accusations that served no purpose, other than to demean us both. Now that the Commissions are all but finished, our differing views matter little and are best forgotten. I truly hope that Col. Morris will eventually adopt the same view of our personal rancor and consider our differences to be an insignificant bit of history better forgotten. Perhaps the best description I’ve come across of Col. Morris can be found here, in his own words.

Col. Morris Davis, the Chief Prosecutor who resigned from the Commissions when he failed to persuade the civilians who run the Commissions that his independence as a prosecutor had been undermined, even eliminated, by political interference from the very same civilians, has displayed a remarkable degree of moral courage and character, and has paid a steep personal price for his principled resignation. There is no doubt on the part of those who know him, that Col. Davis would have been elevated to the rank of general officer had he not refused to be bullied by members of the Administration, who sought to transform the Commissions into vacuous show trials. As with any great leader, Col. Davis largely kept his own counsel and never burdened his subordinates with his own professional struggles. He clearly possessed the ability and ethical rectitude to make the Commissions succeed, both in practice and in the eyes of the world. His resignation and subsequent pillorying in the media by anonymous sources who had their own selfish interests in mind when issuing their condemnations, has unfortunately resulted in an incalculable loss to our nation’s efforts to achieve justice with fairness and transparency.

The Talking Dog: Following up on that, Jawad’s military defense lawyer Maj. David Frakt has suggested that you and he had reached a plea-bargain agreement, by which Jawad would have pleaded guilty to something relatively minor and gotten a light sentence (à la David Hicks and Salim Hamdan). Supposedly, Frakt has also suggested, your superiors overruled you on this. Is this anything you can comment on?

Darrel Vandeveld: The foregoing is accurate, and described in detail in the declaration I filed in support of Jawad’s habeas petition. When I realized Jawad either did not commit the offenses charged, or that the charges did not comprise a violation of the law of war, and that Jawad had been terribly mistreated while in US custody, I did seek to end his six-year imprisonment through a negotiated plea that would have required him to be afforded rehabilitation and reintegration services while he served a further, brief period in custody. My superiors dismissed my suggestions out of hand, unequivocally — even to the point of ridicule. With the possibility of securing Jawad’s release through a negotiated plea so decisively rejected, it clarified — if I even needed clarification by then — that I could not in good conscience continue to participate in the Commissions.

I do want to emphasize that Major Frakt is an outstanding lawyer, who possessed a singular grasp of the law of war, Commissions practice and procedure, and a basic commitment to equal justice under the law. Moreover, David Frakt is one of the most congenial people I know, and our initial, vigorous disagreements never descended into a lasting lack of mutual regard, even when our aggressiveness toward one another in the courtroom strongly suggested otherwise, at least to those observing the proceedings. I do confess, shamefacedly, that my initial appraisal of David and his advocacy was less than complimentary. My subsequent personal interactions with him quickly disabused me of my misconceptions. I consider David to be a good friend whose conduct was both honorable and admirable. I hope he and I will be lifelong friends.

The Talking Dog: You have called GTMO a stain on our military, saying, inter alia, “It took me too long to recognize that we had abandoned our American values and defiled our constitution” and you said that the commissions process cannot end in anything resembling “justice.” With all that, and again based on your own observations and experience, especially as we see blowback (such as baseless claims we are hearing that “61 released Guantánamo detainees have returned to the battlefield,” that “we are holding evil terrorists” and so forth), what, based on your own experience, MUST the public know about GTMO, right now? What immediate advice would you give (my college classmate) President Obama, Defense Secretary Gates and other responsible officials, on this subject?

Darrel Vandeveld: President Obama has embarked on the correct path. The review he has ordered will unfortunately require more time to achieve than he’s permitted, for the basic reason I left the Commissions: the evidence, such as it is, is so diffuse or even lost, that the review committee will be unable to assess the cases against the detainees with any degree of certainty within the time allotted in the Executive Order. I have serious doubts that Guantánamo can be closed within a year if the evidence-gathering provision of the President’s EO is taken seriously.

Once completed, though (and the conclusion may very well be that the dismal efforts by the prosecution have defeated any realistic possibility of prosecuting all but a small number of detainees), the President should consider whether the Commissions can be continued, albeit under modified set of laws and rules that mirror the Manual for Military Courts-Martial and the Uniform Code of Military Justice. Guantánamo must be closed, whatever the cost, and creating a “national security court,” as some have suggested, will only lead to additional delay as the principles of any such enterprise are tested in federal court. Likewise, although I have not undertaken a comprehensive review of the proposal, prosecuting the confirmed terrorists and war criminals in so-called “Article III” courts in the US may suffer from justice-defeating impediments.

If I were forced to predict the future course of our activities at GTMO, through an admittedly dimly-lighted lens, I would envision the continuation of the Commissions in a modified manner that would conform to accepted standards of international law and to our own basic, inviolable notions of justice. Major Frakt has written a law review article on this subject (which he may now regret), articulating some of the modifications/wholesale changes that might be feasible and acceptable.

So, my advice to President Obama reduces to this: if trials in “Article III” courts are determined to be imprudent, time-consuming, or to involve too many Constitutional uncertainties, then reform the Commissions by the following: supplement your initial Executive Order with a more specific, imperative directive that ALL evidence be assembled on each detainee immediately, no matter the resources required to do so. Countenance no claims that the task is unattainable. Replace the current Convening Authority, Chief and Deputy Chief Prosecutors, whose failures are undeniable and who, in any event, no longer possess a shred of credibility. Instruct the military services’ top lawyers or “TJAGs” to conscript the most qualified prosecutors available, from whatever source (most probably the reserves, many of whose members are highly-experienced civilian prosecutors). Order the service TJAGs to relocate the entire operation to GTMO (currently, the prosecution and defense have offices in Northern Virginia!). Further, mandate that the Military Judges assigned to the Commissions be relocated to GTMO for the duration as well, holding court proceedings as rapidly as equity allows (before the President’s EO, the Commissions would meet at GTMO perhaps once a month — an unacceptably glacial pace), and to endeavor, consistent with the modified Commissions law and regulations, to complete all trials no later than 21 January 2010. Refuse to release any military personnel from active duty until the mission is complete. Knowing the soldier’s life as I do, this last step will instill the requisite urgency and effort all but abandoned in the preceding seven years. Finally, I would advise the President that after the fair, equitable and just trials are completed, to order the prison camps at GTMO destroyed — bulldozed to the ground, not in an attempt to erase the past, but as a means of recognizing the abandonment of our American values that took place there. Put a decisive end to GTMO.

In sum, if the detainees cannot be tried in US federal courts, replicate the intelligent, reasoned, and highly-regarded Nuremberg trials to the extent possible at GTMO. Restore America as a force for good in the world. Complete the mission at GTMO, with honor and expeditiousness — not dishonor and expediency.

The Talking Dog: Can you describe the gestalt of the GTMO prosecutor’s experience? In particular, your statements were the basis for the recent reporting that prosecution files and evidence “were in disarray” (which you discovered upon your arrival in 2007, some several years after the commission system started). I have suggested that this would be consistent with prosecutors not having much confidence in their “evidence.” Is that anything you can comment on? Can you compare this situation, for example, to how other military prosecutions have been run, and to your experience as a civilian lawyer? To the extent it is not classified, can you identify the other GTMO prosecutions with which you were associated?

Darrel Vandeveld: There were more than a few competent prosecutors at the Commissions when I was there, but most of the others hadn’t tried a case in years, if at all, and then only within the military justice system. With the implicit pressure to file charges as quickly as possible, my supposition is that many prosecutors succumbed to the human temptation to charge the detainees and seek the evidence later. (Compare and contrast my personal experience in Jawad, when I thought I already possessed all the evidence necessary to convict before swearing charges against him.) It appeared to me that many of the prosecutors did not even know the Military Commissions Act and Manual for Military Commissions to the degree necessary to assure themselves that they were in compliance with the law and regulations. Again, there were definitely exceptions to this broad characterization, and I have to admit that most of these exceptions to the rule were reservists who had extensive civilian prosecution experience. Others, regrettably, seemed to passing the time until they could either retire or move to another assignment somewhere in the D.C. area; i.e. their personal concerns were primary.

Again, if my earlier comments were unclear, trials should be held in “Article III” courts for the dozen or so detainees who are true war criminals or terrorists. If this is determined to present too many legal impediments to fair trials or too much uncertainty, then the Commissions could be redeemed through judicious modifications that render them fair and just. In either event, seven or eight years to bring the detainees to trial is a travesty; holding those who should have been released long ago (the plight of the Uighurs is particularly repellant) is unbelievable.

The Talking Dog: I join all my readers in thanking Mr. Vandeveld for that thorough and extremely informative interview.

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.

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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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