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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Andy Worthington is the author of The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison (published by Pluto Press, distributed by Macmillan in the US, and available from Amazon — click on the following for the US and the UK) and of two other books: Stonehenge: Celebration and Subversion and The Battle of the Beanfield. To receive new articles in your inbox, please subscribe to my RSS feed (and I can also be found on Facebook, Twitter, Digg and YouTube). Also see my definitive Guantánamo prisoner list, updated in June 2011, “The Complete Guantánamo Files,” a 70-part, million-word series drawing on files released by WikiLeaks in April 2011, and details about the documentary film, “Outside the Law: Stories from Guantánamo” (co-directed by Polly Nash and Andy Worthington, and available on DVD here — or here for the US). Also see my definitive Guantánamo habeas list and the chronological list of all my articles, and, if you appreciate my work, feel free to make a donation.

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

As a result, Cheney knew that, on the tenth anniversary of the terrorist attacks that launched the “war on terror” that he is still so concerned to defend, his voice would be echoing in the ears of millions of his countrymen and women, helping to disguise a bitter truth: that, following the 9/11 attacks, Cheney was largely responsible for the abomination that is Guantánamo, and for the torture to which prisoners were subjected from Abu Ghraib to Bagram to Guantánamo and the “black sites” that littered the world.

Alarmingly, while Cheney has been largely successful in claiming that the use of torture was helpful, despite a lack of evidence that this was the case, what strikes me as even more alarming is that many Americans are still unaware of the extent to which the torture for which Cheney was such a cheerleader did not keep them safe from terrorist attacks, but actually provided a lie that was used to justify the invasion of Iraq in March 2003.

As a long time believer in unfettered executive power, Cheney’s fingerprints are all over the Bush administration’s response to the 9/11 attacks, along with those of his legal counsel, David Addington. The two men had met while defending Ronald Reagan during the Iran-Contra scandal, on the basis that the President should be beyond criticism, and it was Cheney and Addington who were behind a military order issued by George W. Bush on November 13, 2001, which established the President’s right to hold those he regarded as terrorists as a new type of prisoner (who later became the infamous “enemy combatants”), and, if he wished, to prosecute them in trials by military commission, which were designed to secure easy convictions and to use evidence derived through the use of torture.

It was Addington, no doubt after consultation with Cheney, who wrote the memo to President Bush on January 25, 2002, signed by White House Counsel Alberto Gonzales, which claimed that the Geneva Conventions contained “quaint” provisions, and that the circumstances in which the “war on terror” was being waged rendered “obsolete” the Conventions’ “strict limitations on questioning of enemy prisoners.” The memo advised the President to discard the Geneva Conventions for the prisoners at Guantánamo, which had opened two weeks earlier.

The purpose was to allow coercive interrogations, and even the use of torture, and this became official policy on August 1, 2002, when another of Cheney’s colleagues, John Yoo, a lawyer in the Justice Department’s Office of Legal Counsel, which is supposed to provide the executive branch with impartial legal advice, wrote two memos known as the “torture memos,” which attempted to redefine torture — including the use of waterboarding, a form of controlled drowning — so that it could be used by the CIA.

With the help of another of Cheney’s circle of close colleagues — Jim Haynes, the Pentagon’s General Counsel — the torture techniques chosen were reverse-engineered from those taught in US military schools to help US military personnel resist interrogation if captured by a hostile enemy. Haynes had made the first approach to the organization responsible for the program, known as SERE (Survival, Evasion, Resistance and Escape), and he also played a role in the spread of torture techniques to Guantánamo, as approved by defense secretary Donald Rumsfeld in November 2002, which then spread to Iraq, leading to the horrors that were revealed around the world when the Abu Ghraib scandal broke in April 2004.

Even so, Cheney’s biggest crime, to my mind, remains the way in which, while pretending to use torture to protect the American people from further terrorist attacks, he actually used it to attempt to justify the illegal invasion of Iraq in March 2003. This bleak story involves Ibn al-Shaykh al-Libi, who ran a training camp in Afghanistan — Khalden — that was shut down by the Taliban in 2000 after he refused to allow Osama bin Laden to take it over.  Al-Libi was initially interrogated by the FBI, but they were brushed aside by the CIA, who flew al-Libi to Egypt, where the torturers of Hosni Mubarak’s savage regime secured a patently false confession that Saddam Hussein had met with two al-Qaeda operatives to discuss the use of chemical and biological weapons.

Al-Libi recanted the false confession obtained through torture — which apparently included waterboarding — in 2004, although the Defense Intelligence Agency (DIA) had concluded at the time of the confession, in February 2002, that al-Libi had misled his torturers. However, no one told Colin Powell, who used it in the presentation he made to the UN Security Council in February 2003, a month before the invasion. This is alarming enough, but as it is clear that Dick Cheney knew about the DIA’s analysis that al-Libi had lied, the only conclusion that can be drawn is that, while pretending to protect the American people, Cheney was actually responsible for using a lie obtained through torture to justify an illegal war that would lead to the deaths of thousands of US military personnel, and of hundreds of thousands of Iraqi civilians.

Torture is a crime, for which Dick Cheney should pay, on the 10th anniversary of the 9//11 attacks, rather than being feted as some sort of entertainingly opinionated elder statesman. Above all, however, the al-Libi episode reveals the former Vice President not only as a torturer, but also as some sort of a traitor, making his continued ability to walk free, and to continue spreading his self-serving lies, a damning state of affairs for America as a whole, and one that should make decent Americans recoil in shame and horror from what they and their country have become.

Note: For more on the bleak story of Ibn al-Shaykh al-Libi, see Ibn al-Shaykh al-Libi Has Died In A Libyan Prison and WORLD EXCLUSIVE: New Revelations About The Torture Of Ibn al-Shaykh al-Libi. For more on the malignant influence of Dick Cheney, see Dick Cheney: invisible tyrant, Dick Cheney: more horrors from the ‘Vice-President for Torture’, The Ten Lies of Dick Cheney (Part One), The Ten Lies of Dick Cheney (Part Two), Prosecuting the Bush Administration’s Torturers and Even In Cheney’s Bleak World, The Al-Qaeda-Iraq Torture Story Is A New Low.

Andy Worthington is the author of The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison (published by Pluto Press, distributed by Macmillan in the US, and available from Amazon — click on the following for the US and the UK) and of two other books: Stonehenge: Celebration and Subversion and The Battle of the Beanfield. To receive new articles in your inbox, please subscribe to my RSS feed (and I can also be found on Facebook, Twitter, Digg and YouTube). Also see my definitive Guantánamo prisoner list, updated in June 2011, details about the new documentary film, “Outside the Law: Stories from Guantánamo” (co-directed by Polly Nash and Andy Worthington, on tour in the UK throughout 2011, and available on DVD here — or here for the US), my definitive Guantánamo habeas list and the chronological list of all my articles, and, if you appreciate my work, feel free to make a donation.

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

The answer has to be that it would be hard to conceive of a neater example of how the military and the intelligence agencies — or the CIA, at least — are at the very heart of government.

The door that is shutting is the one that involves accountability for the many prisoners subjected to “extraordinary rendition,” torture, and, in some cases, murder, in the Bush administration’s “high-value detainee” program. This involved the creation of secret torture prisons in Thailand, Poland, Romania and Lithuania, and, for a while, in Guantánamo, as well as others in Afghanistan and Iraq, the rendition of prisoners between these facilities, and also to the dungeons of allies in Jordan, Egypt, Syria and Morocco.

The Bush administration’s program also involved the cynical crafting of memoranda purporting to redefine torture, so that it could be practiced by the CIA. These memos — which will be known forever as the “torture memos” — were written in the Justice Department’s Office of Legal Counsel (OLC) by John Yoo, and approved by his boss, Jay S. Bybee. Yoo was part of a team of lawyers clustered around Vice President Dick Cheney, who were responsible for finding ways to justify the torture program that also involved President Bush and defense secretary Donald Rumsfeld, as well as other senior officials, including Condoleezza Rice. The other lawyers were: David Addington, Cheney’s former chief of staff and legal counsel; William J. Haynes II, the Pentagon’s former general counsel; his deputy, Daniel Dell’Orto; former White House counsel (and later Attorney General) Alberto Gonzales; and his deputy, Tim Flanigan.

In President Obama’s America, in which Obama himself came to power declaring his “belief that we need to look forward as opposed to looking backwards,” none of these men have been held accountable for their actions. In fact, as I explained in an article last week, the President has done all in his power to make sure that those who authorised torture or attempted to justify its use have been shielded from accountability for their actions. As I wrote:

Obama stood by and watched as, in February last year, a four-year internal investigation into John Yoo and Jay S. Bybee, lawyers at the Justice Department’s Office of Legal Counsel, was cynically overturned by a DoJ fixer, David Margolis. Yoo had written the notorious “torture memos,” issued on August 1, 2002, that purported to redefine torture so that it could be used by the CIA, and Bybee had approved them, but when the investigation concluded that both men had been guilty of “professional misconduct,” Margolis decided instead that they had only exercised “poor judgment.”

Obama also stood by last September when five men subjected to “extraordinary rendition” and torture by the CIA, including the British residents Binyam Mohamed and Bisher al-Rawi, had their lawsuit against Jeppesen Dataplan Inc., a Boeing subsidiary that had functioned as the CIA’s travel agent, blocked by the administration, and by the 9th Circuit Court of Appeals, which agreed with Obama’s Justice Department that it was appropriate to use the little-known and little-used “state secrets” doctrine to block any attempt to expose the truth in any US court on the basis that it would endanger “national security” — a decision that was upheld by the Supreme Court last month.

Last December, we also discovered, via WikiLeaks, that the Obama administration had put pressure on the Spanish government to prevent the courts in Spain from pursuing an investigation into six former Bush administration lawyers — David Addington, William J. Haynes II, Alberto Gonzales, Jay Bybee, John Yoo and Douglas Feith, former undersecretary of defense for policy  — for “creating a legal framework that allegedly permitted torture.”

As a result, the news that special prosecutor John Durham has completed a two-year investigation into 101 cases involving the CIA’s treatment of detainees, and has concluded that just two deserve to proceed to criminal prosecutions, is truly depressing. President Bush, as we learned in February, is unable to travel outside the United States because, after he bragged in his autobiography that he had authorized torture (the waterboarding of Khalid Sheikh Mohammed) lawyers will serve him with a torture complaint wherever he goes, but in the US the only people to face a criminal prosecution are those whose actions are deemed to have exceeded the parameters laid down by John Yoo and Jay S. Bybee.

To be fair to John Durham, his investigation was hobbled from the very beginning, because of the limits imposed on him. As Eric Holder explained in a statement announcing Durham’s conclusions:

On August 24, 2009, based on information the Department received pertaining to alleged CIA mistreatment of detainees, I announced that I had expanded Mr. Durham’s mandate [from that of January 2008, when Bush Attorney General Michael Mukasey appointed him to investigate the destruction of videotapes showing the torture of "high-value detainees"] to conduct a preliminary review into whether federal laws were violated in connection with the interrogation of specific detainees at overseas locations. I made clear at that time that the Department would not prosecute anyone who acted in good faith and within the scope of the legal guidance given by the Office of Legal Counsel regarding the interrogation of detainees. Accordingly, Mr. Durham’s review examined primarily whether any unauthorized interrogation techniques were used by CIA interrogators, and if so, whether such techniques could constitute violations of the torture statute or any other applicable statute.

Those particular comments — that the Justice Department “would not prosecute anyone who acted in good faith and within the scope of the legal guidance given by the Office of Legal Counsel regarding the interrogation of detainees” — is the key to the whitewash that has just occurred, and it is so important that it was repeated in August 2009 by White House press secretary Robert Gibbs, when the appointment of Durham was announced. Gibbs noted that “the President agrees with the Attorney General that those who acted in good faith and within the scope of legal guidance should not be prosecuted.”

What no one has yet explained is who authorized the revision to the conclusions reached by a four-year internal investigation into the “legal guidance” provided by Yoo and Bybee. As I noted above, that investigation concluded that Yoo and Bybee were guilty of “professional misconduct,” which would have allowed them to be investigated by their bar associations, and might have opened up a clear route to the White House, but veteran DoJ fixer David Margolis was allowed to override the investigation’s conclusions, with his excuse that the two lawyers had merely exercised “poor judgment.”

This was in January 2010, but Holder’s appointment of Durham in August 2009, and his comments at the time, as well as those of the White House, indicate that everyone involved already knew that the results of the OPR investigation would be rewritten so that Yoo and Bybee would be excused. The outstanding questions, therefore, are: did anyone put pressure on the Obama administration to whitewash Yoo and Bybee, and did it happen as part of an agreement between the administration and the CIA prior to April 17, 2009?

That was the date when the President released four previously classified OLC “torture memos” from 2002 and 2005 as part of a court case, but also stated, explicitly, “In releasing these memos, it is our intention to assure those who carried out their duties relying in good faith upon legal advice from the Department of Justice that they will not be subject to prosecution.”

For what it’s worth, the criminal prosecutions recommended by John Durham and approved by Eric Holder will investigate the November 2003 murder, in the notorious Abu Ghraib prison in Iraq, of Manadel al-Jamadi, also known as “the Iceman” (which was recently reported by Adam Zagorin of Time, as I discussed here), and the November 2002 murder, in the secret prison in Afghanistan known as the “Salt Pit,” of Gul Rahman. This story was first reported by Dana Priest in the Washington Post in March 2005, but it was not until March 2010 that Adam Goldman of the Associated Press uncovered his name and provided crucial details about the circumstances of his death.

In both cases, there are reasons for extremely cautious optimism that any prosecution will not just to sacrifice a few low-level operatives as “bad apples,” but will also look a few notches up the chain of command, as Marcy Wheeler has been reporting on FireDogLake. Overall, however, Eric Holder’s announcement is bad news for accountability, as it suggests that the process of “look[ing] forward as opposed to looking backwards” is almost complete, with just a few loose ends to be tied up before we are all obliged to move on, forever consigning to oblivion any outstanding demands we might have — including a full account of who was held in the “high-value detainee” program, and what happened to those who did not end up in Guantánamo, and, most importantly, another question, asked repeatedly until a satisfactory answer is given: how can it be that senior Bush administration officials and their lawyers broke the US torture statute, which requires torturers to be prosecuted, and got away with it?

June 30, 2011 will go down in history as a very bleak day indeed for US justice.

Andy Worthington is the author of The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison (published by Pluto Press, distributed by Macmillan in the US, and available from Amazon — click on the following for the US and the UK) and of two other books: Stonehenge: Celebration and Subversion and The Battle of the Beanfield. To receive new articles in your inbox, please subscribe to my RSS feed (and I can also be found on Facebook, Twitter, Digg and YouTube). Also see my definitive Guantánamo prisoner list, updated in June 2011, details about the new documentary film, “Outside the Law: Stories from Guantánamo” (co-directed by Polly Nash and Andy Worthington, on tour in the UK throughout 2011, and available on DVD here — or here for the US), my definitive Guantánamo habeas list and the chronological list of all my articles, and, if you appreciate my work, feel free to make a donation.

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

For opponents of the unconstitutional aberration that is Guantánamo, last Monday — April 4, 2011 — will go down in the history books as the day that they were obliged to watch impotently as federal court trials for terrorist suspects were discarded or discredited, the tired and tawdry looking “War on Terror” was revitalized, and the Supreme Court, through its inaction, decided that judges in the D.C. Circuit Court — who have publicly criticized the Supreme Court for incompetence — should continue to decide detainee policy at Guantánamo.

What this means, as I will spell out in detail below, is that, having gutted habeas corpus of all meaning in rulings over the last 15 months, the D.C. Circuit Court will be allowed to continue deciding that every prisoner still held at Guantánamo should — and very possibly will — be held forever, regardless of whether they were cleared for release by other judges, or by the President’s own interagency Guantánamo Review Task Force.

In last Monday’s first capitulation, the Obama administration — via Attorney General Eric Holder — abandoned a 16-month promise to try alleged 9/11 mastermind Khalid Sheikh Mohammed and four others in federal court, capitulating to Republican pressure — and a ban on moving prisoners to the US mainland to face trials, which was unconstitutionally implemented by Congress in December — by announcing that the men would, instead, be tried by Military Commission at Guantánamo.

The administration therefore fulfilled a key Republican aim — ensuring that the highest-profile prisoners in Bush’s “War on Terror” would be regarded as “warriors” rather than as criminals — and, in effect, turned the clock back to 2008, when the Bush administration held three pre-trial hearings in the Military Commissions of these five men.

Admittedly, the Obama administration bears the ultimate responsibility, having revived the Military Commissions in the summer of 2009, when senior officials could have consigned the reviled system to the grave of failed legal novelties. In addition, it may all backfire, as the Commissions are built on dubious legal sands, and the proceedings tend to be full of holes through which determined defendants like Khalid Sheikh Mohammed will be able to mock America more successfully than in federal court. However, the end result is that Republicans — and, should they wish, George W. Bush and Dick Cheney — will be able to claim that they were right all along.

On the judicial front, the Supreme Court has ducked Guantánamo since its last major intervention, in Boumediene v. Bush, in June 2008, when the justices ruled that the prisoners had constitutionally guaranteed habeas corpus rights, and also ruled that Congress had acted unconstitutionally by attempting to strip the prisoners of those rights in the Detainee Treatment Act of 2005 and the Military Commissions Act of 2006.

Although this was an enormously important decision, reinforcing the unusual but crucial ruling in June 2004, in Rasul v. Bush, that the prisoners, though seized in wartime, had habeas rights because the Bush administration had cut off all mechanisms whereby innocent men seized by mistake could prove their innocence, it also sowed the seeds of last Monday’s disaster.

Essentially, the Supreme Court refused to provide a description of an “enemy combatant,” leaving it to the lower courts to decide that, and although the District Court in Washington D.C. did a fine job of coming up with its own definition, and applying it in practice — and tweaking it along the way — in 41 cases from October 2008 to December 2009, for the last 15 months judges in the D.C. Circuit Court (the court of appeals) have fought back, with a number of notoriously right-wing judges refusing to accept the District Court’s generally accepted decision that some sort of involvement in the command structure of al-Qaeda and/or the Taliban is necessary to deny their habeas petitions.

Beginning with Al-Bihani v. Obama in January 2010, in which D.C. Circuit Court judges argued for no limit on the President’s wartime powers in the case of a Yemeni cook for Arab forces supporting the Taliban in Afghanistan, other panels have attacked the “command structure” argument, insisting that being “part of” al-Qaeda and/or the Taliban is sufficient to justify ongoing detention for life, and proceeding to attack the already low threshold required of the government — that it demonstrates its case by a “preponderance of the evidence,” rather than “beyond any reasonable doubt.”

What the D.C. Circuit Court desires, as judges have occasionally spelled out, is for the burden to be nothing more than “some evidence” — and that in a very open-ended way, as I explained in my last broadside directed at the Circuit Court. If they could, one suspects that the Circuit Court judges would simply return to the Combatant Status Review Tribunals at Guantánamo, held in 2004-05, which the Supreme Court in Boumediene found “insufficient.” In the CSRTs, the burden of proof was not on the government, but, outrageously, on the defendant, even through the prisoners in Guantánamo had no way of securing any evidence in their favor, or even of knowing what the government’s supposed case was against them.

In an attempt to overturn the Circuit Court’s dominance of all the arguments regarding the Guantánamo prisoners, a number of submissions have been made to the Supreme Court in recent months, and although these have all been turned down, as I mentioned above, it is worth analyzing what has been happening, in order to understand more thoroughly the dark forces that are now in control.

In an excellent editorial last month, the New York Times addressed the problem with the D.C. Circuit Court, focusing specifically on the court’s opposition to  attempts by the Uighurs — Muslims from China’s oppressed Xinjiang province, seized by mistake, who won their habeas petition in October 2008 — to be allowed to live in the US.

Although the judge in their case, Judge Ricardo Urbina, ordered that they be brought to live in the US in October 2008, the Bush administration — and then the Obama administration — appealed, and in February 2009, long before the Circuit Court specifically began meddling in reversing successful habeas opinions, or unilaterally calling for an expansion of executive power — the Circuit Court agreed. Under Judge A. Raymond Randolph — notorious for endorsing every opinion about Guantánamo under President Bush that was subsequently overturned by the Supreme Court — a panel of judges ruled, as the Times described it, that Judge Urbina “lacked authority to free them in the United States because the ‘political branches’ have ‘exclusive power’ to decide which non-Americans can enter this country.”

Since then, although 12 of the 17 Uighurs have accepted new homes (in Bermuda, Palau and Switzerland), the Court has continued to resist claims made by the other five, who turned down offers to rehouse them made by Palau and at least one other unidentified country, because they did not trust those countries to protect them from the Chinese government.

Appalled by this decision, and by all the other developments in the last 15 months, the Times boldly pointed out that the D.C. Circuit Court “has dramatically restricted the Boumediene ruling,” and that, “In its hands, habeas is no longer a remedy for the problem the Boumediene majority called ‘arbitrary and unlawful restraint.’”

The editors proceeded to note that, in the Uighurs’ brief to the Supreme Court, challenging this decision (as the latest instalment of a case that has bounced around the courts for the last two years), their lawyers point out explicitly that the only constant factor in this case is “the court of appeals’ refusal to apply, or even acknowledge” the Boumediene ruling, and the editors also provided an eye-opening glimpse into the partisan nature of Judge Randolph’s opposition to the decisions regarding Guantánamo that have come before him, explaining:

Judge Randolph … wrote the opinion for the District of Columbia Circuit that the Supreme Court overturned in Boumediene. In a speech called “The Guantánamo Mess” last fall, he said that the justices were wrong to do so and all but expressed contempt for the holding. As the basis for the speech’s title, he compared the justices who reached it to characters in The Great Gatsby. “They were careless people,” he read. “They smashed things up … and let other people clean up the mess they had made.”

This contemptuous approach to the Supreme Court’s ruling prompted the New York Times to respond:

In Kiyemba [the Uighurs' case] and related cases, however, it is Judge Randolph and others on the District of Columbia Circuit who are making the mess. Respected lawyers say they are subverting the Supreme Court and American justice. Of 140 challenging their detentions in the face of this hostility, dozens who should have been freed will likely remain in prison.

In conclusion, the Times sought to remind the Supreme Court that “Alexander Hamilton called ‘arbitrary imprisonments’ by the executive ‘the favorite and most formidable instruments of tyranny,’” and that, in Boumediene, Justice Anthony Kennedy “stressed that habeas is less about detainees’ rights, important as they are, than about the vital judicial power to check undue use of executive power,” adding that this is important because the Circuit Court “has all but nullified that view of judicial power and responsibility backed by Justice Kennedy and the court majority,” and that the Supreme Court should now remind the Circuit Court “which one leads the federal judicial system and which has a solemn duty to follow.”

If the Times‘ editors made a valid case — and I believe they did — then it was the Supreme Court who failed to take their responsibilities on board, because last Monday they refused to consider the Uighurs’ case, and also turned down three other habeas-related submissions — challenging the government’s use of hearsay, the “preponderance of evidence” standard, and the sweeping executive powers endorsed in Al-Bihani.

To date, analysts have suggested that the Supreme Court might have been unwilling to revisit Guantánamo, because Elena Kagan, who replaced Justice John Paul Stevens, served as Obama’s Solicitor General working on Guantánamo issues, and would have had to recuse herself, leaving the court, in all likelihood, split 4-4 on any Guantánamo cases. However, as SCOTUSblog noted, Kagan did not recuse herself from two of the cases turned down last Monday, suggesting that the problem is actually that no one amongst the justices wants to step into the role taken by Justice Stevens, who, from 2004 to 2008, “had been the Court’s leader in asserting a strong role for the Justices in overseeing how the law of detention had developed.”

Along with the Obama administration’s capitulation to Republican demands on Guantánamo, the fact that the Supreme Court, under Obama, has also ended up more right-wing than it was under Bush, when it comes to detention issues in the “War on Terror,” appears to be some sort of cruel joke.

How on earth have we ended up in a situation whereby, as SCOTUSblog explained, the poisonous figure of Judge Randolph has been left in a position in which the Supreme Court’s denial of review last Monday “might … count as a personal triumph” for him — and, thereby, a tacit admission that he was correct to regard Boumediene as a “mess” that requires cleaning up? Was Justice Stevens the only reason that the US justice system did not thoroughly endorse arbitrary detention as official policy under George W. Bush?

Andy Worthington is the author of The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison (published by Pluto Press, distributed by Macmillan in the US, and available from Amazon — click on the following for the US and the UK) and of two other books: Stonehenge: Celebration and Subversion and The Battle of the Beanfield. To receive new articles in your inbox, please subscribe to my RSS feed (and I can also be found on Facebook, Twitter, Digg and YouTube). Also see my definitive Guantánamo prisoner list, updated in July 2010, details about the new documentary film, “Outside the Law: Stories from Guantánamo” (co-directed by Polly Nash and Andy Worthington, on tour in the UK throughout 2011, and available on DVD here — or here for the US), my definitive Guantánamo habeas list and the chronological list of all my articles, and, if you appreciate my work, feel free to make a donation.

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

Treated as punchbags without rights when first picked up, mostly in Afghanistan and Pakistan in the wake of the 9/11 attacks and the US-led invasion of Afghanistan, the 172 men still held at Guantánamo are still treated with scorn by the administration of Barack Obama, the standard bearer of “hope” and “change,” who promised to close Guantánamo and to do away with “the dark halls of Abu Ghraib and the detention cells of Guantánamo, [where] we have compromised our most precious values.” Instead, however, Obama has revealed himself to be nothing more than a hollow man whose ability to read from an autocue made him look caring, clever and capable when that was exactly the antidote we needed to eight years of Bush and Cheney.

Today, the reason for despair is that on Tuesday the D.C. Circuit Court reversed a ruling made last February by Judge Henry H. Kennedy Jr. of the District Court, in the case of Uthman Abdul Rahim Mohammed Uthman, a Yemeni held at Guantánamo without charge or trial since the prison opened in January 2002. Last February, after examining all the government’s supposed evidence against Uthman, Judge Kennedy ruled that, although the government had presented what appeared to be a coherent timeline of events that was typical for young men from the Gulf, recruited to visit a training camp in Afghanistan to learn to fight for the Taliban against the Northern Alliance, none of the government’s supposed evidence proving Uthman’s presence in guest houses, at a training camp, and in the Tora Bora mountains (where a showdown took place in December 2001 between remnants of al-Qaeda and the Taliban, and Afghan forces recruited to fight for the Americans) was reliable.

The reason for this, Judge Kennedy concluded, was because the government’s supposed evidence consisted of statements produced by other prisoners who had been tortured, and whose testimony was therefore unreliable, as well as other witnesses whose statements were also considered to be untrustworthy.

This could have been the end of the story, and Uthman could have been released, were it not for the fact that he is a Yemeni, and the month before he won his petition, President Obama bowed to hysteria following the announcement that Umar Farouk Abdulmutallab, the failed Christmas Day plane bomber, had been recruited in Yemen by announcing an immediate, open-ended moratorium on releasing any Yemenis from Guantánamo.

The fact that this moratorium was unjustifiable, consigning prisoners cleared for release by a US court, or by Obama’s own interagency Guantánamo Review Task Force, to indefinite detention on the basis of “guilt by nationality,” appeared to trouble no one, and, similarly, no one blinked when every Yemeni who won his habeas corpus petition — with one heroic exception — subsequently had his successful petition appealed.

This was in spite of the fact that it was obvious to anyone who was reasonably sentient that the main reason for doing so was to avoid having to try to persuade Congress that an exception should be made to the moratorium, which, very clearly, was actually intended to function as a permanent obstacle to the release of any Yemeni, the kind of legally and morally dubious device that President Bush also favored, although his chosen vehicle was the executive order.

The noble exception, by the way, was Mohammed Hassan Odaini, a student who had been seized while staying the night wth other students at their universtiy dorm in Faisalabad, Pakistan, in March 2002. Many of the other students staying in the dorm are still held, but Odaini was lucky because a judge reached the point where he was satisfied that he could make a ruling on his habeas petition, and forcefully explained that the US government had no reason for having deprived Odaini of eight years of his life, when intelligence officials knew, almost from the moment of his capture, that he was an innocent man.

It also helped that his case was picked up by the Washington Post, which ran an editorial entitled, Meet one Gitmo inmate who can’t be described as ‘the worst of the worst.’ At this point, he became a kind of minor celebrity victim, and the administration conceded that it wouldn’t dare appeal, although officials still made a concession to outrageousness by explaining, straight-faced, that they still would have challenged his release if they hadn’t discovered that he was from a good family. “People [in the administration] were comfortable with this,” an anonymous official told the Washington Post, “because of the guy’s background, his family and where he comes from in Yemen.”

For Uthman Abdul Rahim Mohammed Uthman — not as well-connected as Mohammed Hassan Odaini — all that awaited him was a date with the D.C. Circuit Court that was bound to result in Judge Kennedy’s ruling being reversed, and Uthman himself being consigned to indefinite detention at Guantánamo for the rest of his life.

The reason I state this with such confidence is that, since they first began considering Guantánamo habeas appeals last January, the judges of the D.C. Circuit Court — and, in particular, Judges A. Raymond Randolph, Brett M. Kavanaugh and Janice Rogers Brown — have generally functioned as though possessed by the spirit of George W. Bush and Dick Cheney, sedating the spirit of justice and taking revenge on the Supreme Court, which granted constitutionally guaranteed habeas corpus rights to the Guantánamo prisoners in June 2008.

Of these, Judge Randolph is the most notorious, having endorsed every piece of Guantánamo legislation that came his way under the Bush administration, even though all his rulings were subsequently reveresed by the Supreme Court, but all of them (plus others, in various combinations) have almost entirely guaranteed success for the government’s appeals in the habeas legislation, as I explained in my articles, Guantánamo and Habeas Corpus: Prisoners Win 3 out of 4 Cases, But Lose 5 out of 6 in Court of Appeals (Part One), Guantánamo and Habeas Corpus: Prisoners Win 3 out of 4 Cases, But Lose 5 out of 6 in Court of Appeals (Part Two) and Habeas Hell: How the Great Writ Was Gutted at Guantánamo.

In challenging, reversing and vacating the District Court opinions, the D.C.Circuit Court has issued a contentious opinion about unfettered executive power, which claimed greater wartime powers for the government than senior officials wanted, wondered — in an opinion by Judge Randolph — why any kind of test was required for the quality of the government’s evidence in cases related to terrorism, and, most damagingly for the prisoners, decided that the involvement with al-Qaeda and/or the Taliban that is required to justify detention is not, as the District Court judges decided, limited to some sort of involvement in the command structure of the organizations (intended to demonstrate important indicators like the requirement to take orders), but is, instead, the much more open-ended requirement that those under consideration are “part of” al-Qaeda and/or the Taliban.

On Tuesday, demonstrating quite how open-ended this description is, Judge Kavanaugh, who wrote the judges’ opinion, declared, as ProPublica stated, “that the government doesn’t need direct evidence that a detainee fought for or was a member of al-Qaeda in order to justify a detention.” ProPublica added that the court “determined that circumstantial evidence, such as a detainee being in the same location as other al-Qaeda members, is enough to meet the standard to hold a prisoner without charge.”

In the ruling (PDF), the judges wrote, “Uthman’s account piles coincidence upon coincidence upon coincidence … it remains possible that Uthman was innocently going about his business and just happened to show up in a variety of extraordinary places — a kind of Forrest Gump in the war against al-Qaeda. But Uthman’s account at best strains credulity, and the far more likely explanation for the plethora of damning circumstantial evidence is that he was part of al-Qaeda.”

Jonathan Hafetz, a professor at Seton Hall Law School, who has represented several Guantánamo prisoners including Mohamedou Ould Salahi, who, last November, had his successful petition vacated and sent back to the District Court to reconsider, complained that the Circuit Court’s ruling “significantly favors the government in ways the Supreme Court did not intend when it granted detainees the right to challenge detentions.”

“The Uthman case cements the trend in the D.C. Circuit’s decisions toward a broad and malleable definition of who can be considered ‘part of’ al-Qaeda, combined with a highly deferential view of the government’s interpretation of the facts,” Hafetz said. “In many cases, the result is indefinite detention based on suspicion or assumptions about a detainee’s behavior.”

He added that the ruling is not only dismissive of the considered approach taken by the District Court, but is also dismissive of the intent of the Supreme Court. The Supreme Court, he said, “mandated a meaningful judicial process in which the government would be called to account; Uthman says judges should not require much in the way of an answer.”

The other problem for Uthman, and for the majoriity of the other prisoners who have lost their habeas petitions (22 out of 59 cases in total), is that all this legal maneuvering fails to address a fundamental problem with the habeas petitions that no one has ever wanted to deal with — the fact that the habeas petitions are specifically to decide whether the government is able to demonstrate, by a preponderance of the evidence, that the prisoners in question were involved with al-Qaeda and/or the Taliban, without making any distinction between them, even though one is a terrorist group, and the other was the government of Afghanistan at the time of the 9/11 attacks.

This refusal to distinguish between two decidedly different groups — despite the limited crossover between them, which also extended to a failure to realize that those who trained in camps associated wth al-Qaeda were generally only involved in what might be called al-Qaeda’s military wing, rather than its involvement with international terrorism — is enshrined in the founding document of the “War on Terror,” the Authorization for Use of Military Force. Passed by Congress the week after the 9/11 attacks, the AUMF authorizes the President to “use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001,” or those who harbored them.

Interpreted by the Supreme Court, in Hamdi v. Rumsfeld, in June 2004, as “clearly and unmistakably” authorizing the detention of individuals, the AUMF therefore provides the rationale for holding prisoners neither as criminal suspects, to be put forward for trials, nor as prisoners of war protected by the Geneva Conventions, but as what Bush called “illegal enemy combatants,” and it crafts the fiction, maintained ever since, that terrorists and soldiers are somehow one and the same, when, if those involved in the habeas legislation were allowed to express an honest and  unguarded opinion about many of the cases, I’m sure that many of them would concede that terrorists are criminals, whereas those involved in the Taliban’s military conflict with the Northern Alliance, which morphed, after 9/11, into a global war against the US, were nothing more than soldiers, and should have been held as such according to the Geneva Conventions.

Time and again, however — and Uthman is just the latest example — these foot soldiers have been losing petitions and being slung back into Guantánamo as though they were convicted terrorists, even when they are no such thing, and, in two cases, were not even foot soldiers but a cook and a medic. Sadly, few people realize that this is what has been happening, as the mainstream media in the US has done little to interest the American public in the prisoners’ habeas corpus petitions.

However, as with my imaginary scenario with the judges, if it were possible to make a cross-section of the American public sit down for a few hours and have spelled out to them the stories of those who have been losing their habeas petitions and who may now spend the rest of their lives in Guantánamo, I’m sure that they too would realize that there’s an enormous difference between someone involved in a plot to kill hundreds or thousands of civilians on the US mainland or anywhere else in the world, and someone who attended a training camp, and may, in some way or another, have engaged in military conflict with the Northern Alliance and/or the US military in Afghanistan.

Nearly ten years after the 9/11 attacks, the time to sort out the difference between terrorists and soldiers is surely long overdue, so that people like Uthman are treated with justice, rather than the lingering effects of the hyperbole that typefied the Bush administration’s “War on Terror.” Moroever, it is also important for America itself to stop pretending that there is a magical third category of prisoner on whose heads can be poured all the pain and loss of 9/11. Prisoners are either criminal suspects, to be put on trial, or soldiers, seized in wartime, to be held as prisoners of war and protected by the Geneva Conventions.

Note: For details of all the habeas cases ruled on in the US courts, see the dedicated page, Guantánamo Habeas Results: The Definitive List, which is regularly updated when new developments are announced.

Andy Worthington is the author of The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison (published by Pluto Press, distributed by Macmillan in the US, and available from Amazon — click on the following for the US and the UK) and of two other books: Stonehenge: Celebration and Subversion and The Battle of the Beanfield. To receive new articles in your inbox, please subscribe to my RSS feed (and I can also be found on Facebook, Twitter, Digg and YouTube). Also see my definitive Guantánamo prisoner list, updated in July 2010, details about the new documentary film, “Outside the Law: Stories from Guantánamo” (co-directed by Polly Nash and Andy Worthington, on tour in the UK throughout 2011, and available on DVD here — or here for the US), my definitive Guantánamo habeas list and the chronological list of all my articles, and, if you appreciate my work, feel free to make a donation.

As published exclusively on Cageprisoners.

Last October, during “Berkeley Says No to Torture” Week, I finally met Jason, along with many other pioneering journalists, authors, activists and lawyers, and subsequently read News Junkie, admiring Jason’s humanity and his ability to address his own weaknesses. I was therefore thrilled to discover, last week, that he had been talking to David Hicks, the former Guantánamo prisoner from Australia, who was released in March 2007 after accepting a plea deal in a trial by Military Commission, and who recently published his autobiography, Guantánamo: My Journey, and that, as well as interviewing David, he had found himself deeply moved and challenged by the encounter, and had written an essay for Truthout exposing these thoughts and feelings.

That article — to my mind a unique take on how reporters address the Guantánamo story, which also includes compelling testimony from a former guard who has never spoken publicly before — is cross-posted below, and I’ll be cross-posting Jason’s interview with David soon after. Please note that this article, as with all Truthout articles, is made available for republication under a creative commons license.

My Tortured Journey With Former Guantánamo Detainee David Hicks
By Jason Leopold, Truthout, February 16, 2011

I’ve been struggling these past few weeks.

I read a book written by a former Guantánamo detainee named David Hicks titled, Guantánamo: My Journey. It’s a powerful and heartbreaking memoir and it made a profound impact on me emotionally.

I interviewed Hicks after I read his book. We spoke about a half-dozen times over the past two months. This is the first interview he’s granted since he was released from the “least worst place” in 2007.

Hicks is the Australian drifter who converted to Islam, changed his name to Muhammed Dawood and ended up at training camps in Afghanistan the US government said was linked to al-Qaeda, one of which was visited by Osama bin Laden several times. Hicks was picked up at a taxi stand by the Northern Alliance in November 2001 and sold to US forces for about $1,500. Hicks was detainee 002, [one of the first prisoners] processed into Guantánamo on January 11, 2002, the day the facility opened.

Hicks was brutally tortured. Psychologically and physically for four years, maybe longer. He was injected in the back of his neck with unknown drugs. He was sodomized with a foreign object. He spent nearly a year in solitary confinement. He was beaten once for ten hours. He was threatened with death. He was placed in painful stress positions. He was exposed to extremely cold temperatures, loud music and strobe lights designed to disorient his senses.

I’ve been obsessed with the torture and rendition program since details of it first surfaced nearly a decade ago. I’m not exactly sure why I’m so fascinated and outraged by every tiny detail, every new document dump or why I chase every new lead as if I were paparazzi trying to get a shot of Lindsay Lohan. What I do know is that there’s something about the crimes committed by the Bush administration in our name that haunts me.

I had never spoken to a former detainee before I phoned Hicks at his home in Sydney, Australia, a few days before the New Year. There was something surreal about listening to Hicks’ voice as he described his suffering in painstaking detail. Maybe it was the fact that there was a real person on the other end of the receiver and not just a name on a charge sheet. I found it incredibly difficult to separate the reporter from the human being once Hicks stopped speaking. Before I hung up the phone after our first conversation, I told Hicks I was sorry.

“I’m sorry my government tortured you, David,” I said.

“Thanks, mate,” Hicks said, his voice cracking.

What I’ve been grappling with was how to tell Hicks’ story. I’ve truly been at a loss for words. I had to dig deep to figure out why I felt it was too painful to sit in front of a blank computer screen to think about what I wanted to write. Here’s what I discovered: I empathized with Hicks and, perhaps more than anyone, I understood how the then-26-year-old ended up in Afghanistan associating with jihadists a decade ago.

Five years ago, I published my memoir, News Junkie, and, like Hicks, I too was brutally honest about my own feelings of alienation, my battle with drug and alcohol addiction, a desire for attention, a desperate need to belong and a terrible choice I made in my early 20s to ingratiate myself with a couple of made members of a New York City crime family.

Admitting that I share some things in common with Hicks scares me. It’s another reason I believe I felt paralyzed.

I wanted to approach this as a straight news story and simply report that Hicks was tortured, that he was abandoned by his country, used as a political pawn by Australia’s former Prime Minister John Howard in his bid for reelection and forced to plead guilty to a charge of providing material support for terrorism in order to finally be freed from Guantánamo. But I’ve written so many of those reports and all of them end with a shrug here, some outrage there and no one being held accountable.

So, I’ve made the decision that I would expose my own vulnerability and tell you how my interview with the man dubbed the “Australian Taliban” has weighed heavily on my mind. I still cannot comprehend what could drive a human being to torture another human being. Hicks said, at Guantánamo, “torture was driven by anger and frustration.”

“It seemed like a mad fruitless quest to pin crimes on detainees, to extract false confessions and produce so-called intelligence of value,” Hicks told me. “The guards were desensitized and detainees dehumanized. Soldiers were not allowed to engage us in conversation. They were told to address us by number only and not by name. They were constantly drilled with propaganda about how much we supposedly hated them and wanted them dead and how much they needed to hate us. On occasion, when some groups of soldiers jogged around the camp perimeters I heard them sing lyrics such as, ‘you hate us and we hate you.’ One time in the privacy of Camp Echo a male soldier broke down when we were alone repeating, ‘what have I become?’ after having arrived from an interrogation of a detainee in another camp.”

Brandon Neely, a former Guantánamo Military Policeman (MP), who escorted Hicks off the bus at Camp X-Ray the day Guantánamo opened, said some soldiers tortured detainees because they wanted revenge for 9/11. He said that’s the message that was passed down from above.

“We were told (by superior officers) all of the detainees, including Hicks, were the ones who planned 9/11 or had something to do with it,” Neely said in an interview. “We were told over and over and over that all these guys were caught fighting Americans on the front lines and at any given time if we turned our back on them they would kill us in a heartbeat. We were told that everyday before we went to work inside the camps. After a while, the attitude was, ‘who cares how we treated the detainees.’”

A day before he left Fort Hood, Texas, for Guantánamo, Neely said his unit was told “by the company commander, the colonel and platoon sergeant that these people were not Prisoners of War. They were detainees and the Geneva Conventions would not be in effect.”

George W. Bush did not formally rescind Geneva Conventions protections for “war on terror” detainees until February 7, 2002.

Neely told me a remarkable story about the hours before Hicks arrived at Camp X-Ray that underscores how impressionable he and his fellow soldiers were and how the US government conditioned its military personnel to view detainees as animals.

“When Hicks’ bus got to Camp X-Ray we were told this guy was a mercenary, he was fighting Americans and we had to be real careful around him, Neely said. “We were actually told Hicks tried to bite through the hydraulic cables on the C-130 en route to Guantánamo. So everyone was on edge.”

Neely was 21 when he was sent to Guantánamo. On June 2, 2002, his 22nd birthday, Neely received an “achievement medal” for “exceptional meritorious service while serving as a Military Policeman (MP) in support of Operation ‘Enduring Freedom’, Guantánamo Bay, Cuba.”

Nearly seven years later, Neely went public and revealed details about the abuses he witnessed and one that he participated in while he was at Guantánamo. Like Hicks, who Neely said reminded him “of a guy I would have just gone out and have a beer with,” he has been suffering all of these years. It was as if he were being tortured every time he saw or heard about a detainee being beaten or worse during the six months he worked at the prison facility. I can feel his pain. Literally.

Neely’s a cop in Houston now. He’s got a wife and three kids. He told me, “there has not been a day that goes by that I have not re-lived what I did or saw in Guantánamo.” Hicks reached out to Neely last year after he saw him on a BBC special. Neely had flown to London to meet a couple of former British detainees he used to guard and to apologize for the way they were treated. He and Hicks are pretty close now.

I asked Hicks if he could describe the facial expressions of his tormentors while he was being tortured and if he recalled how they reacted to his pain.

“Usually the guards seemed cold and indifferent,” Hicks said. “They deployed a ‘just doing my job’ attitude, such as when they chained me to the floor in stress positions or made me sleep directly on a metal or concrete floor in a very cold air-conditioned room in only a pair of shorts. However, some soldiers displayed discomfort and embarrassment. Usually guards were only used to restrain detainees, move them about, or help in the background with equipment. It was the interrogators who did the dirty work, expressing hatred and frustration. At times soldiers did participate directly in beatings, however, such as the beatings I received before I arrived in GTMO (in Afghanistan, in transit, or when I was rendered to the two naval ships before being sent to Guantánamo). These soldiers made a sport of it.”

“I was beaten by US forces the first time I saw them and realized straight away that torture was going to be a reality. It was very scary. As I say in my book, I could not help thinking of the saying, ‘like trying to get blood from a stone’ and I was afraid of becoming that stone.”

There’s a harrowing section in Hicks’ book where he describes how he had given up all hope after years of detention and abuse and planned to commit suicide.

“I was desperate; there was no other way out,” Hicks wrote.

Those words. I’ve uttered them before. I’ve written them. I know what that kind of desperation feels like. I ask Hicks if we could talk about it, but there’s silence on the other end of the receiver.

“Hello? You still there, David?” I said.

“Yeah mate.”

I didn’t press him. Maybe he was having a flashback. Perhaps he didn’t want to talk about it. I decided to end our conversation.

“Let’s catch up later in the week. We covered a lot of ground.”

“Cheers, mate,” David said and hung up.

I had a knot in my stomach. I had a hard time sleeping for the next few nights. I could not focus on anything but the images in my mind of a helpless Hicks being tormented. It made me realize that one can never comprehend the extent of someone’s pain and suffering until we hear about it first hand. I would get out of bed during those sleepless nights and walk into my son’s room and just stare at him sleeping in his crib. There was something about that image of pure innocence that was soothing to me.

One afternoon, a couple of hours after another session on the phone with Hicks, I took my son to school. As I stood in the background and watched him interact with about 30 other two-year-old boys and girls, tears began streaming down my cheeks. I had not expected to be overcome with so much emotion. I’m embarrassed admitting that I was. Unsure of what was happening at first, I touched my eyes thinking that perhaps something else was coming out of the tear ducts. I didn’t spend much time thinking about what I was feeling at that moment. But, in hindsight, I believe I was coming to terms with how we all eventually lose our innocence. Something about that seems tragic to me. It reminds me of a passage in another memoir, The Ticking Is the Bomb, by Nick Flynn, who wrote about his own obsession with the Bush administration’s torture program:

“Here’s a secret: Everyone, if they live long enough, will lose their way at some point. You will lose your way, you will wake up one morning and find yourself lost. This is a hard, simple truth.”

Not surprisingly, the Pentagon has vehemently denied Hicks’ torture claims. In 2007, as a condition of his guilty plea and release from Guantánamo, the US government forced him to sign a document stating that he had “never been treated illegally.” Hicks, who was the first detainee sentenced under the Military Commissions Act of 2006, said he is also “not allowed to challenge or collaterally attack my conviction, seek compensation or other remedies, or sue anyone for my illegal imprisonment and treatment.”

What makes Hicks’ story all the more tragic is how badly he’s been vilified by the Australian media since his memoir was published last October for having the audacity to finally reveal the details of his torture. Yet, the Australian media seems willing to accept that Howard pressured the Bush administration to charge Hicks with a war crime, because Hicks “had unexpectedly become a political threat,” according to Washington Post reporter Barton Gellman.

Gellman, author of a book on Dick Cheney titled Angler, wrote that Howard, “under pressure from home,” met with Cheney during the vice president’s trip to Sydney in February 2007, where the two discussed Iraq, and told Cheney, “there must be a trial ‘with no further delay’ for David Hicks who was beginning his sixth year at the U.S. naval prison at Guantánamo Bay.”

“Five days later, Hicks was indicted as a war criminal,” Gellman wrote. “On March 26 [2007], he pleaded guilty to providing ‘material support’ for terrorism. Shortly after Cheney returned from Australia, the Hicks case died with a whimper. The US government abruptly shifted its stance in plea negotiations, dropping the sentence it offered from 20 years in prison to nine months if Hicks would say that he was guilty.”

“Only the dramatic shift to lenience, said Joshua Dratel, one of three defense lawyers, resolved the case in time to return Hicks to Australia before Howard” faced re-election in 2007, Gellman reported.

But Hicks’ plea deal prohibited him from speaking to the media for a year. That’s how Howard dealt with this “political threat.” But justice was poetic as Howard lost his bid for another term in office.

Hicks’ plea deal, “negotiated without the knowledge of the chief prosecutor, Air Force Col. Morris Davis, was supervised by Susan J. Crawford, the convening authority over military commissions. Crawford received her three previous government jobs from then-Defense Secretary Cheney — she was appointed as his special adviser, Pentagon inspector general and then judge on the US Court of Appeals for the Armed Forces.”

Political interference in Hicks’ case, however, began even earlier. Davis, who resigned as chief prosecutor from military commissions at Guantánamo over the government’s handling of terrorism cases, revealed that a day after US officials met with the Australian ambassador to the United States in early January 2007, Defense Department General Counsel William Haynes called him up and asked, ‘how quickly can you charge David Hicks?’ even though at the time he had no regulations for trial by military commissions.”

Davis would later say that Hicks should not have been charged. Stephen Kenny, one of Hicks’ former attorneys, said that “it has always been my position that [Hicks] never committed any crime.”

“We looked at Australian law, international law and Afghani law and we were unable to identify any breach of those laws, Kenny said. The law that he eventually pleaded guilty to [material support for terrorism] was not actually an international war crime at all. In fact it was a crime that didn’t exist.”

Recently, the Australian government entered into a secret financial settlement with Mamdouh Habib, another Australian citizen abandoned by the Howard administration. Habib was arrested in Pakistan in 2001 and rendered to Egypt where he said he was brutally tortured for seven months before he ended up at Guantánamo. Habib was released in 2005 and was never charged with a crime, but he sued the Australian government after he got out, claiming it was complicit in his torture.

Hicks said if he were offered a similar financial settlement he wouldn’t turn it down. But what he really wants is the Australian government “to formally recognize that the 2006 Military Commissions Act was unfair” and designed simply to obtain guilty pleas.

“The Australian government has acknowledged that I have never hurt anyone or committed a crime under Australian law, so the least they can do is formally recognize my conviction as null and void,” Hicks said.

Although the Pentagon and the Australian governments continue to deny Hicks was tortured, at least one former Guantánamo military guard said he was.

“David Hicks was tortured, no doubt,” said Albert Melise, who has never spoken publicly before, in several video chats we had via Skype. “Solitary confinement is torture and I think what it did to David’s mind is torture. Would you want to be in a windowless room 23 hours a day?”

But Melise said he didn’t witness any of it. He only knows what Hicks told him. But, “being a cop and having experience separating what’s true and false,” he believes Hicks was being truthful. However, Melise also thinks Hicks, to some extent, “confused the stories of others who told him of their torture and made it his own.”

“His torture did not happen when I reached his camp,” Melise said. “He cut deals so it would stop. But I can tell you that David is one of those people who is easily manipulated. He was an easy target for the interrogators. They knew they could break him mentally and physically and they did.”

Melise, 40, was a Massachusetts Housing Authority officer when his Army reserve unit was activated and he was shipped off to Guantánamo to work as an MP.

Melise’s job duties called for him to escort detainees held in Camp Delta to their interrogations where he would “chain them down” to the floor or chair “knowing what he’s going to go through.”

The detainees sat there for hours in stressful positions while Melise stood behind a one-way mirror and watched their interrogations and waited for it to come to an end. He was present when detainees were slapped, when the temperature in the interrogation room was turned down real low and the volume on the music was turned up to excruciatingly loud levels and when the strobe lights were flicked on, part of the standard operating procedure designed to break the detainees and make them feel as uncomfortable as possible.

“That’s torture,” Melise said.

But I wanted Melise to tell me what happened in those rooms after the interrogators started questioning the detainees.

“Please don’t ask me about those things,” Melise said. “I saw a lot and I still have nightmares over it. I’ve seen these guys cry.”

I wondered if Melise bore witness to any of the horrific pictures my mind created during that split-second gap in our conversation.

“O.K. I understand,” I told Albert. “I won’t go there. I’m so sorry.”

“I’m a good soul and I was put in a horrible place,” Albert said.

“I know you are,” I told him. “Well, how about this. Can you tell me what you saw in the detainees’ eyes?”

“Sadness,” Melise said. “Like they could not believe the Americans are putting them through that. It was an emotional look. I’ll never forget it.”

Melise hated his job. He started drinking.

“Bacardi 151,” he said. “Two bottles a night.”

He said, “when you see people broken down so much you tend to drink a little to cope with what you’re seeing. I couldn’t deal with what they were putting me through.”

Melise said “fake” detainees were planted at Camp Delta to try and gather intelligence from the “real” detainees. He said he knew they were “fake” because they were “placed in cells for two or three months and then they would pretend to be going to another camp for interrogations.” But, “I would see them shopping, dancing or ordering a sandwich or hanging out at McDonald’s during that time.” Then the “fake” detainees would return to their cells.

He said detainees were also bribed with prostitutes as an incentive to get them to work as agents for the US government. He said there was a camp at Guantánamo that just housed children, some of who were as “young as 12 and over 8″ years old, called Camp Iguana.

“One of my buddies worked there,” Melise said. “Sick.”

There was also a camp where CIA interrogators worked out of called Secret Squirrel.

Eventually, Melise asked for a transfer.

“I begged them to get me out of there,” Melise said. “I just couldn’t take it anymore.”

“Albert, do you know what would make a human being torture another human being?” I asked him.

“I don’t have the answer,” he said, shaking his head. “It takes a really disturbed individual to torture someone. That’s not me. I didn’t sign up for that. I couldn’t live with myself and I couldn’t drink it away.”

So, Melise was transferred to Camp 4 for a few weeks and then landed at Camp Echo. That’s where he met Hicks and detainees from the UK who have since been released like Moazzam Begg or “Mo,” which is how Melise referred to him.

“Mo once cried in front of me and said he should become Christian,” said Melise, who has frequent Skype chats with Begg now. “I told him to tighten up and stay with your heart. Fuck what’s happening now. You’ll pull through. I said ‘don’t question your faith. Don’t think you need to change.’ He once told me I was not like the other soldiers, something shined in me that he could not explain.”

At Camp Echo, Melise said he “redeemed” himself.

“I let [the detainees] out of their cells and just let them talk and hang out,” he said. “I knew it would help them mentally. I knew it would help them cope with many things they had gone through. I also gave up what I had. I gave them normal food from my lunch to eat, cigarettes, protein bars, whatever was mine was theirs. I could have gone to prison myself for doing that, believe me. But I know I did the right thing.”

“Why did you do that?” I asked.

“For sympathetic reasons,” he said. “Because I sat in on interrogations. I wanted to give them a sense of humanity. Nobody deserves to be treated like that. They were not the ‘worst of the worst,’” a description placed upon the detainees by former Secretary of Defense Donald Rumsfeld. “I’m an ex-cop and I can tell whose a criminal and who isn’t and a lot of these detainees I met were not terrorists.”

Melise told me he “likes getting this stuff off my chest” and I wanted to tell him that listening to him gave me a sense of hope and made me feel like maybe the dearth of compassion is not as widespread as I originally thought. But I held back.

Melise wanted Hicks to feel like he was back home in Australia, so he would sneak his DVD player into Hicks’ cell and watch movies with him, such as “Mad Max,” which starred Mel Gibson, and “Snatch” and “Lock, Stock & Two Smoking Barrels,” directed by Madonna’s ex-husband, Guy Ritchie.

“I figured if he heard Mel Gibson’s accent he would feel like he was back in Australia,” Melise said.

I sent an email to Hicks asking if he remembers Melise.

“I remember him well because he did what he could in that controlled high security environment to help slow the deterioration of my sanity for the few months I spent with him,” Hicks said. “I hope to gather enough funds so I can fly [Melise and Neely] to Australia to thank them personally and show my gratitude for their friendship and trust. I would like to show them my hospitality and my country and to show them how much I appreciate their past kindness and current bravery.”

Melise, who is married with a wife and son, is now studying to be a nurse “so I can really help people in the future.” He recently re-enlisted in the Army reserves for another three years.

I was about to end my interview with Melise, but I had one last question.

“Do you think David is a terrorist?”

“No,” Melise said. “I don’t think he’s a terrorist. I plan on visiting him one day. Why would I do that if I thought he was a terrorist?”

Melise got up from his chair and walked out of sight. He shouted, “Sit tight!” He said he wanted to show me something. It’s a letter. He held it up against the video camera on his computer.

“I took this with me when I left Guantánamo in ’04,” Melise said. “It’s a letter David wrote that he asked me to send to his father.”

Melise never sent it. It was too risky, he said.

But he faxed a copy of it to me. Letters to and from detainees were reviewed by military personnel and were often redacted. But this six-page letter, written in April 2004 as Hicks’ legal team was challenging the legality of the military commissions, is clean. It clearly shows the psychological torture Hicks had endured and how he was being coerced into pleading guilty to crimes the US government knew he did not commit. The letter is addressed to Hicks’ father, Terry Hicks, who waged a campaign in Australia and the US to raise awareness about his son’s plight.

Hicks wrote that he owed his life to Melise. He said the letter he sent to his father “is very important because it’s the first and probably only time I will be able to tell you the truth of my situation.”

“Before I start I want you to know that the negative things I am going to say has nothing to do with the MP’s that are watching me,” Hicks wrote. “Some of them are marvelous people who have taken risks to help improve my day to day living. It’s because of such people that I have kept my sanity and still have some strength left. In the early days before I made it to Cuba I received some harsh treatment in transportation including mild beatings (about 4). One lasted for 10 hours. I have always cooperated with interrogators. For two years they had control of my life in the camps. If you talk and just agree with what their [sic] saying they give you real food, books and other special privileges. If not they can make your life hell. I’m angry these days at myself for being so weak during these last two years. But I’ve always been so desperate to get out and to try to live the best I can while I’m here …”

“I’m sick of writing you letters saying how good it is here. I’ve always done that because I’m afraid of what the authority’s [sic] may do to me. If I told you the reality they wouldn’t give you the information. I want to be able to make as much noise as possible. To let people know of what’s really happening here.”

Hicks then predicted his own future.

“Know that if I make a deal it will be against my will,” he wrote. “I just couldn’t handle it any longer. I’m disappointed in our government. I’m an Australian citizen. If I’ve committed a crime I can be man enough to accept the consequences but I shouldn’t have to admit to things I haven’t done or listen to people falsely accuse me. We can’t let them get away with it.”

I sent Hicks the letter. He said he doesn’t recall writing it. But he intends on giving it to his father.

“How were you able to survive?” I asked Hicks.

“I survived because I had no choice, as many of us may unfortunately experience at some time in our lives,” he said. “It was a psychological battle, a serious and dangerous one. It was a constant struggle not to lose my sanity and go mad. It would have been so easy just to let go: it offered the only escape.”

Like Melise, however, Hicks said he, too, still has flashbacks. And like Melise, Hicks said, “it’s the dreams that are the worst.”

“I see myself having to begin the long process of imprisonment again accompanied with vivid feelings of hopelessness and no knowledge of the future or how long it will last,” Hicks said. “The other dreams consist of gruesome medical experimentations too horrible to describe. Losing my personality, my identity, memories and self is much more frightening to me than any physical harm. It is these dreams that are the most common and terrifying.”

Hicks isn’t a practicing Muslim anymore. A couple of years ago, he got married — to a human rights activist named Aloysia. He also has a job working as a landscaper.

He said counseling has helped him, “but the passing of time has been just as helpful.”

“Being exposed to such a consuming environment for five and a half years leaves a stain that cannot be removed overnight,” Hicks said. “It will take longer to reverse the consequences but even so, some experiences, especially one so prolonged, can never be entirely forgotten.”

I had no idea how this story would end or what I would discover when I finally sat down at the computer and started to type. I now know that torture not only permanently scars the torture victim, but it also leaves its mark on everyone who comes in contact with that person.

Editor’s Note: Hicks’ book is not available for sale in the US. However, it can be ordered from online bookshops in Australia.

Andy Worthington is the author of The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison (published by Pluto Press, distributed by Macmillan in the US, and available from Amazon — click on the following for the US and the UK) and of two other books: Stonehenge: Celebration and Subversion and The Battle of the Beanfield. To receive new articles in your inbox, please subscribe to my RSS feed (and I can also be found on Facebook and Twitter). Also see my definitive Guantánamo prisoner list, updated in July 2010, details about the new documentary film, “Outside the Law: Stories from Guantánamo” (co-directed by Polly Nash and Andy Worthington, on tour in the UK throughout 2011, and available on DVD here), my definitive Guantánamo habeas list and the chronological list of all my articles, and, if you appreciate my work, feel free to make a donation.

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

According to recent news reports, the Obama administration is getting ready to conduct a new series of Military Commissions trials for a number of prisoners being held at the U.S. torture camp at Guantánamo. These Military Commissions, begun under George W. Bush, basically deprive defendants of all rights, and have been part of the whole new level of fascistic repressive measures since 9/11. Revolution talked about the background and the new developments around the Military Commissions with Andy Worthington, author of The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison (published by Pluto Press, distributed by Macmillan in the U.S.). His website is here.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Andy Worthington is the author of The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison (published by Pluto Press, distributed by Macmillan in the US, and available from Amazon — click on the following for the US and the UK) and of two other books: Stonehenge: Celebration and Subversion and The Battle of the Beanfield. To receive new articles in your inbox, please subscribe to my RSS feed (and I can also be found on Facebook and Twitter). Also see my definitive Guantánamo prisoner list, updated in July 2010, details about the new documentary film, “Outside the Law: Stories from Guantánamo” (co-directed by Polly Nash and Andy Worthington, and available on DVD here), my definitive Guantánamo habeas list and the chronological list of all my articles, and, if you appreciate my work, feel free to make a donation.

That organization is the Pentagon, and its habit of issuing announcements regarding the alleged recidivism of prisoners released from Guantánamo — without documentation to back up its claims — has also exposed a startling lack of journalistic integrity in the mainstream media. Although the Pentagon had regularly drip-fed alarmist reports about recidivism into the media during the Bush administration, which were picked up and reported despite their lack of sources and their often contradictory nature — as explained in a detailed report by researchers at the Seton Hall Law School in New Jersey (PDF) — the propaganda war has become noticeably more bold under President Obama.

The first report under Obama, issued on May 21, 2009, gained high-profile approval when, to its shame, the New York Times uncritically published a front-page story entitled, “1 In 7 Detainees Rejoined Jihad, Pentagon Finds,” in which Elisabeth Bumiller, relying on an advance copy of a Pentagon report, stated that “74 prisoners released from Guantánamo have returned to terrorism, making for a recidivism rate of nearly 14 percent.”

In fact, the Pentagon had only provided names and “confirmation” for 27 of the 74 prisoners cited in the report, and there were doubts about the recidivism of some of the 27 prisoners named in the report, as was revealed a week later, when the Times allowed Peter Bergen and Katherine Tiedemann of the New America Foundation to write an op-ed criticizing Bumiller’s article, in which they concluded, from an examination of the report (PDF), that a more probable figure for recidivism — based on the fact that there were “12 former detainees who can be independently confirmed to have taken part in terrorist acts directed at American targets, and eight others suspected of such acts” — was “about 4 percent of the 534 men who have been released.”

The Times later apologized by publishing an Editor’s Note, noting that its original article should have stated that “about one in 20 of former Guantánamo prisoners described in the Pentagon report were now said to be engaging in terrorism,” but as I explained at the time, the damage had already been done, as it led directly to the following assertion by former Vice President Dick Cheney, discussing the prisoners still held at Guantánamo:

Keep in mind that these are hardened terrorists picked up overseas since 9/11. The ones that were considered low-risk were released a long time ago. And among these, we learned yesterday, many were treated too leniently, because 1 in 7 cut a straight path back to their prior line of work and have conducted murderous attacks in the Middle East.

More importantly, the Times story conveniently appeared on the front page on the day that President Obama delivered a major national security speech at the National Archives, reviving the much-criticized Military Commissions at Guantánamo (which he had suspended on his first day in office), and also alerting the world to his depressing plans to hold some prisoners at Guantánamo indefinitely without charge or trial. These developments were profoundly dispiriting to those who hoped that Obama would thoroughly reverse and repudiate the Bush administration’s innovations regarding detention policies and trials for prisoners seized in the “War on Terror.”

In January 2010, the Pentagon again issued a warning about recidivism, this time the day after President Obama announced a moratorium on releasing any Yemenis cleared for release from Guantánamo by his own interagency Guantánamo Review Task Force. The impetus for this unprincipled moratorium was the hysterical response to the news that the failed Christmas Day plane bomber, Umar Farouk Abdulmutallab, had been recruited in Yemen, and while it may have suited Obama to have the Pentagon release a new recidivism claim to bolster his moratorium (as it may have suited him in May 2009 to have a report released when he was laying down tough new policies that enraged progressive supporters), it also remains possible that the Pentagon was conducting its own game.

Certainly, the claims issued in January last year showed every sign of having been whipped up in a hurry. Instead of a report, the Pentagon briefed reporters that the recidivism rate was now 1 in 5 of the released prisoners, without providing any back-up information whatsoever, and then watched contentedly as one media outlet after another parroted their comments. Reuters uncritically ran an article entitled, “One in 5 ex-Guantánamo detainees joining militants,” (which it later changed to “US believes 1 in 5 ex-detainees joining militants”), and other media outlets soon joined in, including the New York Times (in an article that is no longer available online), in which the discredited claims of May 2009 were again repeated in the following line: “The rate of those returning to militancy was first reported early last year to be 11 percent. In April it was 14 percent.”

In early December, another “report” — actually a two-page statement issued by the Office of the Director of National Intelligence, “consistent with direction in the Fiscal Year 2010 Intelligence Authorization Act” — claimed that the number of recidivists was now 1 in 4 of the prisoners released. As I explained at the time:

[O]f the 598 detainees released from Guantánamo, “The Intelligence Community assesses that 81 (13.5 percent) are confirmed and 69 (11.5 percent) are suspected of reengaging in terrorist or insurgent activities after transfer.” The assessment also noted, “Of the 150 former GTMO detainees assessed as confirmed or suspected of reengaging in terrorist or insurgent activities, the Intelligence Community assesses that 13 are dead, 54 are in custody, and 83 remain at large.” It was also noted that, of the “66 individuals transferred since January 2009″ — under President Obama, in other words — “2 are confirmed and 3 are suspected of reengaging in terrorist or insurgent activities.”

As I also explained:

The assessment’s own claims were amplified in subsequent headlines, which failed to distinguish between “confirmed” and “suspected” terrrorists or insurgents. Fox News ran with “25 Percent Recidivism at Gitmo” … [and] although the [New York] Times‘ headline was the modest, “Some Ex-Detainees Still Tied to Terror,” the article itself stated that the report “offered the most detailed public accounting yet of what the government says has happened to former Guantánamo detainees, a matter that has been the subject of heated political debate.”

This, again, was nonsense, as there was no “detailed public accounting,” and it was not until last week, on the 9th anniversary of the opening of Guantánamo, that Peter Bergen, Katherine Tiedemann and Andrew Lebovitch of the New America Foundation issued their own report challenging this latest propaganda, accompanied by an article in Foreign Policy, in which they concluded, based on a sober assessment of available public documentation, that:

[O]ur analysis of Pentagon reports, news stories, and other publicly available documents concerning the 600 or so released detainees suggests that when threats to the United States are considered, the true rate for those who have taken up arms or are suspected of doing so is more like 6 percent, or one in 17. This figure represents an increase of 2 percentage points from our previous analysis from July 2009, which indicated that barely 4 percent of those released from the prison in Cuba were confirmed or suspected of engaging in terrorist or insurgent activities against the United States or its interests.

This latest report by the New America Foundation was made available to reporters prior to its publication in Foreign Policy at a panel discussion, “Nine Years of Guantánamo: What Now?” that I had organized at the New America Foundation on the afternoon of January 11, and it prompted questions from the audience, and responses that were noted by Dan Froomkin of the Huffington Post. Froomkin explained that I was “concerned at how the recidivism figures were ‘conjured up out of nowhere’ but treated as fact by many mainstream media outlets,” and that I described it as “bad journalism,” and that is certainly the position I have always maintained.

He also picked up on comments made by Tom Wilner, the former attorney for the Kuwaiti prisoners at Guantánamo, who represented the Guantánamo prisoners during their habeas corpus claims in the Supreme Court in 2004 and 2008. Wilner directly addressed another problem with the recidivism claims — the US authorities’ failure to consider whether some of the relased men confirmed to have engaged in terrorist activity had not “returned” to a battlefield, but had actually been radicalized by their experience in US custody, and his conclusions were stark.

Speaking of Abdullah al-Ajmi, a former client of his who died as a suicide bomber in Iraq in 2008, two and a half years after his release, Wilner explained, “I was absolutely convinced that he did not do anything wrong, but I was concerned about his release, because he had become furious. He had turned, at Guantánamo, into this sort of madman.”

This chimes with comments made in June last year by Abdulrahman al-Hadlaq, the director of the Saudi rehabilitation center responsible for re-educating prisoners released from Guantánamo, along with suspected or confirmed militants seized within the country and in other locations. Al-Hadlaq actually claimed that “about 20 per cent of the 120 repatriated former prisoners [from Guantánamo] have returned to radical activity” (whereas the New America Foundation mentioned only 15 confirmed or suspected Saudis in its report), but, crucially, in explaining why this rate was double that of the other men who passed through the program, he told reporters, “Those guys from other groups didn’t suffer torture,” unlike the men held at Guantánamo, adding, “Torturing is the most dangerous thing in radicalisation. You have more extremist people if you have more torture.”

As the gulf between the 1 in 4 recidivists claimed by the government clashes with the figure of 1 in 17 reported by the New America Foundation, it may be, as the authors of last week’s report conceded, that “there might be some additional former detainees who are suspected or confirmed of engaging in terrorism or insurgent activities who we could not identify in the publicly available sources.”

Those, however, cannot reasonably be expected to turn a figure of 48 “recidivists” into 150, and in addition, as I highlighted above, all of these assessments fail to consider whether the men in question are indeed recidivists, or whether it was their treatment at the hands of their US captors that prompted what Tom Wilner described, in Abdullah al-Ajmi’s case, as fury and madness.

While supporters of Guantánamo still follow Dick Cheney’s line, critics of the prison’s ongoing existence will be paying close attention to the circumstances of the men’s radicalization, and will not be at all surprised to discover that the United States cannot, in all honesty, claim that, in some instances, what happened to the men after their release from Guantánamo was not determined by what happened to them while they were held — and brutalized — in US custody.

Andy Worthington is the author of The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison (published by Pluto Press, distributed by Macmillan in the US, and available from Amazon — click on the following for the US and the UK) and of two other books: Stonehenge: Celebration and Subversion and The Battle of the Beanfield. To receive new articles in your inbox, please subscribe to my RSS feed (and I can also be found on Facebook and Twitter). Also see my definitive Guantánamo prisoner list, updated in July 2010, details about the new documentary film, “Outside the Law: Stories from Guantánamo” (co-directed by Polly Nash and Andy Worthington, and available on DVD here), my definitive Guantánamo habeas list and the chronological list of all my articles, and, if you appreciate my work, feel free to make a donation.

As published exclusively on the website of the Future of Freedom Foundation, as “Pentagon Propaganda on Gitmo Prisoners Releases.”

Neither of these developments had been reported prior to the release of the cables by WikiLeaks, and they are therefore extremely significant in establishing how long Bush administration officials were involved in fending off torture investigations overseas, and how eagerly Obama administration officials took up this role.

Suppression of a torture inquiry in Germany

In the first cable, sent to Secretary of State Condoleezza Rice from Berlin on February 6, 2007, by John M. Koenig, the senior career diplomat at the US Embassy in Berlin, following discussions with Rolf Nikel, the deputy national security advisor for Germany, Koenig explained how he emphasized to Nikel that “issuance of international arrest warrants would have a negative impact on our bilateral relationship.” In addition, he “reminded Nikel of the repercussions to US-Italian bilateral relations in the wake of a similar move by Italian authorities last year” (in the case of Abu Omar, discussed below), and “pointed out that our intention was not to threaten Germany, but rather to urge that the German Government weigh carefully at every step of the way the implications for relations with the US.”

What makes this thinly-veiled threat seem particularly harsh is the fact that El-Masri is the clearest case of mistaken identity in the whole of the “War on Terror.” Confused with another man of the same name who had liaised with the 9/11 kidnappers, he was seized in Macedonia as he tried to enter the country on a vacation on New Year’s Eve, 2002, and was then sent to the CIA’s notorious “Salt Pit” prison in Afghanistan, where he was “repeatedly beaten, drugged, and subjected to a strange food regime that he supposed was part of an experiment that his captors were performing on him” (as described by Scott Horton of Harper’s), until the CIA realized it had made a mistake, and reluctantly set him free, dropping him off in Albania and obliging him to make his own way home, and to try to put together the pieces of his shattered life.

Suppression of a torture inquiry in Spain

The second cable, dated April 17, 2009, and sent from Madrid, explained how US officials had manipulated Spanish officials to suppress an investigation into six former Bush administration lawyers — Attorney General Alberto Gonzales, David Addington, former chief of staff and legal adviser to Vice President Dick Cheney, William Haynes, the Pentagon’s former general counsel, Douglas Feith, former undersecretary of defense for policy, Jay Bybee, the former head of the Justice Department’s Office of Legal Counsel, and John Yoo, a former official in the Office of Legal Counsel — for “creating a legal framework that allegedly permitted torture.” A Spanish human rights group had filed the complaint the month before, contending that Spain had a duty to open an investigation under its “universal jurisdiction” law.

The cable reveals how US officials immediately began sounding out Spanish officials, and how, on April 15, an apparently unlikely figure for the Obama administration to embrace — Sen. Mel Martinez (R-Fla.), who had recently been chairman of the Republican Party — attended a meeting between the US embassy’s charge d’affaires and the acting Spanish foreign minister, Angel Lossada, at which the Americans, repeating the same threatening language used in Germany in 2007, “underscored that the prosecutions would not be understood or accepted in the US and would have an enormous impact on the bilateral relationship” between Spain and the United States.

As the cable decribed it, “Lossada responded that the [Spanish government] recognized all of the complications presented by universal jurisdiction, but that the independence of the judiciary and the process must be respected.” However, he added that the government “would use all appropriate legal tools in the matter,” and that, although “it did not have much margin to operate,” would advise the Spanish Attorney General, Cándido Conde-Pumpido, that “the official administration position was that the [government] was ‘not in accord with the National Court.’”

The next day, Attorney General Conde-Pumpido “publicly stated that prosecutors will ‘undoubtedly’ not support [the] criminal complaint,” adding that he would “not support the criminal complaint because it is ‘fraudulent,’ and has been filed as a political statement to attack past [US government] policies.” He added that, “if there is evidence of criminal activity by [US government] officials, then a case should be filed in the United States.” In the cable, officials at the US embassy in Madrid congratulated themselves for their successful involvement in the case, noting that “Conde Pumpido’s public announcement follows outreach to [Spanish government] officials to raise [the US government's] deep concerns on the implications of this case.”

This was not quite the end of the story, as Conde-Pumpido had specifically taken aim at Investigating Judge Baltasar Garzón, “a world-renowned jurist,” who, as David Corn explained in an article for Mother Jones, “had initiated previous prosecutions of war crimes and had publicly said that former President George W. Bush ought to be tried for war crimes.” Garzón pressed ahead with the prosecution in September 2009, but when he ran into domestic problems, triggered by his enthusiasm for investigating war crimes committed under General Franco, the case was assigned to another judge, and the trail has since gone quiet. As David Corn explained, “The Obama administration essentially got what it wanted. The case of the Bush Six went away.”

Supression of torture inquiries in the US — and an unexpected conviction in Italy

As a result of these revelations, it is clear that the US government — under Bush and Obama — has been largely successful in preventing the prosecution of anyone involved in the horrendous human rights abuses initiated in the “War on Terror,” not just abroad, but also in the US. In the last year, fulfilling his “belief that we need to look forward as opposed to looking backwards,” which he expressed in January 2009, the week before he took office, President Obama has presided over the whitewash of a damning internal Justice Department report into John Yoo and Jay S. Bybee (who wrote and approved the notorious “torture memos” of August 2002, which attempted to redefine torture, so that it could be used by the CIA), and has cynically resorted to manipulating the little known and little used “state secrets” privilege to prevent the merest whisper of evidence regarding the torture of foreign prisoners to be discussed in a US court.

One unexpected exception to this global clampdown is Italy, where 22 CIA operatives and a US Air Force Colonel were convicted in absentia, in November 2009, for their part in the kidnapping, in broad daylight in a street in Milan on February 17, 2003 of the cleric Abu Omar, who was then rendered to Egypt, where he was subjected to horrific torture. The US government, of course, refused to allow these operatives to be extradited to Italy to face justice, but the ruling remains a permanent black mark against the Bush administration, which can never be washed away or concealed, and the entire sordid story has recently been covered, in extraordinary detail, by Steve Hendricks in his book, A Kidnapping in Milan: The CIA on Trial.

Trouble ahead in Spain, Germany, Macedonia, Lithuania, Poland and the UK

Moreover, it may be that, despite the success of the US efforts in Germany and Spain, further troubles lie ahead in both countries. In May 2010, Spain picked up where Germany left off regarding the prosecution of the thirteen CIA agents responsible for the torture of Khaled El-Masri, when prosecutors attached to the Audiencia Nacional in Madrid asked a judge to issue an order for the agents’ arrest, and, as Scott Horton also reported at the time, “A criminal proceeding relating to the kidnapping and torture of El-Masri is also underway in Germany.”

In addition, in 2009, as Amrit Singh of the Open Society Justice Initiative explained in a recent article on the Huffington Post, the OSJI filed an application on El-Masri’s behalf against the Macedonian government before the European Court of Human Rights. Singh continued:

In October 2010, the European Court communicated the case to the Macedonian government. This is a significant development, as only about ten percent of all cases brought before the European Court get communicated. Perhaps even more significant is the fact that the European Court has asked the Macedonian government a set of pointed questions, including whether agents of the Macedonian government detained El-Masri and subjected him to torture or cruel inhuman or degrading treatment; whether Macedonian government agents handed him over to a CIA rendition team; whether the Macedonian government was aware that El-Masri faced a real risk of being subjected to torture or cruel inhuman or degrading treatment if transferred to the Salt Pit; and whether Macedonia had conducted an effective official investigation of this case.

In addition, it is possible that further problems — which seem already to have gone beyond the reach of US diplomatic bullying — relate to investigations in Lithuania, Poland and the UK.

As Amnesty International noted in its recent report, “Open secret: Mounting evidence of Europe’s complicity in rendition and secret detention,” Lithuania, whose role as the host of a secret CIA prison in Europe — along with Poland and Romania — was most recently exposed in a United Nations report on secret detention, “has admitted that two secret prisons existed.” Significantly, “The prisons were visited in June 2010 by a delegation from the European Committee for the Prevention of Torture, the first visit by an independent monitoring body to a secret CIA prison in Europe,” and a criminal investigation is ongoing.

Although Romania continues to deny hosting a secret prison, it is implicated in documents issued by Poland’s Border Guard Office in July 2010, which, as I explained in an article at the time, provided, for the first time, “details of the number of prisoners transferred by the CIA to a secret prison in Poland between December 5, 2002 and September 22, 2003, and, in one case, the number of prisoners who were subsequently transferred to a secret CIA prison in Romania.” The revelations led immediately to claims that former Prime Minister Leszek Miller and former President Aleksander Kwasniewski “may face war crime charges for agreeing to host the facility,” and in September, as Amnesty described it, “the prosecutor’s office confirmed that it was investigating claims by Abd al-Rahim al-Nashiri [one of 14 "high-value detainees eventually transferred to Guantánamo, in September 2006], that he was held in secret in Poland.” Moreover, al-Nashiri “was granted ‘victim’ status in October 2010, the first time a rendition victim’s claims have been acknowledged in this context.”

In the UK, British complicity in US torture has been acknowledged, through the deliberations of judges, since August 2008, when two high court judges, Lord Justice Thomas and Mr. Justice Lloyd Jones, found that the British government had been involved in “wrongdoing” in the case of Binyam Mohamed, a British resident who spent over two years being tortured in Pakistan, Morocco and the CIA’s “Dark Prison” in Kabul, before he was sent to Guantánamo. Mohamed was released in February 2009 — in the hope, shared by both the British and the American governments, that his release would shut down any further interest in his case — but in fact Lord Justice Thomas and Mr. Justice Lloyd Jones continued to fight against foreign secretary David Miliband’s refusal to allow them to release a summary of documents provided by the US, relating to Mohamed’s treatment by US agents in Pakistan.

Finally in February this year, 18 months after their initial ruling, the Court of Appeal ordered the documents to be released, and it was finally revealed that the summary described a range of techniques, which, in the judges’ opinion, “could readily be contended to be at the very least cruel, inhuman and degrading treatment by the United States authorities,” including “continuous sleep deprivation,” combined with “threats and inducements,” including the threat of “disappearing.” As the judges also explained, “the stress brought about by these deliberate tactics” was “causing him significant mental stress and suffering,” to the extent that he was being “kept under self-harm observation.”

Although a Metropolitan Police investigation was launched into Mohamed’s allegations, this investigation recently concluded with an announcement that there was insufficient evidence to prosecute the MI5 officer, known as Witness B, “for any criminal offence arising from the interview of Binyam Mohamed in Pakistan on 17 May 2002.”

However, the larger picture of British complicity in torture has refused to go away. Three weeks ago, the British government announced that it had reached a substantial financial settlement with 15 former Guantánamo prisoners — and with one man, Shaker Aamer, who is still held — to staunch the flow of dangerous documents being released as part of a civil claim for damages brought by a number of former prisoners. These had already revealed uncomfortable truths about the complicity in torture of former Prime Minister Tony Blair and former foreign secretary Jack Straw, and although David Cameron, the Prime Minister of the new coalition government, hopes to prevent any further damning revelations emerging, by announcing that a judicial inquiry into British complicity in torture will be held, directed by Sir Peter Gibson, who was previously responsible for overseeing the conduct of the security services, it is by no means certain that the inquiry will be able to halt further revelations, some of which may well involve the US.

It may be that further documents in WikiLeaks’ cache of diplomatic cables deal with the torture problems encountered in the UK since 2008, and with some of the other cases mentioned above, and it is also worth reflecting that, for the foreseeable future, diplomats may find it harder than before to exert pressure to suppress evidence of US torture, having suffered something of a hammer blow to their credibility through the documents released to date.

As a result, this is probably a good time for those in other countries who wish to hold the US government accountable for torture to press ahead with their claims and their cases, and if this is so, then on this point alone WikiLeaks’ disclosures will have been invaluable.

Andy Worthington is the author of The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison (published by Pluto Press, distributed by Macmillan in the US, and available from Amazon — click on the following for the US and the UK) and of two other books: Stonehenge: Celebration and Subversion and The Battle of the Beanfield. To receive new articles in your inbox, please subscribe to my RSS feed (and I can also be found on Facebook and Twitter). Also see my definitive Guantánamo prisoner list, updated in July 2010, details about the new documentary film, “Outside the Law: Stories from Guantánamo” (co-directed by Polly Nash and Andy Worthington, 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.

As published exclusively on the website of the Future of Freedom Foundation, as “Wikileaks: Suppressing the Investigation of Torture.” Cross-posted on The Public Record, The World Cant Wait and Uruknet. Also see the link on the website of the Center for Constitutional Rights.

As has been clear for many years, since prisoners and former prisoners began speaking about the conditions of their confinement, medical and psychiatric personnel were intimately involved in a regime that involved withholding medical treatment for those who refused to “cooperate” with their interrogators — in other words, by providing false confessions — and the entire interrogation program — the one based on torture and coercion rather than the one favored by the law enforcement agencies, who stuck to non-violent rapport-building techniques — was directed by psychologists from the SERE program (Survival, Evasion, Resistance, Escape) taught in US military schools, which involved using torture techniques to train military personnel to resist interrogation if captured, and which was reverse-engineered for use in the “War on Terror.”

These techniques — and the chilling theory of “learned helplessness” that underpinned it, which was designed to destroy the minds of prisoners so thoroughly that they became utterly dependent on their jailers — were intended to “break” prisoners so that they would confess, but it should also have been obvious that they would most effectively secure false confessions, rather than anything resembling the truth. For some involved in the program, this was not obvious — and this blindness to reality remains a problem that afflicts all those who still argue that the use of torture is a valuable tool — but for others the production of false confessions was very useful indeed.

This can be seen in particular in a false confession extracted from Ibn al-Shaykh al-Libi, the head of an Afghan training camp, who was rendered to Egypt, where he was tortured until he confessed that Saddam Hussein had met al-Qaeda representatives to discuss the use of chemical and biological weapons. Al-Libi later retracted his false confession — before he was eventually flown back to Libya, where, last May, he died, allegedly by committing suicide in prison — but this was of no concern to Dick Cheney, who used his tortured lies to justify the invasion of Iraq in March 2003.

Beyond this specific example of the use of torture to extract false confessions to justify an illegal war, it has also become apparent that the detention program in Guantánamo, and in the “high-value detainee” program in the CIA’s secret prisons, involved human experimentation. This came to light prominently in “Experiments in Torture: Human Subject Research and Evidence of Experimentation in the ‘Enhanced’ Interrogation Program,” a report published by Physicians for Human Rights last June, and another important part of the story emerged in October, when the journalist Jason Leopold and the psychologist and blogger Jeff Kaye (who has spent many years placing the “War on Terror” detention and interrogation policies in the wider context of CIA experimentation since the 1950s) published an article on Truthout entitled, “Wolfowitz Directive Gave Legal Cover to Detainee Experimentation Program,” revealing how the program had been given the green light by Cheney’s deputy in March 2002.

Jason and Jeff have just published another exposé for Truthout, demonstrating how every single prisoner at Guantánamo was forced to “take a high dosage of a controversial antimalarial drug, mefloquine, an act that an Army public health physician called ‘pharmacologic waterboarding.’” The article reveals another chilling aspect of Guantánamo as a laboratory for human experimentation, and also confirms what former prisoners have been stating for many years, although without the detailed evidence unearthed by Kaye and Leopold. In my book The Guantánamo Files, for example, I included the following passages, which will undoubtedly resonate with those who read the cross-posted article that follows:

Shafiq Rasul, Asif Iqbal and Ruhal Ahmed [three British citizens commonly known as "the Tipton Three"] described an incident in August 2002 when medical staff toured the cell blocks asking the prisoners if they wanted an injection, “although they wouldn’t say what it was for.” They said that most of the prisoners refused, but the medical staff then returned with an ERF team who forced them to have the injections anyway. Ahmed said that the drug made him feel “very drowsy,” and added, “I have no idea why they were giving us these injections. It happened perhaps a dozen times altogether and I believe it still goes on at the camp. You are not allowed to refuse it and you don’t know what it is for.”

Abdullah al-Noaimi [from Bahrain] told his lawyers that within his first few days at Guantánamo he “was injected with an unknown substance which made him depressed and despondent. He was unable to control his thoughts and his mind raced. He was also unable to control his body and fell to the floor.” He was then placed in isolation for three days, where medical staff administered an unknown medicine “that made him feel drunk,’ until he refused to take it any more, and on another occasion was given pills which “caused him to hear voices.” When he told his interrogators that he “felt like he was losing his mind,” their only response was, “Yeah, we know.”

Controversial Drug Given to All Guantánamo Detainees Akin to “Pharmacologic Waterboarding”
By Jason Leopold and Jeffrey Kaye, Truthout, December 1, 2010

The Defense Department forced all “war on terror” detainees at the Guantánamo Bay prison to take a high dosage of a controversial antimalarial drug, mefloquine, an act that an Army public health physician called “pharmacologic waterboarding.”

The US military administered the drug despite Pentagon knowledge that mefloquine caused severe neuropsychiatric side effects, including suicidal thoughts, hallucinations and anxiety. The drug was used on the prisoners whether they had malaria or not.

The revelation, which has not been previously reported, was buried in documents publicly released by the Defense Department (DoD) two years ago as part of the government’s investigation into the June 2006 deaths of three Guantánamo detainees.

Army Staff Sgt. Joe Hickman, who was stationed at Guantánamo at the time of the suicides in 2006, and has presented evidence that demonstrates the three detainees could not have died by hanging themselves, noticed in the detainees’ medical files that they were given mefloquine. Hickman has been investigating the circumstances behind the detainees’ deaths for nearly four years.

Interviews with mefloquine and malaria experts and a review of peer-reviewed journals and government documents show there were no preexisting cases where mefloquine was ever prescribed for mass presumptive treatment of malaria.

All detainees arriving at Guantánamo in January 2002 were first given a treatment dosage of 1,250 mg of mefloquine, before laboratory tests were conducted to determine if they actually had the disease, according to a section of the DoD documents entitled “Standard Inprocessing Orders For Detainees.” The 1,250 mg dosage is what would be given if the detainees actually had malaria. That dosage is five times higher than the prophylactic dose given to individuals to prevent the disease.

Maj. Remington Nevin, an Army public health physician, who formerly worked at the Armed Forces Health Surveillance Center and has written extensively about mefloquine, said in an interview the use of mefloquine “in this manner … is, at best, an egregious malpractice.”

The government has exposed detainees “to unacceptably high risks of potentially severe neuropsychiatric side effects, including seizures, intense vertigo, hallucinations, paranoid delusions, aggression, panic, anxiety, severe insomnia, and thoughts of suicide,” said Nevin, who was not speaking in an official capacity, but offering opinions as a board-certified, preventive medicine physician. “These side effects could be as severe as those intended through the application of ‘enhanced interrogation techniques.’”

Mefloquine is also known by its brand name Lariam. It was researched by the US Army in the 1970s and licensed by the Food and Drug Administration in 1989. Since its introduction, it has been directly linked to serious adverse effects, including depression, anxiety, panic attacks, confusion, hallucinations, bizarre dreams, nausea, vomiting, sores and homicidal and suicidal thoughts. It belongs to a class of drugs known as quinolines, which were part of a 1956 human experiment study to investigate “toxic cerebral states,” as part of the CIA’s MKULTRA mind-control program.

The Army tapped the Walter Reed Army Institute of Research (WRAIR) to develop mefloquine and it was later licensed to the Swiss pharmaceutical company F. Hoffman-La Roche. The first human trials of mefloquine were conducted in the mid-1970s on prisoners, who were deliberately inoculated with malaria at Stateville Correctional prison near Joliet, Illinois, the site of controversial antimalarial experimentation in the early 1940s.

The drug was administered to Guantánamo detainees without regard for their medical or psychological history, despite its considerable risk of exacerbating pre-existing conditions. Mefloquine is also known to have serious side effects among individuals under treatment for depression or other serious mental health disorders, which numerous detainees were said to have been treated for, according to their attorneys and published reports.

In 2002, when the prison was established and mefloquine first administered, there were dozens of suicide attempts at Guantánamo. That same year, the DoD stopped reporting attempted suicides.

By February 2002, there were at least 459 detainees imprisoned at Guantánamo. In March of that year, according to the book, “Saving Grace at Guantánamo Bay: A Memoir of a Citizen Warrior,” by Montgomery Granger, “the situation” at the prison began “deteriorating rapidly.”

“There is more and more psychosis becoming evident in detainees,” wrote Granger, an Army Reserve major and medic who was stationed at Guantánamo in 2002. “We already have probably a dozen or so detainees who are psychiatric cases. The number is growing.”

“Presumptively Treating” Malaria

Though malaria is nonexistent in Cuba, DoD spokeswoman Maj. Tanya Bradsher told Truthout that the US government was concerned that the disease would be reintroduced into the country as detainees were transferred to the prison facility in January 2002.

A “decision was made,” Bradsher said in an email, to “presumptively treat each arriving Guantánamo detainee for malaria to prevent the possibility of having mosquito-borne [malaria] spread from an infected individual to uninfected individuals in the Guantánamo population, the guard force, the population at the Naval base or the broader Cuban population.”

But Granger wrote in his book that a Navy entomologist was present at Guantánamo in January and February 2002 and during that time only identified insects that were nuisances and did not identify any insects that were carriers of a disease, such as malaria.

Nevertheless, Bradsher said the “mefloquine dosage [given to detainees] was entirely for public health purposes … and not for any other purpose” and “is completely appropriate.”

“The risks and benefits to the health of the detainees were central considerations,” she added.

But a September 13, 2002, DoD memo governing the operational use of mefloquine said, “Malaria is not a threat in Guantánamo Bay.” Indeed, there have only been two to three reported cases of malaria at Guantánamo.

The DoD memo, signed by Assistant Secretary of Defense for Health Affairs William Winkenwerder, was sent to then-Rep. John McHugh, the Republican chairman of the House Veterans Affairs Subcommittee on Military Personnel. McHugh is now Secretary of the Army.

A Senate staff member told Truthout the Senate Armed Services Committee was never briefed about malaria concerns at Guantánamo nor was the committee made aware of “any issue related to the use of mefloquine or any other anti-malarial drug” related to “the treatment of detainees.”

When questions were raised at a February 19, 2002 meeting of the Armed Forces Epidemiological Board (AFEB) about what measures the military was taking to address malaria concerns at Guantánamo, Navy Capt. Alan J. Lund did not disclose that mefloquine was being administered to detainees as a form of presumptive treatment.

Yund said the military gave detainees a different anti-malarial drug known as primaquine and noted that “informed consent” was “absolutely practiced” prior to administering drugs to detainees, an assertion that contradicts claims made by numerous prisoners who said they were forced to take drugs even if they protested. Yund did not return calls for comment.

Bradsher declined to respond to a follow-up question about who made the decision to presumptively treat detainees with mefloquine.

An April 16, 2002, meeting of the Interagency Working Group for Antimalarial Chemotherapy, which DoD, along with other federal government agencies, is a part of, was specifically dedicated to investigating mefloquine’s use and the drug’s side effects. The group concluded that study designs on mefloquine up to that point were flawed or biased and criticized DoD medical policy for disregarding scientific fact and basing itself more on “sensational or best marketed information.”

The Working Group called for additional research, and warned, “other treatment regimes should be carefully considered before mefloquine is used at the doses required for treatment.”

Still, despite the red flags that pointed to mefloquine as a high-risk drug, the DoD’s mefloquine program proceeded.

In fact, a June 2004 set of guidelines issued by the Centers for Disease Control and Prevention (CDC) says mefloquine should only be used when other standard drugs were not available, as it “is associated with a higher rate of severe neuropsychiatric reactions when used at treatment doses.”

According to the CDC, “‘presumptive treatment’ without the benefit of laboratory confirmation should be reserved for extreme circumstances (strong clinical suspicion, severe disease, impossibility of obtaining prompt laboratory confirmation).”

A CDC spokesman refused to comment about the “presumptive treatment” of malaria at Guantanamo and referred questions to the DoD.

Nevin said, if “mass presumptive treatment has been given consistently, many dozens of detainees, possibly hundreds, would almost certainly have suffered such disabling adverse events.”

“It appears that for years, senior Defense health leaders have condoned the medically indefensible practice of using high doses of mefloquine ostensibly for mass presumptive treatment of malaria among detainees from the Middle East and Asia lacking any evidence of disease,” Nevin said. “This is a use for which there is no precedent in the medical literature and which is specifically discouraged among refugees by malaria experts at the Centers for Disease Control.”

Even proponents of limited mefloquine usage are seriously questioning the logic behind the DoD’s actions. Professor James McCarthy, chair of the Infectious Diseases Division of the Queensland Institute of Medicine in Australia, who is an advocate of the safe use of mefloquine under proper safeguards, and takes it himself when traveling, told Truthout he was unaware of the use of mefloquine for mass presumptive treatment as described by the DoD, but could imagine it under certain circumstances.

However, when informed that lab tests were available and the detainees were screened for the blood product G6PD, used to determine the suitability of certain antimalarial drugs, McCarthy found the DoD’s use of mefloquine at Guantánamo difficult to understand and “hard to support on pure clinical grounds as an antimalarial.”

Treatment, Torture or an Experiment?

Another striking point about the DoD’s decision to presumptively treat mostly Muslim detainees with mefloquine beginning in 2002 is that it is the exact opposite of how the DoD responded to malaria concerns among the Haitian refugees who were held at Guantánamo a decade earlier.

Between 1991 and 1992, more than 14,000 Haitian refugees were held in temporary camps set up at Guantánamo. A large number of Haitian refugees — 235 during a four-month period — were diagnosed with malaria. But instead of presumptively treating the refugee population at Guantánamo, the DoD conducted laboratory tests first and only the individuals who were found to be malaria carriers were administered chloroquine.

Another example of how the DoD approached malaria treatment differently for other subjects is in the case of Army Rangers who returned from malarial areas of Afghanistan between June and September 2002 and were infected with the disease at an attack rate of 52.4 cases per 1,000 soldiers.

However, the Rangers did not receive mass presumptive treatment of mefloquine. They were given other standard drugs after laboratory tests, according to documents obtained by Truthout.

Nevin said the DoD’s treatment of Haitian refugees represented “a situation that arguably presented a much higher risk of disease and secondary transmission, but one which US medical experts stated at the time could be safely managed through more conservative and focused measures.”

Why did the government use the “conservative and focused” approach in treating Haitian refugees and the Army rangers, but then revert to presumptive mefloquine treatment in the case of the Guantánamo detainees, who — a month after the prison facility opened in January 2002 — were stripped of their protections under the Geneva Conventions?

According to Sean Camoni, a Seton Hall University law school research fellow, “there is no legitimate medical purpose for treating malaria in this way” and the drug’s severe side effects may actually have been the DoD’s intended impact in calling for the drug’s usage.

Camoni and several other Seton Hall law school students have been working on a report about mefloquine use on Guantánamo detainees. Their work was conducted independently of Truthout’s investigation.

A copy of the newly-published Seton Hall report, “Drug Abuse? An Exploration of the Government’s Use of Mefloquine at Guantánamo,” says mefloquine’s extreme side effects may have violated a provision in the antitorture statute related to the use of “mind altering substances or other procedures” that “profoundly disrupts the senses or the personality.”

Legal memos prepared in August 2002 by former DoJ attorneys Jay Bybee and John Yoo for the CIA’s torture program permitted the use of drugs for interrogations. The authority was also contained in a legal memo Yoo prepared for the DoD less than a year later after Secretary of Defense Donald Rumsfeld convened a working group to address “policy considerations with respect to the choice of interrogation techniques.”

In September, Truthout reported that the DoD’s inspector general (IG) conducted an investigation into allegations that detainees in custody of the US military were drugged. The IG’s report, which remains classified, was completed a year ago and was shared with the Senate Armed Services Committee.

Kathleen Long, a spokeswoman for the Armed Services Committee, told Truthout at the time that the IG report did not substantiate allegations of drugging of prisoners for the “purposes of interrogation.”

The medical files for detainee 693 [Salah al-Salami, one of the three men who died in June 2006] released in 2008 shows that, two weeks after he first started taking mefloquine in June 2002, he was interviewed by Guantánamo medical personnel and reported he was suffering from nightmares, hallucinations, anxiety auditory and visual hallucinations, anxiety, sleep loss and suicidal thoughts.

The detainee said he had previously been treated for anxiety and had a family history of mental illness. He was diagnosed with adjustment disorder, according to the DoD documents. Guantánamo medical staff who interviewed the detainee did not state that he may have been experiencing mefloquine-related side effects in an evaluation of his condition.

Mark Denbeaux, the director of the Seton Hall Law Center for Policy and Research, who conducted an independent investigation into the 2006 deaths of the three Guantánamo detainees, said in an interview “almost every remaining question here would be solved if the [detainees'] full medical records were released.”

The government has refused to release Guantánamo detainees’ medical records, citing privacy concerns in some cases, and assertions that they are “protected” or “classified” in other instances. The few medical records that have been released have been heavily redacted.

“A crucial issue is dosage” Denbeaux said. “Giving detainees toxic doses of mefloquine has mind-altering consequences that may be permanent. Without access to medical records, which the government refuses to release, the use of mefloquine in this manner appears to be grotesque malpractice at best, if not human experimentation or ‘enhanced interrogation.’ The question is where are the doctors who approved this practice and where are the medical records?”

Bradsher did not respond to questions about whether the government kept data about the adverse effects mefloquine had on detainees.

An absolute prohibition against experiments on prisoners of war is contained in the Geneva Conventions, but President George W. Bush stripped war on terror detainees of those protections. Some of the “enhanced interrogation techniques” also had an experimental quality.

At the same time detainees were given high doses of mefloquine, Deputy Secretary of Defense Paul Wolfowitz issued a directive changing the rules on human subject protections for DoD experiments, allowing for a waiver of informed consent when necessary for developing a “medical product” for the armed services. Bush also granted unprecedented authority to the secretary of Health and Human Services to classify information as secret.

Briefings on Side Effects

As the DoD was administering mefloquine to Guantánamo prisoners, senior Pentagon officials were being briefed about the drug’s dangerous side effects. During one such briefing, questions arose about what steps the military was taking to address malaria concerns among detainees sent to Guantánamo.

Internal documents from Roche, obtained by UPI in 2002, indicated that the pharmaceutical company had been tracking suicidal reactions to Lariam going back to the early 1990s.

In September 2002, Roche sent a letter to physicians and pharmacists stating that the company changed its warning labels for mefloquine.

Roche further said in one of two new warning paragraphs that some of the symptoms associated with mefloquine use included suicidal thoughts and suicide and also “may cause psychiatric symptoms in a number of patients, ranging from anxiety, paranoia, and depression to hallucination and psychotic behavior,” which “have been reported to continue long after mefloquine has been stopped.”

Military Struggles

Cmdr. William Manofsky, who is retired from the US Navy and currently on disability due to post-traumatic stress disorder and side effects from mefloquine, said those are some of the symptoms he initially suffered from after taking the drug for several months beginning in November 2002 after he was deployed to the Middle East to work on two Naval projects.

In March 2003, “I became violently ill during a night live-fire exercise with the [Navy] SEALS,” Manofsky said. “I felt like I was air sick. All the flashing lights from the tracers and rockets … targeting device made me really sick. I threw up for an hour straight before being medevac’d back to the Special Forces compound where I had my first ever panic attack.”

For three years, he had to walk with a cane due to a loss of equilibrium. Numerous other accounts like Manofsky’s can be found on the web site lariaminfo.org.

In 2008, Dr. Nevin published a study detailing a high prevalence of mental health contraindications to the safe use of mefloquine in soldiers deployed to Afghanistan. Responding in part to concerns raised by the mefloquine-associated suicide of Army Spc. Juan Torres, internal Army presentations confirmed that the drug had been widely misprescribed to soldiers with contraindications, including to many on antidepressants.

A formal policy memo in February 2009 from Army Surgeon General Eric Schoomaker removed mefloquine as a “first-line” agent, and changed the policy so that mefloquine would not be prescribed to Army personnel unless they had contraindications to the preferred drug, the antibiotic doxycycline. Nor could mefloquine be prescribed to any personnel with a history of traumatic brain injury or mental illness.

By September 2009, the policy was extended throughout the DoD.

New prisoners are no longer arriving at Guantánamo and the prison population has been in decline in recent years as detainees are released or transferred to other countries. Currently, the detainee population at Guantánamo is 174.

But Nevin said the justification the Pentagon offered for using mefloquine to presumptively treat detainees transferred to the prison beginning in 2002 “betrays a profound ignorance of basic principles of tropical medicine and suggests extremely poor, and arguably incompetent, medical oversight that demands further investigation.”

Andy Worthington is the author of The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison (published by Pluto Press, distributed by Macmillan in the US, and available from Amazon — click on the following for the US and the UK) and of two other books: Stonehenge: Celebration and Subversion and The Battle of the Beanfield. To receive new articles in your inbox, please subscribe to my RSS feed (and I can also be found on Facebook and Twitter). Also see my definitive Guantánamo prisoner list, updated in July 2010, details about the new documentary film, “Outside the Law: Stories from Guantánamo” (co-directed by Polly Nash and Andy Worthington, 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.