Not Fit for Purpose: The Ongoing Failure of Guantánamo’s Military Commissions

22.9.16

"End Guantanamo commissions: use fair trials" - an Amnesty International supporter outside the White House.

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In the 15 years since the terrorist attacks of September 11, 2001, the United States has systematically undermined many of the key values it claims to uphold as a nation founded on and respecting the rule of law, having embraced torture, indefinite imprisonment without charge or trial, trials of dubious legality and efficacy, and extra-judicial execution.

The Bush administration’s torture program — so devastatingly exposed in the executive summary of the Senate Intelligence Committee’s report into the program, published in December 2014 — no longer exists, but no one has been held accountable for it. In addition, as the psychologist and journalist Jeffrey Kaye has pointed out, although ostensibly outlawed by President Obama in an executive order issued when he took office, the use of torture is permitted, in particular circumstances, in Appendix M of the Army Field Manual.

When it comes to extrajudicial execution, President Obama has led the way, disposing of perceived threats through drone attacks — and although drones were used by President Bush, it is noticeable that their use has increased enormously under Obama. If the rendition, torture and imprisonment of those seized in the “war on terror” declared after the 9/11 attacks raised difficult ethical, moral and legal questions, killing people in drone attacks — even in countries with which the US is not at war, and even if they are US citizens — apparently does not trouble the conscience of the president, or the US establishment as a whole.

As for indefinite imprisonment without charge or trial, and trials of dubious legality and efficacy, both are hallmarks of Guantánamo, and while the prison’s operations are winding down and only 61 men are still held (with 20 of those 61 having also been approved for release), the fate of the remaining 41 men remains of concern.

23 have had their ongoing imprisonment without charge or trial approved in the last few years by Periodic Review Boards (and eight others are awaiting the results of their reviews), but whether they remain at Guantánamo, or whether President Obama, or his successor, succeeds in moving them to the US mainland so that Guantánamo itself can be closed, the basis of their imprisonment remains as troublesome as detentions at Guantánamo have been all along.

If any of these men have allegedly committed crimes (i.e. terrorism), then they should be prosecuted — in federal court, where there is a proven track record of dealing appropriately with those accused of terrorism. If, however, they are soldiers being held off the battlefield, then they should be held in accordance with the Geneva Conventions, and judges should be able to examine whether or not their imprisonment is lawful; in other words, although they can be held until the end of hostilities, is it appropriate to say that hostilities are still ongoing, nearly 15 years after the US-led invasion of Afghanistan began?

For ten other men, trials — or pre-trial charges, at least — have been forthcoming, but in a forum that, as I noted above, involves “trials of dubious legality and efficacy” — specifically, the military commissions that have struggled to establish any legitimacy since they were first revived by Dick Cheney in November 2001. Cheney’s intention, with the support of his senior lawyer, David Addington, was to create kangaroo court trials for “war on terror” prisoners subjected to torture, who could be swiftly and unfairly tried and then imprisoned or executed.

The first version of the commissions limped on until June 2006, when the Supreme Court ruled that the entire trial system 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.” Undeterred, the Bush administration persuaded Congress to revive the trials, and they were revived again under President Obama in 2009, although on both occasions wise voices pointed out (see here and here) that because Congress had invented war crimes that were triable by military commission — instead of allowing men to be prosecuted in federal court, where, for example, the most basic charge, providing material support for terrorism, was actually a crime — any convictions secured were likely to be overturned on appeal.

And this is indeed what has happened. Of just eight convictions secured in the commissions’ long and inglorious history, four have been overturned (of Salim Hamdan, David Hicks, Noor Uthman Muhammed, and Ali Hamza al-Bahlul, who is still held), and the legitimacy of two others (Omar Khadr and Ibrahim al-Qosi) is open to question. The only results that have survived intact, in any meaningful sense, are plea deals negotiated by two men who are still held — Majid Khan and Ahmed al-Darbi.

As I explained in March 2014, when I put together my Full List of Prisoners Charged in the Military Commissions at Guantánamo, Khan “accepted a plea deal on February 29, 2012, in which, in exchange for a guilty plea, he will apparently receive a 19-year sentence, although that will not be delivered until four years after his trial,” and al-Darbi “accepted a plea deal on February 20, 2014, in which, in exchange for a guilty plea, 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.”

Both men’s plea deals were contingent on them providing testimony in other trials, but as is apparent from Khan’s story, he was supposed to be sentenced in February this year, but has not yet testified, because the trials that are still proceeding — for five men charged in connection with the 9/11 attacks, including Khalid Sheikh Mohamed, for Abd al-Rahim al-Nashiri, and for Abd al-Hadi al-Iraqi — appear to be endlessly mired in a pre-trial limbo to which a solution is far from obvious. All were held in CIA “black sites,” and all but al-Iraqi (who arrived at Guantánamo in 2007), were amongst the 14 “high-value detainees” who arrived at Guantánamo in September 2006, when President Bush first conceded publicly that a “black site” program had existed.

And the reason for these seemingly interminable delays? Well, to put it bluntly, the problem is that these men were all subjected to torture, and although much of their story has emerged (not least in the Senate Intelligence Committee report), the government and its prosecutors continue to want all evidence of torture to be suppressed, while the defence lawyers, understandably, insist that trials cannot proceed without torture evidence being produced.

Add to this the fact that the entire commission system — a kind of legal Frankenstein’s Monster — is full of holes that impede the smooth process that could be expected in federal court, and an array of other problems — the defence teams’ persistent problems with securing full discovery of relevant materials, and the tendency of various agencies to try to undermine the entire process, through bugging, spying and destroying evidence, for example, and it becomes apparent that, as I explained in my title for this article, the commissions are not fit for purpose, and should be scrapped and replaced with federal court trials.

In an article to follow, I’ll look at the latest developments in the commissions over the last few weeks — in the case of Abd al-Rahim al-Nashiri, and in the case of Majid Khan, whose sentencing delay can be attributed directly to the glacially slow progress of the entire commission process — but for now, having written little about the commissions for the last two years (since my July 2014 articles, The 9/11 Trial at Guantánamo: The Dark Farce Continues and More Farcical Proceedings at the Military Commissions in Guantánamo — but also see “America’s Shame,” Rolling Stone’s Detailed – and Damning – Article About Guantánamo, from February this year), I intend to catch up on the current situation via a Washington Post article from two weeks ago, “The Guantánamo quagmire: Still no trial in sight for 9/11 suspects,” written by Missy Ryan and published on the 10th anniversary of the arrival of the 14 “high-value detainees” at Guantánamo, which I wrote about here.

The Washington Post’s view of the military commissions

Ryan began by noting how, when George W. Bush announced in September 2006 that 14 “high-value detainees” had arrived at Guantánamo, Col. Morris Davis, the military commissions’ chief prosecutor, “heralded it as a sign of the government’s commitment to attaining justice.” For Davis, as the Post described it, “the end of the suspects’ detention at secret CIA prisons overseas promised a credible legal reckoning in the wake of the Sept. 11, 2001 attacks.”

Speaking to the lawyers on his team, Davis “offer[ed] as a model [for the commissions] the prosecution of Nazi officials that followed World War II,” and said, “I want our grandchildren to look at Guantánamo the way we look back at Nuremberg.” He explained that he an this team “felt we had the ability to conduct these trials in a way that . . . the country would be proud of.”

Ten years later, however, as I also pointed out in my recent article, none of the 14 “high value detainees” have been convicted or sentenced (and Davis resigned in 2007 after he was placed directly in a chain of command under Jim Haynes, the Pentagon’s senior lawyer who approved the use of torture). Proceedings against the five men accused of involvement in the 9/11 attacks and of Abd al-Rahim al-Nashiri are “moving so slowly in preliminary proceedings” that the 9/11 trial “is expected to begin at the earliest in 2020, nearly 20 years after hijacked planes struck the World Trade Center and the Pentagon.”

And yet, in this same period, as Ryan also noted, “hundreds of terrorism suspects have been convicted in federal courts, including members of al-Qaeda captured overseas,” but because Congress “has barred the Obama administration from moving any Guantánamo detainees into the United States, which leaves offshore military commissions as the only legal process available to prosecute them,” and because Obama himself backed down, when faced with criticism, from plans to hold the 9/11 trial in New York (and because, ill-advisedly, he had also revived the commissions at the same time as announcing the 9/11 trial), the broken commission system has been the only venue available for prosecutions of those held at Guantánamo.

As Ryan also noted, with some understatement, the commissions have also been “plagued from the start by detours and scandals, including the legacy of the use of torture against detainees, an FBI attempt to penetrate a defense team and the unexplained censoring of court deliberations, believed to be the work of the CIA,” and while she acknowledged “President Obama’s effort to improve the commissions by giving inmates greater due process,” she also noted that “legal experts and lawyers who have been involved in the trials say the system may be irreparably flawed,” with some lawyers adding that, “even if the cases can be concluded, the process is now seen as so tainted that those verdicts may be publicly dismissed.”

As Richard Kammen, a civilian defense lawyer for Abd al-Rahim al-Nashiri, explained, “The fact that we are here in 2016, probably further from trial than we were in 2011, tells you that this is an experiment that failed.”

Ryan also pointed out how Guantánamo’s location “has been an important factor in slowing the pace of the trials,” explaining:

When lawyers travel to the island for periodic proceedings or client meetings, they must hitch a ride on military planes and stay for several days at a time. When they speak to the detainees, the materials they bring in and out of meetings are closely screened. Despite Pentagon denials, defense lawyers also suspect that communications with their clients continue to be monitored.

Defense lawyers describe a “down the rabbit hole” process in which they lack normal access to evidence, including what their clients said and did during their years-long detentions at extrajudicial prisons overseas, as well as evidence seized during counterterrorism raids.

Legal experts also said, as Ryan put it and as I noted above, that “the untested nature of the commission system, which unlike civilian courts is operating without the benefit of relevant legal precedents to guide it, has slowed the process.” As David Nevin, a civilian defense lawyer for alleged 9/11 architect Khalid Sheikh Mohammed, explained, “We’re 13 years down the road, and you’re just now getting the defendants’ statements to the judge. That’s pretty amazing if you’ve been around the criminal justice system.”

In terms of obstruction, Ryan also mentioned how, earlier this year, “defense lawyers learned that a judge had secretly allowed the prosecution to destroy evidence related to a CIA prison, reversing a previous judge’s order without notifying them.”

That is an extraordinary way of undermining any faith that anyone may have had in the fairness of the system, but it is symptomatic of the fundamental disregard for the norms of justice the has typified the commissions from the very beginning.

As Ryan explained, it also “remains unclear” what material from the Senate Intelligence Committee report, with its references to torture including waterboarding and “rectal rehydration” — the single most shocking piece of new information in the report — will be allowed, and whether “considerations will be made in court for the mistreatment of detainees.” With reference to the case of Abd al-Rahim al-Nashiri, accused of masterminding the attack on the USS Cole in 2000, who “has not received meaningful treatment for the significant psychological and physical effects he has suffered” as a result of his torture, Richard Kammen pointed out that he “is profoundly damaged by what the CIA did to him.”

Missy Ryan also explained how some lawyers say that the commissions have “fundamentally different goals than the civilian courts.” James Connell, one of the attorneys for Ali Abdul Aziz Ali (aka Ali Abd al-Aziz Ali, also known as Ammar al-Baluchi), who is one of the 9/11 defendants, said, crucially, “It is not a justice system in the way we in the US think about it. It is instead a hybrid specialized system that was set up with the purpose of concealing evidence of torture.”

Ryan added that it is “possible that the trials will eventually be dropped, if political leaders decide that they are unfeasible or if moving forward would force the government to disclose information seen as too damaging,” and she spoke to legal experts who say, as I do, that transferring the cases to federal court is the only solution. As she noted, federal courts “have proved that they can handle complex terrorism cases, like that of Boston Marathon bomber Dzhokhar Tsarnaev, who was sentenced to death two years after the crime.”

Stephen Vladeck, a law professor at the University of Texas at Austin, and a former Guantánamo defense lawyer, said, “We’ve lost sight of the basic question, which is: Why are we trying these people? If the answer is to obtain some measure of justice for their heinous acts, the question the next president has to ask is whether it’s more likely … in a federal system or a Guantánamo military commission.” He added, “I think that question answers itself,” the answer being, to reiterate the title of this article once more, that the commissions are not fit for purpose and should be scrapped and the cases moved to federal court.

In the meantime, however, the bleak, broken ballet of the commissions continues.

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’ and EP ‘Fighting Injustice’ are available here to download or on CD via Bandcamp). He is the co-founder of the Close Guantánamo campaign (and the Countdown to Close Guantánamo initiative, launched in January 2016), the co-director of We Stand With Shaker, which called for the release from Guantánamo of Shaker Aamer, the last British resident in the prison (finally freed on October 30, 2015), 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.

Please also consider joining the Close Guantánamo campaign, and, if you appreciate Andy’s work, feel free to make a donation.

11 Responses

  1. Andy Worthington says...

    When I posted this on Facebook, I wrote:

    Here’s my latest article – an overview of the broken military commission trial system at Guantanamo, at which pre-trial hearings have recently resumed, for trials that will not be happening anytime soon. I’ll be focusing extensively on the commissions over the coming months, as the question of who to try and where to try them (in federal court, preferably) is intrinsically tied to the future of Guantanamo, and will need to be addressed by the next president, whoever that may be. For now, however, as I describe it, “the bleak, broken ballet of the commissions continues,” with one side trying to hide torture, and the other seeking to expose it.

  2. Andy Worthington says...

    Thanks to everyone liking and sharing this. Here’s the Huffington Post’s take on the military commissions, published on the 9/11 anniversary, which has interesting graphics about the differences between the success rates of prosecutions for terror-related cases in military commissions and federal court:
    ‘Most Of The 9/11 Plotters Haven’t Been Convicted Or Executed. Blame Gitmo.’
    http://www.huffingtonpost.com/entry/911-terrorists-guantanamo-military-commissions_us_57d308bce4b06a74c9f49858

  3. arcticredriver says...

    Thanks Andy!

    With regard to Majid Khan, my impression is that he may turn out, in the end, to have been a hapless bystander, whose mental health has been substantially damaged. That may be the explanation for his agreement to a plea deal worse than other captives. My recollection is that the delay in sentencing was engineered into his plea deal as a stick to drive him to testify against KSM according to the prosecution’s theories as to KSM’s role.

    Well, an innocent Guantanamo captive, or one who was a peripheral character, who has mentally recanted and denounced any commitment he had to terrorism, has a very strong incentive to make a guilty plea as full of lies as any of the captives undergoing torture. A torture victim will say anything to get the pain to stop. Military commissions are a structurally unfair, and unjust system, and, this makes the rest of us, the general public, less safe, because it leads to resources being squandered on wild goose chases.

    One of the worst aspects of the Guantanamo system is that even if a suspect is able to win an acquittal, on all charges, they can’t count on release. The USA has announced that they may continue to hold individuals, even after being acquitted on all charges. No one has been acquitted, so no one has been held, after being acquitted, so we don’t know where they would appeal such further ongoing detention. Maybe the same cowed habeas courts as the other captives.

    So, just like an individual being tortured has an overpowering incentive to lie, to say anything, to get the pain to stop, individuals who face charges before a Guantanamo military commission have an overpowering incentive to plead guilty to non-existent roles in criminal plots that also may not even have existed.

    I am still shocked by the failure of the Washington Post’s editorial board to understand that Majid Khan’s guilty plea may have been completely worthless. They called his plea, and his anticipated sentencing, “tough, but fair”.

    His twenty years are conditional on his testimony satisfying the prosecution. Presumably, if he doesn’t testify on playing a role that proves KSM’s guilt, or his testimony is unconvincing, or strays from his agreement, he can’t rely on release after all.

    What happens to him if, he tries his best to testify according to the Prosecutor’s narrative, but clever defense attorney’s peel apart the subterfuge, and trick him, or otherwise reduce him, to exposing the Prosecution’s deceit?

    My reading of the public record is that there was no actual independent evidence of Majid Khan playing a role in any plot, other than his guilty plea. So, so far as I am concerned, he may be either completely innocent guy, unlucky enough to have crossed paths with KSM, or a guy who did feel some admiration for him, when they crossed paths, but whose admiration was not exploited to the point of sharing any secrets, or enrolling him in any plans, because KSM either didn’t know whether Khan was a mole, or he just didn’t have any plans that required him.

  4. arcticredriver says...

    Thanks Andy!

    With regard to Ibrahim al-Qosi, there were accounts, from about a year ago, that he had appeared in AQAP videos.

    Much less well publicized is that two or three years ago his military lawyer requested funds, from the Court of Military Commission Review, to travel to Sudan, to contact al Qosi, and inform him that the other individuals convicted of “material support of terrorism”, had had those convictions overturned, as unconstitutional. It was my impression that overturning his conviction would have been trivial, once she got his signature on documents requesting its overturn, based on the precedence of the first overturn.

    The CMCR refused to allocate travel funds, on the technicality that she could not prove she continued to have an attorney-client relationship with al-Qosi.

    Would he have appeared in the AQAP video, if his conviction had been overturned? If he had, to what extent would viewers judge the USA harshly for convicting him, if his conviction had been overturned?

    Do you know anything about al Qosi’s appearance in this video? I am sure AQAP is quite capable of pirating a conventional interview with al Qosi, and re-cutting it to make it appear he was supporting terrorism, even if he wasn’t.

    Without regard to whether he actively supports terrorism I think it was a mistake to withhold the funds that would have enabled his unconstitutional conviction to have been overturned.

  5. Andy Worthington says...

    Thanks for your thoughts about Majid Khan, arcticredriver, and good to hear from you, as always.
    My understanding was that Khan did get embroiled in a plot, and that he regrets having done so, but it’s possible, as you suggest, that it could all be fabricated. Certainly, plea deals as they exist in the federal court system do not encourage genuine confessions; rather, faced with a hugely punitive sentence if found guilty, or, say, 15 or 20 years as a result of a plea deal, many people choose the latter.
    I agree with you that the Washington Post’s comments come across as unnecessarily punitive, but I haven’t looked in depth at what kind of sentencing terror suspects have been getting on the US mainland. Ahmed Khalfan Ghailani, who played a minor part in the 1998 African embassy bombings, and is the only “high-value detainee” transferred to the US mainland for a trial, received a life sentence, but Ali al-Marri, a Qatari-born US resident who made a plea deal in 2009, in which he admitted to being an al-Qaeda sleeper agent (after years of being held and tortured as an “enemy combatant” on the US mainland) was released in January 2015 after spending just over five years in the federal prison system: http://www.pjstar.com/article/20150118/News/150119263
    My feeling is that Khan’s case could be regarded as similar to that of al-Marri, who, in total, spent 14 years imprisoned by the US – not 35, as it seems Khan is being offered, despite his lavish efforts to cooperate. Where, frankly, is the incentive for anyone else to cooperate?

  6. Andy Worthington says...

    Hi arcticredriver,
    I absolutely agree that funds should have been provided for a military lawyer to have been able to visit al-Qosi. Did it contribute to his alleged recidivism? We’ll never know, but surely it can’t have helped.
    I’m inclined to believe that al-Qosi’s video involvement with AQAP is real, but I admit that I haven’t looked at the story closely enough to see if he is anything more than a useful poster boy for AQAP – that’s certainly my suspicion.

  7. arcticredriver says...

    There is a phrase we hear about terrorists, and suspected terrorists — that they should be “brought to justice”. Even Barack Obama has used this term, in contexts where it seems like the utterer really means vengeance, not justice.

    During the early years of the Bush administration legal scholars warned Bush that if he tortured senior al Qaeda members, they could never be tried, because their experience of torture made a fair trial impossible. I think they were correct.

    In theory, the USA prohibits the use of cruel and unusual treatment. While KSM seems to be a firebrand, other Guantanamo captives have been mentally crushed by their treatment in US custody. When McLatchy reporters interviewed 66 former captives it was my impression that about half were deeply clinically depressed, and I suspect there are all at a much higher risk of suicide.

    KSM has been called the “Forrest Gump of terrorism”, because, once they started torturing him into confessing to the roles they believe he played, he confessed to all of them, but then went on, and confessed to playing a role in all kinds of things they had never suspected him of, and to playing a key role in brand new plots, they had never heard of.

    I am afraid that KSM exploited the amateurishness and wild ambition of his interrogators, who failed to do the right kind of sanity checking. Racking up new crimes in the KSM dossier was good for their careers, and they didn’t choose to look to see whether his confessions were credible.

    While Prosecutors may see Majid Khan playing a small role in a KSM plot, a role significant enough that his testimony would provide proof of KSM’s guilt that did not (noticeably) rely on torture, because they claim Khan’s testimony is voluntary, and factual, I can’t help wondering whether they see Khan playing a role in one of those plots that KSM made up, out of whole cloth, just to confound US counter-terrorism efforts.

    KSM confessed to personally beheading US journalist Daniel Pearl. A Pakistani court convicted another individual for that murder, and yet greedy US spokesmen still like to attribute this murder to KSM.

    It reminds me of US interrogator Lewis Welshofer’s cruel and painful killing of the Iraqi General [NOTE: see http://www.washingtonpost.com/wp-dyn/content/article/2006/01/24/AR2006012401544.html ]. Welshofer, and his CIA confederate, were 100 percent convinced the General was holding out, that he knew where weapons had been cached for what Rumsfeld called the “dead-enders” — dedicated Saddam loyalists. The US intelligence establishment was very strongly wedded to the Rumsfeld narrative that all Iraqis were grateful to the USA, except for a very small sliver of Saddam loyalists, who were only effective because Saddam had prepared for defeat, had trained them, and equipped them with secret weapons.

    I don’t think there is any more reason to believe the Prosecution’s narrative around KSM doesn’t contain the same kind of fantasy elements as the theory that justified escalating the torture techniques used on that General.

    I think public safety would be better served if the USA dropped any idea of trying KSM. Is there a legal mechanism for the USA to hold him, if they aren’t going to try him, if the US’s role in the Afghan war is over? I dunno. Is there some other country that could convict him, of something, based on genuine evidence, not tortured confessions? I dunno. If there were, maybe it would be better to transfer him there, and let him be tried?

    What do we tell the surviving family members of 9-11 victims, who want to see KSM, and his confederates, “brought to justice”? I think that is an easy question.

    I think we tell them that we are very sympathetic with their on-going feeling of loss, and their desire to see a trial, but that their can’t be one, based on a decision made by George W. Bush.

    I think we tell them that some of Bush’s advisors told him that KSM couldn’t be tried, if he was tortured, while others said that it was important to torture KSM, at any cost, on the off chance there was an imminent plot that could not be detected by normal methods. We tell them Bush chose to torture, based on National Security fears, after being advised that torture would make a fair trial impossible.

    Does this mean KSM might one day, walk away from US custody, without a sentence?

    FARQ, in South America, is finally in peace talks. I gather that the remaining FARQ fighters are insisting on an amnesty, in return for ending hostilities. When there is an agreement to this kind of amnesty it means accepting killers going without being sentenced, being punished. Governments agree to this kind of amnesty because leaders place a higher value on public safety, than on vengeance.

    Would KSM walk away, with an amnesty, and refrain from re-engaging in terrorism. In his case it seems very unlikely. But I suspect that at least some of his senior lieutenants would behave, if granted an amnesty, and a very modest stipend. One of the high value captives is claiming he has devastating PTSD, and can barely function in his defense. That sounds credible to me.

  8. arcticredriver says...

    I am not really that comfortable when people assert, “we should have transferred all suspects to a civilian court, because civilian courts have been effective at convicting suspected terrorists.”

    I think we are aware of instances where hysteria has lead to very long convictions in US civilian courts that seem unfair. Dr Aafia Siddiqui’s case seemed to be massively infected by hysteria. I remember her attorney’s telling the judge, during a preliminary hearing, a week or two after her transfer to the USA, that blood was leaking from her very serious chest wounds, right in the court-room. I remember her Prosecutor’s very pitiful explanation, when the judge asked about her medical treatment. The Prosecutor confirmed that 40 kilogram, severely wounded, Aafia had not received any medical attention, since she was transferred from the DoD to the DoJ, because she was too dangerous too treat. Of course 200 pound Hells Angels, and other very dangerous captives, do not have medical treatment withheld, because they are dangerous

    Padilla’s lawyers said his torture and other mistreatment had left him so passive that he could not participate in his own defense.

    Chelsea Manning could have been released, with parole conditions that prohibited the use of computers. Surely Manning is well enough known that they could never again leak classified documents, so Manning is not a threat.

  9. Andy Worthington says...

    Hi arcticredriver,
    You raise some very interesting points. I believe you are right to point out that vengeance drove much of the Bush administration’s early actions post-9/11, and not anything to do with justice.
    Also, it was Michael Scheuer, the head of the CIA’s specialized bin Laden unit (in existence since the last 90s) who explained how, once you torture people, you can’t then bring them back into the justice system.
    From Jane Mayer’s excellent 2005 New Yorker article, ‘Outsourcing Torture’
    http://www.newyorker.com/magazine/2005/02/14/outsourcing-torture:

    Since September 11th, as the number of renditions has grown, and hundreds of terrorist suspects have been deposited indefinitely in places like Guantánamo Bay, the shortcomings of this approach [rendering prisoners to other countries for torture, or, indeed, to the CIA’s own “black sites,” although they are not the focus of the article] have become manifest. “Are we going to hold these people forever?” Scheuer asked. “The policymakers hadn’t thought what to do with them, and what would happen when it was found out that we were turning them over to governments that the human-rights world reviled.” Once a detainee’s rights have been violated, he says, “you absolutely can’t” reinstate him into the court system. “You can’t kill him, either,” he added. “All we’ve done is create a nightmare.”

    As for the fantasy versus the reality in KSM’s confessions I agree that it’s difficult to know what the truth is – although I have spoken to people who are convinced that he did murder Daniel Pearl. I think overall, however, when we look at all the HVDs, the problem, as Scheuer and others identified, is that they were tortured, and tortured so specifically and for such a long time that it’s difficult to see how that can be reconciled with any sort of fair trial. Khan’s testimony, I think, is regarded as important because, although the US sent in so-called non-CIA “clean teams” to secure confessions from the HVDs at Guantanamo that could be used in court, they may have ended up concluding that these confessions would also be challenged, and that having witnesses like Khan is the best way forward.
    I don’t think KSM and some of the other HVDs will ever be released; the question is whether, at some point, the US can come up with a way of trying them that has any legitimacy. Personally, I reluctantly concluded, many years ago, that transferring them into the federal court system is the only way to bring this disgraceful episode in US history to an end. Given the Islamophobic bent of US juries in general, it isn’t difficult to see a jury convicting on very little actual evidence. For what it’s worth, I think that everyone would know that the results would be tainted, so dropping the death sentence and replacing it with life imprisonment would prevent any of the men subsequently being used for martyrdom scenarios – as well as steering the US away from the ultimate hypocrisy of murdering its own very conspicuous torture victims.

  10. Andy Worthington says...

    And this second comment follows on from my previous conclusions, arcticredriver.
    The US courts have a generally appalling track record of unacceptably punitive sentencing for Muslims accused of terrorism, and you are right to highlight the cases of Aafia Siddiqui and Jose Padilla. That said, for the HVDs they have a legitimacy that the military commissions clearly lack.
    As for Chelsea Manning, the problem is not terrorism-related, but related to perceived issues of national security and breaking the rules regarding non-disclosure of classified material that all US military and intelligence personnel are required to observe.
    I think there is a case to be made that her actions in exposing US wrongdoing can and should be regarded as an effort to create a better US, which can learn from its mistakes, but I can also see why the establishment won’t accept that, and also how the establishment can defend its treatment of Manning because, technically, s/he broke the law.

  11. U.S. Prepares To Release Ahmed Al-Darbi In Plea Deal, Less Significant Prisoners Have No Prospect Of Release | PopularResistance.Org says...

    […] began under Obama, are also ongoing, even though, by any objective measure, the commissions are a hopelessly broken system, in which only eight cases have concluded, and with most of those convictions being overturned on […]

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Andy Worthington

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