Archive for February, 2009

Bad News And Good News For The Guantánamo Uighurs

First, the good news. Adel Abdul Hakim, one of five Uighurs (Muslims from China’s oppressed Xinjiang province), who was released from Guantánamo in May 2006, has had his asylum claim accepted by the Swedish government.

The Uighurs’ story

It has been a long journey for Adel. Seized in Pakistan and sold to US forces in December 2001, with 17 of his compatriots, Adel had been living in a run-down hamlet in the Tora Bora mountains, dreaming of rising up against the Chinese government, when the settlement was hit in a US bombing raid. Although it was clear from the very start of their detention that the Uighurs had nothing to do with either al-Qaeda or the Taliban, the Pentagon initially milked them for information about the Chinese government, and then, as a favor to that same government in the run-up to the invasion of Iraq in 2003, obligingly designated the Uighurs’ separatist group, the East Turkestan Independence Movement (based on the Uighurs’ name for their homeland), as a terrorist organization, and attempted to claim that the Uighurs in Guantánamo were all members.

Even if this had been the case, it was stretching Guantánamo’s rationale to suggest that anyone involved in any independence movement anywhere in the world should be held indefinitely as a “terrorist” on the basis of pragmatic deals struck with foreign governments, but it was not, in fact, clear that any of the men had actually been members of the group. Adel was, initially, one of the lucky ones. While the Pentagon squabbled over the verdicts of different tribunals at Guantánamo (the Combatant Status Review Tribunals, convened in 2004-05 to assess whether the prisoners were correctly designated as “enemy combatants”), secretly reconvening at least two when the tribunal members dared to conclude that their own government had failed to establish an adequate case, Adel and four of his companions managed to avoid the “do-over” tribunals, and were declared to be “not enemy combatants,” although the Pentagon — ever-inventive and ever-unapologetic — soon decided to label them “No Longer Enemy Combatants” instead.

Adel and his four compatriots then languished in Guantánamo for nearly two years, while State Department officials scoured the world looking for third countries prepared to risk the wrath of China by accepting them. This was because, in an ironic twist that was lost on the Bush administration, it was decided that they could not be sent home to China, where there were legitimate fears that they would be tortured. The irony, of course, worked on two levels: firstly, because the Bush administration, which had painstakingly shredded almost every law and treaty it had come across, had decided to abide by the prohibition on returning foreign nationals to countries where they faced the risk of torture (as prohibited in the UN Convention Relating to the Status of Refugees, and in Article 3 of the UN Convention Against Torture); and secondly, because so much of their treatment since they were first seized — especially at Kandahar, the US prison in Afghanistan that was used to process the majority of the prisoners who ended up in Guantánamo — was saturated with the kind of abuse that many observers identified as torture.

Eventually, Albania was prevailed upon to accept Adel and his compatriots, and in May 2006, just three days before a US appeals court was scheduled to hear a habeas corpus claim on their behalf, they were hastily bundled out of Guantánamo and deposited in a UN refugee camp in the Albanian capital, Tirana. Although grateful to be freed from Guantánamo, the men had difficulty adjusting to life in Albania, which is a Muslim country, but is also one of the poorest countries in Europe, with little opportunities for work and no other Uighurs to provide them with any kind of support network.

Asylum in Sweden

18 months later, in November 2007, Adel secured a visa to visit Sweden, to speak at a human rights conference, and to be reunited with his sister Kavser, a registered refugee and part of a sizeable Uighur community in Stockholm. He then took the opportunity to claim asylum, and was backed up by ten human rights groups, from the US and Europe, who pointed out in a submission last January that Sweden was a more appropriate location for a Uighur refugee than Albania, as it fulfilled many of the UN’s requirements for refugees that were not being met in Albania. According to the UNHCR Resettlement Handbook (2004), “resettlement as a durable solution must be accompanied by meaningful prospects for local integration, characterized in part by access to work that provides a living wage; education; fundamental medical (including necessary psychological) services; property; and family support or the support of a similarly situated refugee community.”

Last June, however, the Swedish government turned down Adel’s asylum application. He promptly appealed, and today’s decision therefore marks the end of his seven and a half year journey to find a new home. As the BBC reported, the Swedish migration court accepted that Adel (described in the article as Adel Hakimjan) “was not a terrorist and granted him permanent residency as a refugee.” Speaking to the Associated Press, Adel declared, “It feels like I am starting again, a rebirth. It is now that I am alive.”

The Uighurs’ US court victories

Unfortunately, for the 17 Uighurs still in Guantánamo, today’s bad news rather overshadows the successful outcome of Adel’s long quest for justice. Ignored for years, they gained an unexpected reprieve last June, when three judges in the Court of Appeals in Washington — noticeably, two Republicans and a Democrat — were finally granted an opportunity to review the government’s evidence against Huzaifa Parhat, one of the 17, and decided that the government’s attempts to link him to the East Turkestan Independence Movement were thoroughly unpersuasive. As a result, they “held invalid a decision of a Combatant Status Review Tribunal” that Parhat was an “enemy combatant,” and “directed the government to release or transfer” him (or to hold a new tribunal “consistent with the Court’s opinion”).

In the months that followed, the government gave up trying to prove that any of the other 16 Uighurs were “enemy combatants,” and last October, when their case was reviewed in a District Court in Washington D.C., Judge Ricardo Urbina ruled that their continued detention in Guantánamo was unconstitutional, and, because no other country had been found that would accept them, ordered their release into the care of communities in the D.C area and in Tallahassee, Florida, who had prepared detailed plans for their resettlement.

Predictably, the government appealed, insisting, disgracefully, that the men still constituted a threat to the United States because they had received weapons training in Afghanistan, even though it had already abandoned all pretense that this was the case. This was Kafkaesque enough, but it was backed up by a claim that, “under the separation of powers the decision on whether to admit the petitioners into the United States ‘rests solely with the political branches,’” and that “immigration laws preclude a habeas court from ordering the release of an inadmissible alien into the United States.”

Sadly, for justice, and for the Uighurs, two of the three judges in the appeals court — A. Raymond Randolph and Karen LeCraft Henderson, Bush nominees who will ensure that the Bush administration’s peculiarly aberrant approach to justice will live on for years (or decades) — approved the government’s request for a stay on the Uighurs’ release last October, pending an appeal the following month.

On that occasion, the majority verdict was heavily criticized by the dissenting judge, Clinton nominee Judge Judith W. Rogers, who argued that the government’s immigration argument “misstates the law,” because “the Supreme Court has made clear that, in at least some instances, a habeas court can order an alien released with conditions into the country despite the wish of the Executive to detain him indefinitely,” and “It is thus both inadequate and untrue to assert that the political branches have ‘plenary powers over immigration.’”

In particular, however, Judge Rogers was incensed that the government was attempting to undermine the powers granted to the courts in Boumediene v. Bush, the case last June in which the Supreme Court reiterated that the prisoners at Guantánamo had habeas corpus rights (the right to challenge the basis of their detention). These rights had first been granted by the Supreme Court in June 2004, but had then been removed in two disturbing pieces of legislation — the Detainee Treatment Act of 2005 and the Military Commissions Act of 2006.

Insisting that the Supreme Court’s intention had been to empower the lower courts to act as they saw fit (rather than to have their teeth removed by the Executive), Judge Rogers noted that the Supreme Court not only granted Guantánamo prisoners “the privilege of habeas corpus to challenge the legality of their detention,” but also held that “a court’s power under the writ must include ‘authority to … issue … an order directing the prisoner’s release.’”

Bush’s judges prevent Uighurs’ resettlement in the United States

Yesterday, however, Judges Randolph and Henderson went one step further than they had in November, reversing Judge Urbina’s ruling, and concluding, as Judge Randolph declared (PDF),

Petitioners … invoke the tradition of the Great Writ [habeas] as a protection of liberty. As part of that tradition, they say, a court with habeas jurisdiction has always had the power to order the prisoner’s release if he was being held unlawfully. But … petitioners are not seeking “simple release.” Far from it. They asked for, and received, a court order compelling the Executive to release them into the United States outside the framework of the immigration laws. Whatever may be the content of common law habeas corpus, we are certain that no habeas court since the time of Edward I ever ordered such an extraordinary remedy.

Judge Randolph added, “An undercurrent of petitioners’ arguments is that they deserve to be released into this country after all they have endured at [the] hands of the United States. Such sentiments, however high-minded, do not represent a legal basis for upsetting settled law and overriding the prerogatives of the political branches.”

Surprisingly, perhaps, Judge Rogers, whose dissenting opinion was remorselessly dissected by her colleagues, also voted to overturn Judge Urbina’s order to release the Uighurs into the United States, although she had different reasons for doing so, and, as SCOTUSblog described it, “denounced the majority’s reasoning.”

Judge Rogers concurred in the judgment not because she agreed with the judges’ assertions about the executive branch, but rather because the District Court “has yet to hear from the Executive regarding the immigration laws, which the Executive had asserted may form an alternate basis for detention,” and that therefore Judge Urbina had “erred in granting release prematurely.” Elsewhere, however, she returned to Boumediene, reiterating that the Supreme Court held that prisoners in Guantánamo are “entitled to the privilege of habeas corpus to challenge the legality of their detentions,” and that a “habeas court must have the power to order the conditional release of an individual unlawfully detained,” and boldly declaring,

Today the court nevertheless appears to conclude that a habeas court lacks authority to order that a non-“enemy combatant” alien be released into the country (as distinct from be admitted under the immigration laws) when the Executive can point to no legal justification for detention and to no foreseeable path of release. I cannot join the court’s analysis because it is not faithful to Boumediene and would compromise both the Great Writ as a check on arbitrary detention and the balance of powers over exclusion and admission and release of aliens into the United States recognized by the Supreme Court to reside in the Congress, the Executive and the habeas court.

President Obama’s problem

Quite where this leaves the Uighurs is difficult to discern. As SCOTUSblog reported, Judges Randolph and Henderson were “not deciding whether the 17 Uighurs could qualify for admission into the US under immigration law.” Even though the Bush administration had argued that they could not, the judges declared that they were unable to “resolve that question ‘at this stage’ since the Uighurs had not applied for admission as immigrants.” Furthermore, although the judges’ ruling reversed Judge Urbina’s release order, they required him to conduct “further proceedings,” which were unspecified, and impossible to gauge, as Judge Urbina has already clearly stated his case, and concluded that the Uighurs “no longer may be held legally by the Executive branch under constitutional habeas principles.”

In many ways, therefore, Bush’s judges have thrown the problem of the Uighurs back into the hands of the Executive — although now, of course, it is Barack Obama who will have to decide whether to find new homes for the Uighurs in the United States, or to keep them imprisoned at Guantánamo until, perhaps, various European countries step forward to relieve him of the burden.

To that end, I can’t help wondering if the Swedish announcement, in the case of Adel Abdul Hakim, just happened to fall on the same day as the appeal court ruling, or if it was part of a bigger picture that may enable President Obama not to have to act on the Uighurs’ behalf. For many of us, this would be a capitulation to the injustices of the Bush administration, and it would be preferable if the new President were to follow Judge Urbina, Judge Rogers and the Supreme Court, rather than being obliged to support the stance taken by George W. Bush and his Justice Department, as it lingers on in the dubious legal opinions of two of his judges.

UPDATE: Here is Sabin Willett’s response to the ruling, as reported by Radio Free Asia. Willett spoke by phone while returning to the US mainland after visiting the men in Guantánamo.

“We are bloodied but unbowed. We will fight this,” he said. “Precisely what our next legal filing will be we have not decided, but the courts have not heard the last from us. There is a mechanism for seeking further review in the Court of Appeals, and the Supreme Court is a second option.”

Willett added that the men “are deeply disappointed and frustrated. They were a few hours from freedom on Oct. 9. This is a long time to be in a military prison. There is deep disappointment and frustration among these men. At the same time we mean to remind President Obama every day that this is his problem. The court concluded that the courts can’t solve this problem, and that’s wrong, but that’s what they concluded. [Obama] can solve this problem, and he should do it, and he should do it tomorrow morning.”

Willett also explained that his clients were being held in better conditions recently, with military officials “working hard in the last two weeks to arrange calls” to their families. He added that the four Uighurs who were resettled in Albania in 2006 “have tried to send letters to the Uighurs still held at Guantánamo,” although “whether they reached Guantánamo was unclear.” He also said that “his request for a phone call to his clients from the Uighurs in Albania hasn’t been met.”

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 CounterPunch, Antiwar.com, the Huffington Post, ZNet and AlterNet.

For a sequence of articles dealing with the Uighurs in Guantánamo, see: The Guantánamo whistleblower, a Libyan shopkeeper, some Chinese Muslims and a desperate government (July 2007), Guantánamo’s Uyghurs: Stranded in Albania (October 2007), Former Guantánamo detainee seeks asylum in Sweden (November 2007), A transcript of Sabin Willett’s speech in Stockholm (November 2007), Support for ex-Guantánamo detainee’s Swedish asylum claim (January 2008), A Chinese Muslim’s desperate plea from Guantánamo (March 2008), Former Guantánamo prisoner denied asylum in Sweden (June 2008), Six Years Late, Court Throws Out Guantánamo Case (June 2008), Guantánamo as Alice in Wonderland (July 2008), From Guantánamo to the United States: The Story of the Wrongly Imprisoned Uighurs (October 2008), Guantánamo Uyghurs’ resettlement prospects skewered by Justice Department lies (October 2008), A Pastor’s Plea for the Guantánamo Uyghurs (October 2008), Guantánamo: Justice Delayed or Justice Denied? (October 2008), Sabin Willett’s letter to the Justice Department (November 2008), Will Europe Take The Cleared Guantánamo Prisoners? (December 2008), A New Year Message to Barack Obama: Free the Guantánamo Uighurs (January 2009), Guantanamo’s refugees (February 2009), and the stories in the additional chapters of The Guantánamo Files: Website Extras 1, Website Extras 6 and Website Extras 9.

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

Guantánamo: Lies, Damned Lies and Statistics

On January 22, in an executive order relating to the closure of Guantánamo, President Barack Obama established a comprehensive review of the cases of the remaining 242 prisoners, to work out who could be released and who should continue to be held. The executive order explained that the review was to be “conducted with the full cooperation and participation” of the Attorney General, the Secretaries of Defense, State and Homeland Security, the Director of National Intelligence and the Chairman of the Joint Chiefs of Staff, but in reality, it was expected that the lead would be taken by the Justice Department.

The most thoroughly discredited department in the Bush administration, the Justice Department is clearly in line for a major shake-up, as the new Attorney General, Eric Holder, explained in his acceptance speech on February 3, when he proclaimed his commitment to “remake the Department of Justice into what it was and what it must always be,” and explained, “This may be a break from the immediate past but it is consistent with the long history of the Department of Justice. I call on every employee of this Department — from this moment on — to return to the practices that are the foundation of this entity. It is time once again to base our actions on policies that are rooted in fairness and in a desire to ensure a more just America.”

Propaganda regarding the Guantánamo evidence

According to an article in the Los Angeles Times on Saturday, the Guantánamo review, led by Holder and the Justice Department, has now begun. “The review team is in the process of identifying all the information,” a senior official in the Obama administration said. As the article explained, the process would “not be simple,” as information on the prisoners is “scattered in multiple locations,” and the administration official admitted that “there is not, and may never be, a single file for each detainee.”

The Los Angeles Times article was clearly following up on an article published by the Washington Post on January 25, “Guantánamo Files in Disarray,” which first suggested that, when it came to reviewing the cases of the Guantánamo prisoners, “incoming legal and national security officials — barred until the inauguration from examining classified material on the detainees — discovered that there were no comprehensive case files on many of them.”

According to the Post’s article, “a senior administration official” stated that information on individual prisoners was “scattered throughout the executive branch.” The article’s authors, Karen DeYoung and Peter Finn, also spoke to several former Bush administration officials, who agreed with this analysis, explaining that the files were “incomplete and that no single government entity was charged with pulling together all the facts” regarding each prisoner,” pointing out that “the CIA and other intelligence agencies were reluctant to share information,” and adding that “the Bush administration’s focus on detention and interrogation made preparation of viable prosecutions a far lower priority.” As a result, the journalists speculated that the review board charged with reviewing the cases “will have to spend its initial weeks and perhaps months scouring the corners of the federal government in search of relevant material.”

Although the former Bush administration officials were correct to highlight major problems with the CIA’s reluctance to share information, and the administration’s general lack of interest in prosecutions — as opposed to the “arbitrary detention” identified by Barack Obama, with its focus on endless isolation and interrogation — it was not strictly accurate to describe the “disarray” as something for which the incoming administration was unprepared. The very word “disarray” had been used by Lt. Col. Darrel Vandeveld, a former prosecutor in the Military Commissions, who resigned last September, to describe the state of the prosecutors’ department in the Office of Military Commissions. In a detailed and highly critical declaration a month ago in the habeas corpus review of the Afghan prisoner Mohamed Jawad, Lt. Col Vandeveld not only condemned the entire system for its in-built bias in favor of prosecutions (which involved suppressing evidence vital to the defense), but also explained how

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

The damning evidence of Lt. Col. Stephen Abraham

Moreover, Lt. Col. Vandeveld’s opinions echo those of Lt. Col. Stephen Abraham, a veteran of US intelligence, who worked in 2004-05 on the tribunals at Guantánamo — the Combatant Status Review Tribunals — which were responsible for compiling the material that was used to establish that the prisoners were “enemy combatants.”

Lt. Col. Abraham’s experiences demonstrated two uncomfortable truths: firstly, he explained that, because the body responsible for compiling the material — the Office for the Administrative Review of the Detention of Enemy Combatants (OARDEC) — was not empowered to demand information from the intelligence agencies, “Most of the information collected … consisted … of information obtained during interrogations of other detainees” (and was often produced in circumstances that were not conducive to voluntary confessions). He also pointed out that other material consisted of intelligence “of a generalized nature — often outdated, often ‘generic,’ rarely specifically relating to the individual subjects of the CSRTs or to the circumstances related to those individuals’ status,” and that “what purported to be specific statements of fact lacked even the most fundamental earmarks of objectively credible evidence.”

This explanation alone was, of course, insufficient to establish that the whole of the evidence was worthless, as it did not necessarily include classified evidence that was also used to determine the prisoners’ status, but Lt. Col. Abraham was just as scathing about the quality of the classified evidence, explaining in July 2007 that there was, essentially, no difference between either types of evidence. “The classified evidence,” he told the New York Times, “was stripped down, watered down, removed of context, incomplete, and missing essential information.” He also reiterated his complaints about evidence obtained from other prisoners, stating, “Many detainees implicated other detainees, and there was often no way to test whether they had provided false information to win favor with interrogators.”

In addition, Lt. Col. Abraham had direct experience of the classified evidence, when he served on one of the tribunals — that of a Libyan, Abdul Hamid al-Ghizzawi, who had settled in Afghanistan, where he ran a shop and had a wife and child, but who was captured by bounty hunters and sold to US forces.

After reviewing all the evidence, Lt. Abraham and his colleagues “found the information presented to lack substance,” noting that supposedly specific factual statements “lacked even the most fundamental earmarks of objectively credible evidence,” that statements made by alleged witnesses “lacked detail,” and that generalized statements were presented “in indirect and passive forms without stating the source of the information or providing a basis for establishing the reliability or the credibility of the source.”

However, although they concluded that there was “no factual basis” for holding al-Ghizzawi as an “enemy combatant,” the Defense Department attempted to bully them into changing their mind, and, when they refused, prevented them for taking part in any more tribunals, and duly held another tribunal — in secret — which reversed their opinion and concluded that al-Ghizzawi was indeed an “enemy combatant.”

Al-Ghizzawi remains in Guantánamo to this day, and when I interviewed Lt. Col. Abraham recently, and asked him to talk about the quality of the evidence against him, he gave me an analogy which captured perfectly the problems with a system in which rumor, innuendo and false confessions masquerade as evidence. Speaking of an allegation that al-Ghizzawi was involved with the Libyan Islamic Fighting Group, an organization opposed to the dictatorship of Colonel Gaddafi, Lt. Col. Abraham explained, “There was absolutely nothing in the information to suggest that he had in any way been closely associated with, or had acted in any way that facilitated or contributed to terrorist activities. Nor was there any information that was linked to him directly, or that linked him to al-Qaeda, to the Taliban, or to anything else.” When I pressed him further, to confirm that there was no hint of a connection, he said, “Let me give you an extraordinary connection, the very nature of which I think is irrefutable. I was in Paris in 1975. So was Ayatollah Khomeini. Do I need to go any further?”

Dismissing the propaganda

The problem, therefore, is not so much that “the complexity and dangers of the issue” of reviewing the prisoners’ cases have emerged — as the Post described the opinion of several “former officials” — but rather, as the Conservative judge and George W. Bush appointee Richard Leon discovered in the habeas corpus reviews of five Bosnian Algerians (last November) and Chadian national Mohammed El-Gharani (last month), in many cases “the complexity and dangers” are nothing more than unsubstantiated rumors, and the evidence itself cannot be substantiated.

With this in mind, it was, frankly, negligent of the Washington Post to cite the opinion of a “former senior official,” who accused the Obama administration of “backpedaling and trying to buy time,” and who claimed, “All but about 60 who have been approved for release are either high-level al-Qaeda people responsible for 9/11 or bombings, or were high-level Taliban or al-Qaeda facilitators or money people.”

The problem with this official’s statement is that it is demonstrably false. Of the 182 other prisoners tarred as terrorists by the official, it has long been established that only between 35 and 50 are regarded by intelligence officials as connected in any meaningful way with al-Qaeda or other terrorist groups.

A startling example of a prisoner who does not correspond to the opinion of the “former senior official” was revealed just three days after the article was published in the Post, when Judge Leon ruled that a Yemeni prisoner, Ghaleb al-Bihani, could continue to be held as an “enemy combatant,” not because he was a high-level al-Qaeda operative responsible for 9/11 or bombings, or a high-level Taliban or al-Qaeda facilitator or money person, but because he had been an assistant cook for the Taliban and the Arab recruits serving alongside them in the Taliban’s long-running war with the Northern Alliance.

Judge Leon’s ruling raises some other uncomfortable questions, of course; primarily, if it is at all reasonable for men involved in a conflict that preceded the US-led invasion of Afghanistan in October 2001 to be held as “enemy combatants” because they were still there when that conflict morphed into a war against the United States, but what it proves beyond a shadow of a doubt is that you do not necessarily have to be a terrorist to be imprisoned as an “enemy combatant” in Guantánamo.

The Post, of course, did not know that Judge Leon would make this ruling when the article was published, but his previous rulings should have set off some alarms, as should another statement by the “former senior official,” who “acknowledged that he relied on Pentagon assurances that the files were comprehensive and in order rather than reading them himself.”

The cause of justice, which has been suspended in Guantánamo for seven long years, is not served by allowing unsubstantiated rumors by former Bush administration officials to disguise the fact that the main reason that the evidence against the prisoners is “in disarray” is not because it is scattered to the four winds, but because it either doesn’t exist at all, or because it was extracted from other prisoners under duress, or because it serves only to prove that the prisoners in question had traveled to Afghanistan to help the Taliban fight the Northern Alliance in a long-running civil war that, in most cases, had nothing whatsoever to do with al-Qaeda, the 9/11 attacks, or any other form of terrorist activity.

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.

See the following for a sequence of articles dealing with the crucial testimony of Lt. Col. Stephen Abraham and other Guantánamo whistleblowers: Guantánamo whistleblowers: Lt. Col. Stephen Abraham is not the first insider to condemn the kangaroo courts (July 2007), The Guantánamo whistleblower, a Libyan shopkeeper, some Chinese Muslims and a desperate government (July 2007), Guantánamo: more whistleblowers condemn the tribunals (August 2007), A New Guantánamo Whistleblower Steps Forward to Criticize the Tribunal Process (October 2007), Guantánamo whistleblower launches new attack on rigged tribunals (November 2007), Guantánamo and the Supreme Court: the most important habeas corpus case in modern history (December 2007), Guantánamo and the Supreme Court: What Happened? (December 2007), Guantánamo whistleblower Stephen Abraham addresses European Parliament (March 2008), The Supreme Court’s Guantánamo ruling: what does it mean? (June 2008), An interview with Guantánamo whistleblower Stephen Abraham (Part One) (December 2008), An interview with Guantánamo whistleblower Stephen Abraham (Part Two) (December 2008).

For a sequence of articles dealing with the Guantánamo habeas cases, see: Guantánamo as Alice in Wonderland (Uighurs’ first court victory, June 2008), What’s Happening with the Guantánamo cases? (July 2008), Government Says Six Years Is Not Long Enough To Prepare Evidence (September 2008), From Guantánamo to the United States: The Story of the Wrongly Imprisoned Uighurs (October 2008), Guantánamo Uyghurs’ resettlement prospects skewered by Justice Department lies (October 2008), Guilt By Torture: Binyam Mohamed’s Transatlantic Quest for Justice (November 2008), After 7 Years, Judge Orders Release of Guantánamo Kidnap Victims (November 2008), Is Robert Gates Guilty of Perjury in Guantánamo Torture Case? (December 2008), A New Year Message to Barack Obama: Free the Guantánamo Uighurs (January 2009), The Top Ten Judges of 2008 (January 2009), No End in Sight for the “Enemy Combatants” of Guantánamo (January 2009), Judge Orders Release of Guantánamo’s Forgotten Child (January 2009), How Cooking For The Taliban Gets You Life In Guantánamo (January 2009), Bad News And Good News For The Guantánamo Uighurs (February 2009), The Nobodies Formerly Known As Enemy Combatants (March 2009), Farce at Guantánamo, as cleared prisoner’s habeas petition is denied (April 2009), Obama’s First 100 Days: A Start On Guantánamo, But Not Enough (May 2009), Judge Condemns “Mosaic” Of Guantánamo Intelligence, And Unreliable Witnesses (May 2009), Pain At Guantánamo And Paralysis In Government (May 2009), Guantánamo: A Prison Built On Lies (May 2009), Free The Guantánamo Uighurs! (May 2009), Guantánamo And The Courts (Part One): Exposing The Bush Administration’s Lies (July 2009), Obama’s Failure To Deliver Justice To The Last Tajik In Guantánamo (July 2009), Obama And The Deadline For Closing Guantánamo: It’s Worse Than You Think (July 2009), How Judge Huvelle Humiliated The Government In Guantánamo Case (Mohamed Jawad, July 2009), As Judge Orders Release Of Tortured Guantánamo Prisoner, Government Refuses To Concede Defeat (Mohamed Jawad, July 2009), Guantánamo As Hotel California: You Can Check Out Any Time You Like, But You Can Never Leave (August 2009), Judge Orders Release From Guantánamo Of Kuwaiti Charity Worker (August 2009). Also see: Justice extends to Bagram, Guantánamo’s Dark Mirror (April 2009), Judge Rules That Afghan “Rendered” To Bagram In 2002 Has No Rights (July 2009).

The Guantánamo Files: Additional Chapters Online – The Last of the Afghans (Part Two)

I’m delighted to announce that my three-year project to record the stories of all the prisoners held at Guantánamo is nearly complete. I’ve just posted the last of 12 additional online chapters supplementing my book The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison (published by Pluto Press, and available from Amazon here and here). This additional chapter complements Chapter 17 of The Guantánamo Files, looking at the stories of 37 prisoners not mentioned in the book, either because their stories were not available at the time of writing, or to keep the book at a manageable length.

Although the majority of these men have been released from Guantánamo, eight are still held. As with the majority of the stories of the 220 or so Afghans who were held at Guantánamo, their stories, taken as a whole, exemplify the failures of both “Operation Enduring Freedom” (the US-led invasion of Afghanistan in October 2001) and the Guantánamo project to identify prisoners who were actually involved in terrorism — both because of chronic intelligence failures on the ground, and a lack of screening in the US prisons at Kandahar and Bagram, as dictated at the highest levels of the Bush administration.

Within the next week, I’ll be publishing a definitive prisoner list, identifying not only the 242 prisoners who are still held, and those who have been released (and the dates they were released), but also those who have been cleared for release, whose plight is one of the major stumbling blocks to Barack Obama’s promise to close Guantánamo within a year, as the majority of these prisoners cannot be repatriated because of fears that they will be tortured in their home countries.

The list will provide links to the stories of around half of the 779 prisoners who have been held at Guantánamo, and references will be provided for the other half, identifying where their stories can be found in The Guantánamo Files. The list will, I hope, be a useful research tool, not just in identifying the stories of those who have been released, but also as an aid to analyzing the stories of those who are still held, to compare the Bush administration’s long-standing assertions that the remaining prisoners are the “hardcore” with a more objective view, which, in the majority of cases, questions the quality of the so-called evidence against them, as is the case with the eight prisoners mentioned in this online chapter who are still held.

Note: See the column on the left for the first eleven online chapters.

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The Guantánamo Files: Andy Worthington interviewed for Foreign Policy Journal

Iranian journalist Kourosh Ziabari recently interviewed me by email about my book The Guantánamo Files, and my opinions about the Obama administration’s approach to foreign policy and the “War on Terror.” The interview was published on the website Foreign Policy Journal (as “Aberrations of Bush undermined every branch of US government: British Historian”).

Andy Worthington is a British investigative journalist and historian. His recent book The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison, is a key resource of information for those who want to have a collection of detailed dossiers of Guantánamo captives, their nationalities, family background and the illegal excuses for which they had been jailed.

He has opened up several cases to investigate the terrible and heart-rending methods of torturing which the prisoners of America’s underground jails have been subject to during the tenure of George W. Bush.

He has also unveiled that Dick Cheney, the then-Vice President of the US, was a prominent accomplice in the criminal treatment of teenage prisoners in Guantánamo Bay, such as Mohammed El-Gharani, the 14-year old Saudi boy who spent one-third of his life in the custody of America and has been persecuted in the most humiliating and shameful manner.

In an exclusive interview, Andy Worthington revealed that Guantánamo prison has been an international cage with detainees from 47 countries who were mainly put there without any habeas corpus, trial or official charge.

Kourosh Ziabari: First, I would like you to clarify whether we can be hopeful about the decree of President Obama on the closure of Guantánamo Bay prison as a symptom of major upcoming changes in US foreign policy?

Andy Worthington: Absolutely. Since Barack Obama emerged as a Senator worth watching in 2006, he has made clear his belief that the United States should return to being the nation of laws on which it was founded. In a major speech in August 2007, he said, “In the dark halls of Abu Ghraib and the detention cells of Guantánamo, we have compromised our most precious values. What could have been a call to a generation has become an excuse for unchecked presidential power. A tragedy that united us was turned into a political wedge issue used to divide us.”

He also said, “When I am President, America will reject torture without exception. America is the country that stood against that kind of behavior, and we will do so again. As President, I will close Guantánamo, reject the Military Commissions Act, and adhere to the Geneva Conventions. Our Constitution and our Uniform Code of Military Justice provide a framework for dealing with the terrorists. The separation of powers works. Our Constitution works. We will again set an example to the world that the law is not subject to the whims of stubborn rulers, and that justice is not arbitrary.”

So his Presidential orders, requiring that Guantánamo be closed within a year, ordering the CIA to close all secret prisons, reinstating the Geneva Conventions and upholding the absolute prohibition on torture are undoubtedly, as you say, “Signs of a major change in the policies of the US.”

Kourosh Ziabari: Some American lawmakers have proposed the indictment of ex-President Bush and then-Vice President Dick Cheney for admitting the illegal ways of torture, such as waterboarding, in the US underground prisons. Is it possible legally, and should it be pursued internationally?

Andy Worthington: You are, of course, correct to point out that former Vice President Dick Cheney admitted that a handful of prisoners were subjected to waterboarding, an ancient torture technique that involves controlled drowning, and it is noticeable that both Barack Obama and the new Attorney General, Eric Holder, have recently stated categorically that waterboarding is torture.

The problem, however, is that the Bush administration attempted to redefine torture, so that it could claim that what it was involved in was not torture, and it did so largely under the cover of legal opinions issued by the Justice Department’s Office of Legal Counsel (OLC). These opinions are traditionally regarded as beyond reproach. As Jane Mayer explained in her book The Dark Side, “The OLC plays a unique role in the federal government and issues opinions that are legally binding on the rest of the executive branch. If the OLC interprets the law in a certain way, unless the attorney general overrules it, the government must too. If the OLC says a previously outlawed practice, such as water-boarding, is legal, it is nearly impossible to prosecute US officials who followed that advice on good faith.”

However, it is my opinion, and I am not alone in thinking this, that President Obama should appoint a Special Prosecutor to investigate the legal opinions, as there is clearly a case to be made that the OLC, which was effectively under the control of the Vice President’s Office, issued opinions that were, in fact, legally indefensible.

What makes this situation even more pressing is that, in the weeks before Barack Obama’s inauguration as President, Susan Crawford, the senior Pentagon official overseeing the Military Commission trial system at Guantánamo, admitted that she had not pressed charges in the case of a Saudi prisoner, Mohammed al-Qahtani, because he had been tortured in US custody in Guantánamo. Crawford attempted to explain that the torture was the unforeseen result of combining a number of harsh techniques that had been legally approved, but the reality is that a senior official admitted that the administration tortured a prisoner in the “War on Terror,” and, according to the UN Convention Against Torture, to which the US is a signatory, those responsible for authorizing the use of torture must be prosecuted.

Kourosh Ziabari: Which pretexts were employed by the US government for the imprisonment of Guantánamo detainees? Were these alleged reasons rational and acceptable at all?

Andy Worthington: Incredibly, senior figures in the administration, primarily Vice President Dick Cheney and a team of legal advisers, led by his legal counsel David Addington, decided that prisoners in the “War on Terror” were neither prisoners of war, protected from cruel and inhuman treatment by the Geneva Conventions, nor criminal suspects to be put forward for a trial in a federal court, but “illegal enemy combatants,” who could be held indefinitely without charge or trial. This was to facilitate their interrogation, without the restraints of either the Geneva Conventions or US law, which, of course, prohibit coerced interrogations.

It reveals, tragically, what happens when protections on prisoners are removed, as it enabled the administration to justify the introduction of “extraordinary rendition,” kidnapping terror suspects anywhere in the world, and sending them to be tortured in third countries, and in turn, to establishing its own torture prisons, run by the CIA, and introducing torture as an interrogation tool or as a prelude to interrogation when senior officials came to believe that prisoners at Guantánamo and elsewhere were deliberately withholding information.

Kourosh Ziabari: How could the American administrators and former statesmen justify the felonies and crimes which they carried out in these years under the flag of “war on terror” against nations? Shouldn’t they limit their international interventions and return back to their frontiers?

Andy Worthington: I think the problem is that the Bush administration’s extraordinary aberrations undermined every other branch of government, pouring scorn on the State Department’s long-standing attempts to highlight human rights abuses around the world. Hopefully, the disgruntled State Department officials who have had to endure the last eight years will now have an opportunity once more to engage with the world and establish a viable moral compass.

I should also note that the “War on Terror” endangered US personnel abroad, and also encouraged brutal regimes around the world to justify their own transgressions by citing the example of the US.

Kourosh Ziabari: It’s widely believed that the US invasion of Iraq and Afghanistan which has so far caused a civilian death toll of 3 million (and counting) should be branded as “war crimes and crimes against humanity.” Do you agree with the proposal?

Andy Worthington: Well, to be fair, the invasion of Afghanistan had the backing of the UN even if the decision to equate the Taliban with al-Qaeda was a fundamental intelligence failure, and one which contributed significantly to Guantánamo being a prison full of people with no intelligence value whatsoever.

However, the invasion of Iraq was of course, neither backed by the UN nor legal in any other sense, and was, instead, an almost bewilderingly stupid manifestation of a policy of regime change and nation-building, masquerading as an act of self-defense, and based on severely manipulated intelligence reports.

As a result, it can be added to the crimes of the Bush administration, but, as with all the other crimes, what concerns me most at present is how Barack Obama can find a way to undo the damage caused by the previous administration as swiftly and effectively as possible, while also making sure that it is substantially more difficult, in future, to embark on an illegal war in the first place. I’d also like to see the same constraints applied in the UK, where, effectively, one man, Tony Blair, and a cowed Cabinet led the UK to join the United States in its disastrous neo-colonial invasion and occupation, despite widespread opposition from the public.

Kourosh Ziabari: Finally, would you please explicate about the results of your investigations into the cases of Guantánamo prison and give us some information on the number of prisoners, nationalities and the employed torturing methods?

Andy Worthington: 779 prisoners have been held at Guantánamo in total, from 42 different countries, including Iran. Of these, 242 are still held, 532 have been released, and five have died.

The means of torture — which were, effectively, less severe manifestations of the techniques used on Mohammed al-Qahtani, and which were applied to at least a hundred prisoners — included “stripping detainees of their clothing, placing them in stress positions, putting hoods over their heads, disrupting their sleep, treating them like animals, subjecting them to loud music and flashing lights, and exposing them to extreme temperatures,” as a Senate Armed Services Committee report concluded in December.

What was extraordinary and inexplicable about the approval for these techniques is that they were reverse engineered for use on terror suspects based on techniques taught in US military schools to train US personnel to resist interrogation if captured, and were, explicitly, drawn from Chinese Communist torture techniques used in the Korean War to elicit false confessions!

As the Senate Committee report stated, incredulously, “The abuse of detainees in US custody cannot simply be attributed to the actions of ‘a few bad apples’ acting on their own. The fact is that senior officials in the United States government solicited information on how to use aggressive techniques, redefined the law to create the appearance of their legality, and authorized their use against detainees. Those efforts damaged our ability to collect accurate intelligence that could save lives, strengthened the hand of our enemies, and compromised our moral authority.”

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). This article draws on passages from the book. To receive new articles in your inbox, please subscribe to my RSS feed.

Hiding Torture And Freeing Binyam Mohamed From Guantánamo

This has been an extraordinary week for British resident, torture victim and Guantánamo prisoner Binyam Mohamed. Last Thursday, his lawyers’ ten-month campaign to secure the disclosure of documents in the possession of the British government, which apparently confirm details of his “extraordinary rendition” and torture, sparked a crisis when the High Court judges in his case, Lord Justice Thomas and Mr. Justice Lloyd Jones, bowed to pressure from the foreign secretary, David Miliband, not to make public a summary of the evidence because the US government had threatened to re-evaluate its intelligence sharing relationship with the UK, which “could inflict on the citizens of the United Kingdom a very considerable increase in the dangers they face at a time when a serious terrorist threat still pertains.”

This was in spite of the fact that, since last August, the judges have made it clear that they believe that a summary of what happened to Binyam should be made available in the interests of “open justice, the rule of law and democratic accountability,” and also because “The suppression of reports of wrongdoing by officials (in circumstances which cannot in any way affect national security) would be inimical to the rule of law and the proper functioning of a democracy.”

Hiding torture in the UK

In response to the judges’ capitulation, the media seized on a particular passage in the judgment — which stated that one of the main reasons that the judges had made their decision was because they had “been informed by counsel for the Foreign Secretary that the position had not changed” with the inauguration of Barack Obama — to confront the foreign secretary about the nature of these threats. On Channel 4 News, David Miliband played down the talk of a “threat” — even though the judges had mentioned it no less than eight times in their judgment — and explained,

What there is is a simple fact, which is that intelligence cooperation depends on confidentiality. We share our secrets with other countries, and they share their secrets with us, and the founding principle, for us and for them, is that we can trust the confidentiality of that relationship. In this case, the United States made clear, in documents that have been published, that there would inevitably be lasting harm if that fundamental principle was breached.

This was undoubtedly true — although it also conveniently allowed the British government to avoid having to deal with the revelation, in public, of its own agents’ complicity in war crimes — but Miliband then appeared to back up his counsel’s claim that the situation had not changed with the arrival of a new administration in the White House. After Jon Snow asked him, “Have you checked that this threat — and it is a threat, because the judges call it a threat — still stands under the Obama administration?” Miliband responded by stating, “There’s no evidence that it doesn’t stand.”

This was in marked contrast to a statement earlier that day by a spokesman for Prime Minister Gordon Brown, who maintained, as the Daily Mail described it, that Downing Street “was unaware of any threat from the Obama administration to withdraw intelligence sharing.” The spokesman stated, explicitly “We have not engaged with the new administration on the detail of this case.”

On Thursday, in a response to the furore in the House of Commons, David Miliband dropped his carefully worded response to Jon Snow’s question about the Obama administration, and contented himself with repeating the mantra about the “fundamental principle” of confidentiality between governments regarding the disclosure of intelligence information. However, the gulf between what the judges had been led to believe, and the statement from the Prime Minister’s spokesman, prompted Binyam’s solicitors, at Leigh Day & Co., to prepare a new submission (PDF), asking the High Court to reconsider its judgment.

Binyam’s lawyers request the High Court to reconsider its judgment

The submission included a witness statement from the journalist David Rose, who reported that, in addition to the comments made on behalf of the Prime Minister, a spokesman for the Foreign and Commonwealth Office had stated on February 4, “We haven’t made any representations to the court regarding the new administration’s approach to this case. We have not approached the new administration about these paragraphs. We haven’t made any representations about their attitude and we haven’t been asked by the court to do so, despite the new executive orders and the attitude that may now prevail in Washington.”

The demands made in the submission were stark. In light of the fact that “No threat was made by the US Government,” and “No approach had been made by the UK Government to the new US administration of President Obama, and no representations had been made to the Court about the attitude of the new administration,” Dinah Rose QC and Ben Jaffey declared that “these statements call seriously into question the accuracy and completeness of the evidence and submissions given by the Defendant [David Miliband] on which the Court relied in reaching its judgment,” and asked the Court “to reopen its judgment in this matter, and to order the Defendant to swear evidence setting out the complete and accurate factual position as to the making of a threat; and the maintenance of any threat by the Obama administration.”

Hiding torture in the US: Obama’s first great failure

Just five days after David Miliband’s successful intervention to prevent the disclosure of evidence of Binyam’s rendition and torture in the UK, the American Civil Liberties Union (ACLU), following up on a case it had first pursued in May 2007 (PDF), which was dismissed in February 2008, embarked on its first test of President Obama’s commitment to addressing the crimes of the Bush administration in a Ninth Circuit appeals court in San Francisco.

The case, which involves Jeppesen Holdings Inc., a Boeing subsidiary responsible for managing the Bush administration’s “extraordinary rendition” program (“The CIA’s Travel Agent,” as Jane Mayer described them in 2006), centered on five well known cases of rendition of torture. In addition to Binyam, who was seized in Pakistan in April 2002, and was then rendered by the CIA to Morocco for 18 months of torture, followed by another five months of torture in the CIA’s “Dark Prison” near Kabul, the ACLU’s suit was also filed on behalf of Ahmed Agiza, Abou Elkassim Britel, Mohamed Farag Ahmad Bashmilah and Bisher al-Rawi, whose stories, in brief, are as follows:

Ahmed Agiza, an Egyptian national, was an asylum seeker in Sweden. In December 2001, with the cooperation of the Swedish authorities, he was seized by the CIA and rendered to Egypt, where, after being tortured, he was subjected to a show trial and given a 25-year sentence (which was reduced to 15 years on appeal).

Abou Elkassim Britel, an Italian citizen, was seized in Lahore in 2002 and rendered by the CIA to Morocco, where he was tortured. Released without charge in February 2003, he was seized by the Moroccan authorities in May 2003, as he attempted to fly back to Italy, and was subjected to a show trial and given a 15-year sentence (which was reduced to nine years on appeal).

Mohamed Farag Ahmad Bashmilah, a Yemeni citizen, was seized by Jordanian intelligence agents in October 2003 and tortured for five days. He was then rendered to the US prison at Bagram airbase in Afghanistan, where he was tortured for six months, and was then moved to a secret black site run by the CIA, where his torture continued. In May 2005, he was secretly flown to Yemen, where he was imprisoned until he was finally released without charge in March 2006.

Bisher al-Rawi, a British resident, was kidnapped in the Gambia in November 2002, and rendered by the CIA to Afghanistan, where he was tortured for two months in two secret prisons. He was flown to Guantanamo in February 2003, and was released in March 2007.

Although there were high hopes that the Obama administration would take this opportunity to move beyond its commitment to outlaw torture, “extraordinary rendition” and the use of secret prisons — as laid out in a series of executive orders issued on Obama’s second day in office — and would start to pursue those responsible for those crimes, what happened instead, as the New York Times described it, was that “a lawyer for the Obama administration seemed to surprise a panel of federal appeals judges” by “pressing ahead with an argument for preserving state secrets originally developed by the Bush administration.”

As the Times explained, Judge Mary M. Schroeder, a Carter appointee, “coyly referring to the recent election,” asked the lawyer, Douglas N. Letter, “Is there anything material that has happened” that might have caused the Justice Department to shift its views? “No, your honor,” came the reply. Judge Schroeder tried again. “The change in administration has no bearing?” she asked. Once again, Letter replied, “No, Your Honor,” and added that his position on the case had been “thoroughly vetted with the appropriate officials within the new administration.” “[T]hese,” he declared emphatically, “are the authorized positions.”

The position taken by Justice Department was, in theory at least, in direct contrast to the position taken by the new Attorney General, Eric Holder, both at his confirmation hearing and in a statement that he made the day before the case, when he pledged to review all assertions of the state secrets privilege that had been exercised by the Bush administration. As the Washington Post described it, Matt Miller, a spokesman for the Justice Department, “declined to discuss the ACLU’s suit in San Francisco, citing ongoing litigation,” but insisted that the Department was still committed to a review of the Bush administration’s use, or misuse of the state secrets privilege.

“The attorney general has directed that senior Justice Department officials review all assertions of state secret privilege to ensure that it is being invoked only in legally appropriate situations,” Miller explained, adding, “It is vital that we protect information that if released could jeopardize national security, but the department will ensure the privilege is not invoked to hide from the American people information about their government’s actions that they have a right to know.”

This was, however unintentionally, a rather provocative statement, as there are many people, in the United States and beyond, who believe that information about the Bush administration’s global policy of kidnapping, rendition and torture is exactly the sort of topic about which “they have a right to know,” and Anthony D. Romero, the executive director of the ACLU, responded angrily to the Justice Department’s stance. “This is not change,” he stated, throwing President Obama’s campaign pledge back at him. “This is definitely more of the same. Candidate Obama ran on a platform that would reform the abuse of state secrets, but President Obama’s Justice Department has disappointingly reneged on that important civil liberties issue. If this is a harbinger of things to come, it will be a long and arduous road to give us back an America we can be proud of again.”

However, bitter though the truth may be, when it came down to it President Obama and his team must, I think, have been literally besieged by supplicants — from the CIA, from Boeing, from Jeppesen, and from countless other government departments and contractors involved in “extraordinary rendition” and torture in the last seven years — urging them not to open up the floodgates to what David Miliband has been striving, on a smaller scale, to prevent in the UK: prosecution for complicity in war crimes.

Quite where this leaves the struggle for the disclosure of evidence relating to “extraordinary rendition” and torture is unclear, although from my point of view, the most appropriate course of action would be for those directly responsible for implementing America’s “War on Terror” policies — a list that includes George W. Bush, Dick Cheney, Donald Rumsfeld, David Addington, John Yoo, Alberto Gonzales, and William J. Haynes II, to name but a few — to be pursued for the prosecutions that President Obama is obliged to follow up on, after the admission in February 2008 by Gen. Michael Hayden, the director of the CIA, that waterboarding — a form of torture — was used on a number of “high-value detainees,” and last month’s confession by Susan Crawford, the Convening Authority of the Military Commission trial system at Guantánamo, that she had dropped the charges against Mohammed al-Qahtani, the alleged 20th hijacker for the 9/11 attacks, because “His treatment met the legal definition of torture.”

The US and the UK come up with a logical, but quietly desperate compromise

In the meantime, both the US and UK governments appear to have come up with a way of removing the fear of the disclosure of evidence of “extraordinary rendition” and torture in Binyam Mohamed’s case by arranging — as has been suggested since the end of last year — that he will be returned in the near future to Britain, where, without wishing to be at all cynical, his precarious status will ensure that he breathes a word to nobody about his experiences until the British government renews his residency at some unspecified point in the future.

The last straw for David Miliband may well have been the arrival in the UK of Lt. Col. Yvonne Bradley, Binyam’s military defense attorney for his proposed trial by Military Commission (which was dropped last October and has not, unsurprisingly, been reinstated), who flew in at the weekend in an attempt to ramp up the pressure on both governments, bearing bleak news about how Binyam is “close to death” after two months on a hunger strike, wooing the media with her ability to present the issues with an understated directness, and — no doubt to the government’s dismay — hooking up with the Tory MP David Davis, who leapt on the US “threat” last week, for a press conference on Wednesday morning. Soon after, Lt. Col. Bradley met with David Miliband, who explained in a subsequent statement,

I met Binyam Mohamed’s US military defence counsel Lt Col Yvonne Bradley today. I wanted to hear her views personally, particularly following her recent visit to Guantánamo. We have long been concerned by reports of Mr. Mohamed’s medical condition, and her account underlined those concerns.

As I made clear in parliament last week we are working as fast and hard as we can to secure Mr. Mohamed’s release from Guantánamo and return to the UK. We want him to be released as soon as possible. FCO officials and the embassy in Washington have held further talks at senior level in recent days with the US administration.

Miliband then indicated that Binyam’s release was dependent not on the collapse of the charges against him — even though the “dirty bomb” plot allegations were dropped by the Justice Department last October, when the judge in his habeas corpus review ordered the government to provide evidence of the plot — but was, instead, dependent on the outcome of the review of the cases against the remaining 242 prisoners that President Obama had instigated in his executive orders on his second day in office. This was a twist that, sadly, seemed designed to allow both Obama and David Miliband to distance themselves once more from the troublesome truth about the case against Binyam. As the foreign secretary explained:

President Obama’s executive orders of 22 January established a review of the cases of all those detained at Guantánamo. Following our representations, the US administration have now agreed that Mr. Mohamed’s case should be treated as a priority in this process. We continue to work with the US to achieve a swift resolution.

He also explained, in another passage that appeared to have been carefully scripted on both sides of the Atlantic, that British officials would soon be visiting Binyam to prepare for his return to the UK, if Obama’s expedited review of his case — which is surely a foregone conclusion if the lid is to be held firmly shut on the details of his torture — approves his release:

The US administration yesterday also agreed that Foreign Office officials should visit Mr. Mohamed as soon as possible. The visit will help us make preparations for his return, should the review confirm a decision to release him. The team will include a Metropolitan police service doctor, who would take part in any return, so that he may assess Mr. Mohamed’s condition himself and report back.

This has not, in truth, been a good week for justice, but it may just have been a life-saver for 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.

As published exclusively on Cageprisoners.

Note: The photo at the top of the article, of a member of the London Guantánamo Campaign, during a demonstration outside Downing Street on Binyam’s 30th birthday in July 2008, is © Peter Marshall, and is taken from an article on Indymedia.

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), Binyam Mohamed’s Coming Home From Guantánamo, As Torture Allegations Mount (February 2009), Binyam Mohamed’s statement on his release from Guantánamo (February 2009), Who Is Binyam Mohamed, the British resident released from Guantánamo? (February 2009), Seven Years of Torture: Binyam Mohamed Tells His Story (March 2009), Binyam Mohamed’s Plea Bargain: Trading Torture For Freedom (March 2009), Guantánamo, Bagram and the “Dark Prison”: Binyam Mohamed talks to Moazzam Begg (March 2009), Obama’s First 100 Days: Mixed Messages On Torture (includes the Jeppesen lawsuit, May 2009), UK Government Lies Exposed; Spy Visited Binyam Mohamed In Morocco (May 2009), Daily Mail Pulls Story About Binyam Mohamed And British Spy (May 2009), Government Bans Testimony On Binyam Mohamed And The British Spy (May 2009), More twists in the tale of Binyam Mohamed (in the Guardian, May 2009), Did Hillary Clinton Threaten UK Over Binyam Mohamed Torture Disclosure? (May 2009), Outsourcing torture to foreign climes (in the Guardian, May 2009), Binyam Mohamed: Was Muhammad Salih’s Death In Guantánamo Suicide? (June 2009), Miliband Shows Leadership, Reveals Nothing About Torture To Parliamentary Committee (June 2009).

Guantánamo’s refugees

The continued imprisonment of at least 61 prisoners at Guantánamo, who have been cleared for release after multiple military review boards (or, in recent months, after rulings in a US court), was an affront to notions of justice when the Bush administration was in power, and is even more so now that Barack Obama, who has pledged to close Guantánamo, is President.

Many of these prisoners have been cleared since 2006, and yet the majority of them are still held in conditions of profound isolation. At the very least, President Obama should be ensuring that all the prisoners are held in accordance with the Geneva Conventions, as he promised in a Presidential order on his second day in office, and that the cleared prisoners are held in Camp 4, away from the isolation blocks, where the fortunate few are allowed to live communally.

However, as I reported yesterday, with a mass hunger strike currently raging at the prison, and at least 42 of the remaining 242 prisoners being force-fed, severe doubts remain about the ability of defense secretary Robert Gates to ensure that Guantánamo conforms to the requirements of the Geneva Conventions within the deadline of a month that was established by the President.

European support for accepting Guantánamo prisoners

For the prisoners who have been cleared for release, there was, however, some good news last week, when, by an overwhelming majority of 542 votes to 55 (with 51 abstentions), the European Parliament passed a resolution on Guantánamo, which, as the BBC reported, “called for EU states to accept low-risk prisoners who cannot be sent home for fear they might be mistreated.”

Although there were dissenters — the right-wing German politician Harthmuth Nassauer, for example, claimed that many of the men “remain potential terrorists” — British MEP Graham Watson caught the general tone of the decision when he said, “Europe cannot stand back and shrug its shoulders and say these things are for America alone to sort out.” He stated that a crucial lesson to be learned from the Bush administration was that, “in the administration of international justice, the go-it-alone mentality ends in a cul-de-sac of failure,” and urged member states to recall that, although the Bush administration had led the way in the “War on Terror,” European countries also bore their share of the blame. “Too often member states from our union were complicit in what the Bush administration did,” he said.

Since Barack Obama was elected in November, the countries of Europe have struggled to present a coherent view on Guantánamo. In December — on the 60th anniversary of the creation of the Universal Declaration of Human Rights — Portugal was the first country to state openly that it would accept some of the cleared prisoners, but other countries were slow to follow the Portuguese example.

However, with Barack Obama now installed in the White House, the European Parliament’s enthusiastic support for resettling Guantánamo prisoners may now yield some tangible results. On Saturday, in his first visit to Europe, Vice President Joe Biden said that it was “time to press the reset button and revisit the many areas where we can and should work together.” Using Guantánamo as an example, he stated, “As we seek a lasting framework for our common struggle against extremism, we will have to work cooperatively with other nations around the world — and we will need your help.”

In the last few days, media outlets throughout Europe and beyond have been buzzing with claims that European countries are now prepared to help out. On Friday, it was reported that the Spanish government had “expressed its willingness” to consider accepting prisoners “on a case-by-case basis within the context of a European Union consensus on the issue,” and that the Czech foreign minister had said that, “if the United States asked the EU to accept some Guantánamo prisoners, the Czech Republic would consider the request.”

Courting the Uighurs

Even more significantly, the municipal council of Munich indicated that it was backing a motion submitted by the Green Party to accept Guantánamo’s most famous cleared prisoners, 17 Uighurs (Muslims from China’s Xinjiang province), who had fled to Afghanistan to escape persecution by the Chinese government. The Uighurs are unique in that they are the only prisoners who, through a resounding court victory last June, managed to persuade the Bush administration to drop its claim that they were “enemy combatants,” and their settlement in Munich would make sense, as the Bavarian city is home to the largest Uighur community outside of China.

Munich’s municipal council is acting unilaterally (with no guarantee that the German Chancellor will back the motion), but is not the only party interested in accepting the Uighurs. Last week the Associated Press reported that three of the Uighurs had applied for settlement in Canada, although the reporters also pointed out that previous attempts by the US to re-house the Uighurs in Canada had been unsuccessful. In February 2007, notes prepared for Peter MacKay, Canada’s Foreign Affairs Minister, indicated that it was probable that they would be “inadmissible under Canadian immigration law.”

When the news about the Uighurs’ claim was announced last Tuesday, Liberal Senator Colin Kenny, the former chairman of the Canadian Senate’s national security and defense committee, stated that he supported the return to Canada of its only citizen in Guantánamo, Omar Khadr, a teenager at the time of his capture who has been repeatedly ignored by successive Canadian governments, but added that he had no interest in accepting any other prisoners. “Why should people clean up their dirty business?” Kenny asked, adding, “I don’t have much sympathy with the Americans for creating that prison.”

On Wednesday, however, it was revealed that Immigration Minister Jason Kenney (no relation) was contemplating whether to accept the Uighurs’ request, and was looking at the viability of issuing “temporary residence permits,” valid for up to three years, which would “allow the detainees to bypass the backlogged refugee process.”

These developments are a positive step for the Uighurs, of course, especially as countries willing to take the Uighurs risk a diplomatic rift with China by doing so. As the Canadian story surfaced last week, the Chinese foreign ministry made a point of issuing a statement about the Uighurs. Ministry spokeswoman Jiang Fu said, “As for those Chinese terror suspects that are kept in Guantánamo, as we have stated before, we strongly oppose any country accepting these people.”

Why the Uighurs are an American problem

Nevertheless, there are two problems with this focus on the Uighurs. Firstly, as I have made clear in previous articles, when Judge Ricardo Urbina reviewed their case in October (almost exactly four months ago), he ruled that their continued detention in Guantánamo was unconstitutional, and, because no other country had been found that was prepared to accept them, ordered them to be delivered to his courtroom so that he could make arrangements for them to be resettled in the United States, in the care of communities in Washington D.C. and Tallahassee, Florida, who had prepared detailed plans for their welfare and support.

The Bush administration shamelessly appealed, protesting that the men still posed a threat — even though it had conceded that they did not — and insisting that a District Court judge did not have the right to order their release into the United States. This too was also a false assertion, as Judge Judith W. Rogers, one of the appeal court judges explained in a dissenting opinion, when her colleagues approved the stay on Judge Urbina’s ruling that had been requested by the government. As a result, I believe that the obligation to re-house the Uighurs still rests with the US government, and I join with Sabin Willett, a lawyer for the Uighurs, who has spent long years publicizing their plight, in asking Robert Gates and Attorney General Eric Holder to release them into the United States.

As Willett stated in a letter on January 23:

We urge the government to release the Uighurs immediately in the only place they can be released — the United States. Not only would this be just, but it is in our national interest. By accepting the Uighurs, we would encourage other countries to accept the significant number of Guantánamo detainees who are cleared for release but who cannot be repatriated. Bringing the Uighurs here is thus an important early step toward carrying out President Obama’s Executive Order and removing a stain on our National character.

The second problem with the widespread focus on the Uighurs is that it detracts from the cases of the other men held at Guantánamo who desperately need third countries to re-house them. Of the 44 cleared prisoners who are not Uighurs, 23 more men are currently seeking new homes. Three — of Palestinian origin — are essentially stateless, as it has proven impossible to negotiate their return with the Israeli authorities, and the other 20 — five Algerians, an Egyptian, a Libyan, a Tajik, eight Tunisians and four Uzbeks — cannot be repatriated because their safety cannot be guaranteed in their home countries. Last year, when two Tunisians were repatriated, these dangers were demonstrated with an alarming clarity. On their return, despite an agreement with the US government that they would be treated fairly, the two men were subjected to show trials based on evidence extracted through the torture of another prisoner, and given jail sentences of three and seven years.

It is clear that none of the cleared prisoners poses a threat to anyone, for the simple reason that, in a prison based on the presumption of guilt — in which everyone has been held as an “enemy combatant” without rights, solely because the President said they were — those who have been approved for release, after multiple military reviews, have only succeeded in doing so because the authorities have concluded that they do not pose any danger to the United States or its allies.

So who are these other men?

There is not the space here to discuss all their stories, but they include Ahmed Belbacha, an Algerian who fled persecution by Islamists and came to the UK, where he settled in the seaside town of Bournemouth, and received a tip and a thank-you note from Britain’s Deputy Prime Minister, after cleaning his room during a political conference. Ahmed’s only mistakes were to take a holiday in Pakistan in the fall of 2001, and to do so before his asylum application was complete.

Another is Nabil Hadjarab, a young Algerian from a broken home, with relatives in Lyon, who was only persuaded to travel to Afghanistan because he was caught in limbo between Algeria and France as his family disintegrated around him, and another is Rafiq al-Hami, a 39-year old Tunisian who had lived in Germany, where he had worked in restaurants and for a Turkish cleaning company. Seized randomly in Pakistan, far from the battlefields of Afghanistan, al-Rami was nevertheless sent to the CIA’s notorious “Dark Prison” near Kabul, which resembled a medieval torture dungeon, but with the addition of painfully loud music, blasted into the cells 24 hours a day.

Then there are seven Tunisians, who were all Italian residents. I covered the stories of five of these men last year, and one of them, to give just one example, is Adel al-Hakeemy, who had lived in Italy for eight years, working as a chef’s assistant in several hotels in Bologna, before traveling to Pakistan to get married. “I lived with Italians in their homes,” he explained to his lawyers. “I am used to their culture. The Italians worked alongside me, they respected me, they treated me as their brother.”

While these prisoners already have connections with specific European countries, others, like the Libyan Abdul Rauf al-Qassim, do not. Cleared since 2006, al-Qassim — essentially a refugee from Libya who married an Afghan woman and had a daughter he has not seen since she was a baby — was also seized in Pakistan at a time when bounty payments for “terror suspects” were widespread, and foreign Arabs were easy prey, and he has been fighting in the US courts to prevent his repatriation for nearly two years.

Another is Adel Fattough Ali El-Gazzar, an accountant and a former officer in the Egyptian army, who had traveled to the Pakistani border to provide humanitarian aid to Afghan refugees, but was caught in a US bombing raid. “I saw a light and heard a voice and then I lost consciousness,” he explained in Guantánamo.  “When I woke up I was in a Pakistani hospital. I lost my coat, my passport, my money, everything. And I lost my leg also.”

Then there are the Palestinians: Ayman al-Shurafa, a student whose education in Gaza was disrupted by the Intifada, who was persuaded to travel to Afghanistan for jihad, but who regretted his decision and never raised arms against anybody; Assem Matruq al-Aasmi, another duped young recruit, who was wounded by a grenade; and Mahar al-Quwari, an older man, with a wife and children, who had drifted to Afghanistan in search of work after a fruitless trip to visit the UN in Pakistan, to sort out papers for his family, but who ended up being sold by Afghan villagers to the Northern Alliance, who in turn sold him to the Americans.

Completing this brief guide to the cleared prisoners are the Uzbeks, whose government’s human rights abuses are notorious: Shakrukh Hamiduva, just 18 years old at the time of his capture, who was working as a taxi driver in Afghanistan when he was seized by Afghan bounty hunters; Ali Sher Hamidullah, a drifter who explained in Guantánamo that the Uzbek intelligence agents who visited him told him that “the only thing that waits for me in Uzbekistan is a bullet in my head”; Kamalludin Kasimbekov, who had been forcibly recruited to join the Islamic Movement of Uzbekistan, allies of the Taliban; and Oybek Jabbarov, a 30-year old father of two, who suffers from health problems related to a botched surgical procedure on a ruptured disk in his back in 2007.

Unwillingly transplanted to Afghanistan along with fighters from the IMU, Jabbarov explained in Guantánamo that he made a living “buying and selling sheep, chicken and goats,” and was told in December 2001 that the government was giving out ID cards to immigrants at Bagram airbase. “There, I saw American soldiers,” he said. “They just took me inside, they questioned me, and they kept me for a few days. I’ve been detained ever since.”

His lawyer, Michael Mone, who recently explained that he had taken on Jabbarov’s case because “I felt I could no longer stand on the sidelines and permit this gross executive power grab, which is how I view [Bush’s] actions as they relate to torture, rendition, and the creation of Guantánamo as this [legal] black hole,” stated that his client had also been threatened by Uzbek intelligence agents. “They at one point showed him a photo array and asked him if he could identify any of the individuals,” Mone said in a recent interview. “And when he couldn’t identify any of them, one of the Uzbeks banged his fist on the table and said, ‘When you get back to Uzbekistan, you will know these things.’ And Oybek took that to mean that when he got back to Uzbekistan, they would torture him until he told them what they wanted to hear.”

I leave the final word to Spanish judge Baltasar Garzón, who has not always been a voice of reason when it comes to assessing the threat posed by terrorism, but who, on this occasion, captured a truth to which governments — including the US government — should pay close attention. As reported in the Los Angeles Times on Sunday, Garzon said, “We have to confront the reality that some bad people will end up walking the streets, like the former rapists, robbers and terrorists whom we have walking the streets once they complete their sentence and are released. We have to take the risks that are necessary in a democratic society.”

The alternative, lest we forget, is Guantánamo, as conceived by George W. Bush, Dick Cheney and Donald Rumsfeld, a place where, ideally, everyone is presumed guilty, no one is ever charged or tried, and no one is ever released.

Note: For those who are keeping count, the other 21 cleared prisoners are not apparently in immediate need of the assistance of third countries. Six are Saudis, whose release should be straightforward, as the Saudi government has run a successful rehabilitation program and has processed 109 returned prisoners in the last two years (with a low rate of recidivism, contrary to recent reports), twelve are Yemenis (and there are hopes that the long diplomatic impasse between the US and Yemeni governments will soon be resolved, so that they can be repatriated), and the release of the other three — two Bosnians of Algerian origin, and Mohammed El-Gharani, a resident of Chad — was ordered by District Court Judge Richard Leon, when he recently ruled, in their habeas corpus reviews, that the government had failed to establish a case against them.

Additional note: Oybek Jabbarov is known to the Pentagon as Abu Bakir Jamaludinovich. For the story of the Tajik prisoner, Omar Abdulayev, see The Guantánamo Files: Website Extras 9 – Seized in Pakistan (Part One). In addition, one of the Saudis cleared for release is the British resident Shaker Aamer, profiled here, and one of the other Tunisians is Lotfi bin Ali (known to the Pentagon as Mohammed Abdul Rahman), whose struggle to prevent his forcible return to Tunisia is described 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). This article draws on passages from the book. 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 Uighurs in Guantánamo, see: The Guantánamo whistleblower, a Libyan shopkeeper, some Chinese Muslims and a desperate government (July 2007), Guantánamo’s Uyghurs: Stranded in Albania (October 2007), Former Guantánamo detainee seeks asylum in Sweden (November 2007), A transcript of Sabin Willett’s speech in Stockholm (November 2007), Support for ex-Guantánamo detainee’s Swedish asylum claim (January 2008), A Chinese Muslim’s desperate plea from Guantánamo (March 2008), Former Guantánamo prisoner denied asylum in Sweden (June 2008), Six Years Late, Court Throws Out Guantánamo Case (June 2008), Guantánamo as Alice in Wonderland (July 2008), From Guantánamo to the United States: The Story of the Wrongly Imprisoned Uighurs (October 2008), Guantánamo Uyghurs’ resettlement prospects skewered by Justice Department lies (October 2008), A Pastor’s Plea for the Guantánamo Uyghurs (October 2008), Guantánamo: Justice Delayed or Justice Denied? (October 2008), Sabin Willett’s letter to the Justice Department (November 2008), Will Europe Take The Cleared Guantánamo Prisoners? (December 2008), A New Year Message to Barack Obama: Free the Guantánamo Uighurs (January 2009), Bad News And Good News For The Guantánamo Uighurs (February 2009), and the stories in the additional chapters of The Guantánamo Files: Website Extras 1, Website Extras 6 and Website Extras 9.

Who’s Running Guantánamo?

On January 20, the answer to that question seemed obvious. In his inaugural speech, with George W. Bush standing just behind him, President Obama pointedly pledged to “reject as false the choice between our safety and our ideals” — a clear indication that, as he promised in a speech in August 2007, he would dismantle the extra-legal aberrations of the Bush administration’s “War on Terror”:

When I am President, America will reject torture without exception. America is the country that stood against that kind of behavior, and we will do so again … As President, I will close Guantánamo, reject the Military Commissions Act, and adhere to the Geneva Conventions … We will again set an example to the world that the law is not subject to the whims of stubborn rulers, and that justice is not arbitrary.

The next day, President Obama requested the military judges at Guantánamo to call a halt for four months to all proceedings in the Military Commissions at Guantánamo (the terror trials conceived by Dick Cheney and his close advisers in November 2001), to give the new administration time to review the system and to decide how best to progress with possible prosecutions.

The day after, he signed his first executive orders, stating that Guantánamo would be closed within a year, upholding the absolute ban on torture, ordering the CIA to close all secret prisons, establishing an immediate review of the cases of the remaining 242 prisoners in Guantánamo, and requiring defense secretary Robert Gates to ensure, within 30 days, that the conditions at Guantánamo conformed to the Geneva Conventions.

At first, everything seemed to be going well. Two judges immediately halted pre-trial hearings in the cases of the Canadian Omar Khadr and the five co-defendants accused of involvement in the 9/11 attacks, and the President even secured an extra PR victory when Khalid Sheikh Mohammed, the self-confessed architect of 9/11, who had been seeking a swift trial and martyrdom in the discredited Commission system, expressed his dissatisfaction to the judge. “We should continue so we don’t go backward, we go forward,” he said.

The first sign of dissent from the Pentagon

However, on January 29, the Commissions’ recently appointed chief judge, Army Col. James M. Pohl, provided the first challenge to the President’s plans, when he refused to suspend the arraignment of the Saudi Prisoner Abdul Rahim al-Nashiri, scheduled for today, February 9, stating that “he found the prosecutors’ arguments, including the assertion that the Obama administration needed time to review its options, to ‘be an unpersuasive basis to delay the arraignment.’”

Suddenly, urgent questions were raised about who was running Guantánamo, as it transpired that, although Barack Obama could request what he wanted, the Commissions, as Col. Pohl pointed out, had been mandated when “Congress passed the Military Commissions Act, which remains in effect.” He added, “The Commission is bound by the law as it currently exists, not as it may change in the future.”

Moreover, the only official empowered to call off al-Nashiri’s arraignment was Susan Crawford, the Commissions’ Convening Authority, who retains her position as the senior Pentagon official overseeing the trials, even though she is a protégée of former Vice President Dick Cheney, and a close friend of Cheney’s Chief of Staff, David Addington, the two individuals who, more than any others, established the “arbitrary justice” that Barack Obama pledged to bring to an end.

After a few fraught days, Crawford was evidently prevailed upon to call off the arraignment, which she did on February 5, dismissing the charges without prejudice (meaning that they can be reinstated at a later date). She refused to comment on her decision, and in fact has only spoken out publicly on one occasion since being appointed in February 2007, when she admitted, in the week before Obama’s inauguration, that the treatment to which Saudi prisoner Mohammed al-Qahtani was subjected amounted to torture. Instead, a Pentagon spokesman stepped forward to state, “It was her decision, but it reflects the fact that the President has issued an executive order which mandates that the Military Commissions be halted, pending the outcome of several reviews of our operations down at Guantánamo.”

This was hardly sufficient to assuage doubts about why a Cheney protégée was still in charge of the Commissions, and these doubts were amplified when the Associated Press announced that two more Bush political appointees — Sandra Hodgkinson, the former deputy assistant defense secretary for detainee affairs, and special assistant Tara Jones — had been moved to civil service jobs within the Pentagon. Hodgkinson had spent several years defending the Bush administration’s detention policies, and Jones, as the AP explained, worked for a Pentagon public affairs program “aimed at persuading military analysts to generate favorable news coverage on the war in Iraq, conditions at Guantánamo and other efforts to combat terrorism,” which was “shut down amid fierce Capitol Hill criticism and investigations into whether it violated Pentagon ethics and Federal Communications Commission policy.”

The mass hunger strike

However, while Col. Pohl’s dissent and the continuing presence of Susan Crawford raise serious doubts about the Pentagon’s ability — or willingness — to embrace President Obama’s post-Bush world, the most troubling developments are at Guantánamo itself. Although Robert Gates, the only senior Bush administration official specifically retained by Obama, has shown a willingness to adjust to the new conditions (which is, presumably, what encouraged Obama to retain him in the first place), it seems unlikely that, even with the best will in the world, he can address the problems currently plaguing Guantánamo in the remaining twelve days of the time allotted to him to review the conditions at the prison.

A month ago — inspired, in particular, by the seventh anniversary of the prison’s opening, and by the change of administration — at least 42 prisoners at Guantánamo embarked on a hunger strike. According to guidelines laid down by medical practitioners, force-feeding mentally competent prisoners who embark on a hunger strike is prohibited, but at Guantánamo this obligation has never carried any weight. Force-feeding has been part of the regime throughout its history, and was vigorously embraced in January 2006, in response to an intense and long-running mass hunger strike, when a number of special restraint chairs were brought to Guantánamo, which were used to “break” the strike.

As I reported last week, the force-feeding, which involves strapping prisoners into the chairs using 16 separate straps and forcing a tube through their nose and into their stomach twice a day, is clearly a world away from the humane treatment required by the Geneva Conventions, as are the “forced cell extractions” used to take unwilling prisoners to be force-fed.

Now, however, Lt. Col. Yvonne Bradley, the military defense attorney for the British resident Binyam Mohamed (whose “extraordinary rendition” and torture set off a Transatlantic scandal last week), has reported that conditions inside the prison have deteriorated still further. In an article in yesterday’s Observer, Lt. Col. Bradley, who indicated that her client was “dying in his Guantánamo cell,” reported on a visit to the prison last week, and stated,

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.

Lt. Col. Bradley added that Mohamed’s account of the “savage beating” endured by a fellow prisoner was the “first account [she had] personally received of a detainee being physically assaulted at Guantánamo.”

And yet, although Lt. Col. Bradley’s account indicates that the crisis in Guantánamo is such that ongoing discussions about implementing the Geneva Conventions should be replaced by urgent intervention to address the prisoners’ complaints (and alleviating the chronic isolation in which most of the prisoners are held would be a start), the conditions in Guantánamo have been met with a resolute silence from the Pentagon and the White House.

Will it really take another death in Guantánamo — the sixth — to provoke an immediate response?

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, CounterPunch, ZNet and Antiwar.com.

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), Obama’s “Humane” Guantánamo Is A Bitter Joke (February 2009), Forgotten in Guantánamo: British resident Shaker Aamer (March 2009), Guantánamo’s Long-Term Hunger Striker Should Be Sent Home (March 2009). Also see the following online chapters of The Guantánamo Files: Website Extras 2 (Ahmed Kuman, Mohammed Haidel), Website Extras 3 (Abdullah al-Yafi, Abdul Rahman Shalabi), Website Extras 4 (Bakri al-Samiri, Murtadha Makram), Website Extras 5 (Ali Mohsen Salih, Ali Yahya al-Raimi, Abu Bakr Alahdal, Tarek Baada, Abdul al-Razzaq Salih).

The Guantánamo Files: Additional Chapters Online – The Last of the Afghans (Part One) and Six “Ghost Prisoners”

As part of my ongoing project to record the stories of all the prisoners held at Guantánamo, I’ve just posted the eleventh of 12 additional online chapters supplementing my book The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison (published by Pluto Press, and available from Amazon here and here). This additional chapter complements Chapter 14 of The Guantánamo Files, looking at the stories of 23 prisoners not mentioned in the book, either because their stories were not available at the time of writing, or to keep the book at a manageable length. It also includes the stories of six prisoners not mentioned in Chapter 16 of The Guantánamo Files, which covers “extraordinary rendition” and secret prisons.

With just one more online chapter to complete, the mission I set myself three years ago — to record the stories of all the prisoners in Guantánamo — is now close to completion, and will be followed by the first definitive prisoner list, identifying not only those who are still held, and those who have been released (and the dates they were released), but also those who have been cleared for release, whose plight is one of the major stumbling blocks to Barack Obama’s promise to close Guantánamo within a year, as the majority of these prisoners cannot be repatriated because of fears that they will be tortured in their home countries.

Of the 779 prisoners who have been held at Guantánamo, the stories of around 10 percent are unknown, because they were released in 2003 or 2004, and the Pentagon has not been obliged to release and information relating to these prisoners, but the rest will be sourced and referenced in the definitive list. Links will be provided to the stories of half of these prisoners, and references will be provided for the other half, identifying where their stories can be found in The Guantánamo Files. The list will, I hope, be a useful research tool, not just in identifying the stories of those who have been released, but also as an aid to analyzing the stories of those who are still held, to compare the Bush administration’s long-standing assertions that the remaining prisoners are the “hardcore” with a more objective view, which, in the majority of cases, questions the quality of the so-called evidence against them.

This eleventh online chapter features the stories of 17 of the 220 or so Afghan prisoners who have been held at Guantánamo, revealing, as I also discussed at length in The Guantánamo Files, how the majority of the Afghans were seized not because they were a threat to the US or its allies, but largely because they were sold to US forces by their Afghan allies or were seized in raids based on dubious intelligence. Three of those discussed — including Mohamed Jawad, put forward for trial by Military Commission — were juveniles at the time of their capture. The chapter also includes the stories of half-a-dozen stray foreigners. In addition, I look at the stories of six of the 50 or so Guantánamo prisoners who were subjected to “extraordinary rendition” and detention in secret prisons before their transfer to Guantánamo, and cast an objective eye on the supposed evidence used to justify their extraordinarily brutal treatment.

Note: See the column on the left for the first ten online chapters, and the last.

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The betrayal of British torture victim Binyam Mohamed

There was a time, as two senior judges in the British High court reported on Wednesday (PDF), when “The suppression of reports of wrongdoing by officials (in circumstances which cannot in any way affect national security) would be inimical to the rule of law and the proper functioning of a democracy.” As the judges — Lord Justice Thomas and Mr. Justice Lloyd Jones — noted, correctly, “Championing the rule of law, not suppressing it, is the cornerstone of a democracy.”

However, in the 21st century, as Lord Justice Thomas and Mr. Justice Lloyd Jones reluctantly conceded, the right of a terror suspect to have any information revealed publicly about a two-year ordeal involving “extraordinary rendition” and torture could be overruled by the British government, on the basis that the US government had threatened to re-evaluate its intelligence sharing relationship with the UK, which “could inflict on the citizens of the United Kingdom a very considerable increase in the dangers they face at a time when a serious terrorist threat still pertains.”

Binyam’s story

The case in question is that of Binyam Mohamed, a British resident, seized in Pakistan in April 2002, who was sent by the CIA to be tortured in Morocco in July 2002, and was then flown to Afghanistan in January 2004, where his torture continued, at a CIA facility known as the “Dark Prison,” until he finally resurfaced in May that year at the US prison at Bagram airbase. As a result of his gruesome two-year ordeal, he made two false confessions — at Bagram, and at Guantánamo, where he was transferred in September 2004 — that he had been a member of al-Qaeda and had been involved in a plot to detonate a radioactive “dirty bomb” in New York.

The confessions formed the basis for Binyam’s case being put forward for a trial by Military Commission at Guantánamo. This rigged system, conceived by Vice President Dick Cheney and his close advisers in November 2001, was designed to secure convictions, and was condemned by its own government-appointed military defense lawyers as unjust. Binyam was put forward for trial not once, but twice; firstly, in November 2005, until the entire system was ruled illegal by the Supreme Court in June 2006, and again, following the system’s shameful resuscitation by Congress, in June 2008.

Of course, torture, and the use of confessions obtained through the use of torture, are prohibited in all countries that claim to adhere to the rule of law, but since August 2005, when Binyam’s account of his torture was first revealed to the world (after being inexplicably cleared by US military censors), his lawyers at Reprieve, the London-based legal action charity, have struggled not only to hold the US administration accountable for its crimes, but even to persuade a single US official to admit anything about his whereabouts between July 2002 and May 2004, when, to all intents and purposes, he disappeared off the face of the earth.

Binyam’s quest for justice in the UK

In April last year, having hooked up with solicitors at Leigh Day & Co., Binyam’s lawyers decided, instead, to request information relating to Binyam’s rendition and torture from the British government. They knew from Binyam’s own account — and from limited information revealed by the UK authorities — that two British agents had visited him in May 2002, when he was being held in Pakistani custody (under US supervision), and Binyam claimed that one of the agents had threatened him if he did not cooperate, and had also indicated that he knew that he was going to be rendered to torture in a third country. They also knew that Binyam had said that in Morocco, where he endured horrors that would shock the conscience, he reached his lowest point not when his genitals were being cut with a razor or when he was being beaten senseless, but when his torturers asked him questions about his life in London that could only have been supplied by the British intelligence services, and he realized that he had been betrayed by the country that he called his home.

When the British government refused to supply this information, Binyam’s lawyers sued, and were rewarded with a judicial review, which took place over two weeks last summer. At the end of the review, which focused on whether or not Binyam’s lawyers should have access to 42 classified documents in the possession of the government, Lord Justice Thomas and Mr. Justice Lloyd Jones delivered a highly critical judgment, lambasting the intelligence services for sending agents to interrogate Binyam in May 2002, because he was being held illegally in Pakistan, and also for providing and receiving intelligence about him from July 2002 until February 2003, when they knew that he was being held incommunicado, and should not have been involved without receiving cast-iron assurances about his welfare. The relationship of the United Kingdom to the United States, they stated, “went far beyond that of a bystander or witness to the alleged wrongdoing.”

The judges also seized on an admission, made on behalf of the Foreign Secretary, David Miliband, that Binyam had “established an arguable case” that, until his transfer to Guantánamo, “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,” and ruled that, as a result, the British government was required to hand over the evidence in its possession to his lawyers.

A Transatlantic game of cat and mouse ensued, which would have been farcical had its outcome not been of such grave importance. In a series of concessions, the US State Department suggested that, in relation to Binyam’s forthcoming trial by Military Commission, the 42 documents would be made available to his lawyers (something that, in a startling insight into the lawless world of the Commissions, could not even be taken for granted). In response to the US concessions, the Foreign Secretary submitted a Public Interest Immunity Certificate, essentially pleading with the judges not to order disclosure of the documents, because it would “seriously harm the existing intelligence arrangements between the United Kingdom and the United States.”

Developments in the United States

This was at the end of August, and although the judges were not persuaded, as the Certificate “did not adequately cover the issue of torture,” they gave the Foreign Secretary six weeks to come up with a better reason. In the meantime, on October 6, the 42 documents — and the question of their disclosure — resurfaced in a US court, in relation to Binyam’s habeas corpus case, which involved his right to ask an impartial judge why he was being held. This had initially been filed in 2005, but its progress had been derailed by shoddy laws passed in the wake of the Supreme Court’s ruling, in June 2004, that the Guantánamo prisoners had habeas corpus rights, and could not be imprisoned indefinitely without charge or trial, and it was only reinstated in June 2008, when the Supreme Court revisited its habeas ruling and reinforced the prisoners’ right to seek an explanation for their seemingly endless detention.

Finally confronted by a US judge demanding proof of the charges against Binyam, and also demanding that the 42 documents be handed over to his lawyers, the US government responded by dropping the allegations about the “dirty bomb” plot, and disclosing seven of the 42 documents (in heavily redacted form), which led to another bout of judicial wrangling until finally, at the end of October, all the documents were handed over.

By this time, however, the charges against Binyam for his trial by Military Commission had also been dropped, primarily because his former prosecutor, Lt. Col. Darrel Vandeveld, had resigned spectacularly in September, cursing the Commissions for having turned “a true believer into someone who felt truly deceived,” and pointing out, with fearless conviction, that — as the furore over the 42 documents showed — the Commissions’ prosecution office was, both by accident and design, unwilling and incapable of providing defence attorneys with the information they required to mount an adequate defence.

British judges court the media

By November, therefore, the only outstanding issue facing Lord Justice Thomas and Mr. Justice Lloyd Jones related to “seven very short paragraphs amounting to about 25 lines,” written by the judges, which summarized US intelligence reports, sent to their British counterparts, relating to Binyam’s detention in Pakistan in April and May 2002. These had been cut from the judgment in August at the Foreign Secretary’s request, but even though they did not cover Binyam’s ordeal in Morocco or Afghanistan, the judges regarded their summary as being “highly material to [Binyam]’s allegation that he had been subjected to torture and cruel, inhuman and degrading treatment and to the commission of criminal offences,” and they illuminated their remarks with reference to the potential prosecution of war crimes under the International Criminal Court Act of 2001, and of torture under the Criminal Justice Act of 1988, which implemented the provisions of the UN Convention Against Torture.

In an unusual move, the judges then invited representatives of the media to submit reasons why their summary should be made publicly available, citing numerous precedents — including, most pithily, Lord Shaw’s comment during a ruling in 1913, “Where there is no publicity there is no justice” — but based, fundamentally, on their “clear view” that “the requirements of open justice, the rule of law and democratic accountability demonstrate the very considerable public interest in making the redacted paragraphs public, particularly given the constitutional importance of the prohibition against torture and its historic link from the seventeenth century in this jurisdiction to the necessity of open justice.”

“Open justice” v. a “threat” from the United States

Wednesday’s ruling was, therefore, a response to the media submissions, and was supposed to bring an end to the High Court’s involvement with Binyam’s case, but the judges’ decision to let their desire for “open justice” be overruled by what was repeatedly described as a “threat” by the US government to derail the sharing of intelligence between the US and the UK paved the way for an extraordinary response in the media.

Largely overlooked was the judges’ expectation that, despite their decision to respect the Foreign Secretary’s request to prevent disclosure, the Intelligence Services Committee (ISC), an independent investigative committee that has already looked into Binyam’s case, in 2005 and 2007, will be able to follow up where they have chosen not to, and, with the 42 documents already in their possession, will be able to “ask searching and difficult questions” from witnesses in the intelligence services “on the very important issues raised.”

Instead, what was picked up on was the essence of the long legal struggle between Justice on the one hand, striving to disclose evidence of torture, and The Torturers on the other, bullying principled men into silence.

On Channel 4 News (transcript here), David Miliband played down talk of a “threat” by the United States, and attempted to defend his advice to the judges, repeatedly pointing out to Jon Snow that intelligence cooperation depends on a “fundamental principle of confidentiality” between both parties. Ignoring the argument that there was a compelling case to be made for revealing information about British complicity in torture, he described the material contained in the documents as “American information” and stated, “Imagine how we would feel if our secrets were displayed, or put into the public domain, by a foreign court.”

However, far from reassuring Jon Snow, Miliband’s stance led to further challenges. Snow asked, “Have you checked whether this threat — and it is a threat, because the judges call it a threat — still stands under the Obama administration?” and the Foreign Secretary came up with a careful response that did nothing to reassure anyone that justice would eventually be seen to be done, stating, “There’s no evidence that it doesn’t stand.”

In the most heated exchange, Snow asked whether the British government was “not perhaps as keen as the Americans” to keep the case secret because it revealed British complicity in torture, to which Miliband responded by calling Snow’s question a “really outrageous suggestion,” and insisting, “We never condone or authorize the use of torture.”

However, Jon Snow surely had a point. As the judges themselves declared, in two paragraphs in their judgment which contained a palpable air of bewilderment,

[T]here was nothing in the redacted paragraphs that would identify any agent or any facility or any secret means of intelligence gathering. Nor could anything in the redacted paragraphs possibly be described as “highly sensitive classified US intelligence,” It followed that it was (and remains) our view that the ordinary business of intelligence gathering would not be affected by putting into the public domain the redacted paragraphs as they contain only a short summary of what was reported to the United Kingdom authorities as to what they say happened to BM [Binyam] during his detention in Pakistan in April and May 2002.

Moreover, in the light of the long history of the common law and democracy which we share with the United States, it was in our view difficult to conceive that a democratically elected and accountable government could possibly have any rational objection to placing into the public domain such a summary of what its own officials reported, as to how a detainee was treated by them and which made no disclosure of sensitive intelligence matters. Indeed we did not consider that a democracy governed by the rule of law would expect a court in another democracy to suppress a summary of the evidence contained in reports by its own officials or officials of another State where the evidence was relevant to allegations of torture and cruel, inhuman or degrading treatment, politically embarrassing though it might be.

Conclusion: covering up war crimes

And there, perhaps, is the essential clue to the meaning of yesterday’s judgment. For the Bush administration officials who authorized whatever happened to Binyam in Pakistan in April and May 2002 — and the two years of torture that followed — disclosure of the judges’ summary would be “politically embarrassing.” In a more sane world, it would also, probably, constitute evidence of US complicity in war crimes, but the Bush administration did all in its power to redefine torture so that it could avoid ever being held accountable for its actions. For the British government, however, there was, and is, no escape clause, and despite David Miliband’s protestations, it seems clear that Jon Snow was correct to accuse the Foreign Secretary of a desire to keep the information hidden at all costs for selfish reasons.

It is not just because of the “special relationship” that parties on both sides of the Atlantic want to keep the details of Binyam Mohamed’s torture hidden; it is also because, in the UK, those who were complicit in it — or who turned a blind eye to it — could find themselves accused of complicity in war crimes. For Binyam, the grisly truth is that, despite the British government’s efforts to secure his release, which, as Miliband noted, had been mentioned and appreciated by the judges, the British authorities have been obliged to choose between opening the door to public knowledge of illegal British activities in the “War on Terror” or sacrificing Binyam Mohamed, and have chosen the latter.

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

This article was 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), Hiding Torture And Freeing Binyam Mohamed From Guantánamo (February 2009), Binyam Mohamed’s Coming Home From Guantánamo, As Torture Allegations Mount (February 2009), Binyam Mohamed’s statement on his release from Guantánamo (February 2009), Who Is Binyam Mohamed, the British resident released from Guantánamo? (February 2009), Seven Years of Torture: Binyam Mohamed Tells His Story (March 2009), Binyam Mohamed’s Plea Bargain: Trading Torture For Freedom (March 2009), Guantánamo, Bagram and the “Dark Prison”: Binyam Mohamed talks to Moazzam Begg (March 2009), Obama’s First 100 Days: Mixed Messages On Torture (includes the Jeppesen lawsuit, May 2009), UK Government Lies Exposed; Spy Visited Binyam Mohamed In Morocco (May 2009), Daily Mail Pulls Story About Binyam Mohamed And British Spy (May 2009), Government Bans Testimony On Binyam Mohamed And The British Spy (May 2009), More twists in the tale of Binyam Mohamed (in the Guardian, May 2009), Did Hillary Clinton Threaten UK Over Binyam Mohamed Torture Disclosure? (May 2009), Outsourcing torture to foreign climes (in the Guardian, May 2009), Binyam Mohamed: Was Muhammad Salih’s Death In Guantánamo Suicide? (June 2009), Miliband Shows Leadership, Reveals Nothing About Torture To Parliamentary Committee (June 2009).

Binyam Mohamed: A transcript of Jon Snow’s interview with David Miliband on Channel 4 News

I’m about to post a detailed article looking at the meaning of yesterday’s High Court judgment in the case of British resident and torture victim Binyam Mohamed, in which, while repeatedly stressing the importance of “open justice” in an extraordinary story that involves an “arguable case” of torture by the United States, and complicity in torture by the United Kingdom, the judges bowed to pressure from the Foreign Secretary David Miliband, who argued that ordering disclosure of the court’s 25-line summary of US documents relating to Binyam’s detention in Pakistan in April and May 2002 — prior to his “extraordinary rendition” and torture for two years in Morocco and Afghanistan — would threaten the intelligence relationship between the US and the UK.

On Channel 4 News yesterday evening, Jon Snow tackled David Miliband about these “threats” from the United States, and I believe that a transcript of the entire interview may be useful. The full interview, as featured in yesterday’s programme, is available on the Channel 4 website, and the copyright for all content is, of course, held by Channel 4.

Jon Snow: David Miliband, this is an incredible state of affairs. Britain’s closest ally, with whom we are fighting alongside in two fields of battle, has threatened to withdraw intelligence if material in a British court is ever made public.

David Miliband: Good evening, Jon. This is a serious case. There has been no threat from the United States to, quote unquote, break off intelligence cooperation. What there is is a simple fact, which is that intelligence cooperation depends on confidentiality. We share our secrets with other countries, and they share their secrets with us, and the founding principle, for us and for them, is that we can trust the confidentiality of that relationship. In this case, the United States made clear, in documents that have been published, that there would inevitably be lasting harm if that fundamental principle was breached. And what I say to you is, imagine how we would feel if our secrets were displayed, or put into the public domain, by a foreign court, a French court or any other court, anywhere in the world —

Jon Snow: Are you saying that the judges are wrong, and that in fact there is not a threat to our intelligence sharing relationship with the United States?

David Miliband: What the judges quote is the serious and lasting harm, quote unquote, that would result from a breach of that fundamental confidentiality. It’s for us to decide, in Britain, when and how to disclose our secrets; it’s for others, in other countries, to decide how to display their secrets. I also think it’s important —

Jon Snow: So you will never publish this dossier. This will never be allowed to be published.

David Miliband: It’s American information and it is for the Americans to decide when to publish their information.

Jon Snow: Do you accept what the judges are implying, [which] is that it does cover torture, degrading treatment, inhuman cruelty?

David Miliband: Well, what they say is there’s an arguable case, and they also say that I, and the government, have been absolutely clear that there is an arguable case. That is why we have made strenuous efforts to do two things: one, to make sure that Binyam Mohamed is released from Guantánamo Bay. That’s been a campaign that the court themselves say has been done very strenuously by the government. Secondly, the government intervened, with the American authorities, to make sure that Binyam Mohamed’s defense counsel received all the information, all the secret documents they needed to mount a defence for him. That also, the court says, was the right thing to do, and I believe it was the right thing to do.

Jon Snow: Have you checked that this threat — and it is a threat, because the judges call it a threat — still stands under the Obama administration?

David Miliband: Well, it’s been a founding principle for 60 years of the Anglo-American —

Jon Snow: Does it still stand under the Obama administration?

David Miliband: There’s no evidence that it doesn’t stand. What I talked about yesterday with Hillary —

Jon Snow: Well, he has talked about the rule of law, about getting rid of Guantánamo, and getting rid of all the abuses of law that have gone on under it [the Bush administration]. This sounds very close to an abuse of law.

David Miliband: This isn’t about the abuse of law. What I talked about with Hillary Clinton yesterday, among other things, was our contribution to closing Guantánamo Bay. We’ve taken nine British citizens, four British residents —

Jon Snow: With respect, that’s not what we’re talking about. We’re talking about a threat from the United States, about a court case that is existing in a British court, involving a British resident, which we’re being told if we ever publicize we will suffer material harm.

David Miliband: I have to take very seriously two key issues in this case. One is the rights of Binyam Mohamed. The government has campaigned strenuously, in the words of the court, for his release from Guantánamo Bay. I also have to take seriously the national security implications of breaching the fundamental principle that secrets exchanged between countries to protect their citizens should remain secret unless that country chooses another way.

Jon Snow: Well, the charge that’s been levelled is that the British were complicit in the torture of Binyam Mohamed, and the question then is, whether you are not perhaps as keen as the Americans to keep this case secret for precisely that reason.

David Miliband: I think that is a really outrageous suggestion, Jon, because months ago, when this case came to court, and the allegation of complicity in torture was raised, the Home Secretary referred it to the Attorney General and the Director of Public Prosecutions. We never condone or authorize the use of torture.

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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