Archive for August, 2009

An Interview With Col. Lawrence Wilkerson (Part One)

Col. Lawrence WilkersonCol. Lawrence Wilkerson served in the US military for 31 years and was Chief of Staff to Secretary of State Colin Powell from August 2002 until January 2005, two months after Powell’s resignation, when he left the State Department. He is now the chairman of the New America Foundation’s US-Cuba 21st Century Policy Initiative. In March, in a guest column for the Washington Note, he wrote an article criticizing some crucial aspects of the Bush administration’s detention policies in the “War on Terror,” which, as I noted at the time, “are not as widely known as they should be, and which echo some of the important issues that I’ve tried to raise in my book The Guantánamo Files and my subsequent writing.”

Specifically, Col. Wilkerson wrote about “the utter incompetence of the battlefield vetting in Afghanistan during the early stages of the US operations there,” and how “several in the US leadership became aware of this lack of proper vetting very early on and, thus, of the reality that many of the detainees were innocent of any substantial wrongdoing, had little intelligence value, and should be immediately released.” He also poured scorn on “the ad hoc intelligence philosophy that was developed to justify keeping many of these people, called the mosaic philosophy,” whose shortcomings were recognized, in May, by a District Court judge, Gladys Kessler, when she granted the habeas corpus petition of a Yemeni prisoner, Alla Ali Bin Ali Ahmed.

I recently approached Col. Wilkerson to ask if he would discuss some of these issues in greater detail, and was delighted when he agreed to be interviewed, as he provided some startling new insights into the conduct of the “War on Terror’; specifically, in this first part, he explained how the State Department had wondered whether the little-reported Dasht-i-Leili container massacre had involved war crimes, how the Bush administration had considered using the Indian Ocean territory of Diego Garcia (leased from the UK) instead of Guantánamo, and how Col. Wilkerson himself believed that some prisoners had been held on Diego Garcia.

He also spoke about the administration’s obsession with building a “mosaic” of intelligence from the prisoners to understand the workings of al-Qaeda, and how, increasingly, this obsession shifted to a search for connections between al-Qaeda and Saddam Hussein, to justify the planned invasion of Iraq. What I found particularly interesting at this point in the interview was Col. Wilkerson’s insistence that the administration’s fear of another terrorist attack subsided more rapidly than has been previously acknowledged, as the drive for war in Iraq took over.

Donald RumsfeldCol. Wilkerson also spoke about the long-standing rivalry between the Pentagon and the CIA, and how defense secretary Donald Rumsfeld — albeit with the backing of Dick Cheney — infected the military with the kind of techniques authorized for use by the CIA on “high-value detainees,” and he also mentioned receiving reports from military personnel who refused to disobey the Geneva Conventions when it came to the humane treatment of prisoners, and from others who revealed the disturbing scale of the global detention policies implemented by both the Pentagon and the CIA.

Towards the end of this first half of the interview, he also explained how he believed that President Bush had no idea how dysfunctional his administration was, and reinforced his earlier claim that “no more than a dozen or two” of the prisoners held at Guantánamo had “any intelligence of significance” with a few pointed anecdotes about the administration’s overall failure to seize more than a handful of worthwhile prisoners.

Andy Worthington: I wanted to talk to you about the article you wrote about Guantánamo for the Washington Note in March, which was fascinating because you pointed out so many aspects of how the prison had come into being that had not been reported very well. I know that you received a certain amount of attention for it at the time, but I’m very interested in putting some of those comments that you made out there again, for some people who may have missed them the first time around, and also because I was hoping that maybe you could expand on a few of the themes that you wrote about.

In the first major point that you raised in your article, you talked about the incompetence of the battlefield vetting, and I know, from The Interrogators, a book by a former interrogator in Afghanistan, who wrote under the pseudonym Chris Mackey, that the orders came from Camp Doha in Kuwait, where the prisoner lists were being looked at, that every single Arab who came into US custody had to be sent to Guantánamo, that there was effectively no screening process whatsoever.

And, of course, the Article 5 competent tribunals didn’t take place either. (Held close to the time and place of capture, and designed to separate combatants from those caught up in the fog of war, these tribunals were established in the Geneva Conventions, and were used by the US military in every war from Vietnam onwards — until the US-led invasion of Afghanistan). So I was wondering how you’d heard about the incompetence, if you’d heard this from military people in the field who’d complained that the competent tribunals didn’t take place, whether you’d been getting feedback from Kandahar and Bagram about how there was no screening. I wonder if you could explain a little bit more about that.

Colin PowellLawrence Wilkerson: My initial source was immediate, and it was from the conversations that took place every morning without fail, sometimes at the weekend but always Monday through Friday, at 8.30, in the Deputy’s Conference Room in the State Department, with the Secretary [Colin Powell] and the Deputy [Richard Armitage] assembled and some 50-odd undersecretaries, assistant secretaries, office directors etc. We went around the table with everyone with a dog in the fight, which was most of the undersecretaries and the assistants getting his or her three or four minutes, and the Secretary would get his five minutes or 30 minutes, depending on what the issues were that day — and of course the Deputy would get his time too. And immediately upon our commencing operations in Afghanistan — and when I say commencing operations, I mean the moment we had the first Special Operating Force team with the Northern Alliance, and we were getting actual reporting back from US as well as CIA with Northern Alliance Forces (so, from US military sources, CIA sources, and initially from others in-country, let’s put it this way, to whom we had access) — what I got immediately was that, with regard to the Northern Alliance taking prisoners, it was absolute chaos.

We got signs that they weren’t taking prisoners; that is to say, they were shooting them. We got signs that when they did take prisoners they would negotiate with them, get them to reconcile themselves, so to speak, and let them go. I mean, it was chaos. Everything you can possibly imagine that could be happening on a battlefield in Afghanistan was happening.

Andy Worthington: So this is presumably after the fall of Kunduz and the fall of the North, when there was the terrible container massacre …

Lawrence Wilkerson: It grew particularly — how shall I say it? The volume [of information] increased remarkably right before, and then during and after the fall of Mazar-e-Sharif.

Andy Worthington: OK. And then most of these people didn’t end up in American hands. To my knowledge, only dozens of the thousands of prisoners who made it alive to General Dostum’s prison in Sheberghan, near Mazar-e-Sharif were taken to Guantánamo …

Lawrence Wilkerson: Right, and of course that was the subject of an intense period of discussion. If my memory serves, it was over several mornings with different questions from the Secretary and the Deputy Secretary of our war crimes envoy, Pierre Prosper — ambassador-at-large Pierre Prosper — and of other people like Beth Jones, who was assistant secretary for Eurasia. The appropriate functional and/or regional assistant secretaries would join in the discussion in the morning when the Secretary would ask questions, and I do remember several discussions about these prisoners who grew fairly visible there for a moment and then just seemed to fade from the scene as Dostum apparently had his people put them in containers. One story was that his people then ventilated the containers with AK47s in an attempt to give the prisoners some air, if you want to put a positive spin on it; if you want to put a negative spin on it, in an attempt to kill them. I mean, there are all kinds of stories associated with that, but that was sort of minor considering the chaos that, it seemed to me, existed on the battlefield of Afghanistan with regard to detainee management.

Then it faded for a bit and we didn’t get a lot until we began to hear that there were going to be some detainees that were going to be siphoned off, and were going to be brought back to either Diego Garcia or Guantánamo Bay, or some other place that would be essentially out of US jurisdiction, and Guantánamo quickly took the most emphasis, because we had dealings with Guantánamo before, during the ’93, ’94 exodus of Haitians, when we had problems with immigration across the Florida Strait, and we needed a place to keep people in this instance, so that we could determine, on a very careful, methodical basis, whether they were economic asylum seekers, whether they were political asylum seekers, or whether they were just people trying to get away from wherever they were, and to do the vetting process, and so forth, and to do it out of the confines of the very precisely delineated American judicial procedures.

So Guantánamo was a place that we knew from past, what I would call altruistic uses of it — to allow the process to work, to keep people in a place where they weren’t harassed, where they were fed and looked after, and had medical attention and so forth — but it became a place where we were trying to detain people from the so-called “War on Terror.”

And the reason for picking that place ultimately — and I still believe we had a few at Diego Garcia, and perhaps a few in other places too, but Guantánamo was the principal place — the motivation for picking it was familiarity, and the fact that we’d been through this before, with this sort of extra-territoriality, this being outside the US court system and so forth, and it had met the test of time, if you will, during those episodes, and so it very quickly became the area of choice, I think, and before we knew it at the State Department we were getting cables saying that people were coming back, detainees were coming back from Afghanistan and coming back to Guantánamo.

We knew that these people probably included people captured in Pakistan, people captured under what was a bounty system, essentially, people captured perhaps in other areas, but we knew that the central flow point was going to be Afghanistan, and we also knew that because we were already getting signals from Foreign Minister Straw, the Foreign Minster in Spain, and different countries, who were alerting us to the fact that they knew that we had some of their citizens in these contingents, and they were making their early pleas to get their citizens repatriated, to get them back, under the guise that, of course, they could do as well determining their guilt or innocence, putting them through their judicial systems and incarcerating them if necessary.

And I remember Jack Straw being particularly adamant about this, because he was one of the first to know, as you might expect, that British citizens were involved, and that went on, almost on a daily basis, to the point where it became exasperating for Powell and to a certain extent for Armitage, who would be there sometimes when Powell was traveling, and we’d ask these questions, with specific detainees in mind, with specific countries in mind, indeed often with specific foreign ministers in mind who had just called the Secretary that morning, and the Secretary or the Deputy would ask Pierre, “What’s the update?” and Pierre would, as happened almost every time, roll his eyes and report essentially the same thing: that the Secretary of Defense would not let them go.

Condoleezza RiceWe had made every plea, we had banged on doors, we had sent cables, the Secretary himself had called the National Security Advisor, Dr. Rice, the Secretary himself had brought it up with the President of the United States on one occasion, but the Secretary of Defense would not relent, these people were not going to be released. And that went on, and of course the Uighurs got into it, and we started a program to sort of shop the Uighurs around the world, and that went on and, as far as I remember, was never resolved in a way that the Secretary or Pierre was very happy with, and in fact we wound up placing a few Uighurs in Albania, that was the only country that would take them …

Andy Worthington: And that took place in May 2006.

Lawrence Wilkerson: Yes, that was much later, but to return to Afghanistan, the regular meetings were one of my sources of knowing how chaotic the vetting was, and how chaotic the imprisonment was, and how adamant Rumsfeld was — and I’ve come to find now that Donald would not have been adamant without the Vice President’s cover — about not letting any of these guys go, for any reason whatsoever. I also know that one of the motivations for this was not just his obstreperousness, or his arrogance, which was manifested most of the time, but it was the fact that they wanted all of these people questioned vigorously, and they wanted to put together a pattern, a map, a body of evidence, if you will, from all these people, that they thought was going to tell them more and more about al-Qaeda, and increasingly more and more about the connection between al-Qaeda and Baghdad.

I even think that probably, in the summer of 2002, well before Powell gave his presentation at the UN in February 2003, their priority had shifted, as their expectation of another attack went down, and that happened, I think, rather rapidly. I’ve just stumbled on this. I thought before that it had persisted all the way through 2002, but I’m convinced now, from talking to hundreds of people, literally, that that’s not the case, that their fear of another attack subsided rather rapidly after their attention turned to Iraq, and after Tommy Franks, in late November as I recall, was directed to begin planning for Iraq and to take his focus off Afghanistan.

So those discussions that went on — the cables that came in, the Secretary and the Deputy Secretary, all the cognizant people in the Department of State, Pierre, and their discussions every morning, sidebar discussions in the corridors on the seventh floor, indeed, discussions with me in my office, once I became Chief of Staff in August 2002 — that was one source. Another source was military personnel whom I’d known in the past or who people I’d known in the past introduced to me as good sources, who reported to me from, essentially, all over the world, not just Afghanistan and Iraq, but places like Indonesia, places like Djibouti, and so forth, about what was going on with regard to what the Defense Department was calling “kinetic activity”; that is to say, Delta Force and the like, spread all over the world looking for al-Qaeda, and what was happening in the various countries and cities where they were doing this.

Other information came from other places like conventional formations in Afghanistan and Iraq, where I had people I knew in the military who were reporting back to me, usually by email, and also from the other side of the house, if you will, from the diplomats and the people in the embassies and the consulates and so forth in some of these countries, some of whom were much dismayed that they had, as one ambassador put it, 6’ 4” white males with 19-inch biceps walking around in their capital cities, and did anybody really think that they were fooling anyone,  and when was somebody going to tell him why they were in his capital city? You know, these were forces that Rumsfeld and [Douglas] Feith [the undersecretary of defense for policy] spread across the world to go after everything from Abu Sayyaf to Jemaah Islamiyah to al-Qaeda, and our ambassadors knew nothing about it initially, but these people were very visible, and they were discovered, and calls began to come back from cities around the world to the Secretary of State and to others about who were these people and what were they doing.

And they were also detaining people, because I believe that Rumsfeld’s first goal there was — he didn’t trust the CIA, he didn’t trust their interrogation, he didn’t trust what they were doing — so he wanted his own activity, he wanted his own action. That’s one of the reasons that the procedures that the President, for example, had confined to a very select group of “high-value detainees” and to just the CIA as the instrument of interrogation — that’s how that migrated over to the Defense Department, essentially through Rumsfeld’s distrust of the CIA, and, frankly, bureaucratic jealousy, and a grab for power. And so Rumsfeld wanted his people doing the same thing, and Jim Haynes, his lawyer in the Defense Department, was perfectly willing to go over to David Addington, and [John] Yoo and [Jay] Bybee and the rest, and craft his own legal views for justifying what the Defense Department then struck out to do.

But much of the reporting that was coming back to me was coming back not just from this massive chaos in the battlefield areas, which Abu Ghraib, of course, with regard to Iraq, came to characterize most vividly, but also from these other detentions that were going on around the world, because, as I said, Rumsfeld’s first priority was to capture, not to kill. If they got in extremis, they were authorized to kill, as Seymour Hersh has stumbled onto, but their real goal was to capture them and to provide more intelligence for this “mosaic” that Rumsfeld and crew were building up, so that they could understand more about al-Qaeda, and more about terrorism in general, and go after these people.

So that was another source. Still another source was people who were involved in detainee management. These were contractors — CIA and military — who were a little bit uneasy about what they were being asked to do, and by whom they were being asked to do it, and without, in some cases, any paperwork to cover their butts, so to speak, and they were sending cables back, and they were talking to people, and people were talking to me, about the disquiet that was going on amongst people who were either seeing some of these things happen, or in some cases were actually involved in it, in some way, and weren’t happy about what they were doing.

I’ve said before that one of the things that, with regard to the armed forces, has made me proud of a lot of those young guys out there — and young gals out there — was that a lot of these people apparently refused to do this stuff, and their leaders, whether they were captains or lieutenants, or whether they were majors, lieutenant colonels, colonels, brigadier generals or whatever, were not eager to order them to, because they knew, from past experience, that when that happens, then you get whistleblowers, you get people who write their Congressmen, and call their Congressmen, and take pictures and so forth, so I was elated to hear that a lot of these young officers — in particular, young NCOs — were refusing to do this stuff, but nonetheless they were talking about what others were doing.

Andy Worthington: And, just to confirm, you’re talking about detention and interrogations in Afghanistan, Iraq and many other places, I mean, was this kind of across the board?

Lawrence Wilkerson: Yes, and it wasn’t just interrogation, as you indicated, it was some of the things that happened when they were detaining prisoners for the initial time on the battlefield, it was some of the other things that happened other than just officially sitting down in a room and being interrogated, the whole detention system and the management thereof.

Andy Worthington: Well, I’m very glad to hear you talk about that, and about the numbers of people refusing to take part in abusive behavior, because I realize that it was such a shock to so many serving military personnel that they were expecting the Geneva Conventions, and that was all stripped away, and suddenly they’re in a chaotic place, where, it seems, anything goes, and presumably, for so many of these people, the only rule seemed to be some kind of sadism, so I’m really pleased that you mentioned how much feedback was coming from people who were appalled by it and who refused to take part in it.

Lawrence Wilkerson: There was one young lieutenant, who happened to be a Pakistani American, who was fluent in Urdu and one of the Afghan languages, and who also spoke enough Arabic to get by in Iraq. He gave me some really electrifying vignettes, about leading his platoon the first year that he was over there, and some of the things that he had to do that made him feel like he was risking his life in order to, as he put it, obey the law.

Andy Worthington: You’ve made it very clear how much professional jealousy encouraged Donald Rumsfeld to drive the “CIA-ization” of the military’s way of treating prisoners, which is horrific really …

Lawrence Wilkerson: It wasn’t a surprise to me, because I spent 31 years in the DoD, and I have to say that the entity we probably disliked the most during the majority of my years was the Central Intelligence Agency. I mean, we would sit out in the Pacific, when I was working out there, and our station chiefs then, we would mock them, you know: big fat dudes, making 120, 130 thousand a year, and all they did was sit there and read the newspapers in their capital cities and report it back to Langley as finished intelligence. I mean, we didn’t have much use for the CIA and that’s generally the way the rank and file in the Pentagon feels — and in the military in general. I remember in the first Gulf War, when Norman Schwarzkopf and Colin Powell were on the phone at Colin Powell’s house — a secure phone; late in the evening for Powell, and early in the morning for Schwarzkopf — and Norm was threatening to come to Washington and shoot the DCI.

Goerge W. BushSo I mean, there’s always been that institutional jealousy, hatred even between the Pentagon and the CIA, so I didn’t have much difficulty understanding that that was a part of what had happened, and you add Rumsfeld’s arrogance and his power play to it, and you’ve got a real, powerfully dysfunctional system there, in terms of — as Powell put it in his debrief to President Bush, January 13, 2005, if I recall, “Mr. President, you have no idea.” Bush had just said, “Well, you’ve lived through Weinberger and Shultz, you know that there’s always infighting,” and Powell’s response was, “Mr. President, you have no idea. This is an order of magnitude worse.” Frankly, I think that was the first time anybody had ever alerted the President to the fact that his wasn’t a normal administration.

Andy Worthington: And that’s important to raise, because so much of what went on focused on Cheney, obviously, and I was going to ask you a little bit about Cheney — and Addington, because I was particularly struck by a passage in Jane Mayer’s book, The Dark Side. Mayer was writing about when John Bellinger, legal counsel to National Security Advisor Condoleezza Rice, had discovered, from intelligence reports, that a significant number of innocent men were being held at Guantánamo, but when he tried to approach the President about it (via Alberto Gonzales, who was then White House Counsel), they were met by Addington instead, who dismissed Bellinger’s concerns by declaring, “No, there will be no review. The President has determined that they are ALL enemy combatants. We are not going to revisit it!” After Bellinger fired back, pointing out that this was “a violation of basic notions of American fairness,” Addington replied, “We are not second-guessing the President’s decision. These are ‘enemy combatants.’ Please use that phrase. They’ve all been through a screening process. There’s nothing to talk about.”

Lawrence Wilkerson: I received one particular assessment from a person for whom I had no reason whatsoever to believe that he would give me an inaccurate portrayal — and one reason was, that was his character, but another reason was that he had no dog in the fight — and his estimate of the number of people — I think it was 741 or 742 that we suddenly had on a piece of paper somewhere — of any significance was as follows. He said, “I’ll tell you right now that 700 of them haven’t done a damn thing except get in the way of somebody capturing them.”

Andy Worthington: Right, and those are the kinds of figures that we’re down to. I mean, back in March, you stated that no more than a couple of dozen had any serious intelligence value …

Lawrence Wilkerson: The other thing — I laughed at this when I first heard it, but now I realize it was probably closer to the truth than anything the administration said — when Bush announced in September 2006, with some degree of trepidation, that he’d transferred these 14 to Guantánamo out of the secret prisons. Now I realize that they made that transfer principally so they could get some hardcore terrorists to Guantánamo.

In the second part of this interview, Col. Wilkerson discusses, amongst other things, Barack Obama’s response to the legacy of the Bush administration, and the madness of Dick Cheney.

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 Foreign Policy Journal. Both parts of the interview were cross-posted as a single article on The Public Record.

Arrogance And Torture: A History of Guantánamo

If you’re looking for an introduction to the extra-legal horrors of Guantánamo, and the casual, almost mundane manner in which randomly-seized prisoners, who were not even screened according to the Geneva Conventions, found themselves the victims of a torture policy designed to make them reveal their mostly non-existent secrets, then you may like this article, which I wrote for the Future of Freedom Foundation, for whom I write a weekly column.

I.

The mesh-wire cages, suitable only for animals, are empty now and overgrown, but they will stand forever as a symbol of the Bush administration’s inept, brutal and destructive “War on Terror” policies, implemented in the wake of the terrorist attacks on the US mainland on September 11, 2001.

Prisoners on arrival at Guantanamo, January 11, 2002This is Camp X-Ray, the first of the prison camps at the US naval base in Guantánamo Bay, Cuba, and it was here that the grimly iconic photos were taken, on January 11, 2002, showing the first prisoners arriving at the prison from Afghanistan. The images of these shackled and dehumanized figures, clad in orange, kneeling on gravel in painful stress positions, and with their eyes and ears blocked, have come to define the “War on Terror” as much as the notorious photos of abuse in Abu Ghraib prison in Iraq.

At the time, the administration claimed that the prisoners were “the worst of the worst.” On January 22, defense secretary Donald Rumsfeld declared, “These people are committed terrorists. We are keeping them off the street and out of the airlines and out of nuclear power plants and out of ports across this country and across other countries.” On a visit to Guantánamo on January 27, he claimed that the prisoners were “among the most dangerous, best-trained, vicious killers on the face of the earth.”

In the weeks that followed, however, this hardcore rhetoric slipped, when Brig. Gen. Mike Lehnert of the Marines, who was the prison’s first commander, admitted, “A large number claim to be Taliban, a smaller number we have been able to confirm as al-Qaeda, and a rather large number in the middle we have not been able to determine their status. Many of the detainees are not forthcoming. Many have been interviewed as many as four times, each time providing a different name and different information.”

Although no one knew it at the time, this frank admission neatly encapsulated all that was wrong with Guantánamo. Following a Military Order issued in November 2001 and an Executive Order issued in February 2002 (PDF), the administration had labeled all the prisoners as “unlawful enemy combatants,” who could be held without charge or trial, and had, moreover, deprived them of the protections of the Geneva Conventions, but in fact little was known about any of them.

In Afghanistan, where most of the prisoners had been held and processed before their long flight to Guantánamo, in brutal, makeshift prisons inside the US bases at Kandahar airport and Bagram airbase, the US military had been ordered to dispense with the Geneva Conventions’ Article 5 competent tribunals. The hearings, which involved calling witnesses close to the time and place of capture, were a traditional manner of separating soldiers from civilians caught up in the fog of war. During the first Gulf War, for example, the military held 1,196 competent tribunals, and in nearly three-quarters of them the prisoners were found to be innocent and were subsequently released.

Moreover, as Chris Mackey (the pseudonym of a former interrogator at Kandahar and Bagram) explained in his book The Interrogators, this lack of screening was compounded by instructions from the Pentagon, which stipulated that all “non-Afghan Taliban/foreign fighters” were to be sent to Guantánamo. As Mackey noted, “Strictly speaking, that meant every Arab we encountered was in for a long-term stay and an eventual trip to Cuba.” The same, it transpired, happened to the majority of the 220 or so Afghans who were also bound like beasts and flown to Guantánamo.

It took years for the truth to emerge: that there had been no screening process for the “worst of the worst,” and that, although perhaps 40 of the 779 prisoners who have been held at Guantánamo were involved with al-Qaeda, the other 95 percent were either completely innocent men — humanitarian aid workers, missionaries, economic migrants, drifters or others fleeing religious persecution — or foot soldiers for the Taliban, recruited to fight an inter-Muslim civil war that began long before 9/11.

Some of these men may well have held anti-American sentiments — based, it must be said, on America’s foreign policy, rather then a hatred of Americans and American values — but few, if any had any meaningful knowledge of al-Qaeda, the 9/11 attacks, or any other terrorist plots (until a handful of significant prisoners were transferred into Guantánamo from secret CIA prisons in September 2006), and no one knew the whereabouts of Osama bin Laden, despite being asked ad nauseam. For terror cells to be successful, secrecy is the key. As few people as possible must know the plans, and in this al-Qaeda had been particularly successful.

For the rest of the prisoners — the Afghans — the truth was equally bleak. Dozens were unwilling Taliban recruits, forced to serve on pain of death or punishment, and numerous others were betrayed by rivals, who took advantage of the gullibility of the US forces. Deprived of useful intelligence in Afghanistan for at least a decade, and unwilling to risk US troops in a full-scale invasion, the administration arranged for Special Forces to topple the Taliban by forging alliances with various warlords, whom they recruited to fight their battles for them, even though they had no knowledge of the complicated tribal nature of Afghan society, and were blind to the fact that the corruption of many of their new-found allies had prompted the rise of the Taliban in the first place.

Towering over all these failures was the money: Toyota Landcruisers stuffed full of dollar bills, used to secure the warlords’ dubious services, and bounty payments of $5,000 a head for “al-Qaeda and Taliban suspects.” These offers were printed on leaflets prepared by the military’s PsyOps teams and airdropped into villages, where, as the leaflets proudly proclaimed, “You can receive millions of dollars for helping the anti-Taliban force catch al-Qaeda and Taliban murderers. This is enough money to take care of your family, your village, your tribe for the rest of your life — pay for livestock and doctors and school books and housing for all your people.” In Pakistan alone, President Pervez Musharraf bragged, in his 2006 autobiography, that in return for handing over 369 terror suspects (including many transferred to Guantánamo), “We have earned bounty payments totaling millions of dollars.”

The notorious PsyOps leaflet, offering substantial rewards for al-Qaeda and Taliban suspects

The notorious PsyOps leaflet, offering substantial rewards for “al-Qaeda and Taliban suspects”

II.

Long before any of this came to light, however, the administration compounded its initial failure to screen the prisoners by embarking on a cruel and misconceived attempt to unlock their mostly non-existent secrets. The end result resembled nothing less than the activities of the witch-hunters of the seventeenth century.

The administration began with a presumption of guilt, and any protestation of innocence was regarded as the sign of a terrorist trained to resist interrogation by al-Qaeda. Those who confessed — however implausible their confessions — were rewarded, while those who remained silent — either because they were genuine terrorists or, at the other end of the spectrum, because they had no intelligence to provide, and were unable or unwilling to dissemble — were subjected to an array of “enhanced interrogation techniques,” which, under any criteria other than those embraced by the administration, would have been regarded as torture.

The authorization for the use of “enhanced interrogation techniques,” beyond those approved in the Army Field Manual (in which physical violence is prohibited and the emphasis is on psychological maneuvers with a proven track record), was signaled in August 2002. In an extraordinary document, known as the “torture memo” after it was leaked in 2004, a number of government lawyers in the Justice Department’s Office of Legal Counsel, which interprets the law as it applies to the Executive, attempted to redefine torture.

David AddingtonUnder the terms of the UN Convention Against Torture, to which the US is a signatory, torture is defined as “any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person.” However, the lawyers — John Yoo and Jay S. Bybee, under the guidance of David Addington, General Counsel to Vice President Dick Cheney — decided that, for interrogation to count as torture, the pain endured “must be equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death.”

The definition of torture was adjusted partly so that the most senior figures in the administration — including President Bush — could keep a straight face when they declared that America “does not torture,” but it was also revised so that the use of techniques previously regarded as torture, such as waterboarding (an ancient torture technique that involves controlled drowning), could be used on an a number of “high-value detainees” held in secret CIA prisons.

The general population was not subjected to the worst of these techniques, but in the fall of 2002, in response to requests from senior officials at Guantánamo for the approval of harsher techniques to “break” what were regarded as particularly uncooperative prisoners, Donald Rumsfeld approved a number of previously prohibited techniques, mainly drawn from the US military’s SERE program (Survival, Evasion, Resistance, Escape), which trains the US military to resist interrogation if captured by enemy forces.

These included the use of prolonged solitary confinement and sleep deprivation, 20-hour interrogations, forced nudity, forced grooming (the shaving of hair and beards), the use of extreme heat and cold, sexual and religious humiliation, and the use of painful stress positions. Regarded individually, the majority of these techniques would fit the UN definition of torture, but when they were applied together, as they frequently were, there was no doubt that the administration had crossed a line that should not have been crossed, and that Guantánamo had become an experimental prison, focused on interrogation (which itself contravenes the Geneva Conventions), in which the use of torture had become commonplace.

III.

It was inevitable, of course, that America’s leaders would react to the attacks of September 11, 2001 with a show of colossal force. The world’s preeminent military power had not been attacked on its own territory since Pearl Harbor in 1941, and was hardly likely to sit back after such a devastating and symbolic terrorist attack. However, those in charge could hardly have been less qualified to react to the attacks in an appropriate manner.

George W. Bush, Donald Rumsfeld and Dick CheneyBehind the presidential façade of George W. Bush, most of the key decisions about America’s response to the attacks were made by Vice President Dick Cheney, with support from defense secretary Donald Rumsfeld, and crucial advice from key lawyers including David Addington and John Yoo. All believed that presidential power had been unjustly eroded since the scandal that forced the resignation of Richard Nixon (under whom both Cheney and Rumsfeld had served). Addington and Cheney had become friends in the Reagan administration, as they tried to shield the President from the fallout from the Iran-Contra scandal, and Yoo, a latecomer, had swallowed their rhetoric whole.

For these men, it was, therefore, predictable that the response to the 9/11 attacks would be a wide-ranging “War on Terror” — rather than a targeted pursuit of a small number of criminals — which granted the President the right to indulge his powers as Commander-in-Chief without any outside interference, but it also played more generally into their long-cherished desire for unfettered executive power.

First they secured Congressional approval for the Authorization of Use of Military Force, the founding document of the “war,” which authorized the President “to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons.”

The rest followed more stealthily under the cover of these sweeping wartime powers: the warrantless wiretapping of US citizens; the Military Order giving the President the right to seize and detain “enemy combatants” indefinitely, or to prosecute them in special trials by Military Commission; a memo of January 2002 dismissing the provisions of the Geneva Conventions as “quaint” and “obsolete”; the Executive Order removing the prisoners’ protections under the Geneva Conventions; the “torture memo” of August 2002; and the approval for reverse engineering SERE techniques for use on prisoners at Guantánamo.

Significantly, not everyone working behind the scenes in the “War on Terror” was happy with these developments. Amongst the most critical were several of the agencies working on interrogations at Guantánamo, who were appalled. The FBI, the Naval Criminal Investigative Service (NCIS) and even the Defense Department’s own Criminal Investigation Task Force (CITF) all refused to take part in coercive interrogations, and Alberto J. Mora, the Navy’s General Counsel, even took his complaints to the Pentagon. In January 2003, he threatened to reveal publicly the details of the program unless the “enhanced interrogation techniques” were withdrawn.

Rumsfeld agreed, but immediately set up a working group to approve the techniques in a mildly amended form, although Mora was not informed. When the Abu Ghraib scandal broke in April 2004, Mora realized the extent to which he had been sidelined. He told the journalist Jane Mayer, “Everything we had warned against in Guantánamo had happened — but in a different setting.”

IV.

While these struggles remained largely hidden from view, however, other challenges were more difficult to dismiss. Legal challenges to the legitimacy of Guantánamo began almost as soon as the prison opened in January 2002, although it took nearly two and half years for the cases to reach the Supreme Court, allowing the administration a shockingly large window of opportunity to indulge in its extra-legal abuses.

In many ways, the Guantánamo project’s viability was shattered on June 29, 2004, when the Supreme Court ruled, in Rasul v. Bush, that the prisoners had habeas corpus rights; in other words, the right to ask a judge why they were being held, under the 800-year old “Great Writ,” a cornerstone of American justice, inherited from the British, which prevents arbitrary detention. Crucially, the Rasul verdict allowed lawyers to visit the prison (to begin filing habeas petitions on behalf of the prisoners) and finally pierced the veil of secrecy that had been necessary for systemic abuse to take place.

In other respects, however, the administration refused to be swayed by Rasul. Instead of allowing the prisoners access to the US courts, as the Supreme Court intended, the authorities introduced administrative reviews — the Combatant Status Review Tribunals (CSRTs) — to ascertain whether, on capture, the prisoners had been correctly designated as “enemy combatants.” These were a pale mockery of the Article 5 competent tribunals, not just because they took place two and a half years too late, and half a world away from the time and place of capture, but in particular because of reasons identified in June 2007 by Lt. Col. Stephen Abraham, a veteran of US intelligence, who had worked on the tribunals.

In an affidavit for one of the Guantánamo cases, Lt. Col. Abraham declared that the entire process relied on intelligence “of a generalized nature — often outdated, often ‘generic,’ rarely specifically relating to the individual subjects of the CSRTs or to the circumstances related to those individuals’ status,” and was designed, essentially, to rubber-stamp the prisoners’ prior designation as “enemy combatants” without any meaningful review.

Lt. Col. Abraham was undoubtedly correct, as the steady flow of released prisoners’ stories has demonstrated in the years since the CSRTs were convened. Appallingly, however, America’s politicians have never stood up to the administration’s crimes. In response to Rasul, Congress obliged the administration by passing the Detainee Treatment Act (DTA), which cast the prisoners’ habeas appeals into a legal limbo, and in 2006, after the Supreme Court made another ground-breaking decision, ruling in Hamdan v. Rumsfeld (PDF) that the Military Commission trial system was illegal, they compounded the error by passing the Military Commissions Act (MCA), which revived the Commissions, further stripped the prisoners of their habeas rights, and, for good measure, reinforced the President’s right to seize and detain anyone he regarded as an “enemy combatant” (PDF).

These failings were only finally addressed in June 2008, when, in a third significant decision regarding Guantánamo (Boumediene v. Bush), the Supreme Court ruled that the prisoners had constitutional habeas corpus rights. Six and a half years after Guantánamo opened, this ruling finally meant that the prisoners’ cases would be heard in a US court. This was a belated triumph for justice (although both the Bush and Obama administrations have since done all in their power to delay the progress of the habeas cases), but it was not enough to undo the damage that had already been done.

For most of the prisoners released from Guantánamo, it was politics rather than justice that secured their freedom. The lawyers’ struggles, and the interventions of the judiciary, were enormously significant, but when it came down to it, public pressure in the prisoners’ home countries, and diplomatic pressure exerted by their home governments, played a more significant role. The real failure lay with Congress, which capitulated when confronted by an Executive branch that regarded its influence with disdain, and, it must be said, with the American public, who were prepared to let their President and Vice President seize dictatorial powers, undermine the US Constitution, shred the Geneva Conventions, spurn habeas corpus, tear up the Bill of Rights, discard the Army Field Manual, create a system of show trials for terrorists out of thin air, spy on American citizens with impunity, and pour scorn on the UN Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.

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.

A version of this article was written for Freedom Daily, the monthly magazine of the Future of Freedom Foundation, and was published in its April 2009 issue. On August 13, it was made available on the FFF website.

Guantánamo And The Courts (Part Three): Obama’s Continuing Shame

The Guantanamo FilesIn the first part of this three-part series examining the Guantánamo prisoners’ attempts to secure their release via the US courts, Andy Worthington, author of The Guantánamo Files, looked at how, after the Supreme Court’s ruling, in June 2008, that the prisoners had constitutionally guaranteed habeas corpus rights, the Bush administration lost 23 of the 26 cases reviewed in the District Courts. The second part examined the Obama administration’s record, in its first four months in office, revealing how the new government behaved as though Bush was still in power, obstructing the defense teams, angering judges, and humiliating itself in court, and this final part brings the story up to date, explaining how, incredibly, the Obama administration has learned nothing from its humiliation, and continues to present worthless and unwinnable cases to District Court judges, perpetuating the injustice at Guantánamo, to the dismay of those who thought that it would thoroughly repudiate the discredited policies of the Bush administration.

A “mosaic” of intelligence is not evidence

Judge Gladys KesslerAfter unprecedented criticism by judges, and another defeat, in the case of the contentious Yemeni prisoner Yasim Basardah, the next humiliation for the government came on May 11, when Judge Gladys Kessler granted the habeas petition of another Yemeni, Alla Ali Bin Ali Ahmed, who has always stated that he traveled to Pakistan as a student. Ali Ahmed was seized, in March 2002, at a guest house close to a university in Faisalabad, Pakistan, with approximately 16 other men who also ended up at Guantánamo, essentially because the house appears to have been tangentially connected to Abu Zubaydah, the supposed “high-value detainee” who, according to the FBI and his lawyers, was no more than the gatekeeper for an independent training camp (run by the CIA’s most notorious “ghost prisoner,” Ibn al-Shaykh al-Libi) that had little to do with al-Qaeda.

In a ruling that set off reverberations through other habeas cases, Judge Kessler dismissed allegations by four separate witnesses, including one, “whose credibility has been cast into serious doubt — and rejected” by Judge Leon in the case of Mohammed El-Gharani, because he “has made accusations against a number of detainees” at Guantánamo, and because “Many of those accusations have been called into question by the government,” and another, diagnosed by military medical staff as having a “psychosis,” whose mental state was only discovered “through the diligent work of his counsel, and not as a result of the government’s obligation to provide him exculpatory information.”

Moreover, Judge Kessler was dismissive of the government’s overall approach to the evidence, based on a “mosaic” theory of intelligence-gathering, stating that, although it “may well be true” that “use of the mosaic approach is a common and well-established mode of analysis in the intelligence community … at this point in this long, drawn-out litigation the Court’s obligation is to make findings of fact and conclusions of law” to consider the government’s case. After pointing out that the mosaic theory “is only as persuasive as the tiles which compose it and the glue which binds them together,” she then proceeded, as I explained at the time, “to highlight a catalog of deficiencies in the tiles and the glue,” which, essentially, involved demonstrating how the government had only succeeded in creating an unconvincing construct composed primarily of unsupported inferences, multiple levels of hearsay, and guilt by association, and had no hesitation in granting Ali Ahmed’s habeas petition.

Ali Ahmed’s case was notable not only because of Judge Kessler’s comprehensive demolition of unreliable witnesses and dubious “mosaics” of intelligence, but also because she suggested that her ruling had ramifications for the cases of some, or all of the other men seized with Ali Ahmed, when she stated, “It is likely, based on evidence in the record, that at least a majority of the [redacted] guests were indeed students, living at a guest house that was located close to a university.”

Suspending habeas corpus in the case of the last Tajik at Guantánamo

In contrast, the next case, on June 22, was both more straightforward and more damaging for the government’s credibility, although it was preceded by a stealthy operation designed, for once, to prevent criticism, when, on June 3, the government told another judge, Reggie Walton, that they would “no longer defend” the detention of Umar Abdulayev, a Tajik refugee seized by opportunistic Pakistani intelligence agents. What made this case unusual — beyond the fact that Abdulayev is desperate not to be returned to his home country, after receiving threats from Tajik intelligence agents at Guantánamo — was that the decision not to proceed with the case was taken by the administration’s Detention Policy Task Force (the inter-departmental review board which, as I explained in Part Two of this article, is effectively competing with the courts to assess the prisoners’ cases, but without any outside scrutiny), who then asked the Justice Department to ask the court to indefinitely stay his habeas appeal.

The decision was greeted with dismay by Abdulayev’s lawyers, who complained that the Task Force’s decision was “not a determination that [Abdulayev’s] detention was or was not lawful,” and that it therefore “does nothing towards removing the stigma of being held in Guantánamo or being accused of being a terrorist by the United States.” Their conclusion, as expressed to me by Andrew Moss, was that the writ of habeas corpus, granted by the Supreme Court, is “effectively suspended.”

Prosecuting a Syrian who was tortured by al-Qaeda

This story did not surface until July, but in the meantime, the other case mentioned above, that of Abdul Rahim al-Ginco, a troubled young Syrian who had traveled to Afghanistan after falling out with his father, provided a devastating blow to what remained of the government’s credibility.

Al-Ginco (also identified as Abdul Rahim Janko) has never denied that he spent five days at an al-Qaeda-affiliated guest house in Kabul, and 18 days in January and February 2000 at al-Farouq, a military training camp, but although, in theory, this meant that he was eligible to be held as an “enemy combatant,” the kind of mitigating factors identified by Judge Huvelle in the case of Yasim Basardah — regarding the demonstrable severance of prisoners’ links with al-Qaeda and/or the Taliban — were even more pronounced in his case, because, at the end of his 18 days at al-Farouq, he was imprisoned by al-Qaeda and tortured until he admitted that he was a US and Israeli spy, and was then imprisoned for 18 months by the Taliban, until he was “liberated” by US forces in early 2002.

Judge Richard LeonAl-Ginco’s long ordeal at Guantánamo was based on the discovery of a videotape containing his “confession,” after being tortured by al-Qaeda, but in a sure sign of incompetence that went all the way to the highest levels of the US government, it was regarded instead as a martyrdom tape, proving that al-Ginco was a terrorist. Over seven years later, it was left to Judge Leon to highlight the absurdity of the government’s position, and he did so without mincing his words. As I explained in an article at the time:

Judge Leon … mocked the government for “taking a position that defies common sense,” by asking the court to address whether a relationship with al-Qaeda or the Taliban “can be sufficiently vitiated by the passage of time, intervening events, or both.” Concluding that “The answer, of course, is yes,” he then dismantled the government’s case point by point, stating, “To say the least, five days at a guest house in Kabul combined with eighteen days at a training camp does not add up to a longstanding bond of brotherhood,” adding that al-Ginco’s torture “evinces a total evisceration of whatever relationship might have existed!” and that his abandonment in the Taliban prison “is even more definitive proof that any preexisting relationship had been utterly destroyed,” and concluding that an analysis of all these factors “overwhelmingly leads this Court to conclude that the relationship that existed in 2000 — such as it was — no longer existed whatsoever in 2002 when [he] was taken into custody.”

Mohamed Jawad: The Afghan teenager who was tortured

Again, inexplicably, the government refused to take on board the lesson delivered by Judge Leon, insisting on pursuing the case of Mohamed Jawad, an Afghan who was just a teenager when he was seized after an attack on two US soldiers in Kabul in December 2002. What made this case particularly astonishing was that Jawad had already been put forward for a trial by Military Commission at Guantánamo (the “terror trials” introduced by former Vice President Dick Cheney in November 2001, and revived by Congress in 2006, after the Supreme Court ruled them illegal), and a military judge had determined on two separate occasions, last October and November, that the basis of the government’s case — a confession made in Afghan custody, shortly after his capture, and another made hours later in US custody — were inadmissible because they had been obtained through treatment that constituted torture.

Although Jawad’s military defense attorney, Lt. Col. David Frakt, had demonstrated time and again that the government had no case and had persistently abused Jawad, and although his former prosecutor, Lt. Col. Darrel Vandeveld (who resigned last September because of his disillusionment with the inability of the Commission system to deliver justice in Jawad’s case) described the exclusion of Jawad’s confessions as proof that the case was “eviscerated,” and followed up, in January, with a detailed statement in support of Jawad’s habeas petition that should have brought the proceedings to an abrupt halt, the government plunged on regardless, eventually facing a sustained and withering put-down by Judge Ellen Segal Huvelle.

Judge Ellen Segal HuvelleIn a 30-minute hearing in July, Judge Huvelle repeatedly stressed that the government did not have a single reliable witness, and that the case was “lousy,” “in trouble,” “unbelievable,” and “riddled with holes,” and she responded to the government’s concession that it would not rely on any subsequent statement made by Jawad in Guantánamo, but that it had discovered a new witness and wished to present new evidence, by repeatedly expressing fears that the government was planning to “come up with some other alternative to going forward with the habeas and pull this rug from under the Court at the last minute.”

As I explained at the time, “the very fact that a judge in a US District Court can, genuinely, fear that the government will attempt to usurp her authority spells out, succinctly, the dangers of the place in which the Obama administration finds itself,” and although Judge Huvelle proceeded to grant Jawad’s habeas petition, and it is likely that he will soon be returned to Afghanistan, the Justice Department continues to defy reality by maintaining that it may be able to bring a new case against Jawad at the last minute, which only serves to confirm Judge Huvelle’s fears that the courts are up against a government that has no respect for the judiciary.

One Kuwaiti down, three to go

While all this was taking place, Judge Colleen Kollar-Kotelly finally broke the obstruction of the Justice Department in the case of one of the Kuwaitis to the extent that she could make a ruling, and duly granted the habeas petition of Khalid al-Mutairi, a charity worker caught up in the chaos of the US-led invasion of Afghanistan in October 2001. I discussed the feebleness of the government’s supposed evidence against al-Mutairi in an article two weeks ago, before the judge’s ruling had been made available (PDF), but her opinions only confirm what I already diagnosed: that “there is nothing in the record beyond speculation” that al-Mutairi had been involved in any way with al-Qaeda.

Judge Colleen Kollar-KotellyMoreover, expanding on passages that were redacted in the allegations on which I based my article, Judge Kollar-Kotelly chastised the government for relying, for three years, on a “typographical error in an intelligence report,” in which al-Mutairi’s prisoner number had accidentally been assigned to a report about another prisoner who had manned an anti-aircraft weapon in Afghanistan, and also discussed passages in the government’s evidence that revealed the “agitated” state that al-Mutairi was in when, implausibly, he admitted to fighting with Osama bin Laden in Afghanistan in 1991, and, on another occasion, when he claimed that “he was Osama bin Laden.”

A bitter conclusion

Khalid al-Mutairi’s victory means that, of the 33 cases in which judges have now delivered a ruling, 28 — or 85 percent of the total — have ended in defeat for the government. If extended to the whole of Guantánamo’s remaining population, this figure suggests that 174 of the 205 prisoners whose habeas cases have not been decided would have their petitions granted, leaving 36 prisoners (31 plus the five who lost their habeas petitions) to be dealt with by the government.

Noticeably, these figures correspond, more or less, with analyzes of the numbers of prisoners with any meaningful connection to terrorist activities that have been cited over the years by intelligence officials, and, most recently, by Col. Lawrence Wilkerson, the former Chief of Staff to former Secretary of State Colin Powell, but it is unlikely that the government will be impressed by these figures, as senior officials still seem hell-bent on humiliating themselves in the courts at every opportunity.

As these cases have unfolded, I have often found myself wondering why the government has allowed this to happen — beyond its fascination with its own unaccountable review as the primary key to closing Guantánamo — and have been tempted to conclude that senior officials are aware that allowing the courts to make the decisions prevents them from having to honestly confront Republican critics — and critics in their own party — who could stir up trouble if the government, rather than the courts, presented them with the true scale of the Bush administration’s incompetence.

Others, however, have a different take. Lt. Col. Frakt suggested in an email that the problem, essentially, was that the Obama administration had decided “to maintain the status quo while they tried to understand the Guantánamo cases,” but had failed to realize the extent to which, because “the liberal-minded, justice-oriented career attorneys who were at the DoJ in 2000 had left in droves during the Bush years,” the lawyers handling the habeas cases “were all holdovers from the Bush administration, which had packed the DoJ with ardent right-wingers.”

However, David Cynamon, one of the attorneys for the four remaining Kuwaitis in Guantánamo (including Khalid al-Mutairi), was less charitable. In an email exchange, he explained to me after Judge Kollar-Kotelly’s ruling that his “biggest surprise, and disappointment” is that the Obama administration “has followed the Bush ‘scorched earth defense’ strategy to the letter: no negotiation or even discussion with habeas counsel re: the merits of any particular case, fight every request for discovery, delay every case for as long as possible, and, then, when the case can no longer be put off, throw every piece of mud that you can find at the wall, whether or not the mud makes any sense or has any connection with any other mud, and hope that the Court will substitute mud for evidence.” He added, bitterly, “And the coup de grace: if the Court rules against you, just ignore the decision. The Executive decides when and under what conditions to release a detainee, and the judiciary can go screw itself.”

These are harsh words, but they appear to be true. Of the 28 men cleared by the courts, 19 are still at Guantánamo, and although, as I pointed out in an article two weeks ago, 15 of these men cannot be repatriated safely, and the process for repatriating Mohamed Jawad seems to be underway (notwithstanding any last-minute stupidity on the part of the DoJ), there seems to be no good reason why the others — Khalid al-Mutairi, Yasim Basardah and Ayman Batarfi (the Yemeni doctor whose case collapsed in March, as discussed in Part Two) — cannot be repatriated tomorrow, especially, as, in Batarfi’s case, it is now four months since Judge Emmet G. Sullivan compared his detention to the shame of the internment of Japanese-Americans in World War II and demanded his immediate release.

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.

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), Guantánamo And The Courts (Part One): Exposing The Bush Administration’s Lies (July 2009), Obama’s Failure To Deliver Justice To The Last Tajik In Guantánamo (July 2009), Obama And The Deadline For Closing Guantánamo: It’s Worse Than You Think (July 2009), How Judge Huvelle Humiliated The Government In Guantánamo Case (Mohamed Jawad, July 2009), As Judge Orders Release Of Tortured Guantánamo Prisoner, Government Refuses To Concede Defeat (Mohamed Jawad, July 2009), Guantánamo As Hotel California: You Can Check Out Any Time You Like, But You Can Never Leave (August 2009), Judge Orders Release From Guantánamo Of Kuwaiti Charity Worker (August 2009). Also see: Justice extends to Bagram, Guantánamo’s Dark Mirror (April 2009), Judge Rules That Afghan “Rendered” To Bagram In 2002 Has No Rights (July 2009), Bagram Isn’t The New Guantánamo, It’s The Old Guantánamo (August 2009).

Bagram Isn’t The New Guantánamo, It’s The Old Guantánamo

The Guantanamo FilesBack in September 2005, when I first began researching Guantánamo for my book The Guantánamo Files, the prison was still shrouded in mystery, even though attorneys had been visiting prisoners for nearly a year, following the Supreme Court’s ruling, in June 2004, that they had habeas corpus rights. Researchers at the Washington Post and at Cageprisoners, a human rights organization in the UK, had compiled tentative lists of who was being held, but, although these efforts were commendable, much of it was little more than groping in the dark — a broken jigsaw puzzle based on media reports and interviews with released prisoners — because the Bush administration refused to provide details of the names and nationalities of those it was holding.

In April 2006 — four years and three months after Guantánamo opened — the government finally conceded defeat, after the Associated Press took the Pentagon to court, and won. That month, the first ever list of prisoners (PDF) — containing the names and nationalities of the 558 prisoners who had been subjected to the administration’s Combatant Status Review Tribunals (one-sided reviews, designed to rubberstamp their prior designation as “enemy combatants”) — was released, and was followed in May by a list of the 759 prisoners held up to that point (including the 201 who had been released before the tribunals began), which included names, nationalities, and, where known, dates of birth and places of birth (PDF).

The government also released 8,000 pages of tribunal transcripts and allegations against the prisoners, which pierced the veil of secrecy still further, allowing outside observers, as well as lawyers, the opportunity to examine whether the government’s claims that the prison was full of terrorists were true, and to conclude that, actually, the prison was largely populated by innocent men or low-level Taliban foot soldiers, recruited to fight an inter-Muslim civil war that began long before the 9/11 attacks, and had nothing to do with al-Qaeda or international terrorism.

These records revealed that an overwhelming majority of the men had not been seized by US forces on the battlefield, but had been sold to them by their Afghan or Pakistani allies, at a time when bounty payments were widespread, and — perhaps most shockingly — the transcripts also revealed that a vast amount of the government’s supposed evidence consisted not of verifiable facts, but of “confessions” made by other prisoners — or by the prisoners themselves — under unknown circumstances. A great deal of demonstrably unreliable information was attributed to unidentified figures in al-Qaeda — in general, the “high-value detainees,” including Abu Zubaydah and Khalid Sheikh Mohammed, who were being held in secret CIA prisons where the use of torture had been sanctioned by the Justice Department’s Office of Legal Counsel, in its notorious “torture memos.”

Other information came from unidentified “sources” within Guantánamo, and in the last year, as judges have finally been able to examine these allegations in the District Courts charged with hearing the prisoners’ habeas corpus cases, many of these sources have been revealed as deeply untrustworthy: talkative informants regarded with suspicion by many of those working behind the scenes in the military and other agencies; mentally ill prisoners; and others whose accounts have not stood up to outside scrutiny, and have been revealed as part of a supposed “mosaic” of intelligence that, as one judge, Gladys Kessler, declared in May, “is only as persuasive as the tiles which compose it and the glue which binds them together.” As I explained at the time, Judge Kessler “then proceeded to highlight a catalog of deficiencies in the tiles and the glue,” dismissing the “mosaic” as being “composed of second- or third-hand hearsay, guilt by association and unsupportable suppositions.”

In addition, although few of the prisoners were willing to talk to a panel of the military officers about how they had been abused in US custody, enough accounts emerged for lawyers and observers (who also drew on official reports about how torture techniques, used in US military schools to train US military personnel to resist enemy interrogation, had been reverse engineered for use at Guantánamo) to build up their own, more convincing “mosaic” of intelligence, demonstrating that abuse — and, in some cases, torture — was also widespread throughout Guantánamo, raising fears that even confessions that appeared legitimate were fatally tainted because they had been extracted using coercion.

It would be difficult to underestimate how important the release of these documents was to those engaged in a seemingly endless struggle to secure justice for those held without charge or trial, who had, in general, been rounded up indiscriminately, and had never been adequately screened to determine whether they constituted a threat to the US or its allies. However, over three years on from the release of these lists — and eight months into the Obama administration — history is repeating itself at the US prison in Bagram airbase in Afghanistan. The difference, however, is that at Bagram the clock has stopped before any painful details of incompetence have been released, leaving lawyers and other observers still groping in the dark.

Fighting for the rights of the Bagram prisoners

On April 23, the ACLU filed a Freedom of Information Act (FOIA) request with the Department of Defense, the Justice Department, the State Department and the CIA, asking them to make public “records pertaining to the number of people currently detained at Bagram, their names, citizenship, place of capture and length of detention, as well as records pertaining to the process afforded those prisoners to challenge their detention and designation as ‘enemy combatants.’”

On May 15, the CIA responded (PDF) by stating that it “can neither confirm nor deny the existence or nonexistence of records responsive to your request,” because “The fact of the existence or nonexistence of requested records is currently and properly classified,” and on July 28, the DoD also responded (PDF), stating, tantalizingly, that, although the National Detainee Reporting Center had provided the DoD’s Office of Freedom of Information with “a 12-page classified report, current as of June 22, 2009,” which contained the prisoners’ “names, citizenship, capture date, days detained, capture location and circumstances of capture,” the report was “exempt for release” because it was “properly classified in the interest of national security.”

In response, Jonathan Hafetz, a staff attorney with the ACLU National Security Project, stated, “The Obama administration should make good on its own pledge of greater transparency and release these basic facts about who we are detaining and under what conditions,” and Melissa Goodman, also a staff attorney with the ACLU National Security Project, added, “There are serious concerns that Bagram is another Guantánamo — except with many more prisoners, less due process, no access to lawyers or courts and reportedly worse conditions. As long as the Bagram prison is shrouded in secrecy, there is no way to know the truth or begin to address the problems that exist there.”

A cell in Bagram in 2002In this, the ACLU’s lawyers were undoubtedly correct. According to the best available estimates, at least 600 prisoners are held at Bagram, but unlike Guantánamo, no lawyer has ever set foot in the US military’s flagship Afghan prison, even though some of the prisoners held there were seized in other countries and “rendered” to Bagram, where they have been held for up to seven years. The prison was particularly notorious in its early days — especially in 2002, when at least two prisoners died at the hands of US forces — but according to a survey conducted by the BBC in June this year, former prisoners, held between 2002 and 2008, stated that they were beaten, deprived of sleep and threatened with dogs, and provided no indication that conditions had improved from the beginning to the end of the six-year period.

Why foreign prisoners in Bagram deserve habeas corpus rights

To understand why Bagram needs independent scrutiny, it is necessary to distinguish between the prison’s two distinct functions, each of which fails to conform to internationally acceptable standards of detention. The first concerns the foreign prisoners (perhaps as many as 30) seized in other countries and “rendered” to Bagram. In March, when enterprising lawyers at the International Justice Network finally managed to bring a habeas corpus petition on behalf of four of these men in front of a US judge (having established that they were held at Bagram through discussions with family members based on letters delivered by the International Committee of the Red Cross), the judge in question, John D. Bates, recognized the unacceptable discrepancy between the Guantánamo prisoners and those “rendered” to Bagram.

Judge John D. BatesAs I explained in an article at the time, “Judge Bates ruled that the habeas rights granted by the Supreme Court to the Guantánamo prisoners last June in Boumediene v. Bush also extended to the foreign prisoners in Bagram, because, as he explained succinctly, ‘the detainees themselves as well as the rationale for detention are essentially the same.’” He added that, although Bagram is “located in an active theater of war,” and that this may pose some “practical obstacles” to a court review of their cases, these obstacles “are not as great” as the government suggested, are “not insurmountable,” and are, moreover, “largely of the Executive’s choosing,” because the prisoners were specifically transported to Bagram from other locations.

This was good news for three of the men — Redha al-Najar, a Tunisian seized in Karachi, Pakistan, Amin al-Bakri, a Yemeni gemstone dealer seized in Bangkok, Thailand, and Fadi al-Maqaleh, a Yemeni — because, as I also explained at the time, “only an administrative accident — or some as yet unknown decision that involved keeping a handful of foreign prisoners in Bagram, instead of sending them all to Guantánamo — prevented them from joining the 779 men in the offshore prison in Cuba.” However, at the time of writing, it is uncertain whether they will have their day in court, as the government has appealed Judge Bates’ ruling.

Why the Afghans in Bagram must be held according to the Geneva Conventions

In the same ruling in March, Judge Bates reserved judgment on the case of the fourth man, Haji Wazir, an Afghan seized in 2002 in the United Arab Emirates, but ruled in June that habeas rights did not extend to him (or, by extension, to all the other Afghans held at Bagram), primarily because he agreed with the government’s claim that to do so would cause “friction” with the Afghan government, because of ongoing negotiations regarding the transfer of Afghan prisoners to the custody of their own government.

As a result, the government presumably feels entitled to continue to hold the majority of the prisoners in Bagram — who, from what we can gather, are Afghans seized in Afghanistan — beyond any kind of outside scrutiny. However, while this may be acceptable in the sense that Bagram is a prison in an active war zone, it is, to my mind, only acceptable if the government also demonstrates that it is holding prisoners in accordance with the Geneva Conventions. As I explained in an article in June:

In one of his first acts as President, Obama signed a number of Executive Orders, in which he promised to close Guantánamo within a year and to ban torture, and established that the questioning of prisoners by any US government agency must follow the interrogation guidelines laid down in the Army Field Manual, which guarantees humane treatment under the Geneva Conventions. The Order relating to interrogations also specifically revoked President Bush’s Executive Order 13440 of July 20, 2007, which “reaffirm[ed]” his “determination,” on February 7, 2002, that “members of al-Qaeda, the Taliban, and associated forces are unlawful enemy combatants who are not entitled to the protections that the Third Geneva Convention provides to prisoners of war.”

As a result of Obama’s stated reforms, it was my belief that:

the President would call an immediate halt to what I can only describe as the “Rumsfeldization” of the US military, in which, following the directives of former defense secretary Donald Rumsfeld (and echoing what was happening with the intelligence agencies, where the FBI was sidelined by the CIA), the detention of prisoners was no longer a matter of holding them humanely until the end of hostilities, but became, instead, an ongoing process of interrogation, dedicated to securing “actionable intelligence,” which, of course, degenerated into the use of torture when the presumed “actionable intelligence” was not forthcoming. […]

It may be that the policies at Bagram changed overnight after Obama issued his executive orders in January, but the suspicion … is that, as far as the administration is concerned, certain key innovations in the “War on Terror” — in particular, holding prisoners for their intelligence value, rather than to keep them “off the battlefield” — has become the post-9/11 norm, as a kind of unilateral reworking of the Geneva Conventions.

From what I have been able to gather about the workings of Bagram, I have no reason to conclude that the prison is now being run according to the Geneva Conventions, with prisoners kept “off the battlefield” until the end of hostilities (whenever that might be). Instead, as I reported in March, Judge Bates explained that the military’s justification for holding the prisoners at Bagram involves a review process similar to the one that was used at Guantánamo, albeit one that is both “inadequate” and “more error-prone,” and concluded that the US military’s control over Bagram “is not appreciably different than at Guantánamo.” Creating such inadequate tribunals, it should be noted, is quite an achievement, as Guantánamo’s tribunals were soundly condemned by former officials who worked on them, including, in particular, Lt. Col. Stephen Abraham, who issued a series of explosive statements in 2007.

In addition, Judge Bates’ précis of the review process at Bagram, which, as he also explained, “falls well short of what the Supreme Court found inadequate at Guantánamo,” was, in fact, genuinely disturbing. He quoted from a government declaration which stated that the Unlawful Enemy Combatant Review Board (UECRB) at Bagram does not even allow the prisoners to have a “personal representative” from the military in place of a lawyer (as at Guantánamo), and that “Bagram detainees represent themselves,” and added, with a palpable sense of incredulity:

Detainees cannot even speak for themselves; they are only permitted to submit a written statement. But in submitting that statement, detainees do not know what evidence the United States relies upon to justify an “enemy combatant” designation — so they lack a meaningful opportunity to rebut that evidence. [The government’s] far-reaching and ever-changing definition of enemy combatant, coupled with the uncertain evidentiary standards, further undercut the reliability of the UECRB review. And, unlike the CSRT process, Bagram detainees receive no review beyond the UECRB itself.

A challenging conclusion, Mr. President

BagramIn conclusion, then, it should be apparent that the government cannot maintain the Bush administration’s status quo at Bagram, as it is failing on two fronts to hold prisoners according to the internationally acceptable standards of detention that existed before the Bush administration brushed aside the Geneva Conventions for prisoners of war, and held criminal suspects beyond the law.

If the Obama administration will not put the foreign prisoners “rendered” to Bagram on trial, then the President needs to allow them to challenge the basis of their detention before an impartial judge; and if he reinstates the Geneva Conventions for prisoners of war, and, with a stroke of the pen, consigns his predecessor’s horrendous novelties to history, then he needs to do more than just pay lip service to the reinstatement of the Conventions, and needs to prove, beyond a shadow of a doubt, that he is not perpetuating a Rumsfeld-lite form of detention, in which humane treatment is secondary to the quest for “actionable intelligence,” because, once the rules are discarded, our recent history shows us that what follows, inexorably, is torture and abuse.

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. Cross-posted on Common Dreams.

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), Guantánamo And The Courts (Part One): Exposing The Bush Administration’s Lies (July 2009), Obama’s Failure To Deliver Justice To The Last Tajik In Guantánamo (July 2009), Obama And The Deadline For Closing Guantánamo: It’s Worse Than You Think (July 2009), How Judge Huvelle Humiliated The Government In Guantánamo Case (Mohamed Jawad, July 2009), As Judge Orders Release Of Tortured Guantánamo Prisoner, Government Refuses To Concede Defeat (Mohamed Jawad, July 2009), Guantánamo As Hotel California: You Can Check Out Any Time You Like, But You Can Never Leave (August 2009), Judge Orders Release From Guantánamo Of Kuwaiti Charity Worker (August 2009). Also see: Justice extends to Bagram, Guantánamo’s Dark Mirror (April 2009), Judge Rules That Afghan “Rendered” To Bagram In 2002 Has No Rights (July 2009).

Guantánamo In Belgium: The Questionable Fate Of Two Tunisians

The US flag at GuantanamoIn the Obama administration’s campaign to persuade other countries to rehouse prisoners from Guantánamo who have been cleared for release, but who cannot be repatriated because of fears that they will be tortured if returned to their home countries, progress has been slow.

Why European nations are reluctant to accept cleared Guantánamo prisoners

Despite an apparent accord being reached on June 15, when the European Union and the United States made a joint statement in Luxembourg on the closure of Guantánamo, which, as the Guardian described it, “cleared the last hurdles for up to 50 Guantánamo detainees to be accommodated in EU countries,” no one has been released in Europe in the last two months, and the number of prisoners welcomed into any European countries since Obama came to office is just two: Binyam Mohamed, the British resident, notoriously subjected to “extraordinary rendition” and torture, whose release in February appears to have been designed (not entirely successfully) to fend off further legal challenges and embarrassing revelations regarding his treatment; and Lakhdar Boumediene, an Algerian cleared by a US judge in his habeas corpus hearing last November, who was resettled in France in May.

Of course, one explanation for the reluctance of European countries to accept cleared prisoners from Guantánamo is that European governments are regularly hearing American politicians wailing from the Dick Cheney songbook about how dangerous everyone in Guantánamo is, when the truth, of course, is that they were mostly rounded up for bounty payments, and have never had the allegations against them tested in any meaningful manner for the last seven and a half years.

To understand the truth about Guantánamo, European governments should be looking closely at the only venue in which the politicians’ scaremongering has actually been tested: in the District Courts hearing the prisoners’ habeas corpus appeals, where, since last June’s Supreme Court ruling granting the prisoners constitutionally guaranteed habeas rights, judges have so far established, in 28 of the 33 cases on which they have progressed to a ruling, that the government has failed to establish, “by a preponderance of the evidence,” that it has any right to hold the men. The full, embarrassing story can be found in two overviews here and here, and in the more recent cases of the Yemeni Alla Ali Bin Ali Ahmed (seized in a house raid in Pakistan), the Syrian Abdul Rahim al-Ginco (tortured by al-Qaeda as a spy), the Afghan Mohamed Jawad (tortured by Afghan and US forces), and the Kuwaiti charity worker Khalid al-Mutairi.

However, the Obama administration has not been trumpeting the courts’ victories — primarily because its own Justice Department has been responsible for putting forward feeble and unwinnable cases, which have been the object of judicial scorn, and has also been enraging the judges by persistently preventing defense attorneys from having access to exculpatory material — but also because the President himself has refused to take the lead in rehousing innocent men who were wrongly imprisoned in Guantánamo. He could have done this by bringing the Uighurs (Muslims from China’s oppressed Xinjiang province) to live in the United States in his early days in office, and his failure to do so is one of the main reasons that Dick Cheney and his followers were able to start peddling their distorted propaganda.

While such spinelessness only sends out a hypocritical message to those in Europe who are being asked to clean up America’s mess instead, I was heartened to hear, two weeks ago, that the Irish government has agreed to accept two Uzbek prisoners, who have been cleared for release for many years (including Oybek Jabbarov, a blameless refugee who was sold to US forces), but this good news has been tempered by another disturbing trend that is only just becoming apparent.

A disturbing trend: “rendering” Guantánamo prisoners to European jails

This trend involves not freeing the former prisoners on their transfer to European countries, as the Irish government proposes, but imprisoning them instead. I first reported on this development last month, in my article, “Italy’s Guantánamo: Obama Plans ‘Rendition’ Of Tunisians In Guantánamo To Italian Jail,” which dealt with the probable fate of three Tunisians in Guantánamo, and on Wednesday, on the website The Lift, Mathias Vermeulen reported exclusively that a similar plan has been hatched for dealing with two other Tunisians in Guantánamo.

Vermeulen explained that he had learned that the two prisoners — Adel Hakeemy and Hisham Sliti — are to be sent to Belgium on October 6, and that, on arrival, it is probable that they will be taken into custody because they were convicted in absentia “on charges of terrorism, forgery, the use of false documents and the formation of a criminal association.”

The problem with this proposal, of course, is that it enters new and disturbing legal territory. With regard to the Italian proposal, for example, a source in the United States explained that this approach to disposing of prisoners in Guantánamo is actually a form of “rendition,” and the same analysis applies to the Belgian proposal. In addition, although there has not yet been any word from the Belgian government about whether or not it will take into account the seven and a half years that both men have spent in Guantánamo, the Italian government suggested that, in the cases of the three men it was proposing to accept, these lost years would count for nothing.

The stories of Adel Hakeemy and Hisham Sliti

Adel HakeemyMoreover, the Belgian proposal is also disturbing because one of the men — Adel Hakeemy — was approved for transfer from Guantánamo by a military review board at Guantánamo under the Bush administration, which only happened because the military concluded that he no longer represented a threat to the United States or its allies. Although the US military has claimed that he was involved in a training camp near Jalalabad, Hakeemy has always denied any involvement in militancy in Afghanistan — or any connections with al-Qaeda or the Taliban — and his lawyers at Reprieve, the legal charity, have explained that he traveled to Pakistan to get married and was living in Jalalabad, near his wife’s family, when the US-led invasion began in October 2001.

Moreover, Hakeemy’s connection with Europe is based not on an association with Belgium, but on the eight years that he spent in Italy, where, it appears, he was not suspected of any involvement with terrorism (and is therefore not a candidate for being rehoused by the Italian government, which is interested only in Guantánamo prisoners against whom it claims to have proof of involvement in terrorist activities). As I explained in an article last year,

Far from being a militant, he was in fact a chef, and had lived in Italy for eight years, working as a chef’s assistant in several hotels in Bologna. “I lived with Italians in their homes,” he told Cori Crider of Reprieve during a visit at Guantánamo [in May 2008]. “I am used to their culture. The Italians worked alongside me, they respected me, they treated me as their brother.”

In the case of Hisham Sliti, the story is rather more complicated, because, last December, when US District Court Judge Richard Leon reviewed his habeas corpus petition, he ruled that he could continue to be held as an “enemy combatant,” because he was “part of or supporting Taliban or al-Qaeda forces.” Judge Leon’s ruling was based on claims made by the US government that Sliti traveled to Afghanistan as “an al-Qaeda recruit … at the expense of known al-Qaeda associates and on a false passport provided to him by the same,” that he stayed in a guest house and a mosque, and attended a training camp, which also had connections to al-Qaeda, and that he was “instrumental” in “starting a terrorist organization with close ties to al-Qaeda”. However, as I reported at the time,

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

As Reprieve explained last year, Sliti, who had arrived in Italy in 1995, and had spent time working on fishing boats, stated in 2007, “If I went to Afghanistan I would be a long way from the haunts where I could get drugs. It would be a chance to make a fresh start, a clean break. I thought I could study my religion, and hopefully I might be able to afford to get married and settle down. I emphatically did not go to Afghanistan to fight for the Taliban or for anyone else.” As Reprieve also noted, he was particularly disappointed by life in Afghanistan. “I hated life under the Taliban,” he explained, complaining that he “found the culture as oppressive as the heat: he couldn’t meet women, couldn’t smoke cigarettes — as an unmarried man, he couldn’t even rent a house.”

In a review board at Guantánamo, he was even more blunt. “I didn’t care for the country,” he told the panel of three officers. “It was very hot, dusty and [the] women were ugly. The atmosphere and environment didn’t agree with me.”

In his article on Wednesday, Mathias Vermeulen suggested that, until the Obama administration decided to transfer Sliti to Belgium, he was one of the prisoners regarded as being a candidate for the policy of “preventive detention” that the administration has been floating, to the horror of lawyers, human rights activists, and anyone else opposed to attempts to legitimize holding people without charge or trial.

Is justice possible for Tunisian prisoners in Guantánamo?

As I await more details of the Belgian proposals, I can only point out that, although Hisham Sliti’s transfer to Belgium may be preferable to having his indefinite detention fought over for years in the US courts, the least that he and Adel Hakeemy deserve, after their long ordeal without charge or trial in Guantánamo, is to receive a fair trial in Belgium, and to have their time in Guantánamo taken into account.

Their in absentia convictions in Belgium were based on their association with one of Hisham Sliti’s relatives, Amor Sliti, a Belgian citizen who had also been living in Afghanistan at the time of the US-led invasion. Amor Sliti escaped the Guantánamo dragnet, and was seized in Amsterdam and extradited to Belgium after flying in from Tehran in February 2002. In September 2003, he was sentenced to five years in prison for supplying false documents and being involved in a terrorist plot in Belgium.

However, given the length of this sentence (less than the time already served in US custody by Adel Hakeemy and Hisham Sliti), and the doubts about the involvement of either man in any kind of militant activity, I can only reiterate that I fail to see how the “rendition” plan agreed between the US and Belgian governments can be regarded as acceptable unless it contains guarantees that both men will face a fair trial on arrival in Belgium and, in the event of a conviction, will also have their prior imprisonment in Guantánamo taken into account.

Anything less, and it may be appropriate to conclude that the state of justice is so frayed in the West that both men might have been better off taking their chances with the dictatorship of Zine El Abidine Ben Ali in Tunisia, where, in 2007, two cleared Guantánamo prisoners who were repatriated — Lotfi Lagha and Mohammed bin Omar — were reportedly abused in Tunisian custody and then received prison sentences of three and seven years respectively after trials condemned as “show trials” by observers. Just prior these sentences, a US District Court judge, Gladys Kessler, was so disturbed by news that Lagha and bin Omar had been mistreated that she acted to prevent a third Tunisian from being returned. This ruling dealt a knockout blow to the “diplomatic assurances” negotiated between the US and Tunisian government, which purported to guarantee that returned prisoners would be treated humanely, but nearly two years later, the story of Adel Hakeemy and Hisham Sliti — and the cases of the three Tunisians earmarked for imprisonment in Italy — indicate that the legal distortions of the “War on Terror” are still wreaking havoc on the lives of those trapped in its baleful shadow.

POSTSCRIPT AND CORRECTION: Mathias Vermeulen has updated the story, reporting that the request for Adel Hakeemy and Hisham Sliti to be sent to Belgium was actually initiated by two Belgian lawyers, who requested their “immediate extradition,” based on their in absentia convictions in 2003. Vermeulen explained, “The spokesperson for the Belgian Ministry of Foreign Affairs formally declared that the transfer of the two Tunisian detainees was not requested by the Belgian state, but by the detainees’ two lawyers (who requested the federal prosecutor to issue an international arrest warrant so they could be extradited to Belgium.) The lawyers thought there was a good chance that both detainees would be sent to Belgium by the 6th of October, which is the date of the new trial.”

He also explained that the Belgian lawyers pointed out that “the federal prosecutor made a mistake by not asking an arrest warrant for the two in 2003,” stating, “If it appears that the federal prosecutor in 2003 — or even earlier, during the judicial investigation — had knowledge of the torture and ill-treatment Hakeemy and Sliti were subjected to, the federal prosecutor could be held responsible,” even though it is extremely unlikely that the Bush administration would have consented to the extradition of either man in 2003.

Even now, it is uncertain whether the Obama administration will consent to the extradition of either man — but particularly Hisham Sliti. As Vermeulen also noted, “The case of Hakeemy wouldn’t pose a problem, as he was not regarded as an ‘enemy combatant’ by the US. Sliti’s case is different however: he is regarded as an ‘enemy combatant’, which means he cannot be extradited.” He also explained that the cases of the two men were unrelated to Belgium’s ongoing negotiations to take two other prisoners from Guantánamo, “who are likely to come to Belgium in September.” Unlike Hakeemy and Sliti, it is expected that these two as yet unidentified men will be able to apply for asylum, “after which they are likely to be recognized as refugees.”

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 by Cageprisoners. Cross-posted on The Public Record.

Andy Worthington Discusses Guantánamo With World Can’t Wait

World Can't Wait buttonsOn Sunday, I was delighted to take part in a conference call arranged by World Can’t Wait, consisting of an interview with Frank Harper, followed by a question and answer session with those listening in. This was a novel set-up for me, but I thought it worked well, and I’m delighted that it’s now available as an MP3 on World Can’t Wait’s website (here’s the direct link to the MP3).

As World Can’t Wait explains in an introduction to the recording on its website, “The conversation ranged from the origins of systematic torture at the very beginnings of the US invasion of Afghanistan, to the significance of the continued denial of habeas corpus rights to the prisoners caught in the US dragnet, to the ways in which the Obama administration is continuing, with slight modification, the policies of the Bush Regime towards the Geneva Conventions and the treatment of prisoners snared in its war of terror.”

In a wide-ranging discussion, I was pleased to cover, in particular, some of the reasons why so many people who had no connection to militancy whatsoever ended up in Guantánamo, talking about the lack of screening in the prisons in Afghanistan that were used to process the prisoners, the bounty payments that were widespread, examples of Afghans betrayed by rivals or seized in raids based on dubious intelligence, and examples of the many prisoners who were seized in Pakistan, many miles from the battlefields of Afghanistan, where the bounty payments proved appealing to representatives of the Pakistani government and intelligence services.

I also had the opportunity to talk about how — outside of the specific torture program tailored for the supposed “high-value detainees” subjected to “extraordinary rendition” and detention in secret CIA prisons — the use of torture was implemented at Guantánamo because, in spite of having rounded up prisoners in a distressingly random manner, those overseeing the operation concluded that the reason that the prisoners were not producing “actionable intelligence” was not because they knew nothing, but because they had been trained to resist interrogation by al-Qaeda. As I have explained before, the end result was something akin to the witch-hunts of the seventeenth century.

I also spoke about the fundamental problem with the definitions used in the “War on Terror,” in which the government confused acts of terrorism with acts of war, and decided to detain people neither as prisoners of war, protected by the Geneva Conventions, not as criminal suspects, to be put forward for trial in federal courts, and after a discussion about Guantánamo’s particularly iconic significance, I also discussed the prisoners’ habeas corpus rights, praising the lawyers and the courts — including, of course, the Supreme Court — and pointing out how complicit the nation’s politicians were in attempting to leave the prisoners in a legal limbo forever. I also discussed the recent habeas corpus cases — and the Justice Department’s unbroken chain of obstruction, from the Bush administration to the Obama administration — which, as I’ve been reporting recently (here and here), has led to an 85 percent success rate in the courts, and repeated humiliation for the government, as, time and again, it has brought feeble and unwinnable cases to court.

I also took the opportunity to talk about the worrying situation at Bagram, in Afghanistan, where the prisoners are still held without any of the legal rights granted to the Guantánamo prisoners, because the Obama administration is resisting any form of outside scrutiny, even though dozens of foreign prisoners were rendered there up to seven years ago, and are, effectively, the same as the prisoners in Guantánamo, as Judge John D. Bates recognized in April. I also discussed my fears that, although the administration has some basis for arguing that Bagram is a wartime detention facility, and that habeas rights should not extend to Afghan prisoners seized in Afghanistan, President Obama has provided us with no proof that the Geneva Conventions have been fully reinstated by the military, and that, as a result, it is legitimate to fear that prisoners held there are still being subjected to a regime in which, although outright torture may well have been outlawed, the focus is still on intelligence-gathering, and not on holding prisoners to keep them off the battlefield until the end of hostilities.

The session concluded with some lively questions, and I was particularly pleased to be able to end up by talking about the recent rumors regarding the appointment of an independent prosecutor to investigate the Bush administration’s crimes, and to express my hope that, even if Attorney General Eric Holder decides to restrict his investigation to those who exceeded the rules laid down in the notorious “torture memos” issued by the Justice Department’s Office of Legal Counsel, the launch of any investigation whatsoever will point inexorably to those further up the chain of command, and will, eventually lead to the Office of the Vice President, where, as we know but cannot yet prove, every aspect of the torture program required the approval of Dick Cheney or his legal counsel (and later Chief of Staff) David Addington.

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.

Guantánamo And The Courts (Part Two): Obama’s Shame

The Guantanamo FilesIn the first part of this three-part series examining the Guantánamo prisoners’ attempts to secure their release via the US courts, Andy Worthington, author of The Guantánamo Files, examined the Bush administration’s record in the seven months after the Supreme Court’s ruling, in June 2008, that the prisoners had constitutionally guaranteed habeas corpus rights, and explained how, despite obstruction by the Justice Department, District Court judges reviewed 26 cases, and in all but three found that the government had failed to establish, “by a preponderance of the evidence,” that it was justified in holding the men. This second article (and the final part next week) examine the Obama administration’s record, in its first seven months in office, presenting an under-reported story of ongoing obstruction by the Justice Department, apoplectic judges, and, in the majority of the cases in which a judge has been able to make a ruling, more humiliation for the government.

Bush’s Justice Department lives on in two depressing court rulings

On his second day in office, President Obama issued a number of Executive Orders, which appeared to tackle the worst excesses of the Bush administration’s “War on Terror,” and included pledges to uphold the absolute ban on torture and to close Guantánamo within a year. Given the repeated defeats of the Bush administration’s detention policies in the courts, it was not unreasonable to suppose that Obama would move swiftly to overhaul the Justice Department, which had been rocked by scandals indicating that it had become heavily politicized during the Bush years. Accordingly, it was anticipated that Obama would focus on putting in place new staff who would take on board the Supreme Court’s statement that “the cost of delay can no longer be borne by those in custody,” would prevent the obstruction that was all too apparent in the dying days of the Bush administration, and would urgently review the prisoners’ files to prevent further humiliation by taking unjust and unwinnable cases to court.

Judge Richard LeonBefore any of this could happen, Judge Richard Leon (see Part One) provided a further demonstration of why the administration urgently needed to review its policies regarding the Guantánamo prisoners, by ruling, on January 28, that Ghaleb al-Bihani, a Yemeni, could continue to be held as an “enemy combatant,” because he had worked as a cook for the Taliban. As I explained in an article at the time,

Concluding that it was “not necessary” for the government to prove that he “actually fire[d] a weapon against the US or coalition forces in order for him to be classified as an enemy combatant,” Leon declared, “Simply stated, faithfully serving in an al-Qaeda-affiliated fighting unit that is directly supporting the Taliban by helping prepare the meals of its entire fighting force is more than sufficient to meet this Court’s definition of ‘support.’” He added, “After all, as Napoleon was fond of pointing out, ‘An army marches on its stomach.’”

However, what no one realized back in January was that the Obama administration’s focus was not on the courts, but on the inter-departmental Detention Policy Task Force established to review the prisoners’ cases as part of the Executive Orders issued on Obama’s second day in office. This prioritizing of the Task Force may not have been intended to sideline the court reviews that had been fought for since the prison first opened in January 2002, because the Obama administration, understandably, wanted to try to establish whom it was actually holding at Guantánamo.

In addition, it may well be that the focus on an executive review that was essentially unaccountable (with its uncomfortable echoes of the Bush administration’s modus operandi) was not specifically intended to compete with the habeas reviews, but in reality that is what happened, and as the months passed the judges and defense attorneys realized, to their horror, that the change of administration had made absolutely no difference to the way in which they were treated by the Justice Department.

For the first few months after Judge Leon’s contentious ruling in the case of Ghaleb al-Bihani, the obstruction continued as though the Bush administration was still in power, and, to make matters worse, it seemed that no one in the media cared. Few reporters or editors, for example, realized the significance of the Court of Appeals’ ruling in February, in the case of the Uighurs (Muslims from China’s oppressed Xinjiang province), which overturned Judge Urbina’s heroic ruling in October, when he ordered them to be brought to the US mainland because they could not be returned to China (out of fears that they would be tortured), and because holding innocent men at Guantánamo was unconstitutional.

The decision, by a handful of notoriously Conservative judges, including Judge A. Raymond Randolph, who had backed every Bush administration policy that was later overturned by the Supreme Court, was supported by the Justice Department, even though it effectively gutted the Supreme Court’s habeas ruling, preventing judges from being able to order the release of prisoners who were cleared in their courts.

The government’s sleight-of-hand regarding “enemy combatants”

The whole question of what was going to happen to Guantánamo’s “enemy combatants” only really hit the media’s radar in March, when, in what can only be regarded as a skilful piece of PR, the government announced, in response to a court request for clarification of the meaning of the term “enemy combatant,” that it had dropped the use of the phrase, and had adjusted its definition of those who could be detained so that, instead of holding people who were “part of, or supporting, Taliban or al-Qaeda forces or associated forces that are engaged in hostilities against the United States or its coalition partners,” individuals who supported al-Qaeda or the Taliban “were detainable only if the support was substantial.” As I explained at the time:

As benign-sounding propaganda … this announcement has the alluring veneer of the “change” that Barack Obama promised throughout his election campaign, but in practical terms nothing has actually changed. The prisoners are now nobodies, with no label whatsoever to define their peculiar extra-legal existence, and the entire rationale for holding them without charge or trial — and the egregious errors made along the way — remain unaddressed.

Specifically, the government’s sleight-of-hand was revealed in two ways. The first emerged in the Justice Department’s explanation of what “substantial support” entailed:

In spite of claiming that these men must have “substantially supported” the Taliban, al-Qaeda, or other associated groups, the Justice Department specifically stated that it has the authority to detain not only “those who were part of al-Qaeda and Taliban forces,” but also other “members of enemy forces,” even if “they have not actually committed or attempted to commit any act of depredation or entered the theatre or zone of active military operations,” and adds, “Evidence relevant to a determination that an individual joined with or became part of al-Qaeda or Taliban forces might range from formal membership, such as through an oath of loyalty, to more functional evidence, such as training with al-Qaeda (as reflected in some cases by staying at al-Qaeda or Taliban safe houses that are regularly used to house militant recruits) or taking positions with enemy forces.”

Moreover, the government continued to assert that the fundamental basis of the Bush administration’s detention policies was sound. To reach this conclusion, the Justice Department asserted that it was acting according to the Authorization for Use of Military Force (the founding document of the “War on Terror,” passed by Congress shortly after the 9/11 attacks, which authorized the President “to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001”), and was drawing on “the international laws of war to inform the statutory authority conferred by Congress,” even though, by doing so (as I also explained at the time):

[The Obama administration] has failed to demonstrate that it has any willingness to pour scorn on the Bush administration’s claims that prisoners can be held without being either criminal suspects or prisoners of war, has endorsed its predecessor’s decision to equate the Taliban with al-Qaeda, even though there was never any justification for doing so, has overlooked the fact that the majority of the prisoners were bought for bounties and were never screened according to the Geneva Conventions, has ignored the fact that the evidence against them (whether of “substantial” support or not) was often extracted through the use of torture, coercion or bribery, and has also defended the Bush administration’s self-proclaimed right to detain demonstrably peripheral figures in the Afghan conflict as “terror suspects.”

Again, few commentators grasped how fundamentally Obama was following the unprecedented policies laid down by the Bush administration, but what is even more shocking, looking back on this period, is how the ongoing habeas litigation was almost completely ignored, even though the most extraordinary scenes were taking place in the courts, as District Court judges, appalled by the persistent obstruction they were encountering, heaped unprecedented scorn on the government’s lawyers.

Judge Colleen Kollar-Kotelly’s criticism of the government in the case of the Kuwaitis

Judge Colleen Kollar-KotellyOn April 10, AFP reported briefly on two of these cases, although there were clearly others that never surfaced at all. The first involved the remaining four Kuwaiti prisoners in Guantánamo, in which Judge Colleen Kollar-Kotelly, appalled by a government lawyer who “repeatedly missed deadlines,” wrote that his “compliance was not optional,” and added that the court had “serious concern about counsel’s ability to read and comprehend its Orders.” This story actually began at a hearing on February 12, when, after ordering the government to provide a vast amount of material relating to the cases, Judge Kollar-Kotelly lost her patience with the Justice Department prosecutor, and ordered the DoJ to “assign new counsel.” She explained that her orders had been issued on three separate occasions, “and not only has Respondents’ counsel failed to produce an Opposition to date, he has provided no explanation for his non-compliance with the Court’s orders.”

At the hearing on April 6, Judge Kollar-Kotelly prefaced her ruling (PDF) with a quote from a case in 1969: “[T]here are standards which a government counsel should meet to uphold the dignity of the government … their conduct [must] reflect that they are officers of the court as well as advocates for a cause.” It was a sign of what was to come. She followed up by referring to a meeting preceding her previous ruling in February, at which she “explained to Respondents’ counsel and his supervisor (whom the Court requested to be in attendance) that its Orders were not aspirational, and that counsel’s compliance was not optional … The Court further explained that the course of conduct chosen by counsel — simply ignoring the Orders of the Court as if they were not issued — would not be tolerated.”

However, it was soon clear that the judge’s Order of February 12, “requiring Respondents to assign new counsel to this case,” seemed “to have only been partially received,” as the government followed up by filing a Motion for Reconsideration, which involved what she described as “a shockingly revisionist version of the events that transpired.” She then ran through the history of the government’s non-compliance in the case, including what she described as the supervisor’s “flippant justification” for the DoJ’s non-compliance: that “Respondents were very busy with other Guantánamo cases, and that counsel did not have time to file the Opposition or (apparently) an appropriate motion for an extension.” After explaining that “counsel’s workload was not an acceptable excuse for violating the Orders of this Court,” Judge Kollar-Kotelly added that the exchange with counsel’s supervisor convinced her to order the appointment of new counsel because the supervisor “did not seem to have grasped the import of what had transpired.”

Dealing with further call for delays, in which the government described its non-compliance as an “honest misunderstanding” and a “procedural defect,” warned that appointing new counsel would “make compliance with future deadlines difficult,” and claimed that the Attorney General had “exclusive authority to designate which Department of Justice attorneys will represent the United States in court,” Judge Kollar-Kotelly rejected each argument, referring to the government’s “feigned confusion,” dismissing one particular claim because it “defie[d] logic,” and taking particular exception to the suggestion about the Attorney General’s powers, pointing out that, “although the Attorney General has the right to designate [the DoJ’s] representative in a given hearing, that authority does not trump the Court’s ability to maintain control over its own proceedings, including the enforcement of its Orders through sanctions.”

Despite this unprecedented rebuke to the government, it appeared that the rot seeped up the chain of command in the Justice Department, with Attorney General Eric Holder ignoring a subsequent letter from the Kuwaitis’ counsel, David Cynamon, in which it was pointed out that, as a result of the government’s obstruction — particularly in providing exculpatory evidence to the defense (in other words, evidence that tended to undermine the government’s case) — it had been left to the prisoners’ lawyers to stumble across exculpatory material “purely by good fortune.” Cynamon explained that, in the case of one of the Kuwaitis, his military defense counsel “happened to find a document on a government database suggesting that one of our clients is likely the victim of mistaken identity,” and that “habeas counsel in other cases have provided us with classified government documents casting doubt on the credibility of certain informants in our case.”

Judge Emmet G. Sullivan’s criticism of the government in the case of Ayman Batarfi

Judge Emmet G. SullivanThe Kuwaitis’ case was not the only example of judicial anger at the government’s obstruction. In the case of Ayman Batarfi, a Yemeni doctor accused of being involved with al-Qaeda, Judge Emmet G. Sullivan was equally outraged by government lawyers’ “repeated” delays in providing unclassified exculpatory material to the defense. At a status hearing on April 1, Judge Sullivan ran through another case history that was damning for the government, referring to a hearing on March 19, in which he required the Justice Department “to show cause why the government and its attorneys should not be held in contempt for violating” an order in January to produce relevant information, including exculpatory evidence.

This was bad enough — although it appeared to be typical behavior, as the Kuwaitis’ case also showed — but what enraged Judge Sullivan was that, when Batarfi’s defense team explained that they had discovered, in Batarfi’s medical records (which had, after some delay, been provided by the government), “a highly exculpatory record” pertaining to one of the government’s main witnesses against their client, and added that they “believed they were entitled to all other similar records” regarding this particular prisoner, “the government,” as Judge Sullivan described it, “took [the] position that this had been a, quote, inadvertent production, and sought to, in the government’s words, sequester the document.”

Judge Sullivan proceeded to ask the government why the exculpatory evidence had not been produced in September 2008, following the Court’s order to produce exculpatory evidence by that date, stated that the Court would “require an explanation as to why the government took the position that this document was, quote, inadvertently produced, end quote,” and would also require an explanation as to why it took until March 2009 to produce the document. He was also concerned that, at the hearing on March 19, it emerged that the witness in question was a main witness in a number of other habeas cases. “Was this document and any other produced as exculpatory evidence in those cases?” Judge Sullivan asked. “And if not, why not?”

The answer, of course, is that the government had no interest in making all exculpatory evidence available on a case-by-case basis, and, as a result, clearly had no interest in cross-referencing cases to make sure that, where relevant, exculpatory evidence was made available to defense counsel in other cases. Outraged by this, and clearly struggling to contain his anger, Judge Sullivan told the government lawyers, “To hide — and I don’t use that word loosely — to hide relevant and exculpatory evidence from counsel and from the Court under any circumstances, particularly here where there is no other means to discover this information and where the stakes are so very high and do indeed include indefinite detention, is fundamentally unjust, outrageous and will not be tolerated.”

He added, “Fortunately, Dr. Batarfi’s counsel have been diligent and tireless in their efforts, but no one, Dr. Batarfi and not this Court, should have to rely on luck to discover evidence critical to a just resolution … In the face of repeated failures to comply with this Court’s orders, to produce exculpatory evidence, even after orders to show cause and the requirement of no fewer than four declarations from officials at the highest levels of our government, how can this Court have any confidence whatsoever in the US government to comply with its obligation and to be truthful to the Court?”

In response to the apparent meltdown of Batarfi’s case, the government appeared to take matters into its own hands, expediting a review by the Justice Department, and seeking to prevent further humiliation by announcing that he had been cleared for release. Judge Sullivan accepted this, of course, as he would clearly have granted Batarfi’s habeas petition had the case proceeded, but he made a point of telling the government that, “While the Court on the one hand applauds the government’s belated decision to transfer Dr. Batarfi, the Court must note the disturbing pattern in this and other cases. Time and again we have seen that only once finally pressed to present evidence to justify a petitioner’s detention does the United States belatedly, quote, withdraw, end quote, charges or allegations and/or transfer the detainee.”

Judge Sullivan also said, that he had “some serious concerns” about whether the sudden decision to release Batarfi was “another ploy not to return Dr. Batarfi to his country of origin but to continue with his deprivation of his fair day in court” — and with good reason, as, at the time of writing, Batarfi, like Yasim Basardah, is still at Guantánamo, despite Judge Sullivan’s request for status reports every 14 days. Perhaps the saddest aspect of the government’s disgraceful conduct can be gauged by comparing its evasions, obstructions and, ultimately, its refusal to release prisoners like Batarfi, who could surely have been sent back to Yemen the day after the ruling, with Judge Sullivan’s own analysis of the pressing urgency of bringing justice to the Guantánamo prisoners:

I’m not going to continue to tolerate indefinite delay on the part of the United States government. I mean, this Guantánamo issue is a travesty. It ranks up there with the internment of Japanese-American citizens years ago. It’s a horror story in the American system of jurisprudence, and quite frankly, I’m not going to buy into an extended indefinite delay of this man’s stay at Guantánamo, or anyone else on my calendar.

Two more rulings; one weak, the other far-reaching

At the same time that Judge Sullivan was berating the government in the strongest terms possible, two other cases also proceeded to rulings. In the first, that of Hedi Hammany, a Tunisian, Judge Richard Leon sowed further confusion by ruling that his detention was justified, even though he had previously had his transfer from Guantánamo approved by a military review board under the Bush administration. As I explained at the time, Judge Leon’s ruling did not exactly inspire confidence, as he relied on an untested allegation by the Italian authorities that Hammamy had been involved in a terrorist cell in Italy and extrapolated from this allegation that the apparent discovery of Hammamy’s identity papers in a cave in Afghanistan’s Tora Bora mountains demonstrated that he was involved with al-Qaeda and/or the Taliban, even though Hammamy “has always denied being in Tora Bora, and has claimed that his papers were in fact stolen from him, and that the government has evidence that this is the case.”

Judge Ellen Segan HuvelleThe second ruling concerned Yasim Basardah, a Yemeni and a well-known and contentious informer within Guantánamo, whose copious “confessions,” ironically, had been and would continue to be pulled apart in other habeas cases (including, very possibly, those mentioned above). Basardah’s habeas petition was granted on March 31 by Judge Ellen Segal Huvelle, who provided her own slant on the necessary circumstances for ongoing detention by looking closely at the government’s justification for holding prisoners (the Authorization for Use of Military Force) and how this was affected by the Supreme Court’s ruling in Hamdi v. Rumsfeld, a case decided in June 2004, which focused on an American-born Saudi, Yaser Hamdi, who, at the time, was being held at Guantánamo.

In a ruling that may have implications for other rulings in the future (PDF), Judge Huvelle drew conclusions suggesting that the “enemy combatants” of Guantánamo were akin to prisoners of war, but with the ability to be released if it could be demonstrated that they no longer posed a threat to the United States. She noted that the AUMF “does not authorize unlimited, unreviewable detention,” but instead authorizes holding people “in order to prevent any future acts of international terrorism”; in other words, “the AUMF does not authorize the detention of individuals beyond that which is necessary to prevent those individuals from rejoining the battle, and it certainly cannot be read to authorize detention where its purpose can no longer be attained.”

From Hamdi, Judge Huvelle drew on the Supreme Court’s assertion that the Executive “may detain combatants for a limited purpose only”; namely, “to prevent the captured individuals from returning to the field of battle and taking up arms again,” and, in passing, noted two orders that appear to have bypassed the authorities — an insistence that “indefinite detention for the purpose of interrogation is not authorized” and a requirement that the “detention of combatants must be ‘devoid of all penal character’” — and a conclusion that also appears to have been overlooked: a requirement that the prisoners are to be “treated humanely and in time exchanged, repatriated or otherwise released.”

With reference to Basardah, Judge Huvelle concluded that the relevant issue was not the Yemeni’s admitted involvement with the Taliban — he claimed elsewhere that he only joined up for the money — but the fact that he “can no longer constitute a threat to the United States,” because it is “undisputed” that his involvement with the Guantánamo authorities as an informer “is known to the world, and thus, any ties with the enemy have been severed, and any realistic risk that he could rejoin the enemy has been foreclosed.” She added, granting his habeas petition, “As a result, the Executive’s asserted justification for his continued detention lacks a basis in fact as well as in law.”

It seems astonishing to me now that the barrage of criticism to which the government was subjected by the courts in March and April, which cannot have failed to resonate through the corridors of power in the Justice Department, did not lead to an urgent rethink of the government’s entire policy regarding the Guantánamo habeas cases, but in the months since there has still been no change, and although the ongoing obstruction has prevented a large number of cases from reaching a point where a judge can make a ruling, those that have proceeded to a ruling have, if anything, humiliated the government even more thoroughly than the litany of embarrassments described above.

These rulings, and some dark conclusions regarding the government’s attitude to the habeas cases and the legitimacy of the courts, will be discussed next week in the final part of this series of articles.

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.

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), Guantánamo And The Courts (Part One): Exposing The Bush Administration’s Lies (July 2009), Obama’s Failure To Deliver Justice To The Last Tajik In Guantánamo (July 2009), Obama And The Deadline For Closing Guantánamo: It’s Worse Than You Think (July 2009), How Judge Huvelle Humiliated The Government In Guantánamo Case (Mohamed Jawad, July 2009), As Judge Orders Release Of Tortured Guantánamo Prisoner, Government Refuses To Concede Defeat (Mohamed Jawad, July 2009), Guantánamo As Hotel California: You Can Check Out Any Time You Like, But You Can Never Leave (August 2009), Judge Orders Release From Guantánamo Of Kuwaiti Charity Worker (August 2009). Also see: Justice extends to Bagram, Guantánamo’s Dark Mirror (April 2009), Judge Rules That Afghan “Rendered” To Bagram In 2002 Has No Rights (July 2009).

David Frakt: Military Commissions “A Catastrophic Failure”

A month ago, when the Senate Armed Services Committee heard testimony on “legal issues regarding military commissions and the trial of detainees for violations of the law of war”, and the Constitution, Civil Rights, and Civil Liberties Subcommittee of the House Committee on the Judiciary held a hearing on “Legal Issues Surrounding the Military Commissions System,” the Obama administration’s proposed revival of the much-criticized Military Commission system of trials for “terror suspects” at Guantánamo attracted a decent amount of media attention.

Maj. David FraktLast week, however, when the House Committee on the Judiciary’s Constitution, Civil Rights, and Civil Liberties Subcommittee convened to hear further testimony about the Military Commissions, few media outlets noticed. This was a great shame, as one of the speakers was Lt. Col. (formerly Maj.) David Frakt of the US Air Force Reserves, whose testimony (PDF) was at least as riveting as that of his former adversary in the Military Commissions, Lt. Col. Darrel Vandeveld, the ex-prosecutor who resigned in September 2008. On July 8, Lt. Col Vandeveld told the committee that the Commissions were “broken beyond repair,” and “cannot be fixed, because their very creation — and the only reason to prefer military commissions over federal criminal courts for the Guantánamo detainees — can now be clearly seen as an artifice, a contrivance, to try to obtain prosecutions based on evidence that would not be admissible in any civilian or military prosecution anywhere in our nation.”

The main thrust of Lt. Col. Frakt’s testimony, as an experienced lawyer who studied the Military Commissions Act of 2006 in depth and served on the Commissions from April 2008 as a military defense attorney (for two prisoners, Mohamed Jawad and Ali Hamza al-Bahlul), is that the MCA should be repealed and trials held in federal courts, which have a proven track record of dealing with cases related to terrorism. However, as he is pragmatic enough to realize that this may not happen, he provided the Committee with eleven detailed revisions to the MCA, which should be followed if, as anticipated, everyone involved in the decision-making process continues to believe that the tainted Commissions will be able to deliver justice.

These are worth looking at in detail (they are on pp. 8-15 of Lt. Col. Frakt’s testimony), but as I agree with his assertion that, essentially, the MCA is a flawed piece of legislation that resuscitated an even more flawed and rigged system conceived by former Vice President Dick Cheney and his close advisors, after the Supreme Court struck down the Commissions’ original incarnation in June 2006, and that it should be consigned to the trashcan of history, I’m reproducing below the section of Lt. Col. Frakt’s testimony in which he explains why (pp. 4-8), and his conclusion (pp. 15-17).

In these sections, Lt. Col. Frakt runs through a chronology of the Bush administration’s deliberate flight from the law, with a particular focus on how standards were deliberately dropped in an attempt to secure successful prosecutions, how criminal activities were confused with acts of war, and how the laws of war were twisted — by both the Bush administration and by Congress — to include crimes that have never been previously been covered by the laws of war. I doubt that you’ll find a better explanation of the legal failures of the Bush administration’s response to the 9/11 attacks anywhere else.

“The Abandonment of the Rule of Law”
An excerpt from Lt. Col. David Frakt’s testimony to the Subcommittee on the Constitution, Civil Rights, and Civil Liberties, Committee of the Judiciary, United States House of Representatives, July 30, 2009

In the run-up to this section, Lt. Col. Frakt stated, “As we ponder the questions before us, I think it is important to review where we are now and how we got to this point.”

One point on which all sides should be able to agree is that the military commissions of the Bush administration were a catastrophic failure. The military commissions clearly failed to achieve their intended purpose. After more than seven years and hundreds of millions of dollars wasted, the military commissions yielded only three convictions, all of relatively minor figures. Not a single terrorist responsible for the planning or execution of a terrorist attack against the United States was convicted. Two of the convicted, David Hicks and Salim Hamdan, received sentences of less than one year and were subsequently released. The third trial, of my client Mr. al-Bahlul [Ali Hamza al-Bahlul], though yielding a life sentence, was far from a triumph for the military commissions.

There were several problematic aspects of this trial, not the least of which was the fact that several members of Mr. Hicks’ jury were actually recycled for this military commission. More disturbing was the denial of Mr. al-Bahlul’s statutory right of self-representation. Mr. Al-Bahlul, a low-level al-Qaeda media specialist, wanted to represent himself before the military commissions and this request was granted by the military judge at the arraignment, Army Colonel Peter Brownback. Soon thereafter, Col. Brownback was involuntarily retired from Army and replaced. The new judge revoked Mr. al-Bahlul’s pro se status, although he knew that Mr. al-Bahlul had refused to authorize me, his appointed military defense counsel, to represent him. As a result, there was no defense presented; Mr. al-Bahlul was convicted of all charges and received the maximum life sentence.

Why, with the entire resources of the Department of Defense, the Justice Department and the national intelligence apparatus at their disposal, were the military commissions such an abysmal failure? The answer is simple: the military commissions were built on a foundation of legal distortions and outright illegality. The rules, procedures and substantive law created for the commissions were the product of, or were necessitated by, the wholesale abandonment of the rule of law by the Bush administration in the months after 9/11. In the United States of America, any such legal scheme is ultimately doomed to fail.

If we review the origins of the military commissions, a clear picture emerges of an intentional disregard for existing legal norms. Perhaps the first indication that the rule of law was to be abandoned was in President Bush’s Military Order of November 13, 2001. In this document, President Bush found: “it is not practicable to apply in military commissions under this order the principles of law and the rules of evidence generally recognized in the trial of criminal cases in the United States district courts.” In other words, what we consider essential for a fair trial for us would not be required for them. How did the administration know, two months after 9/11, before a single major terrorist suspect had been caught, and before a single prosecutor had reviewed a single piece of evidence, that it would be impracticable to prosecute terrorism cases using existing rules and procedures? They didn’t, of course. But having made this unsupported finding, President Bush and his senior advisors set out to make it a reality.

Another major step in the abandonment of the rule of law came on February 7, 2002, when President Bush issued another order [PDF], this time announcing that the Geneva Conventions would not apply to those detained in the War on Terror, who were labeled with the new and misleading term “unlawful enemy combatants.” The President held not only that such persons were not entitled to be treated as prisoners of war, but also, shockingly, that they were not even legally entitled to be treated humanely. With a stroke of the pen, the President wiped out the principle source of the law of war and the entire existing legal framework for the treatment of persons captured in an armed conflict and replaced it with a policy preference for humane treatment, which could be readily discarded whenever it interfered with military or intelligence operations. The decision that humane treatment was not required created unnecessary confusion about what was permissible and cleared the way for the approval of a vast array of patently illegal and highly coercive “enhanced interrogation techniques” to be employed upon the detainees.

The abandonment of the rule of law was compounded by the decision to house the “unlawful combatants” at Guantánamo Bay, Cuba, and to turn the detention facilities there into a legal black hole, a place where detainees were not even entitled to be informed of the basis of their detention, much less challenge it. Indeed, the Bush administration, regrettably aided and abetted by Congress, made a determined (and, for several years, successful) effort to prevent detainees from gaining access to courts or legal representation. In an environment with no judicial oversight or meaningful avenues for redress, the detainees were simply at the mercy of their captors — and the captors were not in a merciful mood. The extraordinary pressure to produce “actionable intelligence” coupled with the vengeful mood of the times led inexorably to shameful abuses of detainees [Senate Armed Services Committee report, PDF].

In 2002 and 2003, as senior Bush administration officials drafted the rules for the President’s military tribunals, they were aware of several important pieces of information about the detainees at Guantánamo. First, despite claims by high-level officials, including Secretary Rumsfeld, that the detainees represented “the worst of the worst,” in reality, the vast majority of the detainees had no tangible connection with al-Qaeda, and even fewer had any provable role in any terrorist attack. Many of the detainees were completely innocent of any wrongdoing, and had simply been turned in for bounty, or were caught in the wrong place at the wrong time.

The worst that could be said about many of them was that they had fought against the US and coalition forces that had invaded Afghanistan, conduct that, under the laws of war, would not be considered a war crime. A small group of those captured were likely guilty of terrorism crimes, but not crimes of war. The administration was also keenly aware that, to the extent that there was some evidence of criminal acts by a small fraction of the detainees, much, if not most of this evidence had been developed through highly coercive interrogations, which would not be admissible in a regular court of law.

The drafters of the original military commission rules [PDF] resolved each of these problems by rewriting the law. First, the rules of evidence were rewritten to allow the introduction of coerced statements and to eliminate the rules barring the fruits of torture and abuse. Second, the drafters classified as “war crimes” conduct, such as conspiracy and terrorism crimes that are violations of regular criminal law but had never previously been recognized as covered by the laws of war, largely because the laws of war rightly apply to the narrow context of armed conflict.

They also created a number of “new” war crimes based on the alleged status of a person, rather than on conduct that actually violates the laws of war [PDF]. The most egregious examples of these were the invented crimes “Murder by an Unprivileged Belligerent” and “Destruction of Property by an Unprivileged Belligerent,” which appeared in the original commission’s list of offences. These provisions made killing US soldiers, destroying military property, or attempting to do so, a war crime. In other words, the US declared that it was a war crime to fight, regardless of whether the fighters comply with the rules of war.

After protracted litigation, the original military commissions were invalidated by the Supreme Court in Hamdan v. Rumsfeld [PDF] in the summer of 2006 before anyone was ever convicted. With nearly five years wasted, there was a great rush to put a new legal system in place. Within months “new and improved” military commissions were authorized by Congress through the Military Commissions Act of 2006 (MCA) [PDF]. While these legislatively created commissions were undoubtedly an improvement over those created by Presidential decree, the hastily drafted and poorly considered MCA still incorporated some of the key distortions and departures from the rule of law featured in the invalidated version. Most disturbingly, Congress retained the rules of evidence (with minor variations) that permitted coerced evidence to be introduced. Congress also retained the full list of war crimes (again with minor variations), including the invented ones, and even added new ones, such as the flexible catch-all “material support to terrorism.”

The Obama administration has now acknowledged that material support is not a traditional war crime, calling into question all three of the convictions thus far attained. (Mr. Hicks, Mr. Hamdan and Mr. al-Bahlul were all convicted of material support. For Mr. Hicks and Mr. Hamdan, it was the only crime of which they were convicted). Although the military commissions were purportedly modeled on the Uniform Code of Military Justice (UCMJ), the best features of that system, such as the robust pretrial investigation required by Article 32 of the UCMJ and equal access by the prosecution and the defense to evidence and witnesses, were removed or weakened. The implementing regulations produced by the Secretary of Defense [PDF], which could have corrected or mitigated some of the glaring problems with the legislation, served only to exacerbate them.

Despite the widespread criticism of the MCA by the international community, legal scholars and non-governmental organizations, identifying the myriad shortcomings of the military commissions, the Bush administration was determined to press ahead with the military commissions and convict as many detainees as possible. It was the hope and deliberate strategy of the administration that if the military commissions were well underway by the time the next administration assumed office, with several trials completed and convictions duly rendered (the administration did not foresee or accept the possibility of acquittals), the commissions would be difficult to derail.

This “spray and pray” strategy might have succeeded but for one factor the Bush administration never anticipated: many of the military lawyers assigned the role of prosecutors, defense counsel and judges in the military commissions refused to put aside their ethical obligations and their training in the rule of law. Many of these judge advocates, officers with decades of experience in the law of war, considered the military commissions an affront to the military justice system to which they had devoted their careers.

Ethical and courageous military prosecutors, such as former Chief Prosecutor Colonel Morris Davis and Lieutenant Colonel Darrel Vandeveld, who took their oaths to defend the Constitution seriously, resigned rather than be party to trials using coerced evidence or to allow political considerations to interfere with their prosecutorial judgment. Professional military judges refused to be bullied into endorsing the administration’s strained interpretations of the law of war. Tenacious military defense counsel challenged the government at every turn, exposing the many flaws in this concocted legal system and the disgraceful brutality with which their clients had been treated. Through patient, professional advocacy both inside and outside the commissions, these lawyers managed to put the brakes on the military commission freight train and slow the proceedings to the point where it was a simple matter for President Obama to suspend them almost immediately after assuming office. This suspension period allows us an opportunity for reasoned debate about the shortcomings of the military commissions and their efficacy and utility.

Although I have become known as a fierce critic of the military commissions, I want to make it clear that I am not opposed to military commissions as a general matter, but rather am opposed to military commissions in their current form. I am a strong proponent of military justice and have no concerns about the military’s ability to provide a fair trial, even for our worst enemies, given a fair set of rules and procedures. In my law review article [“An Indelicate Imbalance,” an article about the Commissions for the American Journal of Criminal Law in 2007] I did not propose to abolish the military commissions, but rather suggested a number of legislative and regulatory changes to convert them into a viable, acceptable system. After practicing in the military commissions, I developed some additional concerns with the military commissions which also would require legislative action to address […].

Although I still believe it is theoretically possible to amend the MCA to create valid commissions, the best solution would simply be to repeal the MCA and start over to create military commissions that are not just loosely based on the UCMJ and Manual for Court-Martial [980 pages, PDF], but are virtually identical. Any proposed deviation from court-martial procedure would have to be carefully scrutinized to ensure that it was truly necessary and appropriate and not merely an effort to favor the prosecution. Any deviations, individually and cumulatively, from the rules and procedures for general courts-martial should be minimal, and must not significantly detract from the overall fairness of the proceedings. In my view, had we adopted a military commissions scheme that truly mirrored the rules and procedures for general courts-martial, as was already authorized under federal law in 2001, we would not be in the position we find ourselves in today. The military commissions would have succeeded in providing fair trials and would not have been plagued by endless delays, challenges and setbacks.

*****

After running through his extensive list of proposed amendments, Lt. Col. Frakt nevertheless concluded by asking the members of the Committee to consider whether these would be sufficient to overcome an overarching problem with the Commissions, which has nothing to do with any kind of amendment, whether major or minor, and I conclude by reproducing his closing statements, as they return, with the utmost relevance, to the fundamental problems caused by the Bush administration’s insistence — reiterated by Congress when it passed the MCA — that criminal offenses could be regarded as violations of the laws of war.

Lt. Col. Frakt’s conclusion

The question this committee, and the rest of Congress, must consider is whether there is any point in continuing with military commissions. As President Obama has stated, military commissions are a legitimate forum in which to try offenses under the law of war, but this begs the question of whether there are any law of war offenses to try. If one were to review the charges brought against all of the approximately 25 defendants charged in the military commissions, as I have, one would conclude that 99% of them do not involve traditionally recognized war crimes. Rather, virtually all the defendants are charged with non-war crimes, primarily criminal conspiracy, terrorism and material support to terrorism, all of which are properly crimes under federal criminal law, but not the laws of war.

In fact, in my estimation, there has been only one legitimate war crime charged against any Guantánamo detainee, the charge of perfidy against Abdul Rahim al-Nashiri for his alleged role in the attack on the USS Cole in October 2000. But even though perfidy is a traditional offense under the law of war, convicting Mr. al-Nashiri of this offense requires accepting the dubious legal fiction that the United States was at war with al-Qaeda nearly a year before 9/11, for the law of war only applies during a war. In fact, most of the offenses with which the so-called “high-value detainees” are charged relate to events which occurred on or before 9/11, when the US was not involved in an armed conflict with al-Qaeda. Perhaps more to the point, Mr. al-Nashiri was also charged with several other non-law of war offenses arising out of the same conduct, including multiple charges carrying the death penalty, making the charge of perfidy redundant […].

If there are no real war crimes to prosecute, are there any good reasons to continue with military commissions? The Bush administration’s motive for creating military commissions was to establish a forum in which American standards of due process did not apply and convictions could be obtained for terrorism crimes (not law of war offenses) under summary procedures using evidence which would not be admissible in a regular court of law. The Obama administration has now rightly concluded that Constitutional due process standards should apply to military commissions, and that normal rules of evidence should apply. Modifying the military commissions to comport with due process and the rule of law will mean eliminating the very reason for their existence. Partially amending them with some minor cosmetic changes will result only in many more years of protracted litigation.

Among the over two hundred detainees still at Guantánamo, there are perhaps a few dozen who have committed serious offenses. I have yet to hear any compelling reason why any of these men could not be prosecuted under existing law in Federal Court. As the recent report by Human Rights First conclusively demonstrates [PDF], the federal courts are open, and have a long track record of successful prosecutions of terrorism cases. Military commissions have not proven to be faster, more efficient or less costly than the alternative. The logistical difficulties in trying cases in Guantánamo have proven to be incredibly vexing. With Guantánamo slated to be closed in the next six months, the military commissions will have to be relocated and a whole new infrastructure created to support the commissions. This could further delay the commissions for months or even years. Military lawyers, unlike federal prosecutors and federal public defenders, have no special expertise in prosecuting or defending complex international terrorist conspiracies. The entire military commissions experiment has been a massive drain on DoD resources and personnel at a time when the military can least afford it.

The only other reason I have heard advanced for the use of military commissions is the belief that a person who could not be successfully prosecuted in Federal Court because of evidentiary problems might be successfully prosecuted in a military commission. Those who make this argument are essentially conceding that military commissions do not and should not provide the same due process as a regularly constituted American court.

The desire to achieve convictions at all costs is simply not an acceptable basis for the creation of an alternative legal system. The reason that the military commissions failed — indeed, the primary mistake of the entire “War on Terror” — was the pervasive abandonment of the law by the prior administration. We must not repeat the mistakes of the past and continue to cut corners. We must remember that this war is ultimately a war about ideas and values. True American values guarantee justice and fairness for all, even for the vilified and unpopular. If there are terrorists and war criminals to be tried, let’s do it the old-fashioned way, in a fair fight in a real court with untainted evidence. America is better than the last eight years. It is time to prove it to the world, and to ourselves.

David Frakt is a law professor at Western State University College of Law and a Lieutenant Colonel in the USAF Reserves.

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.

Cross-posted on The Public Record and After Downing Street.

See the following for a sequence of articles dealing with the stumbling progress of the Military Commissions: The reviled Military Commissions collapse (June 2007), A bad week at Guantánamo (Commissions revived, September 2007), The curse of the Military Commissions strikes the prosecutors (September 2007), A good week at Guantánamo (chief prosecutor resigns, October 2007), The story of Mohamed Jawad (October 2007), The story of Omar Khadr (November 2007), Guantánamo trials: where are the terrorists? (February 2008), Six in Guantánamo charged with 9/11 attacks: why now, and what about the torture? (February 2008), Guantánamo’s shambolic trials (ex-prosecutor turns, February 2008), Torture allegations dog Guantánamo trials (March 2008), African embassy bombing suspect charged (March 2008), The US military’s shameless propaganda over 9/11 trials (April 2008), Betrayals, backsliding and boycotts (May 2008), Fact Sheet: The 16 prisoners charged (May 2008), 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), Predictable Chaos As Guantánamo Trials Resume (July 2009).

Tortured Logic (video): ACLU launches campaign to ask Eric Holder to investigate Bush and Cheney’s war crimes

The ACLU's Accountability for Torture projectYesterday, as part of its “Accountability for Torture” project (to which I contributed here), the ACLU launched a new campaigning video, “Tortured Logic,” in which ten people (including Oliver Stone, Philip Glass and a relative of one of the 9/11 victims) read out passages from the notorious torture memos, issued by the Justice Department’s Office of Legal Counsel (OLC), which were released by the Obama administration in May.

The purpose of the video, as ACLU Executive Director Anthony D. Romero explained on the Huffington Post, is not only to raise awareness of the illegal techniques that were cynically endorsed by the OLC’s lawyers (the very lawyers charged with interpreting the law as it applies to the Executive), but also to encourage Attorney General Eric Holder to appoint an independent prosecutor to investigate the Bush administration’s crimes.

As Romero wrote:

Recent reports that US Attorney General Eric Holder is considering appointing a prosecutor to investigate illegal torture carried out during the Bush administration is a positive sign, especially given President Obama’s desire to avoid what he has called “a backward-looking” inquiry. When Holder began studying the brutal acts carried out in America’s name, some of them even exceeding the horrors authorized in the infamous Justice Department torture memos, he reportedly said it “turned my stomach.”

Romero also noted that it was “deeply troubling” that reports have also emerged suggesting that any investigation “would focus only on low-level interrogators and contract employees,” and explained why the appointment of a independent prosecutor — put in place without limits on the scope of his or her investigations — remains of paramount importance:

There is ample evidence already in the public domain that the widespread and systemic torture of detainees was authorized at the highest levels of the Bush administration. This evidence comes from congressional reports, the torture memos themselves and even the boastful admissions of officials including former vice president Dick Cheney, who has been aggressively forthright in his defense of waterboarding. But notwithstanding all this evidence, there are still those who would reduce the authorization of these crimes by government officials to discretionary policy decisions. This cannot be the case in a nation where the rule of law means anything.

The video is available below (via YouTube), but please visit the ACLU’s “Tortured Logic” page for information about how, with just a few clicks of the mouse, you can share it with friends and, most importantly, send a message to the Attorney General asking him to do the right thing, and to begin the essential process of reclaiming America’s moral stature in the world, to ensure that no one, least of all the occupants of the White House, is above the law.

Remember, if Eric Holder fails to act, it will send a clear message that the President, the Vice President and their closest advisors can break the law with impunity — and shape America into a nation that tortures — so long as they’re voted out of office at the end.

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 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.

A Plea To Barack Obama From The Guantánamo Uighurs

Two Uighur prisoners in Guantánamo protest their continued detention, June 2009Four and a half months ago, 17 unjustly detained prisoners in Guantánamo wrote a letter to President Obama asking for their release. In the secretive world of Guantánamo, however, nothing is straightforward, and it has taken over four months for the letter to be cleared by the government’s censors and sent on to the White House.

The men who wrote the letter are Uighurs, Muslims from China’s Xinjiang province, who had fled their homeland because of Chinese persecution, and were sold to US forces by opportunistic Pakistani villagers during the US-led invasion of Afghanistan in 2001.

The majority of these men were cleared for release from Guantánamo by military review boards between 2004 and 2006, although they remained at Guantánamo because it was unsafe to return them to China, and because no third country could be found that would accept them (after Albania risked the wrath of China by accepting five other Uighur prisoners in May 2006).

After the Supreme Court granted constitutionally guaranteed habeas corpus rights to the Guantánamo prisoners in June 2008, one of these men won a stunning court victory, and in the months that followed the government gave up all pretense that any of the men were “enemy combatants,” who could continue to be held without charge or trial.

In October, when their habeas corpus case was heard in a District Court in Washington D.C., Judge Ricardo Urbina had no hesitation in declaring that their continued detention was unconstitutional, and, because no other country had been found that would accept them, ordered their release into the care of communities in the United States, who had prepared detailed plans for their resettlement.

Even then, their long and unjust imprisonment did not come to an end. The notoriously Conservative Court of Appeals — supported by President Obama’s Justice Department — overturned Judge Urbina’s ruling in February, gutting the lower courts’ ability to order the release of prisoners after successful habeas appeals, in spite of the clear intent of the Supreme Court’s ruling, and handing the effective power over the prisoners’ fates back to the Executive, which, as a result, now has the same arbitrary power over the release of prisoners that was wielded by the Bush administration.

Shortly after this ruling was delivered by the Court of Appeals, ten of the Uighurs wrote a letter to Barack Obama asking for their release. However, in Guantánamo, every word written or uttered by the prisoners (and their lawyers) is presumptively classified until it is cleared by a Pentagon review team, and it took over four months for the review team to clear the Uighurs’ letter for release, even though, in the end, not a single redaction was made, and even though the men’s lawyers had made repeated pleas for the Justice Department to expedite its clearance.

Since the letter was written, two of the signatories — Huzaifa (Parhat) and Abdulnassir (known to the Pentagon as Abdul Helil Mamut) — have been released from Guantánamo to begin a new life in Bermuda with two other Uighur ex-prisoners, but the other signatories remain, and I reproduce their letter below for two reasons: firstly, because it is such a clear appeal for justice from wrongly imprisoned men whose experience of the US government remains profoundly disappointing, despite the change of leadership; and secondly, to highlight the absurd and arbitrary system whereby the government’s censors can hold onto a two-page letter for over four months without being required to provide any explanation.

A letter to President Obama from the Guantánamo Uighurs, March 8, 2009

Mr. President Obama, the President of the United States of America,

We are the unfortunate people from a country called “East Turkistan,” which was occupied by China forcefully 60 years ago. The region is now called “Xinjiang” by the Chinese authorities. Seven years ago we have left (our homeland) due to the suppression by the Chinese government and went to Central Asia and later went to Afghanistan through Pakistan. The Pakistani government sold us to the US and later we were brought to Guantánamo Bay and left here. After 6 years of investigations, the US military confirmed that we are innocent.

We are innocent civilians; however, we are currently still being held in jail. Although we are innocent people, the food we are consuming is the food prepared for prisoners. The clothes we are wearing is prisoners’ clothes. We are surrounded with barbed wire. We can only see the sky and a view of a littler bit of the ocean from the small opening in the fences (because the barbed wire fences are covered with material so we won’t see the outside).

The military guards who are jealous of the little comfort items we have and the food we receive always try to tell the chain of command and the government rumors about us for the purpose of getting us into trouble. Conversely, in the outside world they are saying, “The Uighurs are innocent and they are receiving special treatment. They will be released soon.”

Although we, the Uighurs, were arrested during the Bush era “wrongfully,” we were later blamed as “enemy combatants” and went through tremendous hardships during these 7 years. Our attorneys have told us repeatedly in the past that President Bush is not doing the right thing by keeping us here and if Obama becomes the President, he will be different and everything is going to be much better, and we also believed in that. But it has been several months since you became the President and we are still in jail here. The dark days are still lasting for us. The word “freedom” is eventually disappearing from our heads.

We have heard many times that European countries are saying if the US officially asks them to accept us then they would. But the US is not taking that step and we are still left in prison here. We do not believe that there is no country out there that would give us political asylum. We do not believe that the US government cannot find a solution for the Uighur issue here. The US government is not willing to release us to the outside world. Why is it?

We need freedom. We need a country who can guarantee our safety. How long can a man’s life last? Seven years of the beautiful times of our lives have been spent in prison cell blocks, wire and cement cages.

Mr. President Obama, please try to solve our issue in imperative scale, and bring justice to the innocents. Please do not carry on the injustice and wrong President Bush implemented.

Ahmad Tourson (ISN 201)
Abdul Ghappar Abdul Rahman (ISN 281)
Abdul Razak (ISN 219)
Khalid (ISN 280)
Abdusabur (ISN 275)
Huzaifa (ISN 320)
Abdulnassir (ISN 278)
[Three other names were withheld at the request of their attorneys]

March 8, 2009

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

As published on the Huffington Post.

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), Andy Worthington Discusses Guantánamo on Democracy Now! (June 2009), Guantánamo And The Courts (Part One): Exposing The Bush Administration’s Lies (July 2009), Is The World Ignoring A Massacre of Uighurs In China? (July 2009), Chair Of The American Conservative Union Supports The Guantánamo Uighurs (July 2009), Three Uighurs Talk About Chinese Interrogation At Guantánamo (July 2009), House Threatens Obama Over Chinese Interrogation Of Uighurs In Guantánamo (July 2009), A Profile of Rushan Abbas, The Guantánamo Uighurs’ Interpreter (August 2009), and the stories in the additional chapters of The Guantánamo Files: Website Extras 1, Website Extras 6 and Website Extras 9.

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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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