I do, however, urge everyone to read the whole report, because the introduction and conclusions are important, as are the sections establishing the legal approach to secret detention and its historical context, the section detailing current practices in 25 other countries worldwide, and the annexes, which contain government responses to a questionnaire about secret detention, and a number of case studies.

Given the length of this section of the report (pp. 43-89), I’m publishing it in three parts. The first, published below, provides an introduction, and deals with “The ‘high-value detainee’ programme and CIA secret detention facilities,” the second looks at “CIA detention facilities or facilities operated jointly with United States military in battlefield zones,” and the third looks at “Proxy detention sites,” “Complicity in the practice of secret detention” and “Secret detention and the Obama administration.”

Please note that I have inserted hyperlinks where possible. However, the original report contains footnotes, and not all of these provide links to websites. In most cases, I have added the information contained in the footnotes in square brackets, but for full details, please see the original.

Excerpts from the UN “Joint Study on Global Practices in Relation to Secret Detention in the Context of Counter-Terrorism,” February 2010

Prepared by Martin Scheinin, the Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism, Manfred Nowak, the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment, Shaheen Ali, the vice-chair of the Working Group on arbitrary detention, and Jeremy Sarkin, the chair of the Working Group on enforced or involuntary disappearances.

IV. SECRET DETENTION PRACTICES IN THE GLOBAL “WAR ON TERROR” SINCE 11 SEPTEMBER 2001

98. In spite of the prominent role played by the United States of America in the development of international human rights and humanitarian law, and its position as a global leader in the protection of human rights at home and abroad following the terrorist attacks on New York and Washington, D.C. on 11 September 2001, the United States embarked on a process of reducing and removing various human rights and other protection mechanisms through various laws and administrative acts, including the Authorization for Use of Military Force, the USA Patriot Act of 2001, the Detainee Treatment Act of 2005, the Military Commissions Act of 2006 (which sought to remove habeas corpus rights), as well as various executive orders and memoranda issued by the Office of Legal Counsel that interpreted the position of the United States on a number of issues, including torture. It also sanctioned the establishment of various classified programmes much more narrowly than before [A/HRC/6/17/Add.3, para. 3].

99. The Government of the United States declared a global “war on terror”, in which individuals captured around the world were to be held neither as criminal suspects, put forward for federal court trials in the United States, nor treated as prisoners of war protected by the Geneva Conventions, irrespective of whether they had been captured on the battlefield during what could be qualified as an armed conflict in terms of international humanitarian law. Rather, they were to be treated indiscriminately as “unlawful enemy combatants” who could be held indefinitely without charge or trial or the possibility to challenge the legality of their detention before a court or other judicial authority.

100. On 7 February 2002, the President of the United States issued a memorandum [PDF] declaring that “common article 3 of Geneva does not apply to either Al-Qaida or Taliban detainees”, that “Taliban detainees are unlawful combatants and, therefore, do not qualify as prisoners of war under article 4 of Geneva”, and that “because Geneva does not apply to our conflict with Al-Qaida, Al-Qaida detainees also do not qualify as prisoners of war”. This unprecedented departure from the Geneva Conventions was to be offset by a promise that, “as a matter of policy, the United States Armed Forces shall continue to treat detainees humanely and, to the extent appropriate and consistent with military necessity, in a manner consistent with the principles of Geneva”. This detention policy was defended by the Government in various submissions to the United Nations [See for example CCPR/C/USA/CO/3/Rev.1/Add.1, p. 3; A/HRC/4/41, paras. 453 - 455; and A/HRC/4/40, para. 12], including on 10 October 2007, when the Government stated that the law of war, and not the International Covenant on Civil and Political Rights, was the applicable legal framework governing the detentions of “enemy combatants” [CCPR/C/USA/CO/3/Rev.1/Add.1, p. 3], and therefore such detentions did not fall within the mandate of the special procedures mandate holders [CCPR/C/USA/3, para. 456, and A/HRC/4/40, para. 12].

101. By using this war paradigm, the United States purported to limit the applicable legal framework of the law of war (international humanitarian law) and exclude any application of human rights law. Even if and when human rights law were to apply, the Government was of the view that it was not bound by human rights law outside the territory of the United States. Therefore, by establishing detention centres in Guantanamo Bay and other places around the world, the United States was of the view that human rights law would not be applicable there. Guantanamo and other places of detention outside United States territory were intended to be outside the reach of domestic courts for habeas corpus applications by those held in custody in those places. One of the consequences of this policy was that many detainees were kept secretly and without access to the protection accorded to those in custody, namely the protection of the Geneva Conventions, international human rights law, the United States Constitution and various other domestic laws. [In its October 2007 submission to the Human Rights Committee, the Government reaffirmed its long-standing position that “the Covenant does not apply extraterritorially” (CCPR/C/USA/CO/3/Rev.1/Add.1, p. 2)].

102. The secret detention policy took many forms. The Central Intelligence Agency (CIA) established its own secret detention facilities to interrogate so-called “high value detainees”. It asked partners with poor human rights records to secretly detain and interrogate persons on its behalf. When the conflicts in Afghanistan and Iraq started, the United States secretly held persons in battlefield detention sites for prolonged periods of time. The present chapter therefore focuses on various secret detention sites and those held there, and also highlights examples of the complicity of other States.

A.  The “high-value detainee” programme and CIA secret detention facilities

103. On 17 September 2001, President Bush sent a 12-page memorandum to the Director of the CIA through the National Security Council, which authorized the CIA to detain terrorists and set up detention facilities outside the United States [PDF]. Until 2005, when the United Nations sent its first of many communications regarding this programme to the Government of the United States, little was known about the extent and the details of the secret detention programme. Only in May 2009 could a definitive number of detainees in the programme be established. In a released, yet still redacted, memo, Principal Deputy Assistant Attorney General Stephen G. Bradbury stated that, to date, the CIA had “taken custody of 94 detainees [redacted], and had employed enhanced techniques to varying degrees in the interrogations of 28 of those detainees.” [PDF, footnote, p. 5]

104. In the report of 2007 on his country visit to the United States (A/HRC/6/17/Add.3), the Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism described what was known at that time of these “enhanced techniques” and how they were regarded:

As a result of an apparent internal leak from the CIA, the media in the United States learned and published information about “enhanced interrogation techniques” used by the CIA in its interrogation of terrorist suspects and possibly other persons held because of their links with such suspects. Various sources have spoken of techniques involving physical and psychological means of coercion, including stress positions, extreme temperature changes, sleep deprivation, and “waterboarding” (means by which an interrogated person is made to feel as if drowning). With reference to the well-established practice of bodies such as the Human Rights Committee and the Committee against Torture, the Special Rapporteur concludes that these techniques involve conduct that amounts to a breach of the prohibition against torture and any form of cruel, inhuman or degrading treatment.

105. Several of the 28 detainees who, according to Mr. Bradbury, were subjected to “enhanced techniques to varying degrees” were also “high value detainees”. Fourteen people were transferred from secret CIA custody in an undisclosed location to confinement at the Defense Department’s detention facility in Guantanamo Bay, as announced by President Bush on 6 September 2006. They were:

• Abu Zubaydah (Palestinian), captured in Faisalabad, Pakistan, on 28 March 2002

• Ramzi bin al-Shibh (Yemeni), captured in Karachi, Pakistan, on 11 September 2002

• Abd al-Rahim al-Nashiri (Saudi), captured in the United Arab Emirates in October or November 2002

• Khalid Sheikh Mohammed (Pakistani), captured in Rawalpindi, Pakistan, on 1 March 2003

• Mustafa al-Hawsawi (Saudi), captured with Khalid Sheikh Mohammed in Rawalpindi, Pakistan, on 1 March 2003

• Majid Khan (Pakistani), captured in Karachi, Pakistan, on 5 March 2003

• Waleed Mohammed bin Attash (Yemeni), also known as Khallad, captured in Karachi, Pakistan, on 29 April 2003

• Ali Abd al-Aziz Ali (Pakistani) also known as Ammar al-Baluchi, captured with Waleed bin Attash in Karachi, Pakistan, on 29 April 2003

• Mohammed Farik bin Amin (Malaysian), also known as Zubair, captured in Bangkok on 8 June 2003

• Riduan Isamuddin (Indonesian), also known as Hambali, also known as Encep Nuraman, captured in Ayutthaya, Thailand, on 11 August 2003

• Mohammed Nazir bin Lep (Malaysian), also known as Lillie, captured in Bangkok on 11 August 2003

• Gouled Hassan Dourad (Somali), also known as Haned Hassan Ahmad Guleed, captured in Djibouti on 4 March 2004

• Ahmed Khalfan Ghailani (Tanzanian), captured in Gujrat, Pakistan, on 25 July 2004

• Abu Faraj al-Libi (Libyan), also known as Mustafa Faraj al-Azibi, captured in Mardan, Pakistan, on 2 May 2005 [A/HRC/4/40/Add.1. Pentagon biographies are available here (PDF)]

106. Beyond the transcripts of the Combatant Status Review Tribunals, held in 2007 [PDF], and the facts reported in opinion No. 29/2006 (United States of America), adopted by the Working Group on Arbitrary Detention on 1 September 2006 [A/HRC/4/40/Add.1], the only available source on the conditions in the above-mentioned facilities is a report by ICRC leaked to the media by United States Government officials [PDF]. In spite of the fact that the ICRC report was never officially published, the experts decided to refer to it since information on the 14 was scarce and the United States of America, in spite of requests to be allowed to speak to Guantanamo detainees, did not authorize them to do so. That report details the treatment that most of the 14 had described during individual interviews, and concluded that there had been cases of beatings, kicking, confinement in a box, forcible shaving, threats, sleep deprivation, deprivation/restriction on food provisions, stress positions, exposure to cold temperatures/cold water, suffocation by water and so on. It stressed that, for the entire detention periods, which ranged from 16 months to more than 3 and a half years, all 14 persons had been held in solitary confinement and incommunicado detention. According to the report, they had no knowledge of where they were being held, and no contact with persons other than their interrogators or guards.” ICRC concluded that:

Twelve of the fourteen alleged that they were subjected to systematic physical and/or psychological ill-treatment. This was a consequence of both the treatment and the material conditions which formed part of the interrogation regime, as well as the overall detention regime. This regime 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, depersonalization and dehumanization. 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.”

107. Despite the acknowledgement in September 2006 by President Bush of the existence of secret CIA detention facilities, the United States Government and the Governments of the States that hosted these facilities have generally refused to disclose their location or even existence. The specifics of the secret sites have, for the most part, been revealed through off-the-record disclosures.

108. In November 2005, for example, the Washington Post referred to “current and former intelligence officers and two other US Government officials” as sources for the contention that there had been a secret CIA black site or safe house in Thailand, “which included underground interrogation cells”. One month later, ABC News reported on the basis of testimonies from “current and former CIA officers” that Abu Zubaydah had been:

… whisked by the CIA to Thailand where he was housed in a small, disused warehouse on an active airbase. There, his cell was kept under 24-hour closed circuit TV surveillance and his life-threatening wounds were tended to by a CIA doctor specially sent from Langley headquarters to assure Abu Zubaydah was given proper care, sources said. Once healthy, he was slapped, grabbed, made to stand long hours in a cold cell, and finally handcuffed and strapped feet up to a water board until after 0.31 seconds he begged for mercy and began to cooperate.

The details of Abu Zubaydah’s treatment have been confirmed by his initial FBI interrogator, who has not confirmed or denied that the location where Abu Zubaydah was held was in Thailand. The Washington Post also reported that the officials had stated that Ramzi bin al-Shibh had been flown to Thailand after his capture. The New York Times again stated in 2006 that Abu Zubaydah was held in Thailand “according to accounts from five former and current government officials who were briefed on the case.” In January 2008, the Asia Times reported that political analysts and diplomats in Thailand suspected that the detention facility was “situated at a military base in the northeastern province of Udon Thani”.

109. The sources of the Washington Post stated that, after “published reports revealed the existence of the site in June 2003, Thai officials insisted the CIA shut it down”. The New York Times alleged later that local officials were said to be growing uneasy about “a black site outside Bangkok code-named Cat’s Eye” and that this was a reason for the CIA to want “its own, more permanent detention centers”.

110. In 2008, the Washington Post described on the basis of interviews with “more than two dozen current and former U.S. officials” how a “classified cable” had been sent between the CIA station chief in Bangkok and his superiors “asking if he could destroy videotapes recorded at a secret CIA prison in Thailand … from August to December 2002 to demonstrate that interrogators were following the detailed rules set by lawyers and medical experts in Washington, and were not causing a detainee’s death.” The newspaper also reported “several of the inspector general’s deputies traveled to Bangkok to view the tapes.” The Office of the Inspector General reviewed 92 videotapes in May 2003, 12 of which included “enhanced interrogation techniques” and identified 83 waterboarding sessions on Abu Zubaydah at a “foreign site”. From the OIG report it seems that Abu Zubaydah and Abd al-Rahim al-Nashiri were detained and interrogated at the same place [PDF, paras. 74 and 91]. This information could not be verified, as the location of the interrogation is redacted in the report of the CIA Officer General, although independent sources informed the experts that the facility was indeed in Thailand and that it was known as the “Cat’s Eye”. The videotapes were however allegedly destroyed in November 2005 by the CIA and, according to the New York Times, the tapes had been held “in a safe at the CIA station in Thailand, the country where two detainees — Abu Zubaydah and Abd al-Rahim al-Nashiri — were interrogated.”

111. In its submission for the present study, the Government of Thailand denied the existence of a secret detention facility in Thailand in 2002/03, stating that international and local media had visited the suspected places and found no evidence of such a facility. In the light of the detailed nature of the allegations, however, the experts believe it credible that a CIA black site existed in Thailand, and calls on the domestic authorities to launch an independent investigation into the matter.

112. In June 2007, in a report submitted to the Council of Europe, rapporteur Dick Marty stated that he had enough “evidence to state that secret detention facilities run by the CIA did exist in Europe from 2003 to 2005, in particular in Poland and Romania.” [PDF. In its response to the report, Romania contested the evidentiary basis of the findings concerning Romania]. The report drew on testimony from over 30 current and former members of intelligence services in the United States and from Europe. According to the Rapporteur, the Romanian “black site” was allegedly in force from 2003 to the second half of 2005. He also noted that “the majority of the detainees brought to Romania were, according to our sources, extracted ‘out of [the] theater of conflict’. This phrase is understood as a reference to detainee transfers originating from Afghanistan and, later, Iraq”. In August 2009, former United States intelligence officials disclosed to the New York Times that Kyle D. Foggo, at that time head of the CIA’s main European supply base in Frankfurt, oversaw the construction of three CIA detention centres, “each built to house about a half-dozen detainees”. They added that “one jail was a renovated building on a busy street in Bucharest”.

113. While the identities of many detainees who were held in these facilities have not been revealed yet, it is known that on or around 24 April 2004, Mohammed al-Asad (see para. 133 below) was transferred with at least two other people from Afghanistan to an unknown, modern facility apparently run by United States officials, which was carefully designed to induce maximum disorientation, dependence and stress in the detainees. Descriptions of the facility and its detention regime were given by Mr. al-Asad to Amnesty International, which established that he had been held in the same place as two other Yemeni men, Salah Ali and Mohammed Farag Ahmad Bashmilah. Research into flight durations and the observations of Mr. al-Asad, Mr. Ali, and Mr. Bashmilah suggest that the facility was likely located in Eastern Europe. Mr. al-Asad was held in a rectangular cell approximately 3.5 x 2.5 m, in which he was chained to the floor in the corner. The first night, Mr. al-Asad was kept naked in his cell. The cell included a speaker, which played noise similar to an engine or machine, and two cameras. For most of his time in the facility, the light in his cell was kept on all night. At one point, Mr. al-Asad met with a man who identified himself as the prison director and claimed that he had just flown in from Washington, D.C. Similarly, Mr. Bashmilah described how the facility where he was held was much more modern than the one in Afghanistan. White noise was blasted into his cell, the light was kept on constantly, and he was kept shackled. The guards in the facility were completely dressed in black, including black face masks, and communicated to one another by hand gestures only. The interrogators spoke to each other in English and referred to information arriving from Washington, D.C. [Declaration of Mohamed Farag Ahmad Bashmilah in support of plaintiffs’ opposition to the motion of the United States to dismiss or, in the alternative, for summary judgement, Civil Action No. 5:07-cv-02798 in the United States District Court for the Northern District of California, San Jose Division. See also “Surviving the Darkness”, a report by the Center for Human Rights and Global Justice at NYU School of Law (PDF), pp. 34-35]. On 5 March 2005, the United States informed Yemen that Mr. Bashmilah was in American custody. On 5 May 2005, Mr. Bashmilah was transferred to Yemen, along with two other Yemeni nationals, Mr. al-Asad and Salah Nasser Salim Ali Darwish.

114. In Poland, eight high-value detainees, including Abu Zubaydah, Khalid Sheikh Mohammed, Ramzi bin al-Shibh, Tawfiq [Waleed] bin Attash and Ahmed Khalfan [al-]Ghailani, were allegedly held between 2003 and 2005 in the village of Stare Kiejkuty [PDF, p. 25. In his report, Dick Marty also noted that “a single CIA source told us that there were ‘up to a dozen’ high-value detainees in Poland in 2005, but we were unable to confirm this number”]. According to the leaked ICRC report, Khalid Sheikh Mohammed knew that he was in Poland when he received a bottle of water with a Polish label. According to ABC News, in 2005, Hassan Ghul and Mohammed Omar Abdel-Rahman were also detained in the facility in Poland [also see Working Group on Arbitrary Detention, opinion No. 29/2006 (United States of America) (A/HRC/4/40/Add.1, para. 15., and this March 2003 Fox News report]. The Polish press subsequently claimed that the authorities of Poland — during the term of office of President Aleksander Kwaśniewski and Prime Minister Leszek Miller — had assigned a team of “around a dozen” intelligence officers to cooperate with the United States on Polish soil, thereby putting them under exclusive American control and had permitted American “special purpose planes” to land on the territory of Poland [Edyta Żemła, Mariusz Kowalewski, “Polski wywiad w służbie CIA”, Rzeczpospolita, 15 April 2009]. The existence of the facility has always been denied by the Government of Poland and press reports have indicated that it is unclear what Polish authorities knew about the facility.

115. While denying that any terrorists had been detained in Poland, Zbigniew Siemiątkowski, the head of the Polish Intelligence Agency in the period 2002-2004, confirmed the landing of CIA flights [Adam Krzykowski , Mariusz Kowalewski, ‘Politycy przeczą’ Rzeczpospolita, 15 April 2009]. Earlier, the Marty report had included information from civil aviation records revealing how CIA-operated planes used for detainee transfers landed at Szymany airport, near the town of Szczytno, in Warmia-Mazuria province in north-eastern Poland, and at the Mihail Kogalniceanu military airfield in Romania between 2003 and 2005. Marty also explained how flights to Poland were disguised by using fake flight plans.

116. In research conducted for the present study, complex aeronautical data, including “data strings” retrieved and analysed, have added further to this picture of flights disguised using fake flight plans and also front companies [Data strings are exchanges of messages or digital data, mostly in the form of coded text and numbers between different entities around the world on aeronautical telecommunications networks]. For example, a flight from Bangkok to Szymany, Poland, on 5 December 2002 (stopping at Dubai) was identified, though it was disguised under multiple layers of secrecy, including charter and sub-contracting arrangements that would avoid there being any discernible “fingerprints” of a United States Government operation, as well as the filing of “dummy” flight plans. The experts were made aware of the role of the CIA chief aviation contractor through sources in the United States. The modus operandi was to charter private aircraft from among a wide variety of companies across the United States, on short-term leases to match the specific needs of the CIA Air Branch. Through retrieval and analysis of aeronautical data, including data strings, it is possible to connect the aircraft N63MU with three named American corporations, each of which provided cover in a different set of aviation records for the operation of December 2002. The aircraft’s owner was and remains “International Group LLC”; its registered operator for the period in question was “First Flight Management”; and its registered user in the records of the Eurocontrol Central Route Charges Office, which handles the payment of bills, was “Universal Weather”. Nowhere in the aviation records generated by this aircraft is there any explicit recognition that it carried out a mission associated with the CIA. Research for the present study also made clear that the aviation services provider Universal Trip Support Services filed multiple dummy flight plans for the N63MU in the period from 3 to 6 December 2002. In a report, the CIA Inspector General discussed the interrogations of Abu Zubaydah and Abd al-Rahim al-Nashiri. Two United States sources with knowledge of the high-value detainees programme informed the experts that a passage revealing that “enhanced interrogation of al-Nashiri continued through 4 December 2002” and another, partially redacted, which stated that:

However, after being moved, al-Nashiri was thought to have been withholding information”, indicate that it was at this time that he was rendered to Poland. The passages are partially redacted because they explicitly state the facts of al-Nashiri’s rendition — details which remain classified as “Top Secret” [PDF, paras. 76 and 224].

117. Using a similar analysis of complex aeronautical data, including data strings, research was also able to demonstrate that a Boeing 737 aircraft, registered with the Federal Aviation Administration as N313P, flew to Romania in September 2003. The aircraft took off from Dulles Airport in Washington, D.C. on Saturday 20 September 2003, and undertook a four-day flight “circuit”, during which it landed in and departed from six different foreign territories — the Czech Republic, Uzbekistan, Afghanistan, Poland, Romania and Morocco — as well as Guantanamo Bay, Cuba. Focus was also placed on a flight between the two listed European “black site” locations — namely from Szymany (Poland) to Bucharest — on the night of 22 September 2003, although it was conceivable that as many as five consecutive individual routes on this circuit — beginning in Tashkent, concluding in Guantanamo — may have involved transfers of detainees in the custody of the CIA. The experts were not able to identify any definitive evidence of a detainee transfer into Romania taking place prior to the flight circuit.

118. In its response to the questionnaire sent by the experts, Poland stated that:

On 11 March 2008, the district Prosecutor’s Office in Warsaw instituted proceedings on the alleged existence of so-called secret CIA detention facilities in Poland as well as the illegal transport and detention of persons suspected of terrorism. On 1 April 2009, as result of the reorganization of the Public Prosecutor’s Office, the investigation was referred to the Appellate Prosecutor Office in Warsaw. In the course of investigation, the prosecutors gathered evidence, which is considered classified or secret. In order to secure the proper course of proceedings, the prosecutors who conduct the investigation are bound by the confidentiality of the case. In this connection, it is impossible to present any information regarding the findings of the investigation. Once the proceedings are completed and its results and findings are made public the Government of Poland will present and submit all necessary or requested information to any international body.

While the experts appreciate the fact that an investigation has been opened into the existence of places of secret detention in Poland, they are concerned about the lack of transparency into the investigation. After 18 months, still nothing is known about the exact scope of the investigation. The experts expect that any such investigation would not be limited to the question of whether Polish officials had created an “extraterritorial zone” in Poland, but also whether officials were aware that “enhanced interrogation techniques” were applied there.

119.  In its response to the questionnaire sent by the experts, Romania provided a copy of the report of the Committee of Enquiry of Parliament concerning the investigation of the statements on the existence of CIA imprisonment centres or of flights of aircraft hired by the CIA on the territory of Romania.

120. With regard to Europe, ABC News recently reported that Lithuanian officials had provided the CIA with a building where as many as eight terrorist suspects were held for more than a year, until late 2005, when they were moved because of public disclosure of the programme [also see this statement by Dick Marty]. More details emerged in November 2009 when ABC News reported that the facility was built inside an exclusive riding academy in Antaviliai. Research for the present study, including data strings relating to Lithuania, appears to confirm that Lithuania was integrated into the secret detention programme in 2004. Two flights from Afghanistan to Vilnius could be identified: the first, from Bagram, on 20 September 2004, the same day that 10 detainees previously held in secret detention, in a variety of countries, were flown to Guantanamo; the second, from Kabul, on 28 July 2005. The dummy flight plans filed for the flights into Vilnius customarily used airports of destination in different countries altogether, excluding any mention of a Lithuanian airport as an alternate or back-up landing point.

121. On 25 August 2009, the President of Lithuania announced that her Government would investigate allegations that Lithuania had hosted a secret detention facility. On 5 November 2009, the Lithuanian Parliament opened an investigation into the allegation of the existence of a CIA secret detention on Lithuanian territory. In its submission for the present study, the Government of Lithuania provided the then draft findings of this investigation, which in the meantime had been adopted by the full Parliament. In its findings, the Seimas Committee stated that the State Security Department (SSD) had received requests to “equip facilities in Lithuania suitable for holding detainees”. In relation to the first facility, the Committee found that “conditions were created for holding detainees in Lithuania”. The Committee could not conclude, however, that the premises were also used for that purpose. In relation to the second facility, the Committee found that:

The persons who gave testimony to the Committee deny any preconditions for and possibilities of holding and interrogating detainees … However, the layout of the building, its enclosed nature and protection of the perimeter as well as fragmented presence of the SSD staff in the premises allowed for the performance of actions by officers of the partners without the control of the SSD and use of the infrastructure at their discretion.

The report also found that there was no evidence that the SSD had informed the President, the Prime Minister or other political leaders of the purposes and contents of its cooperation with the CIA regarding these two premises.

122. While the experts welcome the work of the Seimas Committee as an important starting point in the quest for truth about the role played by Lithuania in the secret detention and rendition programme, they stress that its findings can in no way constitute the final word on the country’s role. On 14 January 2010, President Dalia Grybauskaite rightly urged Lithuanian prosecutors to launch a deeper investigation into secret CIA black sites held on the country’s territory without parliamentary approval.

123. The experts stress that all European Governments are obliged under the European Convention of Human Rights to investigate effectively allegations of torture or cruel, inhuman or degrading treatment or punishment [See for example Assenov et al v. Bulgaria, judgement of 28 October 1998]. Failure to investigate effectively might lead to a situation of grave impunity, besides being injurious to victims, their next of kin and society as a whole, and fosters chronic recidivism of the human rights violations involved. The experts also note that the European Court of Human Rights has applied the test of whether “the authorities reacted effectively to the complaints at the relevant time” [Labita v Italy, application no. 26772/95, judgement of 6 April 2000, para. 131]. A thorough investigation should be capable of leading to the identification and punishment of those responsible for any ill treatment; it “must be ‘effective’ in practice as well as in law, in particular in the sense that its exercise must not be unjustifiably hindered by the acts or the omissions of the authorities” [See Aksoy v. Turkey, judgement of December 1996, para 95; and Kaya v. Turkey, judgement of 19 February 1998, para 106]. Furthermore, according to the European Court, authorities must always make a serious attempt to find out what happened [See Timurtas v. Turkey, judgement of 13 June 2000, para. 88] and “should not rely on hasty or ill-founded conclusions to close their investigation or as the basis of their decisions” [Assenov v. Bulgaria, op. cit., para. 104].

124. According to two high-ranking Government officials at the time, revelations about the existence of detention facilities in Eastern Europe in late 2005 by the Washington Post and ABC News led the CIA to close its facilities in Lithuania and Romania and move the Al-Qaida detainees out of Europe. It is not known where these persons were transferred; they could have been moved into “war zone facilities” in Iraq and Afghanistan or to another black site, potentially in Africa. The experts were not able to find the exact destination of the 16 high-value detainees between December 2005 and their move to Guantanamo in September 2006. No other explanation has been provided for the whereabouts of the detainees before they were moved to Guantanamo in September 2006.

125. Other locations have been mentioned as the venues for secret detention facilities outside territories under United States control (or operated jointly with the United States military). The first is Guantanamo, which was mentioned by the United States officials who spoke to the Washington Post in 2005, when it was reported that the detention facility had existed “on the grounds of the military prison at Guantanamo Bay”, but that “some time in 2004, the CIA decided it had to give [it] up … The CIA had planned to convert it into a state-of-the-art facility, operated independently of the military [but] pulled out when US courts began to exercise greater control over the military detainees, and agency officials feared judges would soon extend the same type of supervision over their detainees”. More recently, former Guantanamo Bay guards have described “an unnamed and officially unacknowledged” compound located out of sight from the main road between two plateaus, about a mile north of Camp Delta, just outside Camp America’s perimeter with the access road chained off. The unacknowledged “camp no” is described as having had no guard towers and being surrounded with concertina wire, with one part of the compound having “the same appearance as the interrogation centers at other prison camps”. At this point, it is unclear whether this facility was run by the CIA or the Joint Special Operations Command. The experts are concerned about the possibility that three Guantanamo detainees (Salah Ahmed al-Salami, Mani Shaman al-Utaybi and Yasser Talal al-Zahrani) might have died during interrogations at this facility, instead of in their own cells, on 9 June 2006.

126. There have also been claims that the United States used two military bases in the Balkans for secret detention: Camp Bondsteel, in Kosovo, and Eagle Base, in Tuzla, Bosnia and Herzegovina. In November 2005, Council of Europe Human Rights Commissioner Alvaro Gil-Robles told Le Monde that the United States military ran a Guantanamo-type detention centre in Camp Bondsteel. He said he had been “shocked” by conditions at the centre, which he witnessed in 2002, and which resembled “a smaller version of Guantanamo”. In December 2005, the United Nations Ombudsman in Kosovo, Marek Antoni Nowicki, also spoke about Camp Bondsteel, saying “there can be no doubt that for years there has been a prison in the Bondsteel base with no external civilian or judicial oversight. The prison looks like the pictures we have seen of Guantanamo Bay”. Mr. Nowicki said that he had visited Camp Bondsteel in late 2000 and early 2001, when it was the main detention centre for Kosovo Force (KFOR), the NATO-led peace-keeping force, but explained that he had had no access to the base since 2001. The United States base in Tuzla was allegedly used to “process” eight detainees, including Nihad Karsic and Almin Hardaus. Around 25 September 2001, Karsic and Hardaus were arrested at work and taken to Butmir Base, then to Eagle Base, Tuzla, where they allegedly were held in secret detention [PDF]. The men say that they were held in solitary confinement, stripped naked, forcibly kept awake, repeatedly beaten, verbally harassed, deprived of food and photographed.

127. Further developments were witnessed in 2009. In October, three of the experts sent a letter to the Governments of the United States, the United Kingdom [United Kingdom response included in A/HRC/13/39/Add.1], Pakistan and the Syrian Arab Republic regarding Mustafa Setmariam Nassar, aged 42, a Spanish citizen of Syrian origin and author of a number of books and other publications on Islam and jihad. They pointed to allegations received that, on an unknown date in October 2005, he had been apprehended in Pakistan by forces of the Pakistani intelligence on suspicion of having been involved in a number of terrorist attacks, including the 11 September 2001 attacks against the United States and the 11 March 2004 bombings in Madrid. He was detained in Pakistan for a certain period of time accused of involvement in both incidents. He was then handed over to authorities of the United States. While no official news of Mr. Nassar’s whereabouts has been received since his apprehension in October 2005, it is alleged that, in November 2005, he was held for some time at a military base facility under United States authority in Diego Garcia. It is now assumed that he is currently being held in secret detention in the Syrian Arab Republic. Official United States documents and web postings, as well as media reports, indicate that the United States authorities had been interested in Mr. Nassar before his disappearance in 2005. In June 2009, in response to a request made through Interpol by a Spanish judge for information relating to Mr. Nassar’s whereabouts, the FBI stated that Mr. Nassar was not in the United States at that time. The FBI did not, however, address whether Mr. Nassar was in United States custody elsewhere or whether it knew where he was then held. Following queries by non-governmental organizations regarding the whereabouts of Mr. Nassar, the CIA responded on 10 June 2009, stating that “the CIA can neither confirm nor deny the existence or nonexistence of records responsive to your request” and that, even if the CIA was in a position to answer the request, the records would be classified and protected from disclosure by United States laws. According to Reprieve, Mr. Nassar may have been transferred to Syrian custody. According to the Government of the United Kingdom, it has received assurances from the United States that it has not interrogated any terrorist suspect or terrorism-related detainee in Diego Garcia in any case since 11 September 2001, and that the allegations of a CIA holding facility on the island are false. The Government was therefore confident that the allegations that Mr. Nassar had been held on Diego Garcia were inaccurate.

128. Following the transfer of the 14 high-value detainees from CIA custody to Guantanamo, President Bush, in a delivered speech on 6 September 2006, announced the closure of the CIA’s “high-value detainee programme”. He stressed that, “as more high-ranking terrorists are captured, the need to obtain intelligence from them will remain critical — and having a CIA programme for questioning terrorists will continue to be crucial to getting life-saving information”. Later in 2006 and in 2007 [PDF], he indicated that “the CIA interrogation and detention program” would continue. Subsequent events support this claim as the Department of Defense announced in 2007 and 2008 the transfer of high-value detainees from CIA custody to Guantanamo.

129. On 27 April 2007, the Department of Defense announced that another high-value detainee, Abd al-Hadi al-Iraqi, described as “a high-level member of Al-Qaida”, had been transferred to Guantanamo. On the same day, Bryan Whitman, a Pentagon spokesman, stated that the detainee had been transferred to Defense Department custody that week from the CIA although he “would not say where or when al-Iraqi was captured or by whom”. However, a United States intelligence official stated that al-Iraqi “had been captured late last year in an operation that involved many people in more than one country”. Another high-value detainee, Muhammad Rahim, an Afghan described as a close associate of Osama bin Laden, was transferred to Guantanamo on 14 March 2008. In a press release, the Department of Defense stated that, “prior to his arrival at Guantanamo Bay, he was held in CIA custody”. According to reports in Pakistani newspapers, he was captured in Lahore in August 2007.

130. The Government of the United States provided no further details about where the above-mentioned men had been held before their transfer to Guantanamo; however, although it is probable that al-Iraqi was held in another country, in a prison to which the CIA had access (it was reported in March 2009 that he “was captured by a foreign security service in 2006” and then handed over to the CIA), the Department of Defense itself made it clear that the CIA had been holding Muhammad Rahim, indicating that some sort of CIA “black site” was still operating.

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 January 2010, details about the new documentary film, “Outside the Law: Stories from Guantánamo” (co-directed by Polly Nash and Andy Worthington, currently on tour in the UK, and available on DVD here), and my definitive Guantánamo habeas list, and, if you appreciate my work, feel free to make a donation.

For a sequence of articles dealing with the use of torture by the CIA, on “high-value detainees,” and in the secret prisons, see: Guantánamo’s tangled web: Khalid Sheikh Mohammed, Majid Khan, dubious US convictions, and a dying man (July 2007), Jane Mayer on the CIA’s “black sites,” condemnation by the Red Cross, and Guantánamo’s “high-value” detainees (including Khalid Sheikh Mohammed) (August 2007), Waterboarding: two questions for Michael Hayden about three “high-value” detainees now in Guantánamo (February 2008), Six in Guantánamo Charged with 9/11 Murders: Why Now? And What About the Torture? (February 2008), The Insignificance and Insanity of Abu Zubaydah: Ex-Guantánamo Prisoner Confirms FBI’s Doubts (April 2008), Guantánamo Trials: Another Torture Victim Charged (Abdul Rahim al-Nashiri, July 2008), Secret Prison on Diego Garcia Confirmed: Six “High-Value” Guantánamo Prisoners Held, Plus “Ghost Prisoner” Mustafa Setmariam Nasar (August 2008), Will the Bush administration be held accountable for war crimes? (December 2008), The Ten Lies of Dick Cheney (Part One) and The Ten Lies of Dick Cheney (Part Two) (December 2008), Prosecuting the Bush Administration’s Torturers (March 2009), Abu Zubaydah: The Futility Of Torture and A Trail of Broken Lives (March 2009), Ten Terrible Truths About The CIA Torture Memos (Part One), Ten Terrible Truths About The CIA Torture Memos (Part Two), 9/11 Commission Director Philip Zelikow Condemns Bush Torture Program, Who Authorized The Torture of Abu Zubaydah?, CIA Torture Began In Afghanistan 8 Months before DoJ Approval, Even In Cheney’s Bleak World, The Al-Qaeda-Iraq Torture Story Is A New Low (all April 2009), Ibn al-Shaykh al-Libi Has Died In A Libyan Prison , Dick Cheney And The Death Of Ibn al-Shaykh al-Libi, The “Suicide” Of Ibn al-Shaykh al-Libi: Why The Media Silence?, Two Experts Cast Doubt On Ibn al-Shaykh al-Libi’s “Suicide”, Lawrence Wilkerson Nails Cheney On Use Of Torture To Invade Iraq, In the Guardian: Death in Libya, betrayal by the West (in the Guardian here), Lawrence Wilkerson Nails Cheney’s Iraq Lies Again (And Rumsfeld And The CIA) (all May 2009) and WORLD EXCLUSIVE: New Revelations About The Torture Of Ibn al-Shaykh al-Libi (June 2009), The Logic of the 9/11 Trials, The Madness of the Military Commissions (November 2009), UK Judges Compare Binyam Mohamed’s Torture To That Of Abu Zubaydah (November 2009), UN Secret Detention Report Asks, “Where Are The CIA Ghost Prisoners?” (January 2010), Binyam Mohamed: Evidence of Torture by US Agents Revealed in UK (February 2010), Torture Whitewash: How “Professional Misconduct” Became “Poor Judgment” in the OPR Report (February 2010), Judges Restore Damning Passage on MI5 to the Binyam Mohamed Torture Ruling (February 2010), What Torture Is, and Why It’s Illegal and Not “Poor Judgment” (March 2010), Abu Zubaydah’s Torture Diary (March 2010), Seven Years of War in Iraq: Still Based on Cheney’s Torture and Lies (March 2010), Protests worldwide on Aafia Siddiqui Day, Sunday March 28, 2010 (March 2010), Abu Zubaydah: Tortured for Nothing (April 2010), Mohamedou Ould Salahi: How a Judge Demolished the US Government’s Al-Qaeda Claims (April 2010), Judge Rules Yemeni’s Detention at Guantánamo Based Solely on Torture (April 2010), How Binyam Mohammed’s Torture Was Revealed in a US Court (May 2010), What is Obama Doing at Bagram? (Part One): Torture and the “Black Prison” (June 2010), New Report Reveals How Bush Torture Program Involved Human Experimentation (June 2010). Also see the extensive archive of articles about the Military Commissions.

Greenwald then proceeded to explain how, in May 2008, Carter had condemned the Bush administration’s Military Commissions (the trial system for Guantánamo prisoners) as “fundamentally and fatally flawed,” arguing that “the rule of law will prevail only if they are perpetually blocked,” and cited a trial in a “civilian court” (his emphasis) of accused terrorists in France that involved “a combination of open and sealed (i.e., classified) evidence to prove the defendants’ guilt in a six-day trial,” which he regarded as the only viable model for the United States to follow.

How disappointing, then, that, just a month after Carter joined the Obama administration, the President announced, in a major national security speech, that the Commissions were back on the table, and Carter then watched, two weeks ago, as Attorney General Eric Holder announced that, although Khalid Sheikh Mohammed and four other men accused of involvement in the 9/11 attacks would face a federal court trial in New York, five other prisoners — previously charged in the Bush administration’s Military Commissions — would face what is apparently a second tier of justice based solely on the government’s belief that their cases are weaker: trials in the revamped Military Commissions, which have been brought back from the dead with the help of Congress.

Greenwald also noted that, in another post in April 2008, Carter expressed dismay at the Bush administration’s decision to charge Ahmed Khalfan Ghailani, a “high-value detainee” held for over two years in secret CIA prisons before his transfer to Guantánamo in September 2006, in a Military Commission “for acts committed before Sept. 11 — to wit, his alleged participation in the bombing of the US Embassy in Tanzania [in 1998].” Carter focused on the following passage in a Washington Post report: “Almost all of his alleged ‘war crimes’ occurred before the Sept. 11 attacks, and most predated the nation’s fight against terrorism. Four co-conspirators in the Tanzania bombing were convicted in US federal courts. Ghailani, too, was indicted in the United States, but federal authorities have opted to try him before the commission, composed entirely of military officers.”

Rounding on the Bush administration, Carter stated:

I’ll be very interested to see how the Bush administration’s lawyers argue their way around the provision of Article 1 that reads, “No Bill of Attainder or ex post facto Law shall be passed”. Setting aside the myriad objections to the military commissions generally, and this case specifically, I think this is going to present a major hurdle for the government.

I’m also concerned about the deliberate decision to take this case away from federal prosecutors … In my opinion, our default choice for the prosecution of suspected terrorists should be federal court … The substantive and procedural due process granted by federal courts has strategic value — it confers legitimacy on the outcome. That legitimacy matters for the struggle against terrorism, and I think it’s crucial that we evaluate our prosecutorial decisions with that strategic calculus in mind.

As Greenwald noted, bringing the story up to date:

While the Obama administration commendably sent Ghailani to New York to be tried in a civilian court, it just announced two weeks ago that Abd al-Rahim al-Nashiri, whose case originated as a criminal investigation with the FBI, would now be turned over to a military commission for prosecution in connection with the 2000 bombing of the USS Cole — raising all of the serious objections Carter voiced to the Ghailani case.

There’s more to Greenwald’s article — regarding Carter’s opposition to the use of the “state secrets” privilege, his concerns regarding the distinction between conventional wars of the past and the “War on Terror” when claiming presidential power, and his willingness to prosecute Bush administration officials and lawyers for war crimes, all of which have also been ignored by President Obama — but I’d like now to move onto the second departure from the administration: that of Greg Craig, the former White House Counsel, who resigned on November 13.

Craig is no darling of the left, as is apparent from complaints about his business dealings, including his relationship with Karl Rove, George W. Bush’s former Senior Advisor and Deputy Chief of Staff. However, on national security issues, his departure set the seal on the demise of a period of principled optimism that marked the first few months of the Obama administration, and that has degenerated into chaos and confusion ever since. A former foreign policy advisor to Senator Edward Kennedy and to Secretary of State Madeleine Albright, who served as special counsel in the White House of President Bill Clinton, and directed the team that defended Clinton against impeachment, Craig not only brought a wealth of political experience to Barack Obama’s administration, but was also the main driver of the policies designed to overturn and repudiate the Bush administration’s detention and interrogation policies in the “War on Terror.”

As Massimo Calabresi and Michael Weisskopf explained two weeks ago in an article in Time, “The Fall of Greg Craig,” Barack Obama “tasked Craig with dismantling Bush’s interrogation and detention policies” just four days after the Presidential election, and he took to his new job with extraordinary vigor, “creating one of the largest White House counsel’s offices ever, with dozens of high-powered lawyers, compared with only a handful who served under Bush in early 2001 … Craig’s office was an instant power center in the White House, able to produce answers, memos and ideas seemingly overnight while other parts of the Administration were still getting up and running.”

Despite opposition from the intelligence agencies, Craig drafted the Executive Orders, issued on President Obama’s second day in office, which, singlehandedly, sent a message to the world that the extra-legal horrors of the Bush administration had apparently come to an end. The orders set a one-year deadline for the closure of Guantánamo and called time on the CIA’s use of torture and secret prisons, and President Obama also announced that he was suspending the Military Commissions. Human rights activists were overjoyed, and, as Time noted, “Craig was delivering much of the change Obama had promised during the campaign.”

On March 15, Craig’s insistence on repudiating the Bush administration’s policies and providing the transparent government that Barack Obama had promised was delivered to full effect when, as a result of a long-standing court case initiated by the ACLU, a court deadline was reached regarding the release of classified memos, issued in 2002 and 2005 by the Justice Department’s Office of Legal Counsel, which purported to justify the use of torture. When Craig notified the President that the Justice Department planned to make the memos public three days later, Obama asked for a one-month extension to consider his options.

According to Time, when Gen. Michael Hayden, the former Director of the CIA, learned of the administration’s intention to release the memos, he “went ballistic,” calling Craig on March 18 and asking him, “What are you doing?” Hayden claimed that, if Obama released the memos, “al-Qaeda would be able to train its warriors to resist the techniques described in their contents.” Craig was apparently unperturbed. “The President is never going to authorize any of those techniques,” he replied, prompting the following response from Hayden: “Lemme get this right. There are no conditions of threat this nation might face that would prompt you to interrupt the sleep cycle of somebody who may have lifesaving information?” As Time described it, “There was a long silence. Craig would not concede the point.”

This showdown may well have been the high point of Greg Craig’s endeavors to reset America’s moral compass, confirming the President’s commitment to non-abusive interrogation techniques, in the face of Hayden’s extraordinary insistence that sleep deprivation — a clear component of the torture techniques favored by the Bush administration — ought to continue to be part of the agency’s operations.

As Time explained, Hayden refused to back down, and rallied CIA opposition to Craig’s plans. Former Director George Tenet called his former aide John Brennan, the Assistant to the President for Homeland Security and Counterterrorism, and John Deutch, a CIA Director under President Clinton, called Deputy National Security Adviser Tom Donilon. National Security Council aide Denis McDonough, a former Senate staffer who has “daily access to the President,” was also recruited, and on April 15, as the court’s extension came to an end, Obama “invited eight officers of the CIA’s Counterterrorism Center to make their case against release” at a meeting in the Oval Office. That evening, Obama called Rahm Emanuel, his Chief of Staff, to discuss the memos, and discovered that Emanuel was already discussing it “with about a dozen national-security and political advisers.” After joining the meeting, Obama “asked each to state a position and then convened an impromptu debate, selecting Craig and McDonough to argue opposing sides.”

As Time explained, “Craig deployed one of Obama’s own moral arguments: that releasing the memos ‘was consistent with taking a high road’ and was ‘sensitive to our values and our traditions as well as the rule of law.’ Obama paused, then decided in favor of Craig, dictating a detailed statement explaining his position that would be released the next day.”

What happened next signaled the start of the Obama administration’s retreat from the moral high ground, which led to the sidelining of Craig, and, finally, his resignation. Former Vice President Dick Cheney went on the attack, pollsters noted a drop in Obama’s support among independents, and, as a result, Rahm Emanuel “quietly delegated his aides to get more deeply involved in the process.”

Craig, however, remained focused on how to close Guantánamo, as he was, according to Time, “under pressure to eliminate … indefinite detention without charge or trial and the use of military commissions.” On April 17, he assembled officials from a range of government departments, and explained his plan: to bring some prisoners from Guantánamo to the US to face federal court trials, and also to bring others to settle in the United States. The latter were the Uighurs, Muslims from China’s Xinjiang province whose release into the United States had been ordered in October 2008 by Judge Ricardo Urbina, after the Bush administration declined to challenge their habeas corpus petitions.

Craig, like Judge Urbina, recognized that, because they could not be repatriated (because of fears that the Chinese government would torture them), because no other country could be found that would take them, and because their continued imprisonment in Guantánamo was unconstitutional, they would have to be brought to the United States. According to Time, defense secretary Robert Gates, Secretary of State Hillary Clinton and other senior officials “approved Craig’s plan to release two Uighurs in northern Virginia” as part of “a global game to empty the prison. If the two settled without incident, six more would be let into the US. That in turn would help the State Department persuade other countries to take Gitmo detainees. The hope was that those remaining could be tried in federal courts.”

At the meeting on April 17, security measures were planned for monitoring the Uighurs in their new home, and Craig also called for the development of “a plan to convince Congress and the public that it was a good idea.” The Uighurs’ lawyers had apparently agreed that their clients could be tagged, to play down security fears, and a Defense Department official told Time that the planned arrival of the Uighurs in the US “was a matter of days, not weeks.”

It was a fine and principled plan, and, had it happened, it would, I believe, have made the closure of Guantánamo by January 2010 possible. However, what happened instead is that another Cheney-baiting court case, concerning the release of photos showing the abuse of prisoners by US forces, reared up to derail the administration. On April 16, Craig had explained that the photos would have to be released, and at that point Robert Gates was supportive, and Rahm Emanuel was only concerned about locating a good time to release the information to cause minimal damage. A week later, however, when the government announced its plans to release the photos, senior military figures warned that soldiers in the field would face reprisals, Gates flip-flopped, and Republicans seized on another opportunity to attack the administration.

The uproar over the photos was then revived on April 24, when news of the Uighur resettlement plan was leaked. Senate minority leader Mitch McConnell “launched three weeks of near daily attacks on the idea of letting the Uighurs loose in the US,” and although Dick Durbin, a staunch supporter of Obama and the Majority Whip in the Senate, thought the government could win the fight in Congress, cowardice finally prevailed.

By May 8, when Craig was summoned to a meeting with Obama, the tide had turned. “I don’t like my options,” the President said, in relation to the abuse photos, and although Craig explained that his legal team had found no alternative to releasing the photos, Obama directed him to find a way, which he did, by withdrawing approval and paving the way for a legal struggle that reached the Supreme Court this fall. In a one-line ruling on November 30, the Supreme Court reversed the lower court’s ruling that the pictures be released, citing a provision in the Homeland Security funding bill signed into law on October 28, which authorized the Pentagon to block the release of the pictures, as well as any others which might “endanger” US soldiers or civilians.

Objectively, the refusal to release the photos in May was a distressing volte-face on the part of the administration, but behind the scenes it is now clear that the combined Republican assaults on Obama’s national security credentials led the administration to withdraw completely from Craig’s principled position regarding the Bush administration’s detention policies, compromising on issues that, as Craig had astutely recognized, were not open to compromise or negotiation if they were to succeed in overturning the Bush administration’s toxic legacy.

By the second week of May, Obama had killed the Uighur plan. As Time described it, “Craig never got a chance to argue the case to the President,” and an aide explained, “It was a political decision, to put it bluntly.” Thereafter, Craig was sidelined. The administration failed to fight back when Congress rose up in revolt, threatening to impose its own ban on the release of the photos, withholding funding for the closure of Guantánamo, legislating to prevent prisoners being brought to the US mainland, and interfering in the transfer of prisoners to any other country.

On May 21, Craig, like Phillip Carter, was obliged to watch as President Obama delivered the national security speech in which he not only announced his intention to revive the Military Commissions, but also — presumably to the absolute horror of Craig and Carter — explained that he would continue to hold some prisoners without charge or trial; those who, as he put it, “cannot be prosecuted yet who pose a clear danger to the American people.” By doing so, Obama ignored the sub-text that, if you cannot prosecute someone, it is because the information you are using does not rise to the level of evidence, or is otherwise tainted by torture, and is therefore inherently unreliable.

Six months on, as Greg Craig finally tendered his resignation, the price of subscribing to the Bush administration handbook, instead of standing up to bullying lawmakers and a renegade ex-Vice President, has become distressingly clear.

When it comes to finding new homes for cleared prisoners who cannot be repatriated, the administration finally managed to dispose of ten of the Uighurs, in Bermuda and Palau, although seven still remain at Guantánamo, nearly 14 months after Judge Urbina ordered their release, and dozens of other cleared prisoners face indefinite detention at the US government’s pleasure, because other countries — unenthused by Obama’s inability to bring even a single man to settle on the US mainland — have not rallied sufficiently to the cause.

Moreover, although the administration finally announced federal court trials for the five men accused of involvement with the 9/11 attacks on November 13 (the same day that Greg Craig resigned), Obama and Attorney General Eric Holder not only had to fight back against a wave of Republican fearmongering that has only grown in strength throughout the year, but also lost whatever credibility this should have given them — in the eyes of those whose allegiance is to the rule of law — by announcing that five others would face trials by Military Commission. They also conceded that Guantánamo would not close by January 2010, and let slip that some of those still held — those described by Obama in May as prisoners who “cannot be prosecuted yet who pose a clear danger to the American people” — would likely remain imprisoned forever without charge or trial.

Forgive me if I have oversimplified matters, but it appears to me that the failure to deliver a single, coherent system of justice to the remaining prisoners in Guantánamo, the failure to close the prison by Greg Craig’s deadline, the failure to kill the Military Commissions once and for all, and the acceptance, rather than the elimination of indefinite detention without charge or trial (which is at the very heart of the Guantánamo regime established by George W. Bush) demonstrate what happens when tough battles on points of principle give way to cowardice and political maneuvering, as exemplified in the poisonous compromises embraced six months ago by the Obama administration.

Andy Worthington is the author of The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison (published by Pluto Press, distributed by Macmillan in the US, and available from Amazon — click on the following for the US and the UK). To receive new articles in your inbox, please subscribe to my RSS feed (and I can also be found on Facebook and Twitter). Also see my definitive Guantánamo prisoner list, published in March 2009, details about the new documentary film, “Outside the Law: Stories from Guantánamo” (co-directed by Polly Nash and Andy Worthington, and launched in October 2009), and, if you appreciate my work, feel free to make a donation.

As published exclusively on the website of the Future of Freedom Foundation. Cross-posted on The Public Record and Campaign for Liberty.

Firstly, the Act authorizes 680 billion dollars to be spent — a mind-boggling amount of money — and secondly, it includes amendments to the Military Commissions Act of 2006, authorizing the revival of the much-maligned “terror trials” that were first dragged from obscurity by Dick Cheney and his close advisors in November 2001.

I have spent much of the last two and a half years railing against the folly and injustice of the Commissions, and, like human rights groups and lawyers, am not remotely assured that the Commissions’ latest incarnation is either prudent or necessary.

Statements derived from torture — key to the initial proposals back in 2001 — are, apparently, long gone, supposedly removed from any dealings with “War on Terror” prisoners in the Detainee Treatment Act of 2005. When the Commissions were ruled illegal by the Supreme Court in June 2006 and revived by Congress in the Military Commissions Act just a few months later, all forms of coercion were supposed to have been outlawed, but in reality, the military judges were allowed to use their discretion to decide where a line should be drawn.

In this latest incarnation of the “terror trials”, statements are required to be “voluntary”, bringing the system much more in line with federal court rules, although in reality a loophole still remains. Involuntary statements — in other words, those derived through some form of coercion — will be allowed if “the statement was made incident to lawful conduct during military operations at the point of capture or during closely related active combat engagement, and the interests of justice would best be served by admission of the statement into evidence.”

The new legislation also tightens the rules on the admissibility of hearsay evidence — or, as it should really be called, information obtained through hearsay. Both the prosecution and the defense must now be allowed time to investigate the information, and the military judges are empowered, like the federal court judges ruling on the Guantánamo prisoners’ habeas corpus petitions, to “take into account all of the circumstances surrounding the taking of the statement, including the degree to which the statement is corroborated, the indicia of reliability within the statement itself, and whether the will of the declarant was overborne.” They are also empowered to decide whether such statements are relevant and probative of the facts, and to reach their own conclusions about whether “the general purposes of the rules of evidence and the interests of justice will best be served by admission of the statement into evidence.”

Protections have also been provided in capital cases, in which the defendants — now, interestingly, identified as “unprivileged enemy belligerents,” rather than the notorious “enemy combatants” of the Bush administration — are entitled to be represented by defense lawyers with experience in handling capital cases.

More troubling are three particular aspects of the new Commissions: the fact that there is no lower age limit on those who can be charged (an omission which may have been included specifically to target Omar Khadr, the Canadian who was just 15 years old when he was seized in 2002); the fact that, despite proposals made by the administration, the legislation has no “sunset clause,” which means, as Daphne Eviatar explained in the Washington Independent, that, “[al]though Obama has promised to use the commissions sparingly, the new law sets up a parallel justice system that could outlive [his] administration and leave an indelible stamp on its legacy”; and the fact that two dubious war crimes — “conspiracy” and “providing material support for terrorism” — are still included in the legislation.

This is perhaps unsurprising, as it was Congress that introduced “material support for terrorism” in the Military Commissions Act, but its inclusion in the new legislation flies in the face of warnings by senior Obama administration officials that it might not withstand legal challenges. In testimony to the Senate Armed Services Committee in July, Assistant Attorney General David Kris urged lawmakers to drop “material support” from the pending legislation, noting (PDF):

While this is a very important offense in our counterterrorism prosecutions in Federal Court … there are serious questions as to whether material support for terrorism or terrorist groups is a traditional violation of the rules of war … our experts believe that there is a significant risk that appellate courts will ultimately conclude that material support for terrorism is not a traditional law of war offense, thereby reversing hard-won convictions and leading to questions about the system’s legitimacy.

Kris was more enthusiastic about retaining the other charge used most frequently in the Commissions — “conspiracy,” a legacy of Dick Cheney’s original Commissions — but this, too, is fraught with problems. In Hamdan v. Rumsfeld, the case in which the Supreme Court shut down the Commissions’ first incarnation, Justice John Paul Stevens, in an opinion in which he was joined by three other justices, made a point of mentioning that “conspiracy” has not traditionally been considered a war crime, and Shayana Kadidal, senior managing attorney of the Guantánamo Global Justice Initiative at the Center for Constitutional Rights, told Daphne Eviatar that, as a result, lawyers may well be able to argue that Congress has crafted an unconstitutional ex post facto law, in attempting to justify war crimes charges after the crime in question was committed.

The irony, therefore, is that, although Obama’s Commissions have moved closer to the standards required in federal court trials, the administration has found itself unable to take the logical next step and scrap them completely, pursuing cases in venues with a long history of successfully prosecuting terrorism cases, where well-established rules are already in place to handle “conspiracy” and “material support for terrorism.”

As Lawyers at Human Rights First have been explaining for many years — most recently in an update to their report, “In Pursuit of Justice: Prosecuting Terrorism Cases in the Federal Court” — in the last 20 years, federal courts have handled approximately 135 real-life terrorism prosecutions, and have secured convictions in over 90 percent of those cases. When the updated report was issued in July, Elisa Massimino, Human Rights First’s Chief Executive Officer, explained, “Politicians have spent eight years trying to reinvent the wheel when it comes to prosecuting terrorism and that approach has failed miserably. This report makes clear that the best way forward is to rely on our existing legal system. Its track record of successfully prosecuting criminals, safeguarding national security, and addressing the complex legal issues of our time is unmatched.”

What is particularly sad about the Obama administration’s decision to cling onto the Commissions is that, elsewhere, senior officials have recognized the power of traditional courts. Ahmed Khalfan Ghailani, a “high-value detainee” at Guantánamo, who spent two years in secret CIA prisons, was actually indicted for his alleged involvement in the 1998 African embassy bombings before the Bush administration began its destructive “War on Terror,” and when he was moved to the US mainland to face a federal court trial in May this year, the Justice Department issued a press release explaining that it has “a long history of … successfully prosecuting terror suspects through the criminal justice system,” and, to prove it, attached a list of successful prosecutions over the last 16 years.

If Ghaliani can be successfully prosecuted in federal court, there is surely no valid reason why a two-tier judicial system is required, especially given the ongoing problems with the Commissions identified above, and I can only conclude that the administration is unwilling to take this route because officials are not satisfied with the federal courts’ 90 percent success rate in terrorist cases, and fear that, in some cases, trials might lead to acquittals.

This is actually how justice works — and how it should work — but as a result of the Bush administration’s “War on Terror,” it seems that fear has eroded reason to an unprecedented extent, and that acquittals are as unacceptable as the alleged recidivism of even a single prisoner released from Guantánamo.

With this in mind, senior officials would do well to recall that one of the reasons that Col. Morris Davis, the former chief prosecutor of the Commissions, resigned in October 2007 was the following exchange with William J. Haynes II, the Pentagon’s chief counsel, which took place in August 2005.

According to Col. Davis, Haynes “said these trials will be the Nuremberg of our time” — a reference to the 1945 trials of Nazi leaders, “considered the model of procedural rights in the prosecution of war crimes,” as an article in the Nation described them. Col. Davis replied that he had noted that there had been some acquittals at Nuremberg, which had “lent great credibility to the proceedings,” and added, “I said to him that if we come up short and there are some acquittals in our cases, it will at least validate the process. At which point, his eyes got wide and he said, ‘Wait a minute, we can’t have acquittals. If we’ve been holding these guys for so long, how can we explain letting them get off? We can’t have acquittals. We’ve got to have convictions.’”

Andy Worthington is the author of The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison (published by Pluto Press, distributed by Macmillan in the US, and available from Amazon — click on the following for the US and the UK). To receive new articles in your inbox, please subscribe to my RSS feed (and I can also be found on Facebook and Twitter). Also see my definitive Guantánamo prisoner list, published in March 2009, details about my film, “Outside the Law: Stories from Guantánamo” (co-directed by Polly Nash, and launched in October 2009), and, if you appreciate my work, feel free to make a donation.

As published exclusively on Truthout.

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

And for a sequence of articles dealing with the Obama administration’s response to the Military Commissions, see: Don’t Forget Guantánamo (February 2009), Who’s Running Guantánamo? (February 2009), The Talking Dog interviews Darrel Vandeveld, former Guantánamo prosecutor (February 2009), Obama’s First 100 Days: A Start On Guantánamo, But Not Enough (May 2009), Obama Returns To Bush Era On Guantánamo (May 2009), New Chief Prosecutor Appointed For Military Commissions At Guantánamo (May 2009), Pain At Guantánamo And Paralysis In Government (May 2009), My Message To Obama: Great Speech, But No Military Commissions and No “Preventive Detention” (May 2009), Guantánamo And The Many Failures Of US Politicians (May 2009), A Child At Guantánamo: The Unending Torment of Mohamed Jawad (June 2009), A Broken Circus: Guantánamo Trials Convene For One Day Of Chaos (June 2009), Obama Proposes Swift Execution of Alleged 9/11 Conspirators (June 2009), Predictable Chaos As Guantánamo Trials Resume (July 2009), David Frakt: Military Commissions “A Catastrophic Failure” (August 2009),
9/11 Trial At Guantánamo Delayed Again: Can We Have Federal Court Trials Now, Please? (September 2009), Torture And Futility: Is This The End Of The Military Commissions At Guantánamo? (September 2009), Resisting Injustice In Guantánamo: The Story Of Fayiz Al-Kandari (October 2009).

A courtroom sketch of Ahmed Khalfan Ghailani, by Christine Cornell, at his arraignment in New York on June 9, 2009.

This is ironic for three reasons: firstly, because it means that Ghailani — the first Guantánamo prisoner to make it to the US mainland — will persistently expose the lies of the cowardly, scaremongering politicians who recently whipped up a frenzy about bringing prisoners to the mainland when he fails to escape from prison over the next 14 months; secondly, because it should demonstrate to the Obama administration that federal courts work, whereas Ghailani’s proposed trial by Military Commission at Guantánamo (in the Dick Cheney-inspired system that Obama has hinted he wants to revive) came to nothing and would almost certainly have lacked legitimacy had it gone ahead; and thirdly, because it demonstrates that the five years from the date of his capture to his first appearance in a New York courtroom in June — when he pleaded not guilty to the 286 charges against him — was a complete waste of time (if that isn’t too light-hearted a description of the Bush administration’s chronically cruel and obtuse program of “extraordinary rendition” and torture), and the Justice Department is clearly fortunate that, notwithstanding Ghailani’s claims of torture in secret CIA prisons, his case appears to be relatively straightforward to prosecute.

As I explained in an article in May, when the forthcoming trial was first announced, Ghailani was charged, inter alia, with “assist[ing] in the purchase of the Nissan truck as well as the oxygen and acetylene tanks that were used in the bombing of the US Embassy in Tanzania,” and is “further alleged to have participated in loading boxes of TNT, cylinder tanks, batteries, detonators, fertilizer and sand bags into the back of the truck in the weeks immediately before the bombing.” He is also charged with forging documents in Afghanistan, and working as a cook and a bodyguard for Osama bin Laden.

What makes his case so apparently clear-cut is that he has not refuted being an accessory to the Tanzanian bombing, and, in fact, admitted during his Combatant Status Review Tribunal at Guantánamo in 2007 that he “bought the TNT used in the bombing, purchased a cell phone used by another person involved in the attack and was present when a third person bought a truck used in the attack.” Moreover, he apologized for his involvement, saying that he did not know that the supplies would be used to attack the embassy, and stated, “I would like to apologize to the United States government for what I did before … It was without my knowledge [of] what they were doing, but I helped them … And I’m sorry for what happened to those families who lost, who lost their friends and their beloved ones.”

On Wednesday, however, his lawyers caused a stir in court by asking the government to preserve the “black sites” where Ghailani was held by the CIA. As Reuters explained, the lawyers “said they needed access to the secret detention sites, whose locations abroad have not been publicly identified, to gather evidence and inspect whether any statements the Tanzanian made under interrogation were reliable.”

As AFP described it, one of his lawyers, Peter Quijano, said, “The inspection of the CIA ‘Black Sites’ where the defendant was detained, subjected to interrogation techniques, interrogated and made statements is necessary,” because “it appears undeniable that the defendant was subjected to harsh conditions and harsh interrogation techniques while detained in CIA ‘Black Sites’” and “it is believed that the defendant was interrogated and made statements after being subjected to a ‘harsh regime employing a combination of physical and psychological ill-treatment with an aim of obtaining compliance and extracting information.’”

According to the Associated Press, Ghailani’s legal team added that it would be “another two months before they obtain security clearance necessary to visit the sites, and they fear they will be dismantled by then because the CIA on April 9 indicated it will ‘decommission’ the interrogation locations.” In response, one of the prosecutors, David Raskin, told Judge Kaplan that the government “would preserve the locations for now.” Kaplan said that he was pleased by the news, and added, bizarrely, “Then I don’t have to look at the classified information, no matter how titillating it may be.”

The most important comments, however, were made by David Raskin, firstly when he said that that the government was not planning to use any statements made by Ghailani in the secret prisons, and, secondly, when he explained that the evidence used in the case against Ghailani would “not be very different” from that used when four of his alleged co-conspirators were put through the federal court system in 2001, and, after being convicted in May 2001, were sentenced to life without parole in October 2001, just six weeks after the 9/11 attacks.

On that occasion, of course, there was no need for lawyers to propose visits to torture prisons, because the men in question had, sensibly, undergone interrogations in the United States, at the hands of skilled agents, that did not involve the use of secret prisons, that did not involve the use of torture, and that did not involve the current administration using the relatively clean case of Ahmed Khalfan Ghailani to test whether the federal court system can deliver justice — and be seen to deliver justice — in the cases of other prisoners who also lost years of their lives in an illegal and counter-productive pursuit of “actionable intelligence.”

Like most of the Bush administration’s “War on Terror” policies, Ahmed Khalfan Ghailani’s five years as a “high-value detainee” were part of a project that was conceived in haste and arrogance, with no thought of what would eventually happen to these dehumanized “ghost prisoners” — America’s Disappeared — when, as was inevitable, they were one day brought back into the real world.

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

As published on CounterPunch (as “Finally, a Trial Date in the African Embassy Bombings Case”), the Huffington Post and Antiwar.com (as “Why Trial Date For African Embassy Bombing Suspect Is Good News”). Also cross-posted on Common Dreams.

See the following for a sequence of articles dealing with the stumbling progress of the Military Commissions: The reviled Military Commissions collapse (June 2007), A bad week at Guantánamo (Commissions revived, September 2007), The curse of the Military Commissions strikes the prosecutors (September 2007), A good week at Guantánamo (chief prosecutor resigns, October 2007), The story of Mohamed Jawad (October 2007), The story of Omar Khadr (November 2007), Guantánamo trials: where are the terrorists? (February 2008), Six in Guantánamo charged with 9/11 attacks: why now, and what about the torture? (February 2008), Guantánamo’s shambolic trials (ex-prosecutor turns, February 2008), Torture allegations dog Guantánamo trials (March 2008), African embassy bombing suspect charged (March 2008), The US military’s shameless propaganda over 9/11 trials (April 2008), Betrayals, backsliding and boycotts (May 2008), Fact Sheet: The 16 prisoners charged (May 2008), Four more charged, including Binyam Mohamed (June 2008), Afghan fantasist to face trial (June 2008), 9/11 trial defendants cry torture (June 2008), USS Cole bombing suspect charged (July 2008), Folly and injustice (Salim Hamdan’s trial approved, July 2008), A critical overview of Salim Hamdan’s Guantánamo trial and the dubious verdict (August 2008), Salim Hamdan’s sentence signals the end of Guantánamo (August 2008), High Court rules against UK and US in case of Binyam Mohamed (August 2008), Controversy still plagues Guantánamo’s Military Commissions (September 2008), Another Insignificant Afghan Charged (September 2008), Seized at 15, Omar Khadr Turns 22 in Guantánamo (September 2008), Is Khalid Sheikh Mohammed Running the 9/11 Trials? (September 2008), two articles exploring the Commissions’ corrupt command structure (The Dark Heart of the Guantánamo Trials, and New Evidence of Systemic Bias in Guantánamo Trials, October 2008), Meltdown at the Guantánamo Trials (five trials dropped, October 2008), The collapse of Omar Khadr’s Guantánamo trial (October 2008), Corruption at Guantánamo (legal adviser faces military investigations, October 2008), An empty trial at Guantánamo (Ali Hamza al-Bahlul, October 2008), Life sentence for al-Qaeda propagandist fails to justify Guantánamo trials (al-Bahlul, November 2008), Guilt by Torture: Binyam Mohamed’s Transatlantic Quest for Justice (November 2008), 20 Reasons To Shut Down The Guantánamo Trials (profiles of all the prisoners charged, November 2008), How Guantánamo Can Be Closed: Advice for Barack Obama (November 2008), More Dubious Charges in the Guantánamo Trials (two Kuwaitis, November 2008), The End of Guantánamo (Salim Hamdan repatriated, November 2008), Torture, Preventive Detention and the Terror Trials at Guantánamo (December 2008), Is the 9/11 trial confession an al-Qaeda coup? (December 2008), The Dying Days of the Guantánamo Trials (January 2009), Former Guantánamo Prosecutor Condemns Chaotic Trials (Lt. Col. Vandeveld on Mohamed Jawad, January 2009), Torture taints the case of Mohamed Jawad (January 2009), Bush Era Ends with Guantánamo Trial Chief’s Torture Confession (Susan Crawford on Mohammed al-Qahtani, January 2009), Chaos and Lies: Why Obama Was Right to Halt The Guantánamo Trials (January 2009), Don’t Forget Guantánamo (February 2009).

The administration moved swiftly to refute the story, with the Justice Department maintaining that it would not comment on specific plans until after July 21, when the administration’s inter-departmental Guantánamo Task Force is scheduled to complete its review of all the Guantánamo cases, and an unnamed official telling AFP that “no such draft order existed, though internal deliberations were taking place on how to deal with those inmates who could not be released or tried in civilian courts.” The Post accordingly revised its story online, stating that administration officials were only “crafting language for an executive order.”

However, it is certainly true that the administration is struggling to deal effectively with the closure of Guantánamo, having recently suffered a defeat in Congress, when politicians of both parties supported a passage in a $106 bn. War Funding Bill, which “prohibits the use of any funds … to release or to transfer … any individual detained at Guantánamo Bay into the continental United States,” and also authorized legislation that “requires the President to report periodically to Congress on the status of Guantánamo Bay detainees and plans for their transfer.”

As a result, an executive order would indeed enable President Obama to “reassert presidential authority” over issues relating to the closure of Guantánamo, although whether indefinite detention is part of the plan is still unclear. Since last month, when the President first made public the options being looked at regarding the closure of Guantánamo (during an important national security speech), it has been clear that all options were being kept on the table.

Is the administration testing the waters?

It also appears that the administration is willing to test out responses to various proposals through strategic media leaks, as happened three weeks ago, when the New York Times published an article about a proposal, in draft legislation to be submitted to Congress, which was apparently designed to pave the way for the prisoners accused of involvement with the 9/11 attacks to plead guilty in a trial by Military Commission (the “terror trials” introduced by former Vice President Dick Cheney in November 2001), and to be executed — thereby fulfilling their stated aim of becoming martyrs — without the government having to go through a full trial process. This latest story may, therefore, represent a similar testing of the waters.

Last month, President Obama spelled out the options being discussed: release or transfer, trials in federal courts, trials in a revamped version of the Military Commissions, and indefinite detention. At the time, civil liberties groups, lawyers and numerous commentators — myself included — responded with undisguised hostility towards the last two options.

As I explained in an article following Obama’s speech and the simultaneous announcement that one of Guantánamo’s “high-value detainees,” Ahmed Khalfan Ghailani, an alleged associate of the African embassy bombers, would be tried in a federal court in New York, “setting up a two-tier system — of federal courts on the one hand, and Military Commissions on the other — appears to be nothing but a recipe for disaster.” I was even more worried about the prospect of indefinite detention, writing that I “would urge anyone who believes in the fundamental right of human beings, in countries that purport to wear the cloak of civilization with pride, to live as free men and women unless arrested, charged, tried and convicted of a crime, to resist the notion that a form of ‘preventive detention’ is anything other than the most fundamental betrayal of our core values.”

As a result of opposition to Military Commissions and preventive detention, it was somewhat surprising that the Washington Post / ProPublica article also claimed that unspecified civil liberties groups had “encouraged the administration, that if a prolonged detention system were to be sought, to do it through executive order,” and added that civil liberties groups “generally oppose long-term detention, arguing that detainees should either be prosecuted or released.” To the best of my knowledge, civil libertarians always oppose long-term detention without charge or trial, and no group has hinted that it would support plans for preventive detention, whether through an executive order or through legislation in Congress.

However, while this passage seems to me to provide another indication that the entire article was viewed by the “three senior government officials” behind it as another attempt to test responses to ongoing discussions within the administration, the article was more useful in its discussion of the government’s current analysis of the 229 prisoners who are still held.

The figures don’t add up

After noting that, during congressional testimony last week, Attorney General Eric Holder confirmed that 50 prisoners have been approved for release, and, with some hesitation, responded affirmatively to a suggestion that no more than 25 percent of those still held (in other words, around 60 prisoners) would be put forward for trials, the authors added that one of the officials who spoke to them noted that the administration was “still hoping that as many as 70 Yemeni citizens will be moved, in stages, into a rehabilitation program in Saudi Arabia.”

Excluding the one prisoner already sentenced (Ali Hamza al-Bahlul, who received a life sentence in a one-sided trial by Military Commission on the eve of the Presidential election), that leaves 48 prisoners facing indefinite detention, rather less than the figure quoted in the article by “several” Justice Department officials, who apparently “said they have found themselves agreeing with conclusions reached years earlier by the Bush administration: As many as 90 detainees cannot be charged or released.”

Reading between the lines, therefore (and excluding, for a moment, the laughable suggestion that the Bush administration had any basis for reaching objective “conclusions” about the Guantánamo prisoners it had rounded up so randomly), what this means is that 48 prisoners face indefinite detention, plus 42 Yemenis if plans to put them through the Saudi rehabilitation program do not work out — and the lack of logic involved in that suggestion is, I hope, abundantly clear.

I also have my doubts about the figure of 60 or so prisoners to be put forward for trials (as intelligence estimates over the years — mentioned most recently by Lawrence Wilkerson, Colin Powell’s former Chief of Staff — have indicated that no more than two to three dozen of the prisoners had any meaningful connection to terrorism), but I was at least reassured that two Justice Department officials involved in a review of possible prosecutions told the Washington Post / ProPublica that the administration “is strongly considering criminal charges in federal court for Khalid Sheikh Mohammed and three other detainees accused of involvement in the Sept. 11, 2001, attacks.”

This contradicts the earlier leak, mentioned above, indicating that they would face a fast-track trial by Military Commission, and, I hope, for two particular reasons, that it is true: firstly, because any trial by Military Commission — however tweaked by Obama — would lack legitimacy in the eyes of many at home and abroad, after the Commissions’ manifest failures throughout the Bush years; and secondly, because, if any genuine evidence exists whatsoever to prove that Khalid Sheikh Mohammed and his co-accused were actually involving in planning and facilitating the 9/11 attacks, then no jury in the US will fail to convict them, despite their government-sanctioned torture at the hands of the CIA.

The strange case of Walid bin Attash

Even so, all is not well, as the Washington Post / ProPublica article also indicated. According to “one senior official,” one of the men who could be subjected to preventive detention is Walid bin Attash, one of the five men accused of involvement in the 9/11 attacks. Bin Attash (also known as Khallad, or Tawfiq bin Attash), who is also accused of involvement in the African embassy bombings in 1998, and the bombing of the USS Cole in 2000, was seized in April 2003 and was held in secret CIA prisons for nearly three and a half years before his transfer to Guantánamo in September 2006.

In the leaked report on the “high-value detainees” that was compiled by the International Committee of the Red Cross, based on interviews with the men after their transfer to Guantánamo (and the subject of a major New York Review of Books article by Mark Danner in April), bin Attash, who lost a leg in Afghanistan many years before his capture, described some of the ways in which he was treated in a secret CIA prison in Afghanistan:

On arrival at the place of detention in Afghanistan I was stripped naked. I remained naked for the next two weeks. I was put in a cell measuring approximately [3 1/2 by 6 1/2 feet]. I was kept in a standing position, feet flat on the floor, but with my arms above my head and fixed with handcuffs and a chain to a metal bar running across the width of the cell. The cell was dark with no light, artificial or natural …

After some time being held in this position my stump began to hurt so I removed my artificial leg to relieve the pain. Of course my good leg then began to ache and soon started to give way so that I was left hanging with all my weight on my wrists. I shouted for help but at first nobody came. Finally, after about one hour a guard came and my artificial leg was given back to me and I was again placed in the standing position with my hands above my head. After that the interrogators sometimes deliberately removed my artificial leg in order to add extra stress to the position …

Noticeably, however, when bin Attash was brought before a tribunal at Guantánamo in 2007, he produced what appeared to be an unprompted confession, when he said that he was the link between Osama bin Laden and the Nairobi cell during the African embassy bombings in 1998, and also admitted that he had played a major part in the bombing of the USS Cole in 2000, explaining that he “put together the plan for the operation for a year and a half,” and that he bought the explosives and the boat, and recruited the bombers.

Despite this, it was noticeable that the senior official did not even mention bin Attash’s own confession, and focused instead on what was described as the Justice Department’s conclusion that “none of the three witnesses against him can be brought to testify in court. One witness, who was jailed in Yemen, escaped several years ago. A second witness remains incarcerated, but the government of Yemen will not allow him to testify [and] Administration officials believe that testimony from the only witness in US custody, Abdul Rahim al-Nashiri, may be inadmissible because he was subjected to harsh interrogation while in CIA custody.”

It is difficult to know quite what conclusion to draw from this. Certainly, there is a problem with the case against al-Nashiri — one of three prisoners subjected to waterboarding, according to Gen. Michael Hayden, the former director of the CIA — although the problem is less to do with the manner in which he was treated in CIA custody, and more to do with the fact that, in his tribunal in Guantánamo, he denied every allegation against him.

He stated that he made up stories tying him to the bombing of the USS Cole and confessed to involvement in several other plots — including plans to bomb American ships in the Gulf, a plan to hijack a plane and crash it into a ship, and claims that Osama bin Laden had a nuclear bomb — in order to get his captors to stop torturing him. “From the time I was arrested five years ago,” he said, “they have been torturing me. It happened during interviews. One time they tortured me one way, and another time they tortured me in a different way. I just said those things to make the people happy. They were very happy when I told them those things.”

Considering that, in the 9/11 Commission Report (PDF), bin Attash was specifically mentioned in connection with investigations by the CIA, the FBI and Yemeni intelligence following the bombing of the USS Cole, and information provided during his interrogations in CIA custody was quoted from extensively, it strikes me as remarkable that no reliable evidence apparently exists that can be used to prosecute him in a US federal court. Is this because no evidence really exists, or is it because of reticence in providing information on the part of the intelligence agencies? If the former, then I fail to see how a case can be made for continuing to hold him; if the latter, then the administration should find a way to put him on trial.

As was explained in a press release that accompanied the transfer of Ahmed Khalfan Ghailani to the US mainland, the Justice Department has “a long history of … successfully prosecuting terror suspects through the criminal justice system,” and, to prove it, the DoJ attached a list of successful prosecutions over the last 16 years. Surely the case of Walid bin Attash should be no different.

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

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

These promises resurface regularly — most recently during his recent bridge-building speech in Egypt — but in reality the torture promise has been tarnished by an unwillingness to appoint an independent prosecutor to investigate the legality of the Bush administration’s policies, and doubts have arisen about the treatment of prisoners of war because of the administration’s refusal to open up the US prison at Bagram airbase in Afghanistan to outside scrutiny.

On Guantánamo, too, Obama has both dawdled and sent out mixed messages. The inter-departmental review board that he established to review the Guantánamo cases has moved so slowly that only two prisoners were released in the first four months of the new administration, and a spate of releases this week — a Chadian who was just 14 years old when he was seized, an Iraqi, three Saudis and four Uighurs who were sent to Bermuda — seems to have been prompted more by the recent death of Muhammad Salih, a Yemeni prisoner (who allegedly committed suicide), than by any great desire to empty the prison as soon as possible.

In particular, Obama’s refusal to allow the Uighurs (Muslims from China, who last year managed to persuade the Bush administration that they were not “enemy combatants”) to settle in the US, as ordered by a judge last October, has shown that he is susceptible to fearmongering by unscrupulous politicians, and has also hindered efforts to persuade European countries to accept other prisoners cleared for release, who, like the Uighurs, cannot be repatriated because of a risk of torture.

However, the most shocking demonstration of Obama’s inability, or unwillingness to pursue a single, coherent policy and to draw a clear line between himself and his predecessor concerns his proposals for dealing with the relatively small number of prisoners (probably no more than a few dozen) who will be put forward for trial, and another group regarded as too dangerous to release, but who, according to the administration, will not be charged.

For this first group, the President has, in one instance, made a clean break from the Bush years, moving Ahmed Khalfan Ghailani, a “high-value detainee” who spent two years in secret CIA prisons before his arrival at Guantánamo in September 2006, to the US mainland to face a trial in a federal court in New York. Ghailani is accused of participating in the 1998 US embassy bombings in Kenya and Tanzania, and when the Justice Department announced his transfer to the US, Attorney General Eric Holder also pointed out that the Justice Department has “a long history of … successfully prosecuting terror suspects through the criminal justice system,” and, to prove it, attached a list of successful prosecutions over the last 16 years.

However, at almost the same time that the Justice Department was demonstrating a principled return to the rule of law, the New York Times revealed that a Justice Department task force, looking into the proposed trial of five other “high-value detainees” (including Khalid Sheikh Mohammed), who are accused of involvement in the 9/11 attacks, not only recommended trying them in a reworked version of the Military Commission trial system introduced by former Vice President Dick Cheney in November 2001, but also drafted legislation whereby Congress could “clear the way for detainees facing the death penalty to plead guilty without a full trial.”

It is disturbing enough that the Obama administration is thinking of reviving the Commissions, which were almost universally condemned during their seven-year history, ruled illegal by the Supreme Court in 2006, attacked by the  government’s own military judges and lawyers, and unable to deliver more than three dubious convictions, but to propose reviving the Commissions at the same time that the Justice Department was praising the ability of federal courts to successfully prosecute terror suspects is surely a sign of weakness and confusion.

This is, moreover, not the only indication that the Obama administration is struggling to deal coherently with the legacy of the Bush years. Six weeks ago, when the President first floated the idea of reviving the Commissions, he also let it be known that he was considering proposing legislation to authorize the “preventive detention” of 50 to 100 of the Guantánamo prisoners who were regarded as too dangerous to release, but against whom there was not sufficient evidence to pursue a trial.

What this means in reality is that the evidence would not stand up in a court, almost certainly because it was extracted through the torture or coerced interrogations of other prisoners, and the administration’s “preventive detention” proposal is therefore profoundly troubling for a number of reasons: firstly, because it involves an unacceptable willingness to accept as evidence information obtained through torture or coercion; secondly, because it reveals double standards, when, on the one hand, the government is prepared to try those prisoners regarded as the most dangerous, but is also prepared to continue holding those regarded as less dangerous without charge or trial; and thirdly, because it indicates that senior officials have missed the whole point of Guantánamo.

When the Bush administration established Guantánamo — and all its other “War on Terror” prisons — it was based on the arrogant and lawless presumption that, between the guilty and the innocent lay a third category of prisoner, who could, as Guantánamo has demonstrated for over seven years, be held in a permanent state of “preventive detention” — without charge, without trial, without justice.

It is not too late for President Obama to redeem himself, but he needs to shed his fascination with Military Commissions and “preventive detention,” or he will enshrine America as a country forever tainted by the lawlessness of the Bush years.

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

As published exclusively in the Daily Star, Lebanon, as “Obama is confused over terror trials.” Also cross-posted on Common Dreams.

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

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

The five alleged co-conspirators in the 9/11 attacks. From the top: Khalid Sheikh Mohammed (KSM), Ramzi bin al-Shibh, Mustafa al-Hawsawi, Ali Abdul Aziz Ali and Walid bin Attash.

Such a statement can only set alarm bells ringing, of course, as it clearly refers to the five alleged co-conspirators in the 9/11 attacks — Khalid Sheikh Mohammed, Ramzi bin al-Shibh, Mustafa al-Hawsawi, Ali Abdul Aziz Ali and Walid bin Attash — and it indicates that, in order to avoid having to disclose distressing details of the torture to which these men were subjected, during their long years in secret CIA prisons, the Obama administration is wondering if allowing them to fulfill their stated aim of pleading guilty and becoming martyrs might be an effective way to dispose of what is probably the thorniest problem inherited from the government of George W. Bush.

It’s tempting to take this view, of course, because the Obama administration has already demonstrated its unwillingness to thoroughly repudiate its predecessor’s brutally innovative approach to detention and trials in terrorist cases; firstly by announcing its intention to revive the system of trials by Military Commission (the much-criticized “terror courts,” conceived by Dick Cheney and his legal counsel David Addington, which were mired in incompetence and corruption throughout their seven-year history), and secondly by proposing to push for legislation authorizing the use of “preventive detention” for 50 to 100 of the remaining 239 prisoners. As I explained in an article three weeks ago, “Fundamentally, Guantánamo is a prison that was founded on the presumption that the Bush administration’s “new paradigm” [in the “War on Terror”] justified “preventive detention” for life,” and “to even entertain the prospect that a third category of justice (beyond guilt and innocence) can be conjured out of thin air without fatally undermining the principles on which the United States was founded is to enter perilous territory indeed.”

These are not the only proposals put forward by the administration to facilitate the closure of Guantánamo by January 2010, as Obama promised on taking office. In fact, one prisoner — Ahmed Khalfan Ghailani, allegedly involved in the African embassy bombings in 1998 — has already been put forward for trial in a federal court in New York, demonstrating that the administration is capable of trusting the federal courts to successfully prosecute cases related to terrorism, as they have done on over a hundred occasions in the last 15 years (PDF). As I also explained in my article three weeks ago, I regarded the decision to charge Ghailani in a federal court “as a clear indication that trials in the US court system are the only legitimate way forward, and that setting up a two-tier system — of federal courts on the one hand, and Military Commissions on the other — appears to be nothing but a recipe for disaster.”

However, the leaked proposal to allow guilty pleas that could lead to swift executions has been raised specifically in connection with the Military Commissions, and it should be noted that, although it appears to be designed primarily to circumvent all mention of torture while reaching a verdict that the government thinks is appropriate, it is not quite as cynical as this analysis suggests.

Essentially, the question of whether guilty pleas are acceptable in the Commissions was raised last year, during pre-trial hearings for the alleged 9/11 co-conspirators, when, as the Times described it, military prosecutors sought “to clarify what they view[ed] as an oversight in the 2006 law that created the commissions.” This oversight — based, it should be noted, on the Bush administration’s determination to fashion a legal system that was based neither on the federal court system nor on precedents in the military’s own judicial system — centered on the fact that the Military Commissions Act of 2006 “did not make clear if guilty pleas would be permitted in capital cases,” and the problem is that federal courts permit guilty pleas in capital cases, but the military’s own judicial system, on which the military commissions are modeled, do not. As the Times explained, “Partly to assure fairness when execution is possible, court-martial prosecutors are required to prove guilt in a trial even against service members who want to plead guilty.”

The five alleged co-conspirators in the 9/11 attacks are shown this sketch by courtroom artist Janet Hamlin at their arraignment in Guantánamo on June 5, 2008. They are, from top to bottom, Khalid Sheikh Mohammed, Walid bin Attash, Ramzi bin al-Shibh, Ali Abdul Aziz Ali, and Mustafa al-Hawsawi.

In December, when Khalid Sheikh Mohammed and his co-defendants announced that they wanted to plead guilty, all parties discovered that the Military Commissions Act had failed to provide clear rules determining the appropriate response. Military prosecutors argued that the men should be allowed to make a guilty plea, because Congress had a “clear intent” to allow them to do so, while their defense teams countered by stating that the trial should follow US military law, and that therefore guilty pleas were not allowed.

In response to these conflicting opinions, the judge, Col. Stephen Henley, pointedly asked, “Can an accused plead guilty to a capital offense at a military commission?” and ordered both sides to provide written submissions, but, as the Times noted, he has not yet made a decision about how to proceed.

However, while this provides a context for the Obama administration’s deliberations, lawyers are unimpressed by the nuances, and have seized on the leaked proposal as an indication that the administration is only concerned with securing guilty verdicts via the least problematical route. Denny LeBoeuf, a lawyer for the ACLU who works on issues relating to Guantánamo and the death penalty, told the Times that “Requiring prosecutors to reveal what they know about detainees and how they know it would cast light both on the interrogation techniques used against the men and the acts of terrorism for which they are facing death,” and asked, “Don’t we have an interest as a society in a trial that examines the evidence and provides some reliable picture of what went on?” and
David Glazier, a law professor in Los Angeles, who has studied the commissions, explained, “This unfortunately strikes me as an effort to get rid of the problem in the easiest way possible, which is to have those people plead guilty and presumably be executed. But I think it’s going to lack international credibility.”

Both made valid points about openness and international credibility. As David Seth asked in a Daily Kos article on Saturday, “How does dispensing with a full, albeit difficult trial for prosecutors and avoiding inquiries about extensive torture benefit the detainees? How does it assure that their guilty pleas are knowing, intelligent and voluntary?” Moreover, as the website Moon of Alabama explained, “military law forbids death penalties based solely on guilty pleas for two good reasons: the guilty plea could be coerced, [and it] could be a way for people who are not guilty to commit a form of suicide” (as happened in the case of the Beatrice Six, four of whom “falsely confessed in a rape and murder case and were later exonerated through DNA analysis”).

These fears are especially true in the cases of two of the men. Lawyers for Ramzi bin al-Shibh have long claimed that they have doubts about his mental health. Noting, during a pre-trial hearing last September, that his medications include “a psychotropic drug prescribed to persons with schizophrenia,” his lawyers stated that he “might not be competent to stand trial or able to participate in his own defense,” and lawyers for Mustafa al-Hawsawi have claimed that his involvement in the rush to martyrdom is not voluntary because he has been bullied by Mohammed and at least two other co-defendants.

In addition, David Glazier’s comments about “international credibility” only scratch the surface of what would undoubtedly be ferocious opposition to a trial that was perceived as providing a short-cut to convenient executions — even, for a moment, leaving aside other complaints that, if the men are guilty, then it would be far better to imprison them for life than to kill them, which, if their statements are to be believed, is the twisted “martyrdom” they seek.

However, what is most disappointing about the leaked proposal is a suggestion in the Times article that what is motivating the administration more than any other factor is the fear that establishing a case against these men in a conventional trial in a federal court might result in the Justice Department’s inability to mount an effective case against one of them. As the Times described it, “Officials involved in the process said that lawyers reviewing the case have said that federal-court charges against four of the men might be possible, but that the evidence might be too weak for a federal court case against one of the five, Walid Bin Attash.”

As David Seth explained,

Usually, when “the evidence might be too weak for a federal court case” the prosecution recognizes that it cannot meet its burden of proof and it dismisses the charges. If the prosecution doesn’t dismiss the charges, it’s up to a jury or a judge to find the accused not guilty. And then? And then the accused goes free. Not so in Gitmo. Evidently in Gitmo, somebody who might be released because the case is “too weak for a federal court case” instead gets to plead guilty and be executed.

Seth added, “And to think that I was worried that those with weak cases would be ‘preventively detained’ forever and ever. Even that would be better than coerced guilty pleas followed by execution.”

Sadly, I think that this analysis is accurate, and I can only hope that the leaking of the proposal — which has already provided yet another example of the administration’s inability to act decisively to undo the crimes of the Bush years — is intended to test the waters, and that the feedback will so overwhelmingly negative that the government will accept that, in cleaning up its inherited mess, justice must not only be pursued without cutting corners, but must also be seen to be done, and must also involve an acceptance that the men it is dealing with are criminals — not “warriors” who stand somehow outside the law — and that, as in any criminal case, it is possible that not every prosecution will be successful.

If senior officials need any further reminders about the importance of operating within the bounds of the law, they should recall that one of the reasons that Col. Morris Davis, the former chief prosecutor of the Commissions, resigned in October 2007 was the following exchange with William J. Haynes II, the Pentagon’s chief counsel, which took place in August 2005.

According to Col. Davis, Haynes “said these trials will be the Nuremberg of our time ” — a reference to the 1945 trials of Nazi leaders, “considered the model of procedural rights in the prosecution of war crimes,” as an article in the Nation described them. Col. Davis replied that he had noted that there had been some acquittals at Nuremberg, which had “lent great credibility to the proceedings,” and added, “I said to him that if we come up short and there are some acquittals in our cases, it will at least validate the process. At which point, his eyes got wide and he said, ‘Wait a minute, we can’t have acquittals. If we’ve been holding these guys for so long, how can we explain letting them get off? We can’t have acquittals. We’ve got to have convictions.’”

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

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

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

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

Ghailani, who is charged with “assist[ing] in the purchase of the Nissan truck as well as the oxygen and acetylene tanks that were used in the bombing of the US Embassy in Tanzania,” and who is “further alleged to have participated in loading boxes of TNT, cylinder tanks, batteries, detonators, fertilizer and sand bags into the back of the truck in the weeks immediately before the bombing,” admitted at a hearing in Guantánamo in 2007 that he “bought the TNT used in the bombing, purchased a cell phone used by another person involved in the attack and was present when a third person bought a truck used in the attack,” but apologized for his involvement, saying that he did not know that the supplies would be used to attack the embassy.

The decision to charge Ghailani in a federal court effectively repudiates his last five years of detention, since he was seized in Pakistan in 2004, as he was first indicted in New York in 1998 for “conspiring with Osama bin Laden and other members of al-Qaeda to kill Americans overseas and for his role in the Aug. 7, 1998, bombing of the US Embassy in Dar es Salam, Tanzania, which killed at least eleven people and caused injuries to at least 85 people,” and, as a result of superseding indictments, is now accused of 286 different charges, including participating in an al-Qaeda conspiracy “to murder, bomb, and maim US civilians anywhere in the world.”

The decision does not, however, address some uncomfortable facts about Ghailani’s last five years in US custody. As I wrote in an article when he was put forward for trial by Military Commission at Guantánamo in March 2008 (before the trials were suspended by Barack Obama, on his first day in office),

Ghailani did not allege, during his military tribunal, that he was tortured (unlike Khalid Sheikh Mohammed, Abu Zubaydah and Abdul Rahim al-Nashiri, whose torture by waterboarding was admitted by CIA director Michael Hayden), but during my research for my book The Guantánamo Files, I discovered a piece of information that indicated that, whether under duress, or by some other method, he had made a false allegation against one of the prisoners at Guantánamo.

One of the more disturbing aspects of the gathering of evidence used against the Guantánamo prisoners is the accumulation of allegations from [their tribunals and review boards, in which] an enormous number of claims are attributed to “a senior al-Qaeda operative” or “a senior al-Qaeda lieutenant.” With no names given, it has been impossible to establish the source of these claims, although they are frequently so at odds with a previously established chronology of the prisoner’s actions — placing them at training camps and in guest houses when they were not even in Afghanistan, for example — that it’s readily apparent that many, if not most of these allegations were produced under duress, probably when supposed “high-value detainees” were being shown the “family album” of prisoners that was used from the earliest days of the US-run prisons in Afghanistan, in late December 2001.

On one occasion only, I discovered that one of these “al-Qaeda” sources had been named, and was none other than Ahmed Khalfan Ghailani. As I explained in Chapter 20 of The Guantánamo Files, “The Yemeni Mohammed al-Hanashi … admitted to his tribunal in 2004 that he arrived in Afghanistan eight or nine months before 9/11, and that he fought with the Taliban. By the time of his review in 2005, however, new allegations had been added, including the claim that Ahmed Khalfan Ghailani ‘identified him as having been at the al-Farouq camp [the main training camp for Arabs, associated in the years before 9/11 with Osama bin Laden] in 1998-99 prior to moving on to the front lines in Kabul.’ In other words, although al-Hanashi admitted traveling to Afghanistan to serve as a foot soldier for the Taliban, a man who was held in extremely dubious circumstances in another part of the world was shown his photo and came up with a story about seeing him two or three years before his arrival in Afghanistan, which would, henceforth, be regarded as evidence against him.”

What’s particularly ironic about Ghailani’s case, however, is that while he was held in secret prisons and, presumably, subjected to all manner of “enhanced interrogation techniques” to persuade him to make dubious confessions about other prisoners, four of his alleged co-conspirators were put through the federal court system in 2001, after a process of interrogation that did not involve the use of secret prisons and torture, and, after being convicted in May 2001, were sentenced to life without parole in October 2001, just six weeks after the 9/11 attacks.

In another ironic twist, it is presumed that the African embassy bombings were actually perpetrated by al-Qaeda as revenge for US involvement in one of several dozen examples of the pre-9/11 use of “rendition” under the Clinton administration, after four members of Egyptian Islamic Jihad, the terrorist group of al-Qaeda’ s deputy leader, Ayman al-Zawahiri, were seized in Albania and flown to Egypt, where one of the men reported that he was tortured, and two others were hanged. On August 5, 1998, al-Zawahiri threatened retaliation against the US “in a language they will understand,” warning that America’s “message has been received and that the response, which we hope they will read carefully, is being prepared.” The bombings took place two days later.

While I hope that Ahmed Khalfan Ghailani’s trial in a federal court proceeds smoothly, and that justice will be done — and will be seen to be done — if he was indeed involved in the dreadful attacks of August 1998, the sad truth remains that the ghost of rendition and torture, and of a long, dirty covert war between international terrorists and the CIA, which expanded after 9/11 to affect the whole of the Bush administration’s “War on Terror,” has cast a cloud over his case that will ensure that no possible outcome will represent a shining day for justice.

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

As published on CounterPunch, ZNet and Antiwar.com. Also cross-posted on Common Dreams.

See the following for a sequence of articles dealing with the stumbling progress of the Military Commissions: The reviled Military Commissions collapse (June 2007), A bad week at Guantánamo (Commissions revived, September 2007), The curse of the Military Commissions strikes the prosecutors (September 2007), A good week at Guantánamo (chief prosecutor resigns, October 2007), The story of Mohamed Jawad (October 2007), The story of Omar Khadr (November 2007), Guantánamo trials: where are the terrorists? (February 2008), Six in Guantánamo charged with 9/11 attacks: why now, and what about the torture? (February 2008), Guantánamo’s shambolic trials (ex-prosecutor turns, February 2008), Torture allegations dog Guantánamo trials (March 2008), African embassy bombing suspect charged (March 2008), The US military’s shameless propaganda over 9/11 trials (April 2008), Betrayals, backsliding and boycotts (May 2008), Fact Sheet: The 16 prisoners charged (May 2008), Four more charged, including Binyam Mohamed (June 2008), Afghan fantasist to face trial (June 2008), 9/11 trial defendants cry torture (June 2008), USS Cole bombing suspect charged (July 2008), Folly and injustice (Salim Hamdan’s trial approved, July 2008), A critical overview of Salim Hamdan’s Guantánamo trial and the dubious verdict (August 2008), Salim Hamdan’s sentence signals the end of Guantánamo (August 2008), High Court rules against UK and US in case of Binyam Mohamed (August 2008), Controversy still plagues Guantánamo’s Military Commissions (September 2008), Another Insignificant Afghan Charged (September 2008), Seized at 15, Omar Khadr Turns 22 in Guantánamo (September 2008), Is Khalid Sheikh Mohammed Running the 9/11 Trials? (September 2008), two articles exploring the Commissions’ corrupt command structure (The Dark Heart of the Guantánamo Trials, and New Evidence of Systemic Bias in Guantánamo Trials, October 2008), Meltdown at the Guantánamo Trials (five trials dropped, October 2008), The collapse of Omar Khadr’s Guantánamo trial (October 2008), Corruption at Guantánamo (legal adviser faces military investigations, October 2008), An empty trial at Guantánamo (Ali Hamza al-Bahlul, October 2008), Life sentence for al-Qaeda propagandist fails to justify Guantánamo trials (al-Bahlul, November 2008), Guilt by Torture: Binyam Mohamed’s Transatlantic Quest for Justice (November 2008), 20 Reasons To Shut Down The Guantánamo Trials (profiles of all the prisoners charged, November 2008), How Guantánamo Can Be Closed: Advice for Barack Obama (November 2008), More Dubious Charges in the Guantánamo Trials (two Kuwaitis, November 2008), The End of Guantánamo (Salim Hamdan repatriated, November 2008), Torture, Preventive Detention and the Terror Trials at Guantánamo (December 2008), Is the 9/11 trial confession an al-Qaeda coup? (December 2008), The Dying Days of the Guantánamo Trials (January 2009), Former Guantánamo Prosecutor Condemns Chaotic Trials (Lt. Col. Vandeveld on Mohamed Jawad, January 2009), Torture taints the case of Mohamed Jawad (January 2009), Bush Era Ends with Guantánamo Trial Chief’s Torture Confession (Susan Crawford on Mohammed al-Qahtani, January 2009), Chaos and Lies: Why Obama Was Right to Halt The Guantánamo Trials (January 2009), Don’t Forget Guantánamo (February 2009).

His case is enormously significant, as I explained in a recent article, The Dark Heart of the Guantánamo Trials, because it involved a plea bargain negotiated by Susan Crawford, the Commissions’ newly-appointed Convening Authority (the overseer of the trial system), which completely sidelined the prosecutors — and in particular, the chief prosecutor, Col. Morris Davis, who later resigned, citing political interference in the process and a desire on the part of those directing the trials to allow the use of evidence obtained through torture. Crawford, a protégée of Dick Cheney and a close friend of Cheney’s chief of staff, David Addington (the prime architect of the administration’s post-9/11 flight from the law) negotiated the plea in March 2007 as a favor to Australian Premier John Howard, following a visit from Cheney. In exchange for admitting to providing “material support for terrorism,” and dropping well-documented claims that he was abused in US custody, Hicks received a nine-month sentence, most of which was served in Australia.

2. Salim Hamdan. One of a pool of seven drivers for Osama bin Laden, the Yemeni — a father with two young daughters — was, like many of the prisoners, charged with conspiracy and providing material support for terrorism. After a two-week trial this summer, which was the Commissions’ first real test, a military jury cleared him of the conspiracy charge and gave him a five-and-a-half year sentence on the lesser charge of supporting terrorism. The judge, Capt. Keith Allred, then allowed credit for time served, which means that Hamdan’s sentence will be completed by the end of the year.

Critics of the system refused to accept the trial as legitimate (in particular, because the gray area regarding the admissibility of coerced evidence was never adequately addressed), but were delighted with the result. The government, however, which had been pressing for a 30-year sentence, was livid. After noting that Hamdan could still be held as an “enemy combatant” after his sentence is over (a notion which would surely shame all but the most hardened dictators), the Defense Department resorted to claiming that Allred was not entitled to reduce Hamdan’s sentence for time served, and called for the jury to be reconvened. Allred dismissed these claims in a terse judgment on October 30, when, having “read the filings and legal citations, as well as reviewing the sentencing hearing transcript” (as the Wall Street Journal explained), he declared, simply, “The prosecution motion to reconsider, reassemble, reinstruct and re-announce a sentence is denied.”

3. Ali Hamza al-Bahlul. Al-Bahlul’s trial — the second US “war crimes” trial since the Second World War — took place at Guantánamo in the week before the Presidential election. Unlike Salim Hamdan’s trial, however, in which justice could at least be seen to be done (even if it was refracted through a dark mirror of unspoken abuse), al-Bahlul, a Yemeni accused of producing videos for al-Qaeda and serving as a bodyguard for Osama bin Laden, refused to mount a defense, and his lawyer, Maj. David Frakt, respected his client’s wishes, and also refused to speak. As I pointed out in a recent article, Frakt was obliged to remain silent because of issues of compelled representation, which could lead to lawyers being punished in the real world outside Guantánamo for representing an unwilling client. As a result, al-Bahlul’s trial highlighted another grave problem with the Commissions: if a prisoner wished to represent himself, this was acceptable, but if he boycotted the proceedings entirely, his trial proceeded as a one-sided show trial.

On November 3, the military jury gave al-Bahlul a life sentence, but without a case for the defense, the administration was allowed to sidestep the question of al-Bahlul’s alleged torture in US custody, and was also allowed to ignore Maj. Frakt’s assertion, made before the trial began, that al-Bahlul “was not an operational combatant,” “had no role in planning terrorist activities,” and “did not engage in terrorist activities.” As I wrote at the time, “The administration will crow that it has achieved a significant victory in the ‘War on Terror,’ but al-Bahlul’s guilt should have been confirmed in a federal courtroom, where he would not have been able to score a propaganda victory for al-Qaeda by being convicted in a one-sided trial.”

4. Omar Khadr. A Canadian, Omar Khadr was just 15 years old when he was captured after a firefight in Afghanistan in July 2002, and, as a juvenile, should therefore have been rehabilitated rather then punished, according to the Optional Protocol to the UN Convention on the Rights of the Child (on the involvement of children in armed conflict). He is accused of throwing a grenade that killed a US soldier, although the disclosure of previously suppressed evidence in the last year indicates that another man threw the grenade. Because of obstruction by the prosecution, Khadr’s trial has been repeatedly delayed, and is now scheduled to begin on January 26, 2009, five days into the new US administration.

At the time of writing, there are hopes that the Canadian government will be obliged to demand his return to Canada, after it was revealed, in a Canadian court, that the government knew about his torture in Guantánamo and that their repeated claims that they had received assurances from the US authorities that he was being treated humanely were untrue. His civilian lawyer, Nate Whitling, told the court, “I don’t want to use the word ‘lie,’ but it was a demonstratively false statement that was made to the Canadian public.”

5. Mohamed Jawad. An Afghan, who was just 16 or 17 years old at the time of his capture, Jawad is accused of throwing a grenade that wounded two US soldiers and an Afghan interpreter in December 2002, although he has always claimed that Afghan police obtained his “confession” through torture.

In the last month, Jawad’s case has threatened the legitimacy of the entire Commission process, after his prosecutor, Lt. Col. Darrel Vandeveld, resigned. He explained that the system was designed to prevent the disclosure of evidence essential to the defense, and described how evidence proving that Jawad was a juvenile, that he was tricked into joining an insurgent group and was drugged before the attack, and that two other men had confessed to the crime, had been deliberately suppressed. Terrified that Vandeveld has more damaging revelations, the administration recently dropped the charges against five other prisoners — Noor Uthman Muhammed, Ghassan al-Sharbi, Jabran al-Qahtani, Sufyian Barhoumi and Binyam Mohamed — for whom Vandeveld was the prosecutor. The government added that it intended to refile charges against the five men in November, but did not explain how it intended to silence Vandeveld indefinitely.

All five were reportedly connected with Abu Zubaydah (photo, left), a training camp facilitator who is regarded by the US administration as a senior al-Qaeda operative, even though the FBI regards him only as a minor logistician with a personality disorder. The government has not explained why Zubaydah has not been charged, but in May it charged Muhammed, a Sudanese prisoner, with serving as the deputy emir and a weapons instructor at the Khaldan training camp in Afghanistan, even though Muhammed has insisted that Khaldan had nothing to do with either al-Qaeda or the Taliban. In June, al-Sharbi and al-Qahtani (both Saudis) and Barhoumi (an Algerian) were charged with various plots involving explosives, and Binyam Mohamed, a British resident whose lawyers have been engaged in a transatlantic struggle to secure evidence relating to the two years he spent being tortured in Morocco and in a secret CIA prison in Afghanistan, was charged with plotting to detonate a “dirty bomb” in a US city (the same non-existent plot that was used to hold US citizen Jose Padilla for three and a half years as an “enemy combatant” on the US mainland).

At the time of writing, the judge in Jawad’s case, Army Col. Stephen Henley, moved one step closer to dismissing the case by ruling that his “confession,” obtained in Afghan custody, was inadmissible, because it had been extracted through the use of torture (confirming Jawad’s repeated claims). As the Miami Herald reported, Henley found that there was “reason to believe Jawad was under the influence of drugs at the time of his capture and forced confession,” and also “accepted the accused’s account of how he was threatened, while armed senior Afghan officials allied with US forces watched his interrogation.” He stated that he believed Jawad’s account of an interrogator telling him, “You will be killed if you do not confess to the grenade attack. We will arrest your family and kill them if you do not confess.” He also made a point of stating that he was accepting Jawad’s account because the government had failed to provide “timely disclosure of evidence” for his trial, which is scheduled to begin on January 5, 2009.

Noting that Henley was explicitly rejecting the administration’s notorious attempts to redefine torture, Maj. David Frakt, Jawad’s tenacious defense attorney, congratulated the judge for “adopting a traditional legal definition of torture, rather than making one up,” and Lt. Col. Vandeveld also spoke out, telling the Associated Press that Jawad’s “confession” to Afghan officials was “among the most important evidence for his upcoming war crimes trial,” and adding, “To me, the case is not only eviscerated, it is now impossible to prosecute with any credibility.”

6. Ahmed al-Darbi. A Saudi, who is accused of plotting attacks on shipping for al-Qaeda, al-Darbi was kidnapped in Azerbaijan and rendered to Guantánamo in 2002, via the US prison at Bagram airbase, where he has claimed that he was severely abused. At his arraignment in April, he refused to take part in the Commissions, prompting his military-appointed lawyer, Army Lt. Col. Bryan Broyles, to comment that, in order to comply with established legal rules that prevent lawyers from representing clients who refuse their services (as in Ali Hamza al-Bahlul’s case), his role in al-Darbi’s forthcoming trial was now equivalent to that of a “potted plant.”

At a short pre-trial hearing in September, Broyles announced his resignation from the case, reiterating his complaints about compelled representation, and explaining that al-Darbi never came to trust him because “the attorney-client relationship is close to impossible to establish” in a system in which a lawyer is imposed on a prisoner, and that it was “compounded by the fact that counsel wear the same uniform as [the prisoner's] interrogators.” As a parting shot, Broyles was asked what he thought about the chief prosecutor’s claim that al-Darbi’s trial would be completed before the new administration takes office. “It’s not about timing,” he said, “it’s about doing justice.” While a new defense team was being arranged, al-Darbi was represented by his civilian lawyer, Ramzi Kassem.

7. Ibrahim al-Qosi. A Sudanese, who is accused of being a bodyguard and a driver for Osama bin Laden, and a quartermaster for al-Qaeda, al-Qosi was previously charged in the Commissions’ first aborted incarnation. In April, he also boycotted his pre-trial hearing, telling the judge, “I do not recognize the justice or the lawfulness of this court,” and adding, “What is happening in your courts is in fact a sham, which aims solely that the cases move at the pace of a turtle in order to gain some time to keep us in these boxes without any human or legal rights.” To the best of my knowledge, no date has yet been set for al-Qosi’s trial, even though it was one of the cases that the chief prosecutor, Col. Lawrence Morris, wanted to see completed before the new administration takes office in January 2009.

8. Khalid Sheikh Mohammed (KSM). Reportedly the third most important figure in al-Qaeda, after Osama bin Laden and Ayman al-Zawahiri, KSM, who was captured in Pakistan in March 2003, and the four men described below are among the 14 “high-value detainees” transferred to Guantánamo in September 2006 after being held for years in secret prisons run by the CIA. KSM confessed in his military tribunal in Guantánamo last year (convened to confirm that he was an “enemy combatant” who could be tried by Military Commission) that he was “responsible for the 9/11 operation, from A to Z.” He is one of three “high-value detainees” whom CIA director Michael Hayden admitted had been subjected to waterboarding (a torture technique that involves controlled drowning) while held in CIA custody.

KSM and his co-defendants were charged in February, and arraigned in June. In September, at a pre-trial hearing, KSM dominated the proceedings. Taking advantage of the fact that the Military Commissions Act allows prisoners to represent themselves (but only if they are willing to mount a defense, as revealed in the case of Ali Hamza al-Bahlul), he cheekily quizzed the judge, Marine Col. Ralph Kohlmann, about his beliefs, as part of the voir dire process (which allows lawyers to question the judge’s impartiality), and enjoyed a media platform which, ironically, would not have been available to him if he was being prosecuted in a courtroom on the US mainland.

9. Ramzi bin al-Shibh. A Yemeni, and reportedly a friend of the 9/11 hijackers, who helped coordinate the attacks with KSM after he was unable to enter the United States to train as a pilot for the operation, bin al-Shibh was captured in Pakistan in September 2002. After being held in secret CIA custody for four years, he refused to take part in his tribunal at Guantánamo, and only finally spoke at the pre-trial hearing in September. His lawyers, whom he is seeking to dismiss, are engaged in a legal tussle to secure an independent psychiatric evaluation of bin al-Shibh, who is receiving psychotropic drugs that are typically used for schizophrenia. At the hearing in September, Col. Kohlmann refused to allow the lawyers to visit Camp 7, the secret prison within Guantánamo where the “high-value detainees” are held, but on October 27 he relented, ruling that the lawyers should be allowed to visit the block to “inspect the defendant’s conditions of confinement as part of an inquiry into his mental health.”

10. Mustafa al-Hawsawi. A Saudi, who was captured with KSM, al-Hawsawi is accused of sourcing funding for the 9/11 attacks from Dubai. In his tribunal at Guantánamo, he admitted providing support for jihadists, including transferring money for some of the 9/11 hijackers, although he denied that he was a member of al-Qaeda. At the arraignment in June, it appeared that KSM and some of al-Hawsawi’s other co-defendants put pressure on him to refuse the services of his lawyer, Army Maj. Jon Jackson, but at the pre-trial hearing in September Jackson was still arguing his client’s corner. Explaining that his client “doesn’t understand about a quarter of the court proceedings because of incomprehensible interpretation,” he complained that the government had opposed a request for “transcripts of each day’s proceedings to be made available in English and Arabic so that they can go over each day’s events with their clients and make corrections for the record,” adding, “I could not believe my government would not provide transcripts in the native language of the accused that it wants to put to death.”

11. Ali Abdul Aziz Ali. Also known as Ammar al-Baluchi, he is a nephew of KSM, and was captured in Pakistan with Walid bin Attash (see below) in April 2003. In his tribunal at Guantánamo last year, he admitted transferring money on behalf of some of the 9/11 hijackers, but insisted that he was a legitimate businessman, who regularly transferred money for Arabs, without knowing what it would be used for. At the arraignment and the pre-trial hearing, he has spoken little, but has demonstrated a firm command of English, and a desire to highlight the inadequacies of the system and his torture at the hands of US forces. At the arraignment, he responded to Col. Kohlmann’s assurance of his right to legal assistance by stating, “Everything that has happened here is unfair and unjust,” and added, referring specifically to the offer of free legal representation, “Since the first time I was arrested, I might have appreciated that. The government is talking about lawyers free of charge. The government also tortured me free of charge all these years.”

12. Walid bin Attash. A Saudi, who lost a leg in Afghanistan before 9/11, bin Attash stated in his tribunal at Guantánamo that he was the link between Osama bin Laden and the Nairobi cell during al-Qaeda’s African embassy bombings in 1998, and admitted that he played a major part in the bombing of the USS Cole in 2000, explaining that he “put together the plan for the operation for a year and a half,” and that he bought the explosives and the boat, and recruited the bombers. Like KSM and Ali Abdul Aziz Ali, he has chosen to represent himself, although he is able to take advantage of the assistance of attorneys. In early October, Col. Kohlmann ruled that the men should be provided with “enough battery power to use their prison camp laptops [which contain the government’s unclassified evidence against them] 12 hours a day,” but stopped short of allowing them to “surf the Internet.”

Initially charged with the five men above, Mohammed al-Qahtani, a Saudi who was reportedly intended to be the 20th hijacker for the 9/11 attacks, but was refused entry into the United States by immigration officials, was tortured for several months at Guantánamo in late 2002 and early 2003. The charges against him were dropped in May, when the others were formally charged, either because evidence of his torture is admissible (whereas that obtained in secret prisons by the CIA is not), or because of a pronounced deterioration in his mental health since he was first charged, which led to a number of suicide attempts. It is unlikely that he will be charged again.

13. Ahmed Khalfan Ghailani. A Tanzanian, and one of the 14 “high-value detainees” transferred to Guantánamo from secret CIA prisons in September 2006, Ghailani, who was captured after a gun battle in Gujrat, Pakistan in July 2004, is accused of being a coordinator of the African embassy bombings, and of running a document-forging operation for al-Qaeda in Afghanistan. In his tribunal, he described himself as a peripheral character in the African embassy bombings, who was duped by others around him, although he admitted forging documents for al-Qaeda in Afghanistan.

On October 22, Ghailani was formally arraigned. Judy Rabinovitz, an observer for the American Civil Liberties Union, reported that the occasion “was not particularly enlightening,” and that the judge “essentially followed a script,” advising Ghailani that he had “a right to obtain civilian counsel in addition to his assigned military counsel,” and “repeatedly asking [him] if he understood what was going on.” A trial date is scheduled for February 2009. As Rabinovitz also noted, Ghailani was indicted in the United States ten years ago for the same crimes with which he is now being charged, “and several of his co-defendants in the federal proceedings have already been convicted and sentenced,” whereas Ghailani faces a dubious trial following years of mistreatment in secret CIA custody.

14. Mohammed Kamin. An Afghan seized in 2003, Kamin’s case is one of the more farcical cases put forward for trial. He is not charged with harming, let alone killing US forces, and is, instead, accused of receiving training at “an al-Qaeda training camp.” For his arraignment in May, he refused to leave his cell, and was dragged to the court by guards, arriving with bruises, cuts and a swollen eye. The judge, Air Force Col. W. Thomas Cumbie, explained that he was handcuffed and shackled because he had “attempted to spit on and bite one of the guards” on his way to the courtroom. Kamin then refused to be represented by a US military lawyer, and called the charges “a lie and a forgery.”

On October 23, a pre-trial hearing took place, although Kamin was not present. Judy Rabinovitz noted, “The officer who had been responsible for bringing him to court said that when she went to Kamin’s cell to notify him of the hearing, he ripped up the notice, began kicking and hitting the cell door and stated that he was innocent and it was President Bush who should be on trial.” She added that a prosecution motion “to compel Kamin’s presence by ‘forcibly extracting’ him from his cell was denied after defense lawyers objected on the grounds that it would put Kamin and others at risk,” although it was clear that the motion was denied in particular because the judge did not want a repeat of May’s proceedings.

The rest of the hearing was farcical. Rabinovitz explained that a mental status evaluation had found that Kamin was competent to participate in the proceedings, even though the two military doctors “had never met or observed the defendant,” and one, Col. Elspeth Cameron Ritchie, “has been criticized for assisting in the interrogation process.” As with other cases — including that of Omar Khadr — the defense sought to appoint an independent psychiatric expert, a proposal which was vigorously opposed by the prosecution, and also raised the issue of obstruction, which was timely, in the wake of Lt. Col. Vandeveld’s resignation. Although they accused the intelligence agencies of a “systemic failure” to cooperate with their requests for discovery, and asked the judge to dismiss the case, “as a sanction for the government’s failure to comply with the discovery process in a timely manner, but also as a deterrent to the intelligence agencies that continue to drag their feet, jeopardizing the integrity of the process,” the judge refused.

15. Mohammed Hashim. Another minor Afghan insurgent (at best), Hashim was charged in June with spying for al-Qaeda in Afghanistan and conducting a rocket attack on US forces. As with the case of Mohammed Kamin, it is difficult to work out how the administration construes these charges as “war crimes,” and in Hashim’s case this is complicated by the fact that his publicly available testimony — which is sprinkled with implausible references to 9/11, Osama bin Laden and links between al-Qaeda and Saddam Hussein — suggests that he either has mental health problems, or has dreamt up the biggest lies possible to secure more favorable treatment. Despite this, Susan Crawford approved the charges against Hashim on October 21.

16. Abdul Rahim al-Nashiri. A Saudi, and another of the 14 “high-value detainees” transferred to Guantánamo from secret CIA prisons in September 2006, al-Nashiri, who was seized in the United Arab Emirates in November 2002, was charged at the start of July for his alleged role in the attacks on the USS The Sullivans and the USS Cole in 2000, and the French tanker Limburg in 2002. What will undoubtedly complicate his case, should it come to trial, is the fact that he is one of three “high-value detainees” whom CIA director Michael Hayden admitted had been subjected to waterboarding in secret CIA custody, and in his tribunal at Guantánamo last year he made a point of mentioning that he had made up false confessions after being tortured. “From the time I was arrested five years ago,” he said, “they have been torturing me. It happened during interviews. One time they tortured me one way, and another time they tortured me in a different way. I just said those things to make the people happy. They were very happy when I told them those things.”

17. Abdul Ghani. Yet another minor Afghan insurgent, Ghani was charged at the end of July with firing rockets at US forces, planting “land mines and other explosive devices on more than one occasion for use against US and coalition forces,” attacking Afghan soldiers, and “accept[ing] monetary payments, including payment from al-Qaeda and others known and unknown, to commit attacks on US forces and bases.” As I wrote at the time, “Apart from the inclusion of the magic words ‘al-Qaeda,’ there was nothing in Abdul Ghani’s charge sheet to indicate that he should find himself in the same trial system as those accused of involvement in the 9/11 attacks, the African embassy bombings of 1998 or the bombing of the USS Cole in 2000, or even, in fact, that he should have been sent to Guantánamo at all.”

18. Obaidullah. If anything, the case against Obaidullah, another Afghan, is even less explicable. In September, he was charged with hiding explosives, which he “knew or intended” would be “used in preparation for and in carrying out a terrorist attack.” The charges were astonishing, because he was not actually accused of attacking US forces, and, according to the transcripts of his tribunal and review boards at Guantánamo, he made it clear that he had come up with false confessions while being threatened by US forces in a prison at the airport in Khost, in eastern Afghanistan.

19. Faiz al-Kandari. The first of two Kuwaitis to be put forward for trial, al-Kandari was charged with conspiracy and providing material support for terrorism on October 22. Seized during the Tora Bora campaign in December 2001, when members of al-Qaeda and the Taliban were holed up in the Afghan mountains near Pakistan, and numerous other civilians were attempting to flee the chaos of war, al-Kandari has always maintained that he traveled to Afghanistan to provide humanitarian aid, but is accused or providing instruction to al-Qaeda members and trainees at the al-Farouq camp (the main training camp for Arabs), serving as an adviser to Osama bin Laden, and producing “recruitment audio and video tapes which encouraged membership in al-Qaeda and participation in jihad,” even though he only arrived in Afghanistan a month before the 9/11 attacks.

20. Fouad al-Rabia. Also charged with conspiracy and providing material support for terrorism, al-Rabia, a businessman — and a father of four who was 42 years old when he was seized — is accused of raising funds for al-Qaeda, and being “in charge of an al-Qaeda supply depot at Tora Bora,” where he “distributed supplies to al-Qaeda fighters.” He has never denied meeting Osama bin Laden, but has explained that, as a good Muslim who undertook humanitarian aid missions every year, he was introduced to bin Laden in 2001 while visiting Afghanistan to research the opportunities for proving aid to the region.

He has also explained that he only ended up in Tora Bora as part of a vast exodus of people — civilians like himself, as well as members of al-Qaeda and the Taliban — who were fleeing the chaos of Afghanistan after the US-led invasion of October 2001, but had conceded that a senior figure in al-Qaeda forced him to look after the “issue counter,” where supplies — food and blankets, rather then weapons — were being handed out, in exchange for arranging for him to leave the mountains, when he was promptly sold by local villagers to the Northern Alliance.

In conjunction with the continuing setbacks described above, the one-sided show trial of Ali Hamza al-Bahlul, investigations into the alleged misconduct of the Commissions’ former legal adviser (described here), and the continuing threat to the credibility of the system that is posed by Lt. Col. Vandeveld, the latest charges do nothing to suggest that the life of the Military Commissions should be extended beyond January 20, 2009.

President Obama should press Congress to repeal the Military Commissions Act, as he promised, and should rapidly establish an objective and intelligent body capable of reviewing the cases of those facing (or scheduled to face) trial by Military Commission, stripping out the juveniles and insignificant Afghan insurgents (who should be freed) from those regarded as genuinely dangerous terrorists involved with al-Qaeda and/or the 9/11 attacks, who should be moved to the US mainland to face trials in federal courts.

After the crimes of the Bush years, no solution is perfect (and these trials will inevitably involve a messy compromise over the use of torture), but I can see no other practical solution. Talk of moving prisoners to the federal court system has already provoked a rash of commentators to step forward and talk about the need for new legislation creating another new trial system or providing a mandate for special “preventive detention” for “terror suspects,” but all such innovations should be resisted. I can only wonder how it is that those proposing such ideas have managed to learn nothing at all from the abuse of the Constitution over the last seven years.

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

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

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

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

1. David Hicks. An Australian, who was captured in Afghanistan in December 2001, Hicks accepted a plea bargain in March 2007, admitting to providing “material support for terrorism,” and dropping well-documented claims that he was abused in US custody, in exchange for a nine-month sentence, the majority of which was served in Australia. It has been claimed, plausibly, that his plea bargain was the result of political maneuvering between US Vice President Dick Cheney and Australian Prime Minister John Howard.

2. Omar Khadr. A Canadian, who was just 15 years old when he was captured after a firefight in Afghanistan in July 2002, Khadr is accused of killing a US soldier, although developments over the last six months in his pre-trial hearings suggest that exculpatory evidence, indicating that he was not responsible for the murder, was withheld from his defense team. In the latest twist in Khadr’s case, the Canadian Supreme Court ruled last week that Canadian agents acted illegally when they interrogated Khadr at Guantánamo in 2003 and handed the intelligence to US authorities.

3. Salim Hamdan. A Yemeni, who was a driver for Osama bin Laden and was captured while attempting to cross the Pakistani border in December 2001, Hamdan is accused of being an active member of al-Qaeda, although his defense team argues that he was just a paid employee. It was Hamdan’s case, Hamdan v. Rumsfeld, that caused the Supreme Court to rule that the first version of the Commissions were illegal in June 2006 (although they were later revived by Congress). In April, Hamdan decided to boycott his trial proceedings, and on May 9, following a blistering attack on the legitimacy of the Commissions by their former chief prosecutor, Col. Morris Davis, the judge in Hamdan’s case, Capt. Keith Allred, took the unprecedented step of barring the Commissions’ Pentagon-appointed legal adviser, Brig. Gen. Thomas Hartmann, from playing any further part in Hamdan’s trial. The following week, Capt. Allred made headlines again by postponing the start date of Hamdan’s trial until late July, citing the importance of a pending Supreme Court decision about the prisoners’ rights.

4. Mohamed Jawad. An Afghan, who was just 16 or 17 years old at the time of his capture, Jawad is accused of throwing a grenade that wounded two US soldiers and an Afghan interpreter in December 2002, although he has always claimed that Afghan police obtained his “confession” through torture. At his arraignment in March, he rejected the trial proceedings, and alleged that he had been tortured at the US prison at Bagram airbase in Afghanistan, and had been mistreated in Guantánamo. At a pre-trial hearing in May, Air Force Major David Frakt, who was assigned to represent him on April 28, told the court, “Mr. Jawad is an innocent man. He has been held for five years. He was a homeless boy wrongfully accused and beaten into confession by the Afghanistan police.”

5. Ahmed al-Darbi. A Saudi, who is accused of plotting attacks on shipping for al-Qaeda, al-Darbi was kidnapped in Azerbaijan and rendered to Guantánamo via Afghanistan in 2002. At his arraignment in April, he refused to take part in the Commissions, prompting his military-appointed lawyer, Army Lt. Col. Bryan Broyles, to comment that, in order to comply with established legal rules that prevent lawyers from representing clients who refuse their services (which are worryingly at odds with the Commissions’ own rules), his role in al-Darbi’s forthcoming trial was now equivalent to that of a “potted plant.”

6. Ibrahim al-Qosi. A Sudanese, who is accused of being a bodyguard and a driver for Osama bin Laden, and a quartermaster for al-Qaeda, al-Qosi, who was captured after crossing the Pakistani border in December 2001, was previously charged in the Commissions’ first aborted incarnation. In April, he also boycotted his pre-trial hearing, telling the judge, “I do not recognize the justice or the lawfulness of this court,” and adding, “What is happening in your courts is in fact a sham, which aims solely that the cases move at the pace of a turtle in order to gain some time to keep us in these boxes without any human or legal rights.”

7. Ali Hamza al-Bahlul. A Yemeni, who is accused of producing videos for al-Qaeda and serving as a bodyguard for Osama bin Laden, al-Bahlul, who was captured after crossing the Pakistani border in December 2001, was previously charged in the Commissions’ first aborted incarnation. In May, he also boycotted his pre-trial hearing, proudly proclaiming his association with Osama bin Laden, and telling the judge, “We will continue our jihad and nothing’s going to stop us. You must not oppress the people in the land. Your oppression against us and your support to the strategic ally in the region is what made me leave my house and today, I’m telling you, and you’re a man of law, if you sentence me to life … me and the others will be the reason for the continuation of the war against America.”

8. Khalid Sheikh Mohammed (KSM). Reportedly the third most important figure in al-Qaeda, after Osama bin Laden and Ayman al-Zawahiri, KSM, who was captured in Pakistan in March 2003, and the four men described below are among the 14 “high-value detainees” transferred to Guantánamo in September 2006 after being held for years in secret prisons run by the CIA. KSM confessed in his military tribunal in Guantánamo last year (convened to confirm that he was an “enemy combatant” who could be tried by Military Commission) that he was “responsible for the 9/11 operation, from A to Z.” He is one of three “high-value detainees” whom CIA director Michael Hayden admitted had been subjected to waterboarding (a torture technique that involves controlled drowning) while held in a secret prison run by the CIA.

KSM and his co-defendants, who were charged in connection with the 9/11 attacks in February, are due to be arraigned on June 5, although his recently appointed military lawyer, Navy JAG Prescott Prince, recently told the Los Angeles Times, “I think it’s the constitutional case of our time. Because in the 221st year of America, the question is whether the Constitution applies to the government.” He added, “I have no idea whether he did even half of those things he is accused of doing. But if he did commit those offenses, there are still issues of whether this court has jurisdiction, whether he is an enemy combatant who should be tried in a tribunal of this nature.” Prince also said, “He (KSM) believes his treatment has been illegal. I believe it’s been illegal too. And I personally believe that he cannot, as a result of all these things, get a fair trial.”

9. Ramzi bin al-Shibh. A Yemeni, and reportedly a friend of the 9/11 hijackers, who helped coordinate the attacks with KSM after he was unable to enter the United States to train as a pilot for the operation, as he originally planned, bin al-Shibh was captured in Pakistan in September 2002. After being held in secret CIA custody for four years, he refused to take part in his tribunal at Guantánamo, and if he speaks at his arraignment it will be his first publicly available statement since his capture.

10. Mustafa al-Hawsawi. A Saudi, who was captured with Khalid Sheikh Mohammed, al-Hawsawi is accused of sourcing funding for the 9/11 attacks from Dubai. In his tribunal at Guantánamo, he admitted providing support for jihadists, including transferring money for some of the 9/11 hijackers, although he denied that he was a member of al-Qaeda. Last week, his lawyer, Army Maj. Jon Jackson, sought fruitlessly to delay his arraignment, in particular because he has only been allowed to meet his client twice, and “has not received any potential evidence against al-Hawsawi supporting charges that ‘allege a complex conspiracy spanning several years,’” as the Associated Press put it.

11. Ali Abdul Aziz Ali. Also known as Ammar al-Baluchi, he is a nephew of KSM, and was captured in Pakistan with Walid bin Attash (see below) in April 2003. In his tribunal at Guantánamo last year, he admitted transferring money on behalf of some of the 9/11 hijackers, but insisted that he was a legitimate businessman, who regularly transferred money for Arabs, without knowing what it would be used for.

12. Walid bin Attash. A Saudi, who lost a leg in Afghanistan before 9/11, bin Attash stated in his tribunal at Guantánamo that he was the link between Osama bin Laden and the Nairobi cell during al-Qaeda’s African embassy bombings in 1998, and admitted that he played a major part in the bombing of the USS Cole in 2000, explaining that he “put together the plan for the operation for a year and a half,” and that he bought the explosives and the boat, and recruited the bombers.

13. Mohammed al-Qahtani. A Saudi, who was reportedly recruited as the 20th hijacker for the 9/11 attacks, but was refused entry into the United States by immigration officials, al-Qahtani was tortured for several months at Guantánamo in late 2002 and early 2003. Although he was put forward for trial by Military Commission in February, with KSM and the other four men described above, the charges against him were dropped in May, when the others were formally charged, either because evidence of his torture is admissible (whereas that obtained in secret prisons by the CIA is not), or because of a pronounced deterioration in his mental health since he was first charged, which led to a number of suicide attempts. It’s possible, but unlikely that he will be charged again.

14. Ahmed Khalfan Ghailani. A Tanzanian, and one of the 14 “high-value detainees” transferred to Guantánamo from secret CIA prisons in September 2006, Ghailani, who was captured after a gun battle in Gujrat, Pakistan in July 2004, is accused of being a coordinator of the African embassy bombings, and of running a document-forging operation for al-Qaeda in Afghanistan. In his tribunal, he described himself as a peripheral character in the African embassy bombings, who was duped by others around him, although he admitted forging documents for al-Qaeda in Afghanistan. Evidence of a revealing false allegation that he made in Guantánamo, which I discovered during research for The Guantánamo Files, was reported here.

15. Mohammed Kamin. An Afghan, who was captured in 2003, Kamin is accused of “providing material support for terrorism,” specifically by receiving training at “an al-Qaeda training camp,” conducting surveillance on US and coalition military bases and activities, planting two mines under a bridge, and launching missiles at the city of Khost while it was occupied by US and coalition forces. He is not charged with harming, let alone killing US forces, and were it not for his supposed al-Qaeda connection — he apparently stated in interrogation that he was “recruited by an al-Qaeda cell leader” — it would, I think, be impossible to make the case that he was involved in “terrorism” at all.

For his arraignment on May 21, 2008, Kamin refused to leave his cell, and was dragged to the court by guards. The judge, Air Force Col. W. Thomas Cumbie, explained that he was handcuffed and shackled because he had “attempted to spit on and bite one of the guards” on his way to the courtroom. Refusing to be represented by a US military lawyer, Kamin called the charges “a lie and a forgery,” according to Reuters, adding that he had no connection with al-Qaeda or the Taliban, and that he “did not recognize the court’s legitimacy and would not attend future hearings.” In a brief statement, he said, “My judge is the god that has created the sky and the land. He will be my lawyer and represent me. I wait for his decision. That’s enough.”

16. Noor Uthman Muhammed. A Sudanese, Muhammed was captured in Pakistan in March 2002, during the raid that netted the alleged senior al-Qaeda operative Abu Zubaydah (whose significance is disputed, along with his mental health). While Abu Zubaydah has not been charged before the Military Commissions, Muhammed was charged with “conspiracy” and “providing material support for terrorism” on May 23, 2008. He is accused of serving as the deputy emir and a weapons instructor at the Khaldan training camp in Afghanistan from 1996 to 2000, when the camp was closed. It is also alleged that he delivered a fax machine to Osama bin Laden at a training camp in 1999.

Noticeably, these charges do not relate to the 9/11 attacks, and in his tribunal at Guantánamo in 2004, Muhammed insisted that Khaldan was “a place to get training” that had nothing to do with either al-Qaeda or the Taliban. “People come over to that camp, train for about a month to a month and a half, then they go back to their hometown,” he said, adding that what the people did with the training they received was their own business. This may well have been an evasive explanation on Muhammed’s part, but he is not the only prisoner to state that Khaldan was not connected with al-Qaeda, and that Abu Zubaydah did not have a close relationship with the leadership of al-Qaeda. Similar claims, as I reported here, were made by Abu Zubaydah himself, and by a released Saudi prisoner called Khalid al-Hubayshi, and it will be interesting to see what Muhammed will have to say when he is arraigned — unless, of course, he follows recent trends by boycotting the proceedings completely.

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

As published on CounterPunch, the Huffington Post and Anti-war.com.

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

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