Archive for November, 2009

Rep. Jerrold Nadler and David Frakt on Obama’s Three-Tier Justice System For Guantánamo

The US flag at GuantanamoIn the wake of Attorney General Eric Holder’s announcement that five Guantánamo prisoners — including Khalid Sheikh Mohammed — will face federal court trials in New York, and five others will face trials by Military Commission, much of the media has been consumed with the whining of opportunistic right-wing politicians, who persist in maintaining the same hysterical level of unfounded fearmongering that has skewed the debate on Guantánamo for most of the year.

As a result, far too little attention has been paid to the inadequacy of the Military Commissions as a venue for trying crimes related to terrorism, although there have been some notable exceptions. Both Glenn Greenwald and myself (in an article entitled, “The Logic of the 9/11 Trials, The Madness of the Military Commissions”) have written about it, and Lt. Col. David Frakt, who served as the military defense attorney for the released Afghan prisoner Mohammed Jawad, and for Ali Hamza al-Bahlul, who was convicted in a one-sided show trial last November, delivered a withering analysis of the Commissions’ failings in an email exchange with Marcy Wheeler on Firedoglake, and has also spoken to Truthout about his concerns. In an email to Marcy Wheeler, he explained:

I reject the government’s claim that the nature of the crime determines the forum (federal court or military commission). I believe it is largely political considerations that are the basis for these determinations. Basically, if there is a US Attorney who wants to try the case and they think they can prove it, they get priority and it goes to federal court. Clearly, there weren’t any federal prosecutors who wanted to touch the [Omar] Khadr case with a ten-foot pole. Who wants to be the first person to try a 15-year old child soldier as a war criminal in history? (Answer — the prosecutors at OMC [the Office of Military Commissions]).

It is absolutely appalling that AG Holder has approved this case to continue in the military commissions. This is truly one of the great disappointments of the Obama Administration to date. The claim that the nature of the crime determines the forum is similarly false. The Administration claims that “law of war offenses” will be tried in commissions, but there are precious few, if any, legitimate law of war violations to try. The attack on the USS Cole looks like a war crime (because it was perpetrated by suicide bombers pretending to be harmless civilian fishermen) but the law of war only applies during an armed conflict. The military commission prosecutors are relying on an incredibly dubious claim that the US was engaged in an armed conflict with al-Qaeda since 1996 based on declarations of jihad by Osama bin Laden, even though everyone knows that the armed conflict really didn’t start until 9/11. I was on active duty with the Air Force from 1995 to 2005. There was absolutely no armed conflict taking place between the US and al-Qaeda prior to 9/11.

Lt. Col. Frakt was essentially reprising a damning appraisal of the system’s many failures that he delivered to a House Subcommittee this summer, when committees in both the Senate and the House of Representatives were discussing proposals to revive the Commissions. I reported on his testimony in detail in an article entitled, “David Frakt: Military Commissions ‘A Catastrophic Failure,’” which followed articles dealing with similar testimony by retired Adm. John Hutson and by Lt. Col. Darrel Vandeveld, a former prosecutor in the Commissions, who resigned when he discovered that the system was incapable of delivering justice to Mohammed Jawad.

Sadly, Congress failed to pay attention to these critics — and to others who testified against proposals to revive the system — and even ignored advice from senior administration officials, including Assistant Attorney General David Kris, who warned that retaining “material support for terrorism” as a crime in the planned legislation would almost certainly lead to successful appeals, as it is not a legitimate law of war violation (although, ironically, it is a legitimate crime in the federal court system).

I strongly urge anyone with an interest in the revival of the wretched Commission system to read Lt. Col. Frakt’s testimony (plus the testimony of Adm. Hutson and Lt. Col. Vandeveld), and also to read the following statement by Rep. Jerrold Nadler (D-NY), which was recently forwarded to me (via Secrecy News) by Charles Gittings, who runs the excellent website Project to Enforce the Geneva Conventions.

This was the opening statement at the meeting of the House of Representatives’ Subcommittee on the Constitution, Civil Rights, and Civil Liberties on July 30, 2009, at which Lt. Col. Frakt demolished the Commissions’ viability, and it is clear that Rep. Nadler is one of the few lawmakers to understand not only that reviving the Commissions is a bad idea, but also that the Obama administration, with the backing of Congress, was, in summer, proposing to instigate a three-tier system of justice to deal with the remaining Guantánamo prisoners, which has now been realized. As he explained, in the key passage:

[W]e may be creating a system in which we try you in Federal court if we have strong evidence, we try you by military commission if we have weak evidence, and we detain you indefinitely if we have no evidence. That is not a justice system.

The full statement is reproduced below, as I think Rep. Nadler also succinctly explained why the whole of the Bush administration’s “War on Terror” detention policies were such a disgrace, and an affront to US notions of justice.

Introductory statement by Representative Jerrold Nadler at a meeting of the House of Representatives’ Subcommittee on the Constitution, Civil Rights, and Civil Liberties to discuss “Proposals for Reform of the Military Commission System” on July 30, 2009

Today the Subcommittee examines proposals for reform in the military commissions system and, more importantly, how we in Congress can work together productively and with the administration to clean up the terrible legacy of the Bush administration’s detention policies in a manner that provides us with a legitimate legal framework going forward.

Over the past seven years, approximately 800 individuals have been detained at Guantánamo, Cuba, with some 500 already having been released before President Obama took office in January.

In those seven years, only three detainees have been convicted of terrorism offenses using the military commissions, and approximately 230 individuals remain at the facility.

Most of these men have been held for at least four years. Some have been detained for more than six years. By contrast, approximately 200 individuals have been charged with international terrorism, prosecuted, convicted and sentenced to long prison terms using our normal Article III Federal courts.

These numbers speak for themselves, yet the Obama administration, after initially halting use of the military commissions and beginning an in-depth case-by-case review of the individuals still being detained at Guantánamo, has said that the commissions are necessary.

Why? The general explanation is that military commissions provide the flexibility that is necessary to account for “the reality of battlefield situations and military exigencies,” such as chain of custody concerns, the need to use hearsay statements, and an appropriate test for determining whether incriminating statements were coerced or voluntary under the circumstances.

This might explain the need in cases where an individual is caught in the heat of battle, but it does not explain the need for military commissions in other circumstances.

My concern remains, as I articulated at our hearings a few weeks ago, that we may be creating a system in which we try you in Federal court if we have strong evidence, we try you by military commission if we have weak evidence, and we detain you indefinitely if we have no evidence. That is not a justice system.

Mohammed Jawad’s case, which was again before a Federal judge today, provides just one example. At our hearing a few weeks ago, Lieutenant Colonel Vandeveld, the lead military prosecutor responsible for bringing Mr. Jawad to justice in the military commission system, testified that he resigned because he could not ethically or legally prosecute the case.

After discovering exculpatory evidence had been withheld from the defense and determining that Mr. Jawad’s confession, the only evidence against him, had been obtained through torture, Lieutenant Colonel Vandeveld was unable to convince his supervisor to reach a plea agreement that would have allowed Mr. Jawad’s release and return to his family after nearly seven years in Guantánamo.

Convinced that it was not possible to achieve justice through the military commission system, Lieutenant Colonel Vandeveld felt he had no choice but to resign his post.

A military judge and a Federal judge have since ruled that Mr. Jawad’s confession was obtained through torture. In the Federal habeas corpus proceedings, the judge has called the case “an outrage” and has urged the administration to send Mr. Jawad, who may have been 12 years old when captured in 2002, home.

It is my understanding that at a hearing this morning the judge, in fact, ordered his release.

Mr. Jawad’s case is not an anomaly. In 26 of the approximately 31 habeas corpus cases brought by Guantánamo detainees and decided so far, Federal judges have concluded that the government does not have sufficient evidence to justify or continue the detention.

These numbers are staggering — not one case, not two, but in 85 percent of the cases when an individual finally has gotten meaningful review, Federal judges have found that there was no grounds for detention. This is a stain on American justice.

Not only has the system served as a tremendous recruiting tool for our enemies, it has proven legally unsustainable and unjust. We would challenge such a system set up by another country to detain and try Americans. We should demand no less of ourselves.

The detainees at Guantánamo and other individuals who we may capture today or tomorrow are accused terrorists. They are not terrorists. They are accused terrorists. Some may be terrorists, but right now they are accused terrorists. They have not been proven to be terrorists.

And while officials in the previous administration were fond of claiming that its detainees at Guantánamo were the worst of the worst, the Bush administration released the vast majority of them, approximately 500 in all. Apparently the Bush administration did not really think they were the worst of the worst.

The people who we have detained because they were turned over to us by someone with a grudge or by someone who wanted to collect a bounty do not belong in custody.

We have an obligation to determine who should and should not be imprisoned and to afford fair trials to those we believe have committed crimes. This is especially important if our government plans to seek prison sentences or to execute those convicted.

There is no doubt that keeping America safe is paramount. We must decide how to deal with these individuals in a manner that ensures that our Nation is protected from those who would do us harm, in a manner that is consistent with our laws, our treaty obligations and our values.

We are the United States of America, and we have traditions and beliefs worth fighting for and worth preserving. This problem will not go away simply because we close Guantánamo. We are still fighting in Afghanistan and Iraq. We are still battling terrorists around the world.

We will continue to have to intercept and detain individuals who have attacked us or who threaten us. We need to be sure that, however we handle these cases, we do not conduct kangaroo courts.

This debate has been dominated by a great deal of fear-mongering. That is no way to deal with a problem of this magnitude. Fanning the flames with the unfounded claim that it is a threat to our national security to transfer individuals to the US for detention and trial defies logic and reality.

We have long housed and prosecuted dangerous criminals and terrorists in my district and elsewhere. It is an insult to our law enforcement and military to suggest that they cannot do the same with regard to those individuals that we have been holding at Guantánamo.

Others have argued that because some individuals released from Guantánamo have turned to battle, we must now hold all others forever. But we are not a police state. In order to imprison anyone, we must have sufficient evidence to do so.

Much as some people would like to drop detainees down a hole and forget about them, this is simply not an option legally or morally. It is also not necessary.

We are not the first country in history to have to deal with potentially dangerous people. Indeed, this is not the first time this country has had to deal with potentially dangerous people.

I do not underestimate the enormity of the challenge both from a security standpoint and a legal one, but we can and will find solutions that honor the rule of law, and in so doing keep us safe.

Andy Worthington is the author of The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison (published by Pluto Press, distributed by Macmillan in the US, and available from Amazon — click on the following for the US and the UK). To receive new articles in your inbox, please subscribe to my RSS feed (and I can also be found on Facebook and Twitter). Also see my definitive Guantánamo prisoner list, published in March 2009, details about my film, “Outside the Law: Stories from Guantánamo” (co-directed by Polly Nash, and launched in October 2009), and, if you appreciate my work, feel free to make a donation.

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), David Frakt: Military Commissions “A Catastrophic Failure” (August 2009),
9/11 Trial At Guantánamo Delayed Again: Can We Have Federal Court Trials Now, Please? (September 2009), Torture And Futility: Is This The End Of The Military Commissions At Guantánamo? (September 2009), Resisting Injustice In Guantánamo: The Story Of Fayiz Al-Kandari (October 2009).

Andy Worthington Discusses Guantánamo on VOA News (Video – In Urdu)

On Monday November 9, after a screening of the new documentary film “Outside the Law: Stories from Guantánamo” (co-directed by Polly Nash and myself) at the New America Foundation in Washington D.C., as part of a short US promotional tour, I was interviewed by Tabinda Naeem of UrduVOA News (the Urdu language division of Voice of America) for a feature on Guantánamo entitled, “Guantánamo Detainees Debate.” The feature also includes footage of the event, and an interview with David Cynamon, one of the attorneys for the three remaining Kuwaiti prisoners in Guantánamo, who took part in a Q&A after the screening, along with Tom Wilner (who is featured in the film). A video of the program is available below (via YouTube) for any readers who may be Urdu speakers:

About “Outside the Law: Stories from Guantánamo”

“Outside the Law: Stories from Guantánamo” is a new documentary film, directed by Polly Nash and Andy Worthington (and inspired by Andy’s book, The Guantánamo Files). The film tells the story of Guantánamo (and includes sections on extraordinary rendition and secret prisons) with a particular focus on how the Bush administration turned its back on domestic and international laws, how prisoners were rounded up in Afghanistan and Pakistan without adequate screening (and often for bounty payments), and why some of these men may have been in Afghanistan or Pakistan for reasons unconnected with militancy or terrorism (as missionaries or humanitarian aid workers, for example).

Outside the Law: Stories from GuantanamoThe film is based around interviews with former prisoners (Moazzam Begg and, in his first major interview, Omar Deghayes, who was released in December 2007), lawyers for the prisoners (Clive Stafford Smith in the UK and Tom Wilner in the US), and journalist and author Andy Worthington, and also includes appearances from Guantánamo’s former Muslim chaplain James Yee, Shakeel Begg, a London-based Imam, and the British human rights lawyer Gareth Peirce.

Focusing on the stories of three particular prisoners — Shaker Aamer (who is still held), Binyam Mohamed (who was released in February 2009) and Omar Deghayes — “Outside the Law: Stories from Guantánamo” provides a powerful rebuke to those who believe that Guantánamo holds “the worst of the worst” and that the Bush administration was justified in responding to the terrorist attacks of September 11, 2001 by holding men neither as prisoners of war, protected by the Geneva Conventions, nor as criminal suspects with habeas corpus rights, but as “illegal enemy combatants” with no rights whatsoever.

For worldwide inquiries about broadcasting, distributing or showing “Outside the Law: Stories from Guantánamo,” please contact Andy Worthington or Polly Nash.

“Outside the Law: Stories from Guantánamo” is a Spectacle Production (74 minutes, 2009).

For excerpts and extras, follow the links on the Spectacle website. A short trailer is available here, and please visit this page for photos and reviews of the UK launch on October 21, 2009.

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

UK Judge Approves Use of Secret Evidence in Guantánamo Case

The statue of Justice on the Old BaileyThose of us who have been aware that the principles of open justice in the UK are being threatened in an unprecedented manner have, to date, focused largely on the use of secret evidence in cases related to terrorism — widely ignored by the general public, and by much of the media — and on the use of “super-injunctions,” which recently broke into the mainstream with the Twitter-storm over the Trafigura case.

The use of secret evidence in cases related to terrorism involves prisoners held on control orders (a form of house arrest), or imprisoned on deportation bail, who are assigned special advocates to speak on their behalf in closed sessions of the Special Immigrations Appeal Court (SIAC), but who are then prohibited from speaking to the special advocates about what took place in these closed sessions. This regime is now under threat, after the Law Lords ruled in June 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.”

Yesterday, however, a new front in the assault on open justice opened up when Mr. Justice Silber ruled, in the cases of seven former Guantánamo prisoners who are suing the government for damages, related to claims that agents of the intelligence services were involved in unlawful acts and conspiracy, that, for the first time ever in a civil case, MI5, MI6 and the police will be able to withhold evidence from defendants and their lawyers on the basis of national security.

The seven men in question are Bisher al-Rawi, Moazzam Begg, Richard Belmar, Omar Deghayes, Jamil El-Banna, Binyam Mohamed and Martin Mubanga, and they anticipated that their challenge would involve wrangling over the use of Public Interest Immunity certificates, designed to prevent the use of evidence in cases where the government asserts that disclosure would reveal intelligence sources or pose a threat to national security. The use of PII certificates has plagued the disclosure of documents in the long-running case of Binyam Mohamed, the British resident who was subjected to “extraordinary rendition” and torture by the US government, with the complicity of the British intelligence services, but no one anticipated that, in this particular case, a judge would authorize the use of the same system of special advocates used by SIAC.

Mr. Justice Silber acknowledged that the case raised what he called a “stark question of law,” and added that he agreed with the claimants that an appeal “should be expedited.”

It is to be hoped that the Court of Appeals will recognize that Mr. Justice Silber’s ruling must be overturned, but in the meantime Louise Christian, the solicitor for some of the former Guantánamo prisoners, captured the full, horrific implications of the ruling when she explained:

The judge has sanctioned what would be a constitutional outrage, allowing government to rely on secret evidence in the ordinary civil courts. [He has done this] by treating the issue as if it was a purely technical legal matter, not a question of overturning the whole history of the common law and the fundamental principle that both sides must be on an equal footing. By giving the government such an advantage in civil litigation, the court would overthrow the very essence of the rule of law.

She added that she was “confident that the court of appeal will not allow such a massive erosion of the rights of the individual to hold government to account, particularly on the all-important issue of complicity in torture,” and we must all hope that her analysis is correct. As with the case of Binyam Mohamed, it appears that justice is being undermined, with issues of national security being invoked not to protect national security, but to prevent the government and its agents either from embarrassment or, more gravely, from being held accountable for complicity in the systematic torture and abuse at the heart of the Bush administration’s “War on Terror.”

Andy Worthington is the author of The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison (published by Pluto Press, distributed by Macmillan in the US, and available from Amazon — click on the following for the US and the UK). To receive new articles in your inbox, please subscribe to my RSS feed (and I can also be found on Facebook and Twitter). Also see my definitive Guantánamo prisoner list, published in March 2009, details about my film, “Outside the Law: Stories from Guantánamo” (co-directed by Polly Nash, and launched in October 2009), and, if you appreciate my work, feel free to make a donation.

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).

The Logic of the 9/11 Trials, The Madness of the Military Commissions

The 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 AttashWith just over two months to go until President Obama’s deadline for the closure of Guantanamo, the administration has finally woken up to the necessity of actually doing something to facilitate the prison’s closure by announcing on Friday that Khalid Sheikh Mohammed and four other prisoners accused of involvement in the terrorist attacks of September 11, 2001 will be brought to New York to face federal court trials.

Despite the fact that the “War on Terror” was launched over eight years ago to pursue those responsible for the 9/11 attacks, and despite the fact that Attorney General Eric Holder noted, in a statement announcing the trial, that the opportunity for the relatives of the 9/11 victims “to see the alleged plotters of those attacks held accountable in court” had been “too long delayed,” Republican critics immediately leapt on the announcement, with Senate minority leader Mitch McConnell describing it as “a step backwards for the security of our country” that “puts Americans unnecessarily at risk.”

McConnell, former Vice President Dick Cheney and others who have spent most of the year shamelessly playing the fear card about bringing Guantánamo prisoners to the US mainland to face trials ought to be ashamed of themselves, as there is no reason to delay justice any longer in the case of these men, and every reason to decry the fact that, instead of being prosecuted shortly after their capture, they were diverted into a lawless program of incommunicado detention and torture that threatened to derail the possibility that they could be brought to justice at all.

In the case of Khalid Sheikh Mohammed, for example, the decision to prosecute him in a federal court comes over six years late. Despite having confessed to his involvement in the 9/11 attacks to an al-Jazeera reporter before his capture by US forces in March 2003, he was held for three and a half years in secret prisons run by the CIA, where he was subjected to torture (including waterboarding, a form of controlled drowning), in a violent and misguided attempt to secure “actionable intelligence.” Instead of achieving its desired result, this vile program appears to have prevented no actual planned terrorist attack, and led only to the generation of countless false leads, which wasted the resources of the intelligence services, and also, of course, led to the creation of a global network of secret prisons in which, distressingly, torture only begat more torture.

Khalid Sheikh Mohammed is the most notorious of the five men, but the others — Ramzi bin al-Shibh, Mustafa al-Hawsawi, Ali Abdul Aziz Ali and Walid bin Attash — were also tortured in secret CIA prisons for up to four years, and, as with KSM, the decision to try them in federal courts is most noteworthy for finally bringing to an end the scandalous flight from justice and the law that led to their secret detention and torture.

The problems with the Military Commissions

However dismal and compromised this story is, it at least has more to recommend it than the simultaneous announcement that five other prisoners will not face federal court trials, but will, instead, face trials by Military Commission. This alternative judicial system — for “terror suspects” only — was set up by former Vice President Dick Cheney in November 2001, and struggled to establish anything resembling legitimacy throughout its seven-year existence, securing only three dubious verdicts, and attracting ferocious opposition from its own government-appointed military defense attorneys, and also from a number of prosecutors who resigned, including Lt. Col. Darrel Vandeveld and the former chief prosecutor, Col. Morris Davis, who all recognized that it was rigged to disguise the use of torture and to secure convictions.

Amended by the Obama administration and by Congress, the Commissions still lack legitimacy, with gray areas involving the admissibility of coerced confessions and hearsay evidence, and a widespread conviction amongst legal experts that federal courts have a proven track record in dealing with terrorism cases that the Commissions can never hope to emulate.

Moreover, although Eric Holder claimed on Friday that the revised Commission process “will be fair and that convictions obtained will be secure,” he neglected to mention that, this summer, senior administration officials conceded that the proposed charge of material support for terrorism — a longtime mainstay of the Commissions from 2006 onwards, when they were revived by Congress after being ruled illegal by the Supreme Court — may well be subject to successful court appeals. What makes the decision to proceed with the Commissions even more ludicrous is that the government also admits that no such problems exist with prosecuting material support for terrorism in federal courts.

In addition, the very existence of a two-tier judicial system should be enough to set alarm bells ringing, as it suggests — quite correctly, I believe — that the government is hedging its bets when it comes to justice, proceeding with federal court trials when it believes that it will secure successful prosecutions, and reserving the Commissions for other cases in which it fears that it may fail, because the evidence is not only contaminated by the use of torture, but is also weak.

In his announcement about the trials, Eric Holder stated that the “decision as to whether to proceed in federal courts or military commissions was based on a protocol that the Departments of Justice and Defense developed and that was announced in July,” adding that the protocol “sets forth a number of factors — including the nature of the offense, the location in which the offense occurred, the identity of the victims, and the manner in which the case was investigated — that must be considered.” The process has therefore been presented as being based on clear-cut decisions — whether the alleged offenses took place on the US mainland (federal court trials) or elsewhere (Military Commissions) — but in reality Holder let slip that the decisions would be based on whether or not the government thinks it will secure victory. The key is that phrase, “the manner in which the case was investigated”; in other words, how the supposed evidence was gathered.

I’ve been railing against the proposed revival of the Commissions since May, when President Obama first announced it in a major speech on national security, and I remain as confused and depressed about the proposals as I did back then. Glenn Greenwald has also been implacably opposed to the proposals, and on Friday he succinctly summed up the significance of the government’s failure to hold only federal court trials as follows: “A system of justice which accords you varying levels of due process based on the certainty that you’ll get just enough to be convicted isn’t a justice system at all. It’s a rigged game of show trials.”

The government has not yet announced how many of the remaining 215 Guantánamo prisoners will be put forward for trials — either in federal court or by Military Commission — but ProPublica reported on Friday that, although “Justice Department officials said the cases of 40 detainees have been referred to government prosecutors for possible prosecution,” another administration official conceded that “it was unlikely that charges would be brought against more than 30.” This figure of a maximum of 40 prisoners is somewhat encouraging, as it corresponds with the numbers quoted in intelligence reports over the years, but the government is not off to an encouraging start, because, beyond the five men put forward for the 9/11 trial, the choice of the five other men put forward for trials by Military Commission — all of whom were previously charged under the Bush administration — is disheartening, to say the least.

The five prisoners put forward for trial by Military Commission

Omar Khadr, as he was at the time of his capture in 2002, and as he appears todayOne is Omar Khadr, the Canadian who was just 15 years old when he was seized after a firefight in Afghanistan in July 2002. Khadr should have been treated as a juvenile prisoner, and rehabilitated rather than punished, but he was subjected to appalling brutality, even though, to this day, the evidence suggests that he was not responsible for the crime for which he will be charged — the killing of a US soldier with a grenade — as, at the time, he was face down and unconscious under a pile of rubble. In addition, it remains as doubtful as it always has that there was anything extraordinary about the context of his capture (as part of a group of men engaged in combat in a war zone), and that attempts to imbue it with anything related to terrorism are simply misguided.

Khadr’s case is undoubtedly the most disappointing of the five, but the other four cases are also troubling, firstly because there appears to be no justifiable basis for not pursuing them in federal courts, and, in some cases, because the very basis for prosecution seems to be in doubt.

Abdul Rahim al-NashiriIn the case of Abdul Rahim al-Nashiri, a “high-value detainee” seized in the United Arab Emirates in November 2002, and held in secret CIA prisons for nearly four years, the main problem is that he, along with KSM and Abu Zubaydah, was waterboarded in US custody, and claimed, in his tribunal at Guantánamo in 2007, that he had made false allegations because he was tortured. He said that he made up stories tying him to the bombing of the USS Cole and confessed to involvement in several other plots — the attack on the USS Limburg, other plans to bomb American ships in the Gulf, a plan to hijack a plane and crash it into a ship, and claims that Osama bin Laden had a nuclear bomb — in order to get his captors to stop torturing him. “From the time I was arrested five years ago,” he said, “they have been torturing me. It happened during interviews. One time they tortured me one way, and another time they tortured me in a different way. I just said those things to make the people happy. They were very happy when I told them those things.”

Moreover, as his attorney, Nancy Hollander, explained on Friday (as reported on Daily Kos), “his case was first investigated as a criminal case, and the only reason to try him in a military commission is that they do not have the evidence to go to a legitimate court.”

Ibrahim al-Qosi, at a pre-trial hearing on August 27, 2004The other three are not even accused of involvement in specific attacks. Ibrahim al-Qosi, a Sudanese prisoner who was charged in the Commissions’ first incarnation in 2004, and again in 2007, was only finally arraigned on November 19, 2008, when the major claim against him — that he was responsible for al-Qaeda’s payroll in Khartoum, before Osama bin Laden and his entourage moved back to Afghanistan in 1996 — was dropped by the government, and all that remained were claims that he worked at an al-Qaeda compound from 1996 to 1998, that he fought “as an al-Qaeda mortar man near Kabul from 1998 to 2001,” and that he sometimes worked as a driver and bodyguard for bin Laden.

At the arraignment, al-Qosi’s civilian lawyer, Lawrence Martin, declared that his client, “far from being a war criminal, was a cook,” adding, “He was not even a cook for bin Laden, but a cook for a compound where bin Laden was sometimes a visitor.” This position is also maintained by his military defense lawyers, including Maj. Todd Pierce, who visited Sudan over the summer to meet al-Qosi’s family, and it seems, therefore, to cast al-Qosi in a similar role to that of Salim Hamdan, a Yemeni who was one of bin Laden’s drivers in Afghanistan. Hamdan received a meager sentence after his trial by Military Commission in August 2008, when the military jury threw out the conspiracy charge against him, accepting that he knew nothing about the workings of al-Qaeda.

Ahmed al-Darbi in Guantanamo, August 2009Ahmed al-Darbi, a Saudi who was seized on arrival in Azerbaijan in June 2002 and “rendered” to US custody in Afghanistan two months later, is accused of plotting to attack a ship in the Strait Of Hormuz, meeting Osama bin Laden and attending a training camp in Afghanistan, but in September, at one of the last pre-trial Military Commission hearings before Friday’s announcement, his civilian lawyer, Ramzi Kassem, urged that all of the 119 statements that al-Darbi made to interrogators should be ruled out, because they were obtained through the use of torture and abuse, including beatings, threats of rape, sensory deprivation, sleep deprivation and sexual humiliation, both at Bagram, where al-Darbi was held for eight months, and at Guantánamo (a full statement by al-Darbi is available here). At the time, the judge in his case, Army Col. James Pohl, reserved judgement on Kassem’s request, but it is clear that these unresolved issues will surface at al-Darbi’s trial, and it is difficult to see how they can easily be brushed aside.

The last man to be put forward to face a trial by Military Commission is Noor Uthman Muhammed, also from Sudan. On May 23, 2008, Muhammed was charged with conspiracy and providing material support for terrorism, based on allegations that he served as the deputy emir of the Khaldan training camp in Afghanistan from 1996 to 2000, when the camp was closed, that he served as an instructor at the camp, and that he delivered a fax machine to Osama bin Laden at a training camp in 1999.

Noticeably, in his tribunal at Guantánamo in 2004, Muhammed did not deny that he was sometimes involved in the administration of the camp, but he insisted that Khaldan was “a place to get training” that had nothing to do with either al-Qaeda or the Taliban. “People come over to that camp, train for about a month to a month and a half, then they go back to their hometown,” he said, adding that what the people did with the training they received was their own business.

Behind the façade

This may appear to have been an evasive explanation on Muhammed’s part, but in fact the whole story of Khaldan is dangerously complicated for the government, not merely because these claims have been aired before, and because it appears that the camp was closed in 2000 because its emir, Ibn al-Shaykh al-Libi, refused to cooperate with bin Laden, but also because both al-Libi and Khaldan’s gatekeeper, Abu Zubaydah, are people that the government want to keep quiet about.

Al-Libi, perhaps the CIA’s most notorious “ghost prisoner,” was rendered to Egypt, where, under torture, he produced a false confession about connections between al-Qaeda and Saddam Hussein that was used to justify the invasion of Iraq in March 2003. Returned to Libya in 2006, after spending over four years in a series of proxy prisons or prisons run by the CIA, he died in mysterious circumstances in May this year. Zubaydah, who is still in Guantánamo, but has not been put forward for a trial, was the first prisoner to be subjected to the torture techniques — including waterboarding — that were developed for use on the “high-value detainees,” and the problem for the government is not that officials have to build a case against him while avoiding all mention of the use of torture, but that his role was massively overstated, and he appears to be too psychologically damaged to be put on trial.

It is, therefore, difficult to see how Noor Uthman Muhammed’s trial by Military Commission can proceed without focusing on the stories of Ibn al-Shaykh al-Libi and Abu Zubaydah, but even if it does prove possible, the very mention of these men points to some dark truths that lie behind Friday’s announcement: that other supposedly “high-value detainees,” in addition to Abu Zubaydah, have not been put forward for trial, that the question of what to do with Zubaydah, a Palestinian, appears to present an insoluble problem, and that the murky world of proxy prisons and CIA prisons, and the torture regime that involved at least 150 prisoners (and maybe many more) is barely hidden behind Eric Holder’s decision to announce the trials of the ten men mentioned above. Even on this limited basis, the pursuit of justice is contaminated, and the question of accountability — deliberately ducked by the Obama administration — seems unlikely to go away.

Perhaps, as some commentators have suggested, the Bush administration will be under the spotlight as much as Khalid Sheikh Mohammed in the forthcoming trials, and it seems probable, therefore, that questions about the Bush administration’s responsibility for torture and abuse will also leak out in the trials by Military Commission, and will remain, like a guilty secret waiting to be revealed, in the cases of many of the other men at Guantánamo whose fates have yet to be decided.

Andy Worthington is the author of The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison (published by Pluto Press, distributed by Macmillan in the US, and available from Amazon — click on the following for the US and the UK). To receive new articles in your inbox, please subscribe to my RSS feed (and I can also be found on Facebook and Twitter). Also see my definitive Guantánamo prisoner list, published in March 2009, details about my film, “Outside the Law: Stories from Guantánamo” (co-directed by Polly Nash, and launched in October 2009), and, if you appreciate my work, feel free to make a donation.

As published exclusively on Truthout.

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), David Frakt: Military Commissions “A Catastrophic Failure” (August 2009),
9/11 Trial At Guantánamo Delayed Again: Can We Have Federal Court Trials Now, Please? (September 2009), Torture And Futility: Is This The End Of The Military Commissions At Guantánamo? (September 2009), Resisting Injustice In Guantánamo: The Story Of Fayiz Al-Kandari (October 2009).

Guantánamo Comes To The United States: Andy Worthington’s Tour Report

Andy Worthington at the Q&A following the screening of "Outside the Law: Stories from Guantanamo," New America Foundation, Washington D.C., November 9, 2009When I last visited the United States (in March 2008, on my first ever visit), I recall that, although there was fine spring weather, and life appeared to be proceeding as usual, those outside the Republican party — and I met many in New York and Washington D.C. — were struggling to cope with a black cloud of despair, brought on by the Bush administration’s unprecedented lawlessness, which had been hovering over the country for six years, first through the establishment of an illegal prison at Guantánamo and an associated program of “extraordinary rendition,” torture and secret prison, and then through the illegal invasion of Iraq.

There were, at the time, murmurs of hope — focused either on Barack Obama or Hillary Clinton — but the way forward was not yet clear, and it sometimes seemed that there would be no end to the torture state established in the wake of the 9/11 attacks.

Fast forward to November 2009, and the political landscape has, of course, changed considerably. Barack Obama swept into office promising to undo the worst excesses of the Bush administration, ordering the closure of Guantánamo, rescinding a raft of George W. Bush’s orders and directives relating to the detention and interrogation of prisoners seized in the “War on Terror,” reinstating the absolute prohibition on the use of torture, and apparently guaranteeing the humane treatment of all prisoners in US military custody.

Throughout the year, unfortunately, the boldness of these initiatives has been steadily eroded, either by inertia, a lack of courage, or, in some cases, by actions that seemed all too obviously to contradict the fine words. Opportunities were missed at Guantánamo — primarily in not bringing the Uighurs (innocent men from China, seized by mistake) to settle in the US, as ordered last October by District Court Judge Ricardo Urbina, which, in addition, would have established a necessary precedent for accepting other cleared prisoners who cannot be repatriated onto the US mainland. As an unforeseen result, the right wing of the Republican party saw a win-win situation by reviving former Vice President Dick Cheney’s perennial lie that everyone in Guantánamo is a terrorist, and a fear-filled Congress mobilized to prevent the transfer of any cleared prisoner to the US mainland.

The government also dithered horribly over the specific cases of the prisoners, failing to do anything to facilitate the speedy passage of their habeas corpus petitions in federal courts (as ordered by the Supreme Court in June 2008), in which, despite the Justice Department’s obstruction, judges have so far ruled in favor of 30 out of 38 prisoners. Obama also compounded these failures by establishing an interagency Task Force, in which officials apparently found themselves unable to understand that few prisoners had any connection to terrorism whatsoever, and that the reason it was so difficult to draw together any meaningful information about many of the men was not because it was scattered across numerous departments and agencies, but because it simply did not exist.

Proof that this was the case was readily to hand, both in statements made by Lt. Col. Stephen Abraham, who served on the tribunals at Guantánamo that were responsible for gathering what evidence existed, and in the rulings made by the District Court judges, who, time and again, lambasted the government for its reliance on statements made by other prisoners, which were patently unreliable, on “mosaics” of intelligence that were full of holes, and, in one case, on an entirely false confession extracted through the use of torture and threats.

It has also been clear, since at least 2006, when researchers at the Seton Hall Law School analyzed the Pentagon’s own documents relating to the prisoners, that only eight percent were alleged to have had any connection to al-Qaeda, and that 86 percent were not “captured on the battlefield,” but were seized by the US military’s Afghan and Pakistani allies, at a time when bounty payments for “al-Qaeda and Taliban suspects,” averaging $5,000 a head, were widespread.

Outside the Law: Stories from GuantanamoWith the recent completion of my documentary, “Outside the Law: Stories from Guantánamo” (co-directed with Polly Nash), I thought it was time to pay another visit to the country whose cruel, lawless and counter-productive approach to warfare and countering terrorism has dominated my life for the last four years, and this desire (which, I freely admit, also included plans to hook up with, and in some cases to meet for the first time, good friends I have made through the Internet) was also driven by the realization that, with just two months until President Obama’s deadline for closing Guantánamo, the prison will not be closed on time. Moreover, numerous cleared prisoners — cleared for release both by military review boards under the Bush administration, and by Obama’s own Task Force — may remain at Guantánamo for the rest of their lives unless the Senate’s ban on bringing cleared prisoners to the US mainland is overturned.

However, what I was not entirely prepared for was the extent to which these stories are either unknown or unacknowledged because of what I came to call “the Obama effect,” a belief, amongst many on the left, that Obama had waved a magic wand and made everything better, so that Americans could look in the mirror and feel good about themselves again, even though the political reality is actually far more complicated, and involves the difficulty of effecting any meaningful change given the general intransigence of Congress, and hidden pressure behind the scenes from other actors, including the Pentagon and the intelligence services, compounded by the administration’s frequent inability to act decisively.

The America I encountered this time, then, was in some ways suffering more than in March 2008, with the recession biting hard, the GOP apparently rabid, and the sheen on Obama’s halo slowly giving way to a realization, on the left, that, even with the best intentions, he cannot be a savior for the United States, and that, in any case, the best intentions are rarely enough to win over the lawmakers in Congress, dissenters in his own party, and, very possibly, the wayward might of the military-industrial complex.

As a result it was a fascinating, if sometimes frustrating time to visit, as activists attempt to build up a base of supporters again, struggling even to engage anti-war protestors, who seem to have overlooked the fact that, even on the campaign trail, Obama’s trade-off for scaling down operations in Iraq was to promise an increase in military action in Afghanistan, and everyone on the left (and, presumably, in the center) tries to decipher the administration’s intentions, and the meanings of its actions.

I have written about my experiences in New York in a previous article, and have also posted a link to a video of a talk I gave before a screening of “Outside the Law: Stories from Guantánamo” in Fairfax, Virginia, organized by my friends Jacob Hornberger and Bart Frazier of the Future of Freedom Foundation, who, along with The World Can’t Wait in New York and San Francisco, sponsored my trip and looked after me in fine style, as well as continuing to support me through the weekly column that I write for them about Guantánamo and related issues. I know that their principled stand on torture and the Bush administration’s flight from the law is not shared by all libertarians, and I admire their dedication to pursuing these topics until constitutional values are restored, and those responsible are held to account.

Fairfax was the scene of my only stopover in a hotel, followed by a hearty breakfast with Jacob and Bart. I then took the Metro into Washington D.C. and made my way, on what was actually a hot and sunny early afternoon, to the offices of the New America Foundation, where my old college friend Peter Bergen had organized a screening, which had been publicized to the Foundation’s extensive mailing list, and also to many of my own contacts among the Guantánamo lawyers.

As a result, it was a full house, and I was delighted with the response to the film, and delighted with the Q&A after the screening, moderated by Peter, in which I was joined by lawyers Tom Wilner (who is featured in the film) and David Cynamon (who represents three Kuwaitis who are still held), for a lively and hard-hitting discussion of both the film and the current state of play at Guantánamo. I was also delighted that friends, colleagues and acquaintances from the legal world — both civilian and military lawyers — who, over the years, have been drawn into the dark heart of Guantánamo, also attended the screening, and that I got to meet up with some of them.

Peter Bergen, David Cynamon, Andy Worthington and Tom Wilner at the Q&A following the screening of “Outside the Law: Stories from Guantánamo” at the New America Foundation, Washington D.C., November 9, 2009

Peter Bergen, David Cynamon, Andy Worthington and Tom Wilner at the Q&A following the screening of “Outside the Law: Stories from Guantánamo” at the New America Foundation, Washington D.C., November 9, 2009.

Afterwards, Tom Wilner took myself and others out for a meal, and, as I grappled with the largest steak I have ever seen in my life, we discussed some more of the burning questions relating to Guantánamo: how to keep pressure on the administration to do the right thing when, as I had the opportunity to explain throughout my tour, Obama and his advisors are clearly not the same as the Bush administration, as they know right from wrong and have respect for the law, but still find themselves blundering in policy decisions — at Bagram, for example, and in their willingness to endorse Military Commissions and preventive detention for the prisoners at Guantánamo — that are profoundly disturbing.

On Tuesday morning, I took a wretchedly expensive cab to Dulles Airport for my flight to San Francisco, where I was met by Curt Wechsler of The World Can’t Wait, who thoroughly looked after me throughout my visit. Curt took me from the airport to Berkeley, where I was interviewed by Dennis Bernstein for his show “Flashpoints” on KPFA (available here), and then to a hall in North Berkeley for the first screening of “Outside the Law: Stories from Guantánamo” on the West Coast. This was a lively affair, despite ”the Obama effect,” and well attended by the dedicated Bay Area activists who have been working so hard to remove torture lawyer John Yoo from his tenure at UC Berkeley School of Law.

On Wednesday, after a relaxing morning with my hosts, Ruth Fallenbaum (of Psychologists for an Ethical APA, who are opposed to psychologists’ complicity in programs of torture at Guantánamo and elsewhere) and the author Zeese Papanikolas, Curt collected me and drove me back to San Francisco for a screening at San Francisco University School of Law, hosted by Professor Peter Jan Honigsberg (also the author of Our Nation Unhinged), where a good crowd of students gathered for a lunchtime screening, and where I also had the pleasure to meet Frank Lindh, the father of John Walker Lindh, the so-called “American Taliban.”

After the screening, and a Q&A with the students, I was delighted to be interviewed by Sari Gelzer of Truthout, for a video (including excerpts from the film) that will be posted in the near future. Curt then took me on a short sightseeing tour before we returned to Berkeley for a well attended talk at Revolution Books, where I once more ran through the history of Guantánamo, bringing the story up to date with a request for the community to follow up on the recent precedent established in Amherst, Massachusetts, whose townspeople recently voted to ask the Senate to reverse its ban on accepting cleared prisoners into the United States, and volunteered to accept two particular prisoners, Ahmed Belbacha and Ravil Mingazov (see the website “No More Guantánamos” for further information).

I was also particularly pleased to finally meet up with the psychologist, activist and blogger Jeff Kaye, a friend, colleague and supporter, whose investigations into the Bush administration’s torture program ought to be required reading for anyone seeking to understand the psychological aspects of the “War on Terror” detention and interrogation policies, and how they fit into the bigger picture of CIA activity since the Second World War.

This was not quite the end of my trip, but my scheduled events had come to an end, and after another fine morning with Ruth and Zeese, Curt delivered me back to the airport for a flight back to New York, a reunion with my hosts, The Talking Dog and his family, and a late night chat in which the Dog and I attempted, once more, to unravel the motives of the Obama administration. After just a few hours’ sleep, I awoke for a scheduled interview on Democracy Now! to be greeted by a phone call alerting me to the fact that Attorney General Eric Holder was about to announce that Khalid Sheikh Mohammed and his alleged co-conspirators in the 9/11 attacks were to be put forward for a federal court trial in New York, and that five other prisoners were to be put forward for trial by Military Commission.

My interview, in which I discussed the breaking news — and which also included excerpts from “Outside the Law: Stories from Guantánamo” — is available here, and it was a perfect way to round off my visit. It remained only for me to meet up once more with Debra Sweet, the Director of The World Can’t Wait, to discuss strategies for the coming months, and to have a final meal with my hosts. I hope to return in January, but in the meantime I can only encourage anyone concerned about the closure of Guantánamo to follow Amherst’s example by campaigning for the release of cleared prisoners into the United States, and to keep a close eye on the administration’s plans to try prisoners by Military Commissions and to hold others indefinitely. The concepts of “hope” and “change” may have become somewhat debased in the last ten months, but I believe that engagement, rather than resignation, is the way forward.

Please contact me if you are interested in learning more about the cleared prisoners at Guantánamo who cannot be repatriated, and please contact either myself or Polly Nash if you are interested in broadcasting, distributing or showing “Outside the Law: Stories from Guantánamo.”

For excerpts and extras, follow the links on the Spectacle website. A short trailer is available here, and please visit this page for photos and reviews of the UK launch on October 21, 2009.

Andy Worthington is the author of The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison (published by Pluto Press, distributed by Macmillan in the US, and available from Amazon — click on the following for the US and the UK). To receive new articles in your inbox, please subscribe to my RSS feed (and I can also be found on Facebook and Twitter). Also see my definitive Guantánamo prisoner list, published in March 2009, details about my film, “Outside the Law: Stories from Guantánamo” (co-directed by Polly Nash, and launched in October 2009), and, if you appreciate my work, feel free to make a donation.

An Evening with Andy Worthington, Discussing Guantánamo (Video)

As part of my US tour to promote my new documentary about Guantánamo, “Outside the Law: Stories from Guantánamo” (co-directed with filmmaker Polly Nash), I traveled on Sunday (after events in New York, discussed here) to Fairfax, Virginia, for a screening of the film at an event organized by the Future of Freedom Foundation, who sponsored my visit, along with The World Can’t Wait.

Before the screening, I introduced my work to the audience, and am delighted that the Future of Freedom Foundation has made it available as a 38-minute video entitled “An Evening with Andy Worthington” (see below, via Vimeo).

An Evening with Andy Worthington – “Outside the Law: Stories from Guantánamo” from The Future of Freedom Foundation on Vimeo.

The talk before the screening provided me with an opportunity to explain how I had undertaken the research that led me to write my book The Guantánamo Files, how this developed into the stories told in the film “Outside the Law,” and also to discuss other issues: how I began blogging regularly about Guantánamo, because of a general lack of interest in detailed accounts of the prisoners and their stories in the mainstream media, for example.

I also took the opportunity to discuss the problems with Guantánamo now, with just two months to go until President Obama’s deadline for closing the prison. This involved me recapping the stories of the Uighurs (Guantánamo’s prisoners from China), explaining how a judge ordered their release into the United States last October, how the Bush administration appealed this ruling, and how the Obama administration maintained this same position, missing the opportunity to bring these men to the United States, to demonstrate to the American people that they were not, and never were terrorists.

I also explained how there are many dozens of men from other countries, including Algeria, Libya, Syria, Tunisia and Uzbekistan, who are in a similar predicament, and that, although a few European countries have taken a handful of these men — and the administration has managed to dispose of ten of the remaining Uighurs in Bermuda and on the Pacific island of Palau — the position taken by the Court of Appeals and by the administration itself in the case of the Uighurs has been reinforced by Congress, which has passed laws preventing the release of cleared prisoners onto the US mainland (and, until recently, was intent on preventing the release of any prisoner whatsoever, even to face the trials that the administration announced on Friday).

As I also explained, without a concerted effort to overturn this ban, cleared prisoners will remain in Guantánamo, not just for months, but very possibly for the rest of their lives, and for this reason it is important that the momentous decision that was recently taken by the town of Amherst in Massachusetts — to ask Congress to overturn its ban, so that the people of Amherst can welcome two prisoners from Guantánamo into their community – needs to be replicated elsewhere in the United States.

Andy Worthington is the author of The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison (published by Pluto Press, distributed by Macmillan in the US, and available from Amazon — click on the following for the US and the UK). To receive new articles in your inbox, please subscribe to my RSS feed (and I can also be found on Facebook and Twitter). Also see my definitive Guantánamo prisoner list, published in March 2009, details about my film, “Outside the Law: Stories from Guantánamo” (co-directed by Polly Nash, and launched in October 2009), and, if you appreciate my work, feel free to make a donation.

On Democracy Now! Andy Worthington Discusses the Forthcoming 9/11 Trials and “Outside the Law: Stories from Guantánamo” (Video)

I was delighted to be invited to discuss Guantánamo on Democracy Now! this morning, just an hour after the story first broke that the Obama administration is preparing to bring Khalid Sheikh Mohammed and four other prisoners to the US mainland to face trials in federal court for their alleged involvement in the 9/11 attacks.

As I explained to Amy Goodman and Juan Gonzalez, this is good news to the extent that the whole of the “War on Terror” – with its egregious human rights violations – was supposedly justified as being necessary for the pursuit and capture of those responsible for the 9/11 attacks, and although I believe that the government will be able to avoid having to dwell on the fact that Mohammed and his co-defendants were all tortured in secret CIA prisons if the Justice Department is able to produce any evidence whatsoever of their involvement in the attacks, I explained to Amy and Juan that I was deeply disappointed to hear that it is expected that other prisoners – including Abdul Rahim al-Nashiri, another CIA prisoner, who, like Mohammed and Abu Zubaydah, was subjected to waterboarding, a form of controlled drowning – will not face a federal court trial, but will, instead, be put forward for trial by Military Commission.

As I have explained at length over the last two and a half years (and as the Commissions’ former prosecutor, Morris Davis, explained in a op-ed for the Wall Street Journal this week), the revival of the discredited Commissions, which struggled in vain to establish their legitimacy over the course of seven years, demonstrates only that the administration lacks the courage to trust the federal courts, and, as a result, is prepared to endorse the existence of a second-tier judicial system to be used in cases where it fears that the evidence will not be strong enough to secure a conviction.

I count myself fortunate to have had this interview scheduled on the day that such an important story broke, but was also glad that there was time to discuss – and show clips from – my new documentary film “Outside the Law: Stories from Guantánamo” (co-directed by Polly Nash), which I have been showing in New York, Washington D.C. and the Bay Area over the last week, and which was the initial spur for my appearance on the show.

I was also rather touched that I was able to take part in the last ever show in the firehouse on Lafayette Street, where Democracy Now! has spent so many long and happy years, and I wish Amy, Juan and the rest of the team all the best in their new studio in Chelsea.

About “Outside the Law: Stories from Guantánamo”

“Outside the Law: Stories from Guantánamo” is a new documentary film, directed by Polly Nash and Andy Worthington (and inspired by Andy’s book, The Guantánamo Files). The film tells the story of Guantánamo (and includes sections on extraordinary rendition and secret prisons) with a particular focus on how the Bush administration turned its back on domestic and international laws, how prisoners were rounded up in Afghanistan and Pakistan without adequate screening (and often for bounty payments), and why some of these men may have been in Afghanistan or Pakistan for reasons unconnected with militancy or terrorism (as missionaries or humanitarian aid workers, for example).

The film is based around interviews with former prisoners (Moazzam Begg and, in his first major interview, Omar Deghayes, who was released in December 2007), lawyers for the prisoners (Clive Stafford Smith in the UK and Tom Wilner in the US), and journalist and author Andy Worthington, and also includes appearances from Guantánamo’s former Muslim chaplain James Yee, Shakeel Begg, a London-based Imam, and the British human rights lawyer Gareth Peirce.

Focusing on the stories of three particular prisoners — Shaker Aamer (who is still held), Binyam Mohamed (who was released in February 2009) and Omar Deghayes — “Outside the Law: Stories from Guantánamo” provides a powerful rebuke to those who believe that Guantánamo holds “the worst of the worst” and that the Bush administration was justified in responding to the terrorist attacks of September 11, 2001 by holding men neither as prisoners of war, protected by the Geneva Conventions, nor as criminal suspects with habeas corpus rights, but as “illegal enemy combatants” with no rights whatsoever.

For worldwide inquiries about broadcasting, distributing or showing “Outside the Law: Stories from Guantánamo,” please contact Andy Worthington or Polly Nash.

“Outside the Law: Stories from Guantánamo” is a Spectacle Production (74 minutes, 2009).

For excerpts and extras, follow the links on the Spectacle website. A short trailer is available here, and please visit this page for photos and reviews of the UK launch on October 21, 2009.

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

Outside the Law: Stories from Guantánamo – Screening at the Prince Charles Cinema, London, Sunday 22 November

Following the successful launch of the new documentary film “Outside the Law: Stories from Guantánamo” at the Cochrane Theatre, London, on October 21, 2009 – and the current mini-US tour of the film (with Andy Worthington showing it at the New America Foundation in Washington D.C. today, and in the Bay Area on Tuesday and Wednesday) – the second screening in London is taking place on Sunday November 22 at the Prince Charles Cinema off Leicester Square, as part of a double bill organized by Dochouse. Based at Riverside Studios, Dochouse was formed to support and promote documentary in the UK, and, since 2002, has been showcasing the best documentary films from around the globe, with screenings and events in cinemas across London.

Outside the Law: Stories from Guantanamo

The screening on November 22 is at 6 pm, and tickets are available from the Prince Charles Cinema website. The double bill also includes a screening of “Gitmo: The New Rules of War” (2005) at 4 pm, and there will also be a Q&A after the screening of “Outside the Law” with directors Andy Worthington and Polly Nash, and former Guantánamo prisoner Omar Deghayes, who is featured in the film.

About the film

“Outside the Law: Stories from Guantánamo” is a new documentary film, directed by Polly Nash and Andy Worthington (and inspired by Andy’s book, The Guantánamo Files). The film tells the story of Guantánamo (and includes sections on extraordinary rendition and secret prisons) with a particular focus on how the Bush administration turned its back on domestic and international laws, how prisoners were rounded up in Afghanistan and Pakistan without adequate screening (and often for bounty payments), and why some of these men may have been in Afghanistan or Pakistan for reasons unconnected with militancy or terrorism (as missionaries or humanitarian aid workers, for example).

The film is based around interviews with former prisoners (Moazzam Begg and, in his first major interview, Omar Deghayes, who was released in December 2007), lawyers for the prisoners (Clive Stafford Smith in the UK and Tom Wilner in the US), and journalist and author Andy Worthington, and also includes appearances from Guantánamo’s former Muslim chaplain James Yee, Shakeel Begg, a London-based Imam, and the British human rights lawyer Gareth Peirce.

Focusing on the stories of three particular prisoners — Shaker Aamer (who is still held), Binyam Mohamed (who was released in February 2009) and Omar Deghayes — “Outside the Law: Stories from Guantánamo” provides a powerful rebuke to those who believe that Guantánamo holds “the worst of the worst” and that the Bush administration was justified in responding to the terrorist attacks of September 11, 2001 by holding men neither as prisoners of war, protected by the Geneva Conventions, nor as criminal suspects with habeas corpus rights, but as “illegal enemy combatants” with no rights whatsoever.

For worldwide inquiries about broadcasting, distributing or showing “Outside the Law: Stories from Guantánamo,” please contact Andy Worthington or Polly Nash.

“Outside the Law: Stories from Guantánamo” is a Spectacle Production (74 minutes, 2009).

About the directors and the production company

Andy Worthington is a journalist, and the author of three books, including The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison (Pluto Press). Visit his website here.

Polly Nash is a lecturer at the London College Of Communication (LCC), part of the University of the Arts, London, and has worked in film and TV for 20 years. Core funding for the film was provided by LCC.

Spectacle is an independent television production company specializing in documentary, community-led investigative journalism and participatory media. Spectacle programs have been broadcast across Europe, Australia and Canada and have won international awards. Visit their website here.

For excerpts and extras, follow the links on the Spectacle website. A short trailer is available here, and please visit this page for photos and reviews of the UK launch on October 21, 2009.

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

Bringing Guantánamo To New York

So it’s three days since I arrived in New York, at the start of a ten-day promotional tour (also taking in Washington D.C. and the Bay Area in California) to show my new documentary film, “Outside the Law: Stories from Guantánamo” (co-directed with filmmaker Polly Nash) and to discuss Guantánamo with activists, lawyers, and anyone else who realizes that the prison hasn’t actually shut down, and that President Obama will be hard-pressed to meet his deadline of January 22, 2010 for its closure.

Outside the Law: Stories from Guantanamo

Since arriving, I have done a talk at Revolution Books (on Wednesday), have shown the film at Soho House (on Thursday), in a screening organized by the Center on Law and Security at NYU School of Law and the Center for Constitutional Rights, and have also shown the film at Alwan for the Arts (on Friday), in an event organized in conjunction with The World Can’t Wait. I’m pleased to report that the film was very well-received at both screenings, with viewers enthusing about its humanity, its concern for the law, and its understated sympathy for the wrongly detained victims of the Bush administration’s lawless, cruel and incompetent response to the 9/11 attacks.

I’m also pleased to report that my talk at Revolution Books was followed by a lively discussion, which touched on other outstanding issues of concern: the situation at Bagram in Afghanistan (which I wrote about most recently in two articles here and here), and the question of how the Bush administration’s torturers can be called to account for their crimes when President Obama remains determined to look forwards rather than backwards to the “dark side” that still tarnishes America’s reputation, and that still involves 215 men being held at Guantánamo without charge or trial.

After the screening on Thursday — attended by, amongst others, lawyers, filmmakers and representatives of NYU, CCR and the ACLU — Karen Greenberg, the Center on Law and Security’s Director, who organized the event, moderated a post-screening Q&A, in which questions were asked about the difficulty of getting the message across to a wider audience, and at Friday’s screening I was delighted that my specially invited guest, Tina Foster of the International Justice Network, was able to take time out from her busy schedule to come along and talk about Bagram, and her pioneering litigation on behalf of men held in what is regularly — and appropriately — being referred to as “Obama’s Guantánamo.” Even though I thought I was well-informed about how Bagram remains “Outside the Law,” Tina opened my eyes to the extent to which Bagram is still being used an illegal interrogation center in the unilateral rewriting of the Geneva Conventions that was pioneered by the Bush administration and that clearly has continued under Obama.

In the Q&A after the screening, moderated by Debra Sweet, the Director of The World Can’t Wait, I also had the opportunity not only to reiterate my complaints about the Obama administration’s lack of courage when it comes to overturning its predecessor’s failed policies, but also to refine one of the current themes that has been shaping itself since my arrival: the importance of mobilizing the public to convince lawmakers that, unless they overturn their unprincipled ban on accepting cleared prisoners into the United States, dozens of these men — and maybe many more — will remain imprisoned, potentially for the rest of their lives.

One of the reasons for my visit at this particular time was a recognition that, with just two and half months until the date for Guantánamo’s supposed closure, and a year on from Obama’s election victory, these issues are of grave concern. Recently, the administration secured a victory in the Senate, by convincing lawmakers to allow prisoners to be brought to the US mainland to face trials (after mutinies throughout the year, involving both Democrats and Republicans, who were both infected by the unprincipled fearmongering rhetoric of Dick Cheney and other architects of the “War on Terror”). It also appears that absurd calls for a new national security court have been silenced by a decision, taken by the administration and Congress,to revive the Military Commission “terror trials” at Guantánamo, although this is only a victory for the lesser of two evils, as the Commissions, however much they are modified, remain a second-tier judicial system that can never attain the legitimacy of federal court trials.

Moreover, all these plans fail to address what are perhaps the most burning questions of all. As noted above, the first of these is: what will happen to those prisoners in Guantánamo who cannot be returned to their home countries because of fears that they will be tortured, but for whom no other country has been found that will accept them? And the second, which I also had the opportunity to discuss on Friday evening, is: when will the administration release the Yemenis cleared for release by both the Bush administration’s military review boards and its own interagency Task Force, instead of hiding behind unjustifiable demands that they must first pass through a US-approved rehabilitation program?

Make no mistake: without a solution to this problem we may well be discussing this in a year’s time, or in two year’s time, or on the eve of the next Presidential election. European countries have been stepping forward to accept the odd cleared prisoner, but dozens remain — from countries including Algeria, China, Egypt, Libya, Syria, and Tunisia — and it seems increasingly inconceivable that Europe will take them all. President Obama already faces one particularly thorny problem — a Uighur prisoner (from China’s Xinjiang province), who is mentally ill as a result of his long imprisonment. Last week, the Pacific nation of Palau took six of the last 13 Uighurs in Guantánamo, who were cleared of all involvement with either al-Qaeda or the Taliban by the Bush administration, by the Obama adminsitration and by the US courts, but the government of Palau refused to take this poor man, Arkin Mahmud, and his brother (who is also in Guantánamo, and who had been offered a new home) decided to stay with him instead.

If President Obama had been prepared to seize the initiative — and the moral high ground — earlier this year, the Uighurs would have been brought to the United States, as District Court Judge Ricardo Urbina ordered last October, when he reviewed their unchallenged habeas corpus petitions, and concluded, correctly, that holding innocent men in Guantánamo was unconstitutional. However, the Bush adminstration appealed, and President Obama spinelessly followed suit in February, when he could have dropped the appeal, and the direct result is this unholy mess.

So what’s to be done? Well, the Supreme Court has accepted an appeal from the Uighurs regarding the appeals court’s government-endorsed refusal to let them settle in the United States when no other home could be found for them, and, although the administration may try to shift five of the remaining seven Uighurs before the Supreme Court reaches a decision (probably in June next year), it seems unlikely that it will be able to do anything for Arkin Mahmud (and his faithful brother). The Washington Post has already proposed crafting legislation to allow Mamhud to be brought to the US for treatment (accompanied by his brother), but in truth, although this is a bold start, it is apparent that the door will need to be opened to more prisoners who cannot be repatriated and who no one else is prepared to take.

On this subject, the town of Amherst, Massachusetts recently took the lead, passing a resolution to accept two cleared prisoners, Ahmed Belbacha, an Algerian, and Ravil Mingazov, a Russian, and to persuade Congress to let them do so. This is a timely and significant development, but for it to progress any further, more people need to help persuade the Senate to behave rationally, and to back down on its refusal to accept any cleared prisoners onto the US mainland. This may well be a hard sell, but in bringing the stories of these cleared prisoners to light, Nancy Talanian, who pushed for the Amherst resolution through her work on the “No More Guantánamos” website, which encourages groups around the country to offer to rehouse cleared prisoners, has done what needs to be done, encouraging Americans to examine the men’s stories — and to see through the lies masquerading as evidence, produced largely through the torture, coercion or bribery of other prisoners, or through the torture or coercion of the prisoners themselves — and to pursue the only path that will bring this grotesque injustice to an end, by pushing for the release of cleared prisoners into the care of communities across the country.

Much more needs doing — for example, concerted efforts to persuade lawmakers, on an individual basis, to look beyond the false rhetoric of the “War on Terror” that has caused such collective panic on the Hill — but this is a fine initiative, and I’m delighted not only that it appears to have started a conversation amongst Americans about a story that is America’s own, but also that Nancy came to New York on Friday evening to discuss these developments, after the screening of “Outside the Law.”

This has been a great start to my tour, and the rest of my itinerary is as follows:

Saturday November 7, 4:30-6:30 pm: An Afternoon with Andy Worthington, hosted by The World Can’t Wait.
The Art Club, 100 Reade Street, Tribeca, New York.

Selections from “Outside the Law: Stories from Guantanamo” and a chance to meet Andy Worthington, and to benefit the work of The World Can’t Wait in stopping the US torture state.
Contact: Debra Sweet, Director, The World Can’t Wait (or phone: 866-973-4463).
This event is sponsored by The World Can’t Wait and Have Art Will Travel.

Sunday November 8, 5.30 to 9 pm: Film screening – Outside the Law: Stories from Guantánamo. With introductory talk and post-screening Q&A.
The Auld Shebeen Irish Pub, 3971 Chain Bridge Road, Fairfax, VA, 22030.

Contact: Bart Frazier.
This event is sponsored by the Future of Freedom Foundation.

Monday November 9, 4 pm: Film screening – Outside the Law: Stories from Guantánamo. Followed by Q&A.
New America Foundation, 1899 L St, NW Suite 400, Washington, 20036.

With special guest Tom Wilner and moderator Peter Bergen.
Phone: 202-986-2700 or email Stephanie Gunter.
This event is sponsored by the New America Foundation.

Tuesday November 10, 7 pm: Film screening – Outside the Law: Stories from Guantánamo. Followed by Q&A.
North Berkeley Senior Center, 1901 Hearst Avenue (at Martin Luther King Jr. Way), Berkeley, California.
Details here.
Phone: 818-480-1860 or email Curt Wechsler, The World Can’t Wait.
This event is sponsored by The World Can’t Wait and Berkeley students.

Wednesday November 11, 12 noon: Film screening – Outside the Law: Stories from Guantánamo. Followed by Q&A.
University of San Francisco School of Law, 2130 Fulton Street, San Francisco, CA 94117.

Contact: Elizabeth Hinchman.
Please note that this screening is for students and staff of USF School of Law.
This event is sponsored by the University of San Francisco School of Law.

Wednesday November 11, 7 pm: Talk – Torture and Lies: The Story of Guantánamo. Followed by Q&A.
Revolution Books, 2425 Channing Way, Berkeley, CA 94704.

Phone: 510-848-1196 or email Reiko Redmonde.
This event is sponsored by Revolution Books, Berkeley.

Andy’s visit to the US is sponsored by the Future of Freedom Foundation and The World Can’t Wait.

About the film

“Outside the Law: Stories from Guantánamo” is a new documentary film, directed by Polly Nash and Andy Worthington (and inspired by Andy’s book, The Guantánamo Files). The film tells the story of Guantánamo (and includes sections on extraordinary rendition and secret prisons) with a particular focus on how the Bush administration turned its back on domestic and international laws, how prisoners were rounded up in Afghanistan and Pakistan without adequate screening (and often for bounty payments), and why some of these men may have been in Afghanistan or Pakistan for reasons unconnected with militancy or terrorism (as missionaries or humanitarian aid workers, for example).

The film is based around interviews with former prisoners (Moazzam Begg and, in his first major interview, Omar Deghayes, who was released in December 2007), lawyers for the prisoners (Clive Stafford Smith in the UK and Tom Wilner in the US), and journalist and author Andy Worthington, and also includes appearances from Guantánamo’s former Muslim chaplain James Yee, Shakeel Begg, a London-based Imam, and the British human rights lawyer Gareth Peirce.

Focusing on the stories of three particular prisoners — Shaker Aamer (who is still held), Binyam Mohamed (who was released in February 2009) and Omar Deghayes — “Outside the Law: Stories from Guantánamo” provides a powerful rebuke to those who believe that Guantánamo holds “the worst of the worst” and that the Bush administration was justified in responding to the terrorist attacks of September 11, 2001 by holding men neither as prisoners of war, protected by the Geneva Conventions, nor as criminal suspects with habeas corpus rights, but as “illegal enemy combatants” with no rights whatsoever.

For worldwide inquiries about broadcasting, distributing or showing “Outside the Law: Stories from Guantánamo,” please contact Andy Worthington or Polly Nash.

“Outside the Law: Stories from Guantánamo” is a Spectacle Production (74 minutes, 2009).

About the directors and the production company

Andy Worthington is a journalist, and the author of three books, including The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison (Pluto Press). Visit his website here.

Polly Nash is a lecturer at the London College Of Communication (LCC), part of the University of the Arts, London, and has worked in film and TV for 20 years. Core funding for the film was provided by LCC.

Spectacle is an independent television production company specializing in documentary, community-led investigative journalism and participatory media. Spectacle programs have been broadcast across Europe, Australia and Canada and have won international awards. Visit their website here.

For excerpts and extras, follow the links on the Spectacle website. A short trailer is available here, and please visit this page for photos and reviews of the UK launch on October 21, 2009.

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

Italian Judge Rules “Extraordinary Rendition” Illegal, Sentences CIA Agents

Abu OmarIn an unprecedented ruling in a courtroom in Milan, at the end of a trial that — in fits and starts — has lasted for over two years, 22 CIA agents and a US Air Force Colonel received sentences of between five and eight years (and two Italian agents received three-year sentences) for their involvement in the kidnapping and “extraordinary rendition” of Abu Omar (Osama Mustafa Hassan Nasr). An Egyptian cleric, Abu Omar was seized in broad daylight from a street in Milan on February 17, 2003, and rendered to Egypt, where he was held for four years, and subjected to torture, before being released without charge in 2007.

The sentences for the Americans were delivered in absentia, as the US refused to extradite any of the men and women involved, but, as the first legal ruling anywhere in the world on the program of “extraordinary rendition” at the heart of the Bush administration’s “War on Terror,” the verdict is enormously significant. In the words of Armando Spataro, the Italian prosecutor who led the five-year investigation that culminated in the trial and the ruling, “It’s clear that the kidnapping of Abu Omar was a great mistake. It did serious damage in fighting terrorists because we don’t need torture, we don’t need renditions, we don’t need secret prisons.”

In a revealing interview after the ruling was delivered, former CIA officer Sabrina deSousa, one of those convicted, told ABC News that the United States “broke the law” in kidnapping Abu Omar and that “we are paying for the mistakes right now, whoever authorized and approved this.” She said the US “abandoned and betrayed” her and her colleagues, and pointed out that those who should have been held to account were the senior Bush administration officials who approved the program in the first place. As she explained, “Everything I did was approved back in Washington.”

DeSousa’s role in Abu Omar’s rendition does not appear to be in doubt. Although she stated that she was “on a ski trip on the actual day of the kidnapping,” Italian prosecutors said that she “helped organized the kidnapping using her diplomat cover at the US Consulate in Milan,” and this was confirmed by “several former US intelligence officials,” who spoke to ABC News. Nevertheless, although the former CIA station chief in Milan, Robert Seldon Lady, received an eight-year sentence, his was the most senior head to roll, and it is significant that Jeffrey Castelli, the CIA station chief in Rome, described by “several former CIA officers” as the “architect” of the kidnapping, was acquitted by the court, which “ruled that he and two others had diplomatic immunity because they worked out of the US Embassy in Rome.” As a result, deSousa undoubtedly had a point when she complained that “her status as a State Department diplomat should have protected her, but that the US refused to invoke diplomatic immunity.” Five senior Italian officials — including Nicolo Pollari, the former head of Italy’s military intelligence service, and his deputy — also escaped convictions, because the judge accepted that the evidence against them was subject to official secrecy restrictions.

Speaking to ABC News, US officials blamed the CIA for the “sloppy” tradecraft that led to the agents being identified. Former CIA officer Bob Baer stated, with obvious incredulity, “They were using e-mail, they were calling home, the Italians were able to connect their credit cards with true names and true addresses.” Contrasting his own activities during the Reagan administration, Baer added, “When we did a rendition, we did it in international waters. The Bush administration threw all caution to the wind.” Baer also pinpointed how the rendition program had become an aberrant project without adequate supervision. “He was the wrong guy,” he said, adding, “It was not worth putting the reputation of the United States on the line going after somebody like this.” Disturbingly, of course, Abu Omar was not the only “wrong guy” rendered to torture by the CIA. There were many others, some of whose stories have still not come to light, and whose whereabouts remain unknown, but one other enlightening example (of a man who was also rendered to Egypt) is the case of Muhammad Saad Iqbal Madni, who was subjected to “extraordinary rendition” and torture in January 2002 based on little more than a whim.

In his regular column for Harper’s Magazine, lawyer Scott Horton contrasted the Italian ruling with the recent ruling in the US Court of Appeals for the Second Circuit in the case of Maher Arar, an innocent Syrian-Canadian national who, in October 2002, was rendered by the US to Syria, where he was held for a year and tortured in the notorious Palestine Branch prison. On November 2, the Court of Appeals dismissed Arar’s case against government officials (including FBI Director Robert Mueller, former Homeland Security Secretary Tom Ridge and former Attorney General John Ashcroft) for their role in his kidnapping, “extraordinary rendition” and torture. As the Washington Post explained, “The appeals court said it cannot let Arar sue the US government without Congress enacting legislation that spells out exactly how a case as unusual as his can be brought and what potential remedy exists. Otherwise, the court said, allowing the lawsuit would ‘offend the separation of powers and inhibit this country’s foreign policy.’”

Describing the contrast between these rulings, Scott Horton explained:

[T]he outcomes could not have been more different. In the New York case, the Court of Appeals bowed to government pressure to refuse to hear the torture victim’s appeal. The decision, rendered by a group of largely Republican judges, is filled with breezy language openly acknowledging that the case turned on an extraordinary rendition, and suggesting that this was simply a policy choice for the government. The Italian court proved zealously independent of government influence from the beginning of the case down to judgment. It viewed extraordinary rendition linked to torture as a particularly grave crime, taking careful note of the historical precedents that supported that perspective. While the court accepted that state secrecy concerns restricted the court’s consideration of certain evidence, it nevertheless proceeded and rested its conclusions on evidence that was not protected. Similarly, the Italian court gave claims of immunity narrow applicability, so that only a handful of defendants could rely upon them. The court took the view that these highly technical defenses would give government actors some comfort, but it rejected the idea that they could escape accountability for a serious crime altogether.

The most telling difference focuses on the rights of the torture victim. The New York court concluded that the victim’s claims were overwhelmed by the government’s interest in protecting political actors against embarrassment. The Italian court insisted not only on the punishment of the perpetrators but also on the compensation of the torture victim. The Milan court sentenced the defendants to pay compensation to Abu Omar and his wife of €1.5 million ($2.3 million).

Quite a contrast, indeed — and one that should shame those in the US judicial system who continue to defend the Bush administration’s crimes, and, it should be noted, in the Obama adminstration itself, where senior officials continue to do all in their power to prevent senior Bush administration officials from being held accountable for their actions.

In a dissenting opinion in the Arar ruling, Judge Guido Calabresi captured the full significance of these failings, when he wrote, “I believe that when the history of this distinguished court is written, today’s majority decision will be viewed with dismay,” adding, “If anything, this decision is a loss to all Americans and to the rule of law.”

Andy Worthington is the author of The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison (published by Pluto Press, distributed by Macmillan in the US, and available from Amazon — click on the following for the US and the UK). To receive new articles in your inbox, please subscribe to my RSS feed (and I can also be found on Facebook and Twitter). Also see my definitive Guantánamo prisoner list, published in March 2009, details about my film, “Outside the Law: Stories from Guantánamo” (co-directed by Polly Nash, and launched in October 2009), and, if you appreciate my work, feel free to make a donation.

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Andy Worthington

Investigative journalist, author, filmmaker, photographer and Guantanamo expert
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