Archive for September, 2009

Another Blow To Britain’s Crumbling Control Order Regime

The logo of the Home OfficeAccording to the British government, a Kurdish Iraqi imam living in the north of England was such a threat to national security that, for the last three years and four months, he was subjected to a control order, a form of house arrest involving, but not limited to curfews, tagging, Home Office vetting of all visitors, a ban on the use of computers and mobile phones, and random security checks at all times of the day or night.

The government has maintained, since May 2006, that it was relying on secret evidence to justify its conclusion that this man — identified only as AE — posed a significant terrorist threat, and that the control order was necessary because it could not compromise its intelligence sources and methods by putting him on trial, which, it maintained, might lead to sensitive information being revealed in court. However, last week, in the wake of a ruling by the Law Lords in June, which gave the government only two options — to provide more information to the control order detainees, to allow them to challenge the basis of their control orders, or to release them outright — home secretary Alan Johnson announced, in a letter to AE’s solicitors, that he had chosen the latter option, and that AE was now a free man.

This outcome had been expected since June, because AE’s case was due in court next week, and the government already knew that a judge would quash his control order, unless officials agreed to provide him with sufficient evidence to challenge his control order, because this is exactly what happened in July, in the cases of two British nationals, and was repeated three weeks ago, in the case of a joint British-Libyan national identified only as AF.

To understand how we came to such a bizarre and ridiculous situation in which, one minute, a man is regarded as one of the most dangerous terror suspects in the UK and held on a control order, and the next minute is a free man, because the government is unwilling to have its evidence tested objectively, we need to return to March 2005, when the control order regime was first implemented, and to understand that, from the beginning, it was an ad hoc system cooked up in haste to replace the government’s previous method of holding terror suspects without charge or trial — imprisoning them in Belmarsh high-security prison — which the Law Lords had ruled illegal in December 2004, three years after it was first introduced.

Critics of the system stated from the beginning that depriving men of their liberty on the basis of secret evidence and refusing to put them on trial because of an anachronistic desire to protect intelligence sources and methods was both unjust and unnecessary, because of the appalling secrecy — special advocates were appointed to deal with the secret evidence in closed sessions, but were prohibited from telling their clients anything about what took place in those sessions — and because organizations like JUSTICE, the all-party law reform and human rights organization, had been demonstrating for years (PDF) that most countries in the world had found ways of presenting sensitive information in court (intercept evidence, for example) without compromising intelligence sources and methods, and that the UK should be no exception.

However, it was not until June that the government was finally obliged to take notice of the mounting opposition to the system, when the Law Lords ruled unanimously that imposing control orders breaches Article 6 of the European Convention on Human Rights, which guarantees the right to a fair trial, because a suspect held under a control order is not given “sufficient information about the allegations against him to enable him to give effective instructions to the special advocate assigned to him.”

In the wake of the Lords’ ruling, the government tried to maintain its composure. Alan Johnson stated that the judgment was “extremely disappointing,” and added, “All control orders will remain in force for the time being and we will continue to seek to uphold them in the courts. In the meantime, we will consider this judgment, and our options, carefully.”

However, it was clear that the regime’s days were numbered, and this was confirmed when, in two cases in July, Mr. Justice Mitting ruled that the government was obliged to drop a control order against a British national and a father of five, identified only as BM, who, in May, was forced to move from his home in east London to a one-bedroom flat in Leicester on the basis of claims by the Home Office that he was “a prominent member of a network of Islamist extremists,” and followed up by ruling that the government’s secrecy regarding the evidence against another British national, identified only as AN, had “gone so far as to deny AN knowledge of the essence of the case against him,” and it was reinforced when AF’s control order was quashed by a judge three weeks ago, and the home secretary again gave up the fight, choosing to grant AF his liberty rather than reveal any of the secret evidence against him.

Long-standing critics of the regime were not the only observers to wonder how dangerous these men could really be if, after years of being treated as though they were particularly explosive packages, who would detonate if left unobserved for more than a minute, the government chose to grant them total freedom rather than test the allegations against them in open court.

It follows, of course, that questions must inevitably be raised regarding the quality of the government’s supposed evidence, and the reliability of the intelligence services, and the only conclusion I can reasonably draw is that the government was content to deprive people of their liberty on little more than a whim, or a hunch based on ill-defined associations and untested raw intelligence reports, and certainly not on the basis of anything that could objectively be examined and considered as evidence.

While I wait to see whether the remaining 14 control orders will, as anticipated, also be quashed (and note that another appears to have been quietly dropped by the government over the last few months, with no fanfare and no announcements whatsoever), and while I also wait to see how the government will respond to forthcoming challenges in the cases of other men held on deportation bail, rather than on control orders, I leave the final word on AE’s case, for now, to Mohammed Ayub, his solicitor, who told the Guardian:

For three-and-a-half years he and his family have had to live a life which has been controlled in every respect by the Home Office: where he lives, when he may go out, where he may go, who he may meet, what employment he may undertake. During the whole of this period, he has never been told on what basis he is suspected of being a terrorist and he has never had a fair hearing before a court at which he could challenge the allegation made against him.

Ayub explained, as the Guardian described it, that AE, his wife and three children “might not get over the psychological harm of the past three years,” and added, “AE will consider carefully his legal options in respect of seeking damages from the home secretary for the wrong that has been done him and his family.” He also stated that control orders were “fundamentally oppressive and unfair”, and “flawed in their conception, execution and review.”

This prompted a rote response from a Home Office spokeswoman, who, as the Guardian put it, said that “revoking the order did not change the assessment that control orders remained the best available disruptive tool for managing the risk posed by suspected terrorists they could not prosecute or deport,” but it is unlikely that this “assessment” will prevail, as Alan Johnson has asked Lord Carlile, the government’s “independent reviewer” of terrorism laws, to report back on whether control orders should continue, and even Carlile, a supporter of the regime in principle, has stated in his annual reports (PDF) that no control order should be extended beyond two years “save in genuinely exceptional circumstances.”

In a recent statement, backed up by peers and MPs on the Parliamentary Human Rights Committee, Carlile refuted claims by the Home Office that “A definite end-date would mean individuals on control orders could simply disengage from involvement in terrorism-related activity on the basis that they knew they could re-engage at the end of that time period,” reiterating his assertion that control orders lasting more than two years can only be justified “in a few exceptional cases,” and telling the Committee, “After that time, at least the immediate utility of even a dedicated terrorist will seriously have been disrupted.”

With these opinions so publicly available, it appears that Lord Carlile is unlikely to present the government with a new escape route, and that the UK may, finally, have to rejoin the majority of the civilized world in accepting that, even in the struggle against terrorism, it is unacceptable to imprison men — or otherwise deprive them of their liberty — on the basis of secret evidence.

Note: For a BBC interview with AE, recorded in June, see here.

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

As published exclusively on Cageprisoners.

For other articles dealing with Belmarsh, control orders, deportation bail, deportations and extraditions, see Deals with dictators undermined by British request for return of five Guantánamo detainees (August 2007), Britain’s Guantánamo: the troubling tale of Tunisian Belmarsh detainee Hedi Boudhiba, extradited, cleared and abandoned in Spain (August 2007), Guantánamo as house arrest: Britain’s law lords capitulate on control orders (November 2007), The Guantánamo Britons and Spain’s dubious extradition request (December 2007), Britain’s Guantánamo: control orders renewed, as one suspect is freed (February 2008), Spanish drop “inhuman” extradition request for Guantánamo Britons (March 2008), UK government deports 60 Iraqi Kurds; no one notices (March 2008), Repatriation as Russian Roulette: Will the Two Algerians Freed from Guantánamo Be Treated Fairly? (July 2008), Abu Qatada: Law Lords and Government Endorse Torture (February 2009), Ex-Guantánamo prisoner refused entry into UK, held in deportation centre (February 2009), Home Secretary ignores Court decision, kidnaps bailed men and imprisons them in Belmarsh (February 2009), Britain’s insane secret terror evidence (March 2009), Torture taints all our lives (published in the Guardian’s Comment is free), Britain’s Guantánamo: Calling For An End To Secret Evidence, Five Stories From Britain’s Guantánamo: (1) Detainee Y, Five Stories From Britain’s Guantánamo: (2) Detainee BB, Five Stories From Britain’s Guantánamo: (3) Detainee U, Five Stories From Britain’s Guantánamo: (4) Hussain Al-Samamara, Five Stories From Britain’s Guantánamo: (5) Detainee Z, Britain’s Guantánamo: Fact or Fiction? and URGENT APPEAL on British terror laws: Get your MP to support Diane Abbott’s Early Day Motion on the use of secret evidence (all April 2009), and Taking liberties with our justice system and Death in Libya, betrayal in the West (both for the Guardian), Law Lords Condemn UK’s Use of Secret Evidence And Control Orders (June 2009), Miliband Shows Leadership, Reveals Nothing About Torture To Parliamentary Committee (June 2009), Britain’s Torture Troubles: What Tony Blair Knew (June 2009), Seven years of madness: the harrowing tale of Mahmoud Abu Rideh and Britain’s anti-terror laws, Would you be able to cope?: Letters by the children of control order detainee Mahmoud Abu Rideh, Control order detainee Mahmoud Abu Rideh to be allowed to leave the UK (all June 2009), Testing control orders and Dismantle the secret state (for the Guardian), UK government issues travel document to control order detainee Mahmoud Abu Rideh after horrific suicide attempt (July 2009), Secret evidence in the case of the North West 10 “terror suspects” (August 2009), Letting go of control orders (for the Guardian, September 2009).

Please come to a Guantánamo demonstration in Parliament Square on Saturday October 3

“Stop the Spread of Guantanamitis” is a demonstration organized by Amnesty International’s Islington and Hackney Group — with support from the London Guantánamo Campaign, Redress, Peace Strike, the Helen Bamber Foundation, the Stop the War Coalition, CAMPACC (the Campaign Against Criminalising Communities) and the Haldane Society of Socialist Lawyers — to raise awareness of the plight of the remaining 225 prisoners in the US prison at Guantánamo Bay, Cuba, and also to discuss how “Guantanamitis” has infected international law around the world, leading to a situation whereby imprisonment without charge or trial, “extraordinary rendition” and torture have been disguised as necessary behavior — rather than as war crimes and criminal activities — by governments around the world.

Poster for "Stop the Spread of Guantanamitis"

On the day, those attending will be offered placards representing each of the prisoners still held. Singer-songwriter Sarah Gillespie will open the proceedings at 1 pm, and speakers who will address various aspects of “Guantanamitis” include solicitors Louise Christian and Imran Khan, Kevin Laue (Redress), Helen Bamber (of the torture survivors’ support group Helen Bamber Foundation), Sunny Hundal (Pickled Politics), Andy Worthington (journalist and author of The Guantánamo Files), and representatives of Amnesty International and Stop the War.

With doubts regarding President Obama’s ability to close Guantánamo by his self-imposed deadline of January 2010, revelations that the US prison at Bagram airbase still stands “outside the law” (due to attempts by the US government to resist granting rights to foreign prisoners “rendered” there from other countries, recent hints that “rendition” has resumed under President Obama, and an apparent refusal on the part of the US to reinstate the Geneva Conventions for prisoners seized in wartime), and a refusal on the part of the US authorities to thoroughly investigate the crimes of the Bush administration, the need to keep Guantánamo and the fallout from the “War on Terror” in the public eye is as important as ever. Please come along if you can!

Campaigners will also be raising awareness of the case of Shaker Aamer, a British resident (with a British wife and children) who is still held at Guantánamo, and will also be calling on the British government to offer a home to Ahmed Belbacha, an Algerian who lived in the UK for two years (and was in the process of applying for asylum), when he took a holiday in Pakistan at the wrong time, and was kidnapped and sent to Guantánamo. Belbacha has been cleared for release from Guantánamo since February 2007, but is terrified of being repatriated, as he faces threats to his life from both the Algerian security services and the Islamists whose threats encouraged him to seek asylum in the UK in the first place.

For further information, please contact Sophie Khan of Amnesty International. A Facebook page for the event is here.

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

Andy Worthington Discusses Guantánamo On Swiss TV

On Monday, I was delighted to be interviewed for Swiss National Television (SF), for a ten-minute feature, “Geheimakte Guantánamo,” on the main channel, SF1. The program followed an announcement that the Swiss government was entertaining the possibility of rehousing up to four cleared prisoners in Guantánamo, who cannot be repatriated because of fears that they will face torture in their home countries, and that representatives of the government had recently visited Guantánamo to review the cases of the four men — apparently, two Uighurs, an Uzbek and a Palestinian.

You’ll need to understand German to follow the interview — and the rest of the program, for that matter — but I was pleased that I had been asked to explain how prisoners had ended up in Guantánamo without anyone really knowing who they were — because the majority were handed over by the Americans’ Afghan or Pakistani allies, at a time when bounty payments for “al-Qaeda and Taliban suspects” were widespread, and also because, once they ended up in US custody, they were never adequately screened to ascertain whether or not they were combatants.

I also had the opportunity to explain how much of the supposed “evidence” against the prisoners was extracted from other prisoners, or from the prisoners themselves, under dubious circumstances (involving, on the one hand, coercion or torture, and, on the other, bribery; in other words, “confessions” in exchange for better living conditions), and to emphasize how these untrustworthy circumstances — and the equally unreliable “mosaics” of evidence built up by the intelligence services — have failed to persuade judges in 30 of the 37 habeas corpus petitions that have so far been ruled upon in US District Courts (as I explained at length in a series of articles here, here and here, with updates here and here).

As a result, although I was not asked for specific details of the men in question, I am aware that there should be no obstacle to any country in Europe (or elsewhere) accepting the Uighurs (as the Bush administration spectacularly dropped all charges against them last year), nor, more importantly, that there should be any obstacle to any country accepting other cleared prisoners either, as they were approved for transfer by military review boards during the Bush administration, have had their habeas corpus petitions approved by the US courts, or have recently been approved for release by the Obama administration’s interagency Guantánamo Task Force, established on President Obama’s second day in office.

The fact that doubts may remain about some of these men (and in Switzerland, as elsewhere, it seems that discussions regarding rehousing prisoners are largely split along conservative/liberal lines) is less to do with the quality of the “evidence” against them, and more to do with the fact that President Obama has not sufficiently acknowledged the chronic failures of the Bush administration’s detention policies in the “War on Terror” (allowing his opponents to take the initiative and pass legislation preventing any prisoners from being resettled in the United States), and, perhaps, that visiting Guantánamo to review military case files is not the best way to receive a balanced picture of the prisoners. In the case of the Uighurs, moreover, the situation is further complicated by fears that accepting any of the men will cause a diplomatic rift with the People’s Republic of China.

My conclusion, which I am happy to repeat if it is of any use at all, is that the taint of Guantánamo is — with the exception of the few dozen prisoners regarded as having a genuine involvement with terrorism — an almost intolerable burden on those who need new homes after being held for nearly eight years, mostly without charge or trial, in a prison that is both widely and accurately regarded as a stain on all notions of justice. Only in Guantánamo could doubts still remain about men whose release has been ordered by US courts or recommended by a military review board or an interagency Task Force.

To help bring the abomination that is Guantánamo to an end, countries in Europe need to ignore the hype, and to be reassured that the US government has no intention of releasing prisoners who might pose a threat to anyone. They might also, in private, ask President Obama to speak out more, to make this clear, and also to help them explain to their own citizens why they are being asked to clean up the mess left by the Bush administration, while the US itself refuses to do the same.

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. Also see my definitive Guantánamo prisoner list, published in March 2009, and if you appreciate my work, feel free to make a donation.

9/11 Trial At Guantánamo Delayed Again: Can We Have Federal Court Trials Now, Please?

The five Guantanamo prisoners charged in connection with the 9/11 attacksOn Monday, following a request from the Obama administration, Army Col. Stephen Henley, the military judge in the proposed trial by Military Commission of five men charged in connection with the 9/11 attacks — Khalid Sheikh Mohammed, Ramzi bin al-Shibh, Mustafa al-Hawsawi, Ali Abdul Aziz Ali and Walid bin Attash (from top to bottom in photo) — agreed to the government’s proposal for a 60-day stay in the proceedings, to give the administration more time to decide what it wants to do next.

The Military Commissions, established by former Vice President Dick Cheney in November 2001 and revived by Congress in 2006, after the Supreme Court ruled them illegal, were frozen for four months by President Obama on his first day in office, and then frozen again four months later, and the request for this third delay — apparently just for two months this time, until November 16 — cannot disguise the fact that Congress is struggling to establish new rules for the Commissions in an attempt to iron out problems with the much-criticized trial system, and that the administration is struggling with a decision about whether to proceed with the Commissions, or to put prisoners forward for trials in federal courts instead (as happened in June with a solitary “high-value detainee,” Ahmed Khalfan Ghailani, whose trial in New York is scheduled to begin in September 2010).

Last week, the government was spurred to action by lawyers for Ramzi bin al-Shibh, whose mental competence to stand trial has been disputed by his lawyers since pre-trial hearings began last year. In what Carol Rosenberg of the Miami Herald described as “a 71-page broadside against the war court created by the Bush administration,” bin al-Shibh’s lawyers described the court as “not a legitimate judicial proceeding but a political show trial” (PDF), prompting a 30-page response from the Justice Department, in which Assistant Attorney General David Kris argued that the lawyers’ claim of “constitutional defects in the Military Commissions Act are without merit” (PDF).

Despite the fact that Kris had been put forward to prevent the planned resumption of pre-trial hearings at Guantánamo this week, while government lawyers continue their deliberations regarding the Commissions’ future (and partly, I suspect, because the last two outings were so disastrous), he appeared, in summer, to deal a major blow to the continuing rationale for the Commissions. In Congressional testimony (PDF), he conceded that one of the mainstays of the charges in the Commissions — providing material support for terrorism — should be dropped because there was a “significant risk” that, on appeal, judges would not regard it as a legitimate war crime.

Critics were quick to remark that this appeared to rule out two of the Commissions’ only three verdicts — in the cases of David Hicks and Salim Hamdan, who were both convicted solely on the basis that they provided material support for terrorism — but while these arguments continue behind the scenes (and lawyers for the third man, Ali Hamzi al-Bahlul, appeal his conviction and life sentence last November, in a trial in which he refused to mount a defense), Kris told the court only that the government was seeking a 60-day delay in the 9/11 cases because “a decision might be made to prosecute [bin al-Shibh] in federal court.”

For the purposes of justice, it must be said, these developments are good news. Scarcely in its history has the United States entertained such a shabby and shamelessly politicized travesty of justice as the Military Commissions, which stumbled from one embarrassment to another in their long and almost entirely unproductive history during the Bush years.

Moreover, although President Obama has managed to secure some support from within his administration — and within the Senate — for his ghoulish proposal to bring the Commissions back from the dead for a second time, the House of Representatives has, to date, refused to endorse the changes to the Military Commissions Act that have already been approved by the Senate, and, as Carol Rosenberg explained, “has given no indication when or if it will take up the matter.”

This is another good sign, because, although the proposed changes, which include a ban on the use of evidence obtained through coercion and restrictions on the use of hearsay as evidence, convinced the politicians in Congress (largely the same people who passed the hideously flawed Military Commissions Act back in 2006, which introduced “material support for terrorism” as a war crime in the first place), experts with a far greater understanding of the inherent problems of the system queued up over the summer to tell various Senate and House Committees why the proposals were a bad idea, and also why they were doomed to fail.

I wrote at the time about the testimony of Adm. John Hutson, about the testimony of Lt. Col. Darrel Vandeveld (the prosecutor who resigned after seeing first-hand how the Commissions were incapable of delivering justice), and about the testimony of Maj. David Frakt, a military defense attorney in the Commissions, who reminded a House Committee of the trial system’s fatally flawed origins, and who spelled out, with unassailable clarity, why federal courts are more adequately equipped than the military to handle the limited number of genuine terrorism cases at Guantánamo.

These were not the only critics. Others included Denny LeBoeuf, Director of the ACLU’s John Adams Project, who provided a detailed analysis of the Commissions’ failings based on her observations of the pre-trial hearings in the 9/11 trial, and on a forensic dissection of the weaknesses in the Senate Committee’s legislation (PDF), and in a recent article on the release from Guantánamo of Mohammed Jawad, I included excerpts from the testimony of Col. Peter Masciola, the Commissions’ Chief Defense Counsel. Col. Masciola explained how the Commissions’ Convening Authority — a post still held by Susan Crawford, a close friend of both Dick Cheney and his right-hand man, David Addington — is an “untenable and inherently conflicted role.” As he described it, drawing from bitter experience, without a radical review of the Convening Authority’s role, which is not addressed in the Senate bill aimed at reviving the Commissions, it will remain a job for a political appointee with prosecutorial functions, who is also responsible for providing — or, as Col. Masciola demonstrated, mostly refusing to provide — the defense teams with any of the resources needed to do their job.

Recently, I also came across another damning document confirming the unsuitability of Military Commissions for cases related to terrorism. Just three weeks ago, the National Institute of Military Justice (a non-profit organization established in 1991 to advance the fair administration of military justice and foster improved public understanding of the military justice system) produced a report, “NIMJ Reports From Guantánamo” (PDF), in which a number of observers reported on their visits to Commission hearings between October 2008 and January 2009.

Two accounts were particularly noteworthy. In the first, Jonathan E. Tracy, NIMJ’s Assistant Director (and a former member of the Army Judge Advocate General’s Corps) noted that, “while the lawyers and judges all operated professionally and seemed eminently qualified, there is no escaping the fact that the commissions are ad hoc proceedings with little or no legal precedent on either substantive or procedural issues,” and that “the system contains several inherent flaws that make for lopsided justice, no matter how qualified the defense counsel.”

Tracy observed proceedings in the cases of Omar Khadr (the Canadian who was just 15 years old when he was seized) and Mohammed Kamin (at best, a minor Afghan insurgent) and he was appalled, in particular, by what he perceived as the persistent refusal of prosecutors to provide discovery to the defense “in a timely manner “ — if at all. After also revealing his dismay that questions about Kamin’s mental competency were subjected to an “inadequate investigation,” he concluded, “It was very apparent that the defense counsel in both cases face a daunting challenge getting access to evidence to which they are entitled. The tactics used by the government and their cavalier dismissal of charges of unfairness damage the credibility of the commissions.”

In the second account, Diane Marie Amann, a law professor and former Assistant Federal Public Defender, reported on her observation of pre-trial hearings in the cases of the 9/11 co-defendants in December 2008, and was shocked to note that, when it came to questions of self-representation, “not even the participants who are members of the bar were fully cognizant of the rules that governed the proceedings.” She also noted that, because the case involved difficulties raised by the use of “waterboarding or other harsh methods of interrogation,” the trial would “benefit from the certainty of precedent. Yet precedent is something utterly lacking in the military commissions.”

After also noting complaints from the prisoners regarding the poor quality of the interpreters (which she compared unfavorably to her recollections of interpreters in federal court), Amann concluded that nothing she had seen eased “the core concern” that had troubled her for several years: “specifically, that the post-9/11 military commissions are unlikely to afford fair trials to the defendants who appear before them.”

So bring on federal court trials, please — in which “material support for terrorism” is a genuine crime, as opposed to an invented war crime — and let’s give the Commissions the burial they deserve, in a grave marked, “Cheney’s Wretched Dreams.” As Reuters explained on Monday, Navy Capt. John Murphy, the Commissions’ chief prosecutor, told journalists at Guantánamo on Sunday that “Federal prosecutors in New York, Washington and Virginia are vying to try the accused plotters of the September 11 attacks if their cases are moved into US civilian courts.”

Adding that the courts in question are Washington, the Southern and Eastern Districts of New York, and the Eastern District of Virginia, Capt. Murphy also explained, “They are working with us in a joint review of these cases and it is our collaboration that will ultimately make its way in written reports that go up to the Attorney General and the Secretary of Defense to make a decision.” He also said that he “still hopes” to try 65 of the remaining prisoners in trials by Military Commission, but conceded that some of the 65 had “already been indicted in US federal courts,” although he “would not say how many.”

After four years of research into the stories of the Guantánamo prisoners, I have profound doubts that viable cases can be established against as many as 65 prisoners — unless the administration is really determined to pursue Taliban foot soldiers in the courts, rather than al-Qaeda terrorists — but it was refreshing to hear that Capt. Murphy was talking so openly about the possibility of federal court trials.

As Maj. David Frakt explained in the one-man demolition job that he conducted on the Commissions during his testimony to a House Committee in July, “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.”

More crucially, as Maj. Frakt also explained:

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.

Note: For more NIMJ documents relating to the Commissions, visit the website here.

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

As published on the Huffington Post and Antiwar.com. Cross-posted on The Public Record.

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).

Court Allows Return Of Guantánamo Prisoners To Torture

A prisoner in GuantanamoAs rumors swirl, suggesting that a number of the remaining 13 Uighur prisoners in Guantánamo (Muslims from China’s Xinjiang province) may soon be relocating to the tiny Pacific island state of Palau, a court case relating to nine of these men threatens to hurl a number of other prisoners in Guantánamo, who have also been cleared for release, into a new maelstrom of uncertainty regarding their future, by removing long-standing injunctions preventing their return to countries where they face the risk of torture, or removing other requirements that, in anticipation of a transfer, the government provides their lawyers with 30 days’ warning.

The trigger for this sudden shifting of legal protections for some of the most vulnerable prisoners in Guantánamo (from countries with notoriously poor human rights records, including Algeria, Libya, Tunisia and Uzbekistan) was the response to a ruling last October, by District Court Judge Ricardo Urbina, after the government (reeling from a shocking court defeat in June) conceded that it could no longer claim that the Uighurs were “enemy combatants.” Judge Urbina ruled that they should be relocated to the US mainland, because the government conceded that it was unsafe to return them to China, because no other country had been found that would accept them, and because continuing to hold them in Guantánamo was unconstitutional.

The government disagreed, and appealed Judge Urbina’s ruling, and when the Court of Appeals came to review the case, a panel of three judges — including Judge A. Raymond Randolph, a man noted for endorsing every Bush administration policy regarding the “War on Terror” that was subsequently overturned by the Supreme Court — reversed Judge Urbina’s ruling, deciding that the courts had no business interfering in immigration policies that were the preserve of the Executive.

The judges were seemingly unmoved that this would leave the Uighurs (and, very possibly, others in Guantánamo) with no means of leaving the prison, and that it stripped the Supreme Court’s ruling in June 2008, granting the prisoners habeas corpus rights, of all practical meaning, if it was not possible for judges to order their release. In the judges’ words, however, “the political branches have the exclusive power … to decide which aliens may, and which aliens may not, enter the United States, and on what terms.”

In response to the ruling, the Uighurs’ lawyers filed a petition with the Supreme Court (a writ of certiorari, essentially a petition asking for a judicial review). A date in June was set for a hearing, amid fears from the lawyers that the government would find other countries to take the Uighurs before that date, so that the Supreme Court could be persuaded not to review the Circuit Court’s ruling, and to rule on whether it was indeed acceptable that the Executive should be able to gut the lower courts’ habeas rulings of all meaning by refusing to allow judges to order the prisoners’ release.

In the end, the government managed only to dispose of four of the Uighurs before the deadline (sending them to Bermuda), but the Supreme Court then decided to refrain from hearing the case until October, perhaps to give the government time to resolve the issue itself.

This case, Kiyemba v. Bush (which became Kiyemba v. Obama) is now known as “Kiyemba I,” because, in response to the ruling by the Court of Appeals, the Uighurs’ lawyers submitted an appeal on their clients’ behalf, also filed as Kiyemba v. Obama, and now known as “Kiyemba II.” In the brief, they asked the Court of Appeals to reconsider its opinion en banc (in other words, with all the judges ruling, instead of just a panel of three), and also sought assurances that the courts would be able to act if the government proposed sending their clients to countries where they faced the risk of torture.

However, not only did the court refuse to reconsider its ruling, but the judges also refused the Uighurs’ request for the court’s assistance “to prevent their transfer to a country where they are likely to be subjected to further detention or to torture” (PDF), drawing on Munaf v. Geren, a case from 2008 in which “two American citizens held in the custody of the United States military in Iraq petitioned for writs of habeas corpus, seeking to enjoin the Government from transferring them to Iraqi custody for criminal prosecution in the Iraqi courts.”

In Munaf, although “The Court held the district court had jurisdiction over the petitions,” it also ruled that “it could not enjoin the Government from transferring the petitioners to Iraqi custody,” because “that concern is to be addressed by the political branches, not the judiciary.”

The court added that strenuous efforts had been made by the US government not to transfer prisoners to countries where they might face torture, and “The upshot is that the detainees are not liable to be cast around willy-nilly without regard to their likely treatment in any country that will take them,” but in any case, as the judges also explained, “the district court may not question the Government’s determination that a potential recipient country is not likely to torture a detainee,” because “The judiciary is not suited to second-guess such determinations.”

With that decision, effectively, the case was lost. The Uighurs’ lawyers announced their intention to appeal this second ruling to the Supreme Court, and it is currently anticipated that the Supreme Court will address both “Kiyemba I” and “Kiyemba II” sometime next month.

Ahmed BelbachaHowever, the fallout from the Court of Appeals’ insistence that no court is empowered to prevent the government from sending prisoners wherever it wishes has had a disturbing knock-on effect on other cases (as many as 150 of the remaining 225 prisoners, according to SCOTUSblog), in which lawyers have, since 2005, persuaded the courts to order the government to provide 30 days’ notice in advance of any proposed transfer, and, in some cases, including that of Ahmed Belbacha, an Algerian who had lived in the UK, have secured injunctions preventing any attempt to repatriate their clients.

Belbacha’s case is, in many ways, emblematic of the issues at stake. Although he was cleared for release from Guantánamo by a military review board in February 2007, he is terrified of returning to Algeria, where he fears persecution both by the government and by the Islamists whose threats forced him to flee his homeland in the first place. His case has attracted widespread support from human rights organizations, and has also received international media coverage.

Since the Court of Appeals made its ruling in “Kiyemba II,” lawyers have been aware that the 30-day notices and injunctions were under threat, but it was not until September 8, when the court issued its mandate regarding “Kiyemba II”, which formally implements its ruling, that the way was paved for the government, if it wishes, to lawfully repatriate prisoners who, like Belbacha, would rather remain in Guantánamo than return home.

As a result, Belbacha’s lawyers have filed a motion with the Court of Appeals asking the judges “to hold this case in abeyance pending the Supreme Court’s disposition of a petition for certiorari that the petitioners in Kiyemba intend to file.” The judges may well respond by reiterating that they are secure in assurances from the government that “the detainees are not liable to be cast around willy-nilly without regard to their likely treatment in any country that will take them,” but with just four months to go until the deadline is reached for Obama’s promised closure of Guantánamo, it is, I believe, legitimate to entertain fears that the administration may wish to repatriate cleared prisoners to countries it regards as safe (following “intense diplomatic negotiations,” or some such explanation), but which the prisoners and their lawyers still regard as a profound threat.

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. Also see my definitive Guantánamo prisoner list, published in March 2009, and if you appreciate my work, feel free to make a donation.

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

Freed From Guantánamo, Mohammed Jawad Celebrates Eid With His Family

Mohammed JawadEarlier today I published an exclusive article about Mohammed Jawad, the Afghan prisoner, seized as a teenager, who was freed from Guantánamo last month, in which Maj. David Frakt, his military defense attorney (who also represented him in the habeas corpus case that resulted in his release) described the contributions made by other members of the defense team, and especially Maj. Eric Montalvo, who made two investigative trips to Afghanistan before his release, and who also accompanied him when he was finally freed.

As a follow-up, I’m posting below (via YouTube) a report from al-Jazeera about Mohammed Jawad celebrating Eid ul-Fitr for the first time in seven years with his family.

In the report, broadcast on Sunday, Jawad told reporter Zeina Khodr, “Eid is a day of happiness. Prisoners in Guantánamo, they have children, and they want to be with them. They are innocent. They called me a terrorist. Now they know I was just an innocent child.” His uncle, Haji Naik Gul, added, “Seven Eids we spent without him. We were worried, wondering whether he was eating. We didn’t know anything about him.”

As Jawad also explained to Zeina Khodr, “They violated all rights for children. The Americans say they are human rights lovers, but I am a human being. They didn’t respect the fact that I was a child. They tortured me, and kept me illegally in prison.”

Mohammed also explained to Khodr that he believes that at least 25 Afghans are still held at Guantánamo, but as Khodr added, “it’s not only Guantánamo. Hundreds of others are imprisoned at a US military base here in Kabul. Bagram holds approximately 600 detainees, the majority Afghans, many held for years without trial or charge.” She also discussed the Obama administration’s recent plans to introduce tribunals for the Bagram prisoners, which I discussed at length — and with profound skepticism — in two articles last week, “Obama Brings Guantánamo And Rendition To Bagram (And Not The Geneva Conventions),” and “Is Bagram Obama’s New Secret Prison?

As for Mohammed Jawad, as Zeina Khodr also explained, “[He] is now free, but he says his happiness won’t be complete until the release of all detainees.”

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. Also see my definitive Guantánamo prisoner list, published in March 2009, and if you appreciate my work, feel free to make a donation.

The Unsung Heroes Who Helped Secure Mohammed Jawad’s Release From Guantánamo

Mohammed Jawad greets family and friends on his return from Guantánamo, August 24, 2009 (photo Rafiq Maqbool/AP)On August 24, Mohammed Jawad, an Afghan prisoner who was, perhaps, as young as 12 when he was seized after a grenade attack in Kabul in December 2002 and transported to Guantánamo, was finally freed after his habeas corpus petition was granted, and returned to Afghanistan, where he was welcomed by President Hamid Karzai, who offered to help him readjust to his new-found freedom by providing him with a house, and the Defence Minister, Abdul Rakhim Wardak, who offered to pay for him to study overseas, following a statement by Jawad, in which he announced that he would like to study to become a doctor.

I had been reporting Jawad’s story since October 2007, when he was first put forward for a trial by Military Commission (the “terror trials” introduced by former Vice President Dick Cheney in November 2001), despite his age, despite the fact that a grenade attack in wartime is not a war crime, and despite severe doubts that he actually threw the grenade.

I had also written extensively about the fine work undertaken on his behalf — and against the Commissions in general — by his military defense attorney, Maj. David Frakt, who delivered a compelling speech to a House Committee in July, and by his former prosecutor, Lt. Col. Darrel Vandeveld, who resigned as a prosecutor in September 2008, when — based largely on his experience of Jawad’s case — he declared that the Commissions were incapable of delivering justice, and followed up by submitting a stunning submission in Jawad’s habeas corpus petition in January 2009 and a powerful speech to a Senate Committee in July.

I had also praised Col. Stephen Henley, the judge in Jawad’s proposed trial by Military Commission, who had effectively demolished the case against him last October and November, when he ruled that the government’s primary evidence — confessions made to Afghan and US forces shortly after his capture – could not be used because they had been extracted through threats of torture, and Judge Ellen Segal Huvelle, who had denounced the government’s case against Jawad during his habeas hearing in July, when she condemned the Justice Department for its persistent obstruction, and 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 who finally granted his habeas petition on July 30.

I was aware of some of the contributions made by another member of the defense team, Maj. Eric Montalvo, as I had written, in June, about a visit to Afghanistan that had recently been made by Maj. Montalvo, who had come up with the latest information about Jawad’s possible age at the time of his capture, and had also been liaising with the Afghan authorities to encourage them to play a part in securing his release. However, it was not until I contacted Maj. Frakt, to congratulate him personally for the part he played in securing Jawad’s release, that I learned how extensive had been the role played by Maj. Montalvo, and how Maj. Frakt hoped that the contributions of other members of the defense team would also be recognized.

Maj. David FraktAs a result of these discussions, I reproduce below what Maj. Frakt told me about the unsung heroes in Mohamed Jawad’s case.

David Frakt: Thank you for recognizing the contributions of the Jawad defense team. The extraordinary story of how Maj. Montalvo ended up in Kabul is also worthy of comment. When I arrived at the Office of Military Commissions-Defense in April 2008, we were extremely shorthanded and I was assigned two cases to try on my own. In the summer of 2008, additional military defense counsel started showing up at OMC-D looking for work. In late June, I asked the eminently capable Lt. Cmdr. Katharine Doxakis (a Navy Reservist, soon to be promoted to Commander) to join the defense team on both the Jawad and al-Bahlul cases [the latter refers to the case of Ali Hamza al-Bahlul, which I covered here and here].

Lt. Cmdr. Doxakis made her first court appearance with me at a two-day hearing in August. At that point, it appeared that Mr. Jawad was headed to trial (a trial date was actually scheduled for December 2008, then moved to January 2009 due to the government’s inability to provide discovery in a timely manner, then delayed again due to a government appeal of Judge Henley’s ruling suppressing Mr. Jawad’s “confessions” as the product of torture, before finally being postponed indefinitely when President Obama assumed office). Both Lt. Cmdr. Doxakis and I thought we needed another experienced trial lawyer on the Jawad defense team. When Maj. Eric Montalvo showed up later that month, we instantly hit it off. I immediately asked for him to be assigned to my team as assistant defense counsel.

Lt. Cmdr. Doxakis, Maj. Montalvo and I all worked together preparing for the next hearing, a suppression hearing in late September. It was shortly before this hearing that Lt. Col. Vandeveld resigned, and he appeared as a defense witness at this hearing. We had filed two suppression motions, one to suppress statements made to Afghan authorities, and one to suppress statements in US custody. Both were litigated at this hearing.

One of the difficulties with the Jawad case was that we were trying to reconstruct events from December 2002 based on very flimsy evidence. The investigation of the hand-grenade incident, such as it was, was incredibly shoddy and incomplete. Alleged witnesses had disappeared. Important evidence, such as a videotape of Jawad’s first interrogation, had also disappeared. We realized that in order to properly defend Jawad, we needed to conduct our own independent investigation into the crime, not just rely on the meager evidence provided by the government.

Unfortunately, at that time the Office of Military Commissions-Defense had no investigative personnel assigned to it. Accordingly, we were obliged to request funding for an investigator from the Convening Authority Susan Crawford [whose role overseeing the Commissions as an impartial advisor, despite her close connections with both Dick Cheney and David Addington, is discussed here and here]. We found an eminently qualified investigator with years of experience investigating murders and terrorism offenses. He had already investigated one high-profile case in Afghanistan. He was even willing to do the work for half his usual rate because he felt it was important that detainees be given an adequate defense. Our request, like virtually every other request for resources made to the Convening Authority, was denied [see the note at the end of this article for further details about how most requests for resources were denied by the Convening Authority]. We appealed the denial to the military commission, but at the September hearing, our motion was denied.

Maj. Eric MontalvoIt was clear that if we wanted to investigate, we were going to have to do it ourselves. Maj. Montalvo volunteered to go. As a combat-trained Marine, he was clearly our best choice to go into an active conflict zone to investigate. Lt. Cmdr. Doxakis was pregnant and I was preparing for the al-Bahlul trial in late October. Maj. Montalvo drafted another fine young Marine JAG, Capt. Chris Kannady, to join him on the trip. Maj. Montalvo’s mission to Afghanistan was highly successful. He located several key witnesses. Many of these witnesses gave very different descriptions of the events of December 17, 2002, than the statements that had been ascribed to them by the prosecution. Maj. Montalvo took detailed photos, videos and sketches of the scene of the attack. We were prepared to use these to prove that several of the key witness accounts by the government witnesses were physically impossible. Of course, the case never went to trial so we did not present our evidence in Court, but we did share it with the Justice Department and I believe that this ultimately led to their decision not to pursue an indictment against Jawad [following the granting of his habeas appeal by Judge Huvelle]. The evidence just wasn’t there.

Maj. Montalvo and Capt. Kannady also met with several senior Afghan officials. They explained to these officials what had happened to Jawad while in US custody to try to convince the Afghan government to press for Jawad’s release. In anticipation that Jawad would someday be released, they met with representatives from various agencies to determine what resources were available for Jawad upon his return and to begin to lay the groundwork for a rehabilitation and reintegration plan. Finally, they met with Jawad’s family and tribal representatives. They took videos of Jawad’s family to bring back to Jawad at Guantánamo. These provided a tremendous lift to Jawad’s spirits.

Maj. Montalvo and Capt. Kannady returned to Afghanistan in May 2009 to conduct additional investigation and to meet again with Afghan officials. On this trip, they persuaded the Afghan Independent Human Rights Commission to file a lawsuit forcing the Afghan government to seek Jawad’s return. They persuaded the Afghan Attorney General and Minister of Defense to support Jawad’s return and to promise not to reincarcerate him upon his return. They continued with their efforts to identify and establish relationships with organizations that could assist with the reintegration process for Jawad. They met with “new” witnesses that the government had identified. Once again, these witnesses’ accounts, as told to Maj. Montalvo, differed dramatically from what they had supposedly told the government.

When the government’s case against Jawad finally disintegrated for good in July, culminating in the grant of the writ of habeas corpus by District Judge Ellen Huvelle on July 30, the Jawad team immediately started making plans to assist with Jawad’s repatriation. I even asked the Judge to order the government to permit the defense to accompany Jawad home. She stated that she did not believe she had the authority to mandate the terms of release, but did strongly recommend to the government that defense counsel be permitted to be present.

Once again, the path to Afghanistan led through the Convening Authority Susan Crawford. All defense requests for funding for overseas travel must be approved by her. In early August, I submitted a request with a detailed justification, reproduced below:

Subject: Request for Team Jawad Travel To Afghanistan (U)

UNCLASSIFIED

Team Jawad proposes to send Major Eric Montalvo, Capt. Chris Kannady and their regular interpreter, Chand, to assist with the repatriation of Mohammed Jawad. Major Montalvo and Capt. Kannady have already made two trips to the theater and have all the necessary training and clearances to make the trip on short notice. More importantly, they have an established a network of contacts on the ground within the Afghan government, in the NGO community and with Mohammed’s tribe and family. Team Jawad is working with UNICEF, the ICRC, and other government agencies, NGOs and human rights organization within Afghanistan to ensure that he is provided appropriate counseling and rehabilitation services. Team Jawad needs to be present to ensure a smooth transition to the new team of social workers and other aid groups who will be overseeing his rehabilitation and reintegration. Major Montalvo and Capt. Kannady have received a number of personal assurances from senior government officials in Afghanistan, including the Minister of Defense, the Attorney General, and the Minister of Foreign Affairs, about what will happen to Mr. Jawad upon his return. Major Montalvo and Capt. Kannady need to be present to ensure that these promises are carried out.

There are a number of reasons why Team Jawad feels it is of paramount importance to be in Afghanistan to receive Mohammed when he arrives and to assist with his transition to Afghan society. Because of security rules at Guantánamo, Mohammed has been deprived of virtually all news from Afghanistan. He has no idea what is going on there now and is unaware of the seismic changes that have taken place in Afghanistan since he was detained in December 2002.  He will be landing in a war-torn country that is dramatically different from the place that he left seven years ago.  As the attached memorandum from the court-appointed psychologist attests, it is critical to have “familiar trusted adults” present when he reenters Afghan society after so many years in captivity. Mohammed’s lawyers are the only “familiar trusted adults” in his life. While one could argue that the representation of the client ends at the time charges are dropped, this has not traditionally been the practice of military defense counsel, who frequently continue to provide counseling and assistance after the criminal phase of representation has ended.

Team Jawad’s detailed counsel unanimously agree that under our duty of loyalty and thoroughness (required under the duty of competence) to our client, we have an ethical obligation to Mohammed that will not be fulfilled if one or more of us are not present to assist with his repatriation. As a matter of force protection, it is essential that we send a minimum of two officers.  It should be noted that US District Court Judge Ellen Segal Huvelle, at the time she granted the writ of habeas corpus, strongly recommended from the bench to the Department of Justice that Mr. Jawad’s lawyers be permitted to be present when he is turned over to Afghanistan. Clearly she did not believe that the representation ended upon ordering his release.  Indeed, I would suggest the US is obligated to provide Mohammed with the assistance of his lawyers in this critical stage.

Article 6 of the Optional Protocol to the Convention on the Rights of the Child on the Involvement of Children in Armed Conflict, which the US ratified in 2002, requires that “States Parties shall take all feasible measures to ensure that persons within their jurisdiction recruited or used in hostilities contrary to this Protocol are demobilized or otherwise released from service. States Parties shall, when necessary, accord to these persons all appropriate assistance for their physical and psychological recovery and their social reintegration.” Article 7 of the protocol provides that “States Parties shall cooperate in the rehabilitation and social reintegration of persons who are victims of acts contrary to this Protocol.”

As a child allegedly recruited to participate in armed conflict, Mohammed is considered a victim entitled to rehabilitation and social reintegration. Unfortunately, the US has woefully failed to fulfill its obligations under this binding international treaty for the last six and a half years. Mohammed was offered virtually no assistance for his physical and psychological recovery. Indeed, the abuses he received at the hands of the US are the primary cause of his psychological problems.  We cannot morally, ethically or legally abandon him now when he is actually about to be reintegrated into society.

An additional justification for sending Major Montalvo and Capt. Kannady is the strong level of international interest in this case. Mohammed’s plight has become a significant matter of worldwide interest in the media. Indeed, just yesterday, the New York Times devoted an entire editorial to his long ordeal and urged the Obama Administration to release him without delay.  The mistreatment of Mohammed, a juvenile, by the United States has generated significant anger in Afghanistan. This anger has been partially mollified by the fact that Mohammed has been so zealously and ably represented by his appointed military defense lawyers. It would not enhance the image of the US in Afghanistan at this critical period if we were to simply dump Mohammed unceremoniously on the Afghans. Having well-respected members of the US military present to aid in the repatriation process will undoubtedly generate favorable publicity and dampen negative feelings towards the US.

Finally, it is in the interests of all concerned that Mohammed be placed in a living situation where he has appropriate services available and is not at risk of being caught up in the ongoing armed conflict. Major Montalvo and Capt. Kannady can assess the security situation on the ground and ensure that suitable arrangements are made.

Thank you in advance for your prompt consideration of this request.

David J. R. Frakt, Major, USAFR
Defense Counsel
Office of Military Commissions

This request was denied by the Convening Authority in a terse one-paragraph letter which indicated that such a trip was beyond the scope of the duties of military commission defense counsel. Our boss, Col. Peter Masciola, the Chief Defense Counsel, appealed the denial to Susan Crawford’s boss, the DoD General Counsel. Late on Friday afternoon on August 21, the day before Jawad was scheduled to be released, we received word that the appeal was denied.

Maj. Montalvo was determined to be present when Jawad arrived in Afghanistan and had promised him that he would be there, even at his own expense. In anticipation that the official DoD travel request would be denied, he had obtained a civilian visa for himself to enter Afghanistan. Maj. Montalvo had been approved to retire from the US Marine Corps after 21 years of service and was in “terminal leave” status, a status in which one is still technically in the service, but is using up accumulated leave prior to the official retirement date. During terminal leave, retiring officers are authorized to work for other employers and Maj. Montalvo had already begun work for a private law firm in Washington D.C. Using the firm’s credit card (with a promise to reimburse the firm from his personal funds) Maj. Montalvo booked an airline ticket for himself and our intrepid interpreter, who agreed to take a week of unpaid leave from his regular job with no promise of compensation in order to assist Maj. Montalvo. Capt. Kannady, still on active duty, was denied permission to go by the military chain of command. As for me, by this time, my military orders had expired and I was back at my civilian job as a law professor in California.

Before Maj. Montalvo departed, I promised him I would find a way to pay for the trip, even if I had to pay for it myself. Maj. Montalvo told me that his only concern was ensuring that our interpreter was paid. I am pleased to report that through the extraordinary generosity of the ACLU, Human Rights Watch, and Amnesty International, I was able to raise enough money to reimburse Maj. Montalvo for his expenses and to pay our interpreter, albeit at 50% of his usual rate.

Mohammed Jawad and Maj. Eric Montalvo at a press conference in Kabul, August 27, 2009 (photo Xinhua/Zabi Tamanna)

Mohammed Jawad and Maj. Eric Montalvo at a press conference in Kabul, August 27, 2009 (photo Xinhua/Zabi Tamanna).

Maj. Montalvo’s trip was an extraordinary success. He was able to put in place an effective rehabilitation and reintegration plan for Jawad in coordination with the Afghan government, the US State Department, UNICEF, and various other intergovernmental organizations and NGOs. Maj. Montalvo’s efforts received substantial positive publicity in the international media, and the US Embassy sent a letter of appreciation in praise of his efforts to the Chief Defense Counsel.

Upon Maj. Montalvo’s return, Lt. Cmdr. Doxakis submitted a request for additional funding to go back and check on Jawad’s progress later this year. The request was denied.

While I have received the lion’s share of the credit for winning the release of Mohammed Jawad, I could not have done so without the tireless contributions of the entire defense team. Maj. Montalvo’s extraordinary selflessness was just one of many examples of the heroic efforts of our team to do justice and uphold the rule of law in the face of continuous opposition from the US government (except Lt. Col. Vandeveld, of course). While this narrative focuses on the contribution of my military co-counsel and our interpreter, I would be remiss if I failed to mention my fine habeas co-counsel from the ACLU National Security Project, Hina Shamsi (now at NYU), Jonathan Hafetz, and our local counsel Art Spitzer, who kept us out of trouble by ensuring that we complied with D.C. local rules. And of course, no attorney is effective without strong paralegal administrative and research support. We had several highly dedicated military paralegals assisting us and received exceptional research support from law students at Duke’s Guantánamo Defense Clinic. Our habeas efforts were also enhanced considerably by outstanding support from Joe Pace, a law student at Yale.

Col. Peter Masciola (photo Mandel Ngan/AFP/Gety Images)Note by Andy Worthington: In order to understand why virtually every request for resources made to the Convening Authority by the military defense lawyers was denied, it is important to understand, as Col. Masciola, the Chief Defense Counsel, explained in testimony to the House Judiciary Committee on July 30 (PDF), that the Convening Authority holds an “untenable and inherently conflicted role.”

In the military justice system, it makes sense for the convening authority in courts-martial cases — generally the commander of the unit in which the alleged crime took place — to be responsible for overseeing both the prosecution and the defense, because “the court-martial takes place in a military unit in which the convening authority, as commanding officer, is the ultimate military authority and promotes military discipline and efficiency.”

In the Military Commissions, however, as Col. Masciola explained, “Neither logic nor military reality compels any such centralization of prosecution and defense control in the hands of a single individual.” Pointing out that the Office of Military Commissions-Convening Authority is “entirely a creature of Congressional and Department of Defense Regulation, headed by a political appointee (who is currently a civilian),” Col. Masciola added that there was no “military or otherwise natural necessity for the Convening Authority to hold ultimate power over funding of both the prosecution and defense.”

Col. Masciola also explained that the in-built bias in the role was readily apparent, because although, on the one hand, the Convening Authority is responsible for “the ultimate decision to proceed with charging and trial of the accused,” the “ultimate acceptance or rejection of pretrial agreements” and “initial review and correction of all convictions” (“all prosecutorial or quasi-prosecutorial functions,” in his words), she is also responsible for “all of the most critical defense resource and funding decisions: the initial decision whether or not the defense is entitled to retain and fund defense experts at government expense, the initial decision to authorize travel funding of all witnesses (which, given the location of the accused and trials in Guantánamo Bay, is tantamount to virtual veto power over the presentation of most witnesses), and to provide for interpretation and translation services for the defense.”

The result, as he proceeded to explain, is that, “because the Convening Authority is the de facto chief prosecutor as well as the arbiter of defense resources, defense requests have not been ruled upon with even a semblance of fairness or objectivity.” As examples, he explained that, although 56 requests for expert assistance were filed in eleven cases, only nine were granted, and six of these were in the case of Omar Khadr. He added that none were granted in any of the four capital cases, and described these decisions as “astonishing, given the special need for mitigation specialists and other experts in capital cases,” as recognized by the Supreme Court and the Court of Appeals for the Armed Forces.

As Col. Masciola also explained, perhaps the most significant effect of having a politically-appointed Convening Authority overseeing both the prosecution and the defense is that, when requests for defense resources are made, “simply filling out a request to the CA requires our defense teams to lay out, in detail, defense strategy and privileged materials that the CA freely shares with the prosecution. Moreover, in practice, the prosecutors have enjoyed a vote on whether or not defense counsel requests will be granted.”

Col. Masciola’s testimony was delivered (along with the statements of Maj. Frakt and Lt. Col. Vandeveld, mentioned at the start of this article) in an attempt to persuade Congress to reconsider its plans to revive the Commissions in an amended form, as proposed by President Obama. Given the bias he describes above, it is, I think, remarkable that Mohammed Jawad made it through the entire process and eventually secured his release, but it remains deeply troubling to me that, as Col. Masciola explained to the House Committee, the “inherently conflicted role” of the Convening Authority is not addressed in the Senate bill aimed at reviving the Commissions, and, moreover, that Susan Crawford, a protégée of Dick Cheney and a close friend of David Addington, is still in her job nine months after Obama took office.

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. Also see my definitive Guantánamo prisoner list, published in March 2009, and if you appreciate my work, feel free to make a donation.

Cross-posted on Common Dreams and The Public Record.

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).

Moazzam Begg on Ramadan and Eid ul-Fitr in Bagram and Guantánamo

Moazzam BeggThis account of Ramadan and Eid ul-Fitr in the US prison at Bagram airbase in Afghanistan and at Guantánamo was written by former prisoner and Cageprisoners spokesman Moazzam Begg in 2006, and has been reproduced this year, on the Cageprisoners website, and on various other sites. To mark Eid ul-Fitr today (September 20), when Muslims worldwide will be celebrating the end of Ramadan, and as a reminder to remember those in Guantánamo and other prisons, who are still held, for the most part, without charge or trial, I’m reproducing it here.

Moazzam Begg: The Best Of Times

I first read the Dickens classic, Bleak House, in solitary confinement, Camp Echo. The concentric part of this story is based on the fictitious — though accurately representative — and never-ending case of Jarndyce vs Jarndyce which ultimately consumes and destroys the lives of its central characters, rather like the Supreme court decisions relating to the Guantánamo detainees. But it was the first sentence of another Dickens classic, A Tale of Two Cities, which reads, “It was the best of times, it was the worst of times,” that captured my imagination back then. For that is precisely how I would have described the noble months of Ramadhan spent in US custody.

It was the night before the festival of Eid ul-Adha that I was sent from Pakistani custody into US custody at Kandahar. After the brutal initiation of being processed like an animal and locked in a cage made of razor wire, I couldn’t believe my ears when a visitor from the Red Cross was wandering around the cells, with an army escort, handing out small pieces of meat and cold bread to detainees, uttering the words, “Eid Mubarak.”

That was the first Eid my family ever spent without me. Another five (both Eids of ul-Adha and ul-Fitr) were to pass before I saw them again. For most people in Guantánamo, it is approaching sixteen of these blessed days over a period of eight years, dwelling in cages. And still they pray for deliverance.

However, the worst Ramadan I’ve ever had in my life was not in Guantánamo; that happened in Bagram — the US detention facility in Afghanistan. This was a place where already torture, humiliation and degradation of detainees regularly occurred. We were not allowed to talk, we were not allowed to walk or exercise without permission. We were not given access to natural light — or dark. We had to guess prayer times and were not allowed to pray in jama’ah (congregation), call the athaan or recite the Quran out loud. I had to make tayyamum (dry ablution) for a year and had forgotten how to make wudhu (ablution) correctly by the time I arrived in Guantánamo, since water could only be used to drink, but not for wudhu. Anyone failing to comply with these rules was unceremoniously dragged to the front of the cell, their wrists shackled to the top of the cage and a black hood placed over the head. It happened to us all — sometimes for hours, and even days, on end.

When Ramadhan came I was already dreading it. I think we were all dreading it. There were no hot meals or drinks for us in Bagram. Fresh vegetables were a luxury we were not afforded. Fresh fruit was a rarity. There was none of the food we all so lovingly prepare and indulgingly consume during this month of abstention in our homes. There were no snacks between meals or keeping food until later: everything had to be handed back within 15 minutes — eaten or not. The meals were small pre-packed sachets, the types used for campers, and, sometimes, a moldy piece of Afghan bread thrown in for good measure.

There was no Taraweeh prayer, no Eid prayer. In fact, the Jumu’ah (Friday congregational prayer) has not been performed by any of the Guantánamo prisoners for the best part of a decade. The detainees in Bagram and Guantánamo shortened every prayer not only as a mercy from Allah, but as a refusal to accept any permanence of incarceration, even though that was — and continues to be — a looming reality in one way or another. It was a defiant rejection of imprisonment without charge or trial — a fact unnoticed and quite irrelevant to our captors.

As if to punish us for the very arrival of Ramadhan we were given only two meals: the suhoor (pre-dawn meal) and iftaar (sunset meal), the latter being given to us often several hours after sunset. On the day of Eid ul-Fitr we did not feast and make merry like most of the Muslim world. Instead we were made to fast from dawn to near midnight when we were finally given a food sachet. One of the guards, a young female to whom I used to speak often about Islam, history and literature was appalled by this and gave me some of her own food, at real risk to herself. It is a gesture I will never forget, but she was a rarity.

That was the worst of times. But it wasn’t over. I spent the following Ramadhan alone, in solitary confinement. In truth, I dreaded the approach of this Ramadhan too. I knew the outlook was bleak. I had to imagine how my family was passing this month and the festival that followed. It is a month of blessing, extra prayer, sharing, inviting others to meals; a month of anticipating celebrations with family and friends who, for me and many others, were both only a distant memory by then. I thought of all the Islamic rulings about fasting and how it all seemed rather immaterial here. In fact I could have not fasted, since I was shortening my prayer — hence I had the status of a traveler, albeit a coerced one. But I think fasting was a pronounced difference between us and them, and an act of defiance too. After all, Ramadhan is the month of the Quran and the month of Badr — the most decisive struggle in the history of Islam.

The concept of abstaining completely from food as well as drink from dawn to dusk was as alien to most burger-eating, fries-munching, Budweiser-drinking yanks as American justice was for us. Even the practicing Christian soldiers, who often read the Bible in front of me, couldn’t comprehend that the fast of the Muslim was like the fast of the Prophets, not the fast of Lent during which some devotees choose to refrain from having mushrooms on their pizza as a personal sacrifice to the Almighty. I remember telling a guard that in fact he “fasted” every day, although his timings were different: the “break-fast” meal every morning. He still didn’t get it.

After the passing of this Ramadhan in seclusion, with no contact from another Muslim for close to two years, I was longing, praying and agitating that the next one would be spent in the company of Muslims — even one Muslim. My prayer was finally answered. And thus, my final Ramadhan and Eid were both spent in the company of the world’s most dangerous terrorists (according to Bush) and the world’s finest examples of patience and fortitude (according to me).

Some guards ridiculed the athaan when the muezzin’s voice echoed around Guantánamo — particularly at sunset, when it clashed with the US national anthem that simultaneously rung out on loud speakers. What followed was a daily reminder to us all [soldiers and prisoners] about our purpose in life: one group — the one dressed in khaki — stopped in their tracks, stood in the direction of their flag, raised their right hands and saluted the object of their devotion: the US flag. The other group — the one dressed in orange — also stopped in their tracks, stood facing east and raised both their hands to salute the object of their devotion: the Unseen God and Lord of the Worlds.

During the day, despite the intense tropical Caribbean heat, we recited and memorized the Quran, had debates on any subject from medieval African history to Hubble’s expanding universe theory; from the Islamic ruling on captives to the latest Western methods of capturing them. We exercised vigorously, many of us far surpassing the physical capabilities of the full time soldiers guarding us. Some of us controlled our anger and antipathy towards the guards during this month and offered smiles and kind words, when the opposite would have been expected. That too was an act of defiance.

The greatest defiance, to me at least, was wishing each other “hanee-an maree-an” (bon appetit) at iftaar. It was also the spontaneous breaking out into anasheed (Islamic songs) in Arabic, Urdu, Pashto, Farsi, Uighur, Turkish and yes, even English; it was the recitation of poetry and prose in verses that could not have been compiled anywhere on earth but Guantánamo — the prison of the enemy where captive Muslims brought the first ever call to prayer; it was the individual calls of “as-salaamu ‘alaikum wa rahmat Ullahi wa barakaatuh ya Abdallah” (May the peace, mercy and blessings of Allah be upon you, O servant of Allah) emanating from cell blocks with invisible faces — faces that showered us with concern, hope and love, even though we couldn’t see them.

But there was an act of defiance even more potent. It was more powerful than throwing liquid cocktails at the soldiers, stronger than lashing out with shackled hands towards them or calling them himaar (donkey) or khanzeer (pig); even stronger than the hunger-strikes that nearly claimed the lives of many a brave man. It was the prayer and the du’aa (supplication) to Allah of the Imam reverberating, alone, amidst the chimes of razor wire rubbing against barbed wire impelled by a soft Caribbean breeze. It was saying “Ameen” in unison to a prayer we all wanted answered. It was the tears we all shed in the knowledge that each of us had a reason to weep. It was the sadness that was almost sweet. It was our ultimate symbol of defiance. It was the best of times.

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. Also see my definitive Guantánamo prisoner list, published in March 2009, and if you appreciate my work, feel free to make a donation.

Judge Orders Release From Guantánamo Of Kuwaiti Who Met Bin Laden

Judge Colleen Kollar-KotellyFor a crucial update to this article, please see “A Truly Shocking Guantánamo Story: Judge Confirms That An Innocent Man Was Tortured To Make False Confessions.”

Yesterday, US District Court Judge Colleen Kollar-Kotelly struck another decisive blow to the credibility of the Bush administration’s detention policies at Guantánamo (and the continuation of those same policies by Obama’s Justice Department), granting the habeas corpus petition of the Kuwaiti prisoner Fouad al-Rabia, a 50-year old aeronautical engineer and a father of four, who had been accused of fundraising for Osama bin Laden and running a supply depot for al-Qaeda in Afghanistan’s Tora Bora mountains. Announcing her ruling, Judge Kollar-Kotelly ordered the US government “to take all necessary and appropriate diplomatic steps” to arrange his release “forthwith.”

Why the courts are more qualified than the government to appraise the Guantánamo cases

The ruling brings to 30 the number of habeas petitions granted in the wake of the Supreme Court’s ruling, in June 2008, that the Guantánamo prisoners have constitutionally guaranteed habeas rights. Just seven petitions have been refused (a success rate for the prisoners of 81 percent), and as the government dithers about what to do with the remaining 225 prisoners, these statistics confirm yet again — as I have been arguing since President Obama took office — that the courts and the prisoners’ lawyers, with their long history of dealing with the cases, are better qualified than the government to understand the extent to which those held at Guantánamo were, for the most part, subjected to extremely dubious post-capture intelligence-gathering, based primarily on the “confessions” of other prisoners, or of the prisoners themselves, in situations where coercion or bribery were prevalent.

Just two days ago, the New York Times revealed that the government’s interagency Guantánamo Task Force, established on Obama’s second day in office to work out whether to charge or release the prisoners, was struggling with the kind of decisions that the courts are already making, and which they will continue to make, as ordered by the Supreme Court. The Times explained that “About 80 detainees have been approved for resettlement in other countries,” and that “About 40 other detainees, including the Sept. 11 defendants, have been referred for prosecution in either a military or civilian criminal court,” but that “The cases of more than 100 of the remaining detainees are undergoing a second review by the prosecution teams, who so far have been unable to reach a consensus about whether these prisoners should be transferred to other countries or prosecuted.”

Fouad al-RabiaThe story of Fouad al-Rabia, which I explain below, ought to demonstrate to the government that much of its caution is misplaced, and that the same applies to its optimism. Al-Rabia was very probably one of the 40 or so prisoners scheduled to face a trial, and, in addition, the allegations against him were regarded as more serious by the government than those against many — if not the majority — of the 110 or so prisoners who are facing a second government review.

The supposed case against Fouad al-Rabia

In the fantasy world of the “War on Terror,” anyone who met Osama bin Laden was a terrorist fundraiser, and anyone who passed through the Tora Bora mountains to escape the war in Afghanistan in December 2001 was a member of al-Qaeda and/or the Taliban, who had been involved in the inconclusive “final showdown” between al-Qaeda and the US.

There were reasons to doubt both allegations, because thousands of people had met bin Laden innocently (briefly introduced to him at religious gatherings or business meetings), and also because thousands of people — civilians as well as soldiers — had fled Afghanistan for Pakistan via the city of Jalalabad at the time of “the battle of Tora Bora.”

In addition, because Osama bin Laden (as well as other senior al-Qaeda figures, and a number of senior Taliban officials who had supported him) had safely escaped from Tora Bora, it was also worth considering that the majority of those who were captured were either civilians, caught up in the chaos, or simple foot soldiers who had been too slow or insignificant to have had an opportunity to escape. Most of the “martyrs” — those who stayed to fight to the death — had achieved their aim, as their corpses littered the mountains after the battle reached its anti-climactic end in mid-December.

For Fouad al-Rabia, sold to US forces by Afghan soldiers who had, in turn, bought him off members of the US-backed Northern Alliance (the Taliban’s opponents), his long years at Guantánamo, and the relentless interrogations to which he was subjected, led inexorably to both sets of allegations being leveled against him.

In November 2008, al-Rabia was put forward for a trial by Military Commission (the “terror trials” introduced by Dick Cheney in November 2001, and revived by Congress in 2006, after the Supreme Court ruled them illegal) and was charged with conspiracy and providing material support for terrorism. The government alleged that he had worked as a fundraiser for Osama bin Laden in Kuwait and had traveled to Afghanistan on several occasions between June and December 2001 “for the purpose of meeting with bin Laden,” and also alleged that he had been “in charge of an al-Qaeda supply depot at Tora Bora,” where he “distributed supplies to al-Qaeda fighters.”

As I explained at the time (in a version of the story that I described in greater detail in my book The Guantánamo Files):

The problem with this story is that al-Rabia has not denied meeting bin Laden or being present at Tora Bora, but has, over the years, provided detailed explanations of how both events were entirely innocent. As a good Muslim, he took time out every year to visit those less fortunate than himself and provide humanitarian aid. In 2001, his attention was drawn to Afghanistan, and when he visited in June he met various Taliban officials and was also introduced to Osama bin Laden, who, he said, explained that his mission was to force US troops to leave the Arabian Peninsula. He said that he was shocked that, when he pointed out that this might allow Saddam Hussein to invade Kuwait again, “Bin Laden said no problem. Let Saddam come in and then something would happen and control would come back.”

Al-Rabia said that he then returned to Kuwait and gained approval for a humanitarian mission from the Kuwaiti Joint Relief Council, but explained that his return to Afghanistan coincided with the start of the US-led invasion in October 2001. Trapped, like many others, he traveled from city to city in search of an escape route, and eventually … ended up in Jalalabad and joined the exodus into the mountains. Because of his age and experience, he said he was compelled by a senior figure in al-Qaeda to look after the “issue counter,” where supplies — food and blankets, rather than weapons — were being handed out.

Overweight and suffering from a variety of ailments, al-Rabia said that he was finally allowed to leave the mountains, traveling with a Palestinian, Mahrar al-Quwari, who is also held at Guantánamo [but was approved for release by a military review board under the Bush administration]. He added, however, that, after staying with an Afghan family for a week, they were betrayed to the Northern Alliance. The US allies then sold them to other Afghans, who imprisoned them in Kabul before turning them over to US forces.

As I also explained, it struck me as highly unlikely that al-Rabia would have been shepherded off the mountains and ultimately betrayed, had he really been associated with al-Qaeda, but in court his lawyers provided an explanation of his experiences in Tora Bora that was even more damning for the government. As Carol Rosenberg described it in the Miami Herald, his lawyers argued at a four-day hearing last month that “the US military had worn Rabia down through relentless and abusive interrogation to the point where he falsely confessed that he ran a supply depot in the Battle of Tora Bora in Afghanistan in December 2001.”

Rosenberg also explained that one of his lawyers, David Cynamon, argued that US interrogators had “learned of Rabia’s Arabic honorific, Abu Abdullah al-Kuwaiti, and confused him with another Kuwaiti who had the same nickname.” Cynamon explained that a man with that particular nickname (literally, the Kuwaiti who is the father of Abdullah) “did handle logistics and supplies” at Tora Bora, but was killed by US bombing. Speaking to the Miami Herald on Thursday, Cynamon added, “The government’s so-called case against Mr. al Rabia was based almost entirely on false ‘confessions’ wrung out of him by months of clearly improper and abusive interrogation techniques taken right from the playbook of the North Koreans and Chinese Communists. Our government should be ashamed of itself — first for using such tactics, then for defending them in court. This is why the writ of habeas corpus matters.”

Khalid al-MutairiFollowing Judge Kollar-Kotelly’s ruling, the Justice Department provided no comment, and did not indicate whether it will appeal the decision, but I sincerely hope that the government follows the judge’s advice and repatriates al-Rabia — and another Kuwaiti, Khalid al-Mutairi, whose habeas petition was granted in July — as swiftly as possible, as he has clearly suffered more than enough.

The abuse of Fouad al-Rabia in Guantánamo

The judge’s full opinion has not yet been made available, but Carol Rosenberg explained that the government’s case had relied on the fact that “military-intelligence agents had accurately concluded that Rabia was at Tora Bora,” and that it had also attempted to make inferences about the supposed threat he posed by noting that, as a younger man, he had “obtained a master’s degree from the Daytona Beach campus of Embry Riddle Aeronautical University.” To me, it sounds innocuous enough that an aeronautical engineer should have studied in the States, but in Guantánamo, anyone who had spent time in the US was regarded as a potential member of a sleeper cell, and, as a result, al-Rabia was subjected to brutal treatment.

Three British men released in March 2004 — the so-called “Tipton Three,” whose story was dramatized in the film “The Road To Guantánamo” — explained that al-Rabia, like dozens of other prisoners, was subjected to prolonged sleep deprivation, in the program known euphemistically as “the frequent flier program.” This involved moving prisoners from cell to cell every few hours, over a period of days, weeks or even months, supposedly to wear down their resistance (although in reality, as a recognizable form of torture, it was more likely to cause severe mental anguish and allied physical side-effects). The men reported that al-Rabia was moved every two hours, leaving him “suffering from serious depression, losing weight in a substantial way, and very stressed because of the constant moves, deprived of sleep and seriously worried about the consequences for his children.”

Al-Rabia was also subjected to the malign policy whereby medical staff at Guantánamo were co-opted as part of the interrogation process. His lawyers explained that, although he suffered from serious stomach pains, he was told that he “couldn’t receive medication unless he cooperated” with the interrogators. It is not known if this contributed to the false confessions identified in court, but despite the litany of cruelty and incompetence outlined above, the most startling fact concerning al-Rabia’s long detention and his final exoneration is that those overseeing Guantánamo were told in the summer of 2002, by a senior CIA intelligence analyst, who, almost uniquely, was also an Arabic expert, that al-Rabia had been wrongly detained.

What the CIA knew, and how it was ignored by David Addington

In The Dark Side, Jane Mayer explained how the analyst had conducted interviews with a random sample of the prisoners, and how his conclusion — that one-third of the men held at the time “had no connection to terrorism whatsoever” — was brushed off by David Addington, Cheney’s Legal Counsel, when John Bellinger, the Legal Advisor to the National Security Council, and General John Gordon, the NSC’s senior terrorism expert, learned of the agent’s report and tried to reveal the information to President Bush, to ask him to urgently review the cases of the men held at Guantánamo. According to two sources who told Mayer about the meeting, Addington dismissed their concerns by declaring, imperiously, “No, there will be no review. The President has determined that they are ALL enemy combatants. We are not going to revisit it!”

This, as Mayer noted, was the crux of the government’s position, as articulated by those who were dictating the policy from the Office of the Vice President. Mayer wrote, “The President had made a group-status identification, as far as he was concerned. To Addington, it was a matter of presidential power, not a question of individual guilt or innocence.”

One of the men who particularly suffered because of Addington and Cheney’s counter-productive arrogance was Fouad al-Rabia, who is the man described by the CIA analyst in an interview with Mayer as follows:

One man was a rich Kuwaiti businessman who took a trip to a different part of the world every year to do charity work. In 2001, the country he chose was Afghanistan. “He wasn’t a jihadi, but I told him he should have been arrested for stupidity,” the CIA officer recalled. The man was furious with the United States for rounding him up. He mentioned that every year up until then, he had bought himself a new Cadillac, but when he was released, he said, he would never buy another American car. He was switching to Mercedes.

This is another small piece of evidence to add to the burgeoning file of complaints against Dick Cheney and David Addington (the one that begins with torture and calls for prosecution, but also includes a whole section on arrogance and incompetence), but it amazes me that no one in the Justice Department, under President Obama, investigated the CIA analyst’s report, and, instead, stuck to the allegations put forward by military prosecutors in the Bush administration’s Military Commission system (overseen by the Convening Authority Susan Crawford, a protégée of Dick Cheney and a close friend of David Addington), and advanced mindlessly towards another humiliation in court.

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. Also see my definitive Guantánamo prisoner list, published in March 2009, and if you appreciate my work, feel free to make a donation.

As published on the Huffington Post, CounterPunch, Antiwar.com and ZNet. 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), Guantánamo And The Courts (Part Two): Obama’s Shame (August 2009), Guantánamo And The Courts (Part Three): Obama’s Continuing Shame (August 2009), No Escape From Guantánamo: The Latest Habeas Rulings (September 2009), First Guantánamo Prisoner To Lose Habeas Hearing Appeals Ruling (September 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), Obama Brings Guantánamo And Rendition To Bagram (And Not The Geneva Conventions) and Is Bagram Obama’s New Secret Prison? (both September 2009).

Guantánamo Envoy: US Should Have Taken Cleared Prisoners; Some Should Never Have Been Held

Daniel Fried, the US Special Envoy on GuantanamoIn an exclusive interview with the BBC, Daniel Fried came across as an eminently reasonable man placed in a disturbingly unreasonable position by his bosses. A senior diplomat, who was the Assistant Secretary of State for European and Eurasian Affairs for four years, Fried was plucked from his job in March 2009 to become the Obama administration’s Special Envoy to Guantánamo, serving as a member of the interagency Task Force charged with reviewing the cases of the remaining Guantánamo prisoners, and responsible, primarily, for finding countries to accept dozens of prisoners who have been cleared for release, either by the Task Force, often based on decisions already taken by Bush-era military review boards, or by the courts, after successful habeas corpus petitions.

These are men who cannot be returned to their home countries because of fears that they will face torture, or further arbitrary imprisonment, on their return, although Fried is also responsible for trying to broker a deal with Yemen, whose nationals make up around 40 percent of the remaining 225 prisoners. Fried spoke mainly to the BBC about negotiations with Europe, but it is apparent that attempts to overcome the long-standing failure to secure a deal with the Yemeni government remains one of the most difficult tasks that he faces.

In an interview for Radio 4’s Today program, which was partly filmed and televised on BBC News, Fried gave Jon Manel a largely spin-free account of the problems he faces, some of which have been exacerbated by the US government’s unwillingness — or inability — to resettle some cleared prisoners on the US mainland.

To my mind, President Obama missed a golden opportunity to bring 17 prisoners to the US in his early days in office. These men, the Uighurs (Muslims who had fled oppression in China’s Xinjiang province, and who were sold to US forces after being betrayed by Pakistani villagers, following their flight from Afghanistan) had been cleared of any involvement with al-Qaeda, the Taliban or any form of international terrorism by the Bush administration and by the US courts, but the President wavered, allowing Guantánamo’s supporters in Congress (scaremongers inspired by the hateful and false rhetoric of former Vice President Dick Cheney) to gain the upper hand, eventually persuading Congress to pass legislation blocking the transfer of any cleared prisoners to the US mainland.

Fried began by explaining that his job was “miserable,” because he was “cleaning up a problem” inherited from the Bush administration, which had nothing to do with advancing any positive aspects of US policy. “It’s not like we’re advancing liberty or making peace,” he said. He added that working out what to do with the remaining prisoners is “a huge problem and a complicated one,” but according to Manel, although he said that he would “not criticize Congress,” he stated, unambiguously, “It is fair to say, as just an objective statement, that the US could resettle more detainees [worldwide], had we been willing to take in some.”

The interview was also notable for the following frank exchange about the perception of the remaining prisoners as “the worst of the worst,” which included, I believe, the first public admission, by a senior Obama administration official, that some of the prisoners were nothing more than low-level Taliban recruits, in an inter-Muslim civil war (with the Northern Alliance) that preceded the 9/11 attacks and had nothing to do with al-Qaeda or international terrorism, and that they should not have been in Guantánamo for the last seven years:

Daniel Fried: The detainees in Guantánamo run a spectrum. Some really are awful. Some qualify as “the worst of the worst,” and we’re going to put those on trial. Some, frankly, should not have been in Guantánamo for the past seven years.

Jon Manel: So they were innocent?

Daniel Fried: Innocent, guilt … I look at their files and some of them seem relatively benign, and I have in mind the Uighurs, in particular, but others …

Jon Manel: They’re the minority from China …

Daniel Fried: That’s right, the Uighur minority from China, but if I had to describe — if there’s such a thing as an average Guantánamo detainee, it’s someone who was a volunteer, a low-level trainee or a very low-level fighter in a very bad cause, but not a hardened terrorist, not an organizer. Now it is those people whom we’re asking Europeans to take a look at, and each government has to evaluate the background of each individual and make a decision.

Despite his criticism of the implications of the failure to accept any cleared prisoners into the United States, Fried did make the point that “parliamentarians in Europe” — as well as the US – “have raised questions about security, and we have to respect those opinions,” although he was also concerned to publicize the successful resettlement of four of the Uighurs in Bermuda (in June), even though it had apparently brought him into conflict with the British government, because, as the BBC described it, “Bermuda is a British overseas territory and Britain was not informed until the last minute.”

“The British government, it is fair to say, cannot be considered part of the deal. This was worked out between the Americans and the Bermudans,” Fried told Manel, adding, “I will say that I’ve been admonished by the British government in very clear terms.” He insisted, however, that the deal had been successful. “We are very grateful to the Bermudan government and the behavior of the four Uighurs has been exemplary, which really bolsters our contention that they were not any kind of threat,” he said, adding, “These are four people who are enjoying freedom who would otherwise be in Guantánamo.”

This was an important point to make, although I maintain that the Uighurs’ “exemplary” behavior, which “bolsters” the government’s “contention that they were not any kind of threat,” would have had a far more powerful impact if it had happened in Washington D.C., where American citizens would have been able to appreciate, first-hand, that the Uighurs are not, and have never been terrorists.

In conclusion, Fried told Manel that he was “confident” that the President’s January deadline for closing Guantánamo would be met, although he could not guarantee it. “President Obama’s timetable is what we’ve got,” he said, “we don’t have Plan Bs, we’re looking at that timetable. We’ve got a lot of work to do, we need help getting this done, and we’re going to be working hard at it. But you’re not going to have Guantánamo II. Whatever solution we come up with, it will be one based firmly on the rule of law and transparency.”

Fried’s interview coincided with an announcement that Hungary is preparing to take a cleared prisoner from Guantánamo, to add to those already accepted by the UK (Binyam Mohamed, a British resident, in February), France (Lakhdar Boumediene, an Algerian, in May), and Portugal (Mohammed al-Tumani and Moammar Dokhan, both Syrians, last month). Other countries who have agreed to take cleared prisoners are Belgium, Ireland, Italy (although with some disturbing conditions), and Spain, and discussions are apparently ongoing with both Lithuania and Switzerland.

Note: A short video of the BBC interview (featuring the exchange reproduced above) is available here.

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

As published on the Huffington Post. Cross-posted on Common Dreams.

Back to home page

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.
Email Andy Worthington

CD: Love and War

Love and War by The Four Fathers

The Guantánamo Files book cover

The Guantánamo Files

The Battle of the Beanfield book cover

The Battle of the Beanfield

Stonehenge: Celebration & Subversion book cover

Stonehenge: Celebration & Subversion

Outside The Law DVD cover

Outside the Law: Stories from Guantánamo

RSS

Posts & Comments

World Wide Web Consortium

XHTML & CSS

WordPress

Powered by WordPress

Designed by Josh King-Farlow

Please support Andy Worthington, independent journalist:

Archives

In Touch

Follow me on Facebook

Become a fan on Facebook

Subscribe to me on YouTubeSubscribe to me on YouTube

Andy's Flickr photos

Campaigns

Categories

Tag Cloud

Afghans in Guantanamo Al-Qaeda Andy Worthington British prisoners CIA torture prisons Clive Stafford Smith Close Guantanamo David Cameron Donald Trump Four Fathers Guantanamo Hunger strikes London Military Commission NHS NHS privatisation Periodic Review Boards Photos President Obama Reprieve Shaker Aamer Torture UK austerity UK protest US Congress US courts Video We Stand With Shaker WikiLeaks Yemenis in Guantanamo