More Farcical Proceedings at the Military Commissions in Guantánamo

18.7.14

I wrote the following article for the “Close Guantánamo” website, which I established in January 2012 with US attorney Tom Wilner. Please join us — just an email address is required to be counted amongst those opposed to the ongoing existence of Guantánamo, and to receive updates of our activities by email.

Last week I published “The 9/11 Trial at Guantánamo: The Dark Farce Continues,” the first of two articles providing updates about the military commissions at Guantánamo.

The commissions were established under President George W. Bush in November 2001, were ruled illegal by the Supreme Court in June 2006, revived by Congress in the fall of 2006, suspended by President Obama in January 2009, and revived again by Congress in the fall of 2009, but they have always struggled to establish any credibility, and should not have been revived by the Obama administration.

Last week’s article, as the title indicates, covered developments — or the lack of them — in pre-trial hearings for Khalid Sheikh Mohammed and four other men accused of involvement in the 9/11 attacks, who were held and tortured in CIA “black sites” for years before their arrival in Guantánamo in September 2006.

These five — all designated by President Bush as “high-value detainees” — were first charged in February 2008, and then, under President Obama, were going to be prosecuted in federal court in New York until opponents of the idea started making a fuss and President Obama capitulated and returned them to the military commissions instead.

The ongoing pre-trial hearings for Abd al-Rahim al-Nashiri

This second article looks primarily at developments — or the lack of them — in the case of another “high-value detainee,” Abd al-Rahim al-Nashiri, who was also held and tortured in CIA “black sites” prior to his arrival at Guantánamo in September 2006, and is one of three prisoners that the US admits to having subjected to waterboarding (an ancient form of torture, which involves controlled drowning). Al-Nashiri is accused of masterminding the attack on the USS Cole in 2000, in which 17 US sailors were killed, and 39 were injured.

Like the 9/11 co-accused, he was first charged under President Bush in 2008, but unlike KSM and the other four men he was never considered for a federal court trial under Obama. When the planned New York 9/11 trial was announced in November 2009, he was one of five men put forward for the third version of the commissions — the one that the Obama administration unwisely endorsed — even though, from the beginning, no one could genuinely explain what criteria were used to decide who would be put forward for federal trials, and who would be tried by military commission.

For all these prisoners, the heart of the problem, as I explained in March, is that “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.”

When I last wrote about al-Nashiri’s case, in the article in March that I mentioned above, based on hearings in February, al-Nashiri had briefly threatened to sack his civilian lawyer, Rick Kammen, lawyers in the case had sparred over the use of hearsay evidence, and had held a secret meeting with the judge regarding CIA “black sites,” and his own legal team had 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 had held another secret meeting with the judge to discuss the use of classified information. At the end of it all, Judge Pohl had set a date of December 4 for the trial to begin, although as I noted at the time, “it remains to be seen if that date will hold.”

On April 9, a redacted transcript for the secret meeting with the judge (on February 22) regarding information about al-Nashiri’s imprisonment in CIA “black sites,” was released, just five days after McClatchy reported that the Senate Intelligence Committee’s as yet unpublished six-year, $40 million report on torture found that “CIA officers subjected some terrorism suspects after the Sept. 11 attacks to interrogation methods that were not approved by either the Justice Department or their own headquarters, and illegally detained 26 of its 119 captives in CIA custody.”

Al-Nashiri’s lawyers, of course, are seeking information that will help them to prepare for their client’s planned trial. As the Miami Herald reported, “Defense lawyers have security clearances that allow them to know certain aspects of the still-secret CIA Rendition, Detention and Interrogation program,” but “they aren’t entitled to a list of nations and names” as they prepare for the trial.

At the hearing on February 22, Rick Kammen, al-Nashiri’s civilian lawyer since 2008, argued, as the Miami Herald described it, that CIA agents “so fundamentally dismantled their prisoner’s personality with [their] ‘enhanced interrogation’ program that he told investigators what they wanted to hear.”

Kammen said, “The guy that was arrested is dead. They haven’t killed his body but they’ve killed whoever that guy was. Because that’s what this program was designed to do, it was designed to turn people into a state of learned helplessness where they were powerless to say no to government agents.”

Al-Nashiri’s case also clearly demonstrates how torture remains the central issue around which notions of justice must be gauged. The government argues that, because the CIA’s Rendition, Detention and Interrogation program remains classified, “even defense lawyers with security clearances aren’t entitled” to all the details of how, where and by whom he was treated. If al-Nashiri “happens to remember the places he was kept, he can volunteer the details to his lawyers,” as the Miami Herald put it, but, absurdly, his defense team “cannot discuss with him 14 percent of the so-called discovery in his case because it is classified at a level that Nashiri can’t hear about,” according to prosecutors.

Judge Pohl orders prosecutors to provide detailed information about al-Nashiri’s torture to his lawyers

Nevertheless, on April 14, the judge in his case, Army Col. James Pohl, who is the commissions’ chief judge and also presides over the 9/11 trial, ordered prosecutors to comply extensively with the defense’s requests, as the following excerpts from his ruling show:

5. The Prosecution will provide the Defense the following discovery information:

a. A chronology identifying where the Accused was held in detention between the date of his capture to the date he arrived at Guantanamo Bay, Cuba in September 2006;

b. A description of how the Accused was transported between the various locations including how he was restrained and how he was clothed;

c. All records, photographs, videos and summaries the Government of the United States has in its possession which document the condition of the Accused’s confinement at each location, and the Accused’s conditions during each movement between the various locations;

d. The identities of medical personnel (examining and treating physicians, psychologist, psychiatrists, mental health professionals, dentists, etc.), guard force personnel, and interrogators, whether employees of the United States Government or employees of a contractor hired by the United States Government, who had direct and substantial contact with the Accused at each location and participated in the transport of the Accused between the various locations. […]

e. Copies of the standard operating procedures, policies, or guidelines on handling, moving, transporting, treating, interrogating, etc, high value detainees at and between the various facilities identified in paragraph 5a.

The order also includes further points — f to j — not mentioned here.

In response to the ruling, Rick Kammen described the information the judge ordered released as material that “the prosecution has publicly resisted producing,” adding, “The prosecution’s argument that the defense is precluded from checking the government’s work is frivolous. One of the defense functions is to check the government’s story.”

The CIA, on the other hand, refused to discuss whether or not they would comply with Judge Pohl’s order. The day after (April 23), prosecutors instead filed a motion asking the judge to reconsider his order, at a session where discussions took place regarding the planned trial in December, and Judge Pohl stated that he thought it might last up to a year, and that he might have to hand it, or the 9/11 trial, to another judge, to avoid an impossible workload.

On April 24, torture once more resurfaced, when Dr. Sondra Crosby, an expert in treating victims of torture, was called upon to provide an assessment of al-Nashiri, and stated, “I believe that Mr. al Nashiri has suffered torture — physical, psychological and sexual torture.” She was responding to a defense motion seeking to establish that military doctors had failed to treat him for the Post Traumatic Stress Disorder and major depression he was diagnosed with last year by a military medical board, and sought to delay the start date for his trial.

The Miami Herald reported that Dr. Crosby said of al-Nashiri, “He suffers from chronic pain. He suffers from anal-rectal complaints,” and also has “difficulty defecating, hemorrhoids, pain in sitting for a long time,” which, she said, were typical of “survivors of sexual assault.”

She also explained that he “has scars on his wrists, legs [and] ankles” which are “consistent with the allegations and history that he gave me,” and stated that he “suffers from wide mood swings” — from “irritability, anger, extreme emotional intensity to silence” — which, she said, are “red flags” of the trauma caused by torture.

She also noted that “military medical staff treating him had failed to ask the right questions, if any,” and, having been given access to his medical history since his arrival at Guantánamo, added, “There was no trauma history in the records I read. They treated the symptoms without treating the cause.”

On April 27, an alternative perspective was provided by an Army psychiatrist who testified anonymously via video feed from Texas, and who stated that his primary finding was that al-Nashiri had Narcissistic Personality Disorder, rather than “some stressor that happened years ago.”

The chief prosecutor unsuccessfully urges Judge Pohl to withdraw his order

The next development came on May 4, with a New York Times article focused on a motion submitted on April 23 by the chief prosecutor, Brig. Gen. Mark Martins, who asked Judge Pohl to withdraw his order requiring the government to give defense lawyers detailed classified information about al-Nashiri’s treatment in CIA “black sites.” Brig. Gen. Martins asked the judge to allow the wider struggle over the Senate torture report to play out, and also revealed, in a statement on April 27, that “he had been pushing the CIA for more than a year to declassify additional information about what interrogators did to Mr. Nashiri, allowing it to be discussed with the defendant and examined in open court.”

In his motion, Brig. Gen. Martins also attached a copy of a letter sent on February 10 from White House counsel Kathryn Ruemmler, to Sens. Dianne Feinstein and Carl Levin, the leaders of the Senate Intelligence and Armed Forces Committees. explaining that CIA director John Brennan “was taking steps to declassify certain information about the program.”

On May 28, at Guantánamo, the wrangling continued. As prosecutors continued to put pressure on Judge Pohl to rescind his order, Rick Kammen told the judge, “It’s a brave and courageous order. That’s why they want you to walk it back.” He added, “The cynical part of me thinks it’s going to get you fired,” and, as the Miami Herald described it, compared “the magnitude of what Pohl did to Judge John Sirica‘s order to the White House to produce audiotapes in the Watergate scandal.”

Brig. Gen. Martins responded by offering to tweak the existing protective order, to allow prosecution lawyers to share, for the first time, a limited amount of classified information with al-Nashiri’s legal team.

The day after, another closed session took place, and the story then went quiet again until June 26, when Judge Pohl responded to that closed session by issuing an 11-page ruling, which, as the Miami Herald described it, “retain[ed] the thrust” of his April discovery order.

Prior to the revised ruling being unsealed, the Miami Herald also noted that a memo circulated in the office of the Chief Defense Counsel stated that Judge Pohl “stands by the prior order, insofar the government is required to produce information about the who, what, where, and when of both Nashiri and his alleged co-conspirators’ treatment in CIA custody,” but noted that it has one “major concession,” giving prosecutors some “leeway in redacting, ‘anonymizing’ and summarizing the details,” via a footnote in which the judge “suggests that prosecutors might selectively invoke the Intelligence Identities Protection Act” to “withhold from defense lawyers the names of CIA agents who worked at the black sites.” The newspaper added that it was unclear if, in addition, the government could “shield the identities of medical personnel, guards, interrogators and contractors on a case-by-case basis.”

Since then, Judge Pohl has resigned from al-Nashiri’s case, appointing, on July 10, Air Force Col. Vance H. Spath as his successor. He wrote that he chose to step down “to ensure continuity of the proceedings and to avoid scheduling conflicts” with the 9/11 trial. This was flagged up previously, but it is still slightly unnerving that he has withdrawn form the trial, having shown such unwillingness to back down when criticized by prosecutors.

It remains to be seen how Col. Spath will perform. On May 27, it was revealed that the trial date had been moved back to February 9, 2015, so he has just seven months to settle into his new role. Judge Pohl had scheduled a hearing for August 4 to 8, but it is at present unclear if the new judge will stick to that timetable.

Abd al-Hadi al-Iraqi is charged

In other developments, charges were referred on June 3 against Abd al-Hadi al-Iraqi, one of the last prisoners to arrive at Guantánamo in 2007, after being captured in Turkey in October 2006. A Pentagon press release announced that, “as a senior member of al Qaeda,” he “conspired with and led others in a series of unlawful attacks and related offenses in Afghanistan, Pakistan, and elsewhere from 2001 to 2006. These attacks and other offenses allegedly resulted in the deaths of US and coalition service members.”

On June 18, al-Iraqi, who is now 53 years old, was arraigned, and Carol Rosenberg reported that he “looked significantly older than his pre-capture photo.” He told the judge, Navy Capt. J. Kirk Waits, that he wanted a civilian attorney as well as his Pentagon-assigned military lawyers, because “a civilian lawyer would receive less resistance in Iraq and Afghanistan than a member of the military would,” as one of his attorneys, Army Lt. Col. Chris Callen, explained.

Although al-Iraqi is not accused of murder, Rosenberg noted that he is accused of “classic war crimes punishable by life in prison” — specifically, “targeting medical workers and civilians as well as foreign troops in Afghanistan” — in 2003 and 2004.

He is regarded by the US authorities as being involved with both al-Qaeda and the Taliban, but as Lt. Col. Callen said, “If you would say he’s Taliban, we would argue he’s a lawful combatant.” He added, “It seems at the start of the war they conflated the two,” then adopted a policy of “pick one.”

Al-Iraqi is originally from Mosul, although he has a wife and children in Afghanistan, and his lawyers describe him as “a courteous former non-commissioned officer in the Iraqi Army who handled logistics and administrative functions during the 1980-88 Iran-Iraq war,” who then “fled his homeland for a new life in Afghanistan after Saddam Hussein’s invasion of Kuwait, and before the US-led Operation Desert Storm.”

They added that he hasn’t taken part in hunger strikes, is a pious Muslim, and has read everything in the library in the secretive Camp 7, where the “high-value detainees” are held. They also describe him as “more like a Taliban soldier than a terrorist.”

No conclusion

I hope that the analysis above demonstrates, as did last week’s article on the 9/11 trial, that justice remains elusive at Guantánamo, and will do so until the military commissions are scrapped, and the trials are moved to federal court instead, something that should’ve taken place in 2009. If that had happened, we might have been in a position to have been talking about these trials in the past tense. As it is, every time the court convenes, it most closely resembles Groundhog Day.

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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9 Responses

  1. Andy Worthington says...

    Thanks to everyone liking and sharing this. I realize that a review of the last four months of the military commissions isn’t cutting-edge topical, but I’ve been writing articles about the commissions since June 2007, and I’m not going to give up now. The difference between then and now, honestly, is that it’s often more tiring than it was to keep analyzing and commenting about a system that is so rotten that it shouldn’t exist, under a president who is supposed to understand that, unlike Bush and his criminal accomplices, who thought they were above the law.

  2. arcticredriver says...

    Thanks Andy.

    As I read the portion of this article about the efforts to retrieve whatever documents the CIA hadn’t already destroyed, that provided a written record of the use of torture, I tried to figure out how inadequate that was.

    I am afraid it will be just like My Lai, in Vietnam, where one undeniable instance of the mass murder of civilians came to light. But the problems with My Lai is that it was treated like Lieutenant Calley, and his superior, company commander Captain Medina, were not part of a chain of command. From my reading, lesser incidents occurred all the time, with various levels of authorization.

    I think we know, from the case of the “ice man” who died during torture in Abu Ghraib, that the rough and ready torture of prisoners was routine by Navy SEALs, and other members of the USA’s vast Special Forces establishment.

    I am afraid that if every remaining document that describes an incident of torture was made public, we would only be learning about a fraction of one percent of the times torture was used:

    * In his terrific book “In Search of Enemies” former CIA officer John Stockwell described serving in the CIA’s Langley HQ, after a decade or so in the field. He was serving there while several Congressional Committees were publicly investigating the CIA’s role in assassination and other dirty tricks. He described how his superiors were preparing for the possibility that the important yet embarrassing classified files they used every day might be the target of a Congressional subpoena. Yes, destruction of these official files was part of their plan. But first, his superiors were building a whole edifice of “soft files” — files that couldn’t be subpoened because they had no official existence. Snapshots of the embarrassing official files were copied to the soft files, prior to destruction, which would be officially recorded as routine maintenance.

    * A lot of the torture was done by Navy SEALs, Delta Force, Green Berets, they vastly outnumbered the CIA’s unprivileged combatants. The SEAL team who captured the “ice man”, had a special room, just for interrogation, back at their barracks. Chillingly, they called it the “romper room”.

    * In a US military where every GI knew that torture was secretly being used, there was a huge risk that every GI who wanted to be in the special forces would torture captives.

    * I am afraid that a lot of the torture was only nominally for intelligence purposes. There are various indications that GIs at Guantanamo saw themselves as unofficial vengeance extracters, and that unofficial but tacitly sanctioned abuse tantamount to torture went on all the time.

  3. arcticredriver says...

    Pohl sounds like an odd character.
    Some of the individuals in the pool of potential Presiding Officers are still active duty officers.
    The excellent Peter Brownback, who was the first Presiding Officer, was appointed when he was already retired from active duty. His boss, the first Convening Authority, was also a retired officer. Several of the judges on the Court of Military Commission Review are retired officers. Perhaps it was intended that all the Presiding Officers should be retired officers.

    But, in the event, the pool ended up containing more active duty officers than retired officers.

    Pohl is a retired officer. When he was appointed the senior Presiding Officer in the pool, the choice of which member of the pool would preside over which case fell to him. I don’t understand why his choice didn’t trigger any comments. He assigned all the cases to his roster, and didn’t give any to any of the other officers. The retired officers in the pool are only paid when they are working presiding on a case. So, he basically sucked in every dollar being paid to the Presiding Officers, leaving zero for his colleagues.

    That seemed like behaviour suggesting an alarming amount of moral flexibility for a judge.

    Spath seems to be still on active duty. Here is his biography.

    I wonder how long Pohl will be allowed to hold his position? He has held it for 3 or 4 years now. The KSM trial could, conceivably, drag on another decade. Since they relied on the Chief Presiding Officer in the pool to fire earlier Presiding Officers, maybe they don’t have a convenient mechanism for firing him.

    Maybe, in theory, the “Convening Authority” can fire him. But, last time I looked, the Military Commissions were functioning on a temporary, interim “Convening Authority”.

    Pohl seemed untouched by the CIA’s dirty tricks – until he learned those dirty tricks extended right into bugging his courtroom. I’ll bet the harder line he is taking on CIA dirty tricks dates back to learning their dirty tricks extended into his court room.

  4. arcticredriver says...

    The Military Commissions are so weird. Does any other nation use anything similar?

    Because, from my reading of the Geneva Conventions, even if the USA had made limited use of them in the Nineteenth Century, when the USA became a signatory to the Third Geneva Conventions it had an obligation to send the entire notion of a military commission into well-deserved retirement.

    I think the Third Geneva Conventions are pretty clear — in order to be fair signatories who hold captives they suspect of committing war crimes, are allowed to try them — provided they use essentially the same courts, the same laws, the same procedures and standards of evidence, as they would use if one of their own soldiers was suspected of committing a war crime.

    Some GIs did commit war crimes, and some of those who committed war crimes did face charges. Sadly, it looks like Private Manning, who did not commit any war crimes, whose crimes were really in the public’s best interests, will end up serving more time than all the USA’s genuine war criminals put together.

  5. Andy Worthington says...

    Thanks, arcticredriver, for your thoughts about how the CIA has historically hidden incriminating information about its activities. I always get the chills when I hear about My Lai, I must admit: http://news.bbc.co.uk/1/hi/world/asia-pacific/64344.stm
    Oddly, however, I do think that a lot of the crimes committed in the “war on terror” are quite well-documented – in the still-unreleased Senate Intelligence Committee’s torture report, for example – although obviously not everything has been preserved. For confirmation of that, we have the 92 videotapes of the torture of a handful of “high-value detainees” (primarily, Abu Zubaydah) that were destroyed: http://www.bbc.co.uk/news/world-us-canada-17990955
    Mention of the ice man in Abu Ghraib (Manadel al-Jamadi) always reminds me of Jane Mayer’s excellent New Yorker article from November 2005, “A Deadly Interrogation,” with its chilling tagline, “Can the C.I.A. legally kill a prisoner?” http://www.newyorker.com/archive/2005/11/14/051114fa_fact?currentPage=all
    Oh, and also, as we have discussed before, you know I agree that vengeance has been a major motivation in the “war on terror,” and continues to be, in, for example, the hysteria of those who want to keep Guantanamo open.

  6. Andy Worthington says...

    Thanks, arcticredriver, for the comments about Judge Pohl.
    I absolutely agree about how his actions seem to be driven by his indignation that someone – presumably the CIA – was bugging his courtroom.
    I wonder if he took all the cases for himself – not that there were many – because he had a sense of the historic importance of the cases, and wanted all the involvement for himself.
    I was going to mention how he wanted the “glory” for himself, but I don’t think any is possible in the 9/11 trial or the other trials, although I believe it’s appropriate in the case of Col. Brownback, who you also mentioned, who was dismissed from the military commissions in 2008 after disrupting the commissions in 2007, along with Col. Keith Allred, the trial judge in the case of Salim Hamdan, who made his mark on that trial by making sure that time already served was taken into account in Hamdan’s five and a half year sentence so that he only served five months.

  7. Andy Worthington says...

    Thanks again, arcticredriver. “So weird” is a very good description of the commissions, and you raise a valid question about whether any other country uses them, to which I strongly suspect the answer is no, for the reason you mention – that countries who obey the Geneva Conventions are required to use courts-martial on foreigners accused of war crimes, as they would do for one of their own.
    Countries who aren’t interested in the Geneva Conventions, of course, have a long history of all kinds of kangaroo courts – and it is to that ignoble tradition that the military commissions belong.

  8. arcticredriver says...

    I’d like to read an interview with Colonel Brownback. His dismissal of Khadr’s case, due to a lack of jurisdiction, triggered a lot of anger against him. But it showed a caution that if it had been applied by all his colleagues, may have prevented the laying of questionable charges for crimes that weren’t on the books at the time they were committed.

    I am curious, and would like to know, whether Brownback only dismissed the charges due to a lack of jurisdiction so that, if the charges went to court, and Khadr was convicted, the conviction wouldn’t be overturned due to a lack of jurisdiction.

    Appeals courts have overturned some of the convictions of “material support for terrorism”. Presumably they will eventually overturn the convictions of everyone judged guilty of that charge. I think that would leave Omar Khadr and the fellow who didn’t plead guilty, but instructed his lawyer not to offer any defense, as the only suspects whose guilty plea wasn’t overturned. And Omar’s conviction, and the other guy’s conviction, may still be overturned on similar arguments.

    I think it is quite possible that giving the appearance that there was some kind of progress in trying some of the Guantanamo captives meant that key figures simply didn’t care if the charges were bogus, the courts were bogus, and were likely to be overturned on that account — just so long as they got the short term political gain, for laying the charges, convening a trial, securing a conviction. They may cynically have concluded that if or when the bogus convictions were overturned, they would have retired, or moved on to some other job — and someone else would have to clean up after their mess.

    That Brownback was in the position to dismiss the charges revealed enormous problems with how the Military Commissions Act of 2006 was drafted, and passed.

    As National legislatures go, the US Congress is a legislature rich in resources. Senators and Congressional Representatives each have budgets for staff, who should be intelligent, well-informed people, who do research for them, so, when they put forward opinions, they are intelligent, well-informed opinions. Each of their committees has staff, who should also be intelligent, well-informed people. They have an office of Congressional Research, that publishes papers, to brief the Senators and Congressional Reps. The staff there write good thoughtful balanced papers.

    All of this prodigious support should have meant that, when the MCA 2006 was passed it shouldn’t contain a fatal flaw in a key part. Yes, flaws in the footnotes, or buried deep within a long piece of legislation aren’t surprising. But Congress passed a piece of legislation with a key error.

    The MCA authorized the trial by Military Commission of “UNLAWFUL enemy combatants”, when the CSR Tribunals had recommended that the captives were mere “enemy combatants”.

    In CSR Tribunal after CSR Tribunal captives pleaded that they were innocent, only to be told by the officers sitting in judgment that the CSRTs were “administrative” proceedings, not authorized to make recommendations as to whether their conduct was “lawful” or “unlawful”.

    It seems to me the only way US legislators could have allowed this key misconception to remain in the version of the law they passed is if none of them ever really bothered to inform themselves as to who the captives were, and the nature of the determination as to why they should remain in US custody.

    The CSR Tribunals bore only a surface resemblance to the Tribunals described in Army Regulation 190-8. As a signatory to the Geneva Convention the USA was obliged to convene a “competent tribunal” before it stripped any captive of the protection against charges that any POW has, because the USA’s signature to the Geneva Conventions was a promise that it would treat all captives as if they were entitled to POW status until it was determined they weren’t entitled to POW status.

    The Geneva Conventions says a “competent tribunal” is what signatories use to determine the status of captives when there was a question of whether they were entitled to the protections of POW status. But the Conventions don’t offer any details as to how those competent tribunals should operate. Army Regulation 190-8 is detailed. Its main purpose seems to be to lay out, for US military personnel, how to treat captives in a way that complies with the Geneva Conventions.

    AR-190-8 lays out, in detail, how Tribunals should function. On the surface the CSR Tribunals strongly resemble Tribunals described in AR-190-8, with one officer assembling a list of arguments, and formally presenting them to a panel of three field grade officers, who made the determination.

    The one key difference, the difference that totally transformed them from being Geneva-Convention compliant, was their mandate.

    Embodied in AR-190-8 is a definition of combatant that was completely compliant with the Geneva Conventions. The officers on an AR-190-8 Tribunal had three choices. One of the habeas submissions noted that during the 1991 Gulf War, the last time AR-190-8 Tribunals had been convened, something like 1,300 captives had their status confirmed by an AR-190-8 Tribunal, and those Tribunals had determined that something like 400 of those captives met the criteria for POW status, and that those captives remained in custody. The other 900 captives however, the Tribunals determined were innocent civilian bystanders, who were promptly released. The 1991 Tribunals could have made the determination there was enough evidence to say a captive was a combatant who had not complied with the Geneva Conventions, so he could then have the protections legitimate POWs have against prosecution stripped from him, so he could then face war crimes charges.

    In spite of the young girl who claimed to be a nurse asserting Iraqis had thrown premature babies out of their incubators, the 1991 Tribunals did not find any Iraqi captives had violated the Geneva Conventions, so there were no war crimes trials.

    The officers on a CSR Tribunal had only two choices. They could only confirm or refute whether earlier, undocumented procedures had correctly determined whether captives were “enemy combatants” — where “enemy combatant”, during the Bush administration, was a shockingly broad definition, at odds with the Geneva Convention, at odds with any kind of judicial fairness, and at odds with common sense.

    The officers on a CSR Tribunal were not authorized to determine whether someone had been an innocent civilian bystander, when captured. They were not authorized to determine whether or not the captive had violated the “laws of war”.

    Under the Geneva Convention definition of combatant an individual who is a member of their nation’s armed forces, or reasonable equivalent, when captured, is considered a combatant. But veterans aren’t. Even heroic veterans, who win their nation’s equivalent of the Victoria Cross, are considered civilians once they are discharged — according to the Geneva Conventions.

    But in CSR Tribunal allegation memo after memo the captives are characterized as meeting the definition of “enemy combatant” merely for being veterans of earlier conflicts. Other captives were characterized as meeting the definition of “enemy combatant” because they were involuntarily conscripted, during peacetime, and went through basic training, and a year or so in uniform, back in their home countries. If I recall correctly half a dozen or more captives had military service during the 1991 Gulf War characterized as an argument making them meet the Bush definition of an “enemy combatant” — even though they served on our side during that war.

    One thing the failure to use the established, tested, AR-190-8 Tribunals, and the established, tested AR-190-8 definition of “combatant” meant was that, even though their CSR Tribunal determined they were “enemy combatants” a very large fraction of the Guantanamo captives would have been determined to have been innocent civilian bystanders, and let go. The other thing, of course, is that most of the rest of the captives would have qualified for the protections of POW status.

    In 2007 the DoD published the dossiers prepared for the first 179 captives to be allowed to file habeas petitions. Key documents, like the discussion of the classified evidence, were not published. But the brief summary of the conclusions of their CSR Tribunals stated that for 178 of those 179 determinations the panels relied on classified evidence. There have been strong clues, all along, that in the classified allegations were arguments that tacitly acknowledged individuals were innocent bystanders themselves, who, nevertheless, would possess “mosaic” information about other suspects, and that these individuals could be determined to be “enemy combatants” merely so they could serve as witnesses against other individuals suspected of being genuinely guilty.

    I think US legislators had an obligation to understand how far short being determined to have been an “enemy combatant” fell from a competent tribunal determination, like an AR-190-8 tribunal determination that a captive was not protected from prosecution by the Geneva Conventions.

  9. Andy Worthington says...

    Thanks, arcticredriver, for your thoughts on Col. Brownback and the commissions, and your analysis of the shortcomings of the Combatant Status Review Tribunals (CSRTs) compared to what are often identified as “competent tribunals” (the AR-190-8 Tribunals).
    A few thoughts in response:
    1) I’m sure Col. Brownback was primarily responding to the problem he identified in the wording in the legislation, although behind that may have been a recognition that the commissions were a fundamentally broken system.
    2) I too would like to see an interview with Col. Brownback. Since my days in communication with David Frakt and Darrel Vandeveld, I’ve occasionally thought that one day I’d love to write a definitive history of the commissions, based on interviews with as many of the people involved as possible. Maybe one day, but first the commissions need to be shut down.
    3) After last week’s appeals court ruling in al-Bahlul (which I haven’t yet written about), I think it’s clear that material support is discredited for good – although to be honest that was already clear from the Hamdan appeal in October 2012: http://www.andyworthington.co.uk/2012/11/10/conservative-judges-demolish-the-false-legitimacy-of-guantanamos-terror-trials/
    It was al-Bahlul, btw, who refused to mount a defense and was given a life sentence in November 2008.
    4) Yes, lawmakers clearly weren’t interested in the details of the legislation they were passing with the Military Commissions Act of 2006 – and that was at least in part because they weren’t interested in finding out who was actually being held at Guantanamo.
    5) I had not considered before that the so-called classified evidence in the CSRTs might have been allegations made by prisoners about other prisoners, which fitted the insane “mosaic” theory that was one of the main drivers of the “war on terror” detention policy, and that,to my mind, could have led to almost unlimited numbers of Muslims being held.

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Andy Worthington

Investigative journalist, author, filmmaker, photographer and Guantanamo expert
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