For the 171 men held, as I explained, the situation is bleak as we approach the 10th anniversary of the prison’s opening (in January 2012), as there now appears to be no way that any of them will ever leave the prison, given the indifference of the administration to their fate, and the hostility of lawmakers and certain crucial right-wing judges (who have been deciding detention policy in the D.C. Circuit Court). I also spoke about the current horror of the National Defense Authorization Act, which is being discussed in Congress, and which contains a vile proposal from lawmakers, insisting that, in future, all terror suspects be held in mandatory military custody, and not held as criminal suspects or given federal court trials.

As mentioned above, Scott and I also discussed the history of the Military Commissions and the six men who have been convicted or have accepted plea deals (David Hicks, Salim Hamdan, Ali Hamza al-Bahlul, Ibrahim al-Qosi, Omar Khadr and Noor Uthman Muhammed), and this provided me with an opportunity to mention that Omar Khadr is still being held, even though he was supposed to return to Canada two weeks ago, according to the the terms of his plea deal.

We then turned to al-Nashiri’s arraignment, in which I ran though the history of al-Nashiri’s torture, and Scott and I discussed that, however much the Commissions have been tweaked, they remain the wrong venue for someone accused of terrorism, who should be tried in a federal court, with the fairness and transparency that will never be part of the system at Guantanamo.

In conclusion, I lamented how the Obama administration has refused to confirm that, should al-Nashiri somehow be acquitted, there is no guarantee that he would be released — a position which, of course, only confirms how far we have traveled from basic notions of decency, a sense of proportion, and respect for the law in the last ten years.

It was a pleasure to speak to Scott, as ever, and I hope you can listen to the interview, if you have 20 minutes to spare. For the record, this is how Scott described the show:

Andy Worthington, author of The Guantánamo Files, discusses the ten-year-long miscarriage of justice at Guantánamo; why Obama hasn’t expended any political capital to close the prison or end military commissions; the mere six Guantánamo prisoners who have either accepted a plea deal or been convicted of a crime; and why the Obama administration won’t release USS Cole bombing suspect Abdul Rahim al-Nashiri even if he is acquitted, making a mockery of the “justice” system.

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) and of two other books: Stonehenge: Celebration and Subversion and The Battle of the Beanfield. To receive new articles in your inbox, please subscribe to my RSS feed (and I can also be found on Facebook, Twitter, Digg and YouTube). Also see my definitive Guantánamo prisoner list, updated in June 2011, “The Complete Guantánamo Files,” a 70-part, million-word series drawing on files released by WikiLeaks in April 2011, and details about the documentary film, “Outside the Law: Stories from Guantánamo” (co-directed by Polly Nash and Andy Worthington, and available on DVD here — or here for the US). Also see my definitive Guantánamo habeas list and the chronological list of all my articles, and, if you appreciate my work, feel free to make a donation.

Appearing publicly for the first time in nine years, al-Nashiri, a millionaire and a merchant before his capture, who is now 46 years old, was clean-shaven, and responded politely when asked by the judge, Army Col. James Pohl, whether he understood the proceedings, and whether “he accepted the services of his Pentagon-paid defense team.” As the Miami Herald described it, he replied, “At this moment these lawyers are doing the right job.”

For those who support George W. Bush’s attempts to twist the law out of shape in an attempt to claim that torture was not torture, and then to use it on “high-value detainees” in a series of despicable torture dungeons located in other countries, the trial of al-Nashiri at Guantánamo is something of a triumph, although it is difficult to see how the torture apologists reach this conclusion.

In fact, al-Nashiri’s arraignment, nine years after he was first seized in the United Arab Emirates, is a disgrace. He was held in torture prisons in Thailand and Poland (where prosecutors are investigating his torture claims), and possibly also in Romania, Lithuania and Morocco — and what distinguishes these locations from other prisons is how the Bush administration had to undergo devious, underhand negotiations to site its prisons on foreign soil. This rather tends to prove that torture was still torture, however much John Yoo, a compliant lawyer in the Justice Department’s Office of Legal Counsel, said it wasn’t in a series of notorious memos that will forever be known as the “torture memos,” because if it was legal, then why was all the dirty subterfuge needed?

For the supporters of Guantánamo and torture, the sordid details of his treatment are not generally discussed, perhaps because it might be revealed how he was only held in a prison in Thailand until the Thai government got fed up with harboring American torturers, and was then sent to Poland, where, eventually, the same thing happened. His torture, according to the apologists, was supposed to show robustness and resolve on the part of the Bush administration, and not the fairly desperate maneuverings of abusers who knew that their activities were illegal.

The apologists also shrug off the alarming truth that al-Nashiri was waterboarded, and also shrug off the findings of the CIA Inspector General, who concluded, in a report in 2004, that CIA operatives had gone too far when they threatened him with a gun and a power drill while he was hooded, and also made threats against his family. Another way of expressing this would be to note that the use of the gun and the drill constituted “mock executions.”

To the best of our knowledge, the torture of al-Nashiri yielded no useful intelligence. However, because of the way he was treated, and because of the Bush administration’s foolish insistence that terror suspects were not criminals, but “warriors” in a possibly endless “war on terror,” the federal court trial that should have taken place shortly after his capture in 2002, if there was any evidence that he masterminded the bombing of the USS Cole, never took place.

Nine years on, supporters of military trials for terror suspects may be celebrating because al-Nashiri’s trial by Military Commission is finally going ahead, although, in the meantime, numerous other terror suspects have been successfully prosecuted in federal courts. Supporters of Guantánamo and torture tend to ignore the many successful federal court trials of the last decade, choosing instead to believe that being tortured in secret CIA prisons and then held in Guantánamo somehow makes prisoners like al-Nashiri much more significant than these other terror suspects.

How else do we explain the uproar over the trial of Ahmed Khalfan Ghailani, the only prisoner held in secret CIA torture prisons and then Guantánamo to be transferred to the US mainland to face a federal court trial? Ghailani was transferred in May 2009 (before Congress imposed a ban on the transfer of any more prisoners for trials on the US mainland), and was tried last fall, convicted and given a life sentence in January this year.

Even so, the supporters of the Military Commissions tried to portray his trial as a failure, and continue to rail against federal court trials for terror suspects, even going so far, in passages included in the National Defense Authoization Act, which is currently being examined by Congress, as to demand mandatory military custody for all terror suspects in future, even though that will cripple the ability of law enforcement officials to effectively investigate their crimes, and even though the military has shown no willingness to become a misplaced policeman for deranged ideologues in Congress.

President Obama is also to blame for Abd al-Rahim al-Nashiri’s presence in a courtroom in Guantánamo, because his administration revived the Commissions in the summer of 2009, deciding that federal court trials were appropriate for some Guantánamo prisoners, and Military Commissions for others. That allowed the opponents of federal court trials to campaign against them, pushing the administration to drop its plans to try Khalid Sheikh Mohammed and four other men accused of involvement in the 9/11 attacks in New York, and obliging senior officials (and specifically Attorney General Eric Holder) to undertake a humiliating climbdown, and to announce that federal court trials were off the agenda, and the Military Commissions were the only game in town.

That led directly to the notion that mandatory military custody for terror suspects is somehow acceptable, when it is clearly not, and left the administration, like an unconvincing puppeteer, holding Military Commission trials at Guantánamo which they have so far failed to endorse confidently, reaching plea deals in all three cases dealt with to date — those of Ibrahim al-Qosi, Noor Uthman Muhammed and Omar Khadr.

As a capital case and one involving such well-publicized torture, al-Nashiri’s case is much more of a test for the Obama administration, which cannot, for once, shirk its responsibilities through a plea deal. There is no way of knowing, as yet, if al-Nashiri will find a way to fundamentally challenge the administration, or if his trial will, in spite of the precedents established throughout the Commissions’ inglorious history, somehow proceed smoothly, but it seems unlikely.

At the arraignment, Richard Kammen, one of al-Nashiri’s defense attorneys, made it clear that questions about his client’s treatment would form part of the defense’s case. “Is torture a mitigating factor?” he asked Col. Pohl, to which the judge replied that the question would be appropriate when — if — al-Nashiri came to be sentenced. As the Miami Herald also explained, “Kammen also asked Pohl if he would fulfill his obligation under international treaty to report to ‘outside authorities’ evidence that Nashiri’s ‘torture’ was arranged by high public officials, doctors, psychiatrists and lawyers,” to which the judge replied, “I will comply with the law.”

That sounds promising, but as the media focus drifts away from Guantánamo once more with the realization that al-Nashiri’s trial will not begin for at least a year, it is also worth recalling that, fundamentally, this is not the right venue for the trial of anyone accused of terrorism, or, indeed, of war crimes that are not real, and were only invented by Congress in 2006 and revived, fundamentally unaltered, in 2009.

Instead, the courtroom at Guantánamo, where the world is supposed to see justice being delivered, is composed in equal parts of an ideological fixation, on the part of Republicans, and an unconvincing capitulation, on the part of the administration, and these are not the correct ingredients for a fair trial, especially as the Obama administration has refused to confirm that, should al-Nashiri somehow not be convicted, there is no guarantee that he will be released, which, of course, makes a mockery of the entire process.

Note: The courtroom sketch above is by Janet Hamlin, and is courtesy of Janet Hamlin Illustration.

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) and of two other books: Stonehenge: Celebration and Subversion and The Battle of the Beanfield. To receive new articles in your inbox, please subscribe to my RSS feed (and I can also be found on Facebook, Twitter, Digg and YouTube). Also see my definitive Guantánamo prisoner list, updated in June 2011, “The Complete Guantánamo Files,” a 70-part, million-word series drawing on files released by WikiLeaks in April 2011, and details about the documentary film, “Outside the Law: Stories from Guantánamo” (co-directed by Polly Nash and Andy Worthington, and available on DVD here — or here for the US). Also see my definitive Guantánamo habeas list and the chronological list of all my articles, and, if you appreciate my work, feel free to make a donation.

As published exclusively on the website of the Future of Freedom Foundation.

The military commissions, which were last used on Nazi saboteurs in World War II, were brought back from the dead by Vice President Dick Cheney almost ten years ago — in an alarming military order dated November 13, 2001 — as a means of swiftly trying and executing terror suspects seized in the “war on terror” without the impediment of due process or a ban on evidence derived through the use of torture.

Ruled illegal by the Supreme Court in June 2006, the commissions were then resuscitated by Congress, and although Barack Obama froze them temporarily when he took office, he soon thawed them out again, even though the wisest of his advisors recommended him not to, as the primary charges in the commissions — conspiracy and providing material support to terrorism, for example — were appropriate crimes to be tried in federal courts, but had only been invented as war crimes by Congress.

Reviving the commissions left President Obama with a two-tier system of justice for those held at Guantánamo, with both federal court trials and military commissions on the table, and it led him into unseen difficulties, when, after he announced in November 2009 that Khalid Sheikh Mohammed and four other “high-value detainees” in Guantánamo would face a federal court trial in New York for their involvement in the 9/11 attacks, those who opposed his plan struck back.

Because of President Obama’s refusal to consign the commissions to a legal grave, his critics could point to them as a viable alternative to a federal court trial, especially as the administration, when announcing the 9/11 trial, had also announced that five other Guantánamo prisoners would be tried by military commission.

As a result, Obama’s critics in Congress ultimately succeeded in passing legislation preventing any Guantánamo prisoners from being brought to the US mainland for any reason (even to to face a federal court trial), and have now embarked on their most audacious and inappropriate measure yet — threatening to pass legislation making it mandatory for any foreign terror suspect to be held in military custody rather than being tried in federal court for the crime of terrorism.

Ten years after 9 /11, it is truly depressing that the misguided “war on terror” not only lives on, but may get a new lease of life, and at Guantánamo, where part of this struggle to keep Dick Cheney’s malevolent dreams alive is particularly focused, the authorities are gearing up for new activity.

Last week, in an attempt to market what the Miami Herald described as “a new era of transparency” at Guantánamo, Army Brig. Gen. Mark Martins, the new Chief Prosecutor of the military commissions, told the Weekly Standard that the commissions will “feature new measures to ensure transparency, including a venue enabling victims and media to observe proceedings near-real-time in the continental United States.” The Herald added that the transmissions “won’t be live because the feeds will be broadcast on a ’40-second delay to ensure safeguarding of national security information.’”

In the Miami Herald article, Carol Rosenberg, who has been following the military commissions since they first began, called the proposed new system “vastly different” from what has been in place to date, whereby “reporters and other spectators were required to fly to Guantánamo on specially arranged Pentagon flights,” and then “faced strict limitations on where they could go and what they could report,” which “helped cut the number of news organizations covering events there.”

The changes, if implemented, will certainly increase transparency, and that is to be commended, but huge and, I believe, insurmountable problems remain for the commissions.

Chief amongst these is how transparency can be balanced with what remains an obsessive need for secrecy on the part of the government. Having decided not to even investigate the Bush administration’s official torture program (despite the requirement to do so under the terms of the UN Convention Against Torture and America’s own domestic torture statute), the Obama administration will be obliged to continue making sure that, when those to be tried were tortured, discussion of the time they spent in secret CIA prisons, where the use of torture was widespread, is severely limited.

As Carol Rosenberg noted, “The CIA still forbids the public to hear what they did and where they did it, even when captives have described their treatment at pre-trial proceedings,” and these requirements also protect “the identities of CIA agents and contractors who carried out interrogations.”

This is of relevance not just in the case of Khalid Sheikh Mohammed and his co-accused, but, more pressingly, in the case of Abd al-Rahim al-Nashiri, the alleged mastermind of the attack on the USS Cole in 2000, who had his case officially referred for trial by military commission by the commissions’ Convening Authority, Retired Adm. Bruce MacDonald, on Wednesday, in what were the first capital charges put forward for trial in the commissions.

The problem, for the government, is that al-Nashiri was, notoriously, one of three “high-value detainees” waterboarded by the CIA. In a report on the referral to trial in the Washington Post, it was noted, coyly, that “waterboarding was sanctioned by Justice Department lawyers,” when what should have been noted was that Justice Department lawyers — John Yoo and Jay S. Bybee — purported to approve its use, even though there are no grounds whatsoever for lawyers to attempt to justify the use of torture.

There are further complications. As the CIA Inspector General concluded in a report on detainee treatment in 2004 (PDF), al-Nashiri was also threatened with mock executions when CIA operatives held a power drill and a gun to his head while he was hooded and naked in a secret prison in Thailand — actions that exceeded the guidelines laid down by Yoo and Bybee — and al-Nashiri’s lawyers argued in submissions to the Convening Authority that no case should be brought against their client because of his torture, because of the delay in his case, and also because of the destruction of evidence. Videotapes of al-Nashiri’s waterboarding were among the tapes destroyed by the CIA, in spite of a court order demanding that they be preserved, and his lawyers argued that the destruction of the tapes deprives the defense team of important and potentially exculpatory evidence.

In addition, although the government “cannot use any statements obtained under torture,” and “prosecutors are unlikely to rely on any statements Nashiri made while in CIA custody,” in the Post‘s words, one of his lawyers, Navy Lt. Cmdr. Stephen Reyes, stated that he intended to summon the CIA operatives involved in his client’s interrogation to the trial.

In the submission, his lawyers stated, “The United States should not be permitted to kill a man it has brutally tortured and subjected to cruel, inhuman and degrading treatment.”

Further afield, the European Parliament submitted a declaration in June stating that al-Nashiri should not be subject to the death penalty because of his treatment by the CIA, and human rights groups have also spoken out against the plans. In addition, al-Nashiri’s treatment in a secret CIA prison in Poland, where he was sent after his ordeal in Thailand in November and early December 2002, is regarded as so severe that, although there has been no official acknowledgement that a secret prison existed in Poland (either by the US or the Polish governments), the Polish prosecutor investigating his case was so alarmed by documents, which, evidently, he had access to, that he officially designated him — and Abu Zubaydah, another tortured “high-value detainee” — as a “victim.”

One last problem with the commissions was inadvertently revealed in the Weekly Standard article, when the Pentagon’s General Counsel Jeh Johnson said that Brig. Gen. Martins was “a recognized superstar” who, as the Miami Herald put it, “would focus not on getting the most convictions but on making the war court credible and sustainable.” This is the same Jeh Johnson who, in testimony before the Senate Armed Services Committee in July 2009, when the revival of the commissions was being discussed, urged the committee to drop the charge of material support, because the administration believed that it would be overturned on appeal, as it was “not a traditional violation of the law of war” — and, as mentioned above, was invented by Congress.

Al-Nashiri does not face a material support charge, but the charges he does face include conspiracy and murder in violation of the laws of war, and the latter charge also has a non-existent history as a war crime, having also been dreamt up by Congress when the military commissions were first revived after the Supreme Court ruled them illegal in 2006.

As al-Nashiri’s case finally proceeds to trial, all but the most blinkered enthusiasts for the commissions should be deeply troubled that, despite amendments, a system dedicated to evading all mention of torture in the case of a tortured man is going ahead with barely a murmur of dissent, even though this deeply flawed system contains invented war crimes, intended to turn a crime (terrorism) or engagement in warfare into violations of the laws of war, when they are no such thing.

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) and of two other books: Stonehenge: Celebration and Subversion and The Battle of the Beanfield. To receive new articles in your inbox, please subscribe to my RSS feed (and I can also be found on Facebook, Twitter, Digg and YouTube). Also see my definitive Guantánamo prisoner list, updated in June 2011, “The Complete Guantánamo Files,” a 70-part, million-word series drawing on files released by WikiLeaks in April 2011, and details about the documentary film, “Outside the Law: Stories from Guantánamo” (co-directed by Polly Nash and Andy Worthington, and available on DVD here — or here for the US). Also see my definitive Guantánamo habeas list and the chronological list of all my articles, and, if you appreciate my work, feel free to make a donation.

As published exclusively on the website of the Future of Freedom Foundation.

Neither was surprising, because the President announced in May 2009, during a major speech on national security at the National Archives, that the Military Commissions were back on the table, joining federal court trials as an option for trying those held at Guantánamo, and in that same speech he also announced that some prisoners would continue to be held indefinitely without charge or trial.

The return of the Military Commissions

Since then, Military Commissions already established under President Bush have proceeded to trial — or, in fact, to plea deals instead of a trial — in the cases of three prisoners: Ibrahim al-Qosi in July last year, Omar Khadr in October, and Noor Uthman Muhammed last month, and it seems probable that the trials of three other men recommended for trial by Military Commission in November 2009 and January 2010 by Attorney General Eric Holder will now proceed swiftly.

These men are: Abd al-Rahim al-Nashiri, a Saudi, and the alleged mastermind of the al-Qaeda attack on the USS Cole in 2000; Ahmed al-Darbi, a Saudi seized in Azerbaijan and accused of involvement in an unrealized plot to attack a ship in the Strait of Hormuz; and Obaidullah, an Afghan accused of playing a peripheral role in the insurgency against US forces in Afghanistan. All the cases have problems — al-Darbi’s, because of his detailed allegations that he was subjected to torture; Obaidullah’s, because he was a nobody involved in an insurgency, and did nothing that could remotely be described as a war crime; and al-Nashiri’s, in particular, because, after his capture in the UAE in the fall of 2002, he was rendered to secret CIA prisons in Thailand and Poland, where he was subjected to the torture technique known as waterboarding, a form of controlled drowning.

In the case of al-Darbi and Obaidullah, it seems probable that the administration will avoid, in one case, a torture-laced legal minefield, and in the other, a demonstration of how, embarrassingly, to equate the pursuit of terrorists with a legitimate insurgency, by reaching plea deals. However, it seems unlikely that anyone in a position of authority would want to strike plea deal with al-Nashiri, given the severity of his alleged crimes and his alleged role in al-Qaeda, and if this is the case then the authorities will not only be obliged to sidestep any mention of his torture, which may be difficult as it was covered in the CIA Inspector General’s report on torture in 2004, and al-Nashiri has also been granted “victim” status in an ongoing investigation of the CIA’s torture prison in Poland.

Just as significant is the fact that an actual trial — rather than a plea deal — runs the very real risk of exposing that the supposed war crimes included in the Military Commissions — conspiracy and providing material support to terrorism, for example — are not legitimate war crimes at all, but were, instead, invented by Congress in 2006 and maintained, despite high-level criticism by Obama administration officials, when a revived version of the Commissions was approved by Congress in the Military Commissions Act of 2009.

Beyond these difficulties, where Obama’s announcement breaks new ground is in opening up the probability that many of the other 30 prisoners still held who were recommended for trials by the Task Force will also be tried by Military Commission – - perhaps even Khalid Sheikh Mohammed and four other men accused of involvement in the 9/11 attacks. These men were put forward for federal court trials in November 2009, but the plans were shelved in the wake of a backlash by Republicans and members of Obama’s own party.

Personally, I think that the Military Commissions remain illegitimate, but given Congress’s refusal to allow any Guantánamo prisoners to be brought to the US mainland to face trials (which was included in a major military defense spending bill last December, and was a nakedly political move, as well as being blatantly unconstitutional), Military Commissions are, at present, the only option for trials available to the prisoners. Pragmatically, if these continue to involve plea deals in exchange for short sentences — and the administration honors those plea deals — then, despite being fundamentally flawed, they provide what may be the only way in which prisoners can ever leave Guantánamo.

To understand why this is the case, it is necessary to reflect on the fact that 89 of the remaining 172 prisoners were cleared for release by the Task Force, but are going nowhere either because they are Yemenis, and Obama issued a moratorium on the release of any of the 58 cleared Yemenis last January, after it was discovered that the failed Christmas Day plane bomber, Umar Farouk Abdulmutallab, had been recruited in Yemen, or because they cannot be repatriated because they face the risk of torture of other ill-treatment in their home countries. These 31 men cannot be resettled in the US, because of opposition by the President, by the D.C. Circuit Court, and by Congress, and it is uncertain if third countries will be prepared to offer them new homes. As a result, all 89 prisoners appear to have less chance of leaving Guantánamo than their fellow prisoners who reach plea deals in their trials by Military Commission, and can, as I have been explaining all year, legitimately be described as political prisoners.

The executive order establishing a periodic review of the cases of 47 men designated for indefinite detention without charge or trial

Also less fortunate than those facing trials by Military Commission are the 47 men designated for indefinite detention without charge or trial. The executive order formalizing their detention and providing for periodic reviews of their status, which was issued on March 7, was flagged up before Christmas, but was clearly on the cards from January 2010, when the Task Force submitted its report to the President, recommending that 48 of the remaining prisoners — one of the 48 died in Guantánamo last month — should continue to be held indefinitely without charge or trial, because “prosecution is not feasible in either federal court or a military commission.”

There are several problems with this proposal, of course — beyond their distressing reinforcement of the very basis on which George W. Bush established Guantánamo in the first place — not the least of which concerns the Task Force’s belief that these men can be regarded as dangerous without evidence that can be used to prove their case. As I explained in December:

The Task Force attempted to explain that “the principal obstacles to prosecution in the cases deemed infeasible by the Task Force typically did not stem from concerns over protecting sensitive sources or methods from disclosure, or concerns that the evidence against the detainees was tainted,” but its explanations were unconvincing. Behind claims that “the intelligence about them may be accurate and reliable,” even though it was gathered in dubious circumstances, and that, in many cases, “there are no witnesses who are available to testify in any proceedings against them,” lies a blunter truth, as I explained [in an analysis of the Task Force's report in June 2010]: “that the intelligence, and whatever witness availability there might be, are both tainted by the circumstances under which ‘the gathering of intelligence’ took place — the coercive interrogations, and in some cases the torture, of the prisoners themselves, or of their fellow prisoners.”

To demonstrate this, I referred to the 59 habeas petitions examined by judges in the District Court in Washington D.C., of which 38 have been won by the prisoners, noting:

[T]hese problems have been highlighted again and again by judges, with an objectivity that eluded the Task Force — as, for example, in the cases of Fouad al-Rabiah, a Kuwaiti put forward by President Bush for a trial by military commission, who was freed after a judge ruled that the entire case against him rested on a false narrative that he had come up with after torture and threats, and, to cite just two more examples, Alla Ali Bin Ali Ahmed, a Yemeni seized in a student guest house in Pakistan, and Mohammed El-Gharani, a Chadian national, who was just 14 when he was seized in a raid on a mosque in Pakistan. In both cases, they were freed after judges ruled that the government’s witnesses — the men’s fellow prisoners — were irredeemably unreliable, and were, if not subjected to violence, then bribed to produce false statements.

It is, therefore, rather disingenuous of the Task Force to claim that “the principal obstacle to prosecution” for these [47] men “typically did not come from … concerns that the evidence against the detainee[s] was tainted,” when, to be frank, the record is replete with examples proving the opposite.

Another problem is that the executive order establishes a review process for the 47 men, consisting of Periodic Review Boards (PRBs), which are remarkably similar to the review process established by the Bush administration — the Combatant Status Review Tribunals (CSRTs) — that the Supreme Court found inadequate when it granted the prisoners constitutionally guaranteed habeas corpus rights in June 2008.

As with the CSRTs, the men will be presented with an unclassified summary of the allegations against them, will be represented by a “personal representative” (not a lawyer), will be allowed to refute the charges against them (although without the means to do so), will be able to “call witnesses who are reasonably available,” and will also run up against classified evidence that they will not be allowed to see — although there is a provision for them to “receive a sufficient substitute or summary, rather than the underlying information,” if the government plans to rely on classified evidence (as it undoubtedly will, or trials would be going ahead in these cases).

Although I am reassured that, as the administration describes it, the executive order “is intended solely to establish, as a discretionary matter, a process to review on a periodic basis the executive branch’s continued, discretionary exercise of existing detention authority in individual cases,” and also that it “does not create any additional or separate source of detention authority,” and “does not affect the scope of detention authority under existing law,” it is disingenuous of the administration to follow up by stating, “Detainees at Guantánamo have the constitutional privilege of the writ of habeas corpus, and nothing in this order is intended to affect the jurisdiction of Federal courts to determine the legality of their detention.”

This is because, despite its reassurances, the administration has always behaved as though the habeas legislation is a distraction, and that it has only ever believed in the Task Force’s findings — hence its decision to pre-judge 48 men whose habeas petitions might have delivered different outcomes, obviating the need for executive review.

In addition, the executive order demonstrates another fundamental problem with the administration’s approach to Guantánamo — and one that has also eluded the District Court dealing with the men’s habeas petitions. This relates to the legislation that underpins the Guantánamo detentions in the  first place — the Authorization for Use of Military Force, passed by Congress the week after the 9/11 attacks, which authorized the President “to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001,” or harbored them, but failed to distinguish between al-Qaeda (a terrorist group) and the Taliban (a government, however reviled).

As the habeas legislation has showed, the majority of the men who have lost their petitions are nothing more than foot soldiers for the Taliban, who had no knowledge of al-Qaeda’s international terrorist operations, and who should, as a result, have been held as prisoners of war protected by the Geneva Conventions.

Included in the 47 men designated for indefinite detention, these soldiers remain tainted by the administration’s claims that they are “too dangerous to release,” when the truth is that the AUMF remains the flawed foundation document of the “War on Terror,” and those held at Guantánamo should either be released (without delay), charged in connection with terrorist offenses (which are crimes and not “acts of war”), or redesignated as prisoners of war, who can be held until the end of hostilities.

This, however, would involve recognizing them as soldiers, and not as the kind of shadowy, ill-defined terrorist threats that were invoked so successfully by the Bush administration, and that Obama has done nothing to dispel. This refusal to tackle the foundational problems of Guantánamo not only continues to fuel hysteria in the United States about the soldiers held in Guantánamo, but has also led to a shameful indifference towards putting on trial the handful of people genuinely accused of involvement in acts of international terrorism (including the 9/11 attacks), even though bringing these men to justice ought to have been the purpose of the “War on Terror” all along.

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) and of two other books: Stonehenge: Celebration and Subversion and The Battle of the Beanfield. To receive new articles in your inbox, please subscribe to my RSS feed (and I can also be found on Facebook and Twitter). Also see my definitive Guantánamo prisoner list, updated in July 2010, details about the new documentary film, “Outside the Law: Stories from Guantánamo” (co-directed by Polly Nash and Andy Worthington, on tour in the UK throughout 2011, and available on DVD here), my definitive Guantánamo habeas list and the chronological list of all my articles, and, if you appreciate my work, feel free to make a donation.

As published exclusively on the website of the Future of Freedom Foundation.

As I explained in a recent article, George W. Bush, War Criminal, Is Not Welcome in Europe, Bush subsequently cancelled his visit. However, as Vince Warren of the Center for Constitutonal Rights explained in the Huffington Post:

Swiss law requires the presence of an alleged torturer on Swiss soil before a preliminary investigation can be open. Because Bush canceled, the complaints could not be filed as the basis for legal jurisdiction no longer existed. However, the fact that Bush authorized torture remains … In the long run, ducking a charge of torture is not as easy as ducking a shoe thrown at a press conference.

In my article, I stated that “the fact that the torturer-in-chief has been made unwelcome in Europe — and, in theory, anywhere outside the US –  is heartening news indeed,” and this remains the case. In the hope of keeping the story alive — and providing the Preliminary Bush Torture Indictment in an accessible form, I’ve divided the original PDF into two HTML documents, and am cross-posting the first part below. The second part will follow soon. Please note that CCR will amend the indictment as new information comes to light (as it undoubtedly will, given how much of the US torture story is still hidden), and please also note that the original contains detailed footnotes, which I have not attempted to replicate here, where I have, instead, inserted a number of important hyperlinks.

PRELIMINARY “INDICTMENT FOR TORTURE”: GEORGE W. BUSH
BROUGHT PURSUANT TO THE CONVENTION AGAINST TORTURE*

* The present document is a modified version of an individual criminal complaint prepared for submission against George W. BUSH in anticipation of his visit to Geneva, Switzerland on 12 February 2011. The individual criminal complaint brought on behalf of an individual plaintiff was not filed, as planned, on 7 February 2011 because of the announcement, on the eve of the filing, that BUSH cancelled his trip. Factual details regarding that visit, as a basis for establishing BUSH’s presence in Switzerland and the inclusion of analysis of Swiss law is reflective of the origins of this document. This document is not intended to serve as a comprehensive presentation of all evidence against BUSH for torture; rather, it presents the fundamental aspects of the case against him, and a preliminary legal analysis of liability for torture, and a response to certain anticipated defenses. This document will be updated and modified as developments warrant.

I. FACTUAL BACKGROUND

A. George W. BUSH

1. George W. BUSH was born on 6 July 1946, in New Haven, Connecticut, United States. From 20 January 2001- 20 January 2009, BUSH served as president of the United States of America and Commander in Chief of the United States Armed Forces. Pursuant to Article II of the United States Constitution, executive power was vested in BUSH, as president of the United States. Upon assuming office, BUSH took an oath to “preserve, protect and defend” the Constitution of the United States.

2. In his capacity as president of the United States of America and Commander in Chief, BUSH had authority over the agencies of the United States government involved in the torture program, including but not limited to, the Central Intelligence Agency (CIA), the Department of Defense (DOD), the Department of Justice (DOJ), the Department of Homeland Security (DHS), the Department of State (DOS), the Federal Bureau of Investigation (FBI) as well as over the White House and Office of the Vice President.

3. BUSH chaired the National Security Council (NSC), which advises and assists the president on national security and foreign policies, and serves as the president’s principal arm for coordinating these policies among various government agencies.

4. It has been publicly and widely reported that BUSH will be present in Geneva to take part as the guest of honor in a charity evening organized by the Keren Hayessod foundation, set to take place at the Hôtel President Wilson. His presence is announced for Saturday, 12 February 2011.

B. Overview of Detention Policies and Torture Program

5. On 14 September 2001, BUSH issued the “Declaration of National Emergency by reason of Certain Terrorist Attacks,” following the September 11th terrorist attacks.

6. On 17 September 2001, BUSH issued a 12-page directive (known as a “memorandum of notification”) that went to the Director of the CIA and members of the National Security Council, in which BUSH authorized the CIA to capture suspected terrorists and members of Al-Qaeda, and to create detention facilities outside the United States where suspects can be held and interrogated. BUSH‘s directive marked the official launching of the CIA program by vesting the agency with unprecedented power. The document was  “a means of granting the CIA important new competences relating to its covert actions: new choices it could make and new ways it could respond if confronted with Al-Qaeda targets in the field.”

7. According to Swiss Senator Dick Marty‘s 2007 Report to the Council of Europe [PDF], BUSH had been personally involved in the conception, discussion, and formulation of this new strategy. The 17 September 2001 directive, referred to by Marty as a “Presidential Finding,” is said to have “create[d] paramilitary teams to hunt, capture, detain, or kill designated terrorists almost anywhere in the world.” Marty‘s Report shed further light on what the directive was intended to achieve:

Our team has spoken with several American officials who have seen the text of the Presidential Finding and participated in the operations that put it into action. Two particularly striking observations have emerged from these discussions. First, by putting “a lot of stock in Special Activities” the Finding “redefined the role of the Agency,” even in the eyes of some of its own, more conservative senior officials. Second, the “really broad, not specific” scope of the covert actions authorised in the Finding meant that the CIA was instantly granted enough room for manoeuvre to design a secret detentions programme overseas.

8. The International Committee of the Red Cross (“ICRC”) was refused access to detainees held in the CIA program. As revealed through a 2007 ICRC report [PDF], the ICRC made repeated requests to the United States to grant it access to the detainees generally, including specific detainees whom the ICRC believed to be, and were in fact, held by the CIA in secret detention sites outside of the United States.

9. On 7 October 2001, BUSH announced that, on his orders, “the United States military has begun strikes against Al-Qaeda terrorist training camps and military installations of the Taliban regime in Afghanistan.”

10. On 13 November 2001, BUSH authorized the detention of alleged terrorists and subsequent trial by military commissions, which he ordered would not be subject to the principles of law and rules of evidence applicable to trials held in U.S. federal courts. In this order, BUSH vested himself with the power to detain and try by military commission a broad category of persons believed to be, or have been, linked to the acts of international terrorism. In this order, BUSH further vested his Secretary of Defense, Donald Rumsfeld, with certain powers related to the detention of such persons and the establishment of military commissions. BUSH emphasized that tasking his subordinate, Rumsfeld, with these responsibilities related to detention policies “shall not be construed to limit the authority of the President as Commander in Chief of the Armed Forces [...].” Finally, through this order, BUSH purported to strip detainees of the power to seek a remedy not only in U.S. federal courts but also in “any court of any foreign nation, or any international tribunal.”

11. By late 2001, BUSH was planning for the detention of individuals at the U.S. Naval Station at Guantánamo Bay, Cuba (Guantánamo) as evidenced by memoranda [PDF] addressing the question of whether the U.S. federal courts would have jurisdiction of individuals detained in Guantánamo — a prospect which BUSH sought to foreclose through his 13 November 2001 Order.

12. On 11 January 2002, the first detainees arrived in Guantánamo Bay, Cuba.

13. On 18 January 2002, BUSH decided that the Third Geneva Convention did not apply to the conflict with al Qaeda or members of the Taliban, and that they would not receive the protections afforded to prisoners of war. This decision was taken upon consideration of advice [PDF] from John Yoo and Robert Delahunty, both of the Department of Justice (“DOJ”) Office of Legal Counsel (“OLC”), and the additional oral advice of his Chief White House Counsel, Alberto Gonzales [PDF].

14. On 19 January 2002, Secretary of Defense Rumsfeld transmitted BUSH‘s determination regarding the status of the Taliban and al Qaeda to combatant commanders, along with the order that the commanders should treat such individuals in a manner “consistent” with the “principles” of the Geneva Conventions only “to the extent appropriate and consistent with military necessity” [PDF]. The combatant commanders were ordered to transmit the content of this memo to the subordinate commanders, including commander of Joint Task Force (JTF) 160 responsible for Guantánamo.

15. On 25 January 2002, the ICRC made its first visit to the detention facility in Guantánamo Bay, Cuba.

16. On 27 January 2002, BUSH‘s Secretary of Defense, Rumsfeld, visited the U.S. detention facility at Guantánamo.

17. On 7 February 2002, pursuant to his “authority as Commander-in-Chief and Chief Executive of the United States,” BUSH issued a memorandum stating that the Geneva Conventions do not apply to the conflict with Al-Qaeda, and that Common Article 3 of the Geneva Conventions did not apply to either Al-Qaeda or Taliban detainees [PDF]. BUSH called only for detainees to be treated humanely and “to the extent appropriate and consistent with military necessity, in a manner consistent with principles of Geneva,” as a matter of policy — not law. In so doing, BUSH rejected Secretary of State Colin Powell‘s calls to reconsider and reverse his 18 January 2002 determination regarding the application of the Geneva Conventions, and disregarded the advice of the Legal Advisor to the State Department that the non-application of the Geneva Conventions to the conflict in Afghanistan was inconsistent with plain language of the Geneva Conventions and unvaried practice of the United States in the fifty years since becoming a party to the Conventions [PDF].

18. In March 2002, the first “high value detainee” Abu Zubaydah was detained and interrogated by the CIA. His detention “accelerated” the development of the CIA interrogation program [PDF]. In his memoir DECISION POINTS, BUSH explained that the decision was taken to transfer Abu Zubaydah to CIA custody and to “move him to a secure location in another country where the Agency would have total control over his environment.”

19. Through, among other means, discussions among members of the NSC, which BUSH chaired, BUSH was fully briefed on, and approved as a matter of policy, the indefinite detention of individuals held by the U.S. government, and specifically, the CIA.

20. The CIA interrogation program sanctioned by BUSH included interrogation techniques that were directly inspired by the “Survival Evasion Resistance Escape (SERE)” training program, in which U.S. military members were exposed to, and taught how to resist, interrogation techniques used by enemy forces that did not adhere to the Geneva Conventions. As detailed in the CIA IG Report, the U.S. employed these techniques, which included waterboarding; confining detainees in a dark box for up to 18 hours at a time and possibly with an insect placed in the confinement box; up to 11 days of sleep deprivation; facial hold or facial slap; “walling,” which consists of pulling a detainee forward and then pushing him back quickly against “a flexible false wall so that his shoulder blades hit the wall;” and use of stress positions, on CIA detainees.

21. As described by the ICRC, the CIA detention program “included transfers of detainees to multiple locations, maintenance of the detainees in continuous solitary confinement and incommunicado detention throughout the entire period of their undisclosed detention, and the infliction of further ill-treatment through the use of various methods either individually or in combination, in addition to the deprivation of other basic material requirements.” The UN Joint Study on secret detentions [PDF, also see here and here] noted that detainees had been held in Afghanistan, Thailand, Poland and Romania, among other locations. The ICRC described the fourteen individuals previously held as part of the CIA detention program, whom BUSH transfered to detention at Guantánamo, and which BUSH announced in September 2006, as “missing persons.”

22. The ICRC Detainee CIA Report further explained that the program “was clearly designed to undermine human dignity and to create a sense of futility by inducing, in many cases, severe physical and mental pain and suffering, with the aim of obtaining compliance and extracting information, resulting in exhaustion, depersonalisation and dehumanisation.”

23. The interrogation methods used on detainees were euphemistically qualified by the U.S. government as “enhanced,” but the United Nations and the ICRC found that they rose to the level of torture and cruel, inhuman or degrading treatment. The ICRC unequivocally concluded that, upon the information gathered from interviews with the former CIA detainees, conducted after their transfer to Guantánamo:

The allegations of ill-treatment of the detainees indicate that, in many cases, the ill-treatment to which they were subjected while held in the CIA program, either singly or in combination, constituted torture. In addition, many other elements of the ill treatment, either singly or in combination, constituted cruel inhuman or degrading treatment.

24. The ICRC concluded that the CIA program‘s interrogation techniques consisted of: suffocation by water — or waterboarding; prolonged stress standing position while arms are shackled above the head; beatings by use of a collar held around the detainees neck and used to forcefully bang the head and body against the wall; beating and kicking; confinement in a box; forced nudity for periods ranging from several weeks to several months; sleep deprivation through use of forced stress positions (standing or sitting), cold water and use of repetitive loud noise or music; exposure to cold temperature; prolonged shackling; threats of ill-treatment to the detainee and/or his family, forced shaving; and deprivation or restricted provision of solid food.

25. The UN Joint Study found that the CIA had taken 94 detainees into custody and had employed “enhanced interrogation techniques to varying degrees in the interrogation of 28 of those detainees.”

26.The CIA interrogations of Abu Zubaydah were videotaped and those videotapes were sent to CIA headquarters. In total there were 92 videotapes, 12 of which included application of so-called “enhanced interrogation techniques.” The videotapes included evidence of torture, including the waterboarding of Abu Zubaydah 83 times. Those videotapes were destroyed by the CIA in November 2005. Abu Zubaydah described to the ICRC his waterboarding:

I was put on what looked like a hospital bed, and strapped down very tightly with belts. A black cloth was then placed over my face and the interrogators used a mineral water bottle to pour water on the cloth so that I could not breathe. After a few minutes the cloth was removed and the bed was rotated into an upright position. The pressure of the straps on my wounds caused severe pain. I vomited. The bed was then again lowered to a horizontal position and the same torture carried out with the black cloth over my face and water poured on from a bottle. On this occasion my head was in a more backward, downwards position and the water was poured on for a longer time. I struggled without success to breathe. I thought I was going to die. I lost control of my urine. Since then I still lose control of my urine when under stress.

27. In November 2002, another CIA detainee held in a secret site, [Abd Al-Rahim] Al-Nashiri, was arrested. He was waterboarded twice in November 2002. Although the CIA IG Report is heavily redacted when discussing the interrogation of Al-Nashiri, it confirms that CIA HQ authorized the use of “enhanced interrogation techniques” against him. As discussed below, BUSH authorized and condoned the waterboarding of Al-Nashiri.

28. A third CIA “high value detainee,” Khalid Sheik Mohammed, was subjected to waterboarding 183 times. In his recent memoir, BUSH specifically acknowledged that, upon request by CIA Director George Tenet, he authorized the use of “enhanced interrogation techniques” on Khalid Sheik Mohammed, including waterboarding. In discussing “haul[ing] out their target,” following a raid on the apartment complex where Khalid Sheik Mohammed was, and the CIA interrogation that followed, BUSH writes in DECISION POINTS:

I was relieved to have one of Al-Qaeda‘s senior leaders off the battlefield. But my relief did not last long. [CIA] Agents searching Khalid Sheik Mohammed‘s compound discovered what one official later called a “mother lode” of valuable intelligence. Khalid Sheik Mohammed was obviously planning more attacks, It didn‘t sound like he was willing to give us any information about them. “I‘ll talk to you,” he said, “after I get to New York and see my lawyer.”

George Tenet asked if he had permission to use enhanced interrogation techniques, including waterboarding, on Khalid Sheik Mohammed. I thought about meeting Danny Pearl‘s widow, who was pregnant with his son when he was murdered. I thought about the 2,973 people stolen from their families by al Qaeda on 9/11. And I thought about my duty to protect the country from another act of terror.

“Damn right,” I said.

Other so-called “enhanced interrogation techniques” used upon Khalid Sheik Mohammed were threats to kill his children and the deprivation of sleep for 180 hours.

29. In a speech given on 6 September 2006, BUSH “officially acknowledged the existence of a CIA terrorist detention and interrogation program.” Defendant BUSH stated that “our government has changed its policies,” and admitted to authorizing an “alternative set of procedures” on persons detained “secretly” and “outside the United States” in a program operated by the CIA, while refusing to specify what techniques were authorized. BUSH also discussed another individual held in this program, Abu Zubaydah. As discussed above, Abu Zubaydah was subjected to acts of torture, including having been waterboarded at least 83 times. Notably, while BUSH stated that there were no detainees held in the CIA detention program as of 6 September 2006, he explicitly reserved the right to place, again, persons in CIA detention in secret sites beyond the reach of the law.

30. In his 6 September 2006 speech, BUSH also expressed fear that members of the U.S. military involved in torture might be prosecuted for war crimes: “some believe our military and intelligence personnel involved in capturing and questioning terrorists could now be at risk of prosecution under the War Crimes Act — simply for doing their jobs in a thorough and professional way.” He emphasized that he would not allow this to happen and asked Congress to prevent detainees from pursuing civil claims against U.S. military personnel for violations of the Geneva Conventions. Through these measures, BUSH sought to provide complete immunity from justice for any member of the U.S. military who tortured a detainee.

31. Having met with the fourteen “high value detainees” held in the CIA program following their transfer from secret sites to Guantánamo in September 2006, the ICRC concluded that it “clearly considers that the allegations of the fourteen include descriptions of treatment and interrogation techniques – singly or in combination – that amounted to torture and/or cruel, inhuman or degrading treatment.”

32. On 11 June 2007, the Parliamentary Assembly of the Council of Europe, of which Switzerland is a member state, published an investigative report authored by Dick Marty on secret detentions and illegal transfers of “high value detainees” by the CIA involving Council of Europe member states. The report confirmed the existence of secret CIA sites in Poland and Romania and found that the interrogation techniques used on detainees were “tantamount to torture.” On 27 June 2007, the Parliamentary Assembly, adopted a resolution in which it unequivocally stated:

The detainees were subjected to inhuman and degrading treatment, which was sometimes protracted. Certain “enhanced” interrogation methods used fulfill the definition of torture and inhuman and degrading treatment in Article 3 of the European Convention on Human Rights (ETS No. 5) and the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.

33. In March 2008, BUSH vetoed legislation that would have banned the CIA from using “enhanced interrogation techniques,” including waterboarding, saying it “would take away one of the most valuable tools on the war on terror.”

34. In addition to detainees in the CIA detention program, these SERE-inspired “interrogation techniques” were also used against Mohammed al-Qahtani, a detainee at Guantánamo who was subjected to a prolonged, aggressive interrogation that violated international law, known as the “First Special Interrogation Plan” [PDF]. This interrogation plan, which began on 23 November 2002 and ended 16 January 2003, included 48 days of severe sleep deprivation and 20-hour interrogations, forced nudity, sexual humiliation, religious humiliation, dehumanizing treatment, the use of physical force against him, prolonged stress positions, prolonged sensory overstimulation, and threats with military dogs. These techniques were later widely acknowledged as torture. Indeed, the former convening office of the military commissions at Guantánamo, Susan Crawford, declared that she could not bring charges against Mr. al-Qahtani due to the torture inflicted on him: “we tortured al-Qahtani. … His treatment met the legal definition of torture. And that’s why I did not refer the case for prosecution.”

35. There have been a plethora of reports published that detail the draconian conditions, interrogation techniques and torture that took place at Guantánamo. Since as early as 2003, ICRC staff had expressed their deep concerns about the detention conditions in Guantánamo — indeed, published memoranda by U.S. officials from that period contain descriptions of meetings held between ICRC staff and Guantánamo commander Geoffrey Miller where concerns were raised [PDF]. In 2006, a group of five United Nations Special Rapporteurs published a joint Report on the situation of detainees at Guantánamo Bay. Crucially, this report came to the express conclusion that the interrogation techniques authorized and deployed by the Department of Defence, which operates under the command of BUSH, amounted to torture. Additionally, the UN experts also concluded inter alia that the force-feeding of detainees on hunger strike amounted to acts of torture [PDF]. A 2006 report by the United Nations Committee against Torture explicitly recommended that the U.S. “rescind any interrogation technique, including methods involving sexual humiliation, ‘water boarding‘, ‘short shackling‘ and using dogs to induce fear, that constitute torture or cruel, inhuman or degrading treatment or punishment” [PDF]. A 2008 study by Physicians for Human Rights came to the conclusion that many techniques used in Guantánamo, especially those exercised over a longer period or in combination with other techniques, amounted to torture. Other studies have detailed how the BUSH administration, for example, forcibly deployed the drug mefloquine against detainees at Guantánamo in order to break their resistance to interrogation, despite the fact that it is well-known to have severe side effects and cause health problems [PDF]. In sum, there is widespread international acceptance — amongst intergovernmental bodies, international experts, academics and others — that the interrogation techniques applied in Guantánamo constitute torture under international law.

36. Finally, as is well-known, detainees in Iraq, including at the notorious Abu Ghraib prison, were also subjected to torture, cruel, inhuman and degrading treatment, and other serious violations of international law [Taguba PDF, Fay/Jones PDF, ICRC PDF, Schlesinger PDF].

C. Admissions and Findings that BUSH Authorized and Approved Torture

37. George W. BUSH has acknowledged on numerous occasions, and without any apparent remorse or consequence that he authorized and condoned the waterboarding of detainees held in U.S. custody, and that he was aware of and condoned the use of so-called “enhanced interrogation techniques.” BUSH‘s own admissions are consistent with, and confirm the findings of key reports, such as the CIA Inspector General‘s Report and the Marty Report.

38. The CIA IG Report confirms that BUSH was fully briefed on the specific “enhanced interrogation techniques” employed by the CIA, through consultations carried out in the summer of 2002 by the CIA with the NSC, which BUSH chaired, and with “senior Administration officials.” The CIA IG Report further confirms that in early 2003 the CIA continued to inform senior Administration officials, including the White House Counsel and others of the NSC, of the status of its Counterterrorism Program, because “[t]he Agency specifically wanted to ensure that these officials and the [Congressional] Committees continued to be aware of and approve CIA‘s actions.” Select members of the NSC were given a detailed briefing on the program by the CIA on 29 July 2003, and again on 16 September 2003: “none of those involved in these briefings expressed any reservations about the program.” BUSH met daily with, and was briefed by, his intelligence team.

39. In addition, BUSH played an active role in supporting the CIA secret detention program. Marty‘s Council of Europe investigation, for example, reported that BUSH welcomed to the Oval Office a high-level group of delegates from Bucharest to personally thank them to their contribution to the CIA program, as Romania hosted CIA black sites.

40. In an April 2008 interview with ABC News, BUSH acknowledged that he knew of the detailed discussions members of his national security team (the “Principals Committee” of the NSC) were having to define the interrogation techniques to be used by the CIA. When asked about the treatment of Khalid Sheik Mohammad, which included waterboarding, BUSH said: “I didn’t have any problem at all trying to find out what Khalid Sheikh Mohammed knew.”

41. BUSH released his memoir, DECISION POINTS, on 9 November 2010. In the book, BUSH states unequivocally that he authorized the torture, including waterboarding, of individuals held in U.S. custody. He further admits and acknowledges his role in selecting and approving the interrogation techniques used by the CIA: “I took a look at the list of techniques. There were two that I felt went too far, even if they were legal. I directed the CIA not to use them. Another technique was waterboarding, a process of simulated drowning. No doubt the procedure was tough [...] I would have preferred that we get the information another way. But the choice between security and values was real. Had I not authorized waterboarding on senior Al-Qaeda leaders, I would have had to accept a greater risk I was unwilling to take. [...] I approved the use of the interrogation techniques.”

42. BUSH details how at his direction, Department of Justice and Central Intelligence Agency lawyers conducted a legal review of the list of interrogation techniques proposed by the CIA. (Notably, the current U.S. Attorney General, Eric Holder, has unequivocally defined waterboarding as an act of torture.) Having received legal advice from government lawyers that it is permissible to waterboard detainees, BUSH admits that he responded “damn right” to the query of whether Khalid Sheik Mohammed could and should be waterboarded.

43. In an interview with Matt Lauer of NBC News on 8 November 2010, BUSH again admitted that he authorized acts of torture, including waterboarding:

BUSH: [...] one of the high value al Qaeda operatives was Khalid Sheik Mohammed, the chief operating officer of al Qaeda, ordered the attack on 9/11, and they say he’s got information. I said, “Find out what he knows.” And so I said to our team, “are the techniques legal?” And he says, “yes, they are,” and I said, “use ‘em.”
LAUER: Why is waterboarding legal, in your opinion?
BUSH: Because the lawyers said it was legal. He said it did not fall within the Anti-Torture Act. I’m not a lawyer, but you gotta trust the judgment of people around you and I do.
LAUER: You say it’s legal and “the lawyers told me.”
BUSH: Yeah.
LAUER: Critics say that you got the Justice Department to give you the legal guidance and the legal memos that you wanted.
BUSH: Well –
LAUER: Tom Kean, who was a former Republican co-chair of the 9/11 commission, said they got legal opinions they wanted from their own people.
BUSH: He obviously doesn’t know. I hope Mr. Kean reads the book. That’s why I’ve written the book. He can — they can draw whatever conclusion they want.

44. BUSH‘s admission of authorizing torture techniques was previously acknowledged by the second-highest ranking member of his administration, Vice President Dick Cheney. On 10 May 2009, former Vice President Cheney appeared on the CBS News television program Face the Nation. Asked what BUSH had known about torture methods, Cheney replied, “I certainly, yes, have every reason to believe he knew — he knew a great deal about the program. He basically authorized it. I mean, this was a presidential-level decision. And the decision went to the president. He signed off on it.”

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) and of two other books: Stonehenge: Celebration and Subversion and The Battle of the Beanfield. To receive new articles in your inbox, please subscribe to my RSS feed (and I can also be found on Facebook and Twitter). Also see my definitive Guantánamo prisoner list, updated in July 2010, details about the new documentary film, “Outside the Law: Stories from Guantánamo” (co-directed by Polly Nash and Andy Worthington, on tour in the UK throughout 2011, and available on DVD here), my definitive Guantánamo habeas list and the chronological list of all my articles, and, if you appreciate my work, feel free to make a donation.

The investigation is of enormous significance, as the Polish Prosecutor has granted “victim” status to two men held at the prison — the “high-value detainees” Abd al-Rahim al-Nashiri (in October) and Abu Zubaydah (just three weeks ago) — meaning that the Polish government possesses information identifying both men and their presence at the prison, almost certainly between December 2002, when they were flown to the prison from Thailand, and September 2003, when they were moved elsewhere — possibly to Guantánamo, where a secret prison-within-a-prison existed until March 2004, when the “high-value detainees” were moved again.

Despite this, progress in Poland, since the investigation opened in 2008, has been painfully slow, as those affected by it have refused to acknowledge the prison’s existence, and have ridiculed anyone who has attempted to expose its existence, or to suggest that senior officials had knowledge of it.

Although, personally, I believe that the granting of “victim” status to al-Nashiri and Zubaydah means that the Polish investigation cannot be effectively stifled — and made a point of telling this to audiences in Poland — I understand concerns that it will go the way of a similar investigation in Lithuania, where another secret CIA prison also existed, but where an investigation fizzled out just a month ago.

As Amnesty International reported, in a call for the investigation to be reopened, although a Lithuanian parliamentary inquiry “issued a report in December 2009 concluding that the secret prisons existed and that SSD [State Security Department] officials should be investigated for ‘abuse of power’ under Lithuanian law,” the Lithuanian Prosecutor General closed the investigation last month, feebly noting that SSD officials “had committed ‘disciplinary offenses’ by failing to notify top government officials of the operation,” but claiming that a statute of limitations on the investigation had run out.

While I was in Poland, however, I also had other reassuring news for the audiences at the screenings. The first was that, despite attempts by the Obama administration to suppress a judicial investigation in Spain into the conduct of six senior Bush administration lawyers responsible for providing the flawed legal advice that underpinned the torture program, the case, which started in March 2009, is still ongoing. The lawyers in question are David Addington, Jay S. Bybee, Douglas Feith, Alberto Gonzales, William J. Haynes II and John Yoo, and the Center for Constitutional Rights (along with the Berlin-based European Center for Constitutional and Human Rights) recently filed two briefs in Spain — not only in connection with the case against the lawyers, but also in another investigation into the torture program.

This second case was initiated by Judge Baltasar Garzón in April 2009, when he opened a preliminary investigation into what he termed “an authorized and systematic plan of torture and ill-treatment on persons deprived of their freedom without any charge and without the basic rights of any detainee, set out and required by applicable international conventions,” in US detention facilities, and CCR’s recent submission outlines the complicity in torture of Guantánamo’s former commander, Maj. Gen. Geoffrey Miller, who was in charge during the worst of the torture at the prison in 2002 and 2003, requesting that a subpoena be issued for Miller to testify before the judge who has taken over the case from Judge Garzón.

The second piece of good news was that, while I was in Poland, a court case began in Macedonia, in which Khaled El-Masri, a German citizen who was seized in Macedonia on New Year’s Eve 2003 and rendered to a secret CIA torture prison in Afghanistan for five months until the US government realized that he had been seized by mistake (because he had the same name as a man who allegedly provided support to the 9/11 hijackers), is suing the Macedonian government for 50,000 Euros ($70,000) in damages.

Although Clara Gutteridge, an investigator with Reprieve and the Open Society Justice Initiative, who testified on the first day of the hearings last week, complained that “the strategy of the Macedonian government in this case is not to address the evidence that has been presented to them, but [to] simply continue to deny, deny and deny,” the case is expected to last two years, and lawyers I have spoken to have suggested that it may meet with success, because the Macedonian government does not have an array of high-powered lawyers able to effectively block investigations.

It was, however, a third piece of news that particularly brightened up my last few days in Poland, when I was able to tell audiences that George W. Bush had just cancelled a proposed trip to Switzerland on February 12, because two former victims of his torture program — the al-Jazeera cameraman Sami El-Hajj (who was released from Guantánamo in May 2008) and Majid Khan, a “high-value detainee” who was moved to Guantánamo in September 2006, after years in secret CIA prisons — had filed criminal complaints against Bush for his involvement in their torture, prepared by the Center for Constitutional Rights and the European Center for Constitutional and Human Rights, with support from the International Federation for Human Rights (FIDH).

This was enormously significant, as Vince Warren, the Executive Director of CCR, explained in an article in the Huffington Post:

Swiss law requires the presence of an alleged torturer on Swiss soil before a preliminary investigation can be open. Because Bush canceled, the complaints could not be filed as the basis for legal jurisdiction no longer existed. However, the fact that Bush authorized torture remains … In the long run, ducking a charge of torture is not as easy as ducking a shoe thrown at a press conference.

Warren also announced that, on the day that the criminal charges were to be filed in Switzerland — which was also the 9th anniversary of the day in 2002 when the former President decided that “the Geneva Conventions did not apply to the conflict with al-Qaeda or to so-called ‘unlawful combatants’” — CCR publicly released the Preliminary Bush Torture Indictment, which “provides a strong factual and legal basis to hold Bush accountable — in any of the 147 countries which have ratified the [UN] Convention Against Torture (CAT) — for having authorized torture. In addition, the Indictment compiles more than 2,500 pages of publicly available supporting material, and has the support of two Nobel Peace Prize winners, more than 60 NGOs, and two former UN Special Rapporteurs on Torture and on the Independence of Judges and Lawyers.”

Warren concluded his article with a very pertinent question, asking why, when “the rest of the world gets much smaller for George W. Bush … is Eric Holder comfortable with allowing him safe haven here in the United States?”

The answer to that question is half-submerged in a miasma of fear, cowardice and political expediency on the part of the Obama administration, which is grim news for those, like myself, seeking the closure of Guantánamo and the thorough and necessary repudiation of the violent and arrogant face of America’s deluded sense of exceptionalism, which defined the Bush years. However, despite these profound disappointments, the fact that the torturer-in-chief has been made unwelcome in Europe — and, in theory, anywhere outside the US –  is heartening news indeed.

Note: For further information about European complicity in secret detention and torture, see Amnesty International’s recent report, “Open Secret: Mounting Evidence of Europe’s Complicity in Rendition and Secret Detention” (PDF).

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) and of two other books: Stonehenge: Celebration and Subversion and The Battle of the Beanfield. To receive new articles in your inbox, please subscribe to my RSS feed (and I can also be found on Facebook and Twitter). Also see my definitive Guantánamo prisoner list, updated in July 2010, details about the new documentary film, “Outside the Law: Stories from Guantánamo” (co-directed by Polly Nash and Andy Worthington, on tour in the UK throughout 2011, and available on DVD here), my definitive Guantánamo habeas list and the chronological list of all my articles, and, if you appreciate my work, feel free to make a donation.

As published exclusively on the website of the Future of Freedom Foundation.

In addition — and perhaps most crucially — Moazzam and I were looking forward to having the opportunity to discuss the existence, in the early years of the “War on Terror,” of a secret CIA torture prison at Stare Kiejkuty, near Szymany, where a number of “high-value detainees,” including Khalid Sheikh Mohammed, the alleged mastermind of the 9/11 attacks, were held, as part of a network of secret prisons that also included facilities in Thailand, Romania, Lithuania and Morocco.

This aspect of the tour is of particular relevance right now because one of the men held in Stare Kiejkuty was Abu Zubaydah, a man who, it turned out, was not a significant terrorist at all, but was, instead, the mentally damaged gatekeeper for a training camp in Afghanistan that was closed down by the Taliban in 2000 because its leader, Ibn al-Shaykh al-Libi, refused to allow it to be taken over by Osama bin Laden. Just two weeks ago, Abu Zubaydah was granted “victim” status by the Polish Prosecutor in an ongoing investigation into the complicity of the Polish government — under former Prime Minister Leszek Miller and former President Aleksander Kwasniewski — in the establishment of the secret prison. This followed the granting of “victim” status to another “high-value detainee,” Abd al-Rahim al-Nashiri — allegedly the mastermind of the atack on the USS Cole in 2000 — last October.

Moazzam and I were met at the airport in Kraków by Anna Minkiewicz, a friend and supporter who, heroically and almost single-handedly, organized the tour and translated and sub-titled the film, which, in Polish, is “Poza Prawem: Echa z Guantánamo,” although she could not have done so without some heroic assistance on the subtitles, from Polly, here in the UK, and without the dedicated support in Poland of Przemysław Wielgosz, the chief editor of the Polish edition of Le Monde Diplomatique, who supplied all the contacts for the tour’s local media partners — a great group of people who not only made us welcome everywhere we went, but also arranged most of the publicity. Despite communicating by email for many years (since Anna first contacted me out of the blue with the kind of detailed and engaging email that is all too rare), we had never met, and I was looking forward to spending a week together, and also to spending a few days with Moazzam, who was only able to stay for the first two screenings in Warszawa and Łódź.

After settling in for the evening, in wonderful high-ceilinged rooms in a well-preserved building overlooking the Main Market Square (one of the largest in Europe), Anna took us, past some excellent architecture (including St. Mary’s Basilica and the Sukiennice — or Cloth Hall), to a charming little restaurant, where we happily spent a few hours in a free-wheeling discussion that touched on Guantánamo, Afghanistan and Africa, amongst other topics.

Day One: Kraków and Warszawa (Warsaw)

In the morning, we made our way across the square to a bar overlooking the Cloth Hall, for a live interview with TVN, one of the major independent TV channels in Poland, for the morning news, which was an excellent opportunity for Moazzam and I to publicize the tour, to explain why we were in Poland, and how the Polish people can help to close Guantánamo by offering new homes to cleared prisoners. I had been interviewed in London in December by another TVN reporter, Michal Sznajder, for a programme about the British government’s financial settlement with former Guantánamo prisoners (which has not yet been broadcast), so I was aware that TVN employs some fine journalists interested in covering important topics. The presenter, Marcin Sawicki, was well prepared, having watched the film the night before, and the interview is available here (in Polish), although in retrospect it was disappointing that, in the six minutes alloted to us, we didn’t have the opportunity to raise the topic of the secret CIA prison.

After the interview, while I returned to my room to catch up on emails, Moazzam and Anna visited the Jewish Quarter, where the echoes of the Holocaust obviously left a deep impression on Moazzam (who attended a Jewish school as a child), as it was something he referred to repeatedly during the rest of his visit — and in fact, as Moazzam and I both attempted to understand modern, post-Communist Poland, on our first ever visit, and the circumstances in which a government desperate for approval from the US agreed to host a secret torture prison on Polish soil, we were constantly prompted to draw analogies with the torture and brutality of the Nazis and the Soviet Union, which provide — or ought to provide — powerful resonances for the Polish people, and unassailable reasons why new atrocities should not have been allowed to happen in their country.

After a late breakfast, we then made our way to the station to catch a train to Warsaw. In Poland’s railway stations, the ghosts of the Soviet era were more tangible than they were in the streets of Kraków in particular, which was an almost miraculous survivor of the devastation of Poland by the Nazis, and is now a major tourist attraction, but the trains, although old and slow for the most part, were a delight, with the kind of six- or eight-person compartments that have now vanished from Britain, but which have a particular charm and intimacy not replicated in modern, open-plan carriages.

Our first stop in Warsaw was Kino Muranów, where we were met by the tall and enthusiastic figure of Bartek Kurzyca of the Globale political collective, which has connections in Berlin and Montevideo, and which was the media partner for our events in Warsaw.

The first of these was a press conference with Bartlomiej Jankowski, the lawyer for Abu Zubaydah, a smart and serious man who greeted us warmly, and added depth and resonance to our introduction to the Polish media. It was a great pleasure to meet him, and the press conference was a success, with Moazzam and I interviewed afterwards by Wojciech Cegielski of Polskie Radio and Adam Krzykowski of the State broadcaster TVP. At 6 pm, TVP broadcast a report on the press conference in its news programme “Panorama,” which was useful and important.

Moazzam and Anna and I actually watched the “Panorama” report in the office of Mikołaj Pietrzak, the lawyer for Abd al-Rahim al-Nashiri, where we had a meeting (after dropping our bags off at our hotel) that also included Irmina Pacho of the Helsinki Foundation for Human Rights, which played a crucial role last summer in obtaining the flight logs for the flights in and out of Stare Kiejkuty between December 2002 and September 2003, and I wrote about the flight logs last August, in an article entitled New Evidence About Prisoners Held in Secret CIA Prisons in Poland and Romania and followed up with Will Poland’s Former Leaders Face War Crimes Charges for Hosting Secret CIA Prison? This was when I first made contact with Adam Bodnar of the Helsinki Foundation — a contact that led me, on this trip, to make contact with Bartlomiej Jankowski, Mikołaj Pietrzak and Irmina Pacho.

The meeting with the lawyers was particularly useful, reassuring them that their cause has not been forgotten, that it is being watched with intense interest by lawyers, activists and other decent-minded people in countries around the world (including the US and the UK) and that, despite large-scale indifference in Poland, it was also possible to stir up interest through the film and the tour, and to establish important contacts across the country, and the building blocks for a network of interested parties who can move forward with their shared interests. The meeting was also extremely useful for providing Moazzam and I with strategies for the future, and I was delighted to receive English language translations of various important documents — as well as new and relevant information — that I’ll be writing about in another article in the very near future.

From Mikołaj Pietrzak’s office, we returned to Kino Muranów, where it was enormously satisfying to discover that the cinema was packed, and that at least 200 people had turned up to watch the film’s first public outing in Poland. After we had sneaked off, during the screening, for some food — which turned out to be a surreal meal in a Vietnamese vegan restaurant where we had to order our food based solely on rather lurid photos — we returned for the Q&A session, and were joined by  Draginja Nadażdin, the director of Amnesty International Poland (which provided some support for the tour), and had our first taste of the dedication with which Polish audiences pursue opportunities to ask questions.

Day Two: Warszawa (Warsaw) and Łódź

On Wednesday morning, after breakfast and a quick tour of the centre of Warsaw, painstakingly reconstructed after its complete destruction by the Nazis, we took a taxi to the outskirts of town, to a studio where Moazzam and I were interviewed for a documentary about the secret prison that is being made by Roman Kurkiewicz, a veteran of the Solidarity movement (Solidarnosc), and also a journalist, author and professor, and the kind of principled revolutionary pro-democracy figure that I admired while watching the rise of Solidarity from afar 30 years ago. The documentary promises to be excellent, and I made sure that Roman knew that I would be delighted to tour it and make it available in the UK and the US if he makes an English version.

From the studio, we rushed to the station to catch the train to Łódź, where we were met by Marek Jedliński of of Krytyka Polityczna, and, at the cinema, his wife and the two translators for the evening. With some time to spare, we had an opportunity to chat, to enjoy some home-cooked food on sale in the basement of the cinema (which is also a cinema museum, with some wonderful old projectors filling the corners of various rooms), and also to be photographed (see the photos here and here) prior to an interview, during the screening (when we again retired downstairs), with Moazzam and I, which was conducted by a reporter from the Polish news agency Polska Agencja Prasawa, and which formed the basis of an article (available here in Polish) in the newspaper Gazeta Wyborcza.

For the second night, the cinema was packed out, with around 100 people, and the screening was followed by another lively Q&A session (audio here, in Polish and English), in which Moazzam, Anna and I were also joined by Wojciech Makowski of Amnesty International Poland. With translators (not available in Warsaw), it was, I think, a more satisfying Q&A session, with all the major topics covered, and a true abhorence of torture vividly expressed in various quarters of the crowd.

Afterwards, when I had let Wojciech Makowski know that I was happy for Amnesty to use my list of the remaining prisoners to encourage Amnesty members to write to the prisoners in Guantánamo (and also see here), the organizers took us to Ganesh, an excellent Indian restaurant, where we chatted away merrily and devoured butter chicken, garlic naan, and, in my case, some rather fine mutton with spinach, before retiring to our hotel. With two days completed, it was obvious that the tour was proving to be a great success.

Day Three: Poznań

After a late night in our hotel, in a block with an evident Soviet history, where Moazzam and I, who were sharing a room, stayed up talking about the tour, about Shaker Aamer, about anti-terror legislation in the UK, and about the plight of the Yemenis in Guantánamo (and I then retired to the bathroom to write Guantánamo: A Tale of Two Tunisians, letting Moazzam sleep), I awoke to find that Moazzam had already left for the station, to catch a train to Warsaw and a flight home. After breakfast, Anna and I returned to the station for the next stage of our journey, to Poznań, where we met up again with Draginja Nadażdin, the director of Amnesty International Poland, for a screening in another arthouse cinema, Kino Rialto.

The publicity in Poznań had been very last-minute, so there was not a huge audience, but the 30 or so people who did attend were refreshingly committed, and, after Anna, Draginja and I had grabbed some food in the only nearby place that wasn’t McDonald’s (a little pasta place), we had an excellent Q&A session, honing our messages about dispelling the lies about Guantánamo, and pushing for the resettlement of cleared prisoners and greater visibility for the topic of the torture prison.

Day Four: Wrocław

On Friday morning, after filling up on coffee and breakfast at our well-appointed hotel — where, the day before, I had thought the recent smoking ban in Poland didn’t apply, because the owner was so brazenly smoking in his own dining room — Anna and I took the train to Wrocław (formerly known as Breslau, and handed over from German to Polish control after the Second World War), where we were met by Aneta Jerska of Falanster, a collective of young activists with a lovely bookshop, and fine food and coffee, where we got to relax for an hour or so after dropping our bags off at the no-frills, Soviet-era Hotel Polonia, complete with sullen staff.

From Falanster, we made our way to Kino Warszawa, a delightfully unreconstructed old cinema (in a country with its fair share of unreconstructed old cinemas) inside a splendid old building, where I was introduced to my translator for the evening, and also to Józef Pinior, our very special guest. A former member of the Solidarity movement, he was an MEP from 2004 to 2009, and, crucially, was first a member, and then the Vice-Chair of the Subcommittee of Human Rights, where he worked with other MEPs, including the UK’s Sarah Ludford, on a crucial investigation into renditions in Europe in the “War on Terror,” which was published in January 2007, and entitled, “Report on the alleged use of European countries by the CIA for the transportation and illegal detention of prisoners” (PDF, and see the resolution here).

As a result of his investigations, Józef Pinior came across information in Poland establishing that the Polish government not only sanctioned the establishment of a secret CIA prison in Poland, but was actively involved in it (as will be discussed in more detail in a forthcoming article). Despite this, he found himself ridiculed in Poland by those he sought to expose, although his presence on Friday — and the rare opportunity to discuss the secret prison in a public forum — drew the most spirited audience of the tour, anxious to debate ways to take the story forward, and, from feedback I received afterwards, grateful that Anna and I had brought the film to Wrocław, that I was bringing news of interest in the story of the prison from outside Poland, and that Józef Pinior had an opportunity to explain what he knew to a sympathetic audience, and was able to assert that the Prosecutor’s granting of “victim” status to Abu Zubaydah and Abd al-Rahim al-Nashiri establishes, beyond any doubt, that both men were held in the secret prison at Stare Kiejkuty.

After the screening and the Q&A session, a group of us — including Józef Pinior, Anna, Aneta and I — found a wonderful Armenian restaurant around the corner from the cinema, with great food (my beef and spinach was excellent), where we discussed the secret prison, Pinior’s investigations, and the state of politics in Poland, enabling to understand more about how he could have been so thoroughly sidelined by politicians and the media.

We also proceeded more generally to discuss the dangers of unchecked global capitalism , especially in the wake of the 2008 financial crisis, and the failure of governments to legislate against the banking sector, or to hold anyone accountable, and the need for new political responses. As throughout my visit, I was happy to point out that savage ideological cuts in the UK have provoked significant resistance by students and scholchildren, but also to concede that it does not yet constitute a new political movement, and broad coalitions (as with Solidarity) and further spurs to erode complacency and apathy will be needed before there is any real hope of a paradigm shift in the problems of the West.

Day Five: Kraków

For the last screening of the tour, Anna and I took a four and a half hour train ride back to Kraków, arriving with time to drop our cases off at Anna’s apartment, and to make our way to Kino Agrafka, another lovely arthouse cinema in a rambling old building, where another lively audience, of about 50 people, had forsworn the more recreational attractions of a Saturday night for an evening of arbitrary detention and torture. I was, by now, clinging to consciousness somewhat, but a Polish speciality for dinner — tasty meat and vegetable stew served inside a hollowed-out loaf of bread — and a few coffees brought me back to life a little for the final Q&A session of the tour, and afterwards Anna and I retired to a bar with one of the audience members.

Unwinding after an intense but rewarding week was a precursor to my final day in Kraków, which involved sleeping, eating, shopping and chatting before my flight back on Monday morning. It was not the easiest week I have ever had, as I received the sad news on Thursday evening that my father had passed away suddenly, which was difficult to deal with so far from home, but it was a very worthwhile trip, and I am deeply grateful to Anna for organizing it and funding it, and also for being there for me when I received the news about my father’s death.

In combatting the injustices of the “War on Terror,” and calling for accountability for America’s torturers (and their allies), those of us working in the US and the UK over the last nine years have realized that it is a long road, and not one for those seeking instant results. I hope that my presence, and that of Moazzam, helped to raise awareness of this amongst Poland’s anti-torture activists, as well as reassuring them that they are not alone, and I hope also that, with Anna, we helped to keep the story of the secret prison — and of cleared prisoners in Guantánamo who need new homes — alive in the media.

From my point of view, the trip was worth it alone for the audiences who saw the film and engaged in the Q&A sessions, for the media interest, and for the contacts I established with activists, lawyers and journalists, but I’m also pleased that it was more than just the sum of its parts — that Anna was such an engaging host, and that there are so many lovely people in Poland.

Note: In Poznań and Kraków, university lecturers who attended the screenings asked for (and received) copies of the film, to arrange screenings in their universities and to use in lecture topics for their students. I would like to encourage more people to do this, and also hope that there will be interest in making the sub-titled version of the film available on DVD. Please contact me (or Anna Minkiewicz if  writing in Polish) if this is of interest.

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) and of two other books: Stonehenge: Celebration and Subversion and The Battle of the Beanfield. To receive new articles in your inbox, please subscribe to my RSS feed (and I can also be found on Facebook and Twitter). Also see my definitive Guantánamo prisoner list, updated in July 2010, details about the new documentary film, “Outside the Law: Stories from Guantánamo” (co-directed by Polly Nash and Andy Worthington, and available on DVD here), my definitive Guantánamo habeas list and the chronological list of all my articles, and, if you appreciate my work, feel free to make a donation.

As published exclusively on Cageprisoners.

Revolution Interview with Investigative Journalist Andy Worthington
The Outrage of the Bush-Obama Military Commissions

According to recent news reports, the Obama administration is getting ready to conduct a new series of Military Commissions trials for a number of prisoners being held at the U.S. torture camp at Guantánamo. These Military Commissions, begun under George W. Bush, basically deprive defendants of all rights, and have been part of the whole new level of fascistic repressive measures since 9/11. Revolution talked about the background and the new developments around the Military Commissions with Andy Worthington, 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 U.S.). His website is here.

The Revolution Interview is a special feature of Revolution to acquaint our readers with the views of significant figures in art, theater, music and literature, science, sports and politics. The views expressed by those we interview are, of course, their own, and they are not responsible for the views published elsewhere in our paper.

Revolution: Before we get into the new developments, can you give us some background on the Military Commissions — what they are, their beginnings?

Andy Worthington: What they are is a specific type of military trial that has been used throughout American history. It was most recently used in the Second World War, in the cases of certain Nazi saboteurs. And when the Bush administration was fishing around for new ways to deal with people it had captured, in the early days of the “war on terror,” then it came across the Military Commissions, specifically as they were used in the Second World War. These were established through a “military order,” which was passed with virtually no oversight from anyone, signed by President Bush on November 13, 2001.

The background story to that is that it was essentially hustled through a couple of departments in the White House without anybody really seeing what was going on. Former U.S. Secretary of State Colin Powell later said that he’d not even heard about this, that he saw it on TV. This was essentially the document that established the notion of “enemy combatants” and said these guys can only be tried by Military Commissions, and evidence that would not be permitted in normal courts will be able to be used. I think what was obvious from that document to people who were looking closely was that it was an attempt to set up show trials that would be able to draw on evidence derived from torture and then execute people the administration said were guilty.

It then took quite a while for the administration to be able to put the trials in place. Almost before anything had gotten going, in 2005, a number of prosecutors resigned because they realized this was a bent system. From 2004 to 2006, 10 people were charged. There were various pretrial hearings that were held, but they were all shambolic. Pretty much everything that has ever taken place in a Military Commission hearing as part of the “war on terror” has been shambolic because the rules are so ill-defined, there are so many holes in all the procedures. And this went on until June 2006 when the Supreme Court ruled that the military commissions were illegal. They actually ruled that they contravened the Military Code of Justice and the Geneva Conventions.

So having been thrown out, the Bush administration then went to Congress to revise them. And in that amended form, they have had a second phase of activity. I think it’s quite important to note that at this point, Congress invented war crimes that were tryable by Military Commission. So although the initial idea of having Military Commissions for alleged terror suspects came from Dick Cheney and his chief legal advisor, David Addington, when it was revised by Congress, Congress specifically attempted to make war crimes out of crimes that are not recognized as war crimes, such as “murder by an unprivileged belligerent.”

So at the start of 2007 the Military Commissions were back. From then until the end of the Bush administration, they again stumbled on from one disaster to another. Twenty-eight men were put forward for trials by Military Commission, but only three ever went to trial. The first of those cases was David Hicks, the Australian, and a plea deal had been arranged between Dick Cheney and Prime Minister John Howard of Australia. Hicks had been picked up on the radar in Australia — there was a movement around the injustices against him. So there was a deal that was struck that was supposed to help get John Howard reelected. It failed. But Hicks was “encouraged” to file for a plea deal, whereby he spent another six months in prison back in Australia, in exchange for admitting to “material support for terrorism” — which is one of the key ingredients in federal court terrorism prosecutions, but is one of the invented “war crimes.” It’s not traditionally been viewed as a war crime.

The second case in the summer of 2007 was Salim Hamdan, who was one of a number of drivers who worked for Osama bin Laden, a Yemeni who had taken the job for money. The military jury in his case threw out the conspiracy charge, correctly understanding that one of the many guys who drove bin Laden around wasn’t privy to any secrets, although they did find him guilty of “material support for terrorism.” The jury gave him a five and a half year sentence but the judge back-dated that to the time of his capture. He was a free man five months after that.

The only other case under Bush — the week before the presidential election in November 2008 — was Ali Hamza al-Bahlul, a Yemeni who had made a propaganda video for al-Qaida, which he admitted to. Al-Bahlul refused to take part in the process at all. As a result he was not represented legally, because lawyers are not allowed to represent an unwilling client, and even though the military was pushing his lawyer to do so, he refused to take part. So they had a trial for a week, which was a completely one-sided trial because he refused to mount a defense at all. And at the end of that, almost on the eve of the presidential elections, he was found guilty and sentenced to life — in Guantánamo, which he is serving. So that is the background under Bush.

Revolution: Stepping back a little, looking at the Military Commissions under Bush, wasn’t this a significant departure from the legal “norms” in the U.S.? In the history of the U.S., there have been many instances of politically motivated cases and injustices, especially involving people who those in power see as threats, or oppressed people on a daily basis. But still, the Military Commissions represented a major leap in repressive measures — in throwing out basic rights, allowing torture, and so on.

Andy Worthington: Well when they were brought back by Congress, there was an attempt by Congress to say that the use of torture wouldn’t be allowed. The fundamental problem with the Military Commissions is that terrorism is a crime, but the Bush administration, and now the Obama administration, were trying to prosecute people in military settings for crimes, which they were trying to turn into war crimes. And that’s the fundamental misconception about the whole thing, why it doesn’t fit together.

Revolution: Barack Obama campaigned with pledges to shut Guantánamo down and stop the Military Commissions, among other promises. So what has happened under Obama?

Andy Worthington: He suspended the Military Commissions on his first day in office in order to review them, and on his second day in office he also issued executive orders that promised to close Guantánamo within a year, upheld the absolute ban on torture, and promised humane interrogations of detainees in the future. However, in May 2009, he delivered a major national security speech at the National Archives, where he put Military Commissions back on the table. He also put the indefinite detention without charge or trial of some prisoners back on the table as well. And all the dreams and hopes that he was going to either charge or release prisoners, and if charged, try them in federal courts began to unravel at that point. So that’s a simple answer, that on May 2009 he was told, or persuaded to change his mind.

Revolution: So what about these recent reports that Obama is planning to ramp up the Military Commissions again?

Andy Worthington: What’s happened under President Obama is that very little was happening for the first 18 months — there were hearings still going on, but the plan was that the administration wanted to have both federal court trials and Military Commissions. In May 2009 the administration moved one man from Guantánamo, Ahmed Khalfan Ghailani, to the U.S. mainland (and he was sentenced to life without parole in federal court last week). However, in November 2009, when U.S. Attorney General Eric Holder announced that Khalid Sheikh Mohammed and four other men accused in involvement in the 9/11 attacks would be brought to the U.S. mainland to face trial, the backlash against that meant that the administration shelved its plan.

That refusal to follow through on its initial statement meant that it gave Congress time to pass a law prohibiting it, which is what lawmakers did just before Christmas, when they passed legislation preventing President Obama from bringing prisoners to the U.S. mainland to face trial. So Obama’s only option is Military Commissions, but their history, under Obama, has not been better than it was under Bush. Last summer, when I think they had been hoping that federal courts and Military Commissions would be coexisting, they reached the trial phase of Ibrahim al-Qosi, another peripheral figure in the al-Qaida picture, really, a man who from what I can see sometimes was a cook in a compound that was sometimes used by Osama bin Laden. So, you know, pretty tangential to everything. When the administration was faced with the prospect of actually going ahead with a trial, it pushed for a plea deal instead. We don’t officially know how long he’s going to serve but the rumor is that he’ll serve two more years and then go back to Sudan.

And in autumn there was the trial of Omar Khadr, the former child prisoner from Canada, who also accepted a plea deal. And he’s apparently serving eight years, one more year in Guantánamo and seven in Canada. That was a total disgrace because he was a child when he was captured after a battle in Afghanistan.

Revolution: He was also tortured in Bagram prison in Afghanistan and threatened with rape…

Andy Worthington: Absolutely. Was tortured. Was never treated as a juvenile prisoner should be treated according to the UN Convention on the rights of a child in war time—which the U.S. signed after his capture, signed in January 2003, and which require the rehabilitation rather than punishment of juveniles who are under 18 when the alleged crime took place. Plus Khadr had to confess to invented war crimes, that he was an “alien unprivileged enemy belligerent” who was not allowed to be in a combat situation with U.S. forces. It was “illegal” for him to do so. That’s just a complete disgrace. But, unperturbed [laughs] the administration has now announced — it hasn’t been officially announced, but it has been indicated that they’re revving up to hold more trials by Military Commission at Guantánamo. There are four guys we’ve been told about, who are likely the ones who are going to be put on trial.

Revolution: One of them is Abd al-Rahim al-Nashiri, and it has been openly acknowledged that he is one of the detainees that the U.S. tortured with waterboarding. And one of the outrageous things about the Military Commissions is that so-called evidence obtained under torture and hearsay evidence can be used against the defendant, who has no way of challenging them.

Andy Worthington: Yeah, absolutely. And the administration has tried to fudge this. When in November 2009 Holder announced the apparently imminent prosecution of Khalid Sheikh Mohammed and four other men, he also said that the Military Commissions are officially back, and here are five guys that we’re going to put on trial, and he tried to distinguish between the two systems by saying Military Commissions are more connected with activities that took place in the military context, claiming that, in al-Nashiri’s case, which allegedly involved the attack on the USS Cole [in 2000], was a military target, whereas they were saying 9/11 was a civilian target. I don’t think that really stands up to scrutiny because as you’ve indicated, what lies behind this are issues of evidence. And what they’ve actually done is decide what they think they can get away with in whatever forum. And it’s part of the reason that, the more confident they are, then they’ll go for a federal court trial, where torture evidence is definitely excluded, and hearsay evidence isn’t going to wash. They’ve got more leeway in the Military Commissions.

And of course, beyond the federal courts and the Military Commissions, there is a third category of people — those they want to hold indefinitely without charge or trial, because they have said: we think these people are too dangerous, but we don’t even have the evidence that would stand up in a Military Commission — i.e., they really don’t have anything resembling evidence at all. So it would all have to be hearsay. And yes, it’s troubling that they rely on hearsay because it’s so much tied in with the torture program, essentially. Not just the “high-value detainee” program and extraordinary renditions and CIA secret prisons where torture was clearly central, but the fact is that torture permeates so much of the way in which the men were held and interrogated in Afghanistan before they went to Guantánamo. So in Kandahar and primarily in Bagram, as in Guantánamo itself, where there was a regime in place, certainly for two years, that was a version of the torture program that had been used by the CIA in their secret prisons. It didn’t involve waterboarding, but it did involve torture.

Revolution: How many prisoners are there currently at Guantánamo, and what are their conditions of imprisonment?

Andy Worthington: There are 173 men being held at Guantánamo. In general, conditions improved under Obama. This doesn’t apply to all of them. There are still some men held in solitary. In general though, they have been allowed to mingle more and to have some recreational facilities. Although recently we’ve heard from prisoners, who have unclassified phone calls with their lawyers, that there’s something going on there, that they’re actually moving people back into spending more time in isolation. But there has been in general an improvement, which I think has indicated that they’re in it for the long haul.

After all, Guantánamo’s purpose as an interrogation center is long gone. That was the whole point, really, about what the Bush administration wanted, was to hold people outside the law, so that it could do whatever it wanted to do to them, to get what it described as “actionable intelligence.” It wasn’t concerned with what the hell it was going to do with these people, and it wasn’t concerned with prosecution. It was about intelligence. And sadly what happened was that when people didn’t tell them what they thought they should be telling them, whether that was because they were withholding it or they were completely wrong people, then they introduced torture, having fooled themselves into thinking that torture was going to be a good way of getting the truth. But it doesn’t necessarily get you anything even resembling the truth, or you can’t separate the truth from fiction. You end up accusing someone falsely, kicking so many doors down in the middle of the night, and dragging off to dungeons other people whose name was divulged because someone’s been tortured, not because they did anything. That web of where torture leads is absolutely horrible.

Revolution: There are still U.S. prisons, in Afghanistan for example, where people are still being held in conditions of torture…

Andy Worthington: There’s the prison in Bagram. There are persistent stories of a secret prison that is part of Bagram. And I think it’s very credible that, although there has been in general an effort to learn from a lot of the mistakes of the Bush administration, operationally there are certainly people who find it useful to have some leeway in how people can be treated. And I think more fundamentally the problem that is demonstrated by Afghanistan is that Bagram, which is the main prison for the ongoing U.S. operations in Afghanistan, is not a place that has been returned to the rule of the Geneva Conventions. It’s a place where people are held for a significant amount of time without any adequate screening to determine whether they should be there and then are given a review which actually resembles the review process at Guantánamo, which the Supreme Court found inadequate in 2008. The military is not operating according to the Geneva Conventions. That’s the kind of major change that happened, I think, that hasn’t been addressed.

The more disturbing aspect is that around the edges of this amended military detention scenario are people that are kept off the books for a while completely so that they can be leaned on a bit. We’re dealing definitely with torture. All the stories demonstrate that we’re dealing with torture. The magic word for most people with torture is: were they waterboarded. Well that’s not the issue here, really. It’s people that have been subjected to prolonged solitary confinement and sleep deprivation, for example. That’s a form of torture.

Revolution: Are there any other points about these reports of new Military Commission hearings we should be aware of?

Andy Worthington: What we know is that the administration initiated a Task Force when Obama came into office. They spent a year going through all the Guantánamo cases, deciding what to do with them. This involved officials and lawyers from government departments and agencies — I describe them as pretty sober set of career officials — who carefully went through what information they could about the men held to decide what should be done with them. Now I have a problem with that because there’s already a legal process underway, which is their habeas corpus decisions. President Obama had set up essentially a kind of executive parallel review process. So I have a problem with that anyway, but this is their basis for deciding what to do with the men held.

And they said, of the 173 men held — and bear in mind three of the ones are held because of the results of their Military Commissions — they want to put 33 men on trial, they want to hold 48 indefinitely without charge or trial, and the rest ought to be released. And so clearly, there’s a big problem — 89 men recommended for release who are still held. Another big problem — 48 men held indefinitely without charge or trial because any evidence against them you can’t use, so it’s not evidence. And that’s a fundamental problem. Thirty-three men are supposed to be put on trial. So are they going to give up on holding federal court trials? Are they possibly going to, as has been suggested, use Justice Department funds to bypass Congressional ban on bringing prisoners to the U.S. mainland using the Defense budget and put them on trial?

The trial of Ghailani, which resulted in a jury convicting him of only one count out of 285, was portrayed by the supporters of the Military Commissions as a failure. I mean, if you had not been paying attention, you could think that the man was acquitted. He wasn’t. That one charge carried a maximum of life without parole. And last week the judge sentenced him to life without parole. That also proved to Obama’s critics that the federal courts are a safe venue for prosecuting terrorists. I think it’s easy to say that actually it also demonstrated federal court trials are too successful because they deliver punitive sentences. Because if you survey the whole landscape of terrorism-related offenses prosecuted in federal courts, there are very, very worrying sentences being handed down for people doing virtually nothing, receiving enormous sentences.

But if they want to proceed with these trials, of Khalid Sheikh Mohammed, for example, and the four other men in a venue that will be internationally recognized, if they want to attempt to draw a line under the whole of this “war on terror,” which started because of 9/11, and here are the guys who are supposed to have done the whole thing — are they going to do that? Or are they going to accept that, no it’s too unpopular to do that, just leave them in Guantánamo, and we’ll start picking away at people, one by one, and put them on trial in Military Commissions and see if that works? I don’t quite know which course of action they’re going to take. But first of all they’re going to have to get through the trials of the men they’ve put forward.

We’ve spoken about al-Nashiri. But another of the three other men they’ve put forward — Ahmed al-Darbi, picked up in Azerbaijan — seems also to have a history that’s replete with torture, particularly in Bagram, probably in the secret part of Bagram that was running under the Bush administration. One of them, to me, is completely pointless — a minor insurgent, if anything, in Afghanistan, an Afghan named Obaidullah. What on earth is going on here, with an attempt to prosecute him? We’ll have to see how it goes. My feeling is that they will carry on trying to secure plea deals in these Military Commission trials, as it’s the only venue where they can do trials at all at the moment. And it may be that, if you look on average at how the Commissions have worked out, they’re actually working out better for the prisoners in terms of getting out of Guantánamo than any other way.

Revolution: Aside from the individual cases of these prisoners, there is the overall moral and legal implications of the continuing existence of Guantánamo, of indefinite detentions, and so on.

Andy Worthington: I don’t know how it’s possible to shift the discussion to where it should be. But all of this, whatever Obama has tried to do the last few years, has really failed to shift the structure of detention, from what was so falsely established by the Bush administration. This is a new kind of thing in history. We’re not dealing with soldiers. We’re not dealing with criminals. We’re dealing with a new category of human beings who don’t deserve to have any rights, the “enemy combatants.” Now Obama dropped that terminology. But when they want to put the people in Guantánamo on trial in Military Commissions as we saw with Omar Khadr, they have to be declared by a judge to be “alien unprivileged enemy belligerents,” which they think is more in spirit with the Geneva Conventions. But again, it’s a legacy of this fundamental problem that hasn’t been addressed, which is, there is not a third category of prisoner, there are only two types of people that you hold. They are either criminal suspects and you put them on trial — speedily, I believe, is an important aspect of that — or they’re prisoners of war, they’re soldiers who you’ve captured in wartime, whether they’re wearing a regular uniform or not, and that’s it.

There’s an enormous resistance to going back to the world that existed before 9/11 in that sense. The Bush position is ferociously defended by numerous Republicans now. But it’s also essentially, fundamentally defended by the Obama administration as well, however much they may try to dance around that — and if challenged, they would probably talk about how this isn’t about projecting into the future, this is a legacy problem they’re trying to deal with, and under the terms of this legacy problem, that detention situation exists. They could redefine people as prisoners of war protected by the Geneva Convention. Then we could all be debating about how long the war lasts and how long it’s appropriate to hold these men.

So it’s a disastrous confusion, really, the position we’re in now, with all these different factions fighting their own corners, and the people in Guantánamo ultimately being the losers. If they’re cleared for release, they’re not going anywhere. If they were recommended to be put forward for trial, then one avenue for trial has been cut off, the other one doesn’t look promising. Then behind that are men to be held indefinitely without charge or trial, which was exactly what the Bush administration intended in the first place. And however that’s dressed up, that’s not fundamentally any different either.

I hope that at some point we will be able to push the debate onto these issues of scrapping the whole terminology that underpins detentions in the “war on terror” and get back to an understanding that people are either criminals or soldiers, and that’s the end of the story.

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) and of two other books: Stonehenge: Celebration and Subversion and The Battle of the Beanfield. To receive new articles in your inbox, please subscribe to my RSS feed (and I can also be found on Facebook and Twitter). Also see my definitive Guantánamo prisoner list, updated in July 2010, details about the new documentary film, “Outside the Law: Stories from Guantánamo” (co-directed by Polly Nash and Andy Worthington, and available on DVD here), my definitive Guantánamo habeas list and the chronological list of all my articles, and, if you appreciate my work, feel free to make a donation.

Last week, it was announced that, from February 1 to 5, 2011, Moazzam Begg, former Guantánamo prisoner and director of the NGO Cageprisoners, and Andy Worthington, investigative journalist and author of The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison, will be visiting Poland for a tour of the documentary film, “Outside the Law: Stories from Guantánamo,” which Worthington co-directed with filmmaker Polly Nash. The Polish version of the film, with subtitles, is entitled, “Poza Prawem: Echa z Guantánamo.”

The details of the tour (and of the film) are available here, and this update is to provide information about the press conference in Warsaw on Tuesday afternoon to discuss the key themes of the tour, which, as well as providing important information about Guantánamo (regarding the innocent men held there, and how few prisoners are alleged to have had any connection to terrorist actvities), is also intended to raise awareness of the 31 men who have been cleared for release, but cannot be repatriated because they face a credible risk of torture or other ill-treatment in their home countries.

Crucially, the tour is also intended to create a space for discussions about the secret CIA prison that existed at Stare Kiejkuty, near Szymany, and the ongoing investigation into the complicity of senior Polish officials in establishing this prison, where numerous “high-value detainees” were held and tortured in the Bush administration’s “War on Terror.”

Moazzam Begg and Andy Worthington will be joined for the press conference on Tuesday by Bartlomiej Jankowski, the lawyer for Abu Zubaydah, one of the “high-value detainees” held in the secret CIA prison at Stare Kiejkuty, who was granted “victim” status by the Polish Prosecutor just 10 days ago as part of an ongoing investigation into the prison.

The organizers also hope that Mikołaj Pietrzak, the lawyer for Abd al-Rahim al-Nashiri, another “high-value detainee” who was granted “victim” status in October last year, and Irmina Pacho of the Helsinki Foundation for Human Rights, which played a major role last summer in exposing flight records demonstrating the movement of prisoners to and from the prison, will also be available to discuss this crucial matter of international significance. The “victim” status granted to al-Nashiri is of particular interest as it was announced last week that the Obama administration is planning to proceed with his trial by Military Commission at Guantánamo.

For further information, or to arrange interviews, please contact Andy Worthington. The contact in Poland is Anna Minkiewicz, the organizer of the tour.

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) and of two other books: Stonehenge: Celebration and Subversion and The Battle of the Beanfield. To receive new articles in your inbox, please subscribe to my RSS feed (and I can also be found on Facebook and Twitter). Also see my definitive Guantánamo prisoner list, updated in July 2010, details about the new documentary film, “Outside the Law: Stories from Guantánamo” (co-directed by Polly Nash and Andy Worthington, and available on DVD here), my definitive Guantánamo habeas list and the chronological list of all my articles, and, if you appreciate my work, feel free to make a donation.

This year the President’s bitter surprise for the prisoners (which has encouraged a widespread peaceful protest at the prison, as reported here) was two-fold. The first was his failure to veto a military spending bill passed by Congress, which contained cynical and unconstitutional provisions preventing the transfer of any prisoner to the US mainland, in which lawmakers also demanded the power to prevent the release of prisoners to countries regarded as dangerous.

While these were evidently unacceptable assaults on Presidential authority, dashing the administration’s hopes of holding federal court trials for any of the remaining 173 prisoners and confirming the intent of Congress to enshrine the Yemeni moratorium in legislation, and also to prevent any prisoners from being released to other countries including Afghanistan, Obama refused to veto the bill, feebly claiming that he would try to negotiate with Congress, but thereby conceding that there was no way that the prison would close in the foreseeable future — or, very probably, in the rest of his term in office.

The Return of the Military Commissions

The second bitter surprise for the prisoners was the announcement last week, first mentioned by the New York Times, that, although federal court trials have effectively been suspended, specifically derailing the administration’s stated intention to prosecute Khalid Sheikh Mohammed and four other men accused of involvement in the 9/11 attacks in federal court, the administration is preparing to push ahead instead with trials by Military Commission for at least some of the 33 men recommended for trials by Obama’s Task Force.

This decision is particularly disappointing because it hands victory to the most ideologically misguided Republicans, who like the idea of Military Commissions because they reinforce their false notion of terrorist suspects as “warriors” in the Bush administration’s “War on Terror,” while enraging many of Obama’s own supporters, who are opposed to trials by Military Commission because they represent a second-tier system of justice, inferior to federal court trials, and, in particular, because they contain “war crimes” specifically invented by Congress.

As Lt. Col. David Frakt, a law professor and the military defense attorney for two prisoners at Guantánamo, explained in Congressional testimony in summer 2009:

If one were to review the charges brought against all of the approximately 25 defendants charged [under President Bush] in the military commissions, as I have, one would conclude that 99% of them do not involve traditionally recognized war crimes. Rather, virtually all the defendants are charged with non-war crimes, primarily criminal conspiracy, terrorism and material support to terrorism, all of which are properly crimes under federal criminal law, but not the laws of war.

The decision to revive the Commissions is also disappointing because, as ProPublica reported in a follow-up to the Times‘ story, last August, when “President Obama’s national security advisers, including Secretary of Defense Robert Gates, Attorney General Eric Holder and Secretary of State Hillary Clinton, met in the White House situation room to decide whether and how to go forward with trials for some Guantánamo prisoners,” they reportedly “left the White House that August day committed to moving forward simultaneously with prosecutions in federal court and military commissions.” As ProPublica stated explicitly, “No military trials would be held anywhere unless trials in federal courtrooms were held at the same time.”

The only glimmer of hope, as ProPublica also reported, is that:

[S]ome experts have suggested that the restrictions [on moving prisoners to the US mainland] affect only the Pentagon. Justice Department funds could still be used to move prisoners to the United States. If that is the White House view, it will be known only when a prisoner is moved to the United States for trial. And only then will it be clear whether the White House policy to move simultaneously on prosecutions in federal court and military commissions still holds.

However, given Obama’s history of bowing to Republican pressure on almost everything to do with Guantánamo, it strikes me as highly unlikely that he would willingly invite an avalanche of criticism to descend on him by stealthily moving prisoners to face trial to the US using Justice Department funds.

If that were the case, he would already have robustly defended federal court trials, whereas the sad truth is that, when tested, he withdrew from the fray. That test came in October and November, during the trial and conviction of Ahmed Khalfan Ghailani, the only man to be moved by the Obama administration from Guantánamo to the US mainland to face a federal court trial (a move that took place in May 2009, before Congress decided to do all it could to usurp the President’s powers). When the jury in Ghailani’s case convicted him on one count of conspiracy, in connection with the bombing of the US embassy in Dar-es-Salaam, Tanzania in August 1998, and cleared him of 284 other charges, Obama refused to speak up to defend the court system, allowing his distorted critics to behave as though Ghailani had somehow beaten the system, even though he faced a minimum prison sentence of 20 years, and, when his sentence was delivered today, received a life sentence without parole.

The sad history of the Military Commissions

With the Commissions back in play, therefore, the only hope for those who believe, correctly, that federal courts are the only legitimate venue for trying offenses related to terrorism, is that the system first dragged from the grave by Dick Cheney in November 2001, and revived by Congress in the fall of 2006, and again in 2009 (under Obama), after the Supreme Court ruled in June 2006 that Cheney’s version violated both the Geneva Conventions and the Uniform Code of Military Justice, will be as much of a failure as it has on all its other previous outings — the three convictions under Bush, and the two under Obama:

• David Hicks, an Australian, who, in March 2007, accepted a plea deal and was a free man nine months later;
• Salim Hamdan, a Yemeni, and one of several drivers for Osama bin Laden, who was cleared of conspiracy charges by his military jury, and was a free man five months after being convicted and sentenced for providing material support to terrorism in August 2008;
• Ali Hamza al-Bahlul, a Yemeni who made a promotional video for al-Qaeda, and received a life sentence in November 2008 after a one-sided trial in which he refused to mount a defense;
• Ibrahim al-Qosi, from Sudan, a sometime chef for al-Qaeda members in a compound used by Osama bin Laden, who accepted a plea deal in July last year, and is expected to be freed in July 2012; and
• Omar Khadr, a Canadian, and a former child prisoner, who was put forward for a trial by Obama despite his former status as a child (which should have guaranteed that he was rehabilitated rather than prosecuted), and who agreed to a plea deal in October, which involves him serving one more year in Guantánamo, and then being repatriated to serve seven more years in Canada.

Of these, the trial of Omar Khadr ought to have been the biggest humiliation for the Obama administration, and a sure sign of troubles to come, as his guilty plea involved the spurious war crimes invented by Congress, and it was both depressing and shameful to watch as Obama presided over a system in which Khadr was obliged to accept that he was an “alien unprivileged enemy belligerent,” whose participation in — or presence at — the firefight in July 2002 that led to his capture was illegal.

The men scheduled to face trials by Military Commission

As the New York Times explained last week, the men scheduled to face trials include three of the five men mentioned by Attorney General Eric Holder on November 13, 2009, on the same day that he announced the federal court trial of Khalid Sheikh Mohammed and his alleged 9/11 co-conspirators. With al-Qosi and Khadr dealt with, the remaining three are Noor Uthman Mohammed, Ahmed Mohammed al-Darbi and Abd al-Rahim al-Nashiri. A fourth man is Obaidaullah, an Afghan. All of these men (like al-Qosi and Khadr) are hold-overs from the Bush-era Commissions, when 29 men in total were charged, but only three trials took place, as mentioned above.

Noor Uthman Muhammed

In the case of Noor Uthman Muhammed, accused of being the deputy emir of a training camp in Afghanistan, the main problems were summarized in a report from his most recent hearing at Guantánamo in September last year, by Raha Wala, a Georgetown Fellow in Law and Security, who attended the hearing on behalf of Human Rights First, and elaborated on some of the failures of the Commissions that I mentioned above. Wala wrote:

One reason Noor’s case is a bad fit for a war crimes prosecution is that it’s unclear whether a military commission can even exert jurisdiction over Noor for crimes that the government says he committed. Most of the criminal acts Noor allegedly committed took place from the mid-1990′s to 2000, purportedly before the United States was at war with anyone. Yet the military commissions were originally created in response to the September 11th terrorist attacks to try individuals for war crimes, raising questions about whether the military commission even has jurisdiction to hear Noor’s case. The crimes Noor allegedly committed — material support of terrorism and conspiracy — are not traditional law of war violations typically tried in military commissions. Moreover, attempts by Congress to codify material support and conspiracy as war crimes may very well be seen as imposing ex post facto punishment, with military commissions serving as a venue for trying individuals like Noor for “war crimes” that simply didn’t exist at the time these alleged unlawful acts took place.

Similarly, Noor must be considered an “unprivileged enemy belligerent” for the military commission to assert jurisdiction over him. This means that the prosecution needs to show that Noor was unlawfully taking part in hostilities during an armed conflict. Yet, as was mentioned above, the United States was not at war in the 90′s during Noor’s alleged crimes. And Noor denies that he was affiliated with any armed forces, although the US government claims he was providing support for a Taliban training camp [actually the Khaldan camp, which was independent of both the Taliban and al-Qaeda]. Even if the US government’s accusations are accurate, it’s not clear that the Taliban was involved in any armed conflict during the time of Noor’s alleged unlawful acts either.

Other problems for the government are that Muhammed’s case relates to two others that the administration ought be extremely wary of publicizing: that of Abu Zubaydah, the supposed “high-value detainee” for whom the CIA torture program was first developed, who, it turned out, was not a significant figure in al-Qaeda at all, and that of Ibn al-Shaykh al-Libi, the emir of Khaldan, who was flown to Egypt by the CIA, tortured until he confessed to non-existent links between Saddam Hussein and al-Qaeda, which were used to justify the invasion of Iraq in March 2003, and later returned to Libya, where he died in mysterious circumstances in May 2009. Despite this, in September, prosecutors in Muhammed’s case declared their intention to use Abu Zubaydah’s diaries as evidence when his case comes to trial.

Ahmed Mohammed al-Darbi

In the case of Ahmed Mohammed al-Darbi, a Saudi seized in Azerbaijan in June 2002 and rendered to US custody in Bagram, Afghanistan, before being sent to Guantánamo, the main problem for the government is that his case is tainted with torture. He is accused of plotting to attack a ship in the Strait Of Hormuz, meeting Osama bin Laden and attending a training camp in Afghanistan, but at a hearing in September 2009, his civilian lawyer, Ramzi Kassem, urged that all of the 119 statements that al-Darbi made to interrogators should be ruled out, because they were obtained through the use of torture and abuse, including beatings, threats of rape, sensory deprivation, sleep deprivation and sexual humiliation, both at Bagram, where al-Darbi was held for eight months, and at Guantánamo (a full statement by al-Darbi is available here).

Abd al-Rahim al-Nashiri

The most troubling case is that of Abd al-Rahim al-Nashiri, one of 14 “high-value detainees” transferred to Guantánamo in September 2006, after being held in secret CIA prisons for nearly four years. I have written about the problems with al-Nashiri’s case since he was originally charged in June 2008, and these were summarized last week, when the New York Times noted that:

[His case] would attract global attention because he was previously held in secret Central Intelligence Agency prisons and is one of three detainees known to have been subjected to the drowning technique known as waterboarding.

Lt. Cmdr. Stephen Reyes of the Navy, a military lawyer assigned to defend Mr. Nashiri, declined to comment on any movement in the case. But he noted that two of Mr. Nashiri’s alleged co-conspirators were indicted in federal civilian court in 2003, and he made clear that the defense would highlight Mr. Nashiri’s treatment in CIA custody.

“Nashiri is being prosecuted at the commissions because of the torture issue,” Mr. Reyes said. “Otherwise he would be indicted in New York along with his alleged co-conspirators.”

The Times might also have mentioned that, shortly after al-Nashiri’s capture, he was threatened with a gun and a power drill in a secret CIA prison in Thailand, and was then moved to Poland, where, in September last year, he was granted “victim” status in an ongoing investigation into Polish complicity in the establishment of a secret CIA prison at Stare Kiejkuty, near Szymany.

Obaidullah

For the last of the men, Obaidullah (also spelled Obaydullah), the decision to proceed with a trial by Military Commission demonstrates how, as under President Bush, the Commissions’ ill-conceived dragnet not only includes alleged terrorists, but also minor figures in the Afghan insurgency, whose connection to terrorism is only justifiable under the absurd terms of the “War on Terror,” which treats terrorists and soldiers equally, and attempts to criminalize soldiers, while denying criminal trials for terrorists.

A year ago, when Eric Holder announced that Obaidaullah had been charged, I revisited an article I wrote when he was first charged under President Bush in September 2008, noting not only that he had plausible compliants that he was tortured by US forces in Bagram, but also that he was

charged with “conspiracy” and “providing material support to terrorism,” based on the thinnest set of allegations to date: essentially, a single claim that, “[o]n or about 22 July 2002,” he “stored and concealed anti-tank mines, other explosive devices, and related equipment”; that he “concealed on his person a notebook describing how to wire and detonate explosive devices”; and that he “knew or intended” that his “material support and resources were to be used in preparation for and in carrying out a terrorist attack.”

As I also explained:

It doesn’t take much reflection on these charges to realize that it is a depressingly clear example of the US administration’s disturbing, post-9/11 redefinition of “war crimes,” which apparently allows the US authorities to claim that they can equate minor acts of insurgency committed by a citizen of an occupied nation with terrorism.

In conclusion, while the charges against Obaidullah remain incomprehensible, there is no reason to suppose that the invented war crimes misapplied to the other men will ensure that their trials by Military Commission — also dogged by evidence of torture — will secure credible convictions, or be regarded as legitimate outside the United States.

January really is the cruelest month, at least for those still languishing in the Pentagon’s prison at Guantánamo.

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) and of two other books: Stonehenge: Celebration and Subversion and The Battle of the Beanfield. To receive new articles in your inbox, please subscribe to my RSS feed (and I can also be found on Facebook and Twitter). Also see my definitive Guantánamo prisoner list, updated in July 2010, details about the new documentary film, “Outside the Law: Stories from Guantánamo” (co-directed by Polly Nash and Andy Worthington, and available on DVD here), my definitive Guantánamo habeas list and the chronological list of all my articles, and, if you appreciate my work, feel free to make a donation.

As published exclusively on the website of the Future of Freedom Foundation.