The Chaotic History of Guantánamo’s Military Commissions

29.3.14

See the full list here of everyone charged in the military commissions at Guantánamo.

Recently, a friend asked me for information about all the Guantánamo prisoners who have been put forward for military commission trials at Guantánamo, and after undertaking a search online, I realized that I couldn’t find a single place listing all the prisoners who have been charged in the three versions of the commissions that have existed since 2001, or the total number of men charged.

As a result, I decided that it would be useful to do some research and to provide a list of all the men charged — a total of 30, it transpires — as well as providing some updates about the commissions, which I have been covering since 2006, but have not reported on since October. The full list of everyone charged in the military commissions is here, which I’ll be updating on a regular basis, and please read on for a brief history of the commissions and for my analysis of what has taken place in the last few months.

The commissions were dragged out of the history books by Dick Cheney on November 13, 2001, when a Military Order authorizing the creation of the commissions was stealthily issued with almost no oversight, as I explained in an article in June 2007, while the Washington Post was publishing a major series on Cheney by Barton Gellman (the author of Angler, a subsequent book about Cheney) and Jo Becker. Alarmingly, as I explained in that article, the order “stripped foreign terror suspects of access to any courts, authorized their indefinite imprisonment without charge, and also authorized the creation of ‘Military Commissions,’ before which they could be tried using secret evidence,” including evidence derived through the use of torture.

Cheney’s military commissions, which involved various chaotic pre-trial hearings but no trials, lasted until June 28, 2006, when, in Hamdan v. Rumsfeld, a challenge brought by one of the ten men charged (Salim Hamdan, a Yemeni who had taken a paid job as one of Osama bin Laden’s drivers), the Supreme Court ruled that the commissions lacked “the power to proceed because its structures and procedures violate both the Uniform Code of Military Justice and the four Geneva Conventions signed in 1949.”

Almost immediately, however, the Bush administration responded by negotiating with Congress for a new version of the commissions to be launched, and the result was the Military Commissions Act of 2006. Between February 2007 and December 2008, 27 prisoners were charged in the military commissions (including nine of the ten men previously charged), although only three cases went to trial — David Hicks in March 2007, Salim Hamdan in July 2008, and Ali Hamza al-Bahlul in October 2008. For a brief rundown of most of these stories, see my article from November 2008, “20 Reasons To Shut Down The Guantánamo Trials.”

When President Obama took office in January 2009, he initially suspended the commissions, but in a speech in May 2009 he announced that they were back on the table. He then worked with Congress to revive them, and the result was the Military Commissions Act of 2009. According to an announcement by Attorney General Eric Holder in November 2009, there were supposed to be two types of trials under the Obama administration  — in federal court, for the five men accused of involvement in the 9/11 attacks, as well as in the military commissions. However, when the administration faced criticism for planning to hold the 9/11 trial in New York, President Obama dropped the plans, and Khalid Sheikh Mohammed and his four co-defendants (all accused of involvement the 9/11 attacks) were once more charged in the military commissions.

Nor were the military commissions free of problems. Senior Obama administration officials had told Congress (see here and here) that certain charges designated as war crimes in the MCA of 2006, and intended for the 2009 version — providing material support for terrorism, and, possibly, conspiracy — were not regarded as war crimes, and would probably be overturned on appeal. Congress failed to take the advice on board, but this was indeed what happened in October 2012, in another victory for Salim Hamdan, when his conviction was overturned, and in January 2013 the conviction of Ali Hamza al-Bahlul was also overturned. The government has appealed, but the effect has been for the military to concede that the total number of prisoners who will face trials by military commission (or have already faced trials) out of the 779 men held since the prison opened, is unlikely to exceed 20. In fact, at current estimates, it will be no more than the 15 already charged and/or convicted.

Delays in the 9/11 trial, challenges in the trial of Abd al-Rahim al-Nashiri

Since my last article about the commissions (In October 2013), progress has been as painfully slow as usual in the pre-trial stages of the 9/11 trial (for five men including Khalid Sheikh Mohammed), and the trial of Abd al-Rahim al-Nashiri (accused of masterminding the attack on the USS Cole in 2000). All six men were held for years in CIA “black sites,” where they were subjected to torture — which, of course, makes a fair and open trial improbable, and has led to a protracted game of cat and mouse as the government tries to suppress all mention of torture, while the defense teams try to expose it.

In December, Ramzi bin al-Shibh, one of the five alleged 9/11 co-conspirators, was ejected twice from the courtroom for interruptions — in the first instance shouting, “This is torture! You have to stop the sleep deprivation and the noises.” This led to questions about his mental competency, but these had not been addressed by January 31 this year, because he refused to talk to a mental health board whose members told the judge that they therefore didn’t know if he was fit to stand trial. As a result, the judge, Army Col. James L. Pohl, was obliged to put off the next round of hearings, scheduled for February, when the only hearings that took place were for al-Nashiri.

The hearings were immediately derailed when al-Nashiri threatened to sack his civilian lawyer, Rick Kammen. Two days later, he apologized, telling Judge Pohl, “I believe we are here in a unique and very strange court,” and complaining that “his lawyers go to secret pretrial hearings and are forbidden to tell him ‘what happened during those closed, classified sessions,’” as the Miami Herald described it.

After this, lawyers sparred over the use of hearsay evidence, held a secret meeting with the judge regarding CIA “black sites,” sought to have the death penalty dismissed in the case of a conviction because of the use of secret evidence which al-Nashiri cannot see, and held another secret meeting with the judge to discuss the use of classified information. At the end of it all, Judge Pohl set a date of December 4 for the trial to begin — although it remains to be seen if that date will hold.

Ahmed al-Darbi’s plea deal

In the last two months, however, the most significant development has been the announcement of a plea deal accepted by Ahmed al-Darbi, a Saudi prisoner, charged in the second and third versions of the commissions, who was seized in Azerbaijan in June 2002 and held in a CIA “black site” in Afghanistan prior to his arrival at Guantánamo. A declaration by al-Darbi about his torture is here.

As the New York Times reported, On February 20, al-Darbi pleaded guilty before a military commission to charges relating to his involvement in an Al-Qaeda attack in 2002 on a French oil tanker, the MV Limburg, off the coast of Yemen, when one crew member died. According to the plea deal, he “will spend at least three and a half more years at Guantánamo before he is sentenced,” and will then probably be transferred to Saudi Arabia to serve out the remainder of a sentence that is expected to be between nine to 15 years, “depending on his behavior in custody,” as the New York Times described it.

In exchange for this sentence (which, with the 12 years he has already spent in custody, will amount to between 21 and 27 years in custody in total), al-Darbi has agreed to cooperate with prosecutors, and is expected to testify against Abd al-Rahim al-Nashiri, who is currently facing pre-trial hearings, and is accused of masterminding another attack on a ship, in this case the USS Cole, which was attacked in 2000, with the loss of 17 US lives.

“In a twist,” as the New York Times described it, al-Darbi “was already at Guantánamo by the time the MV Limburg was attacked.” The judge, Air Force Col. Mark Allred, acknowledged that, but said it made no difference. “Obviously you were not there, you were somewhere else,” he said. “But the actual perpetrators were there, and you are liable for their actions as a principal.”

The New York Times also noted that, in accepting a plea deal, al-Darbi had “traded away an opportunity to argue that a French vessel in Yemen in 2002 was beyond the scope of the American armed conflict with Al-Qaeda, and that if so, he could be prosecuted only in a civilian criminal trial, not an American military tribunal.” This could have been a significant challenge — and is one being undertaken by Abd al-Rahim al-Nashiri — but it is, I believe, understandable that al-Darbi chose a plea deal instead, as it has proven to be the most reliable way of leaving Guantánamo, in marked contrast to the ongoing plight of the 75 men approved for release by an an inter-agency task force over four years ago, but still held, or the 69 others not scheduled to face trials, who are awaiting review boards to tell them if they too should be approved for release.

The contentious addition of conspiracy to the charges against Abd al-Hadi al-Iraqi

The week before Ahmed al-Darbi’s plea deal, the only other significant development of late was an announcement about the most recent prisoner to be charged, Abd al-Hadi al-Iraqi, who was brought to Guantánamo from an unidentified CIA facility in April 2007, and is regarded as a “high-value detainee.”

Al-Iraqi is one of only six prisoners brought to Guantánamo since 14 “high-value detainees” (including the five 9/11 co-defendants and Abd al-Rahim al-Nashiri) were brought to the prison from the CIA’s “black site” in September 2006. An alleged high-level link between Al-Qaeda and insurgents in Iraq, he was charged last June, but on February 3 prosecutors added a charge of conspiracy to the existing charges.

This was a contentious move because, when the D.C. Circuit Court overturned the conviction against Ali Hamza al-Bahlul in January 2013, the judges specifically overturned not only the charge of providing material support for terrorism, but also conspiracy, “on the grounds that the charge was not recognized under the international laws of war,” as the New York Times explained.

The Times added, “The Obama administration has appealed, but if the ruling stands, it sharply undermines the utility of tribunals — as opposed to civilian courts — to sentence people to prison who participated in terrorist groups but are not personally linked to any specific attack.”

To my mind, it seems premature — or perhaps arrogant — of prosecutors to file a conspiracy charge when it has been struck down by the D.C. Circuit Court (which does not have a reputation as a liberal court). In addition, al-Iraqi will no doubt want to challenge whether the commissions are able to try conduct that took place before the passage of the Military Commissions Act in 2006.

Given al-Bahlul’s successful appeal, striking down conspiracy in his case, I can only wonder if, because al-Iraqi didn’t arrive at Guantánamo until April 2007, prosecutors hope to charge him with crimes that took place between the passage of the 2006 MCA and his capture, although that seems like a small window of opportunity, as well as being unreliable, as conspiracy remains a dubious charge in a war crimes forum.

The irony, of course, is that last week Sulaiman Abu Ghaith, a Kuwaiti who briefly acted as a spokesman for Al-Qaeda immediately after the 9/11 attacks, and was then held under a form of house arrest for 10 years by the Iranian government, was found guilty in a federal court in New York on charges that include conspiracy, for which he may well receive a life sentence. As a result, anyone paying close attention and seeking severe punishment for those who were allegedly involved with Al-Qaeda would, it seems to me, be better off pushing for the commissions to be scrapped — again — and for those who can genuinely be accused of crimes to be tried in federal courts on the US mainland instead.

Andy Worthington is a freelance investigative journalist, activist, author, photographer and film-maker. He is the co-founder of the “Close Guantánamo” campaign, and 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. He is also the co-director (with Polly Nash) of the documentary film, “Outside the Law: Stories from Guantánamo” (available on DVD here – or here for the US).

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5 Responses

  1. Andy Worthington says...

    Thanks to everyone who has liked and shared this. My friends, I’m away for three weeks from tomorrow (Sunday), heading to Mexico for a family wedding and staying for a holiday – never been to Mexico before, so it was too good an opportunity to miss. I will be online, but not on a full-time basis, obviously. My best wishes to you all.

  2. arcticredriver says...

    Thanks Andy. I agree that is surprising that there is no place where one could look up the individuals charged. Thanks for filling that gap!

    Although the SCOTUS closed down the first military commissions that President Bush thought he could authorize, on Constitutional grounds, and then Congress passed two separate laws, I think the biggest change to how the commissions were to operate happened in 2004, before any suspects had been charged. The first Chief Prosecutor was an ideologue and bigot of questionable morals and judgment named Colonel Fred Borch.

    Borch’s naked immorality shocked the more junior prosecutors, who went over his head. A year after the dust had settled Australian newspapers wrote about leaked memos they had acquired from three of his subordinates, who asserted that the prosecutors wouldn’t have to work to hard, because:

    [1] Commission members would be hand-picked so they would have a bias practically guaranteeing conviction;
    [2] The Prosecution would be able to destroy any exculpatory evidence, or make sure it was classified at too high a level for defense lawyers to have access to it, or to otherwise make sure defense lawyers never got access to it.

    The Australian papers reported that the three prosecutors who complained about Borch, and requested reassignment were reassigned, and that all three had subsequently been promoted.

    Borch, on the other hand, had “resigned”. He didn’t only “resign” from the Office of Military Commissions. He “resigned” from the Armed Forces. We know how leniently the DoD treats war criminals, when no one is looking, and they think they can get away with it. In Borch’s case I think cooler heads realized Borch’s promises to corrupt the Military Commission system was a genuine serious crime, and he was offered a choice — resign, or face a court-martial of his own.

    But, as you know, the Bush-Cheney-Rumsfeld team had made key appointments of equally bigoted and equally amoral individuals. The Pentagon’s chief lawyer — a Bush appointee — was Jim Haynes. I strongly suspect he was responsible for the next step in Borch’s career. Upon entering civilian life, Borch, an individual, who should have faced charges, but who was allowed to resign, and who, to the limited number of individuals in the know, should have been regarded as in disgrace, was rehired by the Office of Military Commissions, as a civilian.

    You know there have been instances where the Prosecutions attempts to bury exculpatory evidence have, nevertheless, come to life. Every time I read about an instance where the Prosecution attempts to bury exculpatory evidence failed I wondered whether it was Borch’s work.

    Anyhow, back in 2004, before Borch was forced to resign his commission, the commissions were structured differently. In the last three versions the Presidents of the Commissions act as judges, and do not weigh in in determining the verdict, and the remaining commissioners act as a jury. Before Borch’s resignation the President was the chair of a committee, where there was no judge, and the President did vote with the other commissioners.

    I don’t know how long the OFC employed Borch, as a civilian. I’d like to know. I’d like to know what his next job was.

  3. arcticredriver says...

    Andy, can I offer a couple more observations?

    When I first started reading about the commissions, critics wrote about how largely unprecedented they were; how the US already had two existing justice systems — its civilian justice system, and its streamlined military justice system, both of which were described as having a full set of precedents, and rules of procedures. The very rarely used commission system was used so rarely it had hardly any precedents, or rules of procedure. The commissions would be making things up as they went along.

    Well, a few years ago, at one of the pre-trial hearings, the Prosecutors reached back almost 200 years to a Military Commission convened by Andrew “Hickory” Jackson.

    Jackson had been the Colonel of a unit of frontier militiamen from Kentucky or Tennesee, sent to New Orleans, to counter British attempts to capture the town during the dying days of the War of 1812. His vigorous leadership there was his first claim to fame. Twenty years or so later he was elected POTUS. Between these two posts he was in charge of forces that chased Seminoles, a Native American nation that didn’t meekly knuckle under to the then very racist US government. He chased an armed group of Seminoles into Spanish Florida. They slipped from his grasp. But he arrested two British traders, in Spanish Florida. He asserted these traders had sold weapons to the Seminoles. Although this sale, if it had really happened, had occurred in Spanish Florida, and Jackson was violating Spanish sovereignty he convened a hasty military commission, and hung the men.

    Anyhow, isn’t it shocking the Prosecutors had to look back almost 200 years for a precedent? Isn’t it shocking that the precedent was such a questionable one — men who were clearly out of Jackson’s jurisdiction.

    Another shocking incident I read about was an account by one of David Hicks’ civilian lawyers from Australia. Hicks’ lawyer had traveled all the way from Australia, only to be told by the Commission’s President that he couldn’t participate in the Commission unless he signed an agreement to comply with the Commission’s rules for civilian lawyers. Before he signed the agreement he asked to see the rules he would be agreeing to comply with.

    He was told he would have to agree to the rules without seeing them — because they hadn’t been written yet. He wrote of his outrage at being asked to agree to rules that hadn’t been written.

    Hicks had more than one civilian lawyer, but this last minute hocus pocus meant he didn’t have their advice at the key moment, prior to his commission, where the Convening Authority offered him a plea deal. Hicks did have his military lawyer, who was an honorable man. But he really should have had the advice of the other lawyers, who traveled literally halfway around the world, to give Hicks their advice.

  4. arcticredriver says...

    Colonel Peter Brownback, a retired Colonel, who was chosen to serve as the first President, of the first commission, was initially criticized as being too closely tied to the first Convening Authority, who had been his superior, and whose retirement party he organized.

    But Brownback showed his independence. He and Captain Allred ruled that they lacked jurisdiction under the Military Commissions Act to try Khadr and Hamdan, because the Military Commissions Act only authorized trial of illegal enemy combatants” — while all the remaining Guantanamo captives were only “enemy combatants”.

    Brownback was criticized for rulings that frustrated the Prosecution. Eventually he was fired for specious reasons having to do with his status as a retired officer. But Pohl, the current Chief President is also a retired officer. The real reason for his firing was almost certainly that he was being too fair to Khadr. It was only after a new President had been assigned to try Khadr that he pleaded guilty.

  5. Andy Worthington says...

    Thanks, arcticredriver. Your anecdotes are reminding me of why, one day, I’d love to write a history of the commissions.
    Thanks for writing about Fred Borch. I didn’t have time, in this article, to write much about the early days of the commissions, so thanks for the reminder of Borch’s shocking behaviour, and how he was not punished. I also didn’t have time to writeabout all the prosecutors who resigned, which is another important story.
    I had also not heard previously about the lawyer for David Hicks being told to sign an agreement about rules that had not been written at the time. How outrageous! Do you happen to know the name of that lawyer?
    As for the distant precedents for the commissions, I am hoping that my friend Todd Pierce (former military defense attorney in the military commissions) will soon have a revelatory article available looking at the commissions’ use in the civil war, and how their use at that time is being used to justify their current incarnation, even though the circumstances are completely unrelated to one another.
    Thanks also for the mention of Col. Brownback. In the list I had intended to include a note about how Brownback and Allred threw a spanner in the works in June 2007, but felt it detracted from my desire to provide only the most essential details. It was, however, hugely important a the time, and, as you say, Brownback was a marked man because of this and subsequent behavior. I wrote about the commission ruling in June 2007 here: http://www.andyworthington.co.uk/2007/06/13/the-reviled-military-commissions-collapse-and-the-pressure-to-close-guantanamo-increases/

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