Archive for July, 2010

Reprieve Demands Resignation of “Fatally Compromised” Head of UK Torture Inquiry

In a detailed and strongly-worded letter to Sir Peter Gibson, chosen by Prime Minster David Cameron to lead an inquiry into British complicity in the torture of British nationals and residents abroad, Clive Stafford Smith, the director of the legal action charity Reprieve, has called on Gibson to step down from his role as the judge in charge of the inquiry, complaining that “his impartiality is fatally compromised.” A copy of the letter was also sent to 10 Downing Street.

Reprieve’s analysis is certainly accurate, given that, “As the Intelligence Services Commissioner (ISC), it has been Sir Peter’s job for more than four years to oversee the Security Services,” and “he cannot now be the judge whether his own work was effective.”

Reprieve identified three particular reasons why Gibson’s recusal is required. The first is because it appears that, in a recent interview with Andrew Neil, the Prime Minister admitted that Gibson had “already conducted a secret inquiry, at the previous government’s request, into allegations of misconduct,” but “because it is secret, none of us may know what his conclusions were.”

The second reason is because, in three annual reports (from 2006 to 2008), Gibson concluded that all members of the Security Services were “trustworthy, conscientious and dependable.” As a result, in Reprieve’s words, he was “entirely prejudging the issues before the inquiry.” Reprieve also contrasted Gibson’s analysis with that of Lord Neuberger, the Master of the Rolls, in February this year, when, in ordering the government to release US documents establishing that British resident Binyam Mohamed had been tortured while in custody in Pakistan in 2002, he asserted that MI5 did not respect human rights, had not renounced participation in “coercive interrogation” techniques, deliberately misled MPs and peers on the intelligence and security committee, which is supposed to be able to scrutinize its activities, and had a “culture of suppression” in its dealings with [former foreign secretary David] Miliband and the court.”

The third reason, as Reprieve explained, is that “part of Sir Peter’s job, as ISC, was to oversee ministerial authorizations that would allow the Security Services to violate the law abroad, including sanctioning British involvement in abusive interrogations. Since evidence will be presented that such interrogations have continued during Sir Peter’s tenure, he either validated these actions, or he has been hoodwinked as ISC. Either way, he should be a witness at the inquiry.”

This is a pretty devastating analysis of Sir Peter Gibson’s unsuitably for the job, although Reprieve’s press conference today to announce its very public and very vocal opposition to his appointment drew only a bland response from Downing Street, where a spokesman “said that the Prime Minister had full confidence in Gibson.”

In his letter, Clive Stafford Smith asked Gibson:

Please could you explain how you are able to preside over an inquiry about British complicity in torture during the time period in which you were responsible for the statutory oversight of the security and intelligence services? The allegation that you will have to rule on is (with apologies for putting it so frankly) that you were either asleep on your watch or were hoodwinked. Out of fairness to victims of torture, the security services and yourself, do you believe that you can rule fairly on such issues?

At today’s press conference he reiterated his complaints, stating, as the Guardian explained, that there was a “patently obvious basis for a judge to remove himself,” and adding that, given Gibson’s evident conflict of interest, the request for his recusal was “an incredibly uncontentious issue.”

Adding that he had not “received the first whisper of a response” from the Prime Minister regarding his complaints, Stafford Smith then threw down a gauntlet to the government, stating, “If they refuse to discuss this in private, then we will spend the rest of the summer discussing it in public.”

He also confirmed that Reprieve “would look at its legal options if Sir Peter refused to step down,” as the Guardian explained, and stated:

Welcome though the torture inquiry is, the current structure is a sham. Sir Peter Gibson was perhaps the least appropriate judge to evaluate the security services. The government must get serious about learning the mistakes of the past, rather than try to cover them up, or we are in for a long, hot summer.

Bring it on, Clive! Let’s have a proper inquiry under the Inquiries Act of 2005, with a judge able to “balance the need for national security against the need for transparency,” as Reprieve requested two weeks ago — and if David Cameron refuses, let’s rally some support for a long hot summer of protest. As I explained last week, when a series of damning documents regarding British complicity in torture were released by the High Court, in connection with an ongoing civil claim for damages filed by six former Guantánamo prisoners:

The time for silence, and the time for secrecy are over. To clear the air, and to draw a line under this most lamentable period in our recent history, we need an inquiry presided over by someone who is able to “balance the need for national security against the need for transparency.” For too long now — and with baleful results — the need for national security has been allowed to override everything else, inflicting grave damage on our claims to be a civilized country, and leading to devastating effects for those caught up in a “War on Terror” with few checks and balances.

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) and of two other books: Stonehenge: Celebration and Subversion and The Battle of the Beanfield. 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, updated in July 2010, details about the new documentary film, “Outside the Law: Stories from Guantánamo” (co-directed by Polly Nash and Andy Worthington, currently on tour in the UK, and available on DVD here), and my definitive Guantánamo habeas list, and, if you appreciate my work, feel free to make a donation.

Cross-posted on Cageprisoners, Uruknet and Aletho News.

Guantánamo and Habeas Corpus: Prisoners Win 3 out of 4 Cases, But Lose 5 out of 6 in Court of Appeals (Part One)

For the last two years, the prisoners held in the “War on Terror” prison at Guantánamo Bay, Cuba have been challenging the basis of their detention through habeas corpus petitions filed with the District Court in Washington D.C., where they have met with a notable degree of success. Of the 51 cases decided, 37 have been won by the prisoners, a 73 percent success rate that has involved judges casting an objective eye — often for the first time ever — on the statements of the prisoners themselves, on the statements of their fellow prisoners, and on the “mosaic” of intelligence reports that makes up the majority of the government’s evidence. In 3 out of 4 cases, the judges have concluded that the government has been relying on dubious confessions extracted through torture, coercion or bribery, and/or that its “mosaics” are full of holes.

These results constitute a comprehensive dismissal of the Bush administration’s claims — still touted today by supporters of Guantánamo — that the prison held “the worst of the worst,” and are all the more remarkable because the threshold for success on the government’s part is so low, requiring Justice Department lawyers merely to establish, by a preponderance of the evidence, that the men in question were involved with al-Qaeda and/or the Taliban.

Even with this success rate, problems remain, because the basis for detention for those prisoners who have lost their habeas petitions — the Authorization for Use of Military Force, passed by Congress the week after the 9/11 attacks — fails to distinguish between a terrorist group (al-Qaeda) and the government of Afghanistan at the time of the US-led invasion of Afghanistan in October 2001 (the Taliban).

This has led, in the cases of the majority of the 14 prisoners who have lost their petitions, to an unjust situation in which soldiers — who should have been held as prisoners of war, protected by the Geneva Conventions — are, instead, being consigned, on an apparently legal basis, to ongoing detention at Guantánamo, a prison designed not for soldiers, but, as mentioned above, for “the worst of the worst” terrorists, involved in the 9/11 attacks and other acts of international terrorism.

In challenging their habeas rulings, the prisoners who have lost their petitions have, in general, found the Court of Appeals in Washington D.C. to be so supportive of executive power that the judges have not only endorsed the denial of habeas, but have also gone further than the government in their interpretation of the scope of the detention powers in the AUMF.

A worrying start: No limit on the President’s war powers

The appeals process took a while to get underway, but, in the cases of the men who lost their petitions, the Circuit Court established a worrying position in January this year, ruling, in the case of Ghaleb al-Bihani, a Yemeni who lost his petition in January 2009, on the basis that he was a cook for Arab forces supporting the Taliban, that it was “mistaken” for al-Bihani’s lawyers to argue that “the war powers granted by the AUMF and other statutes are limited by the international laws of war.”

In the majority opinion, Judge Janice Rogers Brown, supported by Judge Brett M. Kavanaugh, also described the international laws of war as not “a fixed code,” refused to “quibble over the intricate application of vague treaty provisions and amorphous customary principles,” and concluded that “their lack of controlling legal force and firm definition render their use both inapposite and inadvisable when courts seek to determine the limits of the President’s war powers.”

Lawyers for Ghaleb al-Bihani responded to the ruling by calling for en banc review of the appeal (meaning that a full panel of judges must consider it), and took some comfort from the statements of Senior Circuit Judge Stephen F. Williams, the third judge, who concurred with the overall judgment and with part of the majority opinion, but took exception to his colleagues’ conclusion about the scope of the President’s war powers, noting that it was “hard to square with the approach that the Supreme Court took in Hamdi [v. Rumsfeld, a 2004 Supreme Court case regarding Guantánamo that established the government’s right to hold men detained under the AUMF].” Judge Williams quoted Justice Souter, who stated explicitly, “[W]e understand Congress’ grant of authority for the use of ‘necessary and appropriate force’ to include the authority to detain for the duration of the relevant conflict, and our understanding is based on longstanding law-of-war principles.”

Everyone in a position of authority appears to have ignored the significance of Justice Souter’s opinion about “the authority to detain for the duration of the relevant conflict.” To my mind, this echoes the overlooked fact that soldiers should be held as prisoners of war according to the Geneva Conventions, which authorize detention “for the duration of the relevant conflict,” and do not, therefore need replacing with the AUMF.

The government argues against the Circuit Court on Presidential power and the international laws of war

Reassuringly, however, the Circuit Court’s contentious argument about Presidential power and the international laws of war has not been ignored. No decision has yet been made about al-Bihani’s appeal for en banc review of the Circuit Court’s January ruling, but on May 13 the government submitted a brief (PDF), in which, although lawyers opposed en banc review and agreed with the Circuit Court on almost every point in its January opinion, they disagreed with the court’s opinion about Presidential power and the international laws of war.

As the lawyers explained in their brief:

Petitioner cites the panel majority’s statement that the “premise that the war powers granted by the [Authorization for Use of Military Force] and other statutes are limited by the international laws of war is mistaken.” The Government agrees that this broad statement does not properly reflect the state of the law. The Government interprets the detention authority permitted under the AUMF as informed by the laws of war.

The lawyers proceeded to explain that their interpretation was “consistent” with Hamdi, as cited above, “and with longstanding Supreme Court precedent that statutes should be construed as consistent with applicable international law.” The lawyers also pointed out that the government had accepted “its detention authority under the AUMF to be informed by the laws of war” in a court filing on March 13, 2009, in response to a request for clarification from Judge John D. Bates, which I discussed in an article entitled, “Guantánamo: The Nobodies Formerly Known As Enemy Combatants.”

In that filing, the government stated:

The President has the authority to detain persons that the President determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, and persons who harbored those responsible for those attacks. The President also has the authority to detain persons who were part of, or substantially supported, Taliban or al-Qaeda forces or associated forces that are engaged in hostilities against the United States or its coalition partners, including any person who has committed a belligerent act, or has directly supported hostilities, in aid of such enemy armed forces.

The key change implemented by the Obama administration was the requirement that “substantial support” rather than just “support” was necessary for detention, but as this also required judges to ascertain what constituted “substantial support,” there were further developments, in particular a ruling by Judge John D. Bates, in Hamlily v. Obama (PDF), in which he proposed that the “key inquiry” for determining whether an individual has become “part of” one or more of these organizations is “whether the individual functions or participates within or under the command structure of the organization — i.e., whether he receives and executes orders or directions.”

This was not the only definition proposed by individual judges, but it was used in a number of cases, and was unchallenged until, last month, largely unnoticed in the mainstream media, the Court of Appeals delivered four more rulings, and delivered a fifth on July 13. For the most part, the Circuit Court reinforced the District Court’s findings (largely because, in five of the six cases, they were challenges mounted by prisoners who had already lost their habeas petitions), although in one case the court overturned the lower court’s denial of habeas corpus, and in another reversed a prisoner’s successful petition. Behind these blunt figures, however, the court tore into Judge Bates’ definition of the requirements for detention, and, emboldened by this, delivered an even more critical opinion, further undermining the District Court’s authority, in the most recent case decided. Given the number of cases involved in this analysis, I will examine the first two of these rulings in this article, and I will examine the other three in an article next week.

The “gossamer thin” evidence against Adham Ali Awad is upheld

In the first of these appeals, decided on June 2, the Circuit Court upheld the ongoing detention of Adham Ali Awad (PDF), a Yemeni amputee who had been handed over to Afghan forces by al-Qaeda fighters besieged in a hospital in Afghanistan in December 2001. Last August, Judge James Robertson denied Ali Awad’s habeas petition, even though he conceded that the case against him was “gossamer thin,” and added, “The evidence is of a kind fit only for these unique proceedings and has very little weight.” He also described Ali Awad as a “marginally literate” young man, who “has spent more than seven of his twenty-six years — since he was a teenager — in American custody,” and stated, “It seems ludicrous to believe that he poses a security threat now,” adding, limply, “but that is not for me to decide.”

As I explained at the time, in the hands of another judge, the ruling may well have tipped the other way, as the case was not only “gossamer thin,” but also full of holes. As a result, the Court of Appeals could have given Ali Awad the benefit of the doubt, but this was always unlikely, as the Circuit Court is dominated by deeply Conservative judges. In Ali Awad’s appeal, two of the judges — Chief Judge David B. Sentelle and Judge Merrick B. Garland — had delivered a crucial ruling against the Bush administration in June 2008, in the case of Huzaifa Parhat, one of 17 Uighurs (Muslims from China’s oppressed Xinjiang province) who subsequently won their habeas petitions after the Circuit Court’s withering intervention, but this was something of an exception. Just two months ago, Judge Sentelle led the panel that denied habeas corpus rights to foreign prisoners seized in other countries and rendered to the US prison at Bagram airbase, Afghanistan, reversing a ruling in favor of the prisoners, delivered by Judge Bates last March, and consigning the foreigners in Bagram to a legal black hole that resembles Guantánamo in its early days.

In Ali Awad’s appeal, the judges thoroughly endorsed the “gossamer thin” evidence against the Yemeni, and although they did not indulge in the kind of assault on the international laws of war favored by the judges in Ghaleb al-Bihani’s appeal, they did make a point of wading into the debate regarding the extent to which prisoners must be involved in al-Qaeda or the Taliban for their detention to be justified, by refuting Judge Bates’ assertion that evidence of involvement in the organizations’ “command structure” is required, and asserting that it need only be demonstrated that they were “part of” al-Qaeda and/or the Taliban. As JURIST noted, in one of the few commentaries on the ruling, “This statement lowers the threshold for the amount of evidence needed for incarceration.”

The Circuit Court upholds the detention of Sufyian Barhoumi

On June 22, the Circuit Court upheld the detention of Sufyian Barhoumi (PDF), an Algerian who lost his habeas petition last September. Although the recently established precedent of being “part of” al-Qaeda surfaced in the Circuit Court’s ruling, it was debatable whether it was strictly necessary in Barhoumi’s case, because he had conceded, in publicly available documents from Guantánamo, that he had attended military training camps in Afghanistan. This, on its own, may not have been sufficient for his detention to be upheld, but the panel, led by Judge David S. Tatel (who had been on the panel that denied habeas rights to foreigners in Bagram) was also swayed by the fact that he was seized in a house raid in Faisalabad, Pakistan on March 28, 2002, that led to the capture of the supposed “high-value detainee” Abu Zubaydah, along with other alleged terror suspects.

Alarmingly, the judges were unconcerned by the copious amount of evidence that has emerged in recent years to demonstrate that Zubaydah — for whom the CIA’s torture program was first conceived — was not, as alleged, a high-ranking member of al-Qaeda involved in numerous international terrorist plots, but was, instead, the mentally damaged gatekeeper for a training camp that had little connection to al-Qaeda at all. As a result, the Circuit Court’s ruling not only shows a fundamental disdain for any kind of historical accuracy, but also demonstrates a general unwillingness on the part of the Circuit Court to challenge or probe prosecutorial positions regarding the Guantánamo prisoners.

In next week’s article, I will begin by examining an exception to this rule, but that was very much a one-off, because the Circuit Court’s most recent rulings have demonstrated a further commitment to eroding the District Court’s independence — and, for the most part, its fairness and impartiality — with increasingly aggressive assertions that have less to do with due process than with a kind of overreaching, authoritarian, right-wing ideology.

With the retirement of Justice John Paul Stevens from the Supreme Court, this is deeply troubling, as it means that, in all probability, the Supreme Court has lost its ability to challenge dubious decisions on Guantánamo, and the Circuit Court is left running the show. As a result, anyone concerned about justice for the Guantánamo prisoners, as the ninth anniversary of the 9/11 attacks approaches, should be very worried indeed.

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) and of two other books: Stonehenge: Celebration and Subversion and The Battle of the Beanfield. 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, updated in July 2010, details about the new documentary film, “Outside the Law: Stories from Guantánamo” (co-directed by Polly Nash and Andy Worthington, currently on tour in the UK, and available on DVD here), and my definitive Guantánamo habeas list, and, if you appreciate my work, feel free to make a donation.

As published exclusively on the website of the Future of Freedom Foundation, as, “Guantánamo and Habeas Corpus: Wins and Losses, Part 1.”

For an overview of all the habeas rulings, including links to all my articles, and to the judges’ unclassified opinions, see: Guantánamo Habeas Results: The Definitive List. For a sequence of articles dealing with the Guantánamo habeas cases, see: Guantánamo and the Supreme Court: the most important habeas corpus case in modern history and Guantánamo and the Supreme Court: What Happened? (both December 2007), The Supreme Court’s Guantánamo ruling: what does it mean? (June 2008), Guantánamo as Alice in Wonderland (Uighurs’ first court victory, June 2008), What’s Happening with the Guantánamo cases? (July 2008), Government Says Six Years Is Not Long Enough To Prepare Evidence (September 2008), From Guantánamo to the United States: The Story of the Wrongly Imprisoned Uighurs (October 2008), Guantánamo Uyghurs’ resettlement prospects skewered by Justice Department lies (October 2008), Guilt By Torture: Binyam Mohamed’s Transatlantic Quest for Justice (November 2008), After 7 Years, Judge Orders Release of Guantánamo Kidnap Victims (November 2008), Is Robert Gates Guilty of Perjury in Guantánamo Torture Case? (December 2008), A New Year Message to Barack Obama: Free the Guantánamo Uighurs (January 2009), The Top Ten Judges of 2008 (January 2009), No End in Sight for the “Enemy Combatants” of Guantánamo (January 2009), Judge Orders Release of Guantánamo’s Forgotten Child (January 2009), How Cooking For The Taliban Gets You Life In Guantánamo (January 2009), Lies, Damned Lies and Statistics (February 2009), Bad News And Good News For The Guantánamo Uighurs (February 2009), The Nobodies Formerly Known As Enemy Combatants (March 2009), Farce at Guantánamo, as cleared prisoner’s habeas petition is denied (April 2009), Obama’s First 100 Days: A Start On Guantánamo, But Not Enough (May 2009), Judge Condemns “Mosaic” Of Guantánamo Intelligence, And Unreliable Witnesses (May 2009), Pain At Guantánamo And Paralysis In Government (May 2009), Guantánamo: A Prison Built On Lies (May 2009), Free The Guantánamo Uighurs! (May 2009), Guantánamo And The Courts (Part One): Exposing The Bush Administration’s Lies (July 2009), Obama’s Failure To Deliver Justice To The Last Tajik In Guantánamo (July 2009), Obama And The Deadline For Closing Guantánamo: It’s Worse Than You Think (July 2009), How Judge Huvelle Humiliated The Government In Guantánamo Case (Mohamed Jawad, July 2009), As Judge Orders Release Of Tortured Guantánamo Prisoner, Government Refuses To Concede Defeat (Mohamed Jawad, July 2009), Guantánamo As Hotel California: You Can Check Out Any Time You Like, But You Can Never Leave (August 2009), Judge Orders Release From Guantánamo Of Kuwaiti Charity Worker (August 2009), Guantánamo And The Courts (Part Two): Obama’s Shame (August 2009), Guantánamo And The Courts (Part Three): Obama’s Continuing Shame (August 2009), No Escape From Guantánamo: The Latest Habeas Rulings (September 2009), First Guantánamo Prisoner To Lose Habeas Hearing Appeals Ruling (September 2009), A Truly Shocking Guantánamo Story: Judge Confirms That An Innocent Man Was Tortured To Make False Confessions (September 2009), 75 Guantánamo Prisoners Cleared For Release; 31 Could Leave Today (September 2009), Resisting Injustice In Guantánamo: The Story Of Fayiz Al-Kandari (October 2009), Justice Department Pointlessly Gags Guantánamo Lawyer (November 2009), Judge Orders Release Of Algerian From Guantánamo (But He’s Not Going Anywhere) (November 2009), Innocent Guantánamo Torture Victim Fouad al-Rabiah Is Released In Kuwait (December 2009), What Does It Take To Get Out Of Obama’s Guantánamo? (December 2009), “Model Prisoner” at Guantánamo, Tortured in the “Dark Prison,” Loses Habeas Corpus Petition (December 2009), Judge Orders Release From Guantánamo Of Unwilling Yemeni Recruit (December 2009), Serious Problems With Obama’s Plan To Move Guantánamo To Illinois (December 2009), Appeals Court Extends President’s Wartime Powers, Limits Guantánamo Prisoners’ Rights (January 2010), Fear and Paranoia as Guantánamo Marks its Eighth Anniversary (January 2010), Rubbing Salt in Guantánamo’s Wounds: Task Force Announces Indefinite Detention (January 2010), The Black Hole of Guantánamo (March 2010), Guantánamo Uighurs Back in Legal Limbo (March 2010), Guantánamo and Habeas Corpus: The Torture Victim and the Taliban Recruit (April 2010), An Insignificant Yemeni at Guantánamo Loses His Habeas Petition (April 2010), With Regrets, Judge Allows Indefinite Detention at Guantánamo of a Medic (April 2010), Mohamedou Ould Salahi: How a Judge Demolished the US Government’s Al-Qaeda Claims (April 2010), Judge Rules Yemeni’s Detention at Guantánamo Based Solely on Torture (April 2010), Why Judges Can’t Free Torture Victims from Guantánamo (April 2010), How Binyam Mohamed’s Torture Was Revealed in a US Court (May 2010), Guantánamo and Habeas Corpus: Consigning Soldiers to Oblivion (May 2010), Judge Denies Habeas Petition of an Ill and Abused Libyan in Guantánamo (May 2010), Judge Orders Release from Guantánamo of Russian Caught in Abu Zubaydah’s Web (May 2010), No Escape from Guantánamo: Uighurs Lose Again in US Court (June 2010), Does Obama Really Know or Care About Who Is at Guantánamo? (June 2010), Guantánamo and Habeas Corpus: 2 Years, 50 Cases, 36 Victories for the Prisoners (June 2010), Obama Thinks About Releasing Innocent Yemenis from Guantánamo (June 2010), Calling for US Accountability on the International Day in Support of Victims of Torture (June 2010), Judge Orders Release from Guantánamo of Yemeni Seized in Iran, Held in Secret CIA Prisons (July 2010), Innocent Student Finally Released from Guantánamo (July 2010).

How Jay Bybee Has Approved the Prosecution of CIA Operatives for Torture

Last Thursday, Rep. John Conyers (D-Mich.), the Chair of the House Judiciary Committee, released the previously undisclosed testimony of Jay S. Bybee, delivered to the Committee on May 26 as part of its investigations into advice given by Justice Department lawyers to the Bush administration regarding the use of torture in the “War on Terror.” Bybee, now a judge in the Ninth Circuit Court of Appeals, was the Assistant Attorney General in the Justice Department’s Office of Legal Counsel (the department that is supposedly obliged to deliver impartial legal advice to the Executive branch) on August 1, 2002, when two notorious memos — commonly known as the “torture memos” — were issued, largely written by OLC lawyer John Yoo, but ultimately signed off by Bybee.

The first memo (PDF), which sought to redefine torture, was leaked in the wake of the Abu Ghraib scandal in 2004, and remains shocking for its attempt to claim that the definition in the US anti-torture statute (an act “specifically intended to inflict severe physical or mental pain or suffering … upon another person within his custody or physical control”) could be redefined as the infliction of physical pain “equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death,” or the infliction of mental pain which “result[s] in significant psychological harm of significant duration e.g. lasting for months or even years.”

The memo was also noteworthy for its attempt to nullify the concept of “specific intent” by providing a defense for anyone whose actions were undertaken “in good faith,” and, in addition, for its endorsement of unfettered executive power, in the section in which Yoo (with Bybee’s backing) stated, “Even if an interrogation method arguably were to violate Section 2340A [the federal anti-torture statute], the statute would be unconstitutional if it impermissibly encroached on the President’s constitutional power to conduct a military campaign.”

In the second memo (PDF), Yoo and Bybee dealt specifically with requests for approval of a number of “enhanced interrogation techniques” — some of which were clearly torture techniques — for use on a specific “high-value detainee” in CIA custody. That man was Abu Zubaydah (who, it turned out, was not a high-ranking member of al-Qaeda, as initially supposed), and this was how I described the techniques approved for use on him in an article last April, when this second memo (and three later memos) were released:

The ten techniques — whose use is minutely micro-managed with a chillingly cold attention to detail — include a handful of physical tactics which, to my mind, seem mild compared to the widespread physical violence that accompanied detention in the “War on Terror” (“attention grasp,” “facial hold,” and “facial slap (insult slap)”), and a more insidious form of violence (“walling”), which involves repeatedly hurling prisoners against a false wall. Much more disturbing are the use of stress positions, sleep deprivation, confinement in small boxes, waterboarding [a form of controlled drowning, long recognized as a torture technique], and — straight out of George Orwell’s 1984 — a proposal to prey on Zubaydah’s fear of insects by placing an insect into his “confinement box.”

This latter technique was, apparently, never used, but the others all were, and the memo blithely attempted to dismiss long-standing proof that [most of these techniques] can be regarded as torture by being satisfied with time limits imposed on imprisonment in the “confinement boxes,” by declaring that the use of painful stress positions (on which no time limit seems to have been imposed) was only undertaken “to induce muscle fatigue,” and by claiming that the well-chronicled mental collapse that can result from sleep deprivation would, instead, only involve mild discomfort that “will generally remit after one or two nights of uninterrupted sleep,” even though, as Yoo and Bybee also noted, “You have orally informed us that you would not deprive Zubaydah of sleep for more than eleven days at a time.”

In January this year, Bybee and Yoo narrowly escaped being referred to their respective bar councils — and possibly being struck off — after a four-year internal Justice Department investigation into the memos, conducted by the Office of Professional Responsibility, concluded that Bybee “committed professional misconduct when he acted in reckless disregard of his duty to exercise independent legal judgment and render thorough, objective, and candid legal advice,” and that Yoo “committed intentional professional misconduct when he violated his duty to exercise independent legal judgment and render thorough, objective, and candid legal advice.”

At the last minute, however, Bybee and Yoo were saved when Associate Deputy Attorney General David Margolis, a career official who has worked at the DoJ for 17 years and has a history of shielding officials from allegations of misconduct, downgraded the report’s conclusions, asserting that Yoo and Bybee had only shown “poor judgment.”

In the 290-page transcript released by the House Judiciary Committee (PDF, with accompanying documents here), Bybee, over the course of a day’s questioning, demonstrated three particular responses to his role in approving the memos: shifting the blame for any criticism onto the CIA, shifting the blame for any criticism onto John Yoo, and defending the memos’ conclusions. The latter remains deeply troubling, as it confirms Bybee as an unrepentant torturer, who should be prosecuted according to US law, but it is, perhaps, his attempt to shift blame onto the CIA that is the most revealing aspect of the transcript, as it highlights a broad range of actions not approved by OLC, which, as a result, must be considered as potential crimes in their own right, without the dubious protection of the OLC’s “golden shield.”

Bybee attempts to shift blame onto the CIA

On the first point, Rep. Conyers stated in the press release announcing the release of the transcript, “Bybee made clear that OLC never approved a number of interrogation techniques that were reportedly used on CIA detainees.” In notes accompanying the release of the transcript (PDF), Conyers added, “These techniques include: Diapering a detainee or forcing a detainee to defecate on himself, forcing a detainee to wear blackout goggles, extended solitary confinement or isolation, hanging a detainee from ceiling hooks, daily beatings, spraying cold water on a detainee, and subjecting a detainee to high-volume music or noise.”

Rep. Conyers also stated that Bybee made clear “that the OLC memos did not permit ‘substantial repetition’ of even those techniques that were approved, such as waterboarding,” adding that Bybee “acknowledged that the CIA Inspector General [in his 2004 report (PDF)] had found that ‘the waterboard was used with greater frequency and it was used in a different manner’ than OLC had approved” (notoriously, as we learned last year, Khalid Sheikh Mohammed was waterboarded 183 times, and Abu Zubaydah was waterboarded 83 times).

There is some truth in Bybee’s comments, as Marcy Wheeler noted in her first analysis of the transcript, on Firedoglake, in which she referred readers to Spencer Ackerman’s comments on prolonged diapering as the eleventh technique not approved by the OLC, in an article last August, and also pointed out that she had “written extensively about how CIA tried to fudge approval for water dousing” (see the articles here and here, for example). She also pointed out that, as well as being used on “high-value detainees” who were eventually transferred from secret CIA prisons to Guantánamo, water dousing also led to the death of Gul Rahman, an Afghan held at the CIA’s “Salt Pit” prison, in November 2002.

Even so, it is not entirely encouraging that the man who signed off on a memo approving the use of waterboarding (which the Spanish Inquisition had the honesty to call tortura del agua) felt satisfied in quibbling about whether the torture techniques he approved were exceeded or augmented with others that had not been approved, although, as I explain below, by doing so, he may have opened up a path for the prosecution of those who did exceed or augment the approved techniques, which did not exist before.

Bybee attempts to shift the blame onto John Yoo

In an analysis by the ACLU, what emerged from the transcript above all was Bybee’s evasiveness. Jamil Dakwar, Director of the ACLU’s Human Rights Program, conducted an analysis in which he noted that Bybee said, “I don’t recall” 75 times, “I don’t know” 30 times, “I don’t remember” 9 times, “I don’t believe” 3 times, and “I am not aware” 3 times. As described above, he also sought to shift attention to the CIA, and, as Rep. Conyers noted in the press release announcing the release of the transcript, also sought to shift the focus of scrutiny onto John Yoo, noting that Yoo “never informed him of secret White House ‘war planning’ meetings and that, based on what he knows now, he is ‘worried’ that Yoo was too close to the White House.”

This, again, is a fair point, as Yoo, unlike Bybee, was a member of the “War Council” of lawyers who met regularly in the White House to plan and implement the legal strategies they wanted for the “War on Terror,” largely without any outside consultation. The “War Council” consisted of just six men: as well as John Yoo, there was David Addington, Vice President Dick Cheney’s Legal Counsel (and later Chief of Staff), Alberto Gonzales, White House Counsel (and later Attorney General), White House Deputy Counsel Tim Flanigan, William J. Haynes II, the Pentagon’s General Counsel, and his deputy, Daniel Dell’Orto.

Nevertheless, although Bybee was correct to point out that Yoo had connections that he did not, his position, as head of the OLC, meant that, if he had any doubts at the time, he should have expressed them. It is hardly anyone else’s fault that he not only failed to challenge Yoo, but also willingly signed his name to memos that, as is clear, were the result of specific requests emanating from the White House, which were fundamentally at odds with the OLC’s obligation to provide impartial legal advice.

Bybee defends the memos, requiring his prosecution for breaking the anti-torture statute

Despite Bybee’s attempts to shift the blame onto others for the outcome of the memos he signed, it remains fundamentally unacceptable that he still stands by a memo that authorized the use of ten techniques that included well-established forms of torture. As Rep. Conyers noted on the release of the transcript, “Despite the widespread, bipartisan criticism of the torture memos and the extreme view of presidential power that they represent, Bybee testified that ‘in terms of the analysis, I am going to stand by the memo.’”

This was not news, of course. In April 2009, Bybee told the New York Times, “I believed at the time, and continue to believe today, that the conclusions were legally correct,” and it is clear that he still stands by those views, even though there are never any excuses for attempting to justify the use of torture.

On the day the transcript was published, Bybee was still unrepentant, telling the New York Times that he was “proud of our opinions” at the Office of Legal Counsel, and calling them “well researched” and “very carefully written.” He also provided the following excuse for his actions: “We took a muscular view of presidential authority. We were offering a bottom line to a client who wanted to know what he could do and what he couldn’t do. I wasn’t running a debating society, and I wasn’t running a law school.”

This is undoubtedly how Bybee regards his work on the “torture memos” at the OLC, but unfortunately for him, the US anti-torture statute mentioned above (Title 18, Part I, Chapter 113C of the US Code, introduced in 1994) and the UN Convention Against Torture do not allow for any leeway when “offering a bottom line to a client who wanted to know what he could do and what he couldn’t do.”

The US anti-torture statute requires a fine, or 20 years’ imprisonment (or both) for “[w]hoever outside the United States commits or attempts to commit torture,” and a death sentence, or a prison sentence up to and including a life sentence, “if death results to any person from conduct prohibited by this subsection,” and the UN Convention Against Torture stipulates (Article 2.2), “No exceptional circumstances whatsoever, whether a state of war or a threat or war, internal political instability or any other public emergency, may be invoked as a justification of torture.” Moreover, the Convention also stipulates (Article 4. 1) that signatories “shall ensure that all acts of torture are offences under its criminal law” and requires each State, when torture has been exposed, to “submit the case to its competent authorities for the purpose of prosecution” (Article 7.1).

Why other prosecutions are required – and the OLC’s “golden shield” is no protection

With Bybee’s testimony released out of the blue, it is not possible to state with any certainty how the House Committee’s investigation is proceeding, although both Rep. Conyers and Rep. Jerrold Nadler (D-NY), one of the Committee members involved in questioning Bybee, made encouraging noises on the transcript’s release.

Between them, Conyers and Nadler focused on Yoo’s unhealthily close relationship with the White House and the ongoing investigation by veteran federal prosecutor John Durham into the activities of CIA operatives who went beyond the OLC’s guidelines. This investigation was launched by Attorney General Eric Holder last August, broadening the remit of Durham, who had already been assigned to investigate the CIA’s destruction of videotapes recording the “high-value detainee” interrogations by former AG Michael Mukasey.

Nadler noted that “the close relationship between John Yoo and the administration warrants further investigation,” adding, “Judge Bybee’s disclosures heighten the need for a special counsel to investigate the development and implementation of interrogation policies following the 9/11 attacks,” and Conyers noted, “These statements are highly relevant to the pending criminal investigation of detainee abuse [by John Durham] and I have provided the Committee’s interview to the Justice Department and directed my staff to cooperate with any further requests for information.” However, neither man mentioned that Bybee was still defending his authorization of torture, which is, of course, illegal, and should, by law, lead to his prosecution.

In addition, as Marcy Wheeler noted, what no one in a position of authority has mentioned at all is that Eric Holder announced a month ago that John Durham was close to completing his inquiry. As he stated at the time, “What I made clear is that for those people who acted in conformity with Justice Department opinions from the Office of Legal Counsel that said you could do certain things … people who acted in good faith in line with the Department of Justice guidance, will not be the people we are looking at or interested in. It’s a question of whether people went beyond those pretty far-out OLC opinions, people who went beyond that. That’s what we’re looking at.”

As Wheeler also noted, despite Holder’s words, there has been “not a squeak” about prosecuting those responsible for the death of Gul Rahman, which was obviously not authorized by the OLC memos. Perhaps even more crucially, Bybee’s testimony makes it clear that almost the entire “high-value detainee” program involved people who “went beyond those pretty far-out OLC opinions” — those who used the waterboard on KSM and Abu Zubaydah “with greater frequency” and “’in a different manner’ than OLC had approved,” and those who indulged in sessions that involved, in the Committee’s words, “Diapering a detainee or forcing a detainee to defecate on himself, forcing a detainee to wear blackout goggles, extended solitary confinement or isolation, hanging a detainee from ceiling hooks, daily beatings, spraying cold water on a detainee, and subjecting a detainee to high-volume music or noise.”

For those keeping count, it should be noted that, although the “high-value detainee” program involved 28 prisoners, 66 more were subjected to a variety of torture techniques — mainly in secret CIA prisons in Afghanistan — and many more were subjected to a version of the CIA program — which, at the very least, involved extended solitary confinement and the use of high-volume music or noise — that was introduced by defense secretary Donald Rumsfeld at Guantánamo.

The Obama administration can’t have it both ways: either the OLC memos provided a “golden shield” that the administration is unwilling to remove, but those who exceeded the authorized techniques will be held accountable, or the OLC memos were criminally inadequate, and everyone involved in authorizing torture, whether supposedly approved by the OLC or not, is culpable.

If, instead, we find that no one is to be held accountable for anything, even when guidelines were exceeded, and techniques without OLC approval were implemented with a wanton disregard for those guidelines, leading, in at least one case, to the death of a prisoner, then we really may as well forget about having any rules for anything, and openly assert that — although the rules may now have changed — the record from the Bush years establishes that the CIA can kill or torture anyone it wishes with impunity, and that the government doesn’t care.

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) and of two other books: Stonehenge: Celebration and Subversion and The Battle of the Beanfield. 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, updated in July 2010, details about the new documentary film, “Outside the Law: Stories from Guantánamo” (co-directed by Polly Nash and Andy Worthington, currently on tour in the UK, and available on DVD here), and my definitive Guantánamo habeas list, and, if you appreciate my work, feel free to make a donation.

As published exclusively on Cageprisoners. Cross-posted on Common Dreams, Uruknet, Eurasia Review, The Public Record, The Smirking Chimp, War is a Crime, The World Can’t Wait, United Progressives and Rebel News.

For a sequence of articles dealing with the use of torture by the CIA, on “high-value detainees,” and in the secret prisons, see: Guantánamo’s tangled web: Khalid Sheikh Mohammed, Majid Khan, dubious US convictions, and a dying man (July 2007), Jane Mayer on the CIA’s “black sites,” condemnation by the Red Cross, and Guantánamo’s “high-value” detainees (including Khalid Sheikh Mohammed) (August 2007), Waterboarding: two questions for Michael Hayden about three “high-value” detainees now in Guantánamo (February 2008), Six in Guantánamo Charged with 9/11 Murders: Why Now? And What About the Torture? (February 2008), The Insignificance and Insanity of Abu Zubaydah: Ex-Guantánamo Prisoner Confirms FBI’s Doubts (April 2008), Guantánamo Trials: Another Torture Victim Charged (Abdul Rahim al-Nashiri, July 2008), Secret Prison on Diego Garcia Confirmed: Six “High-Value” Guantánamo Prisoners Held, Plus “Ghost Prisoner” Mustafa Setmariam Nasar (August 2008), Will the Bush administration be held accountable for war crimes? (December 2008), The Ten Lies of Dick Cheney (Part One) and The Ten Lies of Dick Cheney (Part Two) (December 2008), Prosecuting the Bush Administration’s Torturers (March 2009), Abu Zubaydah: The Futility Of Torture and A Trail of Broken Lives (March 2009), Ten Terrible Truths About The CIA Torture Memos (Part One), Ten Terrible Truths About The CIA Torture Memos (Part Two), 9/11 Commission Director Philip Zelikow Condemns Bush Torture Program, Who Authorized The Torture of Abu Zubaydah?, CIA Torture Began In Afghanistan 8 Months before DoJ Approval, Even In Cheney’s Bleak World, The Al-Qaeda-Iraq Torture Story Is A New Low (all April 2009), Ibn al-Shaykh al-Libi Has Died In A Libyan Prison , Dick Cheney And The Death Of Ibn al-Shaykh al-Libi, The “Suicide” Of Ibn al-Shaykh al-Libi: Why The Media Silence?, Two Experts Cast Doubt On Ibn al-Shaykh al-Libi’s “Suicide”, Lawrence Wilkerson Nails Cheney On Use Of Torture To Invade Iraq, In the Guardian: Death in Libya, betrayal by the West (in the Guardian here), Lawrence Wilkerson Nails Cheney’s Iraq Lies Again (And Rumsfeld And The CIA) (all May 2009) and WORLD EXCLUSIVE: New Revelations About The Torture Of Ibn al-Shaykh al-Libi (June 2009), The Logic of the 9/11 Trials, The Madness of the Military Commissions (November 2009), UK Judges Compare Binyam Mohamed’s Torture To That Of Abu Zubaydah (November 2009), UN Secret Detention Report Asks, “Where Are The CIA Ghost Prisoners?” (January 2010), Binyam Mohamed: Evidence of Torture by US Agents Revealed in UK (February 2010), Torture Whitewash: How “Professional Misconduct” Became “Poor Judgment” in the OPR Report (February 2010), Judges Restore Damning Passage on MI5 to the Binyam Mohamed Torture Ruling (February 2010), What Torture Is, and Why It’s Illegal and Not “Poor Judgment” (March 2010), Abu Zubaydah’s Torture Diary (March 2010), Seven Years of War in Iraq: Still Based on Cheney’s Torture and Lies (March 2010), Protests worldwide on Aafia Siddiqui Day, Sunday March 28, 2010 (March 2010), Abu Zubaydah: Tortured for Nothing (April 2010), Mohamedou Ould Salahi: How a Judge Demolished the US Government’s Al-Qaeda Claims (April 2010), Judge Rules Yemeni’s Detention at Guantánamo Based Solely on Torture (April 2010), How Binyam Mohammed’s Torture Was Revealed in a US Court (May 2010), What is Obama Doing at Bagram? (Part One): Torture and the “Black Prison” (June 2010), New Report Reveals How Bush Torture Program Involved Human Experimentation (June 2010), UN Secret Detention Report (Part One): The CIA’s “High-Value Detainee” Program and Secret Prisons, UN Secret Detention Report (Part Two): CIA Prisons in Afghanistan and Iraq, UN Secret Detention Report (Part Three): Proxy Detention, Other Countries’ Complicity, and Obama’s Record (all June 2010), Abu Zubaydah and the Case Against Torture Architect James Mitchell (June 2010), The Torture of Abu Zubaydah: The Complaint Filed Against James Mitchell for Ethical Violations (June 2010), Calling for US Accountability on the International Day in Support of Victims of Torture (June 2010). Also see the extensive archive of articles about the Military Commissions.

Omar Khadr Accepts US Military Lawyer for Forthcoming Trial by Military Commission

In a turnaround from the defiant position he took last week, when he sacked his US lawyers and stated that he would either boycott his impending trial by Military Commission, or would represent himself, Omar Khadr, the Canadian citizen who was just 15 years when he was seized in Afghanistan in July 2002, and who is accused of throwing a grenade that killed a US soldier, Sgt. Christopher Speer, has told his Canadian lawyers that he is now prepared to be represented by his US military defense lawyer, Army Lt. Col. Jon Jackson. His trial, which was scheduled to begin on August 9, will now begin at a later date, although pre-trial hearings will resume on that date.

This is probably a wise move on Khadr’s part, although it does shut the door on the perhaps remote possibility that his defiance could have prompted the Obama administration to put pressure on the Canadian government to demand his repatriation before the trial begins. As I explained in an article on Friday, “Defiance in Isolation: The Last Stand of Omar Khadr,” the Canadian government has a wretched record regarding Omar Khadr, having ignored demands for his return that have been issued by the Federal Court, and having also ignored a strongly-worded condemnation of its actions that was issued by the Supreme Court.

However, the prospect of a one-sided trial, boycotted by Khadr, might have made the Obama administration — already unnerved by the implications of its own willingness to prosecute a former child soldier for war crimes — so uncomfortable that senior officials could have attempted to exert extra pressure on Stephen Harper’s government to request Khadr’s repatriation.

On the ground at Guantánamo, these deliberations have, in any case, been studiously avoided by Khadr’s military judge, Army Col. Patrick Parrish, who was extremely unwilling to allow Khadr to represent himself. In a pre-trial hearing last Monday, Khadr began by declaring that he intended to represent himself, after firing his lawyers, but then, after a recess, announced his intention to boycott the proceedings entirely, prompting Col. Parrish to declare that he would not let Khadr fire his military lawyer if he intended to boycott his trial. Col. Parrish then “directed Lt. Col. Jackson to consult his professional bodies, including the Arkansas bar, as to his obligations regarding Mr. Khadr’s defense,” as the Globe and Mail explained.

Over the weekend, Lt. Col. Jackson responded to the judge’s order by stating that he was “ethically required” to defend Khadr, adding, in a robust defense of Khadr’s rights that also included a ringing denunciation of the Commissions:

Therefore, I intend to provide him with a zealous defense at his trial in August. Omar Khadr continues to be the victim in this case. I never envisioned a scenario in my career as an Army lawyer that would require me to defend a child-soldier against war crimes charges levied by the United States. I always believed we were better than that.

Khadr’s decision to accept Lt. Col. Jackson as his military defense lawyer, which Dennis Edney, one of his Canadian civilian lawyers, confirmed today, means that “a defense motion will proceed on Aug. 9, over the question of whether prosecution evidence against Mr. Khadr was obtained through torture and coercion,” as the Globe and Mail explained. The defense motion follows up on hearings in May in which a psychiatrist and a psychologist, commissioned by Khadr’s defense team, stated that, in their assessment, Khadr was traumatized by his experiences in US custody, and a number of interrogators — some summoned by the prosecution — revealed the dubious circumstances in which Khadr was first interrogated in the US prison at Bagram airbase, immediately after being discharged from the hospital where his life-threatening wounds had been treated, and, in one session, revealed that Khadr had been threatened with gang rape in a US prison if he failed to cooperate.

As the Globe and Mail described it, “If Lt. Col. Jackson had decided differently and that suppression motion not gone forward, it could have ended one of Mr. Khadr’s best defenses.” This is undoubtedly true, although doubts remain about the gray areas in the Commission’s rules regarding self-representation, and what the rules are if a prisoner wishes to boycott the proceedings entirely.

One person who has practical experience of these issues is Air Force Lt. Col. David Frakt, who told the Globe and Mail that, over the weekend, Lt. Col. Jackson had “turned to [him] for advice on how to proceed in Mr. Khadr’s case.” Lt. Col. Frakt was the military lawyer for Ali Hamza al-Bahlul, a Yemeni who produced a video for al-Qaeda, and for Mohamed Jawad, an Afghan teenager accused of throwing a grenade that wounded two US servicemen and an Afghan translator in a marketplace in Kabul in December 2002.

In Jawad’s case, Lt. Col. Frakt’s tenacious representation of his client was invaluable, leading to the collapse of the charges against him in his proposed trial by Military Commission, and, last July, a successful habeas corpus petition in the District Court in Washington D.C. that led to his release. In al-Bahlul’s case, however, all the issues raised last week by Omar Khadr emerged in a riot of confusion that severely dented the Commission’s attempts at credibility.

Since first being charged in 2004 (in the first incarnation of the Commissions, ruled illegal by the Supreme Court in 2006), al-Bahlul had expressed his desire to represent himself, and in 2005 this led to a crisis for his court-appointed military defense lawyer, Army Maj. Tom Fleener, who was obliged to represent him under the Commissions’ rules at the time. Speaking to GQ in 2007, Maj. Fleener explained, “The concept of compelled representation has always bothered the crap out of me. You just don’t force lawyers on people. You don’t represent someone against his will. It’s never, ever, ever done.”

When the Commissions were revived by Congress in the fall of 2006, prisoners were allowed to represent themselves, leading to some lively pre-trial hearings involving Khalid Sheikh Mohammed and four other men accused of involvement in the 9/11 attacks that further undermined the Commissions’ attempts at credibility.

However, as Sean Flynn explained in the GQ article, “there were reasons to be skeptical, to suspect that the provision wasn’t as clear as it seemed.” The Military Commissions Act stated, “The accused shall be permitted to represent himself, as provided for by paragraph (3), ” but paragraph (3) included “a list of caveats that allowed self-representation to be revoked if the defendant didn’t behave to the presiding officer’s liking.” As Flynn asked, “So what would happen if a man’s idea of representing himself was to boycott his trial? Would a lawyer be forced on him then? That wasn’t clear at all.”

In al-Bahlul’s case, the judge, Air Force Col. Ronald Gregory, responded to these problems by ruling that al-Bahlul could not represent himself, and this was how I described what happened next as his trial began on October 27, 2008:

As the court convened today, [al-Bahlul] sat in silence as his appointed military defense lawyer, Maj. David Frakt, announced that al-Bahlul was boycotting the trial, and that he had two specific reasons: firstly, because the judge had repeatedly denied his requests to represent himself, and secondly because he did not wish to be represented by a military lawyer.

Noting that he was obliged to respect his client’s wishes, Maj. Frakt then asked to be relieved, and when the judge, Air Force Col. Ronald Gregory, refused, he declared that he too was unable to participate. “I will be joining Mr. al-Bahlul’s boycott of the proceedings,” he said, “standing mute at the table.” He then refused to answer any further questions from Col. Gregory.

In response, Col. Gregory attempted to argue that Maj. Frakt was “obliged to participate,” as the Associated Press described it, and insisted, “The commission will not proceed with an empty defense table.” However, he then appeared to concede that it was not in his power to force Maj. Frakt to represent al-Bahlul, and determined to proceed with a trial based solely on evidence provided by the prosecution.

The result, as I explained in a follow-up article, was that al-Bahlul received a life sentence after a one-sided trial in which neither he, nor Maj. Frakt, uttered a word in his defense, which, of course, only succeeded in bringing the words “show trial” to mind.

Bringing the story up to date with reference to Omar Khadr’s case, Lt. Col. Frakt explained to the Globe and Mail that the problems he encountered in the fall of 2008 had still not been adequately addressed, and that “Lt. Col. Jackson’s conclusion didn’t come from a bar association or military directive” (Jackson himself “would not elaborate on whether the ethics opinion came from his Army judge advocate corps or his Arkansas Bar,” as the Miami Herald reported). Lt. Col. Frakt added that the lawyers in the Commissions are left “to sort of fend for themselves on these things,” and that their responses only arise after “lengthy discussion[s].”

“In these situations there’s two concerns a lawyer has,” Lt. Col. Frakt continued. “One is, ‘How do I represent the client and carry out the client’s wishes?’ And, two, ‘How do I not lose my license to practice law?’ … There’s an added layer of complexity in these cases because the court is ordering Jackson to represent [Mr. Khadr], but what does that really mean?”

Nevertheless, in Khadr’s case, as Lt. Col. Frakt also explained, the most crucial element is that he “needs an active defense.” He added that refusing to provide a defense or insisting on representing himself would have been “basically a recipe for getting convicted on all counts and getting a very lengthy sentence. Al-Bahlul was willing to sacrifice himself for what he saw as a greater cause, [but] Khadr, from my understanding he’s not a jihadist, he’s not a martyr. He’s just a scared, angry kid that wants to go home.”

Under the rules of the new Military Commissions Act (PDF, pp. 9-10), introduced by President Obama, who bears the ultimate responsibility for reviving Khadr’s prosecution by Military Commission, rather than in a federal court, the accused still has the right to self-representation, if he “knowingly and competently waives the assistance of counsel, subject to the provisions of paragraph (4)” (which replaces the earlier paragraph (3) mentioned above). This stipulates, as before, that the right to self-representation is dependent upon “deportment” and “conduct” that conforms “to the rules of evidence, procedure, and decorum applicable to trials by military commission.”

For now, at least, Omar Khadr has stepped back from testing the rules on self-determination, and is undoubtedly in a far better position to actually defend himself as a result of Lt. Col. Jackson’s assistance. As Lt. Col. Frakt explained in an article in May, this ought to mean that the government is required to explain how, under the Commissions’ absurd rules, he can be “charged with murder in violation of the law of war,” even though “there is no evidence that he violated the law of war” in allegedly throwing the grenade that killed Sgt. Speer.

If all goes to plan, Lt. Col. Jackson will be able to expose this absurdity, as well as other glaring holes in the government’s case, in Khadr’s favor (including airing the long-established claim that he never even threw the grenade that killed Sgt. Speer), leaving the unresolved issues about self-representation — and the headache that will undoubtedly represent for the government — for some other prisoner to raise instead.

Note: The courtroom sketch above is by Janet Hamlin, and is courtesy of Janet Hamlin Illustration.

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) and of two other books: Stonehenge: Celebration and Subversion and The Battle of the Beanfield. 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, updated in July 2010, details about the new documentary film, “Outside the Law: Stories from Guantánamo” (co-directed by Polly Nash and Andy Worthington, currently on tour in the UK, and available on DVD here), and my definitive Guantánamo habeas list, and, if you appreciate my work, feel free to make a donation.

Cross-posted on Cageprisoners, The Public Record and Uruknet.

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), Military Commissions Revived: Don’t Do It, Mr. President! (November 2009), The Logic of the 9/11 Trials, The Madness of the Military Commissions (November 2009), Rep. Jerrold Nadler and David Frakt on Obama’s Three-Tier Justice System For Guantánamo (November 2009), Guantánamo: Idealists Leave Obama’s Sinking Ship (November 2009), Chaos and Confusion: The Return of the Military Commissions (December 2009), Afghan Nobody Faces Trial by Military Commission (January 2010), Lawyers Appeal Guantánamo Trial Convictions (February 2010), When Rhetoric Trumps Good Sense: The GOP’s Counter-Productive Call for Military Commissions (March 2010), David Frakt’s Damning Verdict on the New Military Commissions Manual (May 2010), Prosecuting a Tortured Child: Obama’s Guantánamo Legacy (May 2010), The Torture of Omar Khadr, a Child in Bagram and Guantánamo (May 2010), Bin Laden Cook Accepts Plea Deal at Guantánamo Trial (July 2010).

Omar Deghayes Complains About “Highly Selective” Disclosure of UK Documents Relating to his Interrogations in Bagram and Guantánamo

Last week, when the High Court ordered the release of documents relating to alleged British complicity in the torture and ill-treatment of British nationals in US custody, as part of a civil claim for damages filed by six former Guantánamo prisoners, 16 pages of those documents related to interrogations by British agents of one of the six, Omar Deghayes, who was released from Guantánamo in December 2007.

In the Guardian, following up on the story, Omar Deghayes has explained in detail why he is appalled by the “highly selective” redactions in the reports, which hide evidence of British complicity in torture, concealing his “specific allegations of ill-treatment, starvation and beatings to MI6 and MI5 officers,” hide embarrassing lines of questioning that show the intelligence services in a poor light, particularly concerning the supposed significance of Omar’s scuba-diving lessons in the UK, and also hide the ludicrous line of questioning about his purported involvement in militancy in Chechnya, which played a major part in his detention for five and a half years. Beyond the omissions, Omar also concludes that “What’s left in is to show me in a bad light,” and discloses, for the first time,  that he “was asked, in effect, to spy on his community and friends back in Britain,” leading the authors of the article, Rajeev Syal and Owen Bowcott, to add, perhaps hopefully, “His allegations will increase pressure on the government to appoint an independent judge to decide whether the notes were redacted in a legitimate manner.”

I’m cross-posting the article below, as Omar’s concerns are very dear to me, and I believe his complaints are both valid and important. Readers who want to examine the documents in question can find them here, on the Guardian’s website: pp. 8-13, partly redacted, cover interrogations at Bagram between June 26 and July 12, 2002, pp. 29-35, largely redacted, contain a Security service report from June 10, 2002, and pp. 36-38, almost entirely redacted, cover an interrogation at Guantánamo on June 17, 2003.

Guantánamo Bay detainee says interrogation record was blanked
By Rajeev Syal and Owen Bowcott, The Guardian, July 18, 2010

A former Guantánamo Bay detainee says that key exchanges from his interrogation by British security service officers have been blacked out or deliberately omitted from the notes to hide the agents’ complicity in torture. Other exchanges, he says, have been removed simply to hide evidence of spurious and potentially embarrassing lines of questioning.

Omar Deghayes, one of six UK detainees suing the government over their clandestine removal to the US base in Cuba, was able for the first time to read notes from his interrogations after they were published by the Guardian last week. He alleges that they provide an inaccurate impression of what took place, and that a true record of his meetings with British security would have shown that he made specific allegations of ill-treatment, starvation and beatings to MI6 and MI5 officers.

One of the notes he has now been able to examine, released through the high court as part of his case against the government and the security services, blacks out, or redacts, repeated questions put to him about his involvement in the Chechen freedom movement, he says. This was a false allegation that, unbeknown to Deghayes, was the key reason for his being held by the US authorities for five years.

Deghayes says that other passages, if they had not been redacted, would have revealed that he was asked repeatedly to justify scuba-diving lessons taken at a Sussex swimming club, and that he was questioned about Britain’s immigrant community.

His allegations will increase pressure on the government to appoint an independent judge to decide whether the notes were redacted in a legitimate manner.

All these notes emerged last week from a court case brought by Deghayes and five other UK claimants over their removal to Guantánamo Bay. The files show the intricate involvement of British agents in the questioning and detention of young Muslims with connections to Britain.

Deghayes, a Libyan-born political refugee, had lived in Britain for many years before moving to Afghanistan. He fled to Pakistan after the US invasion but was arrested in 2002 and handed over to the US authorities. He was then subjected to a sequence of interrogations in Islamabad and Bagram detention centre in Afghanistan, and eventually moved to Guantánamo Bay in 2002. He was released from detention in 2007.

What has been removed from the record of interrogations, Deghayes said after reading the notes, was almost as significant as what has actually been revealed. Before each session with MI6 officers, he said, he complained about the torture he was subjected to and his conditions.

“I told them about the treatment — the shackles, being beaten, lack of sleep, how sick I was. But these [comments] don’t appear. The national interest appears to have been used as a convenient shield for them,” said Deghayes, who now lives near Brighton. “Some of [their accounts are] reasonably accurate in terms of the conversations. What’s left in is to show me in a bad light. It’s highly selective. It’s censorship.”

Much of the material still withheld, he says, relates to lines of questioning pursued by the security services that would now show them in an embarrassing light. “They claimed I went to Iran to negotiate on behalf of Osama bin Laden but it was all part of their deception. I was never in Iran. In one of the first sessions, they asked me about Chechnya, and I told them I had never been there. But this question does not appear,” he said. Years after the interrogations took place, Deghayes discovered from his lawyer that this allegation had been central to his incarceration, because he had been wrongly identified.

Sometimes, lines of questioning that were repeatedly fired at Deghayes over many months turned out to be completely spurious. These have been omitted or redacted from the British agents’ notes, he says. “There was a fat man from MI5 who kept asking me about scuba diving. I had been learning in Saltdean Lido [before leaving Britain]. I hadn’t even passed my test. [Nonetheless] they kept asking me questions about it and showing me pictures from military manuals about scuba divers carrying mines. But there is no reference in the records here of my scuba diving — it is just too embarrassing [for them].”

There is a brief mention in one document, which has not been redacted, of his complaints about the “head-braces and lockdown positions” used by the Americans in Bagram. “I had complained at that point about being chained to wire mesh on the wall and having a hood drawn tightly round my neck when I was in Bagram. I don’t know what else they mean by ‘head-braces,’” he said.

“I was very sick in Bagram. I had serious malaria. They took my temperature and said it was dangerously high. They didn’t know what the problem was. [In the record of the interview] they are trying to say that everything was clear and I was fit. I wasn’t alert. I had had no food for 45 days. They interpreted [my condition] as me lying about how unwell I was. Whenever I was not co-operating, they decided I must be lying. I didn’t even have my wits about me then. They even imply that my ‘mumbling’ [referred to on one Bagram interview session] was proof that I was not being honest. What the documents don’t say is that it was such a relief to talk to anyone.”

His responses to questioning, as recorded in the notes, he says, have often been wilfully misinterpreted. In his first session in Islamabad in 2002, he was desperate to persuade the MI5 officer that he was a British national and therefore entitled to support from the embassy.

For that purpose, he initially pretended to be his elder brother, who held British nationality. “In the interview in Islamabad, I said I was my older brother, because he’s a British national. I said Omar had gone to Libya. I told ‘Andrew,’ the MI5 interrogator, that I was a British national and he should help get me out of there. Eventually I admitted to being Omar.” That plea for help appears in the documents, he said, to be used as evidence of a more sinister type, to show that it was another terrorist deception.

On several occasions Deghayes was asked, in effect, to spy on his community and friends back in Britain. “They had books of hundreds of photographs of people. They wanted me to go through them and identify the people. I didn’t recognise anyone in the book, so they said: ‘You are not helping us. You will be sent back to Libya, where they will get tortured.’ I [tried not] to show my fear.”

Notes that record his last interrogation in Bagram before being transferred to Guantánamo in July 2002 do not show the dismissive way he was treated by Andrew, he said. This moment, Deghayes said, was devastating, because he felt abandoned by his adopted country.

According to the notes made by Andrew, he knew that Deghayes had previously lied and gave him one last chance to tell the truth. Deghayes said that the note failed to record the following exchange: “I told him that I had only ever told him the truth. He just turned to someone outside the door and said: ‘This bandit doesn’t want to talk.’ I thought he was saying what he really felt. He thought that we were bandits and deserved whatever we got,” he said.

The notes remain incomplete, he said, because they show only one record of an interview with UK agents in Guantánamo. Deghayes recalls three or four. “Where are the notes for the other meetings?” he said.

Deghayes was to spend almost six years in Guantánamo before being released. He told the Guardian in January this year how he was so brutally attacked by a guard during his time there that he was left blind in one eye.

Note: For out-takes from the documentary film, “Outside the Law: Stories from Guantánamo” (directed by Polly Nash and Andy Worthington), featuring Omar discussing his interrogations by British agents, see “Video: Omar Deghayes Discusses British Complicity in Torture in Pakistan, Afghanistan and Guantánamo.”

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) and of two other books: Stonehenge: Celebration and Subversion and The Battle of the Beanfield. 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, updated in July 2010, details about the new documentary film, “Outside the Law: Stories from Guantánamo” (co-directed by Polly Nash and Andy Worthington, currently on tour in the UK, and available on DVD here), and my definitive Guantánamo habeas list, and, if you appreciate my work, feel free to make a donation.

Defiance in Isolation: The Last Stand of Omar Khadr

In the last week, Omar Khadr, the only Western citizen still held in Guantánamo, has sacked his US lawyers and stated that he will boycott his forthcoming trial by Military Commission, scheduled to begin on August 10. He has also refused to have anything to do with a plea deal that was being negotiated between the prosecution and defense lawyers, which apparently involved him serving five years of a 30-year sentence if he were to plead guilty to throwing a grenade that killed a US Delta Force soldier, Sgt. Christopher Speer, on the day of his capture after a firefight in Afghanistan nearly eight years ago, on July 27, 2002.

From a legal point of view, Khadr’s decision to boycott his forthcoming trial appears resolutely counter-productive. Of the three prisoners convicted in the Commissions’ miserable eight-year history (a fourth, Ibrahim al-Qosi, awaits sentencing after a plea deal last week), only one — Ali Hamza al-Bahlul — received a punitive sentence, being sentenced to life in prison in November 2008, after a one-sided trial in which he refused to mount a defense.

Khadr’s rebellion may yet play to his advantage, but before considering that, it is worth recounting how he reached this point, and what his rebellion means.

At the time of his capture, Khadr was just 15 years old. Seriously wounded after the firefight in which Sgt. Speer — and all of Khadr’s companions — were killed, he was then accused of having thrown the grenade that killed Sgt. Speer, even though subsequent accounts have indicated that he was face-down and unconscious under a pile of rubble at the time, and was subjected to interrogations, threats and insensitive and sometimes abusive treatment until his transfer to Guantánamo, soon after his 16th birthday on September 19. 2002. In Guantánamo, the same pattern of interrogations, threats and abusive treatment continued.

Khadr’s abuse as a juvenile, in defiance of international treaties

At no point was Khadr treated as a juvenile prisoner (those under 18 years of age when their alleged crimes take place), caught up in war at the instigation of an adult — in this case, his father, Ahmed Khadr, an alleged financier for Osama bin Laden, who had repeatedly shuttled his family from Canada to Afghanistan and Pakistan during Khadr’s childhood. It was, after all, Ahmed Khadr who bore the ultimate responsibility for letting his son spend time with a group of men who, on July 27, 2002, took him with them when they went to visit colleagues in Ab Khail, a small village outside Khost, where they were subsequently ambushed by US soldiers.

Of particular relevance here is the Optional Protocol to the UN Convention on the Rights of the Child on the involvement of children in armed conflict, which was adopted by resolution of the General Assembly of the United Nations on May 25, 2000, and entered into force on February 12, 2002. The US ratified the Optional Protocol on December 23, 2002, five months after Khadr was seized, but then spectacularly failed to fulfill its obligations, which includes the agreement that all States Parties who ratified the Protocol “[r]ecogniz[e] the special needs of those children who are particularly vulnerable to recruitment or use in hostilities,” and are “[c]onvinced of the need [for] the physical and psychosocial rehabilitation and social reintegration of children who are victims of armed conflict.”

The US also ignored a detailed plan for the care of juveniles in Guantánamo, “Recommended Course of Action for Reception and Detention of Individuals Under 18 Years of Age” (PDF), dated January 14, 2003, which was drawn up by four doctors at Guantánamo, and provided detailed guidance on how juveniles should be treated. The document, which I discussed in an article in October 2008, began by noting, “All efforts should be made to keep those in the pediatric age range [those under 18] from undergoing detention at Guantánamo Bay, Cuba,” and pointed out, “People less than age 18 years are emotionally, psychologically, and physically dynamic and complex. If it is determined that they must be detained, then all aspects of their transport, in-processing, and detainment should be specific for this age group.” Much of the rest of the document described, in detail, how juvenile prisoners must be housed and treated, and how to meet their psychological and educational needs.

However, instead of being rehabilitated, Khadr was subjected to the full weight of the oppressive and illegal regime at Guantánamo, and was also abandoned by the Canadian government, which sent interrogators to Guantánamo in February 2003. As his Canadian lawyers, Nathan Whitling and Dennis Edney, noted when they released a video of the interrogations in July 2008 (which was provided to them during Canadian court proceedings), although Omar was clearly “suffering from severe emotional problems connected with his detention and interrogation, crying heavily on more than one occasion,” the Canadian officials “dismissed his claims of abuse on the flimsiest of pretexts,” writing, in one of the reports, that his allegations of torture at the US prison in Bagram, Afghanistan “did not ring true,” even though, as we now know, at least two prisoners were killed by US soldiers just months after Khadr was transferred to Guantánamo.

Khadr’s only power – the power to dismiss his lawyers

As a result of all these factors, when two US lawyers, Muneer Ahmad and Rick Wilson of the International Human Rights Law Clinic at American University, finally got to meet him in October 2004, following the Supreme Court’s ruling, in June 2004, that the prisoners had habeas corpus rights, “[s]ecuring [his] trust did not prove easy,” as I explained in a profile of Khadr in November 2007, “primarily because suspicion and paranoia were built into the fabric of Guantánamo.” Ahmad recalled that, when he finally met Omar, his first thought was, “He’s just a little kid.” In August 2006, an article in Rolling Stone explained, “Omar was gaunt and pale, in a state of everlasting exhaustion, his senses starved by solitude. He had large gunshot-wound scars on his back and chest, and smaller scars over most of his body, several parts of which still held shrapnel.”

Significantly, as Ahmad also explained, although Khadr gradually opened up to them, “reveal[ing] himself to be very shy and curious and, in most ways, still a child, with a child’s sweetness and credulous charm,” he also realized, as Michelle Shephard explained in the Toronto Star on Wednesday, that “the only control [he] could wield in prison was whether he saw his lawyers, and if he would let them represent him. Interrogations and daily routines were non-negotiable. Even hunger strikes were unsuccessful due to Guantánamo’s policy of force-feeding striking detainees.”

In November 2005, just over a year after his first visit from his lawyers, Khadr was charged in the first incarnation of the Military Commission trial system, which, in November 2001, Vice President Dick Cheney and his close advisors thought would be a useful method for trying terror suspects without due process, using material derived from torture, and, if required, subjecting them swiftly to the death penalty. It didn’t work out that way, of course, In June 2006, the Supreme Court ruled that the Commissions violated the Geneva Conventions and the Uniform Code of Military Justice, but they were then revived by Congress, and in February 2007 Khadr was charged again. This time around, proceedings limped on until January 2009, when, on his first day in office, President Obama suspended the Commissions, but by May he had concluded that they ought to be revived with the aid of Congress, and in November last year Khadr was charged for the third time.

As the Commissions have struggled to establish their legitimacy, and have stumbled from one disaster to another, plagued by resignations, internal problems and inconsistencies, and a fundamental misconception that any of the charges faced by the prisoners are recognizable as war crimes, Khadr has repeatedly resorted to the only power he has — the power to dismiss his lawyers — even as those men and women did their best to defend him, both in court hearings and in the media, pointing out that he was a child when seized, that he was tortured, that he did not throw the grenade that killed Sgt. Speer, and that the United States ought to be ashamed for even contemplating putting a former juvenile prisoner on trial for war crimes.

Khadr’s defiance and his sense of justice

Khadr’s actions may seem counter-intuitive, and in some ways may be nothing more than a frustrated child in a man’s body lashing out in a manner that reveals the anguish beneath his generally calm exterior. Looked at another way, however, it is easy to understand why Khadr has just sacked his US lawyers (again), and why he believes that the Commissions are rigged and that the US government is incapable of delivering justice in his case. His reasoning permeates the statement he read out in court on Monday, in which he declared:

[Y]our honor I’m boycotting this Military Commission because:

* Firstly the unfairness and unjustice of it. I say this because not one of the lawyers I’ve had, or human rights organizations, or any person, ever say that this commission is fair or looking for justice, but on the contrary they say it’s unfair and unjust and that it has been constructed to convict detainees, not to find the truth (so how can I ask for justice from a process that does not have it or offer it) and to accomplish political and public goals. And what I mean is when I was offered a plea bargain it was up to 30 years which I was going to spend only five years so I asked why the 30 years. I was told it makes the US government look good in the public’s eyes and other political causes.

* Secondly: The unfairness of the rules that will make a person so depressed that he will admit to all[e]gations made upon him or take a plea offer that will satisfy the US government and get him the least sentence possible and l[e]gitimize this sham process. Therefore, I will not willingly let the U.S. gov use me to [fulfill] its goal. I have been used [too] many times when I was a child and that’s [why] I’m here taking blame and paying for things I didn’t have a choice in doing but was told to do by elders.

* Lastly I will not take any plea offer because it will give excuse for the gov for torturing and abusing me when I was a child.

It’s all there: Torture and abuse by the US when he was a child; the refusal by the US authorities to recognize that he was manipulated by those older than him; and a refusal to accept a plea deal that would make the US look good, that would appear to validate an unjust process, and that would involve him confessing to a crime he didn’t commit.

US discomfort, Canada’s shameful history – and why the Harper government needs to act now

I don’t doubt that Khadr’s defiance is mixed with confusion, but it just may be that boycotting his pending trial will force both the American and the Canadian governments to think long and hard about what to do now.

For Barack Obama, the boycott threatens to turn a situation that is already problematical into one that is beyond contemplation. When Ali Hamza al-Bahlul refused to mount a defense and was convicted in the dying days of the Bush administration, no one cared, but in Khadr’s case it is different. As Michelle Shephard explained on Wednesday, his status as a child soldier “has already made many in Washington uncomfortable,” and a decision to boycott his trial may make it “politically untenable.” Jennifer Turner, a researcher who was observing Khadr’s hearing for the American Civil Liberties Union, told Shephard by email, “Politically, it’s a nightmare. Instead of restoring the rule of law, Obama would be presiding over the one-sided prosecution of a child, taken to a conflict zone by his family and mistreated for years in US detention.”

Even more pertinently, Khadr’s boycott may finally provoke action from the Canadian government, which, throughout this whole sordid story, has behaved appallingly. Despite signing the Optional Protocol to the UN Convention on the Rights of the Child on the involvement of children in armed conflict on July 7, 2000, and advocating on the world stage for the rights of child soldiers from other countries, the government has persistently refused to call for the return of Khadr to Canada, and has, over the years, faced mounting condemnation in the courts.

In April 2005, critics of the government’s stance in Canada were appalled when William Hooper, the assistant director of operation for the Canadian Security Intelligence Service, admitted that the information obtained from Khadr’s interrogation at Guantánamo had been shared with the US authorities, without any attempt having been made to ascertain whether it would be used in a case involving the death penalty, and in July 2008, when Nathan Whitling and Dennis Edney released the video of Khadr’s interrogations by Canadian agents, they were able to do so because, on May 23, 2008, the Supreme Court of Canada ruled unanimously that the government had acted illegally, contravening Article 7 of the Charter of Rights and Freedoms, which guarantees that “Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice,” and ordered the videotapes released.

A month later, on June 25, 2008, there was more trouble for the government, when Mr. Justice Richard Mosley of the Federal Court of Canada ruled (PDF) that a report from a visit to Khadr in March 2004 by Jim Gould of the Canadian Department of Foreign Affairs, which nonchalantly mentioned how Khadr had been subjected to prolonged sleep deprivation for three weeks before his visit, “in an effort to make him more amenable and willing to talk,” constituted a breach of the UN Convention against Torture and the Geneva Conventions.

In April 2009, the Federal Court of Canada revisited the case, reiterating that Khadr’s rights had been violated, and concluding that the government had a “duty to protect” Khadr and should request his return to Canada as soon as possible. In August 2009, the Federal Court of Appeal upheld the ruling, and in January 2010, in another unanimous 9–0 decision, the Supreme Court of Canada also upheld the ruling, concluding:

The deprivation of [Khadr’s] right to liberty and security of the person is not in accordance with the principles of fundamental justice. The interrogation of a youth detained without access to counsel, to elicit statements about serious criminal charges while knowing that the youth had been subjected to sleep deprivation and while knowing that the fruits of the interrogations would be shared with the prosecutors, offends the most basic Canadian standards about the treatment of detained youth suspects.

The Supreme Court stopped short of ordering the government to seek Khadr’s return, accepting, lamely, that it was up to senior officials to ascertain how to balance foreign policy requirements with the need to respect Khadr’s constitutional rights. Predictably, given its past behavior, the government decided that Khadr’s rights counted for nothing, prompting another round of litigation. Last week, Mr. Justice Russell Zinn gave the government seven days to come up with a list of ways in which they intended to protect Khadr’s rights, but on Monday, as Khadr prepared to deliver his statement in Guantánamo, the government filed another last-minute appeal.

Whether evasion on the part of the government is endlessly possible remains to be seen, but it now seems likely that, with Khadr’s boycott looming, the Obama administration may finally seek to exert pressure on Prime Minister Stephen Harper. As Michelle Shephard explained on Wednesday, such has been the Canadian government’s aversion to dealing constructively with Khadr’s case that government officials were not even involved in the discussions regarding a plea deal, meaning that the whole arrangement of serving five years of a 30-year sentence “was never guaranteed.”

Khadr may not have known this when he sprang his surprise on his latest lawyers, but, as Dennis Edney explained, “The deal was dependent on a number of things, including whether Canada would take him. And Canada was never at the table.”

With a chronic travesty of justice looming, it is time for Canada to sit at the table with the Americans, and to work out how to secure Khadr’s release without the embarrassment of a war crimes trial. Unlike every other Western citizen, Omar Khadr has been spurned for too long by his home country, and it is time for Stephen Harper to secure his return, and to bring to an end the desperate defiance, born of frustration and isolation, of a former child prisoner who has lost a third of his life in an experimental prison outside the 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) and of two other books: Stonehenge: Celebration and Subversion and The Battle of the Beanfield. 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, updated in July 2010, details about the new documentary film, “Outside the Law: Stories from Guantánamo” (co-directed by Polly Nash and Andy Worthington, currently on tour in the UK, and available on DVD here), and my definitive Guantánamo habeas list, and, if you appreciate my work, feel free to make a donation.

As published exclusively on Cageprisoners. Cross-posted on Common Dreams, Eurasia Review, The Public Record, Uruknet and Rebel News.

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), Military Commissions Revived: Don’t Do It, Mr. President! (November 2009), The Logic of the 9/11 Trials, The Madness of the Military Commissions (November 2009), Rep. Jerrold Nadler and David Frakt on Obama’s Three-Tier Justice System For Guantánamo (November 2009), Guantánamo: Idealists Leave Obama’s Sinking Ship (November 2009), Chaos and Confusion: The Return of the Military Commissions (December 2009), Afghan Nobody Faces Trial by Military Commission (January 2010), Lawyers Appeal Guantánamo Trial Convictions (February 2010), When Rhetoric Trumps Good Sense: The GOP’s Counter-Productive Call for Military Commissions (March 2010), David Frakt’s Damning Verdict on the New Military Commissions Manual (May 2010), Prosecuting a Tortured Child: Obama’s Guantánamo Legacy (May 2010), The Torture of Omar Khadr, a Child in Bagram and Guantánamo (May 2010), Bin Laden Cook Accepts Plea Deal at Guantánamo Trial (July 2010).

RIP Charly Gittings: We’ve Just Lost One of the Good Guys

I’m saddened to report that on the night of July 14, Charly Gittings, the most tenacious opponent of the Bush administration and its crimes, passed away at the age of 57. I had never met Charly, but we had been in email contact since November 2008, and I had been aware of his work before that time. No one who has ever researched Guantánamo can have failed, at some point, to have come across Charly’s extraordinary “Project to Enforce the Geneva Conventions” (PEGC), a vast archive of documents relating to the Bush administration crimes, consisting of legal opinions, memoranda, press statements, from the courts, the White House, the DoD, the DoJ, the State Department — all the evidence required to convict senior officials of war crimes.

At the foot of this post, I reproduce Charly’s “Political Biography,” in which he explained how his project began on November 13, 2001, when President Bush issued his original “Military Order – Detention, Treatment, and Trial of Certain Non-Citizens in the War Against Terrorism,” a vile document that, years later, I too realized was central to the administration’s plot to shred every law that protected us from ourselves, and that protected our enemies — or random strangers — from torture, arbitrary detention and murder. Charly, however, was there at the beginning, urging his fellow Americans to uphold the laws they claimed to admire.

When I first struck up contact with Charly, he sent me a wonderful email that, on re-reading, captures his dedication to the law, and also sheds light on how, like many sensitive people in a world that has become increasingly coarse, violent and uncaring, he found it hard to dwell too much on the stories of the men — and boys — subjected to the Bush administration’s lawless and brutal experiment in unfettered executive power, and focused instead on law and policy, and his unwavering belief that America was led by war criminals.

Glad to meet you!  I’ve heard of you and your book … I was very glad that you wrote your book, because I’d been studiously avoiding the idea of trying to write it myself for five years or so but definitely thought it would be good for someone to do it. My main focus has always been the legal and policy issues, and much as I sympathize with the detainees on a human level, the details of individual cases tend to overwhelm me a bit. I remember how I felt in early 2002 when I saw the pictures of the first detainees being transported to Gitmo — that told me everything I needed to know about Gitmo right then and there. I do pay attention, but have to keep a balance lest I drown in details … you probably get what I mean better than most would.

After our initial introduction, I then received Charly’s many PEGC updates by email, always finding information that had otherwise eluded me, and it came as a shock when, in February 2009, he announced that he had been diagnosed with lung cancer. In the 16 months since, I feared emails marked “my health,” which were interspersed with PEGC updates, but Charly remained resolutely positive, even when a recent exchange about a possible Conservative victory in the UK General Election prompted the comment, “Have to keep a strict watch on my intake of cynicism.”

On the Guantánamo Blog, Candace Gorman left a fitting epitaph:

During the night my friend and the friend of many of us, Charly Gittings, died. He was diagnosed with lung cancer just about a year ago and he fought the good fight as long as he could. He asked me, and his many other friends, to carry on certain battles: to keep his project alive, “The Project to Enforce the Geneva Conventions,” and to do our best to bring our war criminals to justice. I made the promise to him that I would do everything I could to make sure our war criminals were prosecuted … and I will. I hope others will work on finding a home for his Project.

I too promise to do everything I can to make sure that the war criminals are prosecuted, and I’ll be thinking of you, Charly, and of everyone else who has strived to make a difference.

Candace also reproduced some comments that other people have been making about Charly in the last 24 hours, and before leaving you with Charly’s own “Political Biography,” I’d like to share a few of them with you:

Our loss is also the loss of the world; peace, justice and honor will be just a bit further away from our grasp.

If I were to do an eulogy for Charles Gittings, I would say he was a stubborn, obstinate — even prickly — man who knew his duty and always performed it faithfully. In my personal experience, he managed to sway many people, among them military officers, to accept his point of view. He contributed a great deal to our understanding of war crimes, he documented his findings meticulously and he ended up being in the right. I can’t think of a better epitaph. This man made a difference.

I join in lamenting the loss of a sweet-tempered, hard-working, gentle giant who never tired of seeking rights for those that so many sunshine patriots despise.

How very wrong it seems that Charly is gone and that Guantánamo continues. When we finally do close that horrible place down, we must put a plaque there commemorating Charly’s contribution.

And this:

On a rainy evening sadly comes a long expected visit. but with it bittersweetly, the balm of these remembrances.

Five years ago I wandered into a Guantánamo case, filed a motion, and about ten seconds after it hit Pacer, had the lion heart at my ear. On that shining day when we grasped victory, and on the dark ones when the Circuit snatched it back, he was there. He never tired. I can hear him still.

Well done, thou good and faithful servant —
Atque in perpetuum, frater, ave atque vale.

And this from The Talking Dog:

I was most saddened when Candace told me that Charles Gittings passed away at the extremely untimely age of 57. Charly (whom I interviewed here) epitomized the concept of “citizen activist.”

Charly’s Project to Enforce the Geneva Conventions was a kind of one-man-show. It served as both an archive of the misdeeds of those of in power and a back-drop for Charly’s one of a kind advocacy. Despite not having legal training, he submitted a number of amicus curiae briefs in major “war on terror” cases that were so brilliant that they downright sung. I can only wish we saw so much more of that kind of thing; maybe nothing would be any different … but if there were 5 more Charlies out there … or 10 … one can only imagine …

Charly’s Political Biography

I started my adult life at 16 as a tournament Chess player, rising to a USCF rating of 2185 (Expert). Then I switched to playing Bridge, eventually reaching the ACBL rank of Life Master. My computer career began in 1973 at Bank of America. I’m currently unemployed, having been laid off in July 2002.

As for my political views, I’m a registered Democrat for the duration now — after 15 years of not voting at all on principle. I was a life-long Republican before that, oddly enough … conservative on economics and foreign affairs, libertarian and egalitarian on social issues. But I gradually became nauseated by the growing numbers of racists, fundamentalists, and corporate neo-fascists in the party.

I firmly believe that Lincoln and most of the abolitionists would either be Democrats or Greens if they were alive today. At heart I am a pragmatic anarchist, a humanist, and an internationalist, drawing inspiration from Tom Paine, William Godwin, William Lloyd Garrison, Peter Kropotkin, Leo Tolstoy, Emma Goldman, and Mohandas K. Gandhi, among others.

On 9/11/2001, it was immediately obvious to me the world was facing a crisis on the order of 1914 or 1939, and that the greatest danger by far was the Bush administration. So I resolved to take a more active role in the world and do whatever little bit I could to help deal with the mess. On 11/13/2001, I found out what that was when Bush issued his original military commission order.

So I set out to track the issues of that irresponsible order with the purpose of opposing it. I began researching the Geneva Conventions and a number of other treaties. I wrote a top-of-my-head reaction to the order and sent it to my US representative, Barbara Lee (D-CA, 9th District) in the form of a petition.

When Camp X-Ray started operating, the Bush administration’s policies stopped being just bad ideas and started being violations of the Geneva Conventions, and by then I was very alarmed by the administration’s blustering autocratic efforts to simply re-write the laws however they please by executive fiat.

So I then turned from the question of what the Geneva Conventions required and took up the question of how they might be enforced. I began with Nuremberg and re-examined the US Supreme Court decision in Ex Parte Quirin.

Soon after, the first habeas petition on behalf of the prisoners at Guantánamo Bay was filed in Los Angeles — Coalition of Clergy v. Bush. My take on the situation was that habeas is a convoluted mess of precedents where the government has endless ways of playing games with a case.

My thinking was: the US government is committing flagrant war crimes — there should be some way to prosecute them as such. So I searched the US code and found 18 USC 2441, the War Crimes Act of 1996. This is a rarity in US law — a statute which implements an international treaty in the US criminal code. The traditional US view is that our laws are perfectly capable of meeting our treaty obligations as is, a manifestation of the native US ambivalence on treaties; but in 1996, the Congress passed the war crimes act to plug any loopholes against the backdrop of events in Rwanda and Kosovo.

So I decided to pursue a criminal case intending to defend the Geneva Conventions by a direct prosecution of the crimes rather than the highly problematic expedient of asserting the prisoner’s rights via habeas, and my news gathering effort became a criminal investigation — with the Washington Post and New York Times providing my field investigators. I began downloading and excerpting every relevant comment from DoD and White House press conferences from 2001.11.13 forward. I began documenting the events, names, and dates; fleshing out details; researching the legal aspects; and establishing contacts with interested parties and officials.

And I am now working to bring the matter forward in the courts.

Charles Gittings
Fort Bragg, California
[2002.12.03, revised 2009.02.06]

Note: Before Charly passed away, he left the Project to Enforce the Geneva Conventions in the hands of Deborah Lagutaris. Please see this page for further details.

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) and of two other books: Stonehenge: Celebration and Subversion and The Battle of the Beanfield. 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, updated in July 2010, details about the new documentary film, “Outside the Law: Stories from Guantánamo” (co-directed by Polly Nash and Andy Worthington, currently on tour in the UK, and available on DVD here), and my definitive Guantánamo habeas list, and, if you appreciate my work, feel free to make a donation.

Andy Worthington on Guantánamo: Four Powerful Radio Shows

Those of us committed to hammering away at Dick Cheney’s “Dark Side” in an effort to restore some sanity to the world, to call to accountability those who turned America into a “Torture Nation,” and to call for justice or freedom for those imprisoned as part of the “War on Terror,” count on a network of admirable radio hosts to get the word out, and I’m pleased to report that, in the last week or so, I’ve done interviews with four people with whom I’ve built up a great relationship over the years: Peter B. Collins, Scott Horton, Linda Olson-Osterlund and Chris at CheneyWatch.

If you have an hour or so to spare, and want to know the background to the Guantánamo story and my four years of work covering the prison’s malign history and the stories of the men held there, including how so many innocent men (or soldiers unconnected with terrorism) were held, and how and why the Bush administration embraced torture — as well as what’s happening (or not happening) now under President Obama — then I recommend my interview with Peter B. Collins, available here — and the MP3 is here. I’ve spoken to Peter many times before, and recommend his show because his podcasts, uninterrupted by ad breaks, provide a great opportunity to discuss serious issues in detail without interruption.

Peter and I covered numerous other topics in our interview, including my shock at the Obama administration’s almost total inability to stand up to critics, recent habeas corpus victories, including that of Hussein Almerfedi, a Yemeni seized in Iran and held in secret CIA prisons in Afghanistan, and the reasons why three men released in Slovakia in January this year recently embarked in a hunger strike to protest about the conditions in which they are held. We also spoke about the sad and mistaken revival of the Military Commissions, including the recent plea deal struck by Ibrahim al-Qosi, who seems to have been little more than a cook for Osama bin Laden, and the reasons why the imminent trial of Omar Khadr should never have been contemplated, and, towards the end of the show, we also spoke about the recent announcement by British Prime Minister David Cameron of an inquiry into British complicity in torture (for an update on recent shocking revelations, see here).

This is how Peter described the show on his website:

Gitmo, still open; Obama’s “disgusting” policies. Andy Worthington, British journalist and author of The Guantánamo Files updates us on Guantánamo: 93% of the prisoners Bush and Cheney called “the worst of the worst” were innocent; 60 of the 181 remaining detainees are innocent Yemenis whose release is blocked by Obama’s moratorium, which is being snubbed by federal judges; 48 others are designated to be held indefinitely without trial, only 35 will face trials, including the KSM posse. Read Andy’s frequent updates on his website, and please support him if you can.

On the same day that I spoke to Peter B., I also conducted a whirlwind 18-minute interview with Scott Horton of Antiwar Radio, available here — and here as an MP3. The spur for our 15th interview was the publication of the latest update to my definitive four-part Guantánamo prisoner list (see Part One, Part Two, Part Three and Part Four), although we also managed to speak about other topics, including the case of Mohammed Hassan Odaini, the innocent Yemeni student (finally released two days ago), whose innocence was only troubling to the Obama administration because it compelled senior officials to override the moratorium on releasing Yemenis that was shamefully introduced by President Obama in January.

This is how Scott described the show:

Andy Worthington, author of The Guantánamo Files, discusses his updated “definitive prisoner list” for Guantánamo, how the US whisked away the real suspected terrorists to CIA black sites and used Gitmo as a catch-all and PR stunt, more reasons why torture is unjustifiable and how the Justice Department is forced to pursue terrorism charges against Yemenis who have been cleared for release.

My third interview, with Linda Olson-Osterlund of KBOO FM in Portland Oregon, for her show, “A Deeper Look,” is available here, and aired originally on July 8. Linda was one of the first radio hosts to take an interest in my work, and it’s always a pleasure to talk to her. In the 28-minute interview, we discussed the latest news from Guantánamo, and also focused on the stories of released prisoners, speaking, in particular, about my recent tour of the UK with former prisoner Omar Deghayes, showing the new documentary film, “Outside the Law: Stories from Guantánamo” (directed by Polly Nash and myself), which provides, for me, the perfect example of how disappointing it is that President Obama refused, last year, to allow White House Counsel Greg Craig to bring a number of cleared prisoners (who could not be repatriated because of the risk of torture) to live in the US. Had this happened, of course, it would soon have become apparent — as it has in the UK, and as became abundantly clear to me while traveling around the country with Omar — that enormous mistakes were made at Guantánamo, and that innocent men were held and abused for years, which would have done more than anything else to puncture the hysteria and scaremongering that still surrounds Guantánamo.

This is how Linda described the show:

Still open for business, still holding prisoners, holding military tribunals in new 12-million dollar courtrooms. In May they banned four experienced journalists from covering hearings in the Omar Khadr trial. Congress continues to try to stop the island base’s closure. Join host, Linda Olson-Osterlund and her guest, journalist, film producer and author of The Guantánamo Files, Andy Worthington. Get the news regarding Guantánamo, the prisoners there and the movement to close the infamous interrogation and detention center. Hear about Andy’s work with Cageprisoners, an organization of released detainees living in England, and his tour with them for his documentary, “Outside the Law: Stories from Guantánamo.”

The last of the four shows, with Chris of CheneyWatch on his Veracity Radio channel, is available here — and here as an MP3 — and was recorded a few weeks back, although it has only recently been made available online. In a special show devoted to the complaint filed in Texas against former military psychologist James Mitchell, one of the architects of the Bush administration’s torture program, Chris spoke to me (in Segment 4), running through some of the many disturbing facets of the torture program, the failures of the intelligence regarding Abu Zubaydah, and the extraordinary cruelty, stupidity and cynicism of those who authorized the torture program, and, like Mitchell, enthusiastically introduced it, and also spoke to Jim Cox, the forensic psychologist who filed the complaint with the Texas State Board of Examiners of Psychologists, and Joe Margulies, an attorney involved with the Guantánamo litigation from the moment that Guantánamo opened, who is one of Abu Zubaydah’s attorneys, and who contributed to the complaint.

My thanks to Peter B., Scott, Linda and Chris — and I hope to talk to you again soon.

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) and of two other books: Stonehenge: Celebration and Subversion and The Battle of the Beanfield. 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, updated in July 2010, details about the new documentary film, “Outside the Law: Stories from Guantánamo” (co-directed by Polly Nash and Andy Worthington, currently on tour in the UK, and available on DVD here), and my definitive Guantánamo habeas list, and, if you appreciate my work, feel free to make a donation.

UK Sought Rendition of British Nationals to Guantánamo; Tony Blair Directly Involved

With what the Guardian described yesterday as the “almost unprecedented” release of “security service reports of interviews with detainees in Guantánamo Bay and other overseas detention centres,” the coalition government failed in its attempt to persuade the High Court to bring a temporary halt to a civil claim for damages filed by six former Guantánamo prisoners, unleashing, instead, a torrent of previously classified and deeply disturbing documents.

These reveal, shockingly, how the Labour government was happy for British nationals and residents seized in Afghanistan and Pakistan to be rendered to Guantánamo by the Bush administration, and how, in one case — that of Martin Mubanga, seized in Zambia — Tony Blair’s office intervened to prevent attempts by the Foreign and Commonwealth Office to have him returned to the UK, leading to his imprisonment in Guantánamo for two years and nine months.

In paving the way for its announced inquiry into British complicity in torture, the coalition government attempted, without success, to persuade the High Court that, as the Guardian put it, “proceedings should be delayed while attempts at mediation are made” before the inquiry begins. Critics had already expressed their fears that the calls for “mediation” were a smokescreen for compensation deals that would attempt to buy the former prisoners’ silence, so that the inquiry could proceed in secret without too many embarrassments.

Instead, however, the government’s intervention has precipitously kick-started the inquiry in a very public manner, after Tim Otty QC, counsel for five of the men, said that proceedings “should be allowed to continue because the documents that the government is beginning to disclose shed new light upon the role that the UK authorities played in the men’s mistreatment,” and the judge, Mr. Justice Silber, agreed.

One of the most shocking documents disclosed in the High Court proceedings was issued by the FCO on January 10, 2002, the day before Guantánamo opened. Entitled, “Afghanistan UK Detainees,” it described the government’s “preferred options” in dealing with British prisoners. “Transfer of United Kingdom nationals held to a United States base in Guantánamo is the best way to meet our counter-terrorism objectives, to ensure they are securely held,” the document explained, adding that the “only alternative” was to either hold these men in British custody in Afghanistan, or to return them to the UK.

In another shocking revelation, it was revealed that, in the case of Martin Mubanga, released documents “raise a number of troubling questions as to the role of the former Prime Minister’s office in frustrating the release of one of the claimants,” as Tim Otty described it, adding, “In the period of March and April 2002, the Prime Minister’s office apparently countermanded a desire on the part of the Foreign and Commonwealth Office to intervene on behalf on Mr. Mubanga.”

Mubanga, a joint British-Zambian national, had traveled from Pakistan to Zambia, where his sister lived, in February 2002, but had then been seized by the Zambian security services, and according to the documents released in court, the Prime Minister’s Office had intervened to ensure that he was not brought back to the UK. As a result, the FCO was put in a difficult position: if officials sought consular access, thereby acknowledging British responsibility for him, he would have been released to the UK authorities, directly contradicting the Prime Minister’s orders, which, as Reprieve noted yesterday, involved the Prime Minister “order[ing] the FCO to violate its international law obligations under the Vienna Convention, which requires the UK to provide consular assistance to British nationals around the world.”

At the time, an FCO document complained about “the schizophrenic way in which policy on this whole case was handled in London,” which had led to the British High Commission in Lusaka being placed “in an impossible position,” and in an email dated August 22, 2002, an FCO official, recognizing that “we broke our policy” because of direct interference from Tony Blair’s office, stated, “we are going to be open to charges of concealed extradition.”

According to Mubanga, after the British finished with him — apparently having tried and failed to recruit him as a spy — the US agent who had been dealing with him told him, “I’m sorry to have to tell you this, as I think you’re a decent guy, but in ten or 15 minutes we’re going to the airport and they’re taking you to Guantánamo Bay.”

In court, Tim Otty highlighted Tony Blair’s complicity in torture by pointing out that, by the spring of 2002, it was abundantly clear that there was a considerable risk that terror suspects in US control would be subjected to rendition and torture. “Despite that,” he told the court, “someone at Number 10 saw fit to counter what the Foreign Office wished to do.”

As the Guardian also explained yesterday, this was “not the only time the Prime Minister’s Office intervened to thwart attempts by Foreign Office officials to obtain a degree of protection for British citizens.” Minutes prepared for the Home Office Terrorism and Protection Unit after a meeting in April 2002 state that the US authorities “had been informed that the British government might begin making public requests for legal access to British men held at Guantánamo.” According to the minutes, “FCO had wanted to do this (and wanted to be seen to be doing it) but had been overruled by No. 10.”

The released documents also highlight the leading role played by Jack Straw, then the foreign secretary, in shaping the policies that led to the interrogations of British prisoners in US custody in Afghanistan, prior to their transfer to Guantánamo. As the Guardian explained, in mid-January 2002, Straw sent a telegram to several British diplomatic missions around the world in which he “signaled his agreement” with the Guantánamo policy, “but made clear that he did not wish to see the British nationals moved from Afghanistan before they could be interrogated.” In the telegram, he wrote:

A specialist team is currently in Afghanistan seeking to interview any detainees with a UK connection to obtain information on their terrorist activities and connections. We therefore hope that all those detainees they wish to interview will remain in Afghanistan and will not be among the first groups to be transferred to Guantánamo. A week’s delay should suffice. UK nationals should be transferred as soon as possible thereafter.

One of these “detainees” was Shaker Aamer, the last British resident still held in Guantánamo, and as a court heard in December last year, leading to the launch of a Metropolitan Police investigation, Mr. Aamer has claimed that British agents were present in the room, in the US prison at Kandahar airbase in Afghanistan, when he was subjected to abusive treatment by Americans.

Other interrogations revealed in the documents include those involving Omar Deghayes, seized from a house in Lahore in May 2002, who was treated disdainfully by the British agents who visited him, and an unidentified prisoner held in Kabul, under the heading, “Warriors 14/1,” about whom the agents involved noted only, “Interview conditions: cold beaten up.”

Extraordinarily, these documents are only the tip of a very murky iceberg, and it is unclear at present how many more will be publicly revealed. As has been previously reported, the government has identified up to 500,000 documents that may be relevant to the former prisoners’ claim for damages, and, according to the Guardian, “says it has deployed 60 lawyers to scrutinize them, a process that it suggests could take until the end of the decade.” In this first batch, “just 900 papers have been disclosed, and these have included batches of press cuttings and copies of government reports that were published several years ago,” but as they also include these damning insights into the activities of Tony Blair, Jack Straw and the agents who interrogated British prisoners in appalling conditions, it is surely inconceivable that the government will now be able to conduct a secret inquiry into British complicity in torture, and must, instead, order a full and open inquiry.

This could take place under the Inquiries Act of 2005, like the Baha Mousa inquiry (into the murder, in British custody, of a hotel clerk in Iraq), which, as Reprieve noted when David Cameron announced the torture inquiry two weeks ago, was held under the Act and has been “a model of an inquiry functioning efficiently, including the hearing of secret evidence,” and has also allowed for document classification review proceedings that “are sophisticated and rightly allow the judge to balance the need for national security against the need for transparency.”

The time for silence, and the time for secrecy are over. To clear the air, and to draw a line under this most lamentable period in our recent history, we need an inquiry presided over by someone who is able to “balance the need for national security against the need for transparency.” For too long now — and with baleful results — the need for national security has been allowed to override everything else, inflicting grave damage on our claims to be a civilized country, and leading to devastating effects for those caught up in a “War on Terror” with few checks and balances.

Note: To see the released documents in full, please visit the website of Reprieve, the London-based legal action charity whose lawyers represent dozens of current and former Guantánamo prisoners. The documents have also been made available by the Guardian. Please also note that, as well as Martin Mubanga and Omar Deghayes, the former prisoners involved in the civil claim are Binyam Mohamed, Bisher al-Rawi, Jamil El-Banna and Richard Belmar.

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) and of two other books: Stonehenge: Celebration and Subversion and The Battle of the Beanfield. 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, updated in July 2010, details about the new documentary film, “Outside the Law: Stories from Guantánamo” (co-directed by Polly Nash and Andy Worthington, currently on tour in the UK, and available on DVD here), and my definitive Guantánamo habeas list, and, if you appreciate my work, feel free to make a donation.

As published on the Huffington Post, Antiwar.com and CounterPunch. Cross-posted on Cageprisoners, The Public Record, Eurasia Review, Uruknet, Op-Ed News, Indymedia, The Smirking Chimp, Aletho News and Star Talk FM.

Innocent Student Finally Released from Guantánamo

Finally! 48 days after a District Court judge ordered the release of Mohammed Hassan Odaini, a Yemeni prisoner in Guantánamo, the Obama administration has sent him home.

Odaini’s case had become an embarrassment for the administration, which had been obliged to concede that it had no basis on which to appeal the judge’s decision. As an official explained to the Washington Post on June 19, it would be “unconscionable” to appeal Odaini’s case. “This is a bad case to argue,” the official stated. “There is nothing there. The bottom line is: We don’t have anything on this kid. The judge wants a progress report by June 25th. We have to be able to report something other than we are thinking about it.”

Alarmingly, one of the administration officials who spoke to the Washington Post also stated that the administration was prepared to release him because senior officials were “comfortable” with making an exception for him “because of the guy’s background, his family and where he comes from in Yemen,” thereby admitting that the perception of a prisoner’s family background is now more important than whether he is innocent or not.

In order to release Odaini, the administration had to break a moratorium on repatriating any Yemeni prisoners, which was introduced by President Obama in January, in response to a wave of hysteria following the revelation that the would-be Christmas Day plane bomber, Umar Farouk Abdulmutallab, a Nigerian, had been recruited in Yemen.

Implicit in the moratorium was the unacceptable notion that all Yemenis were potential terrorists, but the President chose to ignore this so as not to make his life uncomfortable, and, in doing so, also ignored the fact that some Yemenis were going to win their habeas petitions while the moratorium was in place. If he had any doubt about this, he need only have consulted the final report of his own Guantánamo Review Task Force, which had concluded that, of the 97 Yemenis still held, 59 should be released.

Obama’s indifference paved the way for the devastating ruling on May 26, when Judge Henry H. Kennedy Jr. revealed not only that Odaini had been cleared for release by the Bush administration, and by President Obama’s Guantánamo Review Task Force, but also that, since his arrival in Guantánamo in June 2002, interrogators and the prison authorities had repeatedly approved his release. This was so intolerable that Judge Kennedy forcefully ordered Odaini’s release and concluded his ruling by stating:

Respondents have kept a young man from Yemen in detention in Cuba from age eighteen to age twenty-six. They have prevented him from seeing his family and denied him the opportunity to complete his studies and embark on a career. The evidence before the Court shows that holding Odaini in custody at such great cost to him has done nothing to make the United States more secure. There is no evidence that Odaini has any connection to al-Qaeda. Consequently, his detention is not authorized by the AUMF [the Authorization of the Use of Military Force, passed by Congress the week after the 9/11 attacks, and used to justify the detentions at Guantánamo]. The Court therefore emphatically concludes that Odaini’s motion must be granted.

What makes this story all the more depressing, as Charlie Savage explained in the New York Times last week, is that the administration already knew that it would lose the case. As Savage wrote, “The suspension on transfers meant that habeas corpus lawsuits that had been frozen since the detainees were due to be released anyway started to move forward, putting the Justice Department in the position of fighting to keep the detainees imprisoned.” As I added in an article yesterday, “In other words, the Justice Department is arguing in court that the administration should be allowed to continue holding men that it has already conceded it has no reason to hold.”

Another depressing realization is that Odaini was not released until now not just because of inertia on the part of the administration, but because, as law professor (and former Guantánamo military defense attorney) Lt. Col. David Frakt has explained, for 15 days before his release, Odaini was held “in the status of ‘Congressional prisoner,’ a status for which there is no Constitutional authority,” while the administration fretted about whether it could break its appalling moratorium on just this one occasion.

Lt. Col. Frakt was referring to a law, passed last summer, which requires the administration to give Congress 15 days’ notice before releasing anyone from Guantánamo, and his full explanation of why this is unconstitutional, which he illustrated with reference to his own client, Mohammed Jawad, who was held for 22 days before being released last summer, after winning his habeas petition, is revealing:

I consider this Congressional notification requirement to be blatantly unconstitutional as a violation of the separation of powers. In Jawad’s case, it meant that after the Executive Branch and the Judiciary had concluded there was no lawful basis for the military to detain Mohammed Jawad (after the Department of Justice ultimately conceded the habeas corpus petition), the military was required to continue to detain him at Guantánamo at the order of the legislature, Congress. As I explained in Federal District Court, this placed Jawad in the status of “Congressional prisoner,” a status for which there is no Constitutional authority.

He added:

[F]or those detainees determined to be unlawfully held, this law simply arbitrarily extends their unlawful stay at Guantánamo. This provision, coupled with the refusal to authorize funds for detainees to be resettled in the United States — even those determined to be innocent of any wrongdoing who should qualify for political asylum — shows the extent of Congressional depravity on any issues related to detainees.

For Mohammed Hassan Odaini, his vulnerability to the whims of an unprincipled administration and a constitutionally depraved Congress is now over, but others are not so fortunate. In May, Congress proposed to extend the period in which it can hold men as “Congressional prisoners” from 15 to 30 days, and the administration has been true to its word regarding the moratorium. When administration officials spoke to the Washington Post three weeks ago, one of them stressed that it was just a one-off exception, and that the moratorium was still in place. “What isn’t being considered is lifting, in a blanket fashion, the moratorium on detainee transfers to Yemen,” he said.

This is in spite of the fact that, as the officials also explained, President Obama “may come under further pressure to quickly release Yemenis besides Odaini,” because “[a]s many as 20 more Yemenis could be ordered released by the courts for lack of evidence to justify their continued detention.” The official added, “There is a group of Yemenis who are going to win their habeas cases. Some of them will not be as clear as this case, but some will be, and that poses a real dilemma.”

One of those men may be Hussein Almerfedi, who won his habeas petition last week, and others will doubtless follow, given that the Justice Department is now pursuing cases that it knows it will lose. However, in releasing Odaini — and Odaini alone — the administration has just demonstrated that it will put off thinking about this dilemma until, as with Mohammed Hassan Odaini, it has no choice.

Note: With this release, 180 prisoners remain at Guantánamo. One of these men, Ali Hamza al-Bahlul, is serving a life sentence in solitary confinement, after a one-sided trial by Military Commission in October 2008, in which he refused to mount a defense. Another prisoner, Ahmed Khalfan Ghailani, is in prison in New York, awaiting a federal court trial that was approved yesterday. 592 prisoners have been released (or, in some cases, transferred to the custody of their home governments, or of other governments), and six men died, five in mysterious circumstances.

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) and of two other books: Stonehenge: Celebration and Subversion and The Battle of the Beanfield. 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, updated in July 2010, details about the new documentary film, “Outside the Law: Stories from Guantánamo” (co-directed by Polly Nash and Andy Worthington, currently on tour in the UK, and available on DVD here), and my definitive Guantánamo habeas list, and, if you appreciate my work, feel free to make a donation.

As published exclusively on Cageprisoners (my first article on the brand-new website — check it out!). Cross-posted on Eurasia Review, Uruknet, Rebel News and Blog from Middle East.

See the following for articles about the 142 prisoners released from Guantánamo from June 2007 to January 2009, and the 59 prisoners released from February 2009 to May 2010, whose stories are covered in more detail than is available anywhere else –- either in print or on the Internet –- although many of them, of course, are also covered in The Guantánamo Files: June 2007 –- 2 Tunisians, 4 Yemenis (here, here and here); July 2007 –- 16 Saudis; August 2007 –- 1 Bahraini, 5 Afghans; September 2007 –- 16 Saudis; September 2007 –- 1 Mauritanian; September 2007 –- 1 Libyan, 1 Yemeni, 6 Afghans; November 2007 –- 3 Jordanians, 8 Afghans; November 2007 –- 14 Saudis; December 2007 –- 2 Sudanese; December 2007 –- 13 Afghans (here and here); December 2007 –- 3 British residents; December 2007 –- 10 Saudis; May 2008 –- 3 Sudanese, 1 Moroccan, 5 Afghans (here, here and here); July 2008 –- 2 Algerians; July 2008 –- 1 Qatari, 1 United Arab Emirati, 1 Afghan; August 2008 –- 2 Algerians; September 2008 –- 1 Pakistani, 2 Afghans (here and here); September 2008 –- 1 Sudanese, 1 Algerian; November 2008 –- 1 Kazakh, 1 Somali, 1 Tajik; November 2008 –- 2 Algerians; November 2008 –- 1 Yemeni (Salim Hamdan) repatriated to serve out the last month of his sentence; December 2008 –- 3 Bosnian Algerians; January 2009 –- 1 Afghan, 1 Algerian, 4 Iraqis; February 2009 — 1 British resident (Binyam Mohamed); May 2009 — 1 Bosnian Algerian (Lakhdar Boumediene); June 2009 — 1 Chadian (Mohammed El-Gharani), 4 Uighurs to Bermuda, 1 Iraqi, 3 Saudis (here and here); August 2009 — 1 Afghan (Mohamed Jawad), 2 Syrians to Portugal; September 2009 — 1 Yemeni, 2 Uzbeks to Ireland (here and here); October 2009 — 1 Kuwaiti, 1 prisoner of undisclosed nationality to Belgium; October 2009 — 6 Uighurs to Palau; November 2009 — 1 Bosnian Algerian to France, 1 unidentified Palestinian to Hungary, 2 Tunisians to Italian custody; December 2009 — 1 Kuwaiti (Fouad al-Rabiah); December 2009 — 2 Somalis, 4 Afghans, 6 Yemenis; January 2010 — 2 Algerians, 1 unidentified Uzbek to Switzerland, 1 Egyptian, 1 Azerbaijani and 1 Tunisian to Slovakia; February 2010 — 1 Egyptian, 1 Libyan, 1 Tunisian to Albania, 1 Palestinian to Spain; March 2010 — 1 Libyan, 2 unidentified prisoners to Georgia, 2 Uighurs to Switzerland; May 2010 — 1 Syrian to Bulgaria, 1 Yemeni to Spain.

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Andy Worthington

Investigative journalist, author, campaigner, commentator and public speaker. Recognized as an authority on Guantánamo and the “war on terror.” Co-founder, Close Guantánamo, co-director, We Stand With Shaker. Also, singer and songwriter (The Four Fathers) and photographer.
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