For some prisoners held in the “war on terror” prison at Guantánamo Bay, it seems there really is no way out. One example would seem to be Ali Hamza al-Bahlul, a 45-year old Yemeni prisoner and a propagandist for al-Qaeda, who made a promotional video glorifying the attack on the USS Cole in October 2000, in which 17 US soldiers died, and who received a life sentence for providing material support for terrorism, conspiring with al-Qaeda and soliciting murder after a one-sided military commission trial in the dying days of the Bush administration.
Al-Bahlul has been held in solitary confinement ever since — on what is known as “Convicts’ Corridor,” according to Carol Rosenberg of the Miami Herald, even though, since January 2013, he has had every part of his conviction overturned in the US courts — most recently in a ruling by the appeals court in Washington D.C. (the D.C. Circuit Court) on June 12.
In January 2013, a three-judge panel in the D.C. Circuit Court overturned the material support and solicitation convictions, on the basis that the charges of which he was convicted were not recognized as war crimes at the time he was accused of committing them; or, to put it another way, that they had been invented as war crimes by Congress. That ruling drew on a ground-breaking ruling by the D.C. Circuit Court three months earlier, overturning the material support conviction against another man, Salim Hamdan, a driver for Osama bin Laden who was freed in December 2008. The decision in al-Bahlul’s case was confirmed by a full panel of judges in July 2014, and the judges last month overturned the conspiracy conviction — on the basis that conspiracy is not a crime under the international law of war.
I didn’t have time to write about that ruling at the time, but it was a huge blow — another huge blow — to the tattered credibility of the military commissions. Only eight convictions have been secured since the commissions were first revived by the Bush administration in November 2001. The commissions were ruled illegal by the Supreme Court in June 2006, but were revived again by Congress later that year, and revived again under President Obama in 2009, although they should never have been revived at all, as they are, simply, not fit for purpose.
Rosenberg first wrote about “Convicts’ Corridor” — a block in Camp 5 — in February 2011, when four men convicted in the military commissions were held: the former child prisoner Omar Khadr, a Canadian citizen, and Ibrahim al-Qosi and Noor Uthman Muhammed, from Sudan. Al-Qosi was repatriated in July 2012, Khadr in September 2012, and Noor Uthman Muhammed in December 2013, following the terms of their plea deals.
Back in February 2011, military defense lawyers said that “Convicts’ Corridor” was “especially austere” and that their clients were “doing hard time reminiscent of Guantánamo’s early years when interrogators isolated captives of interest.” The military disputed that. Carol Rosenberg noted that, although each man spent “12 or more hours a day locked behind a steel door inside a 12-by-8-foot cell equipped with a bed, a sink and a toilet,” they got “up to eight hours off the cellblock in an open-air recreation yard,” and “[i]f recreation time coincide[d] with one of Islam’s five times daily calls to prayer, the convicts [could] pray together. If it coincide[d] with meal time, they [could] eat together.”
For the last 20 months, however, al-Bahlul has been completely alone.
Army Col. David Heath, the commander of the Joint Detention Group, who is in charge of the guard force, told Carol Rosenberg last week that, “absent a specific order to change the status of Ali Hamza al-Bahlul, [he] remains a convict,” unlike the 115 other prisoners who are described as “detainees,” including, as Rosenberg also noted, “the six former CIA captives who await death-penalty trials by military commission and two who have provisionally pleaded guilty but not been sentenced.”
As Rosenberg also noted, Col. Heath said that al-Bahlul, who is “considered a compliant convict,” remains on “Convicts’ Corridor” because he “has received no specific order from his military chain-of-command to move him. If so ordered, Heath said, he would then consult with the captive to see whether he was interested in joining other medium-security, cooperative captives in a communal cellblock.”
As Col. Heath put it, “If he reverted to detainee status, given his compliancy level, he would be entitled to communal.” It is not known, however, if al-Bahlul would wish to move, even if he is given the opportunity to do so, although, if he did, he would be the first convicted prisoner to do so. However, Rosenberg noted that, according to military commanders at the prison, “[a]n undisclosed number of other compliant captives voluntarily live in solitary cells … rather than join the majority living in groups of a dozen or more who pray, eat, watch TV and play some sports together with the exception of two hours of daily lockdown in individual cell situations.”
While we wait to see if al-Bahlul’s status changes, or if the Obama administration will yet again appeal, either to a full panel in the D.C. Circuit Court, or to the Supreme Court, I’m cross-posting below the editorial published in the New York Times following al-Bahlul’s third and hugely significant court victory — and below that are my thoughts on the military’s rather ludicrous claims that seven men — in addition to the seven “high-value detainees” currently involved in extensive, and seemingly endless pre-trial hearings — might still be prosecuted, when a sober analysis of the situation would, instead, indicate that no one else will be charged.
In 2008, Ali al-Bahlul, a propagandist for Al-Qaeda who has been held at Guantánamo Bay, Cuba, since early 2002, was convicted by the military tribunal there and sentenced to life in prison. But officials had no evidence that Mr. Bahlul was involved in any war crimes, so they charged him instead with domestic crimes, including conspiracy and material support of terrorism.
Last Friday, a panel of the federal appeals court in Washington, D.C., reversed Mr. Bahlul’s conspiracy conviction because, it said, the Constitution only permits military tribunals to handle prosecutions of war crimes, like intentionally targeting civilians. (The court previously threw out the other charges on narrower grounds.)
The 2-1 decision, by Circuit Judge Judith Rogers, was a major rebuke to the government’s persistent and misguided reliance on the tribunals, which operate in a legal no man’s land, unconstrained by standard constitutional guarantees and rules of evidence that define the functioning of the nation’s civilian courts.
Of course, that was the whole point of the tribunals, as their architects in the Bush administration saw it: they held out the promise of relatively quick trials and easy convictions, beyond the reach of the Constitution and the scrutiny of the American public. But it didn’t work out that way. As with Mr. Bahlul, most of the prisoners at Guantánamo could not be linked to specific attacks. So in 2006 and 2009, Congress gave the tribunals the authority to try certain domestic crimes, even though legal scholars had repeatedly warned that this was an unconstitutional transfer of jurisdiction away from the federal courts.
The appellate panel’s majority agreed. If the government were to prevail, Judge David Tatel wrote in concurrence, “Congress would have virtually unlimited authority to bring any crime within the jurisdiction of military commissions — even theft or murder — so long as it related in some way to an ongoing war or the armed forces.”
America’s civilian courts are not just the constitutionally proper place to try federal crimes, Judge Tatel added, they are very good at it. “Federal courts hand down thousands of conspiracy convictions each year, on everything from gun-running to financial fraud to, most important here, terrorism.”
In fact, federal prosecutors have won almost 200 “jihadist-related” terrorism and national-security cases since Sept. 11, Judge Tatel pointed out. Most of these involved conspiracy charges — including the case against the potential 20th hijacker, Zacarias Moussaoui. Meanwhile, the commissions have resulted in only eight convictions, despite charges against about 200 detainees — and all but one of those convictions were based on charges that are not war crimes. The commissions’ former chief prosecutor called this record a “litany of failure.”
In other words, while the commissions continue to stumble, the federal courts are more than capable of handling the prosecution of people like Mr. Bahlul without hiding from the mandates of the Constitution. And the tribunals may still try detainees for war crimes, as they are continuing to do with the five men charged with orchestrating the 9/11 attacks.
The Obama administration, which has also fought to allow the tribunals to try conspiracy cases, could still ask the full appeals court to reconsider the panel’s ruling, or it could appeal directly to the Supreme Court. Either route would be a mistake.
The Guantánamo Bay detention center still holds 116 men 13 years after it was opened, nearly half of whom have long been cleared for release, and each of whom costs Americans about $2.7 million a year to imprison. It is a legal and constitutional black hole that dishonors principles of justice and due process. Mr. Obama promised to close it the moment he became president, but Congress has stubbornly refused to let that happen. Now, after last week’s ruling, almost no one remains who can be prosecuted by the military tribunals at Guantánamo.
Despite the likelihood that al-Bahlul would win his appeal against his conspiracy charge, making it probable that the only trials that can continue are those of the alleged 9/11 co-conspirators (Khalid Sheikh Mohammed and four others) and of Abd al-Rahim al-Nashiri, the Miami Herald reported that, in March, Pentagon officials were still hoping to prosecute another seven of the men still held, even though, of the eight convictions to date, four have now been overturned — in the cases of Salim Hamdan, Noor Uthman Muhammed and David Hicks, as well as al-Bahlul. In addition, Omar Khadr is challenging his 2010 conviction, and of the other three convictions, two of the men in question — Majid Khan and Ahmed al-Darbi — are still at Guantánamo, and their sentences are dependent on their cooperation.
The Miami Herald article noted that “[t]he long-range vision for trials through 2019 was included in a 362-page release of internal discussions surrounding a since abandoned plan to base judges permanently” at Guantánamo — a plan that went down with the judges like a lead balloon. Prosecutors had tried to keep the documents secret, but a judge, Air Force Col. Vance Spath, “reviewed them and ruled they could be released.”
The names of six prisoners featured on a chart dated October 31, 2014 include the “high value detainees” Mohd Farik bin Amin and Bashir bin Lap (aka Mohammed bin Lep), Malaysians who were captured in Bangkok in 2003 and held in CIA “black sites.” They are alleged accomplices of Hambali (Riduan Isomuddin — or Isamuddin), who was added as a seventh name in November after Army Brig. Gen. Mark Martins, the chief war crimes prosecutor, conceded in a memo that he had been “inadvertently omitted” from the list.
However, revelations in the executive summary of the Senate Intelligence Committee’s report into the CIA torture program, released in December, may well have derailed the plans. As the Miami Herald noted, “Agents stripped, shackled and deprived Hambali of sleep to soften him up for his 2003 interrogations, according to a public portion of the report, and an interrogator subsequently told him he would never have his day in court because ‘we can never let the world know what I have done to you.’”
It was also noted that, after Hambali’s capture in August 2003, President George W. Bush “called him ‘one of the world’s most lethal terrorists’ and said that he was ‘suspected of planning major terrorist operations’ — notably an al-Qaida affiliate’s 2002 bombing of a nightclub in the Indonesian resort of Bali that killed 202 people.” However, the Senate report quoted a CIA cable from November 2003, which stated, “Hambali’s role in al-Qaida terrorist activity was more limited than the CIA had assessed prior to his capture,” adding that al-Qaida members “thought him incapable of ‘leading an effort to plan, orchestrate and execute complicated operations on his own.'”
The others intended for prosecution are the Yemenis Abdu Ali Sharqawi (aka Sharqawi Abdu Ali al-Haj), an alleged former recruiter of bodyguards for Osama bin Laden, known as “Riyadh the Facilitator,” and Sanad al-Kazimi (aka al-Kazmi), allegedly a bodyguard for bin Laden. However, both men’s torture in secret CIA prisons, before their arrival at Guantánamo in September 2004, was public knowledge even before the executive summary of the torture report was issued – see here and here, for example — which would complicate plans for prosecutions, even if the government’s allegations are trustworthy, something that is by no means certain.
Also listed is Abdul Zahir, an Afghan first charged with attacking civilians in the first incarnation of the military commissions under President Bush, whose case I wrote about here. The charges against him were dropped, and never reinstated when the commissions were revived in 2006 and again in 2009.
The last of the seven, ludicrously, is the Egyptian Tariq al-Sawah, who was approved for release by a Periodic Review Board in February, “suggesting a trial has since been ruled out,” as the Miami Herald politely described it. Al-Sawah had been put forward for a trial in 2008, but the charges had been dropped, and it was always a ridiculous proposal, as he has apparently been one of the most productive informants in the prison, and it is, frankly, insane to suggest that informants should be prosecuted for their efforts.
In Guantánamo, however, as anyone playing close attention realizes, the insane can — and often is — re-imagined as sensible policy. In the real world, however, all the latest news has done is to make it clearer than ever that the military commissions at Guantánamo should be scrapped, and those who can be tried should be moved to the US mainland to face federal court trials — while everyone else is released.
POSTSCRIPT July 16, 2015: For anyone keeping count, the military commission conviction still stands in the case of the only other prisoner convicted, Ibrahim al-Qosi, a Sudanese cook who agreed to a plea deal in July 2010 stating that he provided material support for terrorism and was guilty of conspiracy, and was freed in July 2012. Although it has now been very clearly established by the courts that material support and conspiracy are not war crimes, al-Qosi’s conviction stands because, in April 2014, as Steve Vladeck explained for Just Security, the Court of Military Commission Review denied an application by his appointed appellate defense counsel, Navy Capt. Mary McCormick, for “funding from the Department of Defense that would allow her to travel to Sudan with an interpreter to seek out and meet with Al-Qosi so that she could consult with him, and he could make an informed decision on whether he wanted her to represent him and whether she should challenge his military commission conviction,” on the (in my view, rather circular) ground that the CMCR could find no evidence that McCormick and al-Qosi had an attorney-client relationship — notwithstanding the fact that McCormick had been appointed by the military commissions’ Chief Defense Counsel as al-Qosi’s appellate defense counsel.” Vladeck added, “Because al-Qosi is (so far as we know) in Sudan, and because the government has not provided McCormick with the relief she sought from the CMCR — an opportunity to travel to Sudan to obtain his permission to pursue an appeal of the conspiracy and material support charges to which he pleaded (both of which are now vulnerable in light of al-Bahlul) — there’s no way to prove his assent to such an appeal. I would’ve thought the burden should be on the government to prove the contrary, but the CMCR concluded otherwise” — and Vladeck’s article was written because, on the day he wrote it, May 1, 2015, “the D.C. Circuit held that it lacked jurisdiction to disturb that analysis,” via a two-page ruling here.
Andy Worthington is a freelance investigative journalist, activist, author, photographer, film-maker and singer-songwriter (the lead singer and main songwriter for the London-based band The Four Fathers, whose debut album, ‘Love and War,’ was released in July 2015). He is the co-founder of the Close Guantánamo campaign, the co-director of We Stand With Shaker, calling for the immediate release from Guantánamo of Shaker Aamer, the last British resident in the prison, and the author of The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison (published by Pluto Press, distributed by the University of Chicago Press in the US, and available from Amazon, including a Kindle edition — 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).
To receive new articles in your inbox, please subscribe to Andy’s RSS feed — and he can also be found on Facebook (and here), Twitter, Flickr and YouTube. Also see the six-part definitive Guantánamo prisoner list, and The Complete Guantánamo Files, an ongoing, 70-part, million-word series drawing on files released by WikiLeaks in April 2011. Also see the definitive Guantánamo habeas list, the full military commissions list, and the chronological list of all Andy’s articles.
On Facebook, Sanchez Montebello wrote:
This poor man. And… Most U.S. Citizens know nothing about his
plight, or the abuse he has been given in the name of the United States Empire…. DAMN!!!!!!!!
Thanks, Sanchez. It’s interesting, because he’s someone who was involved with al-Qaeda – unlike so many of the prisoners – but that’s no excuse for inventing war crimes and pretending that’s OK, or for holding him in solitary confinement for the last two and a half years despite his court victories. One way or another, everyone held at Guantanamo is mistreated, abused or otherwise wronged. Time to shut it down!
Asif Rana wrote:
Met Moazzam Begg the other evening. Was amazing to make a direct connection with Guantanamo like that. I hope that some day I can meet more of the detainees from there – over here of course!
Good to hear from you, Asif. It’s shocking, of course, that it’s ten and a half years since Moazzam was freed, and it felt like he was held for such a long time, and yet 116 prisoners are still held and many have been held now for 13 and a half years, even though very few of those 116 had anything to do with al-Qaeda and international terrorism and 52 of them have been approved for release – most since 2009, including Shaker Aamer. And all, basically, because the Bush administration wouldn’t listen to anyone who tried to tell them what not to do in the heat of vengeance.
Asif Rana wrote:
Completely agree with you Andy. How and when will this end?
I’m not sure, Asif. I know there’s a desire in parts of the Obama administration to get Guantanamo closed before the end of Obama’s presidency, but I also recognise that it’s politically difficult. It’s part of the reason why myself and other campaigners have been pushing for years for those approved for release to be freed, as that’s a straightforward issue.
I also think the establishment of the Periodic Review Boards in 2013, to review the cases of the majority of those not cleared for release, is useful, although it’s moving far too slowly. However, it’s the only method whereby those regarded as potentially more problematic can be approved for release in a politically acceptable manner.
The biggest problem for the US government is to accept that everyone must be freed except those who are to be put on trial – and al-Bahlul is a good example, as they obviously don’t want to free him, because, at some level, he remains an enemy of the US. But, you know, at the end of a war, you should release your enemies, and I think there is no case for holding anyone any longer except KSM and a few others who should be put on trial for their alleged crimes; namely, acts of international terrorism.
Asif Rana wrote:
You are far more pragmatic than I am about it Andy, perhaps understandably so. Surely just for the reason of common decency and to stop being the biggest hypocrites in the World, they would just release them.
Of course, the extreme right wing, almost maniacal, hawkish mentality, that has seemingly gripped the US for years now would fall apart.
Surely that’s a good thing?
Your approach to it all is refreshingly straightforward, to be honest, Asif. My analysis is based on the political realities as they’ve unfolded – or not – over the last six and a half years under Obama, who failed to follow through on his promise to close Guantanamo and allowed opportunistic Republicans to control the message with breathtaking cynicism. I know what should be done, but I also know, sadly, that it’s just not going to happen. I can only hope that he releases the 52 men approved for release asap and then decides to find ways to move everyone else to the US mainland so the symbol of Guantanamo can be shut – although that, of course, would leave a number of them imprisoned, though on US soil rather than on Cuba, where some of us think they would have more rights – although not everyone agrees.
Just releasing everyone except the handful of men accused of international terrorism would be so much more elegant and appropriate, wouldn’t it?
Zareen Taj wrote:
I hope at least that Ali Hamza knows that we know he should be free. Thanks for the article Andy.
Yes, I hope so too, Zareen, although even if what I hear about him is true – that he simply refuses to accept the legitimacy of anything the US has come up with in its “war on terror” (which is quite sensible considering how laws and treaties have been butchered since 9/11) – I hope he understands that some of us believe that laws and principles are necessary to protect us from tyranny.
I’ve read some of the arguments, from legal critics, as to why the military commissions suck, with which I whole-heartedly agree, and their followup arguments as to why those Guantanamo captives who might genuinely be guilty should be charged in the civilian justice system… Well, they argued that the civilian system is fair, while the Guantanamo system isn’t, and that the civilian system would be better at succeeding at getting convictions.
I don’t want to see the civilian system be better at succeeding in getting convictions. If the civilian system is used, I want to see it be better, far better, at getting truly fair and just outcomes — even if that results in acquitting men we don’t like, because of who we think they knew, or because of views we think they held then, or hold now — when there is no evidence they committed a crime.
While I have only followed a limited cross-sections of cases, I think we can all name some which seemed terribly unfair. The trials of Americans John Walker Lindh, and Jose Padilla, don’t bear close scrutiny. Neither does the trial or sentence of Dr Aafia Siddiqui.
Dr Aafia’s case is particularly heartbreaking, as she was once smart enough to earn a PhD, and now, sadly, her mental health seems to be completely and irretrievably broken.
Dr Aafia’s case is particularly heartbreaking, as it seems quite possible to me, from the limited information that has been made public, that she might have been completely innocent of any meaningful tie to terrorism, when she was first taken into custody.
Thanks, arcticredriver. Yes, I agree about the need to see justice being done, not to guarantee convictions; otherwise, we might as well be back with Moe Davis when Jim Haynes told him there could be no acquittals. For Moe, that was when the worm began to turn, resulting in his resignation as chief prosecutor and his return to the light, but now, as you note, we have people talking in a way that ought to remind us of Jim Haynes’ outrageous position on guilt and innocence.
It’s always worth remembering John Walker Lindh, Jose Padilla and Aafia Siddiqui, who was recently mentioned on Facebook, with support sought for Eid cards for her: https://www.facebook.com/mahfujaahmed/posts/10155838674945084?pnref=story
My favourite line of yours is the following, though: “If the civilian system is used, I want to see it be better, far better, at getting truly fair and just outcomes — even if that results in acquitting men we don’t like, because of who we think they knew, or because of views we think they held then, or hold now — when there is no evidence they committed a crime.”
That’s true of so many of the men held in this disgraceful “war on terror,” some of whom are still at Guantanamo when there is, frankly, no excuse for holding them a day longer.
Ibrahim Qosi is now in Yemen and has returned to terrorism as a new leader of Al-Qaeda in the Arabian Peninsula. He fled Sudan in 2014.
Looks like his conviction won’t be overturned now.
I was surprised by this, Martin, but then again, he actually had links to al-Qaeda, although he seemed insignificant.
The problem, it seems to me, is how this will be seized upon by supporters of Guantanamo as a reason to keep it open forever, when that’s simply not acceptable.
[…] been recommended for prosecution by the task force — until the basis for prosecution fell apart under scrutiny by appeals court judges, who concluded that the war crimes trials taking place at Guantánamo (the military commissions) […]
Investigative journalist, author, campaigner, commentator and public speaker. Recognized as an authority on Guantánamo and the “war on terror.” Co-founder, Close Guantánamo, co-director, We Stand With Shaker. Also, singer and songwriter (The Four Fathers) and photographer.
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