Torture allegations dog Guantánamo trials

From the moment that the Toronto Star unleashed a gruesome, and previously unpublished photo of the chest wounds sustained by 15-year old Omar Khadr, after a firefight in Afghanistan in July 2002, it was clear that the resumption of Khadr’s pre-trial hearing at Guantánamo last week would once more raise murky issues of torture and untrustworthy intelligence that the administration — desperate to secure a “clean” conviction in its much-reviled Military Commission process — hoped would remain buried.

The photo preceded excerpts from Star reporter Michelle Shephard’s long-awaited biography of Omar Khadr, Guantánamo’s Child, which does the most thorough job to date of humanizing the second youngest son of the generally unsympathetic Khadr family, whose late patriarch, Ahmed Khadr, was close to Osama bin Laden.

While serving as a terrifying trailer for the book, however, the photo’s publication also heightened tensions that had surfaced in pre-trial hearings in November, when, after five years of claims, on the administration’s part, that Khadr had been the last enemy soldier alive after the firefight, and had therefore thrown the grenade that killed a US soldier, it was revealed that the grenade could, in fact, have been thrown by one of his companions, who was alive at the time, but whose survival at that point had not previously been disclosed.

Omar Khadr and the fog of war

The day before Khadr’s pre-trial hearings resumed last Friday, his tenacious military defense lawyer, Lt. Cmdr. William Kuebler, duly raised these issues, telling journalists that the report of the circumstances that led to Khadr’s capture, written by an officer identified only as “Lt. Col. W.,” had been altered after the event to implicate the Canadian teenager. As Lt. Cmdr. Kuebler described it, the report initially said that the assailant who threw the grenade had been killed, but was then revised, about two months later, to say that the grenade thrower had been “engaged” (a change that clearly implicated Khadr). “We now know that story was false,” Lt. Cmdr. Kuebler told the reporters, adding, “It’s consistent with the proposition that the government manufactured evidence to make it look like Omar was guilty.”

On Friday, Lt. Cmdr. Kuebler asked the judge, Col. Peter Brownback, to allow the defense team to question “Lt. Col. W.” Col. Brownback not only agreed to this request; he also ordered prosecutors to give Khadr’s lawyers a list of all US personnel who had interrogated Khadr in Afghanistan and Guantánamo, and to provide them with access to their notes, postponed the trial’s start date (scheduled for May 5) to allow more time for discussions of acceptable evidence, and rebuffed the government-appointed prosecutors, who claimed, as the Miami Herald described it, “that they had already searched available records and interviewed potential witnesses, and had found nothing more to provide in the discovery phase to defense lawyers.” As the Herald report continued, “Brownback was not persuaded,” and “sent prosecutors back to search US State Department communications with Canada, battlefield dispatches and messages around the time of the 2002 firefight and other records.” “We can’t try the case until we get the discovery done,” Col. Brownback insisted. “So if I have to come down here every week, I’ll do it, what the heck.”

Khadr alleges torture

Capping another difficult week in the administration’s attempts to prosecute Khadr, his lawyers released an eight-page affidavit, in which Khadr himself described his treatment at the hands of both the Americans — in Afghanistan and at Guantánamo — and the Canadian agents who also visited him at Guantánamo. Partly redacted by US censors, the document nevertheless reveals extensive allegations of abuse that, in some cases, seem to amount to torture.

In addition to Khadr’s previously documented claims that he was threatened with rape and was used as a human mop at Guantánamo to wipe up his own urine after he had been held for hours in a stress position and had soiled himself, he reported that he “told a Canadian delegation in 2003 that the Americans ‘would torture’ him — so he told them whatever they wanted’ to hear, but that “The Canadians called me a liar, and I began to sob. They screamed at me and told me they could not do anything for me.” In other sections, he described how, after he embarked on a hunger strike at Guantánamo, “Guards would grab me by pressure points behind my ears, under the jaw and on my neck. On a scale of one to 10, I would say the pain was an 11.”

Khadr also described abuse that took place in the days after his capture, in particular at the hands of a Hispanic MP, who “would often [redacted]. He would tell nurses not to [redacted] since he said that I had killed an American soldier. He would also [redacted] me quite often.” He also reported that something was done to his eyes — “Sometimes they would [redacted] particularly since both my eyes were badly injured” — and described being kneed “repeatedly in the thighs,” a brutal technique, known as the common peroneal strike, whose overuse in Bagram led to the murder of two prisoners, Mullah Habibullah, and a taxi driver named Dilawar, in December 2002.

This comment adds to the suspicion that Khadr was the victim of torture in Bagram, as it was also revealed last week that one of his interrogators was Sgt. Joshua Claus, who was later charged, along with 14 others, of various crimes, including assault and “maltreatment of a detainee” in connection with the murder of the two men, and was sentenced to five months in jail in 2006.

Mohamed Jawad

Omar Khadr was not the only defendant last week to raise the spectre of torture to haunt the Military Commissions. On Wednesday, Mohamed Jawad, an Afghan who, according to his own account, was only 16 when he was seized after allegedly throwing a grenade that wounded two US soldiers and an Afghan interpreter, said, as Carol Williams described it in the Los Angeles Times, “that he had been tortured while in US custody at Bagram Air Base in Afghanistan after his arrest, and that he had been mistreated in Guantánamo as well.” “The American government said the Taliban has been very cruel in Afghanistan, that they killed people without any trial and imprisoned people without trial,” Jawad told the judge, Col. Ralph Kohlmann. “When I was in detention at Bagram, Americans killed three people. They beat people and arrested us without trial. We’re not given any rights.”

This was a departure in some ways. As I reported in a detailed article when he was first charged last October, Jawad had not alleged that he had been tortured by US forces during his tribunal and his military reviews at Guantánamo, which were convened, in the first instance, to assess whether he had been correctly designated as an “enemy combatant” when he was captured, and subsequently to assess whether he still constituted a threat to the US or its interests. He had, however, claimed that a false confession had been forced out of him by the Afghan police who first captured him. “[T]hey tortured me,” he said in 2005. “They beat me. They beat me a lot. One person told me, ‘If you don’t confess, they are going to kill you’. So, I told them anything they wanted to hear.”

Although he explicitly stated in his review, “I have never seen or endured any torture in Bagram or here in Cuba by the Americans,” it’s possible that he had previously failed to mention being tortured by US forces because he had concluded that it was wiser not to raise the topic in front of the US military officers who appeared to offer him a chance — however slim — of escaping from Guantánamo for good. It certainly seems unlikely that Jawad was not subjected to abuse while at Bagram, as the period that he was there — from mid-December 2002, two months after Omar Khadr left for Guantánamo — is during that same period, from summer 2002 until sometime in 2003, at the earliest, that the prison was the venue for particularly savage and routine violence that led to the murders mentioned above, and, it should be noted, to an apparent third homicide mentioned not only by Mohamed Jawad, but also by the released British prisoners Moazzam Begg, Richard Belmar and Jamal Kiyemba, as I discuss in my book The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison.

This alone would make his trial problematical, but Jawad himself raised further hurdles to what the Pentagon clearly hoped would be a straightforward process by declaring the proceedings illegal and refusing to accept representation by his military lawyer, Col. Mike Sawyers. Apparently dragged from his cell to attend the hearing, and wearing the infamous orange garb that, for many years, has been reserved for those ruled “non-compliant,” he told Col. Kohlmann, “My right has not been given to me. I have not violated any international law. There are many accusations against me … they don’t make any sense … I am a human being.” He added, as Steven Edwards described it for the Canwest News Service, that he “continued to be treated unjustly and interrogated, and that he wanted the ‘whole world’ to know it.”

Despite being spurned by his client, Col. Sawyers was vigorous in his defense outside the courtroom, explaining to reporters that western concepts of justice were “completely foreign” to Jawad, and making a statement on his behalf that also resonates with the case of Omar Khadr. “I believe this is the direct result of taking a 16- or 17-year-old boy and putting him in confinement … with no contact with the outside world,” Col. Sawyers said. “He has been in a three-by-seven-(foot) cell … I do not believe he understands the proceedings … I don’t know if I were given ten years I could explain it to him.”

With Jawad’s refusal to engage with the Commissions (asked to enter a plea, he had, by that point, “slumped onto the defense table and refused to respond to Kohlmann’s questions”) and with Col. Sawyers’ active duty about to run out, the case is unlikely to resume in the near future. As Col. Steve David, the Commissions’ chief defense lawyer, explained, he will not be able to assign Jawad a new lawyer for some time, because, unlike the prosecution, which has a full roster of 30 lawyers, he has only nine lawyers on duty, who are already struggling to cope with their caseload.

Ahmed al-Darbi

The last of the cases considered last week — that of Ahmed Mohammed al-Darbi, a 33-year old Saudi — also failed to advance the process. Apparently the brother-in-law of one of the 9/11 hijackers, al-Darbi, described as “polite and responsive” during his arraignment, also refused to enter a plea, and was undecided about whether or not to accept the services of his military lawyer. The administration can, perhaps, count itself lucky that al-Darbi did not wish to speak out, although this is probably only a matter of putting off the inevitable.

Seized in Azerbaijan, al-Darbi was rendered to Afghanistan, and also ended up in Bagram, where, he later alleged, an interrogator named Damien Corsetti, known as “Monster” or “The King of Torture,” abused prisoners by poking them in the face with his naked penis and threatening them with sexual assault. Corsetti was later charged with dereliction of duty, maltreatment, assault and performing an indecent act with another person, but although he was cleared of all the charges in June 2006, al-Darbi’s presence at Bagram during the period that both Omar Khadr and Mohamed Jawad were there suggests that the well-chronicled torture at the prison during that period — which Corsetti discussed, with refreshing frankness, in a recent interview — will also surface in his trial.

If, as Carol Williams suggested, Mohamed Jawad’s case had been pushed forward before those of the six men (including Khalid Sheikh Mohammed) who were charged last month in connection with the 9/11 attacks, because the process of finding lawyers for those men has only just begun, and because Jawad’s case — and, by extension, that of Ahmed al-Darbi — were presumed to be easier to win, last weeks’ events have served only to rock the Commissions’ legitimacy once more, highlighting allegations of torture in Bagram as a counter-point to the well-chronicled torture of those charged in connection with 9/11 in secret prisons run by the CIA (in five of the cases) and in Guantánamo in the case of the sixth, Mohammed al-Qahtani.

Ibrahim al-Qosi and Ali Hamza al-Bahlul

Nor, it seems, is it likely that torture will be sidestepped in the cases of the other prisoners awaiting arraignment. The Sudanese prisoner Ibrahim al-Qosi and the Yemeni Ali Hamza al-Bahlul (both charged last month for their alleged connections with al-Qaeda) are well-known to those who have been following the Commissions since they first spluttered into life in the summer of 2003. Both were previously charged in the first round of the trials, which were struck down as illegal by the Supreme Court in June 2006, without either man having had the opportunity to discuss the details of their treatment, but in a hearing in 2004 al-Bahlul’s military defense lawyer, Maj. Tom Fleener, told the judge, Col. Peter Brownback, “I believe Mr. al-Bahlul was tortured,” adding that it was “going to be an issue” in any trial faced by his client.

A sketch of Ali Hamza al-Bahlul, made during his first appearance before the Military Commissions in 2004. Image from the Associated Press.

Similar territory was covered by Lt. Col. Sharon Shaffer, who was assigned to represent al-Qosi. According to a report in the Nation in December 2005, she “characterized his treatment as possibly torture but certainly inhumane treatment; he was held in stress positions for protracted periods, subjected to military dogs and sexually humiliated.”

A sketch of Ibrahim al-Qosi, made during his first appearance before the Military Commissions in 2004. Image: Art Lien/Getty Images.

If there is a “clean” case that can be presented to the Commissions without ensnaring the administration in ever more lengthy and damaging allegations relating to the use of torture by US forces, it has yet to be found. Just possibly, however, the Pentagon’s announcement, during the fallout from Mohamed Jawad’s boycott of his arraignment, that another Afghan — Mohammed Kamin — would also face a trial by Military Commission was intended to fulfil the administration’s elusive dream: the successful prosecution of a prisoner who will not claim that he was tortured.

Mohammed Kamin

On the surface, Mohammed Kamin fulfils this criterion, although he also seems, like many before him, to be an unworthy candidate for any kind of war crimes trial at all. In his charge sheet (PDF), he is accused of “providing material support for terrorism,” specifically by receiving training at “an al-Qaeda training camp,” conducting surveillance on US and coalition military bases and activities, planting two mines under a bridge, and launching missiles at the city of Khost while it was occupied by US and coalition forces. He is not charged with harming, let along killing US forces, and were it not for his supposed al-Qaeda connection — he apparently stated in interrogation that he was “recruited by an al-Qaeda cell leader” — it would, I think, be impossible to make the case that he was involved in “terrorism” at all. As it is, I’m prepared to state that his case seems to me to demonstrate how hopelessly blurred the distinctions between military resistance (aka insurgency) and terrorism have become, so that anyone caught fighting US occupation is not engaged in a war (with its own well-established laws) but is automatically part of a global terrorist movement.

In a courtroom, of course, it may well emerge that, like all the others mentioned above, Mohammed Kamin will reveal — or at least allege — that he too was tortured, adding to the increasing suspicion that there is no corner of the post-9/11 prison system that is beyond the cold hand of the torturer, whose actions were sanctioned at the highest levels of the government. In the full glare of the world’s media, the Military Commissions continue to expose the very torture and abuse that the administration has strived so hard to conceal, and I cannot see how they can ever result in a prosecution that will be recognized as valid. As the Bush administration counts down its last months in office, the only solution, it seems to me, is to maintain the pressure on the next administration to move the trials to federal courts on the US mainland.

Andy Worthington is the author of The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison (published by Pluto Press, distributed by Macmillan in the US, and available from Amazon — click on the following for the US and the UK). To receive new articles in your inbox, please subscribe to my RSS feed, and see here for my definitive Guantánamo prisoner list, published in March 2009.

As published on the Huffington Post and CounterPunch.

See the following for a sequence of articles dealing with the stumbling progress of the Military Commissions: The reviled Military Commissions collapse (June 2007), A bad week at Guantánamo (Commissions revived, September 2007), The curse of the Military Commissions strikes the prosecutors (September 2007), A good week at Guantánamo (chief prosecutor resigns, October 2007), The story of Mohamed Jawad (October 2007), The story of Omar Khadr (November 2007), Guantánamo trials: where are the terrorists? (February 2008), Six in Guantánamo charged with 9/11 attacks: why now, and what about the torture? (February 2008), Guantánamo’s shambolic trials (ex-prosecutor turns, February 2008), African embassy bombing suspect charged (March 2008), The US military’s shameless propaganda over 9/11 trials (April 2008), Betrayals, backsliding and boycotts (May 2008), Fact Sheet: The 16 prisoners charged (May 2008), Four more charged, including Binyam Mohamed (June 2008), Afghan fantasist to face trial (June 2008), 9/11 trial defendants cry torture (June 2008), USS Cole bombing suspect charged (July 2008), Folly and injustice (Salim Hamdan’s trial approved, July 2008), A critical overview of Salim Hamdan’s Guantánamo trial and the dubious verdict (August 2008), Salim Hamdan’s sentence signals the end of Guantánamo (August 2008), High Court rules against UK and US in case of Binyam Mohamed (August 2008), Controversy still plagues Guantánamo’s Military Commissions (September 2008), Another Insignificant Afghan Charged (September 2008), Seized at 15, Omar Khadr Turns 22 in Guantánamo (September 2008), Is Khalid Sheikh Mohammed Running the 9/11 Trials? (September 2008), two articles exploring the Commissions’ corrupt command structure (The Dark Heart of the Guantánamo Trials, and New Evidence of Systemic Bias in Guantánamo Trials, October 2008), Meltdown at the Guantánamo Trials (five trials dropped, October 2008), The collapse of Omar Khadr’s Guantánamo trial (October 2008), Corruption at Guantánamo (legal adviser faces military investigations, October 2008), An empty trial at Guantánamo (Ali Hamza al-Bahlul, October 2008), Life sentence for al-Qaeda propagandist fails to justify Guantánamo trials (al-Bahlul, November 2008), Guilt by Torture: Binyam Mohamed’s Transatlantic Quest for Justice (November 2008), 20 Reasons To Shut Down The Guantánamo Trials (profiles of all the prisoners charged, November 2008), How Guantánamo Can Be Closed: Advice for Barack Obama (November 2008), More Dubious Charges in the Guantánamo Trials (two Kuwaitis, November 2008), The End of Guantánamo (Salim Hamdan repatriated, November 2008), Torture, Preventive Detention and the Terror Trials at Guantánamo (December 2008), Is the 9/11 trial confession an al-Qaeda coup? (December 2008), The Dying Days of the Guantánamo Trials (January 2009), Former Guantánamo Prosecutor Condemns Chaotic Trials (Lt. Col. Vandeveld on Mohamed Jawad, January 2009), Torture taints the case of Mohamed Jawad (January 2009), Bush Era Ends with Guantánamo Trial Chief’s Torture Confession (Susan Crawford on Mohammed al-Qahtani, January 2009), Chaos and Lies: Why Obama Was Right to Halt The Guantánamo Trials (January 2009), Binyam Mohamed’s Plea Bargain: Trading Torture For Freedom (March 2009).

And for a sequence of articles dealing with the Obama administration’s response to the Military Commissions, see: Don’t Forget Guantánamo (February 2009), Who’s Running Guantánamo? (February 2009), The Talking Dog interviews Darrel Vandeveld, former Guantánamo prosecutor (February 2009), Obama’s First 100 Days: A Start On Guantánamo, But Not Enough (May 2009), Obama Returns To Bush Era On Guantánamo (May 2009), New Chief Prosecutor Appointed For Military Commissions At Guantánamo (May 2009), Pain At Guantánamo And Paralysis In Government (May 2009), My Message To Obama: Great Speech, But No Military Commissions and No “Preventive Detention” (May 2009), Guantánamo And The Many Failures Of US Politicians (May 2009), A Child At Guantánamo: The Unending Torment of Mohamed Jawad (June 2009), A Broken Circus: Guantánamo Trials Convene For One Day Of Chaos (June 2009), Obama Proposes Swift Execution of Alleged 9/11 Conspirators (June 2009), Obama’s Confusion Over Guantánamo Terror Trials (June 2009).

For a sequence of articles dealing with the use of torture by the CIA, on “high-value detainees,” and in the secret prisons, see: Guantánamo’s tangled web: Khalid Sheikh Mohammed, Majid Khan, dubious US convictions, and a dying man (July 2007), Jane Mayer on the CIA’s “black sites,” condemnation by the Red Cross, and Guantánamo’s “high-value” detainees (including Khalid Sheikh Mohammed) (August 2007), Waterboarding: two questions for Michael Hayden about three “high-value” detainees now in Guantánamo (February 2008), The Insignificance and Insanity of Abu Zubaydah: Ex-Guantánamo Prisoner Confirms FBI’s Doubts (April 2008), Secret Prison on Diego Garcia Confirmed: Six “High-Value” Guantánamo Prisoners Held, Plus “Ghost Prisoner” Mustafa Setmariam Nasar (August 2008), Will the Bush administration be held accountable for war crimes? (December 2008), The Ten Lies of Dick Cheney (Part One) and The Ten Lies of Dick Cheney (Part Two) (December 2008), Prosecuting the Bush Administration’s Torturers (March 2009), Abu Zubaydah: The Futility Of Torture and A Trail of Broken Lives (March 2009), Ten Terrible Truths About The CIA Torture Memos (Part One), Ten Terrible Truths About The CIA Torture Memos (Part Two), 9/11 Commission Director Philip Zelikow Condemns Bush Torture Program, Who Authorized The Torture of Abu Zubaydah?, CIA Torture Began In Afghanistan 8 Months before DoJ Approval, Even In Cheney’s Bleak World, The Al-Qaeda-Iraq Torture Story Is A New Low (all April 2009), Ibn al-Shaykh al-Libi Has Died In A Libyan Prison, Dick Cheney And The Death Of Ibn al-Shaykh al-Libi, The “Suicide” Of Ibn al-Shaykh al-Libi: Why The Media Silence?, Two Experts Cast Doubt On Ibn al-Shaykh al-Libi’s “Suicide”, Lawrence Wilkerson Nails Cheney On Use Of Torture To Invade Iraq, In the Guardian: Death in Libya, betrayal by the West (in the Guardian here) (all May 2009), Lawrence Wilkerson Nails Cheney’s Iraq Lies Again (And Rumsfeld And The CIA), and WORLD EXCLUSIVE: New Revelations About The Torture Of Ibn al-Shaykh al-Libi (June 2009).

For other stories discussing the use of torture in secret prisons, see: An unreported story from Guantánamo: the tale of Sanad al-Kazimi (August 2007), Rendered to Egypt for torture, Mohammed Saad Iqbal Madni is released from Guantánamo (September 2008), A History of Music Torture in the “War on Terror” (December 2008), Seven Years of Torture: Binyam Mohamed Tells His Story (March 2009), and also see the extensive Binyam Mohamed archive. And for other stories discussing torture at Guantánamo and/or in “conventional” US prisons in Afghanistan, see: The testimony of Guantánamo detainee Omar Deghayes: includes allegations of previously unreported murders in the US prison at Bagram airbase (August 2007), Guantánamo Transcripts: “Ghost” Prisoners Speak After Five And A Half Years, And “9/11 hijacker” Recants His Tortured Confession (September 2007), Former US interrogator Damien Corsetti recalls the torture of prisoners in Bagram and Abu Ghraib (December 2007), Sami al-Haj: the banned torture pictures of a journalist in Guantánamo (April 2008), Judge Orders Release of Guantánamo’s Forgotten Child (Mohammed El-Gharani, January 2009), Forgotten in Guantánamo: British Resident Shaker Aamer (March 2009).