Archive for December, 2010

Hounding a Torture Judge: A Report by Susan Harman on the Campaign to Impeach Jay S. Bybee

Holding Bush administration officials accountable for torture is an unfashionable thought in Obama’s America, as was signaled even before Barack Obama took office, when he told the New York Times about his “belief that we need to look forward as opposed to looking backwards.”

After a promising early start for those seeking accountability, when the administration obeyed a court order and released four “torture memos” issued in 2002 and 2005 by the Justice Department’s Office of Legal Counsel — one particularly notorious example from August 2002, written by John Yoo and signed by Jay S. Bybee, and three others from May 2005 written by Stephen Bradbury — the shutters went down, and ever since obstruction has been the name of the game.

The long-awaited internal report into Yoo and Bybee’s behavior, examining whether they abused the OLC’s responsibility to provide impartial legal advice to the Executive, was fatally watered down last February, when a senior DoJ official, David Margolis, was allowed — or encouraged — to dismiss the report’s conclusion — that both men were guilty of “professional misconduct” — concluding instead that they had merely exercised “poor judgment.”

Since then, every attempt to produce evidence of torture in a US court has been blocked by the administration, which has cynically invoked the “state secrets” doctrine, as, for example, in the case of five men subjected to “extraordinary rendition” and torture, who tried to sue Jeppesen Dataplan Inc., a Boeing subsidiary, for its role as the CIA’s travel agent for torture but were prevented from doing so by the 9th Circuit Court of Appeals (although the case has now been submitted to the Supreme Court).

In an attempt to keep the issue of accountability for torture in the public eye, I took part in October in a week-long series of events in Berkeley, Californiia, entitled “Berkeley Says No to Torture” Week, in which I joined activists, lawyers, journalists and other experts — including Shahid Buttar, Marjorie Cohn, Barry Eisler, Jeffrey Kaye, Jason Leopold, Ray McGovern, Justine Sharrock, Cindy Sheehan, Debra Sweet, Fr. Louis Vitale and Ann Wright — to raise awareness of the unacceptable presence of John Yoo as a law professor at UC Berkeley School of Law.

One of the organizers was Susan Harman, of Progressive Democrats of America, who has also been involved in a long-standing campaign to highlight another travesty of justice in California — the presence, in the Ninth Circuit Court of Appeals, of Jay S. Bybee, who signed the “torture memos” written by Yoo, and was rewarded by George W. Bush with a job for life as a judge in the court that covers the whole of the western United States.

In the hope of reminding readers of the importance of maintaining the pressure on Yoo, Bybee and other war criminals, I’m cross-posting below an article by Susan Harman about her pursuit of Jay S. Bybee, which was originally published on David Swanson’s website, War Is A Crime.

Jay Bybee and Me: Our Secret Relationship
By Susan Harman, War Is A Crime, December 23, 2010

It’s time the world knew of my secret relationship. It’s been going on discreetly now for a year and a half. Although it’s unrequited, I’m very loyal, and hold firmly to the belief that some day my fidelity will be rewarded. Who’s the recipient of my faithful attentions? None other than Jay Bybee, Judge on the United States Court of Appeals for the Ninth Circuit, appointed by George W. Bush for life, after having done Bush’s bidding as Assistant Attorney General in the Justice Department’s Office of Legal Council.

Why is he the object of my attentions? It was Jay Bybee who signed off on the memos by the notorious John Yoo “justifying” torture, and Jay Bybee who “justified” aggressive war. Since we tortured — not to get real information, but to get the lie that Iraq was involved in 9/11 — I hold Bybee responsible for the deaths of the 5,000 American servicemen and women who’ve died there, as well as the million dead Iraqis.

The 9th Circuit covers Washington, Montana, Oregon, Idaho, California, Nevada, Arizona, Alaska, and Hawaii, and is geographically the biggest of the eleven Circuit Courts. These Courts are the last step before a case goes up to the Supremes; that is, they are very important.

The Court meets most often in Seattle, San Francisco, and Pasadena; it meets less often in Portland, Honolulu, and Anchorage. Occasionally it meets in some out-of-the-way place, like in Pocatello, Idaho last August, and we had a small group there because Bybee was sitting.

Since June, 2009, when a group of us filed a Judicial Misconduct suit against Bybee, a coalition of groups, including CodePink, World Can’t Wait, Progressive Democrats of America, and veterans’ groups, have been protesting outside the court in large and small numbers. For almost that long, at least one or two of us have gone inside, sat quietly through the cases until the gavel comes down, and then, as the black-robed judges file out, stood up and loudly spoken our pieces. As best I can recall, I’ve sat in his courtroom 13 times so far. I try to stare unblinkingly at him the entire time, boring into his dark soul.

Our most intimate time together was when the Court held a demonstration session at the University of Nevada Law School in Las Vegas. Bybee, a Mormon, lives outside Las Vegas, and several people in the line going through security claimed to know — and admire — him. When the testimony was over, the court opened itself up to questions from the law students in the very large audience. I asked:

“Mr. Bybee, given the new information that’s come out in the Office of Professional Responsibility Report, and the information in the missing emails, which we will surely find, what will your defense be to prosecution for conspiracy to commit the felonies of aggressive war and torture?”

He replied, “I’m not answering that.”

A year ago we held a big protest in Seattle, including Bill Moyer and the Backbone Campaign’s Miss Liberty, who is about ten feet tall. There was a man in a black suit taking pictures of us and I asked him who he worked for. He refused to acknowledge me, much less answer my question. The picture at the top of this article is of the two of us, just before he had me arrested for assault.

We’ve usually been treated quite civilly by the marshals, but occasionally they’ve removed us from court quite roughly. To my surprise, they manhandled us last week in Pasadena, and I wrote to the Chief Justice, Alex Kozinski, to complain.

Dear Judge Kozinski:

I think you know all this already from Eve Fisher, but I need to put it in writing.

As soon as you concluded the en banc session last Wednesday, my friend and I stood up and spoke out about Jay Bybee, as usual. Two of the Court Security Officers, Mr. Moore and Mr. Ballantyne, grabbed me very tightly and roughly around both my upper arms, and pushed and shoved me out of the courtroom and into the hallway. They paid no attention to my demands that they not assault me, or that they let me get my coat and purse from the courtroom. I have bruises on both arms.

You and I had an agreement that, as long as we don’t disrupt proceedings, we are free to speak out without being abused by the Security Officers and marshals. Athough we have scrupulously kept our side of the agreement (as I’m sure you know), your Security Officers violated both me and our agreement last Wednesday.

The groups that work with us are all very distressed about this unpleasant abrogation of our First Amendment rights. We need to re-establish a guarantee of our safety, since we will continue to protest Bybee’s presence on the court until he is impeached and/or imprisoned, according to the law of this land.

Susan Harman

He replied:

Susan:  I was distressed to learn of the incident, which runs contrary to the instructions I have given that protesters be left alone, so long as they do not disrupt court proceedings.  All I can say is that communications are sometimes difficult in a large organization and apparently not everyone got the message. I am making sure that there will be no further misunderstandings and can only apologize for this slip-up.  It will not happen again.

Wishing you and yours a happy and healthy new year.

Ciao.  AK

We’ve sent two letters to every judge on the 9th Circuit. Here’s our November 2009 letter:

Dear Judge ——–:

We respectfully request that you urge your colleague, Torture Judge Jay Bybee, to resign from the Ninth Circuit immediately. Here are the reasons:

1. He has “engaged in conduct prejudicial to the effective and expeditious administration of the business of the courts.” (Judicial Conduct and Disability Act, 28 U.S.C. §§ 351-364. ARTICLE I. GENERAL PROVISIONS, 1. Scope)

2. He was confirmed by the Senate without their knowledge of his misconduct, which had it been revealed to the Senate Judiciary Committee would very likely have resulted in non-confirmation to the Ninth Circuit, and

3. He engaged in misconduct by acting unethically, and his misconduct harms the Ninth Circuit as defined in Rule 3(h) (2) of the Rules for Judicial Conduct and Judicial Disability Proceedings:

Cognizable misconduct “is conduct occurring outside the performance of official duties if the conduct might have a prejudicial effect on the administration of the business of the courts, including a substantial and widespread lowering of public confidence in the courts among reasonable people.”

There is widespread opposition to his position on the Court. Last May 140,000 people signed the MoveOn/People for the American Way petition to the House Judiciary Committee demanding his impeachment. The New York Times and several Congresspeople have called for his impeachment. He is being indicted in Spain. Velvet Revolution and Voters for Peace have filed a complaint with the District of Columbia Bar. His memos were so bad they were thrown out by the Bush administration.

He not only wrote and approved the torture memos; he also signed the “aggressive war” memo, unconstitutionally authorizing the president to launch wars.

Sen. Patrick Leahy, D-Vermont, chair of the Senate Judiciary committee, called for his resignation. “If the White House and Mr. Bybee told the truth at the time of his nomination, he never would have been confirmed,” Leahy said. “So actually, the honorable and decent thing for him to do now would be to resign. If he’s an honorable and decent man, he will.” Please use your influence to make this happen.

For more information, please see our complaint #09-90138 filed against Judge Bybee, and this site. Thank you.

Sincerely,

CodePink, National Accountability Action Network, Progressive Democrats of America

In June 2010 we sent them this letter:

Dear Judge ——–:

We have written to you before, urging you to recommend to Congress that they impeach Jay Bybee. We are writing again because new evidence highlights the seriousness of the claims against him.

Last week Physicians for Human Rights (PHR) released a report accusing the Bush administration of conducting illegal and unethical human experimentation and research on prisoners in CIA custody at Guantanamo, Abu Ghraib, Bagram airbase, and elsewhere. The report charges that medical personnel turned detainees into research subjects and collected data in order to study and refine their torture techniques — under the guise of trying to protect the health of the detainees. For example, they conducted waterboarding “experiments” to determine whether it is better to induce drowning through the use of plain water or salt water.

The PHR Report states that one purpose for the human experimentation was to create a legal defense for individuals engaging in acts that arguably constituted torture, and Bybee and his subordinate, John Yoo, stated that efforts to refine waterboarding and other tortures would support a “good faith” defense for interrogators charged with torture. Bybee and Yoo put forth the novel argument that interrogators must specifically intend to cause harm to have violated the anti-torture statute, and that medical experimentation on human subjects could remove the element of intent to cause harm. A memo written by John Yoo, while under Bybee’s supervision, states:

“A defendant could show that he acted in good faith by taking such steps as surveying professional literature, consulting with experts, or reviewing evidence gained from past experience … All of these steps would show that he has drawn on the relevant body of knowledge concerning the result proscribed by the statute, namely prolonged mental harm.” Memorandum from John C. Yoo, Deputy Assistant Attorney General for William J. Haynes II, General Counsel of the Dept. of Defense (14 Mar. 2003).

Based on the legal advice provided by Yoo and Bybee, medical professionals conducted experiments on humans. We enclose an article about the report, and the fact that Senator Feinstein intends to include its findings in her Intelligence Committee’s ongoing investigation.

As you probably also know, there are hundreds, if not thousands, of Freedom of Information Act requests filed with various government agencies, many of which will reveal even more scandalous evidence against Bybee. His presence on the Ninth Circuit continues to jeopardize the respectability of the Court.

Once again, we remind you that you have the power — and the legal and moral obligation — to refer Bybee to Congress for impeachment. The United States legal system has been held up around the world as a model of justice. It is time to stop turning a blind eye to government-sanctioned torture and denial of habeas corpus rights. As legal professionals, you understand the grave implications of violating the Geneva Conventions and US domestic law. The people of the United States expect judges in its highest courts to understand and uphold our American principles. Your actions on this matter will show whether torture and human experimentation have become American principles.

Sincerely,

CodePink Golden Gate, National Accountability Action Network, Progressive Democrats of America, World Can’t Wait, National Lawyers Guild San Francisco Bay Area Chapter’s Committee Against Torture, Bill of Rights Defense Committee

When we speak out in court, we’ve said Bybee justified torture, which is always and everywhere illegal, and that he should be impeached and imprisoned.

We’ve said he disgraces the Court.

When the story broke about human experimentation at Guantanamo, I called out that he was channeling Josef Mengele, the Nazi who experimented on human beings.

While Omar Khadr was on trial, we accused him of torturing children.

Most recently, I said, “In his new book, George Bush confesses to authorizing torture, and says his lawyers told him he could do it. Jay Bybee was chief among those lawyers. He is a war criminal and you need to refer him to Congress for impeachment. Now!”

Obviously, if you don’t live near the cities where the 9th Circuit meets, you can’t organize your own Bye-bye Bybee protests. But go to this page and find a war criminal near you. If there isn’t one physically nearby, then pick one at random and start a long-distance letter-writing, phone-calling campaign to make his/her life miserable.

We cannot let these people carry on as if they have done nothing immoral or illegal.

If our government won’t enforce the law, we must.

I promise you’ll enjoy your special relationship!

The video below, via YouTube, is of a protest against Jay S. Bybee on June 25, 2009:

Andy Worthington is the author of The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison (published by Pluto Press, distributed by Macmillan in the US, and available from Amazon — click on the following for the US and the UK) 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), my definitive Guantánamo habeas list and the chronological list of all my articles, and, if you appreciate my work, feel free to make a donation.

With Indefinite Detention and Transfer Bans, Obama and the Senate Plumb New Depths on Guantánamo

With just two weeks to go before the ninth anniversary of the opening of the “War on Terror” prison at Guantánamo, almost everyone in a position of authority in the US has failed to resolve, in a satisfactory manner, the bitter legacy left by the Bush administration. In fact, to judge by two recent developments, anything resembling progress on Guantánamo is now at its lowest ebb since June 27, 2004, the day before the Supreme Court granted the prisoners habeas corpus rights, shattering the secrecy required to sustain Guantánamo as a prison beyond the law, where coercive interrogations, torture and human experimentation could all take place.

If you think that sounds like something of an exaggeration, consider that the Senate has just passed legislation aimed at making sure that every prisoner currently at Guantánamo will remain there for the next year, and will neither be put on trial nor released, even though President Obama’s Guantánamo Review Task Force, consisting of “more than 60 career professionals, including intelligence analysts, law enforcement agents, and attorneys, drawn from the Department of Justice, Department of Defense, Department of State, Department of Homeland Security, Central Intelligence Agency, Federal Bureau of Investigation, and other agencies within the intelligence community,” concluded last year that 33 of the remaining prisoners should be put on trial, and that 90 others should be released.

In their desire to impinge on the President’s authority, however, lawmakers inserted three politically motivated provisions into the annual defense authorization bill, which was passed by the Senate and the House of Representatives last Wednesday, and whose baleful effects will last for the next 12 months.

The first bans the use of any funds to bring any Guantánamo prisoners to the US mainland — even to face trials. This goes further than laws passed in 2009, when Congress specifically prevented the transfer of prisoners for any reason except to face a trial, and its political motivation can be seen from the wording of a bill passed by the House earlier this month — a  $1.1 trillion appropriations bill — in which it was stated, “None of the funds made available in this or any prior Act may be used to transfer, release, or assist in the transfer or release to or within the United States, its territories, or possessions Khalid Sheikh Mohammed or any other detainee who (1) is not a United States citizen or a member of the Armed Forces of the United States; and (2) is or was held on or after June 24, 2009, at the United States Naval Station, Guantanamo Bay, Cuba, by the Department of Defense.”

That particular reference to Khalid Sheikh Mohammed was very deliberate, as the manifestation of a desire on the part of a significant number of lawmakers to prevent any prisoner from being brought to the US mainland to face a trial was motivated by opposition to the plans, announced last November by Attorney General Eric Holder, to bring Mohammed, the alleged mastermind of the 9/11 attacks, and four alleged co-conspirators to New York to face a trial.

This decision has inflamed liberals, of course, but it has also brought forth trenchant criticism from Republicans as well. In an op-ed in the Wall Street Journal, for example, David B. Rivkin Jr. and Lee A. Casey, lawyers who served in the Justice Department under Ronald Reagan and George H.W. Bush, correctly identified the provision as unconstitutional.

Rivkin and Casey began unpromisingly, by stating, “Trying captured al-Qaeda, Taliban, or allied terrorists in United States civilian courts is a bad idea,” and then claimed that the “near-acquittal” of Ahmed Khalfan Ghailani, a former Guantánamo prisoner and CIA “ghost prisoner,” who was convicted in a federal court in New York last month for his involvement in the 1998 African embassy bombings, but only on one of the 285 charges he faced, “proves as much.” At this point, however, their analysis became much more interesting.

“But one bad idea does not excuse another,” they wrote, adding, “Congressional efforts to block future trials by imposing spending restrictions on the president are unconstitutional and should be abandoned.”

They also wrote:

The language forbids the use of government funds to transfer detainees now held at Guantánamo Bay to the United States for any and all purposes. Since federal courts sit only in US territory and because criminal defendants must generally be physically within the court’s jurisdiction for trial, the apparent purpose of this provision is to prevent President Obama from trying these detainees in federal court.

This is a step too far. The president is the chief federal law enforcement officer and prosecutor. Whether, when and where to bring a particular prosecution lies at the very core of his constitutional power. Conditioning federal appropriations so as to force the president to exercise his prosecutorial discretion in accordance with Congress’s wishes rather than his own violates the Constitution’s separation of powers.

This is powerful criticism, and it applies equally to the two other provisons inserted into the bill by Congress.

The first of these bans the use of funds to purchase or construct any facility on the US mainland for housing prisoners currently held at Guantánamo — and is, again, a direct response to the administration’s announcement, last December, that it intended to buy the empty Thomson Correctional Center in Illinois for that very purpose.

The second prevents the President from releasing any prisoner “unless Defense Secretary Robert M. Gates signs off on the safety of doing so,” as the New York Times described it. In earlier reports, it was noted that this provision was designed specifically to prevent the release of any prisoner to countries regarded by lawmakers as dangerous, including Afghanistan, Pakistan and Yemen. Again, this is an unwarranted and unconstitutional assault on the President’s powers, although in this case it only reinforces what is already in existence.

In July, when a cleared Afghan prisoner was released in Spain, I was obliged to conclude that this had only happened because of Congressional opposition to releasing him in his home country, although this has never been mentioned in any media reports, and it is the first time I have seen fit to mention it. On Yemen, however, President Obama is already onside, and one of the major stumbling blocks to closing the prison is his decision, last January, to announce an open-ended moratorium on releasing any Yemeni prisoners — following hysteria about the fact that the failed Christmas Day plane bomber, Umar Farouk Abdulmutallab, has been recruited in Yemen — even though this, like the newly announced Congressional ban, amounts to guilt by nationality, and even though 58 of the 90 prisoners cleared for release by the Task Force are Yemenis.

The only point at which Congress appears to have stepped back from unconstitutional activities regarding Guantánamo concerns attempts to ban the release of prisoners whose release has been ordered by District Court judges who have granted their habeas corpus petitions. Last year, lawmakers passed a provision allowing them 15 days to review the cases of any prisoners that President Obama wanted to release, and last July, they aroused the wrath of Lt. Col. David Frakt, the military defense attorney for Mohamed Jawad, an Afghan who had just won his habeas petition, when they insisted on reviewing his case before his release. As Lt. Col. Frakt explained:

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 Mohamed 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 also explained:

It may be that, if the US is contemplating releasing a detainee that it has the lawful basis to detain under the laws of war, that Congress can legitimately condition the expenditure of US funds to effectuate the release on the provision of this notification to Congress, but for 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.

Lawmakers have, presumably, taken Lt. Col. Frakt’s criticism on board, but unfortunately, when it comes to freeing prisoners whose release was ordered by judges after they won their habeas petitions, a further problem is the Obama administration itself.

Although judges in the District Court in Washington D.C. have ruled on 57 habeas corpus petitions since the Supreme Court confirmed, in June 2008, that the prisoners had constitutionally guaranteed habeas rights, and have found in the prisoners’ favor in 38 of those cases, the administration has pushed back, appealing several successful petitions, and endorsing a broader definition of the standard required for ongoing detention, which has found support in the far more conservative D.C. Circuit Court.

This, combined with the evident unwillingness of either President Obama or Attorney General Eric Holder to provide any guidance to the Justice Department lawyers working on the Guantánamo cases — by, for example, conducting any kind of review of cases that should not be challenged in court — is worrying enough, but what is also apparent is that the Obama administration has, from the beginning, regarded the objectivity of the District Court judges as less important than the decisions made by the Guantánamo Review Task Force, which operated in secret, and, essentially, sidelined the courts.

Although this might have been excusable if the Task Force had contented itself with approving prisoners only for release or trial, the final report also contained a recommendation that 48 of the remaining 174 prisoners should continue to be held indefinitely without charge or trial, because “prosecution is not feasible in either federal court or a military commission.”

The Task Force attempted to explain that “the principal obstacles to prosecution in the cases deemed infeasible by the Task Force typically did not stem from concerns over protecting sensitive sources or methods from disclosure, or concerns that the evidence against the detainees was tainted,” but its explanations were unconvincing. Behind claims that “the intelligence about them may be accurate and reliable,” even though it was gathered in dubious circumstances, and that, in many cases, “there are no witnesses who are available to testify in any proceedings against them,” lies a blunter truth, as I explained at the time: “that the intelligence, and whatever witness availability there might be, are both tainted by the circumstances under which ‘the gathering of intelligence’ took place — the coercive interrogations, and in some cases the torture, of the prisoners themselves, or of their fellow prisoners.”

To demonstrate this, I returned to the habeas petitions examined by judges in the District Court in Washington D.C., noting:

[T]hese problems have been highlighted again and again by judges, with an objectivity that eluded the Task Force — as, for example, in the cases of Fouad al-Rabiah, a Kuwaiti put forward by President Bush for a trial by military commission, who was freed after a judge ruled that the entire case against him rested on a false narrative that he had come up with after torture and threats, and, to cite just two more examples, Alla Ali Bin Ali Ahmed, a Yemeni seized in a student guest house in Pakistan, and Mohammed El-Gharani, a Chadian national, who was just 14 when he was seized in a raid on a mosque in Pakistan. In both cases, they were freed after judges ruled that the government’s witnesses — the men’s fellow prisoners — were irredeemably unreliable, and were, if not subjected to violence, then bribed to produce false statements.

It is, therefore, rather disingenuous of the Task Force to claim that “the principal obstacle to prosecution” for these 48 men “typically did not come from … concerns that the evidence against the detainee[s] was tainted,” when, to be frank, the record is replete with examples proving the opposite.

Nevertheless, President Obama chose to accept the Task Force’s conclusions, and, last week, added to the unconstitutional position taken by Congress regarding cleared prisoners and prisoners recommended for trials, when officials told the Washington Post that they were close to finalizing an executive order that “would formalize indefinite detention without trial for some detainees at the US military prison at Guantánamo Bay, Cuba, but allow those detainees and their lawyers to challenge the basis for continued incarceration.”

Given the realities of the situation, a review process which “would allow detainees to challenge their incarceration periodically, possibly every year,” and to have legal representation, is better than indefinite detention without any review at all, and it is also possible to sympathize with the official who told the Post, “When the review panel puts someone in the category of long-term detention, the 48 people, what happens then? Are they there for the rest of their lives? What’s the review mechanism? How impartial is it? Do they have a chance to contest it? All of that stuff has to be answered. And we have been working on an executive order laying out these elements.”

Even so, looked at as part of the bigger picture, the proposal for the executive order is nothing to celebrate, and is actually only the lesser of two evils, because indefinite detention without charge or trial should never have been contemplated in the first place. Tom Malinowski, the head of the Washington office of Human Rights Watch, was right to tell the Post that there is “a ‘big difference’ between using an executive order, which can be rescinded, to handle a select group of detainees that Obama inherited, and legislating a general indefinite detention scheme,” but it is unacceptable that the administration has so thoroughly sidelined the judges of the District Court in Washington D.C., who have been making their own decisions about whether prisoners should be held or released. Moreover, it is even more disappointing that the news of this imminent executive order — throwing the fate of 48 of the remaining prisoners on the mercy of an unspecified review process — came in the same week that 123 of the other 126 prisoners (all but the three held after trials by Military Commission) were told by Congress that their chances of being tried or released had pretty much evaporated.

As the ninth anniversary of the opening of Guantánamo approaches — and the first anniversary of Obama’s failed deadline for closing the prison — it is sobering indeed to realize that, far from closing Guantánamo and removing this lingering stain on America’s reputation, President Obama is now fulfilling one of Dick Cheney’s great hopes, presiding over a prison in which the overwhelming majority of the remaining 174 prisoners will, in all likelihood, continue to be held indefinitely.

It promises to be a bleak New Year.

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), my definitive Guantánamo habeas list and the chronological list of all my articles, 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 “Plumbing New Depths on Guantanamo.” Cross-posted on The Public Record, The World Can’t Wait, Campaign for LibertyUruknet and United Progressives.

Christmas at Guantánamo

Ten days ago, when I traveled to Sheffield with my friend, the former Guantánamo prisoner Omar Deghayes, for a screening of the documentary film, “Outside the Law: Stories from Guantánamo” (which I co-directed with Polly Nash), I asked Omar what Guantánamo was like at Christmas, as I knew that he had spent five Christmases imprisoned in Guantánamo, and I thought it might make an interesting article for Christmas this year.

In fact, there was little to report. The authorities, it seems, made some effort on this great Christian holy day, but the prisoners, for the most part, were in no mood to accept one day of charity when the rest of the year was so devoid of Christian charity.

Instead, I thought I’d take this opportunity to remind readers who may be searching the Internet because they need a break from eating and drinking, or because they want to get away from their families for a while, or because the TV is so relentlessly pointless, or because they don’t celebrate Christmas, about some of the 174 men still held in Guantánamo, for whom concern is particularly appropriate right now, as, between them, the Obama administration and Congress seem to have ensured that the majority of them will be spending many more Christmases at Guantánamo.

My first thoughts were for prisoners I have written about recently — in particular, Shaker Aamer, the last British resident in Guantánamo, cleared for release in 2007 but still held; Ahmed Belbacha, an Algerian, also cleared for release in 2007, who is terrified of being forcibly repatriated; and Fayiz al-Kandari, a Kuwaiti who lost his habeas petition in September, but who appears, by any objective measure, to be an innocent man.

I encourage readers to visit this page for information about how to write to the British and American governments about Shaker Aamer, to visit this page for information about the latest attempts by Ahmed Belbacha’s lawyers to prevent his involuntary repatriation, and to visit this page to sign a petition asking Attorney General Eric Holder to return Fayiz al-Kandari to Kuwait (or just sign the petition here).

However, in thinking about all the prisoners still held, I was also reminded of one particular prisoner whose story I have not written about for many months, but who is in desperate need of help. That man is Adnan Farhan Abdul Latif, a 34-year old Yemeni prisoner who won his habeas corpus petition on July 21 this year, but is still held, even though it became apparent during his hearing that the Bush administration had cleared him for release from Guantánamo in 2007, and even though one of his lawyers, David Remes, explained after the ruling, “This is a mentally disturbed man who has said from the beginning that he went to Afghanistan seeking medical care because he was too poor to pay for it. Finally, a court has recognized that he’s been telling the truth, and ordered his release.”

Latif is certainly mentally ill, and may have schizophrenia. He has also attempted suicide on numerous occasions, and as Amnesty International explained in a report in 2009, he told his lawyers that “when he is awake he sees ghosts in the darkness, hears frightening voices and suffers from nightmares when he is asleep.” He also told his lawyers that he had “ingested all sorts of materials including garbage bags, urine cups, prayer beads, a water bottle and a screw,” that he had “eaten his own excrement and smeared it on his body” and that he had “used his own excrement to cover the walls of his cell door, the camera on the ceiling of his cell and the air vent in his cell.”

Despite this, he continues to be held because the Obama administration has appealed against his successful habeas petition, as it has in the cases of four other Yemenis who won their habeas petitions: Mohammed al-Adahi, whose successful petition was reversed by the D.C. Circuit Court in July, Saeed Hatim, who won his petition last December, Uthman Mohammed Uthman, who won his petition in February this year, and Hussein Almerfedi, who won his petition in July this year.

Like Latif, these three men are awaiting a ruling by the D.C. Circuit Court (a largely Conservative court dominated by judges who have delivered a number of disturbing rulings supporting Bush-era executive power), and it would be difficult not to conclude that the Obama administration is happy to appeal any successful petition by a Yemeni, because it corresponds with senior officials’ desire not to release any Yemenis from Guantánamo at all.

Although the Guantánamo Review Task Force, convened by President Obama last year to review all the Guantánamo cases, concluded that 59 of the 89 Yemenis still held at Guantanamo should be released, only one (Mohammed Hassan Odaini, who won his habeas petition in May) has been freed in the last year because of a moratorium that President Obama issued in January, preventing the release of any prisoners to Yemen, after it was revealed that last year’s failed Christmas Day plane bomber, Umar Farouk Abdulmutallab, had been recruited in Yemen.

Commenting on the injustice of this moratorium in September this year, with specific reference to the case of Adnan Farhan Abdul Latif, Letta Taylor of Human Rights Watch wrote:

Latif’s case underscores both the gross human rights violations and strategic risks inherent in such blanket bans. Detaining Latif because of an attempted bombing committed without his knowledge or participation is a form of collective punishment that violates American notions of justice. Holding him on suspicion of a crime he theoretically may commit in the future, particularly with no credible evidence that he committed a crime in the past, is an equally gross betrayal of US constitutional values. US reliance on preventive detention also hands militants a recruitment tool and sets a dangerous precedent for abusive regimes around the world.

While the government ponders its next move, Latif, 34, lives in an isolation cell, except when he is placed in the psychiatric ward or force-fed through his nose during his frequent hunger strikes. His attorney, David Remes, said that when he visited Latif last month, he found him emaciated and seated on the floor in a padded garment known at Guantánamo as a “suicide smock.” He said Latif’s neck was marked with abrasions from attempts to strangle himself the previous night with the waistband of his underwear.

Remes said that when he told Latif that a judge had ordered his release, he was too despondent to take much interest.

The “collective punishment” of the Yemenis — or what I call guilt by nationality –remains the most startling example of the ongoing injustice at Guantánamo, especially now that Congress has just passed this year’s defense authorization act, which specifically includes a provision preventing the President from returning any prisoners to Yemen — or to other countries considered problematical, including Afghanistan and Pakistan — under any circumstances.

I don’t like to be the bearer of such gloomy tidings at what should be a time of Christian celebration, but in just 17 days time it will be the ninth anniversary of the opening of Guantánamo. I’ll be in Washington D.C. on that day, supporting Americans protesting against the continued existence of Guantánamo, and, to be honest, I could really do with some help from anyone who can advise me on how to get the message across to the American people — and to their leaders — that if Christ were to turn up tomorrow, he would be deeply disturbed to find Americans who claimed to be his followers finding ever more elaborate ways to hold men who should not be held — and whose ongoing detention is unjustifiable — nearly nine years after they were first imprisoned in an experimental facility that remains an insult to all of his teachings.

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), my definitive Guantánamo habeas list and the chronological list of all my articles, and, if you appreciate my work, feel free to make a donation.

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 since the start of 2010, see: 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), Guantánamo and Habeas Corpus: Prisoners Win 3 out of 4 Cases, But Lose 5 out of 6 in Court of Appeals (Part One) (July 2010), Obama and US Courts Repatriate Algerian from Guantánamo Against His Will; May Be Complicit in Torture (July 2010), In Abu Zubaydah’s Case, Court Relies on Propaganda and Lies (July 2010), Guantánamo and Habeas Corpus: Prisoners Win 3 out of 4 Cases, But Lose 5 out of 6 in Court of Appeals (Part Two) (July 2010), Judge Orders Release from Guantánamo of Mentally Ill Yemeni; 2nd Judge Approves Detention of Minor Taliban Recruit (August 2010), Judge Denies Habeas Petition of Afghan Shopkeeper at Guantánamo (September 2010), Nine Years After 9/11, US Court Concedes that International Laws of War Restrict President’s Wartime Powers (September 2010), Fayiz Al-Kandari, A Kuwaiti Aid Worker in Guantánamo, Loses His Habeas Petition (September 2010), Heads You Lose, Tails You Lose: The Betrayal of Mohamedou Ould Slahi (September 2010), First Guantánamo Habeas Appeal to US Supreme Court (Fayiz al-Kandari, October 2010), Former Guantánamo Prisoner, Tortured by Al-Qaeda and the US, Launches Futile Attempt to Hold America Accountable (October 2010), Judge Denies Guantánamo Prisoner’s Habeas Petition, Ignores Torture in Secret CIA Prisons (October 2010), Court Orders Rethink on Tortured Guantánamo Prisoner’s Successful Habeas Petition (November 2010).

President Obama Loses the Plot on Guantánamo

On December 22, during a largely self-congratulatory news conference by President Obama, dealing with a number of achievements notched up in the last session before the Democrats lose control of the House of Representatives (including the new START treaty, on arms control, and the repeal of “don’t ask, don’t tell”), one of the administration’s conspicuous failures — the failure to close Guantánamo — was only touched upon at the end of the news conference, when Mike Emanuel, the White House correspondent for Fox News, asked a question that followed up on a recent report in the Washington Post.

In that report, published on Tuesday, Obama administration officials explained that they were close to finalizing an executive order that “would formalize indefinite detention without trial for some detainees at the US military prison at Guantánamo Bay, Cuba, but allow those detainees and their lawyers to challenge the basis for continued incarceration.”

The men in question — 48 of the remaining 174 prisoners — were designated for indefinite detention without charge or trial during a year-long review of the Guantánamo cases conducted last year by the Guantánamo Review Task Force, established by President Obama on taking office, and consisting of “more than 60 career professionals, including intelligence analysts, law enforcement agents, and attorneys, drawn from the Department of Justice, Department of Defense, Department of State, Department of Homeland Security, Central Intelligence Agency, Federal Bureau of Investigation, and other agencies within the intelligence community.”

The Task Force also approved the release of 90 of the remaining prisoners, and proposed trials for another 33, but it was the proposal to indefinitely detain 48 of the men that caused the most consternation to everyone who had hoped that the Obama administration would fully repudiate the Bush administration’s detention policies in the “War on Terror,” and would either charge or release all the prisoners inherited from the previous regime.

One of the officials who spoke to the Post attempted to justify the proposed executive order, explaining that a review may take place every year, and asking, “When the review panel puts someone in the category of long-term detention, the 48 people, what happens then? Are they there for the rest of their lives? What’s the review mechanism? How impartial is it? Do they have a chance to contest it? All of that stuff has to be answered. And we have been working on an executive order laying out these elements.”

To be fair, some sort of review process, involving lawyers, is better than a process in which prisoners designated for indefinite detention without charge or trial are given no opportunity to contest the Task Force’s decision, but as Laura W. Murphy, director of the American Civil Liberties Union’s Washington legislative office, told the Post, “Indefinite detention without charge or trial is wrong, whether it comes from Congress or the president’s pen. Our Constitution requires that we charge and prosecute people who are accused of crimes. You cannot sell an indefinite detention scheme by attaching a few due-process baubles and expect that to restore the rule of law. That is bad for America and is not the form of justice we want other nations to emulate.”

Just as worrying is the fact that the Task Force’s review process conflicts with another process established before Obama assumed office — the habeas corpus petitions submitted to the District Court in Washington D.C., in which judges (independent of the government, it should be noted) have been able to review the prisoners’ cases, and have been able to order the release of prisoners who have won their petitions (in 38 out of the 57 cases so far decided), even though those rulings have not always led to the prisoners’ actual release — in general, because the government has appealed, and the conservative D.C. Circuit Court is inclined to find reasons to support ongoing detention.

The Post‘s article noted, “Detainees at Guantánamo would continue to have access to the federal courts to challenge their incarceration under the legal doctrine of habeas corpus,” but it is distressing to note that the Obama administration seems always to have favored its own review process to that of the courts, and the following claim in the Post‘s article — that “the plan would give detainees who have lost their habeas petition the prospect of one day ending their time in US custody” — is, frankly, disingenuous, because, as noted above, the administration has a track record of appealing successful petitions, and there is, therefore, no reason to presume that senior officials would have any interest in a review process that would lead to the release of prisoners who have lost their petitions.

President Obama has not yet reviewed the proposal, of course, but I thought it was worth examining what he had to say about Guantánamo at his news conference, as the failure to close Guantánamo is particularly troubling so near to the ninth anniversary of the prison’s opening. I have inserted my responses to what he had to say in the body of the text.

Mike Emanuel: Guantánamo, sir. I understand a draft of an executive order is being prepared for you, and I don’t expect you to comment then on that —

President Obama: Right.

Mike Emanuel: It hasn’t gotten to you yet.

President Obama: Yes.

Mike Emanuel: But it makes me wonder where you are, sir, at about the two-year mark on Guantánamo, when closing it was one of your initial priorities, sir?

President Obama: Obviously, we haven’t gotten it closed. And let me just step back and explain that the reason for wanting to close Guantánamo was because my number one priority is keeping the American people safe. One of the most powerful tools we have to keep the American people safe is not providing al-Qaeda and jihadists recruiting tools for fledgling terrorists.

And Guantánamo is probably the number one recruitment tool that is used by these jihadist organizations. And we see it in the websites that they put up. We see it in the messages that they’re delivering.

And so my belief is that we can keep the American people safe, go after those who would engage in terrorism. And my administration has been as aggressive in going after al-Qaeda as any administration out there. And we’ve seen progress, as I noted during the Afghan review.

Every intelligence report that we’re seeing shows that al-Qaeda is more hunkered down than they have been since the original invasion of Afghanistan in 2001, that they have reduced financing capacity, reduced operational capacity. It is much more difficult for their top folks to communicate, and a lot of those top folks can’t communicate because they’re underground now.

My analysis: There’s little to analyze here. Before beginning to answer the specific question about the proposed executive order, Obama laid out his stall as the President who is tough on terrorism, and threw in what seems to be the administration’s major explanation for why Guantánamo should be closed — because it is “the number one recruitment tool” for terrorists, and not because its continued existence is an abiding stain on America’s reputation.

President Obama: But it is important for us, even as we’re going aggressively after the bad guys, to make sure that we’re also living up to our values and our ideals and our principles. And that’s what closing Guantánamo is about — not because I think that the people who are running Guantánamo are doing a bad job, but rather because it’s become a symbol. And I think we can do just as good of a job housing them somewhere else.

My analysis: It’s interesting that Obama now concedes that his primary interest in closing Guantánamo concerns “housing [the prisoners] somewhere else,” rather than putting them on trial. It is also apparent that the prison is more than just a symbol, as I mentioned above. It is not just a symbol of ongoing injustice, but is actually a concrete manifestation of injustice, and of the durability of the Bush administration’s malignant rewriting of international laws and treaties.

President Obama: Now, to the issue you had about the review. You’re right, I won’t comment right now on a review that I have not received yet. I can tell you that over the last two years, despite not having closed Guantánamo, we’ve been trying to put our battle against terrorists within a legal structure that is consistent with our history of rule of law. And we’ve succeeded on a number of fronts.

One of the toughest problems is what to do with people that we know are dangerous, that we know have engaged in terrorist activity, are proclaimed enemies of the United States, but because of the manner in which they were originally captured, the circumstances right after 9/11 in which they were interrogated, it becomes difficult to try them whether in an Article III court or in a military commission.

My analysis: The situation faced by the 48 prisoners designated for indefinite detenton without charge or trial by the Guantánamo Review Task Force is a topic that I dealt with extensively when the Task Force’s report was published, and I quote from that extensively below, to explain why it is worth questioning the Task Force’s conclusions. What is particularly noticeable about Obama’s comments, however, is the way in which his mention of “the manner in which they were originally captured, the circumstances right after 9/11 in which they were interrogated,” cannot disguise that what the President is talking about is the use of torture.

For a full range of my opinions about the decision to  hold 48 men indefinitely without charge or trial, the following passages are from my article, “Does Obama Really Know or Care About Who Is at Guantánamo?” which was published in June this year (and I have amended the numbers of habeas cases mentioned accordingly):

The irony — that indefinite detention was exactly what President Bush had established in the first place — was not lost on the [Task Force] members, who made a point of attempting to stifle criticism as follows: “[T]he principal obstacles to prosecution in the cases deemed infeasible by the Task Force typically did not stem from concerns over protecting sensitive sources or methods from disclosure, or concerns that the evidence against the detainees was tainted. While such concerns were present in some cases, most detainees were deemed infeasible for prosecution based on more fundamental evidentiary and jurisdictional limitations tied to the demands of a criminal forum.”

According to the Task Force, these “fundamental evidentiary and jurisdictional limitations” related to the circumstances of the prisoners’ capture, and perceived problems in prosecuting them either in federal courts or in military commissions.

On the first point, the Task Force explained that, because “[t]he focus at the time of their capture was the gathering of intelligence and their removal from the fight,” they “were not the subjects of formal criminal investigations, and the evidence was neither gathered nor preserved with an eye toward prosecuting them.” This made the circumstances of their capture — largely at the hands of the US military’s Afghan and Pakistani allies, at a time when bounty payments were widespread — sound less chaotic than it actually was, and it also disguised the kind of treatment to which they were subjected during “the gathering of intelligence.”

With this in mind, it is no more reassuring to read the Task Force’s assessment of the quality of the intelligence services’ reports used to establish the significance of these 48 prisoners. The Task Force attempted to explain that “the intelligence about them may be accurate and reliable,” but “for various reasons may not be admissible evidence or sufficient to satisfy a criminal burden of proof in either a military commission or federal court.”

The “various reasons” were not explained, but reading between the lines, what this rather bland but conditional statement demonstrates, with its prominent use of the word “may,” is that the intelligence relied upon as evidence will probably not stand up to any kind of genuinely objective scrutiny, and the reasons for this are inadvertently revealed in the final line of the paragraph dealing with the “evidentiary limitations.”

“One common problem,” the Task Force wrote, “is that, for many of the detainees, there are no witnesses who are available to testify in any proceedings against them.” Here the use of the possible witnesses’ availability is something of a smokescreen, disguising a blunter truth: that the intelligence, and whatever witness availability there might be, are both tainted by the circumstances under which “the gathering of intelligence” took place — the coercive interrogations, and in some cases the torture, of the prisoners themselves, or of their fellow prisoners.

With 57 rulings now delivered in the District Court in Washington D.C. on the prisoners’ habeas corpus petitions (38 of which have been won by the prisoners), these problems have been highlighted again and again by judges, with an objectivity that eluded the Task Force — as, for example, in the cases of Fouad al-Rabiah, a Kuwaiti put forward by President Bush for a trial by military commission, who was freed after a judge ruled that the entire case against him rested on a false narrative that he had come up with after torture and threats, and, to cite just two more examples, Alla Ali Bin Ali Ahmed, a Yemeni seized in a student guest house in Pakistan, and Mohammed El-Gharani, a Chadian national, who was just 14 when he was seized in a raid on a mosque in Pakistan. In both cases, they were freed after judges ruled that the government’s witnesses — the men’s fellow prisoners — were irredeemably unreliable, and were, if not subjected to violence, then bribed to produce false statements.

It is, therefore, rather disingenuous of the Task Force to claim that “the principal obstacle to prosecution” for these 48 men “typically did not come from … concerns that the evidence against the detainee[s] was tainted,” when, to be frank, the record is replete with examples proving the opposite.

President Obama: Releasing them at this stage could potentially create greater danger for the American people. And so how do we manage that? And that’s what this team has been looking at. Are there ways for us to make sure these folks have lawyers, to make sure that these folks have the opportunity to challenge their detention — but at the same time, making sure that we are not simply releasing folks who could do us grievous harm and have shown a capacity and willingness to engage in brutal attacks in the past.

My analysis: The men already do have lawyers, for their habeas corpus petitions, mentioned above, but it is a sign of the administration’s disregard for the habeas process (as mentioned in the introduction to this article) that the President overlooked this. In addition, releasing them at this stage could potentially cause danger for the American people, but releasing any prisoner at any time could be dangerous, and this fails to detract from the fact that, if regarded as dangerous, they should be put on trial, or, if the President wants a more radical solution, recategorized as prisoners of war, and given the full protections of the Geneva Conventions, instead of being held according to the deeply problematical Authorization for Use of Military Force. Passed by Congress the week after the 9/11 attacks, the AUMF established the flawed basis for holding prisoners neither as criminal suspects or as prisoners of war, but as what were known, in the Bush administration, as “enemy combatants,” and are now, alarmingly, known as “alien unprivilieged enemy belligerents.”

President Obama: And so when I get that report, I’m sure that I’ll have more comments on it. The bottom line is that striking this balance between our security and making sure that we are consistent with our values and our Constitution is not an easy task, but ultimately that’s what’s required for practical reasons.

Because the more people are reminded of what makes America special, the fact that we stand for something beyond just our economic power or our military might, but we have these core ideals that we observe even when it’s hard — that’s one of our most powerful weapons. And I want to make sure that we don’t lose that weapon in what is a serious struggle.

My conclusion: If you want America to be special, Mr. President, and to demonstrate that you have “core ideals that we observe even when it’s hard,” then refining indefinite detention without charge or trial through an executive order, refusing to release 58 cleared prisoners to Yemen because of a moratorium you issued nearly a year ago, and refusing to stand up to critics who oppose federal court trials for men suspected of terrorist activities is not the way to do it. I know you face harsh opposition, but in the end you’re the commander-in-chief, and when, on taking office, you repudiated President Bush’s dangerous assertions of unfettered executive power, and stated that you would rely, instead, on Congressional approval, it didn’t mean that you had to step back from exerting your power when it was politically inconvenient, or that you would only issue an executive order when it came to endorsing one of the vilest of your predecessor’s many vile innovations — the false and unjustifiable imprisonment without charge or trial of men mischaracterized, nine years ago, as “the worst of the worst,” when, all along, they were, if not competely innocent men, seized by mistake, then terror suspects or soldiers.

Only three viable paths remain open to you, Mr. President: put the prisoners on trial, release them, or recategorize those found by the courts to have been soldiers as prisoners of war.

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), my definitive Guantánamo habeas list and the chronological list of all my articles, and, if you appreciate my work, feel free to make a donation.

As published exclusively on Cageprisoners. Cross-posted on The Public Record, Free Detainees and Antemedius.

Video: “Berkeley Says No to Torture” Week — Jason Leopold and Jeff Kaye Discuss Human Experimentation at Guantánamo

Back in October, I traveled to the Bay Area for a fascinating week-long series of events, “Berkeley Says No to Torture” Week (covered in detail here), and I’m pleased to report that videos of one of the panel discussions that week, “Torture, Human Experimentation and the Department of Defense,” have just been made available via YouTube, and can be seen below. The panel featured the journalist Jason Leopold and the psychologist and blogger Jeffrey Kaye, and coincided with the publication on Truthout of a ground-breaking article by Jason and Jeff, “Wolfowitz Directive Gave Legal Cover to Detainee Experimentation Program,” which I cross-posted here, with commentary.

As I explained at the time, the panel discussion was one of the final events in “Berkeley Says No to Torture” Week, and, appropriately, took place in Boalt Hall, the home of torture professor John Yoo. Jason and Jeff’s presentation focused on their discovery of a memorandum dated March 25, 2002, approved by deputy defense secretary Paul Wolfowitz, which authorized human experimentation on detainees in the “War on Terror,” and which followed some little-noticed maneuvering in Congress in December 2001, when the requirement of “informed consent” in any experimentation by the Defense Department (introduced in 1972) was quietly dropped.

As I also explained, I cross-posted the article, because it deserved to be read as widely as possible, and its publication during “Berkeley Says No to Torture” Week was a wonderful boost to the week’s events, adding, as I noted in an introduction to the cross-post of Leopold and Kaye’s article, to “a compelling catalog of the many reasons why the acceptance of torture must continue to be opposed, which I developed during the week: namely, that it is not only illegal, morally corrosive, counterproductive and unnecessary, but also that, at its heart, the Bush-era torture program continued work in the field of human experimentation that the US took over from the Nazis, and also involved treasonous lies on the part of senior officials, who pretended that the program was designed to prevent future terrorist attacks, when, from the very beginning (in late November 2001, according to Col. Lawrence Wilkerson, Colin Powell’s Chief of Staff), it was actually being used to extract false confessions about connections between al-Qaeda and Saddam Hussein that could be used in an attempt to justify the illegal invasion of Iraq in March 2003.”

The seven videos of the panel discussion (and the ensuing Q&A) are posted below, and I’m delighted to post them at this particular time, to coincide with the publication of the second of two articles by Jason and Jeff, examining how, in the early days of Guantánamo, every single prisoner was forced to “take a high dosage of a controversial antimalarial drug, mefloquine, an act that an Army public health physician called ‘pharmacologic waterboarding.’” That article is cross-posted here, and the previous article, published three weeks ago, is available here (and is cross-posted here).

Part One: Jason Leopold introduces the themes discussed in the article, “Wolfowitz Directive Gave Legal Cover to Detainee Experimentation Program,” which involved seven months’ research.

Part Two: Jason concludes his introduction, and Jeff explains his research and the background to the program, warning the audience that the human experimentation story is an “octopus” that has infected US institutions, reaching far beyond the military.

Part Three: Jason talks more about the program, including some worrying suggestions that it may not have been fully abandoned by the Obama administration.

Part Four: In response to criticism of former SERE intelligence officer Michael Kearns by an audience member (included at the end of Part Five), Andy Worthington spoke in his defense, and also ran through the catalog of reasons why torture must continue to be opposed (as discussed above), with a particular focus on the use of torture to manufacture false confessions about connections between Saddam Hussein and al-Qaeda, which were used to justify the invasion of Iraq in March 2003.

Part Five: In response to a question from the audience, Jeff Kaye explained the reasons why the American Psychological Association (APA) has been discredited for its involvement in the Bush administration’s torture program, plus other questions/comments from the audience, including misplaced criticism of Michael Kearns (see Part Four above).

Part Six: Further questions from the audience, including discussion of the crimes of Henry Kissinger.

Part Seven: The final round of questions from the audience, including a discussion of the use of electro-shock treatment.

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), my definitive Guantánamo habeas list and the chronological list of all my articles, and, if you appreciate my work, feel free to make a donation.

More Evidence of Medical Experimentation at Guantánamo

In an investigative report for Truthout, my colleagues Jason Leopold and the psychologist and blogger Jeffrey Kaye have followed up on an important story they published three weeks ago, “Controversial Drug Given to All Guantánamo Detainees Akin to ‘Pharmacologic Waterboarding’” (which I cross-posted here, with commentary). In that article, they revealed how, in the months following the opening of Guantánamo on January 11, 2002, every single prisoner was forced to “take a high dosage of a controversial antimalarial drug, mefloquine, an act that an Army public health physician called ‘pharmacologic waterboarding.’”

In my introduction to that article, I noted how Jason and Jeff contributed significantly to a growing body of work demonstrating that the detention program in Guantánamo, and in the “high-value detainee” program in the CIA’s secret prisons, involved human experimentation, of which medical experiments like the antimalarial project were just a part. Much more remains to be uncovered, but their article was part of a number of reports this year which have begun to shed light on this disturbing aspect of the detainee program. Human experimentation first came to light prominently in “Experiments in Torture: Human Subject Research and Evidence of Experimentation in the ‘Enhanced’ Interrogation Program,” a report published by Physicians for Human Rights in June, and another important part of the story emerged in October, when Jason and Jeff (who has spent many years placing the “War on Terror” detention and interrogation policies in the wider context of CIA experimentation since the 1950s) published an article on Truthout entitled, “Wolfowitz Directive Gave Legal Cover to Detainee Experimentation Program,” revealing how the program had been given the green light by Cheney’s deputy in March 2002.

In this latest article, cross-posted below, Jason and Jeff focus on the role played by Capt. Albert J. Shimkus, “the former commanding officer and chief surgeon for both the Naval Hospital at Guantánamo Bay and Joint Task Force 160, which administered health care to detainees,” in approving the “mass presumptive treatment” policy, which reveals some dubious claims about Cuban fears of an malaria epidemic and the prevailing rate of malarial infection in Afghanistan at the time Guantánamo opened, and also reveals many examples of how US government concerns about the anti-malarial drug never made it to Guantánamo — or were, perhaps, deliberately ignored.

Key to this article is the discovery of a January 23, 2002, “Infection Control” Standard Operating Procedure (SOP) which “called for the mass presumptive treatment of malaria using mefloquine.” As Jason and Jeff explain:

The “Infection Control” SOP, which was signed by Shimkus and has not been previously released, says, “detainees are native to a region plagued by a number of infectious diseases. It is estimated that a number of these detainees will carry one or more of these illnesses upon arrival … Empiric therapies will include … mefloquine 1250 mg.”

Medical literature usually describes “empiric therapy,” or presumptive treatment for malaria, as the administration or self-administration of antimalarial drugs for symptomatic individuals, or occasionally groups of at-risk patients, who do not have access to laboratories or medical facilities and in whom malaria cannot be formally diagnosed.

At Guantánamo, however, all detainees, whether they had symptoms or not, were given laboratory tests to determine if they had malaria, and doctors were accessible “24/7” in the event symptoms started to surface, Shimkus said, calling into question the rationale for mass presumptive treatment.

Ex-Guantánamo Official Was Told Not to Discuss Policy Surrounding Antimalarial Drug Used on Detainees
By Jason Leopold and Jeffrey Kaye, Truthout, December 20, 2010

Military officials were instructed not to publicly discuss a decision made in January 2002 to presumptively treat all Guantánamo detainees with a high dosage of a controversial antimalarial drug that has been directly linked to suicide, hallucinations, seizures and other severe neuropsychological side effects, according to a retired Navy captain who signed the policy directive.

Capt. Albert J. Shimkus, the former commanding officer and chief surgeon for both the Naval Hospital at Guantánamo Bay and Joint Task Force 160, which administered health care to detainees, defended the unprecedented practice, first reported by Truthout earlier this month, to administer 1250 mg of the drug mefloquine to all “war on terror” detainees transferred to the prison facility within the first 24 hours after their arrival, regardless of whether they had malaria or not.

The 1250 mg dosage is what is used to treat individuals who have malaria and is five times higher than the prophylactic dose given to individuals to prevent the disease. One tropical disease expert has said there is absolutely no “medical justification” to support the military’s decision to presumptively treat all Guantánamo detainees for malaria with high doses of mefloquine.

Mefloquine is also known by its brand name Lariam. It was researched by the US Army in the 1970s during the Vietnam War and licensed by the Food and Drug Administration (FDA) in 1989. Since its introduction, it has been directly linked to serious adverse effects, including depression, anxiety, panic attacks, confusion, bizarre dreams, nausea, vomiting, sores, hallucinations and homicidal and suicidal thoughts.

Although there were two media reports in 2002 that quoted Shimkus saying “war on terror” detainees were given antimalarial medication, neither he nor any other military or Pentagon official ever disclosed to lawmakers or military personnel who raised questions about the efficacy of mefloquine, that mass presumptive treatment was the policy in place at Guantánamo.

“There were certain issues we were advised not to talk about,” Shimkus told Truthout in an interview, explaining the reason the policy was never publicly disclosed. He could not recall who told him not to discuss the issue.

Shimkus, who is now an associate professor of national security studies at the Naval War College in Newport, Rhode Island, said officials from the Centers for Disease Control (CDC), the Navy Environmental Health Center (NEHC) and the Armed Forces Medical Intelligence Center at Fort Detrick, Maryland, which is part of the Defense Intelligence Agency, were all involved in the discussions that resulted in the issuance of a January 23, 2002, “Infection Control” Standard Operating Procedure (SOP) that called for the mass presumptive treatment of malaria using mefloquine.

Detainees started arriving at Guantánamo two weeks earlier and were held in a detention center known as Camp X-Ray.

The “Infection Control” SOP, which was signed by Shimkus and has not been previously released, says, “detainees are native to a region plagued by a number of infectious diseases. It is estimated that a number of these detainees will carry one or more of these illnesses upon arrival … Empiric therapies will include … mefloquine 1250 mg.”

Medical literature usually describes “empiric therapy,” or presumptive treatment for malaria, as the administration or self-administration of antimalarial drugs for symptomatic individuals, or occasionally groups of at-risk patients, who do not have access to laboratories or medical facilities and in whom malaria cannot be formally diagnosed.

At Guantánamo, however, all detainees, whether they had symptoms or not, were given laboratory tests to determine if they had malaria, and doctors were accessible “24/7” in the event symptoms started to surface, Shimkus said, calling into question the rationale for mass presumptive treatment.

Shimkus said the NEHC bore the primary responsibility for recommending that mefloquine be administered to all detainees in treatment doses, but there was consensus among the various government agencies about using the drug in this way.

“There was no one that said, ‘Captain, this is not the way to go,'” Shimkus said. “I did not do anything in isolation. Any policy would have been approved by a higher authority” up the medical chain of command.

Shimkus could not recall the names of the officials from the various government agencies who agreed with and signed off on the policy. Nor could he identify his immediate medical supervisor, a colonel at United States Southern Command (SOUTHCOM), which is responsible for contingency planning and operations in Cuba, who Shimkus said would have also been involved in the decision.

Cuban Government Concerns

Shimkus said one of the reasons that factored into the decision to presumptively treat war on terror detainees with mefloquine was concerns raised by the Cuban government.

In an interview with Miami Herald reporter Carol Rosenberg in February 2002, Shimkus said he and other medical officers stationed at Guantanamo met with Cuban doctors and government officials on February 8, 2002, to “reassure the government that suspected terrorist prisoners are not introducing malaria into” Cuba, “which has been free of the mosquito-borne disease for 50 years.”

Rosenberg reported on February 22, 2002, that steps taken to prevent the spread of malaria at Guantánamo included “impregnating the uniforms of both prisoners and troops who handle prisoners with mefloquin [sic] and other agents to kill the parasite.” The Herald‘s February 22, 2002, report was the first and only time mefloquine use at Guantánamo has ever been mentioned. But Rosenberg’s report did not state that Shimkus had already signed a policy directive authorizing mass presumptive treatment.

Shimkus told Truthout he could not recall specific details of his discussions with the Cubans. He did not respond to follow-up questions about Rosenberg’s characterization regarding the use of mefloquine.

Just three days prior to the publication of the Herald‘s report, Navy Capt. Alan “Jeff” Yund appeared before the Armed Forces Epidemiological Board (AFEB) and was queried about malaria at Guantánamo.

But Yund, the Navy’s liaison officer to AFEB, did not disclose that mefloquine was being administered to detainees. He said he believed detainees who were infected with the disease would be treated on a case-by-case basis with a different antimalarial drug known as primaquine, and that other steps would be taken to protect against mosquitoes.

Yund told Truthout via email that he did not refer to mefloquine during the AFEB briefing because, “I do not recall being involved in any consultations regarding the use of mefloquine at Guantánamo and do not recall being aware that it was being used there.”

Yund declined to comment further.

Shimkus could not say why Yund was unaware that mefloquine was being used as a form of mass presumptive treatment at Guantánamo.

The use of mefloquine at Guantánamo was not mentioned during numerous other AFEB briefings, particularly one held in May 2003, where concerns were raised by members of the board about the drug’s severe neuropsychiatric side effects, which US military personnel who had taken mefloquine in 250 mg prophylactic doses had been complaining about.

Red Flags Raised

Shimkus said he was aware of the alternatives and noted that at one point the antibiotic drug doxycycline and Malarone were under consideration, but the latter had only been approved by the Department of Defense in 2000 and had not been in widespread use yet. Mefloquine, Shimkus said, was considered efficient and effective.

But at an April 16, 2002, meeting of the Interagency Working Group for Antimalarial Chemotherapy, which included Defense Department representatives, participants concluded that study designs on mefloquine were flawed or biased and based on “sensational or [at] best marketed information.”

The Working Group, which included representatives from the State Department, the CDC and FDA, stated, “Sufficient evidence exists to raise the question whether the neuropsychiatric adverse events of mefloquine are frequent enough and severe enough to warrant limiting its use.” The group called for additional research, and warned, “Other treatment regimes should be carefully considered before mefloquine is used at the doses required for treatment.”

Additionally, in October 2002, William Winkenwerder, the assistant secretary for defense, admitted that “recent press articles and scientific studies have raised concerns regarding the adverse effects associated with mefloquine use.”

Winkenwerder’s admission was made in a letter written in response to questions raised by John McHugh, then chair of the subcommittee on military affairs for the House Armed Services Committee. The letter said, “recent peer-review reports” showing adverse events levels associated with mefloquine are “much higher than previously reported.” Winkenwerder told McHugh, now secretary of the Army, that the CDC had initiated a review in 2001, which was then still underway, of all chemoprophylactic drugs, including mefloquine.

Shimkus said he did not believe Winkenwerder was part of the consulting team who signed off on administering treatment doses of mefloquine to detainees. But Shimkus said the policy was “well-known in the [military] medical community.” Winkenwerder did not respond to calls for comment.

The use of mefloquine as a mass presumptive treatment at Guantánamo continued until at least July 2005, despite the presence of ongoing warnings.

In June 2004, the CDC issued a new set of guidelines on malaria treatment, which warned that mefloquine “is associated with a higher rate of severe neuropsychiatric reactions when used at treatment doses,” and recommended that mefloquine be used “only when … [other] options cannot be used.”

As far back as 1990, the CDC warned in a set of recommendations for malaria prevention for travelers that mefloquine should not be used for presumptive self-treatment “because of the frequency of side effects, especially dizziness, which has been associated with therapeutic dosages of mefloquine.”

“This was a one time treatment only [for detainees],” Shimkus said. “My focus on mefloquine was specifically for preventing malaria from occurring.”

However, other Guantánamo documents obtained by Truthout say that on February 28, 2002, 59 detainees allegedly refused to take medication, including antimalarial drugs, and noted that the “series must start over.” It is unclear whether this included readministration of mefloquine, or whether the “series” described included further antimalarial doses of primaquine or cholorquine, also administered to the detainees.

Maj. Remington Nevin, an Army public health physician, who formerly worked at the Armed Forces Health Surveillance Center and has written extensively about mefloquine, previously told Truthout the decision to administer high doses of the drug, even as a one-time treatment “is, at best, an egregious malpractice.”

Nevin added, “many dozens of detainees, possibly hundreds” likely experienced side effects “as severe as those intended through the application of ‘enhanced interrogation techniques.'”

Truthout was unable to locate a single malaria expert who was willing to go on the record to defend the government’s policy of mass presumptive treatment of the disease using mefloquine or any other antimalarial drug.

Shimkus told Truthout that, “clinically,” he could not recall if any detainees experienced any side effects associated with taking mefloquine, but if they did, that data would have been noted in their medical records.

“We have robust medical records,” Shimkus said. “If anything occurred that was a cause for concern it would have been documented in their medical records.”

But the government has refused to release Guantánamo detainees’ medical records to the media or to their attorneys citing, among other reasons, privacy concerns.

As first documented in a separate report on mefloquine use at Guantánamo published earlier this month by Seton Hall University School of Law’s Center for Policy and Research, medical files for detainee 693 [Salah al-Salami], released by the Defense Department in connection with his alleged suicide at the prison facility in June 2006, contradict Shimkus’s assertions. Those records show that two weeks after the detainee was given mefloquine in June 2002, he was interviewed by Guantánamo medical personnel and reported that he was suffering from nightmares, hallucinations, anxiety, auditory and visual hallucinations, sleep loss and suicidal thoughts.

A Guantánamo medical officer who interviewed the detainee, however, did not state that the detainee may have been experiencing mefloquine-related side effects in notes he took evaluating the detainee’s condition.

Shimkus dismissed the significance of the medical officer’s failure to connect the detainee’s psychological state to the possible side effects resulting from mefloquine, stating that the medical officer may have been unaware “the patient had taken [the drug], because there was a lot of turnover of staff at that point.”

Scott Allen and Vince Iacopino, medical doctors affiliated with Physicians for Human Rights, a doctors’ organization based in Cambridge, Massachusetts, said, “the questionable use of mefloquine for malaria prevention at Guantánamo underscore the need for transparency of detention policies and procedures” at the prison facility.

“Benefits Outweighed Risks”

Shimkus, who is a nurse by training, acknowledged that the mass presumptive treatment of malaria using mefloquin was unprecedented. However, he said the “benefits outweighed the risks.”

When asked, Shimkus did not indicate that contraindications for the use of mefloquine, such as pre-existing cases of post-traumatic stress disorder, anxiety, seizures, or other mental illness, which would have heightened mefloquine’s side effects, were ever pursued for the individual detainees. He simply reiterated that the benefits of administering treatment doses of mefloquine outweighed the risks.

Yet, when told that the Defense Department took a radically different approach a decade earlier, when thousands of Haitian refugees housed at Guantánamo were first tested to determine if they had malaria and, only then, were given a treatment dosage of a different medication, chloroquine, if they had the disease, Shimkus said war on terror detainees “were a different cohort of individuals.”

“You have to remember that this was in the context of February 2002,” Shimkus said. “The detainees came from Afghanistan and other areas that may have been chloroquine resistant.”

Moreover, in two articles published in 2002, Shimkus claimed statistics showed that 40 percent of Afghanistan’s population was infected with malaria. But according to figures from the World Health Organization, in 2002, the number infected in Afghanistan was about 13 percent.

Shimkus also indicated that malaria cases at Guantánamo could have led to a public health crisis at the base, and reintroduction of malaria into Cuba. Once an outbreak begins, Shimkus told Truthout, one “loses control” of the situation and there is an epidemic.

However, when the CDC examined the influx of tens of thousands of refugees to the United States from hyper-epidemic sub-Saharan Africa, where the falciparum form of malaria kills more than a million people yearly, they concluded that “sustained malaria transmission” in a nonmalarial endemic country, like the US, from this population “would be unlikely.”

Still, the CDC called for mass presumptive treatment (with a drug other than mefloquine) of these refugees before they came to the US — mainly because they feared many US doctors wouldn’t recognize malaria symptoms — but noted that such mass presumptive treatment from other parts of the world, including Afghanistan, was not recommended, because “the risk and cost of post-arrival presumptive treatment currently outweighs the potential benefits.”

Of the more than 700 detainees held at Guantánamo, only four tested positive for malaria, all in January and February 2002.

But Shimkus still defended the mass administration of mefloquine, saying, “One [infection] is too many.” Shimkus said he believes he and other military officials “made the right policy decisions based on the information we had to prevent the introduction of malaria” in Cuba and protect the health of the detainees.

Shimkus said after he retired from the military he became involved with the Open Society Institute, funded by the Soros Foundation, and has since taken a role in the work the organization has done to raise awareness about abusive interrogation measures contained in the Army Field Manual.

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), my definitive Guantánamo habeas list and the chronological list of all my articles, and, if you appreciate my work, feel free to make a donation.

Guantánamo Prisoners Sacrificed in Political Horse-Trading

How messed up is American politics? Well, here are a few clues.

Two weeks ago, the House of Representatives passed a $1.1 trillion continuing resolution, which funds the government through to September 30 next year. As The Hill explained, the resolution was needed “because Congress failed to pass any of the 12 regular appropriations bills for 2011, in addition to failing to pass a budget resolution at all for the first time since 1974.” How many people even knew that?

As The Hill also noted, the bill “freezes 2011 discretionary appropriations at the current level, providing $45.9 billion less than President Obama requested for the year.” Funding for the Department of Defense — at $513 billion overall — makes up almost half of the bill’s financial provisions, which “includes $159 billion for the wars in Iraq and Afghanistan, as Obama requested.”

As I reported last week, the bill also includes sections designed to prohibit the President from spending any money to transfer Guantánamo prisoners to the US mainland — a specific prohibition on bringing prisoners to face trials, which mentions Khalid Sheikh Mohammed by name — or to acquire facilities to hold them on US soil. Both of these are aimed directly at intentions announced by the Obama administration a year ago — federal court trials for Khalid Sheikh Mohammed and four other men accused of involvement in the 9/11 attacks, and plans to buy a prison in Illinois as a replacement for Guantánamo.

Such is the indifference to Guantánamo in the mainstream US media that it was difficult to work out who had inserted the sections relating to the prison.

Just before the bill was passed, White House spokesman Reid Cherlin said, “We strongly oppose this provision. Congress should not limit the tools available to the executive branch in bringing terrorists to justice and advancing our national security interests.” Moreover, the day after, Attorney General Eric Holder wrote a letter to Senate leaders, “calling the provision ‘dangerous’ and asking that it be stripped before the Senate votes on the bill.” Holder wrote, “This provision goes well beyond existing law and would unwisely restrict the ability of the Executive branch to prosecute alleged terrorists in Federal courts or military commissions in the United States.”

According to The Hill, the provisions in the bill caught Democrats by surprise. Rep. Jim Moran (D-Va.), a member of the defense appropriations subcommittee, said, “This is a lack of leadership on the part of Obama. I don’t know where the f*** Obama is on this or anything else. They’re AWOL.” According to Moran, “Rep. Jane Harman (D-Calif.), a leading voice on national security issues, and the four top Democrats on the Judiciary Committee found out during the vote on the rule … At one point, the rule governing the bill was hanging by just one vote while Majority Leader Steny Hoyer (D-Md.) and Speaker Nancy Pelosi (D-Calif.) rushed around the floor doing damage control.”

However, according to TPMMuckraker, “sources on both sides of the House Appropriations Committee, which had purview over the legislation,” said that “the bill was written entirely by the Democratic side. It was revealed to Republicans only hours before the vote. No amendments were allowed on the House floor. No Republicans voted for it. And, the committee sources said, the White House would have seen the final package — including the transfer ban — and would have had the chance to object.”

So what’s going on? The answer, it seems clear from further scrutiny of the passage of the bill, is the most dismal sort of horse-trading, required in a deeply polarized Congress to ensure that legislation passes at all. Something of this can be gleaned from the floor statement made by Rep. David R. Obey (D-WI), the outgoing Chairman of the House Committee on Appropriations, as he introduced the bill.

Rep. Obey began with an open assault on Republicans, and their support for maintaining the Bush administration’s tax cuts for the wealthy:

I’m bringing a resolution to the floor that I have minimum high regard for, to say the least. America is facing serious problems. The most depressing is that we have the biggest divide between the haves and the have nots since the Great Depression. Over the last decade, 80% of the growth in our economy has gone to the luckiest 10% out there. Meanwhile, the economy is sputtering along and families are hurting. And what has been Washington’s response? Apparently it is to spend nearly eighty billion dollars over the next two years to give super sized tax cuts to millionaires and another twenty-four billion to give families worth ten million dollars a pass on paying taxes on their good fortunes. This occurs at the same time that Washington politicians are singing pious songs about the need for deficit reduction.

On horse-trading, this was the key passage:

There are at least fifty decisions in this bill that I am flatly opposed to. There are many arguments in this bill that I have lost. But the fact is, sooner or later, if you’re going to be responsible, you have to set aside your first preferences and simply do what is necessary in order to keep the government open so that Congress doesn’t become the laughing stock of the country. The only responsible vote to cast on this proposition is an “aye” vote. I urge support for the resolution, with all of its shortcomings.

The House enacts further restrictions on Guantánamo in the defense authorization bill

Further evidence of the extent of horse-trading required to pass any sort of law can also be seen from reports of the negotiations involved in a second bill passed by the House last week (the annual defense authorization bill), and in negotiations relating to the passage of both the appropriations bill and the defense authorization bill in the Senate.

On Friday, the House of Representatives passed the defense authorization bill by 341 votes to 48, even though, as Politico reported, it prohibits the transfer of prisoners from Guantánamo to the US “for any reason,” “contains language that would effectively ban civilian trials for … prisoners at Guantánamo and place[s] new limits on transfers from Guantánamo to other countries.” Politico also noted, “A total of 42 House Democrats voted no, including some of the best-known liberals … Six Republicans also voted against the bill.”

As Politico also reported:

The defense policy bill had been carefully negotiated by Sens. Carl Levin (D-Mich.), John McCain (R-Ariz.) and Rep. Ike Skelton (D-Mo.) to strip not just the repeal of “don’t ask don’t tell” [DADT], but a host of other controversial items in the bill after it was defeated over concerns about the repeal of “don’t ask don’t tell.”

In terms of reversing legislation against gay people, securing the repeal of DADT is a great triumph, although anti-war activists — myself included — can only conclude that, in practical terms, this great breakthrough does nothing more than allow gay people to die pointlessly, or kill other people pointlessly, in wars that shouldn’t even be taking place.

However, in order to secure the repeal of DADT, huge compromises were needed. As Politico also explained, the bill “came under threat from Sen. Mark Kirk (R-Ill.), who sought to place a hold on the bill in the Senate over detainee transfer language,” and as a result, “Skelton and Rep. Buck McKeon (R-Calif.), the incoming chairman of the House Armed Services Committee, worked together Friday morning to toughen the language, according to McKeon spokesman Josh Holly.”

Skelton then “touted the restrictions [on Guantánamo] as the toughest ever,” which was a fair call, as the language that Skelton and McKeon came up with not only prevents the transfer of any Guantánamo prisoner to the US mainland for any reason, but also empowers lawmakers to prevent the President from releasing prisoners “to any country that has received a detainee and allowed that detainee to return to the battlefield.” Skelton’s full statement is below:

It prohibits the release of detainees into the United States or its territories. It prohibits the transfer or release of detainees into the United States or its territories. It prohibits the use of any DoD funding to build or modify any DoD facility in the United States for the detention of any Guantánamo detainee. This restriction applies not only to Thomson, Ill., but to the whole country. It prohibits the transfer or release of any Guantánamo Bay detainee to any country that has received a detainee and allowed that detainee to return to the battlefield. This is the most thorough and comprehensive set of restrictions ever placed on the transfer and release of detainees. It is substantially stronger than current law, and voting against this bill will have the effect of making it easier to bring detainees into the United States and easier to transfer them to countries that have failed to hold them in the past.

Alarmingly, as TPMMuckraker reported, the provision allowing lawmakers to prevent prisoners from being transferred “to any country that has received a detainee and allowed that detainee to return to the battlefield” includes prohibitions on transfers to Afghanistan, Pakistan and Yemen. This is deeply disturbing because it so clearly refutes the President’s right to release prisoners who were specifically cleared for release by the interagency Guantánamo Review Task Force, which spent a year studying the Guantánamo cases. It also goes much further than the present law, implemented last year, which allows Congress 15 days to review the cases of any prisoner that the administration wants to free — even if those prisoners have had their release ordered by a US court after winning their habeas corpus petitions (a move that was described as “Congressional depravity” by the law professor and former Guantánamo military defense attorney David Frakt, who noted that Congress has “no Constitutional authority” to do so in the cases of prisoners ordered released by the courts).

It is also deeply disturbing because it amounts to nothing less than guilt by nationality, and, in the cases of the 58 Yemenis cleared for release by the Task Force, adds to the unacceptable situation that has already existed since January this year, when President Obama announced a moratorium on any further Yemeni releases, after it was revealed that the failed Christmas Day plane bomber, Umar Farouk Abdulmutallab, had trained in Yemen, and lawmakers responded with unseemly but influential hysteria.

How politics is dictated by savage compromises, and why the Senate may not be immune

The extent of the compromise required to secure the repeal of DADT (and to sacrifice the Guantánamo prisoners) was explicitly spelled out by Rep. Barney Frank (D-Mass.), a liberal who would normally have been expected to vote against Republican-inspired proposals regarding the Guantánamo prisoners. Frank, however, “spoke on the House floor in support of the bill,” and later told Politico that “agreeing to ban detainee transfers was part of a larger House-Senate compromise that also involved passing ‘don’t ask don’t tell.'” Speaking of the detainee transfer ban, Frank said, “I didn’t like that,” but he conceded that “passing the bill to allow gays to serve openly in the military was more important,” and added that “the detainee language would have returned in a spending bill.” He told Politico, “We would have gotten stuck with that anyway.”

Both bills must now pass the Senate, and it is unclear if Eric Holder’s appeals to Senators not to “unwisely restrict the ability of  the Executive branch to prosecute alleged terrorists in Federal courts or military commissions in the United States” — as well as doubts about the wisdom of imposing restrictions on the Executive’s right to release cleared prisoners as it sees fit — will fall on deaf ears.

According to Politico, horse-trading may mean that all of these unacceptable amendments remain, effectively bringing any movement on Guantánamo to a halt for a year — with no trials, and, very probably, not a single prisoner released, even though over half of the remaining prisoners were cleared for release by the Task Force.

In another distressing example of the kind of monstrous compromise needed to pass any kind of law, Sen. Dick Durbin (D-Ill.), described as “[o]ne of the leading supporters of civilian trials for some Guantánamo prisoners and of bringing detainees currently there to the US mainland,” told Politico that “the Senate is likely to concur in a House-passed measure that effectively bans both those options for the rest of this fiscal year.”

On Saturday, Durbin said, “I think that issue has been resolved. I think it’s necessary to include the language. The reason is that we hope at the end of the day … to still work out an agreement and the bureau of prisons so they will buy this Thomson prison which has been sitting vacant for so many years.” Last December, after the Obama administration encountered fierce opposition to its plans to buy the empty Thomson Correctional Center in Illinois to house “detainees currently being held indefinitely at Guantánamo” and also, possibly, to host military commission trials, Durbin “settled on a fallback proposal to have the Justice Department buy the prison solely for use by ordinary federal prisoners.” As Politico explained, “The Obama administration planned to pay $170 million for the prison. The House voted to approve $95 million for the purchase last week as part of a full-year continuing budget resolution. That measure has stalled in the Senate, but Durbin said he still wants funding to buy the prison — at least as a first step.”

“It won’t go through unless that language clearly says Guantánamo detainees cannot be sent there,” Durbin told Politico. “I supported the president’s position on that initially — that issue has been resolved politically, and this bill, the language in it, reflects the political reality.”

“The political reality.” That, in a nutshell, is the problem with Guantánamo. Whether through ferocious and unprincipled opposition to any attempts to close the prison by trying prisoners, freeing them or transferring them to the US mainland, or whether through calibrated negotiations involving trading progress on Guantánamo for progress in other areas — like DADT, for example — the prisoners at Guantánamo have been abandoned.

As the ninth anniversary of the prison’s opening approaches (on January 11, 2011), the latest betrayals in the House and the Senate are ill-timed, and very bad news indeed for the 174 men remaining in the prison, all of whom deserve better than this, be they the 33 men scheduled to face trials, the 48 designated for indefinite detention without charge or trial, or the 90 men cleared for release. Everyone involved should be ashamed that closing Guantánamo — and trying those genuinely accused of involvement in acts of international terrorism — has become politically inconvenient, or a bargaining chip to be traded for something regarded as more important.

As a result, America will enter 2011 with Guantánamo still present as a stain on its reputation, and as a beacon of injustice still beaming its depressing message around the world.

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), my definitive Guantánamo habeas list and the chronological list of all my articles, and, if you appreciate my work, feel free to make a donation.

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

Lawyers for Ahmed Belbacha, Guantánamo Prisoner and Former UK Resident, Sue UK Government Over Refusal to Disclose Evidence of His Abuse

In an attempt to bring to an end a nearly four-year deadlock in the case of Ahmed Belbacha, an Algerian prisoner in Guantánamo, lawyers at the London-based legal action charity Reprieve have “started high court proceedings to force the British government to disclose information that they say could free him from Guantánamo Bay and save his life,” as the Guardian explained in an article on Wednesday.

A former professional footballer, Ahmed Belbacha fled Algeria for the UK in 1999 after receiving death threats from the Groupe Islamique Armé (GIA), which, as Reprieve explained in its submission to the High Court (PDF), “targeted individuals who had served in Algeria’s military (and might again be called up), as well as employees of state-owned enterprises. Mr. Belbacha, who had completed a mandatory term of national service and worked for Sonatrach, the state-owned oil company, fitted both categories.”

Reprieve added that Belbacha “sought for a period to evade the GIA from within Algeria,” but that, “when the threats continued to escalate … he left the country for good,” subsequently settling in the UK, and living for nearly two years in Boscombe in Bournemouth, where, as has been previously reported, and as the Guardian explained, he “worked and studied English,” and, during one Labour Party conference, “was responsible for cleaning the hotel room of the then deputy prime minister, John Prescott,” who left him a tip and a thank-you note.

In the summer of 2001, Belbacha traveled from the UK to Pakistan and then on to Afghanistan,” which he would not have done had he had any militant aims, as his asylum claim was still pending in the UK. After the US-led invasion of Afghanistan in October 2001, he returned to Pakistan, where he was seized. He was then held in a Pakistani prison (where he was abused), before being transferred to US custody, staying in the US prison at Kandahar from December 2001 until approximately February 9, 2002, when he was flown to Guantánamo, where he has been held ever since.

In the court submission, Belbacha’s lawyer, Cori Crider, stated that her client “seeks disclosure from the Secretaries of State tending to show that certain statements he is said to have made during detention were obtained by torture and mistreatment.” She added, “This information is necessary for two purposes: first, to make representations to US executive officials (and in the US courts) against his transfer to Algeria, and second, to have his coerced statements suppressed in the litigation of his substantive habeas claim.”

The torture of Ahmed Belbacha

Crider proceeded to explain how Belbacha was subjected to torture and abuse in US custody in Kandahar and Guantánamo, and how British agents, who interrogated him in both locations, helped to provide information that formed the basis of the false confessions that resulted from the more brutal sessions at the hands of US interrogators:

Mr. Belbacha has on several occasions told me that, during his detention at Kandahar and Guantánamo, he suffered serious mistreatment and was tortured. He alleges that the mistreatment included, among other things, beatings, sleep deprivation, sexual humiliation and abuse, sensory deprivation, exposure to temperature extremes, dietary manipulation and the use of stress positions. […]

Mr. Belbacha alleges that he was questioned by UK interrogators at Kandahar and Guantánamo during the period of his mistreatment. The interrogators knew of Mr. Belbacha’s employment history in the UK and questioned him about his connection with certain mosques in the UK. […]

During his interrogations, Mr. Belbacha informs me that he made false statements and confessions as a result of his torture and mistreatment during custody and, in particular, due to his fear that his abuse would otherwise continue. He is unable to specify the precise details of the statements and confessions, as he has been questioned hundreds of times over the past nine years and because the memories are in many instances too painful, but much of his questioning by British officials related to his alleged association with the Finsbury Park mosque in the United Kingdom and how individuals at the mosque had allegedly assisted him in travelling to Afghanistan. Mr. Belbacha’s false confessions obtained under torture are the sole source of a number of allegations made against him.

None of this is surprising, of course, as the array of techniques to which Belbacha was subjected were common, in various permutations, in both Kandahar and Guantánamo, and because it has been established, in court proceedings in the case of Binyam Mohamed, the British resident subjected to “extraordinary rendition” and torture in Pakistan, Morocco and Afghanistan, that the British security services provided information to their US counterparts while he was being held and tortured in Morocco. However, the chain of events is of particular interest in Belbacha’s case, as it suggests that the US interrogators stepped in after their British counterparts had obtained information from him directly, and indicates a very clear example of complicity in torture.

Reprieve’s aim, however, is not primarily to expose this aspect of the British security services’ activities, but, as stated in the lawsuit, to secure information in the possession of the British government to help prevent Belbacha’s forcible repatriation, and also to provide important evidence as part of his ongoing habeas corpus petition in the District Court in Washington D.C., where, since the Supreme Court gave the prisoners constitutionally guaranteed habeas rights in June 2008, 57 cases have been decided, two-thirds of which have been won by the prisoners.

Resisting involuntary repatriation and seeking a new home for Ahmed Belbacha

This information is of great significance because of the particular circumstances in which Belbacha finds himself. Although Reprieve was notified on February 22, 2007 that Belbacha had been cleared for release from Guantánamo after an Administrative Review Board hearing the year before, he was desperate not to return to Algeria, because, as Cori Crider explained, “he fears that he would be mistreated by the Algerian state, having spent nearly a decade in US custody stamped as a would-be terrorist (and having vocally objected to returning to Algeria for many of those years)” and he “also fears retaliation from the contemporary descendant of the GIA — al-Qaeda in the Islamic Maghreb (AQIM) — as he has been an equally vocal critic of the GIA’s attacks on civilians.”

On the former point, Belbacha’s fears appeared to be confirmed last November, when he was “convicted in absentia in Algeria of unspecified charges and sentenced to 20 years’ imprisonment.” Reprieve has been unable to establish the grounds for his conviction, and, as Cori Crider noted in her submission, “The sentence is particularly troubling because no other Algerian in Guantánamo was thus singled out. It appears likely that the sentence reflects a decision by the Algerians to retaliate against Mr. Belbacha, the earliest and most vociferous opponent of repatriation to Algeria from Guantánamo. I am not aware of any diplomatic or political assurances (credible or otherwise) that have been given by the government of Algeria in relation to Mr. Belbacha’s treatment on his return.”

As a result of Belbacha’s credible fears, Reprieve has spent nearly four years trying to secure resettlement for him in a third country. The British government has persistently refused to help, an application for asylum in the US was turned down in 2007, and although the town of Amherst, Massachusetts passed a resolution last year offering him a new home, this cannot happen because of legislation passed by Congress preventing the transfer of any Guantánamo prisoner to the US mainland except to face a trial (and even that last proviso is currently in doubt).

The closest Belbacha came to resettlement in a third country appears to have been in January this year, when representatives from Reprieve, Cageprisoners and the Center for Constitutional Rights traveled around Europe attempting to secure new homes for cleared prisoners who faced the risk — or the probability — of torture in their home countries. Crider noted that “The most advanced of those efforts, which targeted the government of Luxembourg, was apparently blocked by the US State Department,” and explained, in a footnote:

I know this because our efforts with the government of Luxembourg culminated in a meeting, on January 14, 2010, which was attended by myself for Reprieve, Moazzam Begg [for Cageprisoners], the Foreign Minister of Luxembourg, and a member of staff at a partner group, the Center for Constitutional Rights (CCR). The discussion centred on two individuals — Mr. Belbacha and one of CCR’s clients — and during the meeting, Reprieve, with Mr. Begg’s support, proposed Mr. Belbacha as an appropriate candidate for resettlement in Luxembourg. We later learned from a contact in the Luxembourg Foreign Ministry that, as a result of this meeting, Foreign Minister Jean Asselborn had inquired of our client by name of the US authorities. The contact related that the US State Department officials had brushed off this approach, stating that Mr Belbacha “could go back to Algeria.”

This experience led Crider to conclude, as she explained, that “further efforts in this vein will be futile without additional exculpatory information or information that indicates that [Belbacha] will be at risk on return to Algeria. Without this information, the US government is unlikely to be willing to press [his] case for resettlement out of Algeria.”

Problems in the US courts

In seeking to prevent Belbacha’s involuntary return to Algeria, Reprieve has, after initial success, run up against renewed opposition from officials of the Obama administration and various US courts, which affects not only Belbacha but dozens of other prisoners as well. In July 2007, Reprieve asked the District Court in Washington D.C. to prevent Belbacha’s involuntary repatriation, and secured an injunction preventing his removal on June 13, 2008. This, however, only stood until the D.C. Circuit Court became involved, ruling in September 2009, in a case known as Kiyemba II, involving the Uighurs in Guantánamo (Muslims from China who won their habeas petition in October 2008, but feared torture in China) that questions relating to the transfer of prisoners — even when the risk of torture was involved — were solely for the executive branch of government to decide.

The court, out of nowhere, drew on Munaf v. Geren, a case from 2008 in which “two American citizens held in the custody of the United States military in Iraq petitioned for writs of habeas corpus, seeking to enjoin the Government from transferring them to Iraqi custody for criminal prosecution in the Iraqi courts.” In Munaf, the court ruled that “it could not enjoin the Government from transferring the petitioners to Iraqi custody,” because “that concern is to be addressed by the political branches, not the judiciary.”

As a result of the Kiyemba II ruling, which the Supreme Court refused to reconsider in March this year, Belbacha’s injunction was vacated by a District Court judge (in February), and attempts to have it reconsidered were refused. The last straw for Belbacha came in July, when, after protracted court dealings (mostly conducted in secret), the Supreme Court refused to prevent the administration from repatriating any of the six Algerians in Guantánamo at the time, leading to the immediate repatriation of one of these men, Abdul Aziz Naji, who promptly disappeared for a few days, before resurfacing with the threat of a dubious terrorism trial hanging over him.

As Crider noted in her submission, “because there is no injunction in place, the US government may forcibly repatriate Mr. Belbacha at any time.” She also noted that public criticism of the decision to transfer Naji against his will appeared to have paused further transfers, but stressed that the current situation — in which all the government needs to do is assert that it is “government policy not to transfer prisoners to torture” for all judicial inquries to come to an end — is deeply unsatisfactory, and, as a result, Ahmed Belbacha is now seeking to win his habeas corpus petition in the District Court in Washington D.C., and needs the documents in the possession of the British government as an essential part of his defense.

Explaining the importance of his habeas petition, Crider noted, that although “under current Court of Appeals precedent, the judge has no power to order the production of the prisoner in the courtroom; no power to order that the prisoner be released into the United States (or, it would appear, anywhere else); and no power to order the US not to send a petitioner, prevailing or otherwise, anywhere,” and that “The scope of the habeas remedy left to the US judiciary, in other words, is remarkably slim … there remains a category of prisoners that the US has never forced back to a country unwillingly: habeas winners.”

The importance of the British information about Ahmed Belbacha

After running through the poor history of disclosure in the US courts, where “government lawyers litigating the habeas cases have repeatedly claimed that they do not have access to the full set of relevant documents that might be implicated in a habeas action, and that to be required to search all of every relevant agency’s files (the DOD, the CIA, and so forth) for relevant material would be ‘unduly burdensome,'” and where, in the case of Binyam Mohamed, who was demonstrably sent to Morocco to be tortured, “Morocco never once appeared as a detention site on any document … in three separate orders from the district judge in [his] habeas action to the government to disclose all exculpatory information”, Crider’s submission ended with an appeal to the High Court to order disclosure of documents that might help prevent her client’s involuntary repatriation, and I believe this entire passage is worth quoting in its entirety:

A key category of information that is, in my experience, never disclosed is exculpatory information identifiably sourced from a foreign government. So, for example, even had the UK authorities generated reports of their interviews with the Claimants in Afghanistan and in Guantánamo and shared those reports with the US — something UK agents might well do — the US government has not disclosed and would not disclose such foreign-sourced material out of respect for the “control principle” [of not disclosing foreign intelligence sources] that was litigated at length in the English Binyam Mohamed litigation.

It is also, of course, likely that the UK produced internal reports about the situation in Afghanistan or Guantánamo that were never transferred to the US. Those reports, self-evidently, would be unavailable in any habeas disclosure process.

I am aware only of two instances in which exculpatory material originating with a foreign intelligence agency has been disclosed to a petitioner’s lawyer in a Guantánamo case: the case of Binyam Mohamed, and the case of Shaker Aamer. In both cases, the only reason such material was disclosed was as a result of Norwich Pharmacal litigation in England. I am cleared counsel of record in both cases, and have reviewed those disclosures at the Secure Facility in the US [where Guantánamo lawyers must travel to view all classified information]. In both instances, the UK disclosures were, by some margin, the most useful, illuminating, and exculpatory material that I saw in the habeas process.

For these reasons, the information sought is a vital part of having my client’s coerced statements suppressed in their habeas proceedings. I also believe it an essential component of persuading Obama administration officials not to transfer my client to Algeria against his will.

While I cannot know the scope of the information used by the Obama administration to determine whether and under what circumstances to transfer my clients, I do know that my own capacity to make effective representations to them has thus far been very limited. The reasons for this are simple: I have as yet had no information I could use to prove to the administration that my clients’ allegations of coercion, particularly during their early years in US military detention, were true. This, combined with the challenges of producing detailed statements on abuse (or, indeed, on the circumstances of capture) from prisoners who have been in Guantánamo for nearly nine years, has limited me to making fairly general statements: statements to the effect that I believe the clients were abused in custody, that the clients were never implicated in any terrorist act and never joined al-Qaida or the Taliban, and that the clients would pose no threat to anyone upon their release to a safe third country.

It is my view that the representations I could make if I had meaningful exculpatory information about Mr. Belbacha, and about how he was treated in US custody, would be qualitatively different. This, in turn, I believe would make the Obama administration more open to the prospect of resettling him, rather than simply forcing him back to abuse, an unfair trial and/or lengthy imprisonment in Algeria.

The Obama administration has stated, on more than one occasion, that it considers a prisoner’s individualized claim of fear of torture when it decides whether to repatriate a prisoner. In theory, of course, the question of the abuse a prisoner faces in Algeria and his fitness to be released elsewhere are distinct; in practice, however, I believe the lines blur. Proving to the Obama administration that Mr. Belbacha was tortured; that he gave false statements under torture; that, therefore, that allegations lodged against him are unreliable, particularly the most severe ones, is, I believe, an essential part of persuading the government that it would be unjust and inappropriate to return Mr. Belbacha to Algeria.

I wish Reprieve every success in this approach. The Norwich Pharmacal litigation mentioned above, which, in simple lay terms, involves appraisals of how parties (in these cases, the UK government) can become involved in “wrongdoing,” whether intentionally or not, for which a remedy may be sought, was invaluable in the case of Binyam Mohamed, and eventually led to his release. It has not yet had the same end result in Shaker Aamer’s case, although it led, last December, to the release of important documents in the possession of the British government, and it is clear, in the grounds for a judicial review submitted by Cori Crider (PDF), that it should also apply in Ahmed Belbacha’s case. As she explained:

Mr. Belbacha alleges that the Defendants have become involved in the wrongdoing of the US authorities in the following ways. UK officials:

(1) interviewed Mr. Belbacha in circumstances where it was standard practice for detainees to be mistreated prior to interviews to secure their cooperation, thereby facilitating further mistreatment;

(2) interviewed Mr. Belbacha in circumstances where this is likely to have prolonged his detention, in particular at Kandahar;

(3) failed to protest at the mistreatment, torture and/or unlawful detention of Mr. Belbacha, despite no doubt being aware of the circumstances of his detention;

(4) failed to take any or any sufficient steps to secure better treatment for Mr. Belbacha; and

(5) failed to take any or any sufficient steps to secure the release from detention of Mr. Belbacha.

If justice has not entirely vanished, it will lead, as intended, to Ahmed Belbacha winning his habeas petition, and the Obama administration accepting that it will no longer try to forcibly repatriate him, and will, instead, seek a third country prepared to take him.

And if there is any justice left over, that third country will be the UK, where he lived in a peaceful and law-abiding manner for nearly two years, and where there are many people wiling and able to help with his resettlement.

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), my definitive Guantánamo habeas list and the chronological list of all my articles, and, if you appreciate my work, feel free to make a donation.

As published exclusively on Cageprisoners.

Is Bradley Manning Being Held as Some Sort of “Enemy Combatant”?

In disturbing reports from the US, it appears that Private First Class Bradley Manning, the former intelligence analyst accused of leaking the Afghan and Iraqi war logs, the US diplomatic cables and the “Collateral Murder” video, which have dominated headlines globally since WikiLeaks began making them available in April this year, is being held in conditions that bear a marked and chilling resemblance to the conditions in which a handful of US citizens and residents were held as “enemy combatants” under the Bush administration.

Manning, whose 23rd birthday was on Friday, has been held in solitary confinement for seven months since he was seized in Kuwait, where he was held for the first two months prior to his transfer to a military prison in Quantico, Virginia.  According to David House, a computer researcher from Boston who visits him twice a month, his “prolonged confinement in a solitary holding cell … is unquestionably taking its toll on his intellect.” House explained how Manning “was no longer the characteristically brilliant man he had been, despite efforts to keep him intellectually engaged.”

However, what was particularly revealing about House’s comments was his denial of the authorities’ statement that Manning “was being kept in solitary for his own good,” based on a claim that he was initially held on suicide watch. As he explained, “I initially believed that his time in solitary confinement was a decision made in the interests of his safety. As time passed and his suicide watch was lifted, to no effect, it became clear that his time in solitary — and his lack of a pillow, sheets, the freedom to exercise, or the ability to view televised current events — were enacted as a means of punishment rather than a means of safety.”

The key elements here are the elements of profound isolation and suffering identified by House — not just the solitary confinement, with no other human being for company, but also the refusal to allow Manning to have a pillow, sheets, or any access to the outside world through the reporting of current affairs.

It is these factors that mark out his conditions of detention as sharing some key elements with the conditions endured by the three “enemy combatants” held on the US mainland under the Bush administration — the US citizens Yasser Hamdi and Jose Padilla, and the US legal resident Ali al-Marri.

Hamdi, initally held at Guantanamo, was kept in isolation from May 2002 until he won a case before the Supreme Court on June 28, 2004, leading to his release in Saudi Arabia three months later. Padilla, held from May 2002 until he was transferred into federal custody on January 3, 2006 (and subsequently tried and convicted in August 2007, and given a sentence of 17 years and four months in January 2008 for conspiring to kill people in an overseas jihad and to fund and support overseas terrorism), was held for 21 months in total isolation. Al-Marri, who was initially arrested in December 2001, was held alone for five years and eight months (including 16 months in total solitary confinement) before President Obama moved him into the federal court system in February 2009, leading to a trial and an eight-year sentence after a plea deal eight months later.

As I explained in an article two years ago:

As was recently revealed through the disclosure of military documents following a Freedom of Information request (PDF), al-Marri, along with two American citizens also held as “enemy combatants” — Yaser Hamdi and Jose Padilla — was subjected to the same “Standard Operating Procedure” that was applied to prisoners at Guantánamo during its most brutal phase, from mid-2002 to mid-2004. This involved the use of “enhanced interrogation techniques,” including prolonged isolation, painful stress positions, exposure to extreme temperature, sleep deprivation, extreme sensory deprivation, and threats of violence and death.

Although the treatment of prisoners at Guantánamo was disturbingly harsh, it can be argued — with some confidence, I believe — that the treatment of al-Marri, Hamdi and Padilla was worse than that endured by the majority of the Guantánamo prisoners, as all three suffered in total isolation … Held alone in cellblocks that were otherwise unoccupied, al-Marri, Hamdi and Padilla had to survive without even the small comforts available to most of the Guantánamo prisoners, who, when not held in isolation as a punishment or as a prelude to interrogation, could at least communicate with the prisoners in the cells adjacent to them, and could take advantage of what lawyer Clive Stafford Smith has called the “incredible prisoner bush telegraph,” through which information is conveyed around the prison.

In the case of Hamdi (who was picked up in Afghanistan in November 2001 and initially held in Guantánamo until it was discovered that, although he had lived in Saudi Arabia since he was a child, he was born in Baton Rouge and was an American citizen), the effects of this near-total isolation were already apparent in June 2002, just a month after his transfer from Guantánamo. As one of the officers responsible for him explained in an email to his superiors, “with no potential end in sight and no encouraging news and isolated from his countrymen, I can understand how he feels … I will continue to do what I can to help this individual maintain his sanity, but in my opinion we’re working with borrowed time.”

In the case of Jose Padilla, who was held in strict solitary confinement for 21 months, the effects of his isolation were so intense that it has been reported that he literally lost his mind (his warders described him as “so docile and inactive that he could be mistaken for ‘a piece of furniture’”) [Further details of Padilla’s harrowing mental collapse can be found here].

Al-Marri’s experience was similar. As his lawyers explained in May [2008], in court documents protesting his treatment (PDF), for the 16 months that he was held incommunicado, “He was denied any contact with the world outside, including his family, his lawyers, and the Red Cross. All requests to see, speak to, or communicate with Mr. al-Marri were ignored or refused. Mr. al-Marri’s only regular human contact during that period was with government officials during interrogation sessions, or with guards when they delivered trays of food through a slot in his cell door, escorted him to the shower, or took him to a concrete cage for ‘recreation.’ The guards had duct tape over their name badges and did not speak to Mr. al-Marri except to give him orders.”

There is, at present, no suggestion that Bradley Manning has been subjected to a wide range of “enhanced interrogation techniques,” but prolonged isolation is confirmed, and depriving him of a pillow, sheets, or any access to the outside world through the reporting of current affairs are all elements of discomfort and further isolation that were key to the program of belittling and punishing “enemy combatants,” and, crucially, “softening them up” or “breaking” them for interrogation. It is, sadly, all too easy to imagine that other techniques designed to disorientate Manning and to further erode his will — involving elements of sleep deprivation, threats and sensory deprivation — could also be applied, or are, perhaps, already being apllied, especially if, as has been suggested by the Independent, the authorities are hoping to cut a plea deal with him, reducing a 52-year sentence in exchange for a confession that Julian Assange of WikiLeaks, whom the US is seeking to extradite to the US, was not just a passive recipient of the information leaked by Manning, but was instead a conspirator.

Assange, who was released on bail in the UK on Thursday, after being imprisoned for nine days following an extradition request from Sweden relating to rape charges, denies knowing Manning at all. After his release from Wandsworth prison, he said, “I had never heard of the name Bradley Manning before it was published in the press. WikiLeaks technology [was] designed from the very beginning to make sure that we never know the identities or names of people submitting us material.”

In contrast, however, as the Independent explained, “Adrian Lamo, a former hacker who had been in contact with Pte. Manning and eventually turned him in to the government, has told the FBI that Mr. Assange had given the young soldier an encrypted internet conferencing service as he was downloading government files and a dedicated server for uploading them to WikiLeaks. Mr. Lamo claims that Pte. Manning had ‘bragged’ about this to him. In one email, now in the possession of the Justice Department, the soldier allegedly wrote: ‘I can’t believe what I’m confessing to you … I’m a source, not quite a volunteer, I mean, I’m a high-profile source … and I’ve developed a relationship with Assange.'”

As this story continues to develop, further clues about the kinds of pressure exerted on Manning can be gleaned from David House’s description of the lengths to which the authorities are going to harass those who know Manning. House told the Guardian that “many people were reluctant to talk about Manning’s condition because of government harassment, including surveillance, warrantless computer seizures, and even bribes,” stating, “This has had such an intimidating effect that many are afraid to speak out on his behalf”

The Guardian added, “Some friends report being followed extensively. Another computer expert said the army offered him cash to — in his words — ‘infiltrate’ the WikiLeaks website.” He said, “I turned them down. I don’t want anything to do with this cloak and dagger stuff.”

House also explained how, on November 3, he “found customs agents waiting for him when he and his girlfriend returned to the US after a short holiday in Mexico. His bags were searched and two men identifying themselves as Homeland Security officials said they were being detained for questioning and would miss their connecting flight. The men seized all his electronic items and he was told to hand over all passwords and encryption keys — which he refused. The items have yet to be returned.”

In conclusion, then, anyone concerned with justice needs to keep a close eye on Bradley Manning’s case, not just because any pressure exerted on Manning to implicate Julian Assange in his decision to leak classified US documents would have a disastrous impact on freedom of speech, and would, possibly, pave the way for an unprecedented assault on the freedom of the Internet, where alternative voices to the mainstream are needed more than ever, but also because of the suspicion that, in exerting pressure on Manning, the Obama administration has crossed a line and is drawing inspiration from the discredited — if not thoroughly repudiated — practices of the Bush administration.

Note: Anyone interested in supporting Bradley Manning — and contributing to his legal fund — should visit the website of the Bradley Manning Support Network.

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), my definitive Guantánamo habeas list and the chronological list of all my articles, and, if you appreciate my work, feel free to make a donation.

Cross-posted on The Public Record, The Smirking Chimp, UruknetRon Paul Forums and Dandelion Salad.

Tell the UK and US Governments We Need A Deadline for the Return of Shaker Aamer from Guantánamo

From the Save Shaker Aamer Campaign, based in the home borough of Shaker Aamer, the last British resident in Guantánamo Bay, comes news of the latest information regarding Shaker’s return from Guantánamo, via an exchange in the House of Commons on Tuesday.

Anas Sarwar, the Labour MP for Glasgow Central, asked, “Will the Foreign Secretary update the House on what recent discussions he has had with his US counterparts on the planned closure of Guantánamo Bay and the return of the remaining detainees to their home countries, including Shaker Aamer, who has been held for nine years without trial?”

In response, Foreign Secretary William Hague said, “I raised this with Secretary [of State Hillary] Clinton on my last visit to Washington a few weeks ago, I think on 17 November — I mentioned specifically the case of Shaker Aamer. My right hon. friend the Deputy Prime Minister [Nick Clegg] also raised that case with Secretary Clinton, when he met her in Astana in Kazakhstan a couple of weeks ago, so the US Administration are very clear about where we stand and, indeed, our overall position on the closure of Guantánamo Bay. That is going through a process of examination in the State Department and in other US Government Departments, but they are in no doubt of our request.”

Following this exchange, the Save Shaker Aamer Campaign asked, “So what’s new? In July 2009 members of the public who had raised this issue with Foreign Secretary David Miliband received the following reply from the Home Office’s Counter-Terrorism Office: ‘The UK has already taken steps to help reduce the number of detainees at the detention facility and it is on this basis that we have requested the release and return of the former legal UK resident Mr. Shaker Aamer in August 2007. The US has so far declined to agree Mr. Aamer’s return to the UK in the light of security concerns they have in his case. We have made clear to the new administration that the UK’s request for his release and return to the UK still stands should their position change. We maintain dialogue with the US regarding his welfare and keep his family and legal representatives appraised of any developments.'”

It is indeed unaccaptable that the British government can secure nothing more than a statement from the US State Department that Shaker’s case is “going through a process of examination.” The time for examination is over, and the time for chartering a plane and flying Shaker back to the UK — and to his wife and family — is long overdue.

If William Hague wants to ensure that he and his government are not regarded as thoroughtly impotent when it comes to Transatlantic relations, he needs to set a deadline for Shaker Aamer’s release with his counterparts in the State Department. It is not as though the British government does not have a number of levers. When ministers recently agreed a financial settlement with 15 former Guantánamo prisoners, to bring to a halt a civil claim for damages that promised to reveal disturbing information about the activities of both the British and the American governments, Shaker was also part of that agreement, even though he cannot conclude any relevant business while he is still imprisoned in Guantánamo.

Similarly, the British government will look foolish if it cannot conclude a Metropolitan Police investigation into Shaker’s claims that British agents were present in the room in a US prison in Afghanistan, before his transfer to Guantánamo, when he was subjected to violent abuse (as was revealed in a British court a year ago), and, more importantly, will be further discredited if ministers cannot launch the judicial inquiry into British complicity in torture abroad, which Prime Minister David Cameron announced in July, and which he wants to use to “draw a line” under the whole sordid affair. It cannot have escaped the attention of ministers that the conclusion of the police investigation and the launch of the judicial inquiry both depend on Shaker being present in the UK to provide evidence, and that, the longer the delay in his return, the more untrustworthy they appear.

Spelling out a number of responses to the seeming inability of the British government to secure Shaker Aamer’s immediate return to the UK, the Save Shaker Aamer Camaign not only raised the pertinent question about setting a deadline, but also dealt with the troublesome issue of Saudi Arabia, Shaker’s home country before he gained permanent leave to remain in the UK, and married and had a family.

For years, there have been dark suspicions that it would suit both the British and American governments to return Shaker to the country of his birth, where he would not be at liberty to divulge the secrets he knows about Guantánamo, gained during his long years as the foremost advocate of the rights of prisoners held in the “War on Terror” to be treated as human beings. The Save Shaker Aamer Campaign asked, “Has Williiam Hague made it absolutely clear that it would be unacceptable to Britain for the US to send Shaker Aamer to Saudi Arabia?” which is a pertinent question, even though, as outlined above, the British government’s credibility is eroded every day that Shaker remains in Guantánamo.

The campaigners also asked, “If not, what possible basis can there be for supposing that anything will come of the current request?” This, too, is a valid question, and serves to emphaize how everyone concerned with securing Shaker’s return to the UK needs to maintain the pressure on both the British and American governments.

So please, if you care about bringing this long injustice to an end, write to William Hague asking him to raise the questions above, and write to your MP asking them to raise Shaker’s plight with William Hague personally. Please also encourage your MP to sign up to the Early Day Motion tabled by Green MP Caroline Lucas, which calls for Shaker’s return and the closure of Guantánamo, and also asks the British government to offer new homes to other cleared prisoners — like former British resident Ahmed Belbacha — who cannot be repatriated because they face the face the risk of torture in their home countries.

Also, please write to Secretary of State Hillary Clinton and Daniel Fried, President Obama’s Special Envoy on Guantánamo. The following text (slightly amended) is from a campaign for Shaker launched by Amnesty International:

Please release former UK resident Shaker Aamer from Guantánamo Bay to be with his family in the UK, and set a deadline for doing so. President Obama has committed to close Guantánamo. Returning Shaker Aamer to the UK, a safe country that is willing to take him and where his family lives, would be real progress towards closure.

This is Hillary Clinton’s address:

Secretary of State Hillary Clinton
US Department of State
2201 C Street NW
Washington, DC, 20520
USA

This is Daniel Fried’s address:

Special Envoy Daniel Fried
US Department of State
2201 C Street NW
Washington DC, 20520
USA

Readers can also order free pre-printed postcards from the indefatigable activist Maryam Hassan (of the Justice for Aafia Coalition) to send to Wiiliam Hague and to Shaker himself in 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), my definitive Guantánamo habeas list and the chronological list of all my articles, and, if you appreciate my work, feel free to make a donation.

As published exclusively on Cageprisoners.

Back to home page

Andy Worthington

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

CD: Love and War

Love and War by The Four Fathers

The Guantánamo Files book cover

The Guantánamo Files

The Battle of the Beanfield book cover

The Battle of the Beanfield

Stonehenge: Celebration & Subversion book cover

Stonehenge: Celebration & Subversion

Outside The Law DVD cover

Outside the Law: Stories from Guantánamo

RSS

Posts & Comments

World Wide Web Consortium

XHTML & CSS

WordPress

Powered by WordPress

Designed by Josh King-Farlow

Please support Andy Worthington, independent journalist:

Archives

In Touch

Follow me on Facebook

Become a fan on Facebook

Subscribe to me on YouTubeSubscribe to me on YouTube

Andy's Flickr photos

Campaigns

Categories

Tag Cloud

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