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.

For this alleged crime, she was flown to the United States, put on trial, and found guilty, in a federal court in New York, on February 3, 2010, on “charges related to the attempted murder and assault of US nationals and US officers and employees in Afghanistan.”

Numerous commentators have denounced the trial as a sham, and today, protestors around the world will be calling for justice for Aafia Siddiqui. Further details can be found on the website of the Justice for Aafia Coalition, including a campaign pack (PDF), which contains a detailed report on the background to the story, and contact details for letters/emails to Aafia, the US and Pakistani governments and the UN.

Amongst the many outstanding questions regarding the case of Aafia Siddiqui are the following:

• Was she indeed kidnapped with her three children in Karachi on March 28, 2003, and subsequently rendered to a secret prison, where she was raped and tortured for five years? Binyam Mohamed, the British resident who was released from Guantánamo in February 2009, has stated that he saw Aafia Siddiqui in Bagram, and other former prisoners have spoken about “The Grey Lady of Bagram,” Prisoner 650, who they believed was Aafia.

• Where are her children?

• If Aafia Siddiqui was indeed held in secret US custody for over five years, was the story of the attempted shooting of the US soldiers in July 2008 a cynical set-up, designed to ensure that she could be transferred to the US and tried, convicted and imprisoned without the true story coming to light?

I urge anyone concerned with the stories of “ghost prisoners” detained in secret prisons in the “War on Terror” to study Aafia Siddiqui’s story closely. Yvonne Ridley has focused on her case for many years, and other sources include a detailed report in Harper’s Magazine by Petra Bartosiewicz last November, another in the Guardian by Declan Walsh, and a recent report by Robert Fisk in the Independent, which I reproduce below.

I confess that, although I have been aware of her case for many years, I have never found the time to investigate it fully, as it seemed to me that it was a research project that could take months, if not years. However, it has always troubled me that her case could be the most distressing of all the many disturbing stories of brutality, injustice and false confessions in the “War on Terror,” and the failure of anyone to account for the whereabouts of two of her children has always struck me as particularly despicable.

The mysterious case of the Grey Lady of Bagram
By Robert Fisk, The Independent, March 19, 2010

Dr Shams Hassan Faruqi sits amid his rocks and geological records, shakes his bearded head and stares at me. “I strongly doubt if the children are alive,” he says. “Probably, they have expired.” He says this in a strange way, mournful but resigned, yet somehow he seems oddly unmoved. As a witness, supposedly, to the mysterious 2008 re-appearance of Aafia Siddiqui — the “most wanted woman in the world,” according to former US attorney general John Ashcroft — I guess this 73-year-old Pakistani geologist is used to the limelight. But the children, I ask him again. What happened to the children?

Dr Faruqi is Aafia Siddiqui’s uncle and he produces a photograph of his niece at the age of 13, picnicking in the Margalla hills above Islamabad, a smiling girl in a yellow shalwar khameez, half-leaning against a tree. She does not look like the stuff of which al-Qa’ida operatives are made. Yet she is now a semi-icon in Pakistan, a country which may well have been involved in her original kidnapping and which now oh-so-desperately wants her back from an American prison. Her children, weirdly, disconcertingly, have been forgotten.

Aafia Siddiqui’s story is now as famous in Pakistan as it is notorious in a New York City courtroom where her trial for trying to kill an American soldier in the Afghan city of Ghazni in 2008 — she was convicted this month and faces a minimum of 20 years in prison on just one of the charges against her — is regarded as a symbol of American injustice. “Shame on America,” posters scream in all of Pakistan’s major cities. She is known as the “grey lady of Bagram,” supposedly tortured for five years in America’s cruel Afghan prison. Pakistan’s President Asif Ali Zardari has asked American envoy Richard Holbrooke to repatriate Siddiqui under the Pakistan-US prisoner exchange scheme, while the Prime Minister Yousuf Raza Gilani has dubbed her a “daughter of the nation.” Opposition leader Nawaz Sharif promises to demand her release. But none of them mention the children. Ahmed, Sulieman and Maryam are their names.

Ahmed was returned to Pakistan from Afghanistan in 2008, but Dr Faruqi tells me he doesn’t believe for a moment that it is Aafia Siddiqui’s son. “He came here to stay with me, but he said he didn’t know Aafia until he was taken to Ghazni. He said to me: ‘I was in the big earthquake in Afghanistan and my brothers and sisters were killed in their home while I was out fetching water — that’s what saved my life.’ He told me that after the earthquake, he was put in an orphanage in Kabul. He was shown a photograph of my niece Aafia and said he did not know this lady, that he had never seen her before. Then he was taken to Ghazni and told to sit next to this woman — my niece. The boy is intelligent. He is simple. He is honest.”

All such mysteries require a “story-so-far.” It goes like this. Aafia Siddiqui, a 38-year-old neuroscientist, an MIT alumna and Brandeis university PhD, disappeared after leaving her sister’s home for Karachi airport in 2003, taking Ahmed, Sulieman and Maryam with her. The Americans say she was a leading al-Qa’ida operative. So does her ex-husband. She had re-married Ammar al-Baluchi, currently in Guantánamo Bay, a cousin of Ramzi Yousef who was convicted for the 1993 World Trade Centre bombing. Not, you might, say, a healthy curriculum vitae in the West’s obsessive “war on terror.” In 2004, the UN identified her as an al-Qa’ida operative.

But released inmates from the notorious American prison at Bagram near Kabul — where torture is commonplace and at least three prisoners have been murdered — have stated that there was a woman held there, a woman whose nightly screams prompted them to go on hunger strike. She was dubbed the “grey lady of Bagram.” At her New York trial, Siddiqui demanded that Jewish members of the jury be dismissed, she fired her own defence lawyers who said she had become unbalanced after torture; Siddiqui blurted out that she had been tortured in secret prisons before her arrest. “If you were in a secret prison … where children were murdered…” she said.

And so to the town of Ghazni, south of Kabul. It was here that Afghan police stopped her in 2008, carrying a handbag which supposedly contained details of chemical weapons and radiological agents, notes on mass casualty attacks on US targets and maps of Ghazni. American soldiers and FBI agents were summoned to question her and arrived in Ghazni without realising that Siddiqui was in the same room, sitting behind a curtain.

According to their evidence, she managed to take one of their M-4 assault rifles and opened fire with the words, “Get the fuck of here. May the blood of [unintelligible] be on your [head or hands].” She missed but was cut down by two bullets from a 9mm pistol fired by one of the soldiers. Hence the charges. Hence the conviction.

She wasn’t helped by an alleged statement by Khalid Sheikh Mohammed — the man who supposedly planned 9/11 and who is the uncle of her second husband, Ammar al-Baluchi — who claimed that Aafia Siddiqui was a senior al-Qa’ida agent. But then, he’d just been waterboarded 183 times in a month — which hardly makes his evidence, to use a phrase, water-tight.

The questions are obvious. What on earth was a Pakistani American with a Brandeis degree doing in Ghazni with a handbag containing American targets? And why, if her family was so fearful for her, didn’t they report her missing in 2003, go to the press and tell the story of the children? Ahmed — son of Siddiqui or Afghan orphan, depending on your point of view — is now staying with Siddiqui’s sister, Fauzia, in Karachi; but she refuses to let him talk to journalists. The Americans have shown no interest in him — even less in the other two, younger children. Why not?

It’s odd, to say the least, that Dr Faruqi also maintains that in 2008 — before the Ghazni incident — Aafia Siddiqui turned up at his home in the suburbs of Islamabad. “She was wearing a burqa and got out of the car, just outside here,” he says, pointing to the tree-lined street outside his office window. “I only caught sight of her once, and I said ‘You have changed your nose.’ But it was her. We talked about the past, her memories, it was her voice. She said the ISI (the Pakistani Inter-Services Intelligence) had let her come here. She wanted to get away, to go back to Afghanistan where she said the Taliban would protect her. She said that since her arrest, she knew nothing of her children. Someone told her they had been sent to Australia.”

More questions. If Siddiqui was a “ghost prisoner” in Afghanistan, how come she turned up at Dr Faruqi’s home in Islamabad? Why would she wear an Afghan “burqa” in the cosmopolitan capital of her own country? Why did she not talk more about her children? Why could she not show her face to her own uncle? Did she really come to Islamabad?

Fauzia Siddiqui is now touring Pakistan to publicise her sister’s “unfair” trial, her torture at the hands of Americans. Most of the Pakistan press have taken up her story with little critical attention to the allegations against her. She has become a proto-martyr, a martyr-in-being; if her story is comprehensible, it requires a willing suspension of disbelief. But America’s constant protestations of ignorance about her whereabouts before 2008 have an unhappy ring about them.

And the children? Rarely written about in Pakistan, they, too, in a sense, were “disappeared” from the story — until the Afghan President, Hamid Karzai, paid an uneasy visit to Pakistan this week and, according to Fauzia, told the Interior minister, Rehman Malik, that “the children of Aafia Siddiqui will be sent home soon.” Was Karzai referring to the other two children? Or to all three, including the “real” Ahmed? And if Aafia’s two/three children are in Afghanistan, where have they been kept? In an orphanage? In a prison? And who kept them? The Afghans? The Americans?

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, updated in January 2010, 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.

Despite the fact that the “War on Terror” was launched over eight years ago to pursue those responsible for the 9/11 attacks, and despite the fact that Attorney General Eric Holder noted, in a statement announcing the trial, that the opportunity for the relatives of the 9/11 victims “to see the alleged plotters of those attacks held accountable in court” had been “too long delayed,” Republican critics immediately leapt on the announcement, with Senate minority leader Mitch McConnell describing it as “a step backwards for the security of our country” that “puts Americans unnecessarily at risk.”

McConnell, former Vice President Dick Cheney and others who have spent most of the year shamelessly playing the fear card about bringing Guantánamo prisoners to the US mainland to face trials ought to be ashamed of themselves, as there is no reason to delay justice any longer in the case of these men, and every reason to decry the fact that, instead of being prosecuted shortly after their capture, they were diverted into a lawless program of incommunicado detention and torture that threatened to derail the possibility that they could be brought to justice at all.

In the case of Khalid Sheikh Mohammed, for example, the decision to prosecute him in a federal court comes over six years late. Despite having confessed to his involvement in the 9/11 attacks to an al-Jazeera reporter before his capture by US forces in March 2003, he was held for three and a half years in secret prisons run by the CIA, where he was subjected to torture (including waterboarding, a form of controlled drowning), in a violent and misguided attempt to secure “actionable intelligence.” Instead of achieving its desired result, this vile program appears to have prevented no actual planned terrorist attack, and led only to the generation of countless false leads, which wasted the resources of the intelligence services, and also, of course, led to the creation of a global network of secret prisons in which, distressingly, torture only begat more torture.

Khalid Sheikh Mohammed is the most notorious of the five men, but the others — Ramzi bin al-Shibh, Mustafa al-Hawsawi, Ali Abdul Aziz Ali and Walid bin Attash — were also tortured in secret CIA prisons for up to four years, and, as with KSM, the decision to try them in federal courts is most noteworthy for finally bringing to an end the scandalous flight from justice and the law that led to their secret detention and torture.

The problems with the Military Commissions

However dismal and compromised this story is, it at least has more to recommend it than the simultaneous announcement that five other prisoners will not face federal court trials, but will, instead, face trials by Military Commission. This alternative judicial system — for “terror suspects” only — was set up by former Vice President Dick Cheney in November 2001, and struggled to establish anything resembling legitimacy throughout its seven-year existence, securing only three dubious verdicts, and attracting ferocious opposition from its own government-appointed military defense attorneys, and also from a number of prosecutors who resigned, including Lt. Col. Darrel Vandeveld and the former chief prosecutor, Col. Morris Davis, who all recognized that it was rigged to disguise the use of torture and to secure convictions.

Amended by the Obama administration and by Congress, the Commissions still lack legitimacy, with gray areas involving the admissibility of coerced confessions and hearsay evidence, and a widespread conviction amongst legal experts that federal courts have a proven track record in dealing with terrorism cases that the Commissions can never hope to emulate.

Moreover, although Eric Holder claimed on Friday that the revised Commission process “will be fair and that convictions obtained will be secure,” he neglected to mention that, this summer, senior administration officials conceded that the proposed charge of material support for terrorism — a longtime mainstay of the Commissions from 2006 onwards, when they were revived by Congress after being ruled illegal by the Supreme Court — may well be subject to successful court appeals. What makes the decision to proceed with the Commissions even more ludicrous is that the government also admits that no such problems exist with prosecuting material support for terrorism in federal courts.

In addition, the very existence of a two-tier judicial system should be enough to set alarm bells ringing, as it suggests — quite correctly, I believe — that the government is hedging its bets when it comes to justice, proceeding with federal court trials when it believes that it will secure successful prosecutions, and reserving the Commissions for other cases in which it fears that it may fail, because the evidence is not only contaminated by the use of torture, but is also weak.

In his announcement about the trials, Eric Holder stated that the “decision as to whether to proceed in federal courts or military commissions was based on a protocol that the Departments of Justice and Defense developed and that was announced in July,” adding that the protocol “sets forth a number of factors — including the nature of the offense, the location in which the offense occurred, the identity of the victims, and the manner in which the case was investigated — that must be considered.” The process has therefore been presented as being based on clear-cut decisions — whether the alleged offenses took place on the US mainland (federal court trials) or elsewhere (Military Commissions) — but in reality Holder let slip that the decisions would be based on whether or not the government thinks it will secure victory. The key is that phrase, “the manner in which the case was investigated”; in other words, how the supposed evidence was gathered.

I’ve been railing against the proposed revival of the Commissions since May, when President Obama first announced it in a major speech on national security, and I remain as confused and depressed about the proposals as I did back then. Glenn Greenwald has also been implacably opposed to the proposals, and on Friday he succinctly summed up the significance of the government’s failure to hold only federal court trials as follows: “A system of justice which accords you varying levels of due process based on the certainty that you’ll get just enough to be convicted isn’t a justice system at all. It’s a rigged game of show trials.”

The government has not yet announced how many of the remaining 215 Guantánamo prisoners will be put forward for trials — either in federal court or by Military Commission — but ProPublica reported on Friday that, although “Justice Department officials said the cases of 40 detainees have been referred to government prosecutors for possible prosecution,” another administration official conceded that “it was unlikely that charges would be brought against more than 30.” This figure of a maximum of 40 prisoners is somewhat encouraging, as it corresponds with the numbers quoted in intelligence reports over the years, but the government is not off to an encouraging start, because, beyond the five men put forward for the 9/11 trial, the choice of the five other men put forward for trials by Military Commission — all of whom were previously charged under the Bush administration — is disheartening, to say the least.

The five prisoners put forward for trial by Military Commission

One is Omar Khadr, the Canadian who was just 15 years old when he was seized after a firefight in Afghanistan in July 2002. Khadr should have been treated as a juvenile prisoner, and rehabilitated rather than punished, but he was subjected to appalling brutality, even though, to this day, the evidence suggests that he was not responsible for the crime for which he will be charged — the killing of a US soldier with a grenade — as, at the time, he was face down and unconscious under a pile of rubble. In addition, it remains as doubtful as it always has that there was anything extraordinary about the context of his capture (as part of a group of men engaged in combat in a war zone), and that attempts to imbue it with anything related to terrorism are simply misguided.

Khadr’s case is undoubtedly the most disappointing of the five, but the other four cases are also troubling, firstly because there appears to be no justifiable basis for not pursuing them in federal courts, and, in some cases, because the very basis for prosecution seems to be in doubt.

In the case of Abdul Rahim al-Nashiri, a “high-value detainee” seized in the United Arab Emirates in November 2002, and held in secret CIA prisons for nearly four years, the main problem is that he, along with KSM and Abu Zubaydah, was waterboarded in US custody, and claimed, in his tribunal at Guantánamo in 2007, that he had made false allegations because he was tortured. He said that he made up stories tying him to the bombing of the USS Cole and confessed to involvement in several other plots — the attack on the USS Limburg, other 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.”

Moreover, as his attorney, Nancy Hollander, explained on Friday (as reported on Daily Kos), “his case was first investigated as a criminal case, and the only reason to try him in a military commission is that they do not have the evidence to go to a legitimate court.”

The other three are not even accused of involvement in specific attacks. Ibrahim al-Qosi, a Sudanese prisoner who was charged in the Commissions’ first incarnation in 2004, and again in 2007, was only finally arraigned on November 19, 2008, when the major claim against him — that he was responsible for al-Qaeda’s payroll in Khartoum, before Osama bin Laden and his entourage moved back to Afghanistan in 1996 — was dropped by the government, and all that remained were claims that he worked at an al-Qaeda compound from 1996 to 1998, that he fought “as an al-Qaeda mortar man near Kabul from 1998 to 2001,” and that he sometimes worked as a driver and bodyguard for bin Laden.

At the arraignment, al-Qosi’s civilian lawyer, Lawrence Martin, declared that his client, “far from being a war criminal, was a cook,” adding, “He was not even a cook for bin Laden, but a cook for a compound where bin Laden was sometimes a visitor.” This position is also maintained by his military defense lawyers, including Maj. Todd Pierce, who visited Sudan over the summer to meet al-Qosi’s family, and it seems, therefore, to cast al-Qosi in a similar role to that of Salim Hamdan, a Yemeni who was one of bin Laden’s drivers in Afghanistan. Hamdan received a meager sentence after his trial by Military Commission in August 2008, when the military jury threw out the conspiracy charge against him, accepting that he knew nothing about the workings of al-Qaeda.

Ahmed al-Darbi, a Saudi who was seized on arrival in Azerbaijan in June 2002 and “rendered” to US custody in Afghanistan two months later, is accused of plotting to attack a ship in the Strait Of Hormuz, meeting Osama bin Laden and attending a training camp in Afghanistan, but in September, at one of the last pre-trial Military Commission hearings before Friday’s announcement, his civilian lawyer, Ramzi Kassem, urged that all of the 119 statements that al-Darbi made to interrogators should be ruled out, because they were obtained through the use of torture and abuse, including beatings, threats of rape, sensory deprivation, sleep deprivation and sexual humiliation, both at Bagram, where al-Darbi was held for eight months, and at Guantánamo (a full statement by al-Darbi is available here). At the time, the judge in his case, Army Col. James Pohl, reserved judgement on Kassem’s request, but it is clear that these unresolved issues will surface at al-Darbi’s trial, and it is difficult to see how they can easily be brushed aside.

The last man to be put forward to face a trial by Military Commission is Noor Uthman Muhammed, also from Sudan. On May 23, 2008, Muhammed was charged with conspiracy and providing material support for terrorism, based on allegations that he served as the deputy emir of the Khaldan training camp in Afghanistan from 1996 to 2000, when the camp was closed, that he served as an instructor at the camp, and that he delivered a fax machine to Osama bin Laden at a training camp in 1999.

Noticeably, in his tribunal at Guantánamo in 2004, Muhammed did not deny that he was sometimes involved in the administration of the camp, but he 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.

Behind the façade

This may appear to have been an evasive explanation on Muhammed’s part, but in fact the whole story of Khaldan is dangerously complicated for the government, not merely because these claims have been aired before, and because it appears that the camp was closed in 2000 because its emir, Ibn al-Shaykh al-Libi, refused to cooperate with bin Laden, but also because both al-Libi and Khaldan’s gatekeeper, Abu Zubaydah, are people that the government want to keep quiet about.

Al-Libi, perhaps the CIA’s most notorious “ghost prisoner,” was rendered to Egypt, where, under torture, he produced a false confession about connections between al-Qaeda and Saddam Hussein that was used to justify the invasion of Iraq in March 2003. Returned to Libya in 2006, after spending over four years in a series of proxy prisons or prisons run by the CIA, he died in mysterious circumstances in May this year. Zubaydah, who is still in Guantánamo, but has not been put forward for a trial, was the first prisoner to be subjected to the torture techniques — including waterboarding — that were developed for use on the “high-value detainees,” and the problem for the government is not that officials have to build a case against him while avoiding all mention of the use of torture, but that his role was massively overstated, and he appears to be too psychologically damaged to be put on trial.

It is, therefore, difficult to see how Noor Uthman Muhammed’s trial by Military Commission can proceed without focusing on the stories of Ibn al-Shaykh al-Libi and Abu Zubaydah, but even if it does prove possible, the very mention of these men points to some dark truths that lie behind Friday’s announcement: that other supposedly “high-value detainees,” in addition to Abu Zubaydah, have not been put forward for trial, that the question of what to do with Zubaydah, a Palestinian, appears to present an insoluble problem, and that the murky world of proxy prisons and CIA prisons, and the torture regime that involved at least 150 prisoners (and maybe many more) is barely hidden behind Eric Holder’s decision to announce the trials of the ten men mentioned above. Even on this limited basis, the pursuit of justice is contaminated, and the question of accountability — deliberately ducked by the Obama administration — seems unlikely to go away.

Perhaps, as some commentators have suggested, the Bush administration will be under the spotlight as much as Khalid Sheikh Mohammed in the forthcoming trials, and it seems probable, therefore, that questions about the Bush administration’s responsibility for torture and abuse will also leak out in the trials by Military Commission, and will remain, like a guilty secret waiting to be revealed, in the cases of many of the other men at Guantánamo whose fates have yet to be decided.

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).

In the end, the whole event was a disappointment, as Col. Henley agreed to a request from the government to freeze the trial proceedings for another 60 days (on top of the two 120-day freezes to date), to allow time for the administration to work out whether it can persuade the House of Representatives to approve proposed changes to the much-criticized trial system, or whether to proceed with federal court trials instead (and I explained why the latter is the only viable option in an article entitled, “9/11 Trial At Guantánamo Delayed Again: Can We Have Federal Court Trials Now, Please?”).

As a result, none of the defendants showed up in court on Monday, and the authorities were obliged to temper their disappointment by releasing a statement from the men the following day, which was clearly intended to provide another piece of evidence for the prosecution in the absence of any actual proceedings.

A statement by Khalid Sheikh Mohammed and his co-defendants

In a letter submitted to the judge acknowledging that they had no objections to the government’s proposed 60-day delay, Mohammed and two of his co-defendants, Walid Bin Attash, and Ali Abdul Aziz Ali, sent greetings to Osama bin Laden, Ayman al-Zawahiri and Mullah Omar, and took the opportunity to refer triumphantly to the 9/11 attacks. “We send our greeting to them on the occasion of the anniversary of eight years past on the most noble victory known to history over the forces of oppression and tyranny in the Washington and Manhattan attack,” they wrote.

As the Associated Press described it, they also quoted from the Koran to explain their continuing desire to represent themselves, but to offer no defense to the charges against them. ”I put my trust in Allah,” they wrote, “So devise your plot … Then pass your sentence on me and give me no respite.” The men also — as is Mohammed’s habit — took the opportunity to refer to the torture to which they were subjected in secret CIA custody, before their transfer to Guantánamo in September 2006, and also criticized President Obama. “We spent three years moving around the black sites in the ‘dark ages’ of Bush, then we were transferred to the island of oppression, torture and terror, Guantánamo,” they wrote, adding, “Then, the lying Barack, the new American president was elected, and we entered the black ages of Barack.”

Afterwards, few reporters and observers stuck around for the rest of the week’s events, even though pre-trial hearings were also scheduled for two other Military Commission cases: of Ahmed al-Darbi, a Saudi, seized on arrival in Azerbaijan in June 2002 and “rendered” to US custody in Afghanistan two months later, who is accused of plotting to attack a ship in the Strait Of Hormuz, meeting Osama bin Laden and attending a training camp in Afghanistan, and Mohammed Kamin, an Afghan accused of training at “an al-Qaeda camp” and taking part in the insurgency against US forces. Two who did were Carol Rosenberg of the Miami Herald and Jane Sutton of Reuters, and I’m grateful to them for staying and capturing some disturbing allegations about the Commissions that might otherwise have gone unnoticed.

Ahmed al-Darbi’s torture allegations

In al-Darbi’s pre-trial hearing last Wednesday, the judge, Army Col. James Pohl, also decided to abide by the President’s request for another stay in the Commission proceedings, but not until al-Darbi’s lawyer, Ramzi Kassem, had raised some uncomfortable questions about his client’s treatment in US custody. According to the Commissions’ rules, evidence derived through the use of torture is banned, but individual judges may use their discretion to accept evidence obtained through coercion. The demarcation line is clearly a gray area, as was demonstrated on Wednesday, when Col. Pohl refused to abandon al-Darbi’s proposed trial, setting a date of January 11, 2010 (the eighth anniversary of the opening of Guantánamo) for a further hearing to decide which of the 119 statements made by al-Darbi to interrogators would be accepted as evidence.

This was in spite of protestations by Kassim that all the statements were tainted by the use of torture, because, as Carol Rosenberg described it, they were obtained “through beatings, threats of rape, sleep and sensory deprivation, and sexual humiliation,” at the US prison at Bagram airbase in Afghanistan (where al-Darbi was held for eight months) and also at Guantánamo.

Given the gravity of these allegations (explained in greater detail in a statement by al-Darbi that I’ve reproduced here, and which is well worth reading in its entirety), it was unsurprising that, following Col. Pohl’s ruling, Ramzi Kassem explained to reporters, “Either the Obama administration is duplicitously saying one thing to the public and the media and doing another here or, you know, Guantánamo and the military commissions are like a headless chicken that just keeps on moving after it’s been decapitated.”

Kassem also read out a statement prepared by al-Darbi, explaining that his client had “planned to read his statement in court but felt there wasn’t an opportunity during the brief hearing.” In the statement, al-Darbi, who, as the Associated Press described it, had held up a photo of Barack Obama “as a sign of hope” at a pre-trial hearing last December, and had stated that he hoped Obama would “earn back the legitimacy the United States has lost in the eyes of the world,” revised his opinion.

Although the statement was addressed to “his excellency, the American President Barack Obama, whose photo I held up in this place as though I had voted for him,” al-Darbi criticized Obama for “issuing certain orders and decisions” regarding the Military Commissions, telling the President that “he has gone astray.” He also criticized the government for holding a hearing during the post-Ramadan holiday of Eid, and also referred to Obama’s speech in Cairo in June, which was intended to build bridges with the countries of the Middle East. “I can tell you that the ugliness of this place and its continuing existence … have all covered up the beautiful smile that the American president directed at you,” al-Darbi wrote, directing his comments at Muslims who had watched the President’s speech in Egypt.

The futility of prosecuting Mohammed Kamin

If the case of Ahmed al-Darbi raises uncomfortable questions about the distinctions between coercion and torture, the case of Mohammed Kamin is simply inexplicable. As I explained in an article last March, when he was first charged, Kamin seems to be “an unworthy candidate for any kind of war crimes trial at all.” I continued:

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

At the time, the Bush administration was unconcerned that providing material support for terrorism was not a recognized war crime, but whereas Ahmed al-Darbi is charged with both conspiracy and material support for terrorism, Mohammed Kamin faces nothing but a material support charge, and the Obama administration, to its credit, has already accepted, in its plans to review the Military Commissions Act in Congress, that the charge of material support for terrorism should be dropped. Assistant Attorney General David Kris conceded, in Congressional testimony in July, that there is a “significant risk” that, on appeal, judges would not regard it as a legitimate war crime, and the Justice Department’s position is also held by the Pentagon, where General Counsel Jeh Johnson also accepted in July that “material support is not a viable offense to be charged before a military commission because it is not a law of war offense.”

As a result, although the Commissions definitely seem to be proceeding like a “headless chicken” in Kamin’s case, his lawyers asked the judge to schedule a meeting with Jeh Johnson, and are hopeful that they will be able to persuade him to accept that it would be absurd to proceed with his proposed trial. In a detailed submission (PDF), they noted that, as recently as September 10, Johnson told a national security panel of American Bar Association lawyers that, although material support for terrorism was included in the Senate’s bill for amending the Commission, “We don’t believe that material support is a law of war offense. That’s still our position.”

The situation is further complicated because Susan Crawford, the Commissions’ Convening Authority (and a close friend of both Dick Cheney and David Addington), whose conflicted role overseeing the Commissions I have written about at length (here, here and most recently here), responded in July to a request from Kamin’s lawyers to withdraw or dismiss the charges by noting that Johnson had only stated that “appellate courts may find that material support for terrorism is not a traditional violation of the law of war” (emphasis added), and that, at present, it remained a viable charge under the MCA.

Despite Crawford’s insistence that, in the trial of Salim Hamdan, the judge ruled that “the conduct embraced within the specification [of material support] included conduct which the United States has considered a violation of the law of war since at least the Civil War,” I’m reasonably optimistic that neither Crawford nor the Congress will prevail in their arguments. Even so, it remains disgraceful that Mohammed Kamin is still waiting for justice, nearly six and a half years since his capture, and, more worryingly, that Ahmed al-Darbi, who, unlike Kamin, is clearly regarded as a significant prisoner, is still no closer than he was six and a half years ago to establishing whether he will ever be allowed to address, in a fair and open hearing, his claims that he was tortured in Bagram and Guantánamo.

Andy Worthington is the author of The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison (published by Pluto Press, distributed by Macmillan in the US, and available from Amazon — click on the following for the US and the UK). 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, and if you appreciate my work, feel free to make a donation.

Cross-posted on The Public Record.

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).

The Military Commissions, established by former Vice President Dick Cheney in November 2001 and revived by Congress in 2006, after the Supreme Court ruled them illegal, were frozen for four months by President Obama on his first day in office, and then frozen again four months later, and the request for this third delay — apparently just for two months this time, until November 16 — cannot disguise the fact that Congress is struggling to establish new rules for the Commissions in an attempt to iron out problems with the much-criticized trial system, and that the administration is struggling with a decision about whether to proceed with the Commissions, or to put prisoners forward for trials in federal courts instead (as happened in June with a solitary “high-value detainee,” Ahmed Khalfan Ghailani, whose trial in New York is scheduled to begin in September 2010).

Last week, the government was spurred to action by lawyers for Ramzi bin al-Shibh, whose mental competence to stand trial has been disputed by his lawyers since pre-trial hearings began last year. In what Carol Rosenberg of the Miami Herald described as “a 71-page broadside against the war court created by the Bush administration,” bin al-Shibh’s lawyers described the court as “not a legitimate judicial proceeding but a political show trial” (PDF), prompting a 30-page response from the Justice Department, in which Assistant Attorney General David Kris argued that the lawyers’ claim of “constitutional defects in the Military Commissions Act are without merit” (PDF).

Despite the fact that Kris had been put forward to prevent the planned resumption of pre-trial hearings at Guantánamo this week, while government lawyers continue their deliberations regarding the Commissions’ future (and partly, I suspect, because the last two outings were so disastrous), he appeared, in summer, to deal a major blow to the continuing rationale for the Commissions. In Congressional testimony (PDF), he conceded that one of the mainstays of the charges in the Commissions — providing material support for terrorism — should be dropped because there was a “significant risk” that, on appeal, judges would not regard it as a legitimate war crime.

Critics were quick to remark that this appeared to rule out two of the Commissions’ only three verdicts — in the cases of David Hicks and Salim Hamdan, who were both convicted solely on the basis that they provided material support for terrorism — but while these arguments continue behind the scenes (and lawyers for the third man, Ali Hamzi al-Bahlul, appeal his conviction and life sentence last November, in a trial in which he refused to mount a defense), Kris told the court only that the government was seeking a 60-day delay in the 9/11 cases because “a decision might be made to prosecute [bin al-Shibh] in federal court.”

For the purposes of justice, it must be said, these developments are good news. Scarcely in its history has the United States entertained such a shabby and shamelessly politicized travesty of justice as the Military Commissions, which stumbled from one embarrassment to another in their long and almost entirely unproductive history during the Bush years.

Moreover, although President Obama has managed to secure some support from within his administration — and within the Senate — for his ghoulish proposal to bring the Commissions back from the dead for a second time, the House of Representatives has, to date, refused to endorse the changes to the Military Commissions Act that have already been approved by the Senate, and, as Carol Rosenberg explained, “has given no indication when or if it will take up the matter.”

This is another good sign, because, although the proposed changes, which include a ban on the use of evidence obtained through coercion and restrictions on the use of hearsay as evidence, convinced the politicians in Congress (largely the same people who passed the hideously flawed Military Commissions Act back in 2006, which introduced “material support for terrorism” as a war crime in the first place), experts with a far greater understanding of the inherent problems of the system queued up over the summer to tell various Senate and House Committees why the proposals were a bad idea, and also why they were doomed to fail.

I wrote at the time about the testimony of Adm. John Hutson, about the testimony of Lt. Col. Darrel Vandeveld (the prosecutor who resigned after seeing first-hand how the Commissions were incapable of delivering justice), and about the testimony of Maj. David Frakt, a military defense attorney in the Commissions, who reminded a House Committee of the trial system’s fatally flawed origins, and who spelled out, with unassailable clarity, why federal courts are more adequately equipped than the military to handle the limited number of genuine terrorism cases at Guantánamo.

These were not the only critics. Others included Denny LeBoeuf, Director of the ACLU’s John Adams Project, who provided a detailed analysis of the Commissions’ failings based on her observations of the pre-trial hearings in the 9/11 trial, and on a forensic dissection of the weaknesses in the Senate Committee’s legislation (PDF), and in a recent article on the release from Guantánamo of Mohammed Jawad, I included excerpts from the testimony of Col. Peter Masciola, the Commissions’ Chief Defense Counsel. Col. Masciola explained how the Commissions’ Convening Authority — a post still held by Susan Crawford, a close friend of both Dick Cheney and his right-hand man, David Addington — is an “untenable and inherently conflicted role.” As he described it, drawing from bitter experience, without a radical review of the Convening Authority’s role, which is not addressed in the Senate bill aimed at reviving the Commissions, it will remain a job for a political appointee with prosecutorial functions, who is also responsible for providing — or, as Col. Masciola demonstrated, mostly refusing to provide — the defense teams with any of the resources needed to do their job.

Recently, I also came across another damning document confirming the unsuitability of Military Commissions for cases related to terrorism. Just three weeks ago, the National Institute of Military Justice (a non-profit organization established in 1991 to advance the fair administration of military justice and foster improved public understanding of the military justice system) produced a report, “NIMJ Reports From Guantánamo” (PDF), in which a number of observers reported on their visits to Commission hearings between October 2008 and January 2009.

Two accounts were particularly noteworthy. In the first, Jonathan E. Tracy, NIMJ’s Assistant Director (and a former member of the Army Judge Advocate General’s Corps) noted that, “while the lawyers and judges all operated professionally and seemed eminently qualified, there is no escaping the fact that the commissions are ad hoc proceedings with little or no legal precedent on either substantive or procedural issues,” and that “the system contains several inherent flaws that make for lopsided justice, no matter how qualified the defense counsel.”

Tracy observed proceedings in the cases of Omar Khadr (the Canadian who was just 15 years old when he was seized) and Mohammed Kamin (at best, a minor Afghan insurgent) and he was appalled, in particular, by what he perceived as the persistent refusal of prosecutors to provide discovery to the defense “in a timely manner “ — if at all. After also revealing his dismay that questions about Kamin’s mental competency were subjected to an “inadequate investigation,” he concluded, “It was very apparent that the defense counsel in both cases face a daunting challenge getting access to evidence to which they are entitled. The tactics used by the government and their cavalier dismissal of charges of unfairness damage the credibility of the commissions.”

In the second account, Diane Marie Amann, a law professor and former Assistant Federal Public Defender, reported on her observation of pre-trial hearings in the cases of the 9/11 co-defendants in December 2008, and was shocked to note that, when it came to questions of self-representation, “not even the participants who are members of the bar were fully cognizant of the rules that governed the proceedings.” She also noted that, because the case involved difficulties raised by the use of “waterboarding or other harsh methods of interrogation,” the trial would “benefit from the certainty of precedent. Yet precedent is something utterly lacking in the military commissions.”

After also noting complaints from the prisoners regarding the poor quality of the interpreters (which she compared unfavorably to her recollections of interpreters in federal court), Amann concluded that nothing she had seen eased “the core concern” that had troubled her for several years: “specifically, that the post-9/11 military commissions are unlikely to afford fair trials to the defendants who appear before them.”

So bring on federal court trials, please — in which “material support for terrorism” is a genuine crime, as opposed to an invented war crime — and let’s give the Commissions the burial they deserve, in a grave marked, “Cheney’s Wretched Dreams.” As Reuters explained on Monday, Navy Capt. John Murphy, the Commissions’ chief prosecutor, told journalists at Guantánamo on Sunday that “Federal prosecutors in New York, Washington and Virginia are vying to try the accused plotters of the September 11 attacks if their cases are moved into US civilian courts.”

Adding that the courts in question are Washington, the Southern and Eastern Districts of New York, and the Eastern District of Virginia, Capt. Murphy also explained, “They are working with us in a joint review of these cases and it is our collaboration that will ultimately make its way in written reports that go up to the Attorney General and the Secretary of Defense to make a decision.” He also said that he “still hopes” to try 65 of the remaining prisoners in trials by Military Commission, but conceded that some of the 65 had “already been indicted in US federal courts,” although he “would not say how many.”

After four years of research into the stories of the Guantánamo prisoners, I have profound doubts that viable cases can be established against as many as 65 prisoners — unless the administration is really determined to pursue Taliban foot soldiers in the courts, rather than al-Qaeda terrorists — but it was refreshing to hear that Capt. Murphy was talking so openly about the possibility of federal court trials.

As Maj. David Frakt explained in the one-man demolition job that he conducted on the Commissions during his testimony to a House Committee in July, “Among the over two hundred detainees still at Guantánamo, there are perhaps a few dozen who have committed serious offenses. I have yet to hear any compelling reason why any of these men could not be prosecuted under existing law in Federal Court. As the recent report by Human Rights First conclusively demonstrates [PDF], the federal courts are open, and have a long track record of successful prosecutions of terrorism cases.”

More crucially, as Maj. Frakt also explained:

The reason that the military commissions failed — indeed, the primary mistake of the entire “War on Terror” — was the pervasive abandonment of the law by the prior administration. We must not repeat the mistakes of the past and continue to cut corners. We must remember that this war is ultimately a war about ideas and values. True American values guarantee justice and fairness for all, even for the vilified and unpopular. If there are terrorists and war criminals to be tried, let’s do it the old-fashioned way, in a fair fight in a real court with untainted evidence. America is better than the last eight years. It is time to prove it to the world, and to ourselves.

Note: For more NIMJ documents relating to the Commissions, visit the website here.

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. Also see my definitive Guantánamo prisoner list, published in March 2009, and if you appreciate my work, feel free to make a donation.

As published on the Huffington Post and Antiwar.com. Cross-posted on The Public Record.

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).

Reviving the Commissions, ill-advisedly

In May, in a major speech on national security, Barack Obama signaled that he was planning to revive the Commissions, arguing that, with some amendments, they would be “fair, legitimate, and effective,” and promising to “work with Congress and legal authorities across the political spectrum on legislation” that would fulfill these aims.

Pleasant though it was to hear a President talk of involving Congress, without having to have his arm twisted to do so, Obama’s willingness to revive the Commissions flew in the face of widespread opposition from civilian lawyers and a wide range of legal experts, and, most significantly, from seven former prosecutors who resigned in disgust at what they saw as the politicization of the system or its irremediable faults (including Col. Morris Davis, the former chief prosecutor, and Lt. Col. Darrel Vandeveld, who resigned last September), and all of the government-appointed defense attorneys, who have been prepared to risk their careers to oppose what they all realized was an unjust system.

Critics — myself included — were not placated by Obama’s proposed tweaking of the Commissions’ rules, and insisted that the only way forward was to drop the Commissions and proceed with federal court trials. Bizarrely, on the same day as Obama’s speech, the administration announced that Ahmed Khalfan Ghailani, a suspect in the 1998 African embassy bombings, would face a trial in New York, and, moreover, in an accompanying press release, the Justice Department trumpeted its “long history of … successfully prosecuting terror suspects through the criminal justice system” (and attached a list of successful prosecutions over the last 16 years), which rather seemed to prove the point that the Commissions — which have achieved only three dubious results (David Hicks, Salim Hamdan and Ali Hamza al-Bahlul) — should not be revived.

Nevertheless, in the last few weeks the Senate Armed Services Committee — and its chairman, Sen. Carl Levin, who really should know better — bowed to the President’s wishes and tweaked the wording of the Military Commissions Act of 2006 (which revived the Commissions after the Supreme Court ruled that their first incarnation was illegal), even though, as I reported last week when Lt. Col. Vandeveld delivered testimony to the Committee which should have halted the politicians in their tracks, it still allows the use of information masquerading as evidence that was obtained through coercion, and still allows for hearsay information to be appraised as evidence by judges who are not qualified to make such decisions.

The legislation has yet to be approved by the Senate, but last week the Commissions reconvened anyway, even though the as-yet-undecided debate about their future added another layer of confusion to events that, as has been typical throughout the long and ignominious history of the Commissions, involved technical difficulties, uncooperative prisoners, and bouts of wrangling over the rules.

An outlandish claim kicks off the proceedings

One of the week’s few dramatic highlights came at the very beginning. Speaking to reporters on Tuesday, before the pre-trial hearings began, Navy Capt. John Murphy, the Commissions’ new chief prosecutor, announced that prosecutors were ready to proceed with cases against 66 of the remaining 228 prisoners (the 229th, Ali Hamza al-Bahlul, is already locked up for life — in a cell on his own somewhere in Guantánamo — after his disturbingly one-sided trial in November).

As David Danzig, Deputy Program Director at Human Rights First, explained, Murphy said, “We have 66 viable cases,” and added that he was “personally comfortable” that “the government could mount a case that would not depend on evidence gathered through the use of coercion.” Danzig also noted that Murphy “refrained from commenting on whether the government might seek to bring some of those cases to trial in federal civilian courts.”

Personally, I’m amazed that Murphy could claim that there are as many as “66 viable cases,” given that intelligence reports over the years have put the number of prisoners with any meaningful connection to terrorism as somewhere between two dozen and 40 of the prisoners (and also given that, of the 23 cases that were still active when Bush left office, two involved juveniles, and at least eight of the cases had nothing to do with “war crimes”), but what particularly exercised some of the reporters was that the prosecutor’s office seemed to be “making decisions about what evidence was appropriate and what evidence was not appropriate to use without any independent review.”

Vic Hansen, a former Army Judge Advocate General officer who was observing the proceedings for the National Institute of Military Justice, said, “They say repeatedly that they are not going to rely on evidence that was obtained using coercion. Well, it’s the prosecution who is making that call alone without any transparency.”

This was a very valid point, and as Danzig noted, although Murphy “said that the prosecution had developed ‘a standard’ to ensure that no evidence obtained improperly would be used in the trials … he declined to elaborate on that standard,” and did not refer to the fact that the Senate is still discussing whether to impose a voluntariness standard (at the instigation of the Obama administration), which, as Danzig stated, “would presumably exclude coerced evidence.” As Hansen added, “What it comes down to is more or less the government saying, ‘just trust us.’”

Challenges and calls for delay in the case of Ibrahim al-Qosi

On Wednesday, when the pre-trial hearings were supposed to begin, court staff complained they couldn’t hear Navy Cmdr. Dirk Padgett introduce himself as a prosecutor in the case of Ibrahim al-Qosi, one of three prisoners whose cases were being discussed that day, prompting a reply from Padgett that, to some, could serve as a motto for the whole of the Commissions. “Hopefully, this is going to get better,” he said.

In the event, things didn’t get better at all. In the case of al-Qosi, a 49-year old Sudanese prisoner who is accused of being a bodyguard and sometime driver for Osama bin Laden, prosecutors called for a delay “in the interests of justice” until September, which would, apparently, give the Obama administration time to complete its review of the cases. Marine Corps Capt. Seamus Quinn, one of al-Qosi’s prosecutors, stated, “The continuance is needed … to address and eliminate all possible challenges to this process,” according to Reuters.

The call for a delay infuriated al-Qosi’s defense lawyers, who have long maintained that their client was nothing more than a cook for bin Laden, and of no more significance than Salim Hamdan, one of bin Laden’s drivers, who is now a free man in Yemen, having served a five-month sentence that he was given after his trial last August. As Reuters described it, al-Qosi’s lawyers asked the military judge “to either dismiss the charges or move forward.”

“You cannot sit somebody in indefinite detention,” Navy Lt. Cmdr. Travis Owens said. “It violates every principle we have as Americans.” Invoking what Carol Rosenberg of the Miami Herald described as a “justice-delayed, justice-denied” argument, on the grounds that al-Qosi “was among the first men taken to the prison camps when they opened in January 2002,” Owens added, “He was one of the guys who was kept in the dog cages. Talk about oppressive confinement.”

Challenges and calls for delay in the case of Mohammed Kamin

While the judge, Air Force Lt. Col. Nancy Paul, refused to make an immediate ruling on the prosecutors’ request, even more chaotic scenes took place in an adjacent courtroom, where a second pre-trial hearing was taking place in the case of Mohammed Kamin, an Afghan seized in 2003.

Kamin’s is one of the more ludicrous cases put forward for a trial by Military Commission — or, for that matter, any kind of trial — as I explained last March, when he was arraigned:

[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 along killing US forces, and were it not for his supposed al-Qaeda connection — he apparently stated in interrogation that he was “recruited by an al-Qaeda cell leader” — it would, I think, be impossible to make the case that he was involved in “terrorism” at all.

On Wednesday, Kamin boycotted the proceedings, telling a military official who offered him the opportunity to take a shower before the hearing, “I’ll take a shower when you guys are ready to send me home.” In his absence, prosecutors also called for a delay, although no one actually turned up to make the request. Instead, a heavily pregnant prosecutor, Navy Lt. Rachel Trest, called in by closed-circuit feed from Washington, although, as Carol Rosenberg noted, “her argument was inaudible at the media center designed years ago to simultaneously broadcast both trials to journalists.”

There was, however, an outburst of drama when, in spite of a court tip sheet predicting that Navy Lt. Rich Federico, one of Kamin’s defense lawyers, would “ask for guidance on how much trial preparation could take place during the White House-mandated interregnum,” Federico instead urged dismissal of the entire case, referring to comments made last week by Justice Department national security lawyer David Kris, who told the Senate Armed Services Committee (PDF), “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 offence, thereby reversing hard-won convictions and leading to questions about the system’s legitimacy.”

As this is the only charge Kamin faces, Federico told the judge, “They cannot ethically proceed on this charge in this forum. It’s appalling. It’s just a waste of everyone’s time.” The Wall Street Journal added that he also said that the government’s continued pursuit of the case was “unethical, immoral and unjust,” called the proceedings “a charade, a complete fraud,” and stated that the Commissions remained “a broken system.”

As with al-Qosi’s case, Kamin’s judge, Air Force Col. Thomas Cumbie, refused to make an immediate ruling on the prosecution’s call for a delay — or Federico’s unexpected intervention — although, in response to a challenge from Federico he conceded that “the rules of the court were still evolving,” as Carol Rosenberg put it, and stated, “I’m not saying in any way you ambushed me. Things change.”

Nevertheless, the questions regarding the validity of the “material support” charge are unlikely to go away, and will need resolving before any further hearings take place, Ironically, the charge is a valid crime in a federal court, but has been contested in the Commissions since it was first grafted onto the legislation in 2006. As Salim Hamdan’s civilian lawyer, Harry Schneider, explained on Wednesday, “We’ve always been of the view that [material support] was not a war crime and the conviction should not stand.” He added, as Carol Rosenberg put it, that the debate in the Commissions “appeared to enhance a Hamdan clemency bid already on file with the Pentagon,” and stated that, if the administration does drop material support as a crime in the Commissions, “Salim would be exonerated in the sense that he would never have been convicted of anything.”

No lawyers for Omar Khadr

On Wednesday afternoon, Omar Khadr, the Canadian who was just 15 when he was seized in 2002, returned to the court to resume the discussions about his lawyers that he was having on June 1, when the Commissions first reconvened. On that occasion, as Michelle Shephard explained in the Toronto Star, Army Col. Patrick Parrish “repeatedly lambasted Khadr’s legal team” for their in-fighting, which had led Khadr to conclude that he couldn’t trust any of them, but commended Khadr himself for being “well-spoken” and “professional.”

Six weeks ago, Parrish refused to allow Khadr to be unrepresented, and the Canadian reluctantly decided to stick with Lt. Cmdr. William Kuebler, who, it must be noted, has campaigned assiduously on Khadr’s behalf, but on Wednesday, Khadr’s suspicions were back to the fore. “I don’t trust the office of military defense,” he said, prompting Parrish to make the unprecedented decision to appoint two civilian lawyers instead.

Mostly a no-show for the 9/11 pre-trial hearing

The big news of the week was supposed to be the pre-trial hearing of the five men accused of involvement in the 9/11 attacks, but in the end this too was a damp squib. No one turned up at all in the morning, after the men refused to leave their cells, and in the afternoon, Khalid Sheikh Mohammed, the unarguable showman of the group, refused to attend, as did Ramzi bin al-Shibh, even though the hearing was convened to deal with ongoing issues regarding his mental competency, and that of another of the five, Mustafa al-Hawsawi. Al-Hawsawi, Ali Abdul Aziz Ali and Walid bin Attash eventually turned up in the courtroom, but there was little activity.

According to Reuters, “al-Hawsawi soon demanded to leave after complaining he would not be allowed to speak,” and “bin Attash, given five minutes to address the court, complained that the presiding judge, Army Colonel Steven Henley, had not responded to letters the five men had written to him ‘a long time ago.’” In the only flicker of the dissent normally associated with KSM’s presence, he explained, “If you don’t have enough patience to take this case, just give it to a different judge. We view the judge and prosecution as one person. There’s no difference.” Later, bin Attash showed his disdain for the proceedings by throwing a paper plane — fashioned, presumably, from his court papers — at one of his co-accused.

The rest of the session focused on attempts by bin al-Shibh’s lawyers to “allow a defense consultant to examine CT scans of her client’s brain and perform further tests, including possibly an MRI, to ‘determine whether any lesions in his brain affect his cognitive functioning.’” Navy Cmdr. Suzanne Lachelier explained that bin al-Shibh has been diagnosed with “delusional disorder,” but when she tried to explain that he had been subjected to sleep deprivation, a court censor cut off the feed to the media center.

In an attempt to rebuff these complaints, one of the prosecutors, Navy Lt. Clayton Trivett, said that bin al-Shibh’s complaints about sleep deprivation may have been produced by his pre-existing condition. Trivett explained that bin al-Shibh “has accused guards of pumping foul smells and loud noises into his cell and ‘vibrating his bed’ to keep him awake,” even though “The government’s position is that it’s not happening and it’s never been happening,” although another interpretation could be that the initial collapse of bin al-Shibh’s mental health was caused by whatever happened to him during the four years that he was held in a secret CIA prison before his arrival at Guantánamo in September 2006.

With no visible progress — and with the little that did take place overshadowed by the dispute over the charge of material support for terrorism, which would have a knock-on effect on several other cases — this was another dismal outing for the Commissions, and, surely, another warning for the Obama administration that any kind of revival of the wretched trial system will remain fraught with insoluble problems.

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 on the Huffington Post, Antiwar.com, CounterPunch and ZNet.

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).

From the top: Khalid Sheikh Mohammed (KSM), Ramzi bin al-Shibh, Mustafa al-Hawsawi, Ali Abdul Aziz Ali and Walid bin Attash.

The hearings, which are supposed to last all week, have already attracted significant media attention, partly because relatives of some of the victims of the 9/11 attacks are in attendance, and partly because they were seen as the Bush administration’s last attempt to justify its much-criticized “War on Terror” detention policies. In the run-up to the Presidential election, the Military Commissions had dropped off the media’s radar, and almost no one turned up at Guantánamo in the last week of October when Ali Hamza al-Bahlul, an alleged al-Qaeda propagandist, received a life sentence after a disturbing one-sided show trial in which he refused to mount a defense.

This week’s hearings were widely expected to involve further attempts to resolve some long-standing complaints regarding bin al-Shibh, whose lawyers maintain that he is mentally unfit to stand trial, and al-Hawsawi, whose lawyers contend that he has been bullied by his co-accused. It was also expected that, as in the arraignment in June, and a previous round of pre-trial hearings in September, Mohammed would take the opportunity to dominate the proceedings and to make sly references to his torture at the hands of US forces.

What no one foresaw, however, was that Mohammed would use the global media spotlight to return to another theme that he mentioned during the arraignment six months ago: his desire to be martyred.  And yet this, it seems, is exactly what has happened. The trial’s new judge, Col. Stephen Henley, read from a document that was filed by all five defendants on November 4, the day of the Presidential election, following a number of previously undisclosed meetings between the men.

“We all five have reached an agreement to request from the commission an immediate hearing session in order to announce our confessions … with our earnest desire in this regard without being under any kind of pressure, threat, intimidations or promise from any party,” their statement said.

As Mohammed lived up to expectations, slipping in a reference to torture when, after telling Henley, “I do not trust you,” he added that he didn’t trust an “agreement between Bush and the CIA who tortured me,” Ali Abdul Aziz Ali also spoke out, assuring Henley that all five had reached their decisions willingly. “All of these decisions were undertaken by us without any pressure or influence by Khalid Sheikh,” he said. “What was said or will be said by Khalid Sheikh will be repeated by us, also.”

Quite what this means is not yet clear. As the Guardian explained, “The letter implies they want to plead guilty but does not make clear whether they will admit to any specific charges,” although it does establish that they “wish to drop all previous defense motions.” Bloomberg added that “Henley asked military prosecutors to submit legal briefs on whether the commission can ‘accept a plea of guilty to a capital offense,’” and doubts also remain about the status of bin al-Shibh and al-Hawsawi, who are still represented by military attorneys.

As we await further clarification, I can only wonder if Mohammed and his co-defendants have indeed chosen to focus unerringly on their pursuit of martyrdom, and have decided that their best hope for advancing al-Qaeda’s cause lies in trying to secure a conviction in the tainted Military Commissions of President Bush and Vice President Dick Cheney before Barack Obama can dismantle them.

This interpretation would seem to be borne out by an additional comment attributed to Mohammed by AFP: “We don’t want to waste time.” And as with every previous occasion when Khalid Sheikh Mohammed has had the eyes of the world’s media upon him, I can only wonder who’s really running the show.

UPDATE 11 pm GMT: As suggested above, Col. Henley delayed a verdict on the request by Mohammed and his co-accused, giving lawyers time to investigate whether he is allowed to accept guilty pleas in capital cases, and also whether this would prevent the imposition of the death penalty. He set a deadline of January 5, when the next pre-trial hearings are scheduled to take place, for the lawyers to submit briefs.

In addition, although he accepted the request from Mohammed, Ali Abdul Aziz Ali and Walid bin Attash, he ruled that competency hearings were required for Mustafa al-Hawsawi and Ramzi bin al-Shibh, because of doubts about their ability to stand trial. As a result, the defendants stated that they would wait until the results of these investigations were known before entering pleas. As Ali Abdul Aziz Ali explained, “Our plea request was based on joint strategy and I would rather wait.”

Andy Worthington is the author of The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison (published by Pluto Press, 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 on the Huffington Post and AlterNet.

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), 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).

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).

From the top: Khalid Sheikh Mohammed (KSM), Ramzi bin al-Shibh, Mustafa al-Hawsawi, Ali Abdul Aziz Ali and Walid bin Attash.

These experts would, no doubt, have spent years building up cases against Mohammed and his alleged accomplices and encouraging them to talk through tried and tested methods. After 9/11, however, the White House and the Pentagon decided that skilled interrogation was somehow soft, and that al-Qaeda operatives were so tough that they had been trained to resist all types of traditional interrogation. But as the New Yorker’s Jane Mayer explained in an article last summer, a former CIA officer with knowledge of the techniques used on the al-Qaeda suspects explained, “A lot of them want to talk. Their egos are unimaginable.”

If the same techniques used before 9/11 had been applied after the attacks, it’s probable that by now Mohammed and his co-defendants would have been tried in a US federal court, and the reputation of the United States — as a country that does not torture, rather than one with a lying administration that claims it does not torture because it has cynically redefined what torture means — would still be intact. A case in point, completely overlooked in the administration’s defense of its “robust” new approach, is Ramzi Yousef — Khalid Sheikh Mohammed’s nephew, and the terrorist behind the first attempt to blow up the World Trade Center in 1993 — who, as Mayer has explained, “gave a voluminous confession after being read his Miranda rights,” following his capture and rendition to the US court system in 1995.

Instead of being condemned as a mass-murdering criminal, however, Khalid Sheikh Mohammed — a man with an “unimaginable” ego, and one, moreover, at the apex of a system of mass imprisonment in which thousands of innocent men and insignificant Taliban foot soldiers have been brutalized, held without charge or trial and deprived of the protections of the Geneva Conventions — has been allowed to portray himself as a “warrior” in an epic “Clash of Civilizations.”

In his tribunal at Guantánamo last year, Mohammed compared himself to George Washington fighting the British, and last week he spent several days in a courtroom at Guantánamo, unrelated to the US courts or the US military’s own judicial processes, in which he was free to bait the judge, Marine Col. Ralph Kohlmann, to play to the world’s media, and to make strategic use of his torture at US hands to score points against the system set up to try him.

Day One

The action unfolded slowly. At 9 am on Monday, four of the co-defendants gathered in the courtroom for hearings on a series of pre-trial motions, but one — Ramzi bin al-Shibh — was nowhere to be seen. Doubts had already been raised about the mental health of the Yemeni, and his lawyers — whom he is trying to dismiss, so that he can represent himself, like Mohammed and some of his other co-defendants — were seeking permission to appoint clinical and forensic psychologists to examine him. His lead attorney, Navy Cmdr. Suzanne Lachelier, stated that the defense team has doubts about his mental health, and noted that his medications include “a psychotropic drug prescribed to persons with schizophrenia.” As a report by the American Civil Liberties Union (ACLU) explained, Lachelier “referred to pleadings filed by the bin al-Shibh team that contained considerable additional evidence, which she could not discuss in court, which bolstered the claim that he was mentally ill and might not be competent to stand trial or able to participate in his own defense.”

Ramzi bin al-Shibh at his arraignment in Guantánamo on June 5, 2008. Sketch by courtroom artist Janet Hamlin.

In the end, the rest of the day’s planned discussions were derailed, as the authorities tried to work out what to do about bin al-Shibh’s refusal to appear. Although the military could have brought him to the courtroom against his will, they refused to do so without a formal order from Kohlmann. In the first surreal touch of the hearings, protracted discussions between Kohlmann and the prosecution were only halted when, as the Washington Post described it, Mohammed “raised his hand and offered to meet with bin al-Shibh in an effort to persuade him to come to court,” and was backed up by his co-defendants. Bin Attash explained, “I agree with my brother Sheikh Mohammed. We don’t have to do any fight with Mr. Ramzi. He doesn’t trust anyone in government, but he does trust us. With what has happened to us in this situation — we have all lost faith. But we have faith in each other.” Kohlmann refused to allow a meeting, but he did allow the co-defendants to write letters to bin al-Shibh, which they all signed.

The judge also stated that bin al-Shibh should be given another opportunity to meet with his lawyers, but he refused to let Cmdr. Lachelier meet him in his cell, in the prison’s secretive Camp 7, and explained that he would, instead, have to be “transported, hooded and shackled, in a van with blacked-out windows” to a meeting place. Pointing out that this might only add to her client’s reluctance to meet, Lachelier offered to be hooded herself and taken to Camp 7, but Kohlmann refused. As Denny LeBoeuf of the ACLU explained, it was “a remarkable suggestion that highlights yet again the absurdity of Guantánamo’s secrecy regime.”

Day Two

As a bizarre spectacle, however, the hearings only really came to life on Tuesday, after bin al-Shibh had responded to the entreaties of his co-defendants, and all five men were in court together for the first time since their arraignment in June. On that occasion, Mohammed’s willingness to be a martyr had dominated the proceedings, but nearly four months later it was apparent that he had decided to take on the US government through the weaknesses in its novel judicial system.

In the voir dire process, in which, as Carol Rosenberg explained in the Miami Herald, “lawyers question a judge on his potential bias at trial,” Mohammed was allowed to grill Kohlmann about his background. “For a while,” as the Los Angeles Times noted, he “turned the tables on his captors and made the military judge justify his competency to preside over the trial.”

“Glaring and poking an occasional finger in the air,” Mohammed told Kohlmann, “The government considers all of us fanatical extremists,” and asked, “How can you, as an officer of the US Marine Corps, stand over me in judgment?” Insisting that he was attempting to work out if Kohlmann was a religious extremist, he continued: “[President] Bush said this is a crusader war and Osama bin Laden said this is a holy war against the crusades. If you were part of Jerry Falwell or Pat Robertson’s group, then you would not be impartial.’”

For his part, Kohlmann attempted to maintain his dignity, explaining that he was “currently unaffiliated with a church ‘because I’ve moved so often.’” He added that he had previously worshiped at “various Lutheran churches and Episcopal churches,” and the sub-text — that he was no religious fanatic — was clear. It was at this point that bin al-Shibh spoke out unexpectedly. “As far as I know your last name is a Jewish name, not a Christian name,” he said, prompting a terse response. “With regard to your observation about my heritage and background,” Kohlmann said, “it’s actually inaccurate. And I’ll leave it at that.”

Khalid Sheikh Mohammed and Walid bin Attash (left) during their arraignment on June 5, 2008, as drawn by Janet Hamlin.

Mohammed proceeded to ask Kohlmann about his views on torture. As part of the background materials supplied to him — or made available to the civilian lawyers who are voluntarily assisting him in his defense — he referred to an ethics seminar that Kohlmann had conducted at his daughter’s high school in 2005, in which the students had been asked to consider their responses to a “Ticking Time Bomb” scenario. Based on a fictional proposition that a bomb is about to go off, and an unwilling captive knows its location but is unwilling to disclose the information, the scenario is widely used by proponents of “enhanced interrogation techniques” to justify the use of torture.

Kohlmann explained that he encouraged the debate as part of “a complex question that might be dealt with differently if someone were specifically trying to save the nation or just looking at it from an ethical sense or just looking at it from a legal sense,” and dismissed a combative question from Mohammed — “It seems that you are supportive of the use of torture for national security?” — by stating, “I have no idea where that would come from.”

As Mohammed continued questioning Kohlmann, in what the Washington Post described as a “sometimes rambling disquisition,” he was “frequently unsatisfied,” as Josh Meyer described it in the Los Angeles Times, “and hit Kohlmann with a barrage of follow-up questions and sarcastic political commentary.” Kohlmann put up with this for some time, but when he was asked if he read books by Billy Graham or Pat Buchanan, and what movies he watched, he said that the questions seemed designed “to develop a personality profile,” and stated, “I decline to provide you with my reading list or my movie list.” Finally, after he had twice scolded Mohammed for failing to stick to the topic in hand, and Mohammed muttered aloud, “You reject to answer,” Kohlmann lost his patience. “You are not going to have free rein,” he exclaimed. “I will not allow you to act in a manner that is disrespectful to this court. Do you understand me clearly?”

Nevertheless, it was Mohammed’s day. Although Ramzi bin al-Shibh piped up at one point, declaring, “I am not mentally incompetent,” but haranguing Cmdr. Lachelier in a manner that did not necessarily justify his own appraisal of his mental state, the rest of the co-defendants seemed content to allow Mohammed to speak for them. Even the defense lawyers’ long list of relevant complaints, which, they insisted, would make it impossible for the men to receive a fair trial, were overshadowed by Mohammed’s grandstanding. At various points throughout the day, as the Los Angeles Times put it, they expressed concerns that “lawyer-client conversations may not be confidential,” complained that they “cannot talk to friends and family of the accused as part of their defense preparation without prosecutors finding out about it, which has scared off potential witnesses on their behalf,” and described the court translators as incompetent, which was proving to be “a severe hindrance for defendants who don’t speak English.”

Explaining how bad the situation was, Major Jon Jackson, the lawyer for Mustafa al-Hawsawi, said at the end of the day that his client “doesn’t understand about a quarter of the court proceedings because of incomprehensible interpretation.” But although he and other lawyers “asked for the 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,” as the ACLU explained, the government “strenuously opposed the request,” stating that it was “enough for the defendants to be present and observe the proceedings.” This prompted Major Jackson to complain, “I could not believe my government would not provide transcripts in the native language of the accused that it wants to put to death.”

While a few commentators noticed these exchanges, however, most eyes were on Mohammed. As the Associated Press pointed out, “During breaks, Mohammed pivoted in his seat at his defense table and chatted amiably in Arabic with his co-defendants, who sat at their own tables arrayed behind him — despite complaints that he used a similar opportunity in June to pressure the others to reject their Pentagon-appointed defense lawyers.”

Day Three

On the third and final day of this round of pre-trial hearings, as the Washington Post put it, “The loquacious Mohammed, as he does on most days, took the lead in speaking for the other four defendants.” Following up on claims made the previous day that Kohlmann’s background as a Marine prevented him from being impartial, he stated, “I believe that we are part of an inquisition,” adding that Kohlmann was an officer in the US military, “which is “currently occupying our Muslim holy lands. As I address the court now, your government is killing Muslims in Afghanistan and Iraq.” On another occasion, he said, “I don’t believe you respect Muslims. We are your enemy,” adding, with a sly broadside about how he and his co-defendants had been treated for years, “If this is the case, you could have killed us years ago instead of holding us for years under torture.”

The thrust of Mohammed’s remarks, however, focused on an admission by Kohlmann that he was due to retire in April. Asking the judge to disqualify himself from the case, he said, “It is clear you are retiring before [the trial] is completed,” and argued that, as a result, he “might inappropriately rush the proceedings.” Kohlmann replied that Mohammed’s claims were “completely wrong,” and “briskly rejected each argument offered as a basis for disqualification,” but the announcement of his departure was not reassuring. Although Kohlmann is the chief judge at the Commissions, and selected himself for the 9/11 trial, defense lawyers noted that, “with unused leave time,” he “could be gone as early as mid-January.” And that, as bin Attash’s lawyer, Lt. Cmdr. James Hatcher explained, would mean that “a new round of pretrial hearings would be required and the new judge would be forced to reexamine earlier rulings.” “It will,” he said, “make an already complex case even more complex.”

With Mohammed’s attention-grabbing antics out of the way, the rest of the day’s proceedings focused on “defense motions seeking more resources for the defendants and easier access to them for their attorneys, both by person and by phone.” Explaining that the prosecution was seeking “to improve access while maintaining security,” lead prosecutor Col. Robert Swann explained, as the Associated Press put it, that the government was “preparing to issue each defendant a laptop computer loaded with 40,782 pages of documents and more than 50 videos.” He added that “they could not safely be provided with requested printers or other equipment with electrical cords, presumably because of the danger of suicide.” It transpired, after Amanda Lee, one of Ali Abdul Aziz Ali’s attorneys, asked for the men to have “unfettered access to news articles so that they can be prepared to challenge expert witnesses for the prosecution,” that they currently only receive a redacted version of USA Today, and that their lawyers are prohibited from giving them other material when they meet them.

Away from Mohammed and the limelight, it is issues like these — and the other problems raised by the defense lawyers on Tuesday — that will be fought over until the next time the five men appear in a courtroom. As Major Jackson explained, “This is going to be a long, long, long battle before these accused get sentenced.” And while Lt. Cmdr. Brian Mizer, Ali Abdul Aziz Ali’s military lawyer, closed the proceedings by promising, “Torture is at issue in this case. It is going to be at the very center of this case,” my feeling is that it is, above all, Khalid Sheikh Mohammed who will remain at the center of the case, doing all he can to derail a system that is an inadequate substitute for a real trial.

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

As published on the Huffington Post, Antiwar.com and CounterPunch.

See the following for a sequence of articles dealing with the stumbling progress of the Military Commissions: The reviled Military Commissions collapse (June 2007), A bad week at Guantánamo (Commissions revived, September 2007), The curse of the Military Commissions strikes the prosecutors (September 2007), A good week at Guantánamo (chief prosecutor resigns, October 2007), The story of Mohamed Jawad (October 2007), The story of Omar Khadr (November 2007), Guantánamo trials: where are the terrorists? (February 2008), Six in Guantánamo charged with 9/11 attacks: why now, and what about the torture? (February 2008), Guantánamo’s shambolic trials (ex-prosecutor turns, February 2008), 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), 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).