Archive for July, 2009

Predictable Chaos As Guantánamo Trials Resume

The sign outside the Military Commissions courthouse at GuantanamoAt Guantánamo this week, the Military Commission trial system convened for only the second time since President Obama announced a four-month freeze on all proceedings on his first day in office to give the new administration’s inter-departmental Guantánamo Task Force an opportunity to review the best ways in which to deal with the remaining prisoners inherited from the Bush administration.

Reviving the Commissions, ill-advisedly

In May, in a major speech on national security, Barack Obama signaled that he was planning to revive the Commissions, arguing that, with some amendments, they would be “fair, legitimate, and effective,” and promising to “work with Congress and legal authorities across the political spectrum on legislation” that would fulfill these aims.

Pleasant though it was to hear a President talk of involving Congress, without having to have his arm twisted to do so, Obama’s willingness to revive the Commissions flew in the face of widespread opposition from civilian lawyers and a wide range of legal experts, and, most significantly, from seven former prosecutors who resigned in disgust at what they saw as the politicization of the system or its irremediable faults (including Col. Morris Davis, the former chief prosecutor, and Lt. Col. Darrel Vandeveld, who resigned last September), and all of the government-appointed defense attorneys, who have been prepared to risk their careers to oppose what they all realized was an unjust system.

Critics — myself included — were not placated by Obama’s proposed tweaking of the Commissions’ rules, and insisted that the only way forward was to drop the Commissions and proceed with federal court trials. Bizarrely, on the same day as Obama’s speech, the administration announced that Ahmed Khalfan Ghailani, a suspect in the 1998 African embassy bombings, would face a trial in New York, and, moreover, in an accompanying press release, the Justice Department trumpeted its “long history of … successfully prosecuting terror suspects through the criminal justice system” (and attached a list of successful prosecutions over the last 16 years), which rather seemed to prove the point that the Commissions — which have achieved only three dubious results (David Hicks, Salim Hamdan and Ali Hamza al-Bahlul) — should not be revived.

Nevertheless, in the last few weeks the Senate Armed Services Committee — and its chairman, Sen. Carl Levin, who really should know better — bowed to the President’s wishes and tweaked the wording of the Military Commissions Act of 2006 (which revived the Commissions after the Supreme Court ruled that their first incarnation was illegal), even though, as I reported last week when Lt. Col. Vandeveld delivered testimony to the Committee which should have halted the politicians in their tracks, it still allows the use of information masquerading as evidence that was obtained through coercion, and still allows for hearsay information to be appraised as evidence by judges who are not qualified to make such decisions.

The legislation has yet to be approved by the Senate, but last week the Commissions reconvened anyway, even though the as-yet-undecided debate about their future added another layer of confusion to events that, as has been typical throughout the long and ignominious history of the Commissions, involved technical difficulties, uncooperative prisoners, and bouts of wrangling over the rules.

An outlandish claim kicks off the proceedings

One of the week’s few dramatic highlights came at the very beginning. Speaking to reporters on Tuesday, before the pre-trial hearings began, Navy Capt. John Murphy, the Commissions’ new chief prosecutor, announced that prosecutors were ready to proceed with cases against 66 of the remaining 228 prisoners (the 229th, Ali Hamza al-Bahlul, is already locked up for life — in a cell on his own somewhere in Guantánamo — after his disturbingly one-sided trial in November).

As David Danzig, Deputy Program Director at Human Rights First, explained, Murphy said, “We have 66 viable cases,” and added that he was “personally comfortable” that “the government could mount a case that would not depend on evidence gathered through the use of coercion.” Danzig also noted that Murphy “refrained from commenting on whether the government might seek to bring some of those cases to trial in federal civilian courts.”

Personally, I’m amazed that Murphy could claim that there are as many as “66 viable cases,” given that intelligence reports over the years have put the number of prisoners with any meaningful connection to terrorism as somewhere between two dozen and 40 of the prisoners (and also given that, of the 23 cases that were still active when Bush left office, two involved juveniles, and at least eight of the cases had nothing to do with “war crimes”), but what particularly exercised some of the reporters was that the prosecutor’s office seemed to be “making decisions about what evidence was appropriate and what evidence was not appropriate to use without any independent review.”

Vic Hansen, a former Army Judge Advocate General officer who was observing the proceedings for the National Institute of Military Justice, said, “They say repeatedly that they are not going to rely on evidence that was obtained using coercion. Well, it’s the prosecution who is making that call alone without any transparency.”

This was a very valid point, and as Danzig noted, although Murphy “said that the prosecution had developed ‘a standard’ to ensure that no evidence obtained improperly would be used in the trials … he declined to elaborate on that standard,” and did not refer to the fact that the Senate is still discussing whether to impose a voluntariness standard (at the instigation of the Obama administration), which, as Danzig stated, “would presumably exclude coerced evidence.” As Hansen added, “What it comes down to is more or less the government saying, ‘just trust us.’”

Challenges and calls for delay in the case of Ibrahim al-Qosi

A court drawing of Ibrahim al-Qosi from an earlier hearingOn Wednesday, when the pre-trial hearings were supposed to begin, court staff complained they couldn’t hear Navy Cmdr. Dirk Padgett introduce himself as a prosecutor in the case of Ibrahim al-Qosi, one of three prisoners whose cases were being discussed that day, prompting a reply from Padgett that, to some, could serve as a motto for the whole of the Commissions. “Hopefully, this is going to get better,” he said.

In the event, things didn’t get better at all. In the case of al-Qosi, a 49-year old Sudanese prisoner who is accused of being a bodyguard and sometime driver for Osama bin Laden, prosecutors called for a delay “in the interests of justice” until September, which would, apparently, give the Obama administration time to complete its review of the cases. Marine Corps Capt. Seamus Quinn, one of al-Qosi’s prosecutors, stated, “The continuance is needed … to address and eliminate all possible challenges to this process,” according to Reuters.

The call for a delay infuriated al-Qosi’s defense lawyers, who have long maintained that their client was nothing more than a cook for bin Laden, and of no more significance than Salim Hamdan, one of bin Laden’s drivers, who is now a free man in Yemen, having served a five-month sentence that he was given after his trial last August. As Reuters described it, al-Qosi’s lawyers asked the military judge “to either dismiss the charges or move forward.”

“You cannot sit somebody in indefinite detention,” Navy Lt. Cmdr. Travis Owens said. “It violates every principle we have as Americans.” Invoking what Carol Rosenberg of the Miami Herald described as a “justice-delayed, justice-denied” argument, on the grounds that al-Qosi “was among the first men taken to the prison camps when they opened in January 2002,” Owens added, “He was one of the guys who was kept in the dog cages. Talk about oppressive confinement.”

Challenges and calls for delay in the case of Mohammed Kamin

While the judge, Air Force Lt. Col. Nancy Paul, refused to make an immediate ruling on the prosecutors’ request, even more chaotic scenes took place in an adjacent courtroom, where a second pre-trial hearing was taking place in the case of Mohammed Kamin, an Afghan seized in 2003.

Kamin’s is one of the more ludicrous cases put forward for a trial by Military Commission — or, for that matter, any kind of trial — as I explained last March, when he was arraigned:

[Kamin] is accused of “providing material support for terrorism,” specifically by receiving training at “an al-Qaeda training camp,” conducting surveillance on US and coalition military bases and activities, planting two mines under a bridge, and launching missiles at the city of Khost while it was occupied by US and coalition forces. He is not charged with harming, let along killing US forces, and were it not for his supposed al-Qaeda connection — he apparently stated in interrogation that he was “recruited by an al-Qaeda cell leader” — it would, I think, be impossible to make the case that he was involved in “terrorism” at all.

On Wednesday, Kamin boycotted the proceedings, telling a military official who offered him the opportunity to take a shower before the hearing, “I’ll take a shower when you guys are ready to send me home.” In his absence, prosecutors also called for a delay, although no one actually turned up to make the request. Instead, a heavily pregnant prosecutor, Navy Lt. Rachel Trest, called in by closed-circuit feed from Washington, although, as Carol Rosenberg noted, “her argument was inaudible at the media center designed years ago to simultaneously broadcast both trials to journalists.”

There was, however, an outburst of drama when, in spite of a court tip sheet predicting that Navy Lt. Rich Federico, one of Kamin’s defense lawyers, would “ask for guidance on how much trial preparation could take place during the White House-mandated interregnum,” Federico instead urged dismissal of the entire case, referring to comments made last week by Justice Department national security lawyer David Kris, who told the Senate Armed Services Committee (PDF), “Our experts believe that there is a significant risk that appellate courts will ultimately conclude that material support for terrorism is not a traditional law of war offence, thereby reversing hard-won convictions and leading to questions about the system’s legitimacy.”

As this is the only charge Kamin faces, Federico told the judge, “They cannot ethically proceed on this charge in this forum. It’s appalling. It’s just a waste of everyone’s time.” The Wall Street Journal added that he also said that the government’s continued pursuit of the case was “unethical, immoral and unjust,” called the proceedings “a charade, a complete fraud,” and stated that the Commissions remained “a broken system.”

As with al-Qosi’s case, Kamin’s judge, Air Force Col. Thomas Cumbie, refused to make an immediate ruling on the prosecution’s call for a delay — or Federico’s unexpected intervention — although, in response to a challenge from Federico he conceded that “the rules of the court were still evolving,” as Carol Rosenberg put it, and stated, “I’m not saying in any way you ambushed me. Things change.”

Nevertheless, the questions regarding the validity of the “material support” charge are unlikely to go away, and will need resolving before any further hearings take place, Ironically, the charge is a valid crime in a federal court, but has been contested in the Commissions since it was first grafted onto the legislation in 2006. As Salim Hamdan’s civilian lawyer, Harry Schneider, explained on Wednesday, “We’ve always been of the view that [material support] was not a war crime and the conviction should not stand.” He added, as Carol Rosenberg put it, that the debate in the Commissions “appeared to enhance a Hamdan clemency bid already on file with the Pentagon,” and stated that, if the administration does drop material support as a crime in the Commissions, “Salim would be exonerated in the sense that he would never have been convicted of anything.”

No lawyers for Omar Khadr

A courtroom sketch by Janet Hamlin of Omar Khadr at his pre-trial hearing in Guantanamo, July 15, 2009On Wednesday afternoon, Omar Khadr, the Canadian who was just 15 when he was seized in 2002, returned to the court to resume the discussions about his lawyers that he was having on June 1, when the Commissions first reconvened. On that occasion, as Michelle Shephard explained in the Toronto Star, Army Col. Patrick Parrish “repeatedly lambasted Khadr’s legal team” for their in-fighting, which had led Khadr to conclude that he couldn’t trust any of them, but commended Khadr himself for being “well-spoken” and “professional.”

Six weeks ago, Parrish refused to allow Khadr to be unrepresented, and the Canadian reluctantly decided to stick with Lt. Cmdr. William Kuebler, who, it must be noted, has campaigned assiduously on Khadr’s behalf, but on Wednesday, Khadr’s suspicions were back to the fore. “I don’t trust the office of military defense,” he said, prompting Parrish to make the unprecedented decision to appoint two civilian lawyers instead.

Mostly a no-show for the 9/11 pre-trial hearing

The big news of the week was supposed to be the pre-trial hearing of the five men accused of involvement in the 9/11 attacks, but in the end this too was a damp squib. No one turned up at all in the morning, after the men refused to leave their cells, and in the afternoon, Khalid Sheikh Mohammed, the unarguable showman of the group, refused to attend, as did Ramzi bin al-Shibh, even though the hearing was convened to deal with ongoing issues regarding his mental competency, and that of another of the five, Mustafa al-Hawsawi. Al-Hawsawi, Ali Abdul Aziz Ali and Walid bin Attash eventually turned up in the courtroom, but there was little activity.

Walid Bin Attash, Ali Abdul Aziz Ali, and Mustafa al Hawsawi at their pre-trial hearing in Guantánamo on July 16, 2009. Courtroom sketch by Janet Hamlin.According to Reuters, “al-Hawsawi soon demanded to leave after complaining he would not be allowed to speak,” and “bin Attash, given five minutes to address the court, complained that the presiding judge, Army Colonel Steven Henley, had not responded to letters the five men had written to him ‘a long time ago.’” In the only flicker of the dissent normally associated with KSM’s presence, he explained, “If you don’t have enough patience to take this case, just give it to a different judge. We view the judge and prosecution as one person. There’s no difference.” Later, bin Attash showed his disdain for the proceedings by throwing a paper plane — fashioned, presumably, from his court papers — at one of his co-accused.

The rest of the session focused on attempts by bin al-Shibh’s lawyers to “allow a defense consultant to examine CT scans of her client’s brain and perform further tests, including possibly an MRI, to ‘determine whether any lesions in his brain affect his cognitive functioning.’” Navy Cmdr. Suzanne Lachelier explained that bin al-Shibh has been diagnosed with “delusional disorder,” but when she tried to explain that he had been subjected to sleep deprivation, a court censor cut off the feed to the media center.

In an attempt to rebuff these complaints, one of the prosecutors, Navy Lt. Clayton Trivett, said that bin al-Shibh’s complaints about sleep deprivation may have been produced by his pre-existing condition. Trivett explained that bin al-Shibh “has accused guards of pumping foul smells and loud noises into his cell and ‘vibrating his bed’ to keep him awake,” even though “The government’s position is that it’s not happening and it’s never been happening,” although another interpretation could be that the initial collapse of bin al-Shibh’s mental health was caused by whatever happened to him during the four years that he was held in a secret CIA prison before his arrival at Guantánamo in September 2006.

With no visible progress — and with the little that did take place overshadowed by the dispute over the charge of material support for terrorism, which would have a knock-on effect on several other cases — this was another dismal outing for the Commissions, and, surely, another warning for the Obama administration that any kind of revival of the wretched trial system will remain fraught with insoluble problems.

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

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

See the following for a sequence of articles dealing with the stumbling progress of the Military Commissions: The reviled Military Commissions collapse (June 2007), A bad week at Guantánamo (Commissions revived, September 2007), The curse of the Military Commissions strikes the prosecutors (September 2007), A good week at Guantánamo (chief prosecutor resigns, October 2007), The story of Mohamed Jawad (October 2007), The story of Omar Khadr (November 2007), Guantánamo trials: where are the terrorists? (February 2008), Six in Guantánamo charged with 9/11 attacks: why now, and what about the torture? (February 2008), Guantánamo’s shambolic trials (ex-prosecutor turns, February 2008), Torture allegations dog Guantánamo trials (March 2008), African embassy bombing suspect charged (March 2008), The US military’s shameless propaganda over 9/11 trials (April 2008), Betrayals, backsliding and boycotts (May 2008), Fact Sheet: The 16 prisoners charged (May 2008), Afghan fantasist to face trial (June 2008), 9/11 trial defendants cry torture (June 2008), USS Cole bombing suspect charged (July 2008), Folly and injustice (Salim Hamdan’s trial approved, July 2008), A critical overview of Salim Hamdan’s Guantánamo trial and the dubious verdict (August 2008), Salim Hamdan’s sentence signals the end of Guantánamo (August 2008), Controversy still plagues Guantánamo’s Military Commissions (September 2008), Another Insignificant Afghan Charged (September 2008), Seized at 15, Omar Khadr Turns 22 in Guantánamo (September 2008), Is Khalid Sheikh Mohammed Running the 9/11 Trials? (September 2008), two articles exploring the Commissions’ corrupt command structure (The Dark Heart of the Guantánamo Trials, and New Evidence of Systemic Bias in Guantánamo Trials, October 2008), The collapse of Omar Khadr’s Guantánamo trial (October 2008), Corruption at Guantánamo (legal adviser faces military investigations, October 2008), An empty trial at Guantánamo (Ali Hamza al-Bahlul, October 2008), Life sentence for al-Qaeda propagandist fails to justify Guantánamo trials (al-Bahlul, November 2008), 20 Reasons To Shut Down The Guantánamo Trials (profiles of all the prisoners charged, November 2008), How Guantánamo Can Be Closed: Advice for Barack Obama (November 2008), More Dubious Charges in the Guantánamo Trials (two Kuwaitis, November 2008), The End of Guantánamo (Salim Hamdan repatriated, November 2008), Torture, Preventive Detention and the Terror Trials at Guantánamo (December 2008), Is the 9/11 trial confession an al-Qaeda coup? (December 2008), The Dying Days of the Guantánamo Trials (January 2009), Former Guantánamo Prosecutor Condemns Chaotic Trials (Lt. Col. Vandeveld on Mohamed Jawad, January 2009), Torture taints the case of Mohamed Jawad (January 2009), Bush Era Ends with Guantánamo Trial Chief’s Torture Confession (Susan Crawford on Mohammed al-Qahtani, January 2009), Chaos and Lies: Why Obama Was Right to Halt The Guantánamo Trials (January 2009), Binyam Mohamed’s Plea Bargain: Trading Torture For Freedom (March 2009).

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

Calling Time On Bush and Cheney’s Crimes: The New York Times’ Perfect Editorial

Dick Cheney and George W. BushIf you missed this yesterday, I urge you to read it now.

In an editorial that strikes to the heart of the Bush administration’s crimes, following the publication of what the New York Times describes as “a devastating report by the inspectors general of the intelligence and law-enforcement community on President George W. Bush’s warrantless wiretapping program” (PDF), the Times’ editors urged President Obama “to open a full investigation of the many laws that were evaded, twisted or broken — pointlessly and destructively — under Mr. Bush.”

The editors also spelled out what that investigation needs to uncover: evidence of how “[Dick] Cheney and his ideologues, who had long chafed at any legal constraints on executive power, preyed on [the] panic [that followed the 9/11 attacks] to advance their agenda,” and of the role played in bypassing and ignoring laws regarded as outdated or inconvenient by Justice Department lawyer John Yoo and White House counsel, and later Attorney General, Alberto Gonzales. I must add that David Addington, Cheney’s legal counsel, and later, his Chief of Staff, is not named in the editorial, although he played possibly the most significant role of all.

In a key passage, the editors wrote, “Mr. Cheney has tried to head off a reckoning by claiming that the warrantless wiretapping saved thousands of lives. The report said the C.I.A. could point to little direct benefit. The F.B.I. said most of the leads it produced were false.”

It is no coincidence that “the torture program” could be substituted for “warrantless wiretapping” in the paragraph above. As the editors also noted, “This is not an isolated case. Once the Bush team got into the habit of breaking the law, it became their operating procedure that any means are justified: ordering the nation’s intelligence agents to torture prisoners; sending innocents to be tortured in foreign countries; creating secret prisons where detainees were held illegally without charge.”

Here’s the editorial in full:

Illegal, and Pointless
New York Times editorial, July 17, 2009

We’ve known for years that the Bush administration ignored and broke the law repeatedly in the name of national security. It is now clear that many of those programs could have been conducted just as easily within the law — perhaps more effectively and certainly with far less damage to the justice system and to Americans’ faith in their government.

That is the inescapable conclusion from a devastating report by the inspectors general of the intelligence and law-enforcement community on President George W. Bush’s warrantless wiretapping program. The report shows that the longstanding requirement that the government obtain a warrant was not hindering efforts to gather intelligence on terrorists after the 9/11 attacks. In fact, the argument that the law was an impediment was concocted by White House and Justice Department lawyers after Mr. Bush authorized spying on Americans’ international communications.

We know less, so far, about the Bush administration’s plan to send covert paramilitary teams to assassinate Al Qaeda leaders. But what is overwhelmingly clear is that there was no legal or rational justification for Vice President Dick Cheney’s order to conceal the program from Congress. The plan was never put into effect, apparently because it was unworkable. But it’s hard to imagine Congress balking at killing terrorists.

So why break the law, again and again? Two things seem disturbingly clear. First, President Bush and his top aides panicked after the Sept. 11 attacks. And second, Mr. Cheney and his ideologues, who had long chafed at any legal constraints on executive power, preyed on that panic to advance their agenda.

According to the inspectors general, the legal memo justifying warrantless wiretapping was written by John Yoo, then the deputy head of the Justice Department’s Office of Legal Counsel and author of other memos that twisted the law to justify torture.

In this case, the report said, he misrepresented both the law and the details of the wiretapping operation to make it seem as if the 1978 Foreign Intelligence Surveillance Act was outdated and that Mr. Bush could ignore it. And, according to the report, Mr. Yoo bypassed his bosses at the Justice Department and delivered his reports directly to, you guessed it, Mr. Cheney’s office.

For four years, until The Times revealed the warrantless wiretapping, Mr. Bush reauthorized the eavesdropping every 45 days based on memos from the intelligence community and Justice Department. The report said that when the “scary memos,” as they came to be called, were not sufficiently scary, lawyers under the direction of Alberto Gonzales, White House counsel and later attorney general, revised them or ordered up additional “threat information.” Each ended with a White House-written paragraph asserting that communications were intercepted from terrorists who “possessed the capability and intention” to attack this country.

After Mr. Yoo and his boss, Jay Bybee, left the Justice Department, their replacements concluded that the wiretapping program was illegal. The White House did eventually change parts of the program and then demanded that Congress legalize it, but only after the White House tried to force the Justice Department to ignore its own conclusions and after Robert Mueller, the director of the F.B.I., threatened to resign.

Mr. Cheney has tried to head off a reckoning by claiming that the warrantless wiretapping saved thousands of lives. The report said the C.I.A. could point to little direct benefit. The F.B.I. said most of the leads it produced were false. Others never led to an arrest.

This is not an isolated case. Once the Bush team got into the habit of breaking the law, it became their operating procedure that any means are justified: ordering the nation’s intelligence agents to torture prisoners; sending innocents to be tortured in foreign countries; creating secret prisons where detainees were held illegally without charge.

Americans still don’t have the full story. Even now, most of what the inspectors general found remains classified, including other wiretapping that Mr. Bush authorized. Mr. Yoo’s original memo is also classified.

President Obama has refused to open a full investigation of the many laws that were evaded, twisted or broken — pointlessly and destructively — under Mr. Bush. Mr. Obama should change his mind. A full accounting is the only way to ensure these abuses never happen again.

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

Italy’s Guantánamo: Obama Plans “Rendition” Of Tunisians In Guantánamo To Italian Jail

An unidentified prisonerOn Wednesday, the British Muslim support group Help The Prisoners stated that it had “received notification from an inmate at Macomer prison” — an Italian high-security prison on the island of Sardinia — that “three Tunisian inmates from Guantánamo Bay will be transferred there.” This is disturbing news, because, as Help The Prisoners note, “Macomer has been dubbed ‘Italy’s Guantánamo’ by inmates and independent human rights organizations who have been campaigning for change at the prison.” In 16 letters received by Help The Prisoners, those held at Macomer allege that they have been subjected to ill-treatment including “beatings, abuse of their religious items, denial of medical treatment, [and] sexual humiliation.” Another recently received letter adds further disturbing details, and it is, therefore, no surprise that Help The Prisoners has stated that it intends to “file a UN submission to the Special Rapporteur on Torture on the detainees’ behalf.”

Why Italy’s offer is a “rendition” proposal

Silvio Berlusconi and Barack Obama at the White HouseHowever, the news is not entirely unexpected. Since June 15, when President Obama announced, following talks with Silvio Berlusconi in Washington, “This is not just talk, Italy has agreed to accept three specific detainees,” the Italian press has explained that Berlusconi’s unexpected reversal of his previous opposition to accepting cleared prisoners from Guantánamo was only agreed on the basis that the Italian government would take prisoners who would subsequently be imprisoned in Italy on the basis of criminal proceedings pending against them.

According to a translation of an article in La Repubblica that was sent to me, the US informally asked the Italian government in April to take six or seven prisoners from Guantánamo, and in the weeks that followed the Department of Public Security and the Ministry of Justice compiled a list of Guantánamo prisoners who had criminal proceedings pending against them in Italy.

Sources in the United States and Italy, with knowledge of the cases, explained that the Italian government subsequently whittled the list down to three specific Tunisian prisoners — Adel Ben Mabrouk, Abdul Ourgy and Riyad Nasseri — on the basis that all three men would be transferred from Guantánamo to Italian jails, and it was suggested that Roberto Maroni, the Minister of the Interior (and a member of Italy’s notoriously right-wing Northern League), only approved their transfer when he received reassurances that they would not be set free. This was confirmed in an article in the Christian Science Monitor, in which reporter Anna Momigliano wrote that Maroni, whose party was bluntly described as “oppos[ing] the presence of Muslim immigrants” in Italy, stated, “I oppose taking [the prisoners] in, as long as we are not sure they will be kept behind bars.”

La Repubblica added that the prisoners would not receive “credit” for their seven years in Guantánamo, and noted that, in 2007, the Milanese Public Prosecutor’s office had requested extradition of two of the men, but the Ministry of Justice refused to forward the extradition request to the US government because Guantánamo was “not US territory.” As a result, it is understood that the US government’s transfer of the men to Italian custody will not involve extraditing them, but rather expelling them, and the Italian government can therefore treat them not as prisoners who have already served a jail sentence, but as fugitives who are obliged to serve a full term.

As a source in the United States explained, this novel approach to disposing of prisoners in Guantánamo is actually a form of “rendition,” and, moreover, is particularly disturbing for two reasons: firstly, because the men in question were approved for transfer from Guantánamo (to the custody of their home governments, or to a third country willing to take them) by a military review board at Guantánamo under the Bush administration, which only happened because the military concluded that they no longer represented a threat to the United States; and secondly because, as they currently stand, the Italian proposals may actually be worse than what would await the men if they were returned to Tunisia.

Human rights abuses in Tunisia and Italy

To put this in perspective, it needs to be borne in mind that the men were not sent back to Tunisia from Guantánamo because of well-documented problems with repatriation arrangements negotiated between the US and Tunisian governments. In June 2007, two Tunisians cleared for release from Guantánamo — Abdullah bin Omar and Lotfi Lagha — were repatriated on the basis of a “diplomatic assurance” between the two governments, which purported to guarantee that they would be treated humanely. On their return, however, both men complained that they were threatened in Tunisian custody, and they were subsequently sentenced to seven and three years in prison, after trials that human rights observers condemned as “show trials.”

As a result, when the US government attempted to repatriate a third Tunisian, Mohammed Abdul Rahman, in October 2007, a District Court judge, Gladys Kessler, intervened to prevent his return, ruling that he “cannot be sent to Tunisia because he could suffer ‘irreparable harm’ that the US courts would be powerless to reverse.”

At the time of writing, questions remain about the alleged crimes committed by the three Tunisians in Italy, and what rights — if any — the Italian government plans to give them to appeal the supposed evidence against them. According to various Italian media reports, the arrest warrants issued in 2007 for Riyad Nasseri (also identified as Riadh Nasri) and Adel Ben Mabrouk (identified as Moez Fezzani) were “for conspiracy to commit a crime, encouraging illegal immigration and a number of crimes linked to terrorism,” including involvement in the Salafist Group for Call and Combat (GSPC), a splinter group of Algeria’s notorious Armed Islamic Group (GIA), and that Ourgy (identified as Abdul bin Mohammed bin Ourgy) was “suspected of having had links in Milan with people who sought volunteers to fight in Iraq and Afghanistan with Islamic insurgents.”

This is a source of concern not only because of long-standing claims that the Italian authorities have, in common with most Western countries, taken the lead from the US since the 9/11 attacks in overreacting to perceived terrorist threats, implementing punitive detention policies and, in June 2008, returning a Tunisian, Sami Ben Khemais Essid, to his home country, “despite a request by the European Court of Human Rights to suspend any measure to transfer Essid to Tunisia pending their review of his case” (as Human Rights Watch explained), but also because of the CIA’s notorious involvement, in February 2003, in the kidnap and “extraordinary rendition” of Abu Omar. The Egyptian-born cleric was seized from a Milan street in broad daylight and rendered to Egypt, where he was tortured, before finally being released from custody in 2007, and many observers believe that such an operation would have been inconceivable without the close cooperation of the Italian government.

Who are the three Tunisians?

In Guantánamo, little information has surfaced publicly regarding the activities of the three Tunisians in Italy, or, for that matter, providing firm evidence of their activities in Afghanistan. Adel Ben Mabrouk, who was 31 years old when he was seized crossing from Afghanistan into Pakistan, worked in restaurants in Naples and Rome, and as a barber in Milan, according to his lawyers, and explained that he traveled to Afghanistan in early 2001, “because I became a Muslim when I was in Europe. My country was very tough on the Muslims. Afghanistan was a country where they were willing to take anybody, you don’t need any money to live there, and they welcome all the Muslims.”

In Guantánamo, he denied an allegation that he was part of a terrorist network in Italy, and that he “possibly” falsified passports “for fleeing al-Qaeda combatants who make it to Europe” (that use of the word “possibly” generally indicating that even the US military regarded the allegation as unreliable). He also refuted allegations that he was an “extremist” in Bosnia-Herzegovina during the civil war, and, to prove it, showed the tribunal the visa stamps in his passport, which he requested as evidence. The information about his purported activities in the former Yugoslavia was apparently provided by the Tunisian government, which had sentenced him in absentia to 20 years in prison for allegedly being a member of a terrorist organization operating abroad.

Abdul Ourgy, who was 36 years old when seized crossing the Pakistani border, admitted being a drug dealer in Italy from 1991 to 1995, but stressed, “I am not an Islamic fanatic.” After stating that he was encouraged to clean up his life by a man he met in Milan, “who taught him how to pray, gave him money” and encouraged him to go to a training camp in Afghanistan, which, as he described it, was run by veterans of the campaign against the Russians, who had nothing whatsoever to do with al-Qaeda, he explained that he traveled to Afghanistan in 1997, and married an Afghan woman in 2000.

Explaining the circumstances in which he was seized, he said that, after the fall of the eastern Afghan city of Jalalabad, when Arabs were being killed by the Northern Alliance and by other Afghans, his brother-in-law took his wife to safety in Pakistan, but he stayed behind to pack up the household goods and then volunteered to go through the mountains to Pakistan. “I couldn’t go through the main road because I am an Arab,” he said. “That way, when he [the brother-in-law] entered Pakistan with all these household goods there would be no problem.”

A number of the allegations against Abdul Ourgy came from “a senior al-Qaeda lieutenant,” and are, therefore, extremely dubious, as they were probably extracted from one of the “high-value detainees’ — including Khalid Sheikh Mohammed and Abu Zubaydah — who were tortured in secret CIA prisons. According to this source, Ourgy “may have travelled” to Tora Bora with the Emir of the Tunisian Combatant Group and fought with al-Qaeda in Tora Bora, and was also “identified as Adel al-Tunesi, an explosives expert for al-Qaeda.” It was also alleged that he was responsible for the finances of the Tunisian Combatant Group (a group opposed to the dictatorship of Zine El Abidine Ben Ali, which was added to the US State Department’s “Terrorist Exclusion List” in October 2002), and, most alarmingly — for an allegation that was presented without any supporting evidence — it was suggested that he was involved in the assassination of Ahmed Shah Massoud, the leader of the Northern Alliance, who was killed, reportedly by al-Qaeda agents, just two days before the 9/11 attacks.

In the hearing at Guantánamo for the last of the three, Riyad Nasseri, who was 35 years old when he was seized (also crossing from Afghanistan to Pakistan), it was alleged that he was “condemned” in Italy for forging money, and that he “had a warrant order issued for terrorism-related crimes and subversion” (which sounds like a direct translation of a document provided by the Italian authorities — or perhaps nothing more than a newspaper report). It was also alleged that he fought in Bosnia (an allegation that may have been provided by the Tunisian government, because it was also stated that, in absentia, he had been given a ten-year sentence in Tunisia for being a member of a terrorist organization operating abroad), and that he “led a band of thieves in Italy and Spain who cooperated with Algerian terrorists,” although there was no indication of where this rather fantastical-sounding allegation came from.

In a plethora of other unsubstantiated allegations, it was also claimed that he was a member of the Tunisian Islamic Front (another Tunisian opposition group, but one that has not been proscribed by the US government), that he was involved in establishing the Tunisian Combat Group, and that he was a member of the GIA. It was also alleged that he was “identified by a senior al-Qaeda lieutenant as having trained at the Khaldan camp [run by Ibn al-Shaykh al-Libi, and not connected to al-Qaeda] and that he eventually took over as the Emir of the Tunisian Group in Afghanistan,” which may indicate that either al-Libi (the CIA’s most famous “ghost prisoner,” who recently died in a Libyan prison) or Abu Zubaydah (the gatekeeper of the camp, and the CIA’s most well-known torture victim, along with Khalid Sheikh Mohammed) may have made that particular allegation. As with Abdul Ourgy, it was also alleged that he was in Tora Bora, and, specifically, that he fled from Jalalabad to the Tora Bora region after the area fell to the Northern Alliance, that he was injured during the US bombing, and that he and others subsequently “arranged their surrender.” Nasseri refused to take part in his hearing, but in the “Summary of Evidence” against him, it was noted that he refuted all the allegations against him.

Obama, beware!

Where this leaves the men is, at present, unknown, but the rumors from Macomer, and the comments attributed to Roberto Maroni, the Minister of the Interior, indicate that transferring them to Italy without firm assurances that they will receive a fair trial on their arrival may indeed be no better than returning them to Tunisia, and, as a result, President Obama needs to think carefully before risking another Guantánamo-related scandal to add to those that have already damaged his first six months in office — including his failure to act on behalf of the Uighurs, and the feeble cases put forward before judges in the habeas corpus hearings, which, most recently, led to humiliation in the case of Abdul Rahim al-Ginco, a Syrian who was allegedly involved with al-Qaeda, even though he had been tortured by al-Qaeda as a spy.

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

As published exclusively on Cageprisoners.

In the Guardian: Dismantle the secret state

The Guantanamo FilesFor the Guardian’s Comment is free, “Dismantle the secret state” is an article I’ve written as part of the Guardian’s week-long “Slow torture” series, which is described as follows:

The government’s powers to impose restrictions on terror suspects — without a trial — amounting to virtual house arrest have been condemned as draconian by civil liberties campaigners.

In a series of five films, actors read the personal testimonies of those detained under Britain’s secret evidence laws and campaigners and human rights lawyers debate the issues raised.

The films are based on the testimony of five detainees held on deportation bail (a form of house arrest, similar to control orders), which were initially compiled for a Parliamentary meeting about the government’s use of secret evidence, convened by Diane Abbott MP in March. A report on that particularly enlightening meeting is here, and transcripts of the five men’s testimony is available by following the links below.

For the Guardian today, I was asked to reiterate the central complaints against the use of secret evidence, deportation bail and control orders, especially in light of the Law Lords’ ruling, last month, that depriving people of the right to a fair trial on the basis of secret evidence was unacceptable.

The core issues remain as fundamental as they were over seven years ago, when the government first imprisoned foreign “terror suspects” without charge or trial in Belmarsh prison, and they did not change fundamentally when the Law Lords ruled this regime illegal, and the government responded with control orders and deportation bail.

The questions to be asked, are, as I stated in today’s article, “whether it is acceptable for the government to deprive anyone of the right to a fair trial on the basis of secret evidence that is not disclosed to them, and, if so, what conditions should be imposed on those regarded as a threat on the basis of that evidence?”

I contend that the answers — for anyone concerned with the rule of law — are the same as they have been all along: that depriving people of their liberty on the basis of secret evidence is both cruel and unjust, and that not allowing detainees the ability to challenge the evidence against them leaves us in an unjustifiable situation in which we are required to trust that the information gathered by the government and the intelligence services — some of which is publicly available, although it cannot be adequately challenged by those against whom it is used — is above reproach.

With reference to three cases in which this was patently untrue — British citizen Cerie Bullivant, a Libyan identified only as M, and Mouloud Sihali, cleared by a jury of involvement in the spectral “ricin plot” but then imprisoned and held on a control order for 20 months, all of whom were eventually freed — I ask what I believe is the most fundamental question of all: whether it is acceptable to trust the open evidence that has been made available by the government (which, to repeat, the detainees are prevented from adequately challenging), when there is the untested possibility of “incompetence on the part of the intelligence services,” or the possibility that the supposed evidence “may be based on unreliable confessions extracted from the detainees or from other prisoners held elsewhere, including some who may have been tortured in other countries.”

And the answer, of course, should be a resounding no.

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

For other articles dealing with Belmarsh, control orders, deportation bail, deportations and extraditions, see Deals with dictators undermined by British request for return of five Guantánamo detainees (August 2007), Britain’s Guantánamo: the troubling tale of Tunisian Belmarsh detainee Hedi Boudhiba, extradited, cleared and abandoned in Spain (August 2007), Guantánamo as house arrest: Britain’s law lords capitulate on control orders (November 2007), The Guantánamo Britons and Spain’s dubious extradition request (December 2007), Britain’s Guantánamo: control orders renewed, as one suspect is freed (February 2008), Spanish drop “inhuman” extradition request for Guantánamo Britons (March 2008), UK government deports 60 Iraqi Kurds; no one notices (March 2008), Repatriation as Russian Roulette: Will the Two Algerians Freed from Guantánamo Be Treated Fairly? (July 2008), Abu Qatada: Law Lords and Government Endorse Torture (February 2009), Ex-Guantánamo prisoner refused entry into UK, held in deportation centre (February 2009), Home Secretary ignores Court decision, kidnaps bailed men and imprisons them in Belmarsh (February 2009), Britain’s insane secret terror evidence (March 2009), Torture taints all our lives (published in the Guardian’s Comment is free), Britain’s Guantánamo: Calling For An End To Secret Evidence, Five Stories From Britain’s Guantánamo: (1) Detainee Y, Five Stories From Britain’s Guantánamo: (2) Detainee BB, Five Stories From Britain’s Guantánamo: (3) Detainee U, Five Stories From Britain’s Guantánamo: (4) Hussain Al-Samamara, Five Stories From Britain’s Guantánamo: (5) Detainee Z, Britain’s Guantánamo: Fact or Fiction? and URGENT APPEAL on British terror laws: Get your MP to support Diane Abbott’s Early Day Motion on the use of secret evidence (all April 2009), Taking liberties with our justice system and Death in Libya, betrayal in the West (both for the Guardian), Law Lords Condemn UK’s Use of Secret Evidence And Control Orders (June 2009), Miliband Shows Leadership, Reveals Nothing About Torture To Parliamentary Committee (June 2009), Britain’s Torture Troubles: What Tony Blair Knew (June 2009), Seven years of madness: the harrowing tale of Mahmoud Abu Rideh and Britain’s anti-terror laws, Would you be able to cope?: Letters by the children of control order detainee Mahmoud Abu Rideh, Control order detainee Mahmoud Abu Rideh to be allowed to leave the UK (all June 2009), Testing control orders (for the Guardian).

Chair Of The American Conservative Union Supports The Guantánamo Uighurs

Uighur prisoners in Guantanamo protest their ongoing detention, June 1, 2009Back in May, in an article entitled, “Guantánamo: A Real Uighur Slams Newt Gingrich’s Racist Stupidity,” I took exception to remarks that Gingrich, the former House Speaker, made about the Uighur prisoners in Guantánamo (Muslims from China’s Xinjiang province), who managed to get the Bush administration, the military at Guantánamo and the US courts to concede that they were not “enemy combatants” at all, and had, essentially, been seized by mistake, when the US military was offering $5,000 a head for “al-Qaeda and Taliban suspects” to the type of poor Pakistani tribesmen who were all too willing to take advantage of such a generous offer.

As I explained in the article,

[O]n Fox News, Gingrich stated bluntly that he thought the Uighurs should be returned to China. “Why is that our problem?” he asked. “Why are we protecting these guys? Why does it become an American problem?” “Send them to China,” Gingrich continued. “If a third country wants to receive them, send them to a third country. But setting this precedent that if you get picked up by Americans … you show up in the United States, a lawyer files an amicus brief on your behalf for free, a year later you have citizenship because, after all, how can we not give you citizenship since you’re now here, and in between our taxpayers pay for you — this, I think, verges on insanity.”

At the time, Rep. Bill Delahunt (D-Mass.), who serves on the House Foreign Affairs Committee, answered the question, “Why does it become an American problem?” by stating, “Well, in this particular case, we bought it. We bought it literally because these detainees were a victim of some half-cocked initiative, put out by Cheney et al., where they were purchased for $5,000.” In addition, as I explained in May,

Delahunt added that he was surprised that Gingrich — a fervent anti-Communist who condemned China for using torture in 1997 — would ally himself with China. ”I guess he is unaware of the [United Nations] Convention Against Torture which obligates us not to return them to China because it’s clear they would be persecuted and undoubtedly subjected to torture, incarceration and all sorts of degradation, given the history of the red, godless Chinese communist government,” he said, adding, “What I find particularly ironic is, here’s the former Speaker allying himself with the Chinese communists. Quite an interesting development. I guess his fervent anti-communism has abated somewhat.”

Since Gingrich first sacrificed his anti-Communism in favor of the terror-drenched hyperbole of former Vice President Dick Cheney, four of the remaining Uighurs have been released in Bermuda, but with 13 of their compatriots still in Guantánamo, and the Uighur population as a whole suddenly in the news following horrendous ethnic conflict — and, it seems, well-hidden Chinese suppression — in their homeland, I thought this was a good occasion to provide some publicity to an article published yesterday in The Hill by David Keene, the chairman of the American Conservative Union.

David KeeneIn a perceptive analysis of US incompetence regarding the Uighurs — with, it should be noted, a remarkably healthy skepticism regarding the Bush administration’s claims about many of the other prisoners in Guantánamo — Keene demolished Gingrich, and made a point of supporting the views of Rep. Dana Rohrabacher (R-Calif.), who responded to Gingrich’s remarks in May by opening a hearing of the House Foreign Affairs Subcommittee on Human Rights by declaring that Gingrich was “in the Hall of Shame” for his remarks, and who, with Democrats and other Republicans, criticized Gingrich for “fear-mongering” and, as McClatchy Newspapers described it, “allegedly peddling Chinese propaganda.”

In addition, I can’t help but notice that Keene took a position on the Uighurs that, despite being chair of the American Conservative Union and a supporter, during the Presidential race, of Mitt Romney, who, notoriously, thought that the government should “Double Guantánamo,” is more open to atoning for the horrendous mistakes made by the Bush administration — and more sympathetic to the Uighurs in Guantánamo — than anyone in the Obama administration.

It is, of course, to Keene’s credit that he has seen through the “fear-mongering” of Gingrich, Cheney and others, but it reflects badly on Obama and senior officials in the current administration, who, for six months, have found themselves unable to face down the “fear-mongers,” to repudiate the Bush administration’s policies, to tell the Uighurs’ story to the American people with the same sense of honesty and shame as David Keene, and, ultimately, to do the right thing by welcoming the remaining Uighurs onto the US mainland.

David Keene’s article is reproduced below:

The Uighur Dilemma
By David Keene

My good friends Dana Rohrabacher and Newt Gingrich are arguing, albeit at long distance, over the guilt and potential fate of some of the prisoners still being held at Guantánamo Bay, Cuba. Rohrabacher believes the Uighur prisoners still at Guantánamo aren’t terrorists at all, while Newt is convinced they are just too dangerous to be released.

I admire both men but, though they differ on few issues, usually find myself agreeing with Newt rather than Dana on those few. However, this time the evidence (or lack thereof) suggests that it is Dana who has the best of the argument.

Until Chinese security forces began bludgeoning Uighurs during protests that turned into riots in western China, few Americans had heard of these people trapped inside China and enduring long-term persecution, job discrimination and a campaign by Beijing to destroy their ancient culture. The Uighurs are Muslims who, like the Dalai Lama’s Tibetan followers, would rather govern themselves than take orders from their less-than-friendly communist overseers.

The only Uighurs most Americans had heard of at all were the 17 being held at Guantánamo as “enemy combatants” captured on Afghan battlefields in the opening days of the war on terror. It turns out they weren’t captured on the battlefield at all, but apprehended or perhaps kidnapped by Afghan tribesmen [actually, Pakistani tribesmen] who delivered them to US forces in return for bounties we were paying at the time for the capture of known terrorists.

We shipped these Uighurs off to Guantánamo, though we now admit there was never any evidence suggesting they bore us ill will or participated in the battle being waged at the time. It turns out their beef was with Beijing, not Washington. Like the Tibetans who enjoy a better press here, the Uighurs have been under constant assault from the Chinese. Some want independence for their ancestral home, while others seek better treatment from the communist regime.

Objections to even the most cursory review of the charges justifying the incarceration of these and other “enemy combatants” at Guantánamo were dismissed on the grounds that those held there were “the worst of the worst.” These were men, we were told, who were simply too dangerous to be released so long as the war on terrorism raged.

Newt certainly subscribes to this view. Though some argue in light of the evidence that while this was true of some detainees it wasn’t and isn’t true of all, Newt seems to believe that no mistakes were made. He goes further, in fact, in arguing that regardless of whether the Uighurs we bought in 2002 were after us or not, they were trained by the East Turkestan Islamic Movement (ETIM) and are therefore incredibly dangerous customers. The prisoners themselves deny this, arguing that they’d never even heard of the organization until they arrived at Guantánamo.

The Chinese want them back. If they get them back, torture them and ultimately execute them, Beijing will have demonstrated rather powerfully to the Uighurs and other minorities that it does them no good to look to the West for support now or ever again. It turns out that we, in our constant effort to please our Chinese creditors, actually contemplated shipping them home but ultimately decided the televised executions that might follow wouldn’t go over well here.

The problem stems from the fact that after Sept. 11, US officials essentially decided that to avoid dealing with the contention that “one man’s terrorists are another’s freedom fighters,” we would take the position that anyone fighting or offering armed resistance to an incumbent government anywhere would or could, for US purposes, be classified as a terrorist. This delighted despots everywhere, but nowhere more than in Beijing. Chinese authorities immediately asked that Uighurs resisting Beijing be classified as terrorists, and the US complied.

The result was that the Uighurs ended up at Guantánamo and we now have no idea what to do with them. We can’t send them home, and most nations don’t want them because then they will become targets of Beijing’s ire. Having managed to convince not just Newt but millions of Americans that there are no innocents at Guantánamo, we can’t release them here in spite of the fact that “the worst of the worst” weren’t distinguishable from the hapless and the innocent and have turned out to be mere pawns in a game they never agreed to play.

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

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), Bad News And Good News For The Guantánamo Uighurs (February 2009), A Letter To Barack Obama From A Guantánamo Uighur (March 2009), Obama’s First 100 Days: A Start On Guantánamo, But Not Enough (May 2009), Pain At Guantánamo And Paralysis In Government (May 2009), Guantánamo: A Prison Built On Lies (May 2009), Guantánamo: A Real Uyghur Slams Newt Gingrich’s Racist Stupidity (May 2009), Free The Guantánamo Uighurs! (May 2009), Who Are The Four Guantánamo Uighurs Sent To Bermuda? (June 2009), Guantánamo’s Uighurs In Bermuda: Interviews And New Photos (June 2009), and the stories in the additional chapters of The Guantánamo Files: Website Extras 1, Website Extras 6 and Website Extras 9.

Is The World Ignoring A Massacre of Uighurs In China?

Map showing China and Xinjiang provinceI have just received disturbing information from several Uighur correspondents in the United States, regarding the “riots” that began just nine days ago in Urumqi, the capital of the Xinjiang Uighur Autonomous Region (XUAR) of China.

When the unrest began, the world’s media suddenly discovered the story of the Uighurs, who describe their situation as akin to that of the Tibetans, but without the popular support. Once known as East Turkestan, the Uighurs’ long-contested homeland was conquered by the People’s Liberation Army in 1949, and anyone even remotely familiar with recent Uighur history will be aware that, in the 1960s, Mao Zedong encouraged Han Chinese to settle in the area in large numbers, and that the Uighurs — some of whom came to the attention of the West when 22 refugees were sold to US forces and imprisoned in Guantánamo — maintain that, as a result, they are marginalized and persecuted in their own country.

According to a 2005 report by Human Rights Watch, the Chinese government has established a “multi-tiered system of surveillance, control, and suppression of religious activity aimed at Xinjiang’s Uighurs. At its most extreme, peaceful activists who practice their religion in a manner deemed unacceptable by state authorities or Chinese Communist Party (CCP) officials are arrested, tortured, and at times executed. The harshest punishments are meted out to those accused of involvement in separatist activity, which is increasingly equated by officials with ‘terrorism.’ Because of fears in Beijing of the power of separatist messages, independent religious activity or dissent is at times arbitrarily equated with a breach of state security, a serious crime in China and one that is frequently prosecuted.”

Unlike last year, when the violence in Tibet played out unfavorably for the Chinese government, coverage of the unrest in Urumqi, which coincided with a major Uighur demonstration, was commandeered by the government, which, in an unprecedented move, set up a press office and pumped out stories blaming the violence on the Uighurs — and specifically, on Rebiya Kadeer, the head of the World Uyghur Congress, who was blamed for inciting the violence.

Rebiya KadeerThe New York Times explained, “As with the Dalai Lama, the Tibetan spiritual leader, Chinese officials often blame Ms. Kadeer for ethnic unrest.” For her part, Kadeer, who lives in Washington D.C., and was an extraordinarily successful businesswoman in Xinjiang until she was imprisoned on dubious spying charges by the Chinese government, not only denied the allegations, but also provided a glimpse of the strength of character that continues to draw supporters to the Uighurs’ cause. “Instead of blaming me,” she told the Times, “the Chinese government should start listening to the complaints of the Uighur people and choose dialogue.”

As Arianna Huffington reports today, the government also “choked off the Internet, blocked Twitter, and deleted updates and videos from social networking sites,” preventing the Uighurs from mounting an Iranian-style grass-roots response, and released news footage showing film of Han Chinese who had been wounded, and of Uighur youths attacking vehicles and buildings, which was broadcast around the world, effectively endorsing their one-sided message that the Uighurs were to blame for all the violence, and making it remarkably difficult to establish what actually took place.

Uighur youths overturn a car during the violence in Urumqi, July 5, 2009Largely absent from the story, however, was a reason for the demonstration, which, it later transpired, was because a number of Uighur workers (two, according to the government’s figures) had been murdered on June 25 in a toy factory in Guangdong (2,000 miles away from Xinjiang, on the other side of China) after Han Chinese workers falsely accused a number of their Uighur colleagues of raping two young Han Chinese women.

Also missing was a coherent explanation of why a demonstrably peaceful demonstration had suddenly turned violent, but by July 10, when the government issued a statement, claiming that 137 Han Chinese and 46 Uighurs had died in Urumqi (and 1,680 people had been wounded), the press wondered, briefly, about the fate of an unspecified number of Uighurs detained after the unrest, mentioned mobs of Han Chinese roaming the streets of Urumqi armed with swords and other weapons (and in some cases photographed them), and then largely moved on.

A Han Chinese man carries a spiked steel bar while using his cell phone to take photos as he joins a mob attacking Uighur properties in Urumqi, July 7, 2009 (AP Photo/Ng Han Guan)And yet, the reports I received from Uighurs in the US — drawing on accounts from inside Urumqi — provide uncomfortable answers to the questions posed above, and indicate that the government’s suppression of the Uighurs may be so severe — involving the murder of up to 1,500 Uighurs, and the disappearance of thousands more, who, it is feared, will either not be seen again or will face unjust “show trials” — that it is nothing short of a massacre, whose true contours may never be known without concerted demands for accountability and restraint from the international community.

The toy factory murders

According to the reports, the murders in the Guangdong toy factory (in the city of Shaoguan), which prompted the demonstration on July 5 after government inaction, were more extensive than the official government report suggested, and involved the murder of between 18 and 30 Uighurs, with hundreds more wounded.

The Uighurs reporting from the US cast doubt on government claims that the toy factory murders followed an Internet posting in which a former Han employee of the toy factory said that several Uighur workers had raped two Han Chinese girls. “We believe,” they wrote, “that the above account told by the Chinese government to the outside world is false. It is unimaginable that one accusation posted on the Internet can mobilize several thousand Han workers to take up iron pipes and other weapons, come to the factory campus, and start beating Uighur workers wherever they can find them, in most cases until their deaths.”

They cited an article published in the Guardian on July 10, in which Jonathan Watts reported that the first of what would eventually be 818 Uighur migrants arrived at the toy factory on May 2, as part of “a controversial government program to encourage migration from poorer western regions such as Xinjiang to wealthy eastern provinces such as Guangdong,” which has led to 200,000 young Uighurs leaving Xinjiang since the start of 2008. “Han colleagues initially treated them as a curiosity,” Watts wrote, citing a female worker at the factory, who said, “At first, we thought they were fun because in the evenings they danced and it was very lively. But then many others arrived. The more of them there were, the worst relations became.”

Reporting the story about the alleged rapes, and the Han Chinese workers’ response to it, Watts noted that the allegation was “repeated by almost all of the 20 or so local people” that he spoke to, but “no one could provide evidence or the names of the victims.” However, the racial tensions it inspired were clearly deep-seated, as Watts explained:

A local man said he took part in the assault because he was furious that the rapes had gone unpunished. “I just wanted to beat them. I hate Xinjiang people,” he said. “Seven or eight of us beat a person together. Some Xinjiang people hid under their beds. We used iron bars to batter them to death and then dragged them out and put the bodies together.” Squatting on his haunches in the shadows of a half-constructed apartment block, the Han man — who gave no name — said the government was lying about the death toll. He claims he helped to kill seven or eight Uighurs, battering them until they stopped screaming. He thinks the death toll is more than 30, including a few Han.

The US Uighurs added that, according to witness reports received by representatives of the World Uyghur Congress in several countries, “at least 30 Uighurs were killed and more than 300 were injured in this clash. It took about two days for the police to clean up bloodstains in streets and dormitories inside the factory campus.” They added that several families of the victims from villages in Kashgar District, in Xinjiang province, had received the bodies of their loved ones, but “were threatened by police, telling them that they cannot talk to anybody about this incident; otherwise they will lose their homes, their farming lands and they will go to jail.”

The Urumqi protest and its bloody aftermath

According to witnesses in Urumqi, who contacted Uighur organizations in the US, Germany and Turkey, the protest on July 5 began peacefully, and only turned violent when the Chinese police, who were “in position in People’s Square before the Uighur protesters arrived, started kicking, beating and arresting them from the very beginning of their arrival. This is the reason why a well-prepared peaceful protest turned into violence within the first couple of hours of the protest.”

In a press release, Rebiya Kadeer pointed out, “The fact that Uighurs were holding Chinese national flags speaks volumes for the nature of this peaceful protest and for what they were demanding — civil rights and equal justice under the law.” Witnesses added that the Chinese authorities “had full knowledge of the upcoming protest because it was announced on the Internet, so they made full preparations and arrangements about how to deal with it and how to take advantage of it.”

Witnesses also explained that the protest began at around 5 pm local time, and that “the police’s beating, arresting and chasing started at that time, and lasted for many hours after that.” By about 8:30 pm, when it was becoming dark, “the police chased the Uighur protesters into three alleyways mostly populated by Uighurs,” and cut off the city’s electricity supply for about 90 minutes. They continued:

During this time, the police, who were fully armed with armored vehicles and machine guns surrounded the crowds in the three alleyways from both sides, and fired at them with full military power en masse. The sounds of these gunshots can be heard in many YouTube videos filmed that night and posted on the Internet.

According to the witnesses, “an estimated 800 to 1000 people, most of them Uighurs, were shot to death during that one and a half hour period of time. For this reason, the Turkish Prime Minister compared this violence to genocide.”

One witness reported that “a young Uighur man, in his 20s, was shot twice, but crawled into a nearby trench before he died. He was discovered by several Uighurs next morning. The news spread through the neighborhood quickly, and more than ten Uighur residents, most of them women and children, gathered at the spot. Right at that moment, a full truck of police arrived and took the dead body as well as all the bystanders with them. The whereabouts of those people as well as others detained are still not known.”

According to “reports obtained by World Uyghur Congress representatives from several knowledgeable people” inside Xinjiang province, the Chinese authorities erased the evidence of the mass execution of Uighur victims by “burying the dead bodies two meters deep in a desert location so that nobody could find them.”

The witnesses added that, “after electricity in Urumqi was set to normal at 10 pm, the police searched all the homes in the three alleyways where the police killing took place, and arrested all the males approximately 14 years or older.” The Uighurs in the US added, “Knowing China’s history of brutal crackdown and mass arrest of the Uighur participants in the past demonstrations, we strongly believe the Chinese authorities arrested an estimated 3,000 Uighur males that night. This is the reason why the Uighur protesters who took to the streets on July 7 and afterwards were mostly women and children.”

Uighur women grieving for their menfolk, who were taken away by the Chinese authorities after the protest in Urumqi (AP photo)Reporting on a Chinese website, T.D., a Han Chinese blogger, provided the most harrowing account of the Han Chinese response to the violence on July 5, when, as the US Uighurs described it, “a mob of several thousand Han Chinese, carrying meat cleavers, machetes, axes, clubs and shovels, went to Urumqi’s streets, killed or injured every Uighur they could find, and destroyed shops and restaurants owned by Uighurs and two mosques.” T.D. wrote:

I just made a phone call to Xinjiang. The situation has spread on a large scale. Immigrant Han Chinese have already started actions. They are beating and killing every Uighur they can find. The number of the Uighur shops destroyed far exceeds that of those destroyed on July 5 and owned by Han Chinese. The number of the Uighurs killed and injured is also many times more than what was reported. I was told that the people walking on the streets are only Han Chinese. Almost all of the Han Chinese walking on the streets are carrying long knives. It is [reported] that some Han Chinese killed Uighurs and then hung their dead bodies on trees. Some Han Chinese are standing on bridges and throwing Uighurs off them. There were so many dead bodies that trash-collecting trucks started to move them away. The policemen standing nearby were pretending they didn’t see anything, and sometimes saying, “hit the Uighurs at the life-threatening places.” This has greatly encouraged those Han Chinese.

The Uighurs in the US added that, according to other reports they received, the Han Chinese mobs were “probably military personnel dressed like civilians, because they acted, when beating and killing Uighurs, like well-trained professionals.” They also reiterated the blogger’s report that “the police made no attempts to stop the armed Han Chinese mobs, and no reports have been made that any members of Han Chinese mobs who killed or injured Uighur victims or [damaged] Uighur properties have been arrested.”

They also noted that Urumqi’s CCP chief, Li Zhi, said “those who had used ‘cruel means’ during the rioting would be executed,” and added, “Because the Han mobs who used ‘cruel means’ to injure and kill Uighurs and damaged properties owned by Uighurs were not arrested, Li Zhi was referring to those several thousand Uighurs who have been detained.”

In conclusion, they stated,

We, the Uighurs around the world, call for urgent intervention in the Xinjiang Uighur Autonomous Region by the UN and human rights bodies. We appeal to the High Commissioner for Human Rights in Geneva to send independent observers to XUAR, and force the Chinese authorities to immediately launch an independent investigation into the protests, accounting for all those who have died in the protests and who have been detained, [because they] are at great risk of torture or other ill-treatment. Given these alarming developments and given the history of over 60 years of human rights violations by the Chinese authorities in XUAR, what we are asking today is for a high-level UN engagement with the Chinese authorities to stop these brutal crackdowns against the Uighur people.

In the Guardian today, cementing her role as a sensitive and capable leader-in-exile, Rebiya Kadeer confronted the actions of her own people in Urumqi, but stressed that reports of the murders of large numbers of Uighurs were too numerous to dismiss. “It is irrefutable that acts of violence, including murders, were committed by Uighurs against Han Chinese,” she wrote. “However, numerous residents of East Turkestan have told the organizations I lead that they have witnessed the deaths of hundreds of Uighurs that have gone unreported in the official press. At this point, it is impossible to verify these eyewitness accounts, as communications have been virtually cut off between East Turkestan and the outside world. But I cannot ignore the many accounts I have received of unimaginable atrocities that have been covered up.” Like her compatriots, Rebiya Kadeer called for justice and accountability, demanding “fair trials for those accused of perpetrating violence,” and “an independent, international investigation into the events of the past week.”

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

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), Bad News And Good News For The Guantánamo Uighurs (February 2009), A Letter To Barack Obama From A Guantánamo Uighur (March 2009), Obama’s First 100 Days: A Start On Guantánamo, But Not Enough (May 2009), Pain At Guantánamo And Paralysis In Government (May 2009), Guantánamo: A Prison Built On Lies (May 2009), Guantánamo: A Real Uyghur Slams Newt Gingrich’s Racist Stupidity (May 2009), Free The Guantánamo Uighurs! (May 2009), Who Are The Four Guantánamo Uighurs Sent To Bermuda? (June 2009), Guantánamo’s Uighurs In Bermuda: Interviews And New Photos (June 2009), and the stories in the additional chapters of The Guantánamo Files: Website Extras 1, Website Extras 6 and Website Extras 9.

Guantánamo And The Courts (Part One): Exposing The Bush Administration’s Lies

Eric Holder and Barack ObamaIn recent months, those who have been studying Guantánamo closely have come to the disturbing conclusion that the biggest obstacle to President Obama’s pledge to close Guantánamo by January 2010 comes not from the fearmongering and opportunistic politicians who recently voted to prohibit the use of any funds to release or to transfer prisoners to the United States, and who also authorized legislation that “requires the President to report periodically to Congress on the status of Guantánamo Bay detainees and plans for their transfer,” but from the administration’s own Justice Department.

Echoing the position taken by the Bush administration, Eric Holder’s Justice Department is pursuing patently indefensible cases that should have been dropped before being presented to a judge, and is also engaged in what appears to be a systematic policy of delays when it comes to providing exculpatory material to the prisoners’ defense teams (in other words, material that tends to disprove the government’s case), or, in fact, any other material that is vital to mounting a proper defense. Moreover, when given the option to defend a judge’s right to order the release of prisoners against whom no case could be proved, the Justice Department sided with a notoriously pro-Bush judge in the Court of Appeals, who ruled that, although a District Court judge could demolish the government’s case against a Guantánamo prisoner, he or she was powerless to actually order the prisoner’s release.

When Barack Obama came to power, one of his first acts was to issue a number of Executive Orders to tackle some of the worst excesses of the Bush administration’s “War on Terror.” The new President banned the use of torture and promised to close Guantánamo within a year, and to this end established an inter-departmental Guantánamo Task Force to review the prisoners’ cases, and to work out what to do with them. Whilst it was understandable that the Obama administration wanted to conduct its own review, to understand who was actually being held at Guantánamo, I had misgivings from the beginning about how this would mesh with the ongoing District Court reviews of the prisoners’ cases, which had been triggered last June when the Supreme Court ruled, in Boumediene v. Bush, that the prisoners had habeas corpus rights.

In the months since, I have not been reassured that two layers of review — one by the Executive, and one by the judiciary — is the most effective way of dealing with the prisoners’ cases, and these misgivings have been exacerbated by the Justice Department’s obstruction, delays and imitation of Bush-era policies outlined above, to the extent that I can only conclude that the administration is either attempting to sideline the courts, and believes that the only valid review process is the one being undertaken by its own inter-departmental Guantánamo Task Force, or that Eric Holder is not in charge of his own staff.

Both conclusions are disturbing; the first because sidelining the judiciary in favor of an essentially secretive Executive review is so uncomfortably reminiscent of the ways in which the Bush administration operated, and the second because, on a topic as important as Guantánamo, the Attorney General’s seeming inability to direct the operations of those working on the Guantánamo habeas cases reveals that the DoJ is still full of employees who maintain allegiance to Bush-era policies, that Holder himself holds those views, or, as above, that he is concerned only with the findings of the Guantánamo Task Force, and is unconcerned by the prisoners’ long legal struggle to test the basis of the allegations against them in a court of law.

With the Justice Department recently humiliated in two habeas reviews — of Alla Ali Bin Ali Ahmed, a Yemeni, and of Abdul Rahim al-Ginco, a Syrian who was tortured by al-Qaeda before he ended up in US custody — and almost certainly about to face another humiliation in the case of Mohamed Jawad, an Afghan whose story I have been reporting since October 2007 (see here, here, here and here), I have decided to take this opportunity to present a three-part overview of the habeas cases over the last 13 months.

In this first part, I examine the history of the habeas cases under the Bush administration, and in the second and third parts I bring the story up to date by looking in detail at the many failures of the Obama administration, as outlined above. Bear in mind throughout that, of the 31 cases decided by the courts, 26 have ended in defeat for the government, an 84 percent success rate for the prisoners that both justifies campaigners’ claims that the prison has largely held men (and boys) with no connection to al-Qaeda or any other terrorist group, and shows up the prison’s defenders (former Vice President Dick Cheney and the politicians mentioned above) as, at best, deluded, and, at worst, outright liars.

The Guantánamo prisoners’ long struggle to secure rights

The US Supreme CourtThirteen months ago, the long quest of the men held at Guantánamo to secure the most fundamental right of a prisoner — to be brought before a judge to ask why he is being held — was granted by the Supreme Court in Boumediene v. Bush (named after the Algerian prisoner, Lakhdar Boumediene, who was finally released from Guantánamo in May).

It was not the first time that the Guantánamo prisoners had been granted habeas corpus rights. Four years before, on June 29, 2004, the Supreme Court had ruled, in Rasul v. Bush, that they had habeas corpus rights, after concluding that Guantánamo — which was chosen as the location for the prison because it was presumed to be beyond the reach of the US courts — was “in every practical respect a United States territory,” and that therefore the 800-year old “Great Writ,” first conceived in England in the reign of King John, applied to the prisoners. As Justice John Paul Stevens declared,

Executive imprisonment has been considered oppressive and lawless since John, at Runnymede, pledged that no free man should be imprisoned, dispossessed, outlawed or exiled save by the judgment of his peers or by the law of the land. The judges of England developed the writ of habeas corpus largely to preserve these immunities from executive restraint.

The Supreme Court had been stirred to this unusual ruling, granting habeas rights to foreigners detained in wartime, because of its grave concerns that the prisoners, held, uniquely, as “enemy combatants” — in other words, neither as prisoners of war, protected by the Geneva Conventions, nor as criminal suspects, who would face a trial in federal courts — had never been adequately screened to determine whether they should be held, and were, literally, outside the law.

The ruling in Rasul shattered the secrecy necessary for Guantánamo’s existence as a lawless experiment in coercive interrogations to continue as it had for two and a half years, because lawyers began arriving at the prison, to draw up habeas petitions, and to hear — and then to transmit to the outside world — some of the prisoners’ horrendous stories of the abuse and torture to which they had been subjected.

In terms of the law, however, little else changed. The Bush administration ignored the thrust of the Supreme Court’s ruling — that the prisoners should be able to challenge their detention in federal courts — and instead introduced military review boards (the Combatant Status Review Tribunals) to review their cases. Drawing on classified evidence that was not disclosed to the prisoners, who were prevented from having legal representation, these were dreadfully one-sided affairs, designed primarily to rubberstamp the prisoners’ automatic designation, on capture, as “enemy combatants,” as Lt. Col. Stephen Abraham, a veteran of US intelligence who served on the tribunals, explained in a series of shocking and deeply damaging revelations in 2007.

Nevertheless, the administration behaved at the time as though the tribunals were legitimate, and, moreover, set about gutting Rasul by persuading Congress to pass two hideously flawed pieces of legislation — the Detainee Treatment Act of 2005, and the Military Commissions Act of 2006 (PDF) — which, amongst other provisions, purported to strip the prisoners of the habeas rights granted in Rasul. These laws never prevented lawyers from visiting their clients in Guantánamo (although the Pentagon did all it could to be obstructive), but they did freeze the habeas cases, leaving the men to stew in a legal limbo that became all the more intolerable as the years dragged by.

This, then, was the main reason why Boumediene was so important, as, four years on from its first ruling, the Supreme Court was obliged to stamp its authority by ruling that Congress had acted unconstitutionally when it passed the habeas-stripping provisions in the DTA and the MCA, and to rule that this time around the prisoners’ habeas rights were constitutionally guaranteed, meaning that they could not once more be tampered with by somnambulant or otherwise incapacitated politicians, bent into unconstitutional shape by a bullying Executive branch.

A stunning early victory, followed by Justice Department obstruction

Two weeks after Boumediene, one of the cases that had been frozen for years was resuscitated in the Court of Appeals, with dire results for the government. The case, Parhat v. Gates, was brought by Huzaifa Parhat, one of the Uighurs (Muslims from China’s oppressed Xinjiang province) who were finally freed from Guantánamo a month ago, and allowed to settle in Bermuda, and when the judges — two Conservatives and a Liberal, it should be noted — were free to act, they duly ruled that Parhat’s four-year old designation as an “enemy combatant” was “invalid.”

The court was unconvinced by the government’s claims that Parhat, who had fled Chinese oppression and had been living in a run-down settlement in Afghanistan’s Tora Bora mountains that was unconnected to either al-Qaeda or the Taliban, was part of a Uighur separatist group, and lambasted the quality of the government’s evidence — in which an attempt to make a case was conjured up by citing from three separate classified government reports — as being akin to a nonsense poem by Lewis Carroll, author of Alice’s Adventures in Wonderland. “Lewis Carroll notwithstanding,” the judges wrote, “the fact the government has ’said it thrice’ does not make an allegation true.”

Despite this early victory, the District Court’s attempt to swiftly implement habeas reviews, which was driven, in particular, by the Supreme Court’s admonition that, “While some delay in fashioning new procedures is unavoidable, the costs of delay can no longer be borne by those who are held in custody,” and its demand that “The detainees in these cases are entitled to a prompt habeas corpus hearing,” was stymied when the Justice Department almost immediately began dragging its heels.

Judge Thomas F. HoganOn July 2, 2008, the District Court’s Chief Judge Royce C. Lamberth announced that Senior Judge Thomas F. Hogan (photo, left) had been assigned “to coordinate and manage proceedings in all Guantánamo Bay cases so that these cases can be addressed as expeditiously as possible,” but when lawyers for the prisoners and DoJ representatives met Judge Hogan two weeks later, Assistant Attorney General Gregory Katsas “asked for two months to recruit lawyers and at least another two months to amend the existing returns [roughly 100 in total] and file 100 new ones.” He claimed, additionally, that the effort would strain the Justice Department’s resources “almost to the breaking point.”

As the Miami Herald explained in a pointed editorial, “the court was skeptical, to say the least. Judge Hogan said he could not fathom why evidence would suddenly have to be changed if it had been considered strong enough to warrant holding the detainees for periods of up to six years.” In Hogan’s own words, “If it wasn’t sufficient, then they shouldn’t have been picked up.”

In addition, as I explained in an article last July,

The government was no more fortunate when it came up against District Judge Richard Leon, who had decided not to transfer his cases — 12 in total, involving 35 prisoners — to Judge Hogan. “This is going to be moved as fast as possible,” Judge Leon told a similar gathering of Guantánamo lawyers and DoJ representatives. “These men have waited long enough to get a decision. The Supreme Court has spoken. They want this done. By God, we’ll get this done.”

Judge Leon also explained, as Reuters described it, that he “would not allow the Department of Defense or the CIA to delay the cases while reviewing classified information used to hold the prisoners as enemy combatants.” “Let there be no doubt that the Department of Defense and the CIA must be prepared to come to the courtroom and defend their decisions if we get any sense that there is an effort by those agencies to slow down the proceedings,” he said.

Judge Leon added that he wanted to decide the cases before the next President takes office in January 2009, and, although this was rather optimistic, the dogged determination with which he obeyed the Supreme Court’s order meant that he did indeed manage to review a number of cases before his self-imposed deadline, while other judges had not even gotten off the starting blocks.

To do this, however, he had to overcome more delaying tactics. As I reported last September, although judges had been appointed to review the 250 habeas cases in July, and the District Court “ordered the government to file factual returns at a rate of fifty per month, with the first fifty due by August 29, 2008,” the Justice Department waited until just before the deadline, and then, with only 22 returns filed, filed an “instant motion” begging for more time, pleading that it “simply did not appreciate the full extent of the challenges posed by the extensive need for classified information in these cases when [it] proposed to complete the first set of factual returns by the end of August,” and asking for an extension of 30 days.

Senior officials, including Daniel Dell’Orto, the Acting General Counsel for the Department of Defense, and Gen. Michael Hayden, the Director of the CIA, described “the substantial resources and efforts the government has devoted to preparing factual returns and the risk of harm to the national security involved in releasing classified information to persons outside the Executive Branch.”

Judge Hogan agreed to grant the government’s motion, noting that the cases were “not run of the mill; they involve significant amounts of sensitive, classified information concerning individuals whom the government alleges were part of or supporting the Taliban or al-Qaeda or other organizations against which the United States is engaged in armed conflict.” However, he added that he only agreed “reluctantly,” and was “disappointed in the government’s failure to meet the schedule the Court adopted based in part on the government’s assurances.” Citing statements in which the government claimed that it had “attempt[ed] to meet its goal” and that it would “continue to strive to meet the 50-per-month requirement,” Judge Hogan added, pointedly, that the Court was “not merely setting a ‘goal’ for which the government is to ‘strive,’” but was, rather, “ordering the government to produce at least fifty factual returns by month’s end, followed by at least another fifty more each month thereafter until production is complete.”

As I also explained in September,

In conclusion, while Judge Hogan recognized the government’s explanation that, since the Supreme Court ruling, its “[a]ttorneys and others from multiple agencies have worked long and hard, nights and weekends,” he reminded the executive that “the government has detained many of these petitioners for more than six years, and the time has come to provide them with the opportunity to fully test the legality of such detention in a prompt, meaningful manner.”

He added, with a hint of irritation about the administration’s sidelining of the judiciary, that the decision to grant the prisoners habeas rights was “no bolt out of the blue,” as the government contended, because the Supreme Court had ruled, four years before (in Rasul v. Bush), that they had this right.

Court victories for the Uighurs and five Bosnian Algerians

Judge Ricardo UrbinaIn October, when, after Parhat, the government conceded defeat in the case of the Uighurs and abandoned all pretense that any of the 17 men were “enemy combatants,” Judge Ricardo Urbina, reviewing their habeas cases in the District Court in Washington D.C., ordered all 17 men to be released to the care of communities in the capital, and in Tallahassee, Florida, who had prepared detailed plans for their resettlement, because it was unsafe for them to return to China, because no other country had been found that would accept them, and because their continued detention was unconstitutional.

“I think the moment has arrived for the court to shine the light of constitutionality on the reasons for detention,” Judge Urbina stated in his landmark decision, adding, “Because the Constitution prohibits indefinite detentions without cause, the continued detention is unlawful. Because separation-of-powers concerns do not trump the very principle upon which this nation was founded — the unalienable right to liberty — the court orders the government to release the [men] into the United States.”

Sadly for the Uighurs (and for the cause of justice, so shamefully disdained at Guantánamo), the government fought back, launching an immediate appeal to prevent a judge from actually ordering the release of men into the United States against the wishes of the Executive. Shamelessly resuscitating its own long-discredited claims that the Uighurs were “a danger to the public,” who had “admitted receiving weapons training at a military training camp” (even though it had failed to challenge the Uighurs’ cases before Judge Urbina), the government requested a stay on Judge Urbina’s ruling, and this was granted by a three-judge panel in the Court of Appeals, which included Judge A. Raymond Randolph, who, notoriously, voted for every piece of Guantánamo-related legislation that was subsequently overturned by the Supreme Court.

This was an enormous disappointment, of course, but while the Uighurs awaited a full ruling by the Court of Appeals, Judge Leon then hit his stride, launching the first full habeas reviews since Guantánamo opened six years and ten months previously by demolishing the cases against five out of six Algerians who had been kidnapped in Bosnia (where they had been living and working for many years) and flown to Guantánamo in January 2002.

Notoriously, the men had been seized in connection with an alleged plot to blow up the US embassy in Sarajevo, but the plot had never been mentioned during their detention at Guantánamo, and when the habeas reviews came round, five of the six men were, instead, accused of intending to travel to Afghanistan to take up arms against US forces.

In his ruling, on November 20, when he was called upon to determine whether the prisoners could continue to be held as “enemy combatants” because they were “part of or supporting Taliban or al-Qaeda forces, or associated forces that are engaged in hostilities against the US or its coalition partners” — or because they had “committed a belligerent act or ha[d] directly supported hostilities in aid of enemy armed forces” — Judge Leon authorized the habeas claims of five of the six men, explaining that the government had relied “exclusively on the information contained in a classified document from an unnamed source,” but stressing that this information — “the only evidence in the record directly supporting each detainee’s alleged knowledge of, or commitment to, this supposed plan” — was inadequate, because, although the government had “provided some information about the source’s credibility and reliability,” it had not “provided the Court with enough information to adequately evaluate the credibility and reliability of this source’s information.”

Three disturbing victories for the government

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

Judge Leon’s ruling in Bensayah’s case raised a new set of problems for lawyers, as did his ruling in two further cases on December 30, when he turned down the habeas petitions of two other prisoners — Muaz al-Alawi, a Yemeni, and Hisham Sliti, a Tunisian — on the basis that Sliti was associated with al-Qaeda, and al-Alawi “was part of or supporting Taliban or al-Qaeda forces,” because he “stayed at guest houses associated with the Taliban and al-Qaeda … received military training at two separate camps closely associated with al-Qaeda and the Taliban and supported Taliban fighting forces on two different fronts in the Taliban’s war against the Northern Alliance.”

As I explained in an article at the time, the problem with all these decisions was that the Supreme Court had not empowered the lower courts to question whether the very definition of an “enemy combatant” was sufficient to hold prisoners indefinitely without charge or trial if a plausible case was established that they had somehow been involved with al-Qaeda or the Taliban. The most fundamental difficulty was with rulings relating to involvement with the Taliban, as this harked back to the initial mistakes that were made when the Taliban (a government, however despised) was equated with al-Qaeda (a small terrorist group), and this was made clear in the case of Muaz al-Alawi.

Although al-Alawi was in Afghanistan before the 9/11 attacks, and was fighting with the Taliban against the Northern Alliance, Judge Leon ruled that he was an “enemy combatant” because he endorsed the government’s claim that, “rather than leave his Taliban unit in the aftermath of September 11, 2001,” al-Alawi “stayed with it until after the United States initiated Operation Enduring Freedom on October 7, 2001; fleeing to Khowst and then to Pakistan only after his unit was subjected to two-to-three US bombing runs.” As I put it at the time,

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

While this suggests to me that Muaz al-Alawi should, at best, have been held as a prisoner of war according to the Geneva Conventions (so that we would now be discussing whether it was appropriate to hold PoWs forever, when the specific conflict in which they were seized — toppling the Taliban regime in Afghanistan — was achieved seven years ago), the cases of Belkacem Bensayah and Hisham Sliti are rather more complicated. In Bensayah’s case, the problem is that his alleged involvement with al-Qaeda centered on his purported relationship with Abu Zubaydah, the supposed “high-value detainee,” who, as has been demonstrated in detail over the last few years, was not actually a member of al-Qaeda at all, and in Sliti’s case, Judge Leon’s ruling essentially involved guilt by association. As I explained in January,

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

Victory for Guantánamo’s youngest prisoner

As the Bush administration left office, these fundamental problems had not been addressed, leading me to conclude that, although Judge Leon was observing the law, it was both cruel and unjust, “as the three men in question continue to be held with less rights than those afforded to the most murderous individuals imprisoned on the US mainland, even though none of them is alleged to have harmed a single US citizen.”

Mohammed El-GharaniHowever, the tally of verdicts — 22 habeas appeals granted in 25 cases — indicated that the habeas reviews had triumphantly demonstrated the necessity of providing the Guantánamo prisoners with a means to challenge the basis of their detention, and these odds improved on January 14, when Judge Leon delivered his final ruling under the Bush administration, delivering a last resounding blow to Guantánamo’s credibility by granting the habeas petition of Mohammed El-Gharani, a Saudi resident (and Chadian national) who was just 14 years old when he was seized in a random raid on a mosque in Karachi, Pakistan, where he had traveled in the hope of furthering his education.

In spite of this, the government claimed that El-Gharani “arrived in Afghanistan at some unspecified time in 2001,” and was “part of or supporting Taliban or al-Qaeda forces,” for a variety of reasons, including claims that he received military training at an al-Qaeda-affiliated military training camp, fought against US and allied forces at the battle of Tora Bora, and was a member of an al-Qaeda cell based in London.

Noting that the government’s supposed evidence against El-Gharani consisted of statements made by two other prisoners at Guantánamo, and that, moreover, these statements were “either exclusively, or jointly, the only evidence offered by the Government to substantiate the majority of their allegations,” Judge Leon stated that “the credibility and reliability of the detainees being relied upon by the Government has either been directly called into question by Government personnel or has been characterized by Government personnel as undermined,” and dismissed all the claims, reserving particular criticism for the claim that El-Gharani had been a member of a London-based al-Qaeda cell. As I wrote in January,

This was, indeed, the most extraordinary allegation, as El-Gharani was just 11 years old at the time, and, as his lawyer, Clive Stafford Smith, explained in his book The Eight O’Clock Ferry to the Windward Side: Seeking Justice in Guantánamo Bay, “he must have been beamed over to the al-Qaeda meetings by the Starship Enterprise, since he never left Saudi Arabia by conventional means.”

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

This was a high point in the litigation on behalf of the Guantánamo prisoners, and as Barack Obama swept into office, there was a widespread anticipation that the obstruction of the Bush years would come to an end, and that Obama and his Attorney General Eric Holder would move swiftly to facilitate the swift passage of the remaining habeas cases.

As I demonstrate in Part Two and Part Three of this article, however, in its first six months in office, the Obama administration has behaved as though George W. Bush and Dick Cheney are still in the White House, pressing ahead with cases that are as worthless and unprincipled as those against the Uighurs, the Bosnian Algerians and Mohammed El-Gharani, indulging in the same obstruction that disappointed Judge Hogan last August, and refusing — ever — to tell the American public what it really needs to know: that the Bush administration’s “War on Terror” was such a disaster that, when the Guantánamo prisoners have had an opportunity to challenge the basis of their detention in a US court, 84 percent of the cases considered have led to a humiliating defeat for the government, whether that government was led by George W. Bush, or by Barack Obama.

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

As published exclusively on the website of the Future of Freedom Foundation. Cross-posted on The Public Record and uruknet.

For a sequence of articles dealing with the Guantánamo habeas cases, see: Guantánamo and the Supreme Court: the most important habeas corpus case in modern history and Guantánamo and the Supreme Court: What Happened? (both December 2007), The Supreme Court’s Guantánamo ruling: what does it mean? (June 2008), Guantánamo as Alice in Wonderland (Uighurs’ first court victory, June 2008), What’s Happening with the Guantánamo cases? (July 2008), Government Says Six Years Is Not Long Enough To Prepare Evidence (September 2008), From Guantánamo to the United States: The Story of the Wrongly Imprisoned Uighurs (October 2008), Guantánamo Uyghurs’ resettlement prospects skewered by Justice Department lies (October 2008), Guilt By Torture: Binyam Mohamed’s Transatlantic Quest for Justice (November 2008), After 7 Years, Judge Orders Release of Guantánamo Kidnap Victims (November 2008), Is Robert Gates Guilty of Perjury in Guantánamo Torture Case? (December 2008), A New Year Message to Barack Obama: Free the Guantánamo Uighurs (January 2009), The Top Ten Judges of 2008 (January 2009), No End in Sight for the “Enemy Combatants” of Guantánamo (January 2009), Judge Orders Release of Guantánamo’s Forgotten Child (January 2009), How Cooking For The Taliban Gets You Life In Guantánamo (January 2009), Lies, Damned Lies and Statistics (February 2009), Bad News And Good News For The Guantánamo Uighurs (February 2009), The Nobodies Formerly Known As Enemy Combatants (March 2009), Farce at Guantánamo, as cleared prisoner’s habeas petition is denied (April 2009), Obama’s First 100 Days: A Start On Guantánamo, But Not Enough (May 2009), Judge Condemns “Mosaic” Of Guantánamo Intelligence, And Unreliable Witnesses (May 2009), Pain At Guantánamo And Paralysis In Government (May 2009), Guantánamo: A Prison Built On Lies (May 2009), Free The Guantánamo Uighurs! (May 2009), 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 Convoy of Death: Will Obama Investigate The Afghan Massacre Of November 2001?

The logo of Physicians for Human Rights' "Afghan Mass Grave" websiteOn Friday, in the New York Times, James Risen resuscitated a story that some commentators — myself included — presumed had dropped off the radar, never to be heard of again. The story concerns the massacre of at least 1,500 prisoners in northern Afghanistan at the end of November 2001, after the fall of the city of Kunduz, the Taliban’s last stronghold, and is known, to those who recall it, as the “Convoy of Death,” because those who died suffocated in vast numbers, or died as a result of gunshot wounds, while being transported in container trucks to a prison at Sheberghan run by General Rashid Dostum, a leader of the US-backed Northern Alliance.

In my book The Guantánamo Files, I devoted a chapter to the “Convoy of Death,” which includes the following passages, reproduced here to establish a context for the massacre, based on descriptions from survivors, and from those who covered the story at the time, or who investigated it afterwards:

A map of northern AfghanistanOn Sunday, November 25, 2001, as the uprising began in Qala-i-Janghi [a fortress in the city of Mazar-e-Sharif, where several hundred prisoners — mainly foreign Taliban recruits — died during another massacre, discussed in Chapter Two of The Guantánamo Files, and also here], a far larger group of Taliban soldiers — at least 4,500, but possibly as many as 7,000 — made their way from Kunduz to Yerghanek, five miles west of the city, where they surrendered to General Dostum. What no one either knew or cared about, however, was that among the surrendering soldiers were hundreds of civilians who had been caught up in the chaos or who were fleeing the hard-core al-Qaeda and Taliban fighters making a last stand in Kunduz itself.

Very few of those who made their way to Yerghanek — 70 at most — were eventually transferred to Guantánamo. Of these, only a handful have spoken about their experiences, and none were in the first convoys that set off for Sheberghan on the Sunday. Overwhelmed by the sheer numbers of people flooding out of the city, Dostum was obliged to keep thousands of them marooned in the desert while they arranged additional transportation over the next few days. As a result, neither the men from Tipton [the so-called “Tipton Three — Ruhal Ahmed, Asif Iqbal and Shafiq Rasul — whose story was the focus of Michael Winterbottom’s film “The Road To Guantánamo”] nor the others who ended up in Guantánamo — including Abdul Rahman, a 25-year old shopkeeper from Kunduz, and Mohammed Saghir, a 49-year old woodcutter from Pakistan’s North West Frontier Province [whose stories, like those of the “Tipton Three,” are included in Chapter Three of The Guantánamo Files] — had any inkling of the grisly fate that awaited them.

While the vast crowds of fighters and civilians were disarmed, Dostum’s men recruited drivers to go to Qala Zeini, an old fort on the road between Mazar-e-Sharif and Sheberghan, where those transported from Yerghanek were transferred into containers for the last stage of the journey to Sheberghan. One of the drivers, who was in the fort when a convoy of prisoners arrived that evening, said that, as soon as the Northern Alliance soldiers began stripping them of their turbans and vests, tying their hands behind their backs and transferring them to the containers, some of the prisoners — those who were familiar with recent Afghan history — realized that Dostum was planning to kill them. Since 1997, when a brutal Uzbek general had first seen the viability of containers as cheap and convenient killing machines, murdering 1,250 Taliban soldiers by leaving them in containers in the summer sun, they had become a familiar weapon of Afghan warfare. When the Taliban took Mazar-e-Sharif in 1998, they disposed of their conquered enemies in the same fashion.

According to one of the drivers, a few hours after the convoy had set off from Qala Zeini, the prisoners started pounding on the sides of the containers, shouting, “We’re dying. Give us water! We are human, not animals.” He said that he and other drivers punctured holes in the walls and passed through bottles of water, but added that those who were caught doing this were punished. Even these gestures, however, were not enough to prevent large numbers of the prisoners from suffocating as the convoy crawled towards Sheberghan. When the first trucks pulled up at the prison and the doors of the containers were opened, most were disturbingly silent. One of the drivers recalled, “They opened the doors and the dead bodies spilled out like fish.” […]

Prisoners in SheberghanSeveral weeks passed before the first of the prisoners in Sheberghan [who were held in hideously overcrowded conditions] were transferred to American custody, but in the meantime, as news of the massacre began to seep out, human rights organizations again called for an investigation [after fruitless calls for an investigation of the Qala-i-Janghi massacre], focusing not only on the convoys, but also on claims that the dead and wounded had been buried in mass graves at Dasht-i-Leili, an expanse of waste land on the outskirts of Sheberghan. The graves were subjected to intense scrutiny over the next few months, as representatives of Physicians for Human Rights, and Bill Hegland, a pioneer in the field of “human rights archaeology,” investigated them. Both confirmed that a massacre had taken place, but, as with Qala-i-Janghi, no official inquiry took place. Newsweek reported that the UN confirmed that the findings were “sufficient to justify a fully-fledged criminal investigation,” but also noted that advisers warned against proceeding with the case, citing its “political sensitivity.”

It was left to film-maker Jamie Doran, in his documentary “Afghan Massacre: The Convoy of Death,” to present a series of explosive claims, which remain unanswered. Doran, who concluded that up to 3,000 men were killed in the convoys, sought out eye-witnesses to explain what had happened. While no one claimed that the Americans had any prior knowledge of the massacre, an Afghan soldier said that, when confronted with the corpses of several hundred men, “The Americans told the Sheberghan people to get them outside the city before they were filmed by satellite.” He also visited Dasht-i-Leili with a driver who said that he was accompanied by 30-40 American soldiers when he brought wounded men to the site, who were then shot and buried.

As James Risen explained in the New York Times article on Saturday, “American officials had been reluctant to pursue an investigation,” which was “sought by officials from the FBI, the State Department, the Red Cross and human rights groups,” because Dostum “was on the payroll of the CIA and his militia worked closely with United States Special Forces in 2001.” He also reported that these officials added that, in the years after the massacre, the US was “worried about undermining the American-supported government of President Hamid Karzai, in which General Dostum had served as a defense official,” and explained how attempts to investigate the allegations had been rebuffed by a senior FBI official, and, in particular, by senior officials in the Defense Department, including, apparently, deputy defense secretary Paul Wolfowitz, who, after “[s]omebody mentioned Dostum and the story about the containers and the possibility that this was a war crime,” said, “we are not going to be going after him for that.”

The most telling anecdote was provided by Dell Spry, formerly the FBI’s senior representative at Guantánamo, who “heard accounts of the deaths from agents he supervised there.” As Risen described it, “Separately, 10 or so prisoners brought from Afghanistan reported that they had been ‘stacked like cordwood’ in shipping containers and had to lick the perspiration off one another to survive,” and “told similar accounts of suffocations and shootings.” Spry said that he “did not believe the stories because he knew that al-Qaeda trained members to fabricate tales about mistreatment” (a bold statement that should not be taken at face value), but explained that he was “disappointed” when he was told not to investigate the allegations, “because I believed that, true or untrue, we had to be in front of this story, because someday it may turn out to be a problem.”

Whether or not that day has finally arrived is unclear. Risen reported that, recently, “State Department officials have quietly tried to thwart General Dostum’s reappointment as military chief of staff to the president [Karzai], according to several senior officials, and suggested that the administration might not be hostile to an inquiry.” He added, that “[t]he question of culpability for the prisoner deaths … has taken on new urgency since the general, an important ally of Mr. Karzai, was reinstated to his government post last month. He had been suspended last year and living in exile in Turkey after he was accused of threatening a political rival at gunpoint.”

Risen also noted that a senior State Department official said that Secretary of State Hillary Clinton and Richard C. Holbrooke, the special representative on Afghanistan and Pakistan, “had told Mr. Karzai of their objections to reinstating General Dostum,” and had “pressed his sponsors in Turkey to delay his return to Afghanistan while talks continue with Mr. Karzai over the general’s role.” When the official was asked about investigating the massacre, he said, “We believe that anyone suspected of war crimes should be thoroughly investigated.”

In the immediate aftermath of Risen’s story, the Associated Press reported that the Pentagon had ruled out renewed calls for an investigation. Marine Corps Col. David Lapan, a Pentagon spokesman, said, “There is no indication that US military forces were there, or involved, or had any knowledge of this. So there was not a full investigation conducted because there was no evidence that there was anything from a DoD perspective to investigate.”

However, at the weekend, in an interview with CNN’s Anderson Cooper in Ghana, Barack Obama indicated that he would support an investigation into the massacre. The exchange was as follows:

Anderson Cooper: And now it seems clear that the Bush Administration resisted efforts to pursue investigations of an Afghan warlord named General Dostum, who was on the CIA payroll. It’s now come out, there were hundreds of Taliban prisoners under his care who got killed. Some were suffocated in a steel container [actually, numerous containers], others were shot, possibly buried in mass graves. Would you support — would you call for — an investigation into possible war crimes in Afghanistan?

President Obama: Yes, the indications that this had not been properly investigated just recently was brought to my attention. So what I’ve asked my national security team to do is to collect the facts for me that are known. And we’ll probably make a decision in terms of how to approach it once we have all the facts gathered up.

Anderson Cooper: But you wouldn’t resist categorically an investigation?

President Obama: I think that, you know, there are responsibilities that all nations have even in war. And if it appears that our conduct in some way supported violations of the laws of war, then I think that, you know, we have to know about that.

This was encouraging, but as my research into the “Convoy of Death,” the Dasht-i-Leili massacre and conditions in Sheberghan prison indicated, the story does not end with the massacre. As mentioned above, no more than 70 of the many thousands of prisoners held at Sheberghan ended up in Guantánamo — with the others either released through negotiations with Pakistan or other countries, or, again, “disappeared” under dubious circumstances — but although the prison was run by General Dostum, serious questions remain unanswered about the involvement of US forces in the brutal treatment and possible disappearances of prisoners held at Sheberghan, beyond those who ended up being transferred to Guantánamo, as the following passage from The Guantánamo Files makes clear:

[In “Afghan Massacre,” Jamie Doran] spoke to other witnesses who said that Americans were responsible for murders and disappearances at the prison. An Alliance soldier told him that a US soldier murdered a Taliban prisoner in order to frighten the others into talking, and explained, “The Americans did whatever they wanted; we had no power to stop them. Everything was under the control of the American commander,” and an Alliance general said he saw US soldiers stabbing prisoners in the leg and cutting their tongues. “Sometimes, it looked as if they were doing it for pleasure. They would take a prisoner outside, beat him up and return him to the jail,” he said. “But sometimes, they were never returned and they disappeared.”

As I stated in The Guantánamo Files, “While these were grave allegations, the Americans’ conduct over the months and years to come would do nothing to dispel fears that torture, murder and disappearances had become acceptable tools in the ‘War on Terror,’” and I maintain that an investigation into US complicity in war crimes in Afghanistan should focus not just on the Dasht-i-Leili massacre (and the other massacre in Qala-i-Janghi), but also on US complicity in the torture and disappearances of those who survived the “Convoy of Death,” but were treated with appalling brutality in Sheberghan prison.

Note: For further information about the massacre, see Physicians for Human Rights’ Afghan Mass Grave site, and for other stories from survivors who were transferred to Guantánamo, see The Guantánamo Files: Website Extras (7) – From Sheberghan to Kandahar.

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

Will Eric Holder Be The Anti-Torture Hero?

Eric Holder and Barack ObamaIn an important article for Newsweek, “Independent’s Day,” Daniel Klaidman manages not only to present a convincingly intimate and sympathetic first-hand portrait of Eric Holder, the first African-American Attorney General in US history, demonstrating how “[h]is first instinct is to shy away from confrontation, to search for common ground,” and how he remains haunted by his role in the pardon of Marc Rich at the end of the Clinton administration, but also to explain how “[f]our knowledgeable sources” told him that Holder is “leaning toward appointing a prosecutor to investigate the Bush administration’s brutal interrogation practices, something the president has been reluctant to do.”

As Klaidman notes, “Such a decision would roil the country, would likely plunge Washington into a new round of partisan warfare, and could even imperil Obama’s domestic priorities, including health care and energy reform. Holder knows all this, and he has been wrestling with the question for months. ‘I hope that whatever decision I make would not have a negative impact on the president’s agenda,’ he says. ‘But that can’t be a part of my decision.’”

Although the independence of the Attorney General is supposed to be a given — which made the abominable betrayal of that independence by Alberto Gonzales so wounding — in reality, even the most principled Attorney General faces an unenviable task. “Alone among cabinet officers,” they are, as Klaidman describes it, “partisan appointees expected to rise above partisanship.”

Even so, there is an openness about the discussions of whether Eric Holder will indeed demonstrate his independence by appointing a prosecutor to investigate the Bush administration’s interrogation policies, which suggests that it may indeed happen. Certainly, after the publication of this article — which, I can only presume, had Holder’s tacit authorization, as a way of testing responses — it will be difficult for him to back-track without provoking an unprecedented storm of disapproval from the many critics of the Bush administration’s descent into lawless brutality.

I urge you to read the whole article, but the key passages dealing with Holder’s considerations of “whether to launch a probe into the Bush administration’s interrogation policies” are as follows:

Holder began to review those policies in April. As he pored over reports and listened to briefings, he became increasingly troubled. There were startling indications that some interrogators had gone far beyond what had been authorized in the legal opinions issued by the Justice Department [the Office of Legal Counsel’s “torture memos,” issued in August 2002 and in May 2005], which were themselves controversial. He told one intimate that what he saw “turned my stomach.”

It was soon clear to Holder that he might have to launch an investigation to determine whether crimes were committed under the Bush administration and prosecutions warranted. The obstacles were obvious. For a new administration to reach back and investigate its predecessor is rare, if not unprecedented. After having been deeply involved in the decision to authorize Ken Starr to investigate Bill Clinton’s affair with Monica Lewinsky, Holder well knew how politicized things could get. He worried about the impact on the CIA, whose operatives would be at the center of any probe. And he could clearly read the signals coming out of the White House. President Obama had already deflected the left wing of his party and human-rights organizations by saying, “We should be looking forward and not backwards” when it came to Bush-era abuses.

Still, Holder couldn’t shake what he had learned in reports about the treatment of prisoners at the CIA’s “black sites.” If the public knew the details, he and his aides figured, there would be a groundswell of support for an independent probe. He raised with his staff the possibility of appointing a prosecutor. According to three sources familiar with the process, they discussed several potential choices and the criteria for such a sensitive investigation. Holder was looking for someone with “gravitas and grit,” according to one of these sources, all of whom declined to be named. At one point, an aide joked that Holder might need to clone Patrick Fitzgerald, the hard-charging, independent-minded US attorney who had prosecuted Scooter Libby in the Plamegate affair. In the end, Holder asked for a list of 10 candidates, five from within the Justice Department and five from outside.

Klaidman described the negotiations over the April release of the torture memos as follows:

For weeks Holder had participated in a contentious internal debate over whether the Obama administration should release the Bush-era legal opinions that had authorized waterboarding and other harsh interrogation methods. He had argued to administration officials that “if you don’t release the memos, you’ll own the policy.” CIA Director Leon Panetta, a shrewd political operator, countered that full disclosure would damage the government’s ability to recruit spies and harm national security; he pushed to release only heavily redacted versions.

When President Obama decided to release the memos, “Holder and his team celebrated quietly,” according to Klaidman. What surprised them was that there was no “national outrage.” Klaidman suggested that the memos “had already received such public notoriety that the new details in them did not shock many people,” although it may be that, unfortunately, evidence of torture that was authorized at the highest levels of the US government is simply not a significant enough matter to a large number of Americans who seem to have forgotten that Richard Nixon was disgraced for what, essentially, was a less significant crime.

Nevertheless, both the President and his ferocious Chief of Staff, Rahm Emanuel, moved swiftly to head off dissent, with Emanuel appearing on This Week With George Stephanopoulos to declare that “there would be no prosecutions of CIA operatives who had acted in good faith with the guidance they were given,” and Obama noting, in a statement on the release of the memos, “This is a time for reflection, not retribution.”

Klaidman stresses that, throughout discussions of possible prosecutions regarding the torture memos, Obama “has been careful to say that the final decision is the attorney general’s to make,” which is as it should be, but it certainly made Holder’s independent decision-making harder when the White House was obviously anxious not to provide Republican enemies with an opportunity to attack. As Klaidman also notes, in the first few months after the inauguration, the relationship between the Justice Department and the White House was “marred by surprising tension and acrimony. A certain amount of friction is inherent in the relationship, even healthy. But in the Obama administration the bad blood between the camps has at times been striking.”

One particular source of tension was the Justice Department’s apparently unilateral decision, in February, to contest a lawsuit brought by the ACLU against Jeppesen Dataplan, Inc., a Boeing subsidiary known in human rights circles as the CIA’s “travel agent for torture,” because of its role in the Bush administration’s program of “extraordinary rendition” and torture. As Klaidman describes it, by “invoking the ‘state secrets’ privilege, the [DoJ] lawyer was reaffirming a position staked out by the Bush administration.” It was not only liberals and human rights groups who were appalled, as Klaidman explains:

It also infuriated Obama, who learned about it from the front page of the New York Times. “This is not the way I like to make decisions,” he icily told aides, according to two administration officials, who declined to be identified discussing the president’s private reactions. White House officials were livid and accused the Justice Department of sandbagging the president. Justice officials countered that they’d notified the White House counsel’s office about the position they had planned to take.

From my point of view — and from the point of view of many others who have campaigned for the comprehensive repudiation of all the Bush administration’s “War on Terror” policies — the ongoing Jeppesen debacle is not the only occasion when the Justice Department has shown itself unwilling or unable to effectively turn its back on the policies of its predecessors. The DoJ’s involvement in reviving the Military Commissions at Guantánamo (the “terror trials” introduced by former Vice President Dick Cheney in November 2001) is bitterly disappointing, as is its role in advocating a policy of “preventive detention” for some of those still held at Guantánamo, and its ongoing attempts to prevent foreign prisoners “rendered” to the US prison at Bagram airbase in Afghanistan — and held for up to seven years — from having the same rights as those held at Guantánamo.

Moreover, on a day-to-day basis, Holder’s integrity has repeatedly been called into question by his apparent refusal to look beyond the decisions about the prisoners that are being made by the administration’s inter-departmental Guantánamo Task Force, and to prevent DoJ lawyers from pursuing worthless habeas corpus cases in the District Courts. In recent months, these have brought nothing but shame and humiliation on the Department — as highlighted in the case of Alla Ali Bin Ali Ahmed, a Yemeni prisoner, and, in particular, Abdul Rahim al-Ginco, a Syrian whose case was pursued even though he had been tortured by al-Qaeda as a spy.

Sadly, the Attorney General has done nothing to assuage fears that, when it comes to the courts, he is in charge of a policy that, in effect, defends the most egregious errors made by the Bush administration while doing nothing to encourage the long-overdue release of prisoners who should never have been held in the first place, but on torture, at least, if Daniel Klaidman is to be believed, he may finally be on the verge of doing the right thing. As he explains:

After the prospect of torture investigations seemed to lose momentum in April, the attorney general and his aides turned to other pressing issues. They were preoccupied with Gitmo, developing a hugely complex new set of detention and prosecution policies, and putting out the daily fires that go along with running a 110,000-person department. The regular meetings Holder’s team had been having on the torture question died down. Some aides began to wonder whether the idea of appointing a prosecutor was off the table.

But in late June Holder asked an aide for a copy of the CIA inspector general’s thick classified report on interrogation abuses [the “Holy Grail” of torture reports, whose public release is being delayed by the CIA and the Defense Department]. He cleared his schedule and, over two days, holed up alone in his Justice Department office, immersed himself in what Dick Cheney once referred to as “the dark side.” He read the report twice, the first time as a lawyer, looking for evidence and instances of transgressions that might call for prosecution. The second time, he started to absorb what he was reading at a more emotional level. He was “shocked and saddened,” he told a friend, by what government servants were alleged to have done in America’s name. When he was done he stood at his window for a long time, staring at Constitution Avenue.

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

As published on the Huffington Post.

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

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

In the Guardian: Government clings on to discredited control orders

The Guantanamo FilesFor the Guardian’s Comment is free, “Testing control orders” is an article I wrote examining the latest developments in the British government’s increasingly beleaguered policy of detaining “terror suspects” without charge or trial on the basis of secret evidence, using draconian control orders which constitute a form of house arrest.

The article deals with the case of Mahmoud Abu Rideh, who story I covered in three articles a week last Friday (“Seven years of madness: the harrowing tale of Mahmoud Abu Rideh and Britain’s anti-terror laws,” “Would you be able to cope?: Letters by the children of control order detainee Mahmoud Abu Rideh,” and “Control order detainee Mahmoud Abu Rideh to be allowed to leave the UK”), and a British national, identified only as BM, who was subjected to what his lawyers described as “internal exile,” when, in May, he was forcibly removed from his home in London to a one-bedroom flat in Leicester.

In the High Court, a week ago, a judge ordered the government to return BM to London, not because he disagreed with the government’s assessment of the threat he posed, but because of a ruling by the Law Lords a month ago — upholding an earlier European court ruling — in which the Lords dealt a major blow to the government by defending the right of those on control orders not to be deprived of their liberty without being given an opportunity to challenge the supposed evidence against them.

Despite this ruling, I was obliged to report, after interviewing Gareth Peirce, the solicitor for many of the men on control orders, that the government has shown no willingness to abide by the Lords’ decision, unless forced to do so by a court, and I anticipate, therefore, that many more legal challenges will be forthcoming, as the government struggles to dig itself out of a lawless and unprincipled hole of its own making.

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

For other articles dealing with Belmarsh, control orders, deportation bail, deportations and extraditions, see Deals with dictators undermined by British request for return of five Guantánamo detainees (August 2007), Britain’s Guantánamo: the troubling tale of Tunisian Belmarsh detainee Hedi Boudhiba, extradited, cleared and abandoned in Spain (August 2007), Guantánamo as house arrest: Britain’s law lords capitulate on control orders (November 2007), The Guantánamo Britons and Spain’s dubious extradition request (December 2007), Britain’s Guantánamo: control orders renewed, as one suspect is freed (February 2008), Spanish drop “inhuman” extradition request for Guantánamo Britons (March 2008), UK government deports 60 Iraqi Kurds; no one notices (March 2008), Repatriation as Russian Roulette: Will the Two Algerians Freed from Guantánamo Be Treated Fairly? (July 2008), Abu Qatada: Law Lords and Government Endorse Torture (February 2009), Ex-Guantánamo prisoner refused entry into UK, held in deportation centre (February 2009), Home Secretary ignores Court decision, kidnaps bailed men and imprisons them in Belmarsh (February 2009), Britain’s insane secret terror evidence (March 2009), Torture taints all our lives (published in the Guardian’s Comment is free), Britain’s Guantánamo: Calling For An End To Secret Evidence, Five Stories From Britain’s Guantánamo: (1) Detainee Y, Five Stories From Britain’s Guantánamo: (2) Detainee BB, Five Stories From Britain’s Guantánamo: (3) Detainee U, Five Stories From Britain’s Guantánamo: (4) Hussain Al-Samamara, Five Stories From Britain’s Guantánamo: (5) Detainee Z, Britain’s Guantánamo: Fact or Fiction? and URGENT APPEAL on British terror laws: Get your MP to support Diane Abbott’s Early Day Motion on the use of secret evidence (all April 2009), and Taking liberties with our justice system and Death in Libya, betrayal in the West (both for the Guardian).

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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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