It is anticipated that those turning out to protest Bush’s visit will dwarf the hundreds of protestors who turned up to campaign against a visit by former US Vice President Dick Cheney in Vancouver last month, where the “Vice President for Torture” was addressing diners who had paid $500 a head for the privilege. As CTV News noted, however, “The numbers at the Bush rally could dwarf those at the Cheney event because many protesters from the Occupy Vancouver movement camped out at the Vancouver Art Gallery are planning to head to Surrey to take part.”

Amnesty International got the ball rolling last week, calling for Bush’s arrest for war crimes and torture. In a press release, Susan Lee, Americas Director at Amnesty International, explained, “Canada is required by its international obligations to arrest and prosecute former President Bush given his responsibility for crimes under international law including torture. As the US authorities have, so far, failed to bring former President Bush to justice, the international community must step in.  A failure by Canada to take action during his visit would violate the UN Convention against Torture and demonstrate contempt for fundamental human rights.”

Amnesty International “submitted a memorandum to the Canadian authorities on 21 September 2011 that makes a substantial case for the former president’s legal responsibility for a series of human rights violations,” and a further submission has been made by Lawyers Against War (see here for the letter by Gail Davidson to the Crimes against Humanity & War Crimes Section of the government’s Citizenship and Immigration department). Furthermore, on September 29, the Center for Constitutional Rights (CCR) and the Canadian Centre for International Justice (CCIJ) submitted a 69-page page draft indictment to Attorney General Robert Nicholson, along with more than 4,000 pages of supporting material, setting forth the case against Bush for torture.

All of these entreaties were ignored, but today, as George W. Bush arrives in Canada, the four Guantánamo prisoners — Hassan bin Attash, Sami el-Hajj, Muhammed Khan Tumani and Murat Kurnaz (all released, with the exception of bin Attash) — will lodge a private prosecution in Provincial Court in Surrey, British Columbia against George W. Bush. Further details of this submission, by CCR and CCIJ, are below, and I congratulate them for their tenacity.

In February this year, George W. Bush cancelled a planned visit to Switzerland, after CCR and the European Center for Constitutional and Human Rights announced that they would be submitting a torture indictment and asking the Swiss government to arrest him when he landed on Swiss soil. I cross-posted that complaint here, and, as CCR’s Executive Director, Vince Warren, explained, although Bush cancelled that particular visit, the Preliminary Bush Torture Indictment, prepared by CCR and ECCHR, “provides a strong factual and legal basis to hold Bush accountable — in any of the 147 countries which have ratified the [UN] Convention Against Torture (CAT) — for having authorized torture.”

It seems that the former President accepts that he is not welcome in Europe. What a shame that the Canadian government has not made it clear that he is also unwelcome in Canada.

Torture Victims to Initiate Private Prosecution against George W. Bush on His Arrival in Canada

Canadian Government Has Legal Obligation under UN Convention Against Torture to Prosecute Alleged Perpetrators of Torture, Rights Groups Say; Prominent Individuals and Organizations Sign on in Support.

October 19, 2011, Surrey, BC — Tomorrow, four individuals who allege they were tortured during George W. Bush’s tenure as president of the United States will lodge a private prosecution in Provincial Court in Surrey, British Columbia against the former president, who is due to visit Canada for a paid speaking engagement at the Surrey Regional Economic Summit on October 20. The four men will take this step after repeated calls to the Canadian Attorney General to open a torture investigation of George Bush went unanswered. Human rights groups and prominent individuals will sign on in support of the effort.

The four men — Hassan bin Attash, Sami el-Hajj, Muhammed Khan Tumani and Murat Kurnaz — each endured years of inhumane treatment including beatings, chaining to cell walls, being hung from walls or ceilings while handcuffed, lack of access to toilets, sleep, food and water-deprivation, exposure to extreme temperatures, sensory overload and deprivation, and other horrific and illegal treatment while in U.S. custody at military bases in Afghanistan and/or at the detention facility at Guantánamo Bay. While three of the plaintiffs have since been released without ever facing charges, Hassan bin Attash still remains in detention at Guantánamo Bay, though he too has not been formally charged with any wrongdoing.

“I lost my family, my father, my health, my education because of George Bush. Although I was completely innocent, I lost nearly 10 years of my life,” said former Guantánamo detainee and torture survivor Muhammed Khan Tumani. “I suffered greatly while detained at Guantánamo, and continue to suffer. I have restrictions on my travel and cannot travel to see my father who is ill. George Bush must face justice and be held accountable for his actions, which continue to cause me and so many harm.”

On September 29, the Center for Constitutional Rights (CCR) and the Canadian Centre for International Justice (CCIJ) submitted a 69-page page draft indictment to Attorney General Robert Nicholson, along with more than 4,000 pages of supporting material, setting forth the case against Bush for torture. The indictment, incorporated into the criminal information lodged today, contends that by Bush’s own admission he sanctioned and authorized acts that constitute torture under the Canadian criminal code and the Convention Against Torture (CAT).

Katherine Gallagher, a senior staff attorney at the Center for Constitutional Rights (CCR) who is assisting the plaintiffs, said, “George Bush’s brazen admission to authorizing torture techniques and unlawful detentions, including enforced disappearances, must not be met with indifference. His years of impunity must come to an end. Even if the United States has failed to meet its obligations to hold torturers accountable, Canada has an opportunity and a legal obligation to position itself on the right side of history and the law.”

Matt Eisenbrandt, legal director of the Canadian Centre for International Justice (CCIJ), who will submit the filing on men’s behalf, added, “Canadian law could not be clearer. If an alleged torturer is present in Canada, the government has the power to prosecute. As a signatory of the Convention Against Torture, Canada has an obligation to initiate an investigation when Mr. Bush sets foot in this country.”

More than 50 human rights organizations from around the world and prominent individuals signed on to support the call for George W. Bush’s prosecution, including former UN Special Rapporteurs on Torture, Theo van Boven and Manfred Nowak, the International Federation for Human Rights, and the Canadian-based International Civil Liberties Monitoring Group. A number of the human rights organizations which signed on are facing the on-going harms of the “counterterrorism” policies advanced under the Bush administration and then adopted or employed in their own countries.

Former UN Special Rapporteur on Torture, Manfred Nowak, said: “The main aim of the UN Convention Against Torture was to eradicate safe havens for persons who commit, order, or participate in acts of torture worldwide. States parties to the Convention, including Canada, have a legal obligation to arrest all persons suspected of torture with the aim of bringing them to justice. There is plenty of evidence that President Bush authorized enhanced interrogation methods against suspected terrorists, some of which clearly amount to torture, such as waterboarding.”

Last February, the Center for Constitutional Rights, along with other human rights organizations, attempted to initiate criminal proceedings against Bush during a private speaking engagement in Geneva, but he canceled after news of the planned prosecution came to light. Following the cancellation, CCR and the European Center for Constitutional and Human Rights released the “Bush Torture Indictment,” which can serve as the basis for country-specific indictments against Bush in any of the 147 countries that have ratified the UN Convention Against Torture or have universal jurisdiction laws for torture.

Prior to the filing of this case, CCR and the CCIJ twice (on Sept. 29, 2011 and Oct. 14, 2011) petitioned Canadian Minister of Justice and Attorney General Robert Nicholson by letter to launch a criminal investigation against Bush during his October 20 visit to Canada, but received no response. George Bush and former U.S. vice president Dick Cheney both recently made trips to Canada, without any legal consequence.

A copy of the filing can be viewed in full here. The Letter of Support is available in English and French.

*****

The Canadian Centre for International Justice works with survivors of genocide, torture and other atrocities to seek redress and bring perpetrators to justice. The CCIJ seeks to ensure that individuals present in Canada who are accused of responsibility for serious human rights violations are held accountable and their victims recognized, supported and compensated. For more information visit the website.

The Center for Constitutional Rights, in addition to filing the first cases representing men detained at Guantánamo, has filed universal jurisdiction cases seeking accountability for torture by Bush administration officials in Germany, France and submitted expert opinions and other documentation to ongoing cases in Spain in collaboration with ECCHR. The Center for Constitutional Rights is dedicated to advancing and protecting the rights guaranteed by the United States Constitution and the Universal Declaration of Human Rights. Founded in 1966 by attorneys who represented civil rights movements in the South, CCR is a non-profit legal and educational organization committed to the creative use of law as a positive force for social change. Further details regarding the Center for Constitutional Rights’ Bush Torture Indictment can be viewed here, and also visit the website.

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.

A former gang member and a convert to Islam, Padilla was arrested at Chicago’s O’Hare Airport, in connection with an alleged “dirty bomb plot” that never existed, on May 8, 2002, as he returned from Pakistan. Held for a month as a material witness, he was then designated an “enemy combatant” by President George W. Bush, and held in complete isolation in a military brig for the next three and half years — a process that also involved prolonged sensory deprivation. According to the psychiatrist Dr. Angela Hegarty, who spent 22 hours with Padilla in 2006, “What happened at the brig was essentially the destruction of a human being’s mind.”

In November 2005, fearing that Padilla might successfully challenge the government’s argument that it had the right to hold a US citizen indefinitely without charge or trial on the US mainland, and subject him to torture, the Bush administration suddenly indicted Padilla on charges of conspiracy “to murder, kidnap and maim people overseas,” and transferred him out of the brig. However, the injustice did not come to an end, as the courts then took over.

The charges against Padilla were based on the Bush administration’s claim that, along with alleged facilitators Adham Amin Hassoun and Kifah Wael Jayyousi, he was part of a Florida-based plot to aid Islamic extremists in holy wars abroad, and his trial took place in the summer of 2007. However, the judge, Marcia Cooke, refused to allow Padilla or his lawyers to make any mention of what had happened in the three and a half years that he was held in a legal black hole.

On August 16, 2007, the jury found him guilty, and on January 22, 2008, he received a sentence of 17 years and 4 months. This was in spite of the fact that the conspiracy in which he was reportedly involved had not taken place, and he had been involved in only seven of the hundreds of phone calls monitored by the FBI between his two co-defendants (who also received prison sentences). It also came about in spite of the fact that all that could be confirmed of his intent, in physical terms, was his signature on an application form for a military training camp in Afghanistan that he may or may not have actually attended.

Padilla appealed against his sentence, and so did the Bush administration, whose position — that his sentence was too lenient — was adopted by the Obama administration, which has repeatedly clung to the same position maintained by its predecessor when it comes to “national security” issues involving terrorism.

Two weeks ago, the latest phase in this alarming saga of paranoia, torture and injustice took place in Florida, when the Court of Appeals for the Eleventh Circuit not only backed the government against Padilla, but went so far as to vacate the original sentence (PDF), in effect telling the judge that she had been too lenient, and that she should revisit her ruling and hand down a much longer sentence.

The majority judges in the three-judge panel — the notoriously right-wing judges Joel F. Dubina and William Prior — claimed that Padilla’s original sentence was “substantively unreasonable because it does not adequately reflect his criminal history, does not adequately account for his risk of recidivism, was based partly on an impermissible comparison to sentences imposed in other terrorism cases, and was based in part on inappropriate factors.”

The dissenting judge, Rosemary Barkett, was thoroughly critical of her colleagues’ actions, specifically noting that:

In reversing Padilla’s sentence, the majority fails to adhere to the principles articulated by the Supreme Court and this Circuit requiring appellate courts to accord the trial judge the “considerable discretion” granted district courts in sentencing and to guard against substituting its judgment for that of the trial judge.

Continuing, she referred to a precedent from the Eleventh Circuit, in which, in a case in 2009, it was noted:

We may vacate a sentence because of the variance only if we are left with the definite and firm conviction that the district court committed a clear error of judgment in weighing the … factors by arriving at a sentence that lies outside the range of reasonable sentences dictated by the facts of the case. However, that we might reasonably have concluded that a different sentence was appropriate is insufficient to justify reversal.

Judge Barkett also took exception to her colleagues’ arguments that the trial judge had erred when she refused to give Padilla a sentence that was a minimum of 30 years, as they thought appropriate according to sentencing guidelines. Spelling out what judicial discretion means, she again referred to the precedent from the Eleventh Circuit in 2009, in which it was noted:

The district court must evaluate all of the … factors when arriving at a sentence, but is permitted to attach great weight to one factor over others. In assessing the factors, the sentencing court should remember that each convicted person is an individual and every case is a unique study in the human failings that sometimes mitigate, sometimes magnify, the crime and the punishment to ensue.

Primarily, however, Judge Barkett was concerned to point out that a sentence less than the full maximum could be justified when, as in Padilla’s case, “the trial judge correctly concluded that a sentence reduction is available to offenders who have been subjected to extraordinarily harsh conditions of pre-trial confinement.”

Judge Cooke may have refused to allow any discussion of Padilla’s torture in his trial, but she did note that the conditions in which he was held “were so harsh that they warrant consideration,” and, as Judge Barkett noted, Padilla had been able to highlight his torture when he was being sentenced which was so harrowing that it was not easy to ignore, As she wrote in her dissenting opinion:

Padilla presented substantial, detailed, and compelling evidence about the inhumane, cruel, and physically, emotionally, and mentally painful conditions in which he had already been detained for a period of almost four years. For example, he presented evidence at sentencing of being kept in extreme isolation at the military brig in South Carolina where he was subjected to cruel interrogations, prolonged physical and mental pain, extreme environmental stresses, noise and temperature variations, and deprivation of sensory stimuli and sleep.

Judge Barkett also highlighted one more area in which her Eleventh Circuit colleagues had crossed a line, which concerned their allegations about his perceived susceptibility to recidivism. Even though, after serving his sentence, Padilla would be “in his mid-fifties,” and “subject to a twenty-year term of supervised release,” her fellow judges nevertheless concluded that Judge Cooke “erred in determining that Padilla will not pose a high risk of recidivism.”

Even though there was no evidence to support the judges’ fears, and even though they explicitly stated in their opinion that a trial judge is allowed to “find that recidivism generally decreases with age,” she noted that the majority “not only rejects that presumption for Padilla, but goes one step further and decides that trial judges may no longer consider, for anyone convicted of a terrorism-related offense, the likelihood that the risk of recidivism will decrease with age.”

Judge Barkett’s dissenting opinion was important, but unfortunately it did nothing to stem the institutionalized paranoia and injustice that has plagued Jose Padilla since he was imprisoned as an “enemy combatant” in May 2002.

I have never understood how far too many Americans accepted the torture of Jose Padilla — an American citizen on US soil, and not even a foreigner held at Guantánamo — without recognizing that, although a Latino Muslim convert was today’s “enemy combatant,” tomorrow it might be some other demonized American.

I was also astonished when no one cared that Padilla’s torture was not mentioned in his trial, and he received a sentence of seventeen years and four months for little more than a thought crime.

The ruling by the Court of Appeals for the Eleventh Circuit two weeks ago only adds to the bitter legacy of Jose Padilla’s brutalization at the hands of his own government, revealing how, for terror suspects held as “enemy combatants” — like Padilla, or, again, the prisoners at Guantánamo — all sense of proportion can be dismissed, even by those who should know better.

For these scaremongers, who are found in Congress as well as the courts, the end result of their sustained hysteria about terrorism is a twisted version of reality in which it is legitimate to complain that sentences are not long enough, and that the crime of terrorism is so unique and dangerous that judges can argue that there is no possibility of being reformed — even when, as in Jose Padilla’s case, the US government actually spent three years destroying his mind through torture, rendering him largely incapable of anything, and without anyone responsible for that being held accountable.

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 Truthout.

I should note that my interest in the article is not entirely objective, as I was involved in it as a consultant, and I have also added links that were not included in the original article.

The 9/11 Decade and the Decline of US Democracy
By Vince Warren, Executive Director, Center for Constitutional Rights

In response to the terrorist attacks on September 11, 2001, George W. Bush shredded the US Constitution, trampled on the Bill of Rights, discarded the Geneva Conventions, and heaped scorn on the domestic torture statute and the UN Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.

As we mark the 10th anniversary of the terrible events of September 11, 2001, none of us has any desire to play down the horrors of that day, but two wrongs do not make a right, and, in response to the attacks, the Bush administration engineered and presided over the most sustained period of constitutional decay in our history.

Moreover, although George W. Bush entered the first decade of the 21st century by dismantling the rights that are fundamental to the identity of the United States and the security of its people, Barack Obama ended the decade by failing to fully reinstate those rights. Through his own indecision, or through ferocious opposition in Congress, he has been unable to close the infamous prison at Guantánamo Bay, as promised, and has also refused to even contemplate holding anyone in the Bush administration accountable for their crimes.

As a result, the democratic principles which we hold dear have suffered a massive blow in the first ten years of the 21st century, although that is not the main problem. The deep erosion of our civil liberties is to be lamented, and should be resisted, however difficult the political climate, but the most painful truth about the last decade is that it marks an undoing of democracy so severe that without concerted and deliberate action by the people in this country — and, one hopes, by their elected leaders — the values which defined us, before the events of 9/11 allowed the Bush administration to reshape our perception of executive power, may never be regained.

This decade of constitutional decay didn’t happen overnight, although much of it was hidden from view. We were kept largely in the dark about how the government took steps to dismantle our rights, which were undertaken in a fog of secrecy, subterfuge and, in some cases, outright lies.

A well functioning democracy in this country relies on the three branches of government — the executive, Congress and the judiciary — checking each other to prevent overreach or constitutional misdeeds.

In this system, which has prevailed throughout most of our history, the executive is responsible for executing (and therefore abiding by) the laws of the republic. Congress creates laws, which, in some circumstances, circumscribe the power of the executive branch, and when Congress doesn’t approve of what the president is doing, it can change the laws, conduct inquires and hearings, and in certain circumstances, investigate potential wrong doing. The judiciary reviews the laws and presidential actions to ensure that they comport with the Constitution and justice.

In this system, no one is above the law. Illegal action initiated by the president can be stopped by the courts and congress; unjust laws initiated by Congress can be stopped by the president and the courts; and the Constitution prohibits the courts from making new law or policies or otherwise undertaking the powers of “the political branches” — Congress and the executive. Thus, regardless of the threat, the checks and balances we’ve built into our democracy are supposed to uphold the power of the fourth branch of government — that made up of the people who live in this country.

However, as we now know, a decade into the 21st century, the system upon which we all stake our liberty and democratic power as people has operated more like a scientific hypothesis than a bedrock of democratic principles. And just like any hypothesis, its true test is determined by the way it functions under pressure, and not how it works in theory. One need look no further than the last ten years to understand that the constitutional hypothesis has failed under the last two administrations. Our constitutional and democratic principles collapsed as breathtakingly as those same principles rose in the context of North Africa earlier this year.

The overarching development over the last ten years is that we have witnessed perhaps the single most demonstrable destruction of our democracy in US history. The rights that used to belong solely to US as people living in this country have been severely curtailed. We have fewer rights — and the president more power — in September 2011 than in September 2001. And any diminution of our rights, regardless of the justification of the day, is an elimination of our ability to define the country that we want to live in and shape it around the values that are crucial to our survival as a society run by and accountable to the people.

The undoing of Democracy — The “War” Paradigm

Ask a high school freshman in the US who the most powerful person in the world is and she will most likely say the president of the United States. That is not a change since 9/11, certainly. However, ask that same student who is more powerful in the US government, the president, Congress or the Supreme Court, and she’ll still say it’s the president. That reflects a significant change in the American psyche over the last decade with respect to the balance of powers in our government as outlined by the United States Constitution, which will turn 224 on September 17, 2011.

Most people now recognize that President Bush claimed more power than any previous president. He claimed the power to kill, capture or detain anyone, anywhere in the world. The Justice Department, under George W. Bush, said that the law simply doesn’t apply to the president when he’s acting as commander in chief. So the lawyers gathered around him, and around Vice President Dick Cheney, counseled him that he could ignore the fact that Congress had passed a law saying that torture was illegal or that the government can’t wiretap without a warrant.

Going further, the Bush administration claimed the power to send citizens to third countries to be tortured, to create secret “black sites” run by the CIA to detain and torture people, and of course, to detain men at Guantánamo Bay. Bush also claimed the authority to declare unilaterally that people it captured and placed in these prisons were neither subject to the Geneva Conventions nor the protections of the US Constitution.

The Bush Administration created the “war on terror” paradigm not to protect US from future attack, although that was what they claimed, but rather to put in place a radical expansion of power that sought to place the president outside domestic and international law. According to a leaked Justice Department memo from December 2001, Guantánamo Bay was specifically chosen for the purpose of detaining the prisoners of the US military because the Bush administration believed it would be beyond the reach of US courts. Existing outside the law and in complete secrecy, it was an ideal place to conduct interrogations of a significant number of prisoners in isolation from all outside human contact. Its selection demonstrates that, from the very beginning, the Bush administration planned to engage in activities that are illegal under domestic law and in violation of international treaties. And that is precisely what they did.

The US government and the highest levels of the Bush administration constructed a secret international network for arbitrary and extrajudicial detention for the purpose of using torture as an interrogation method, and engaged in a program of extraordinary rendition that outsourced torture when the US didn’t want to do it itself. The Bush administration set into place a framework that attempted to justify an unjustifiable act: torture. A high level Executive Branch group called the “Principals Committee,” which included Vice President Dick Cheney, Attorney General John Ashcroft, Secretary of State Colin Powell, CIA Director George Tenet and national security advisor Condoleezza Rice, authorized the use of torture, including waterboarding. Secretary of Defense Donald Rumsfeld also signed off on similar techniques for use in Guantánamo in December 2002, which later migrated to Iraq, and to Abu Ghraib. Moreover, administration lawyers, such as David Addington, John Yoo, Alberto Gonzales and Jim Haynes, constructed fallacious legal rationales to support and justify the torture and abuse program.

Despite the rampant and brazen illegality put into place in the last 10 years, the courts have rarely called the administration to account for the crimes. The separation of powers concept used to function to circumscribe governmental power. In the last ten years, however, it has functioned to enable the amassing of presidential power. The courts have largely deferred to the president by uncritically accepting the wartime paradigm and giving him free rein to do as he sees fit — even though what he seeks to do is illegal. As a result, no torture victim has ever received a court ruling that the torture they suffered was illegal and most have been denied their day in court. Not one has received a dime in compensation for their injuries or even so much as an apology from either administration. To date, 171 men remain in Guantánamo and, after a decade of the “worst of the worst” rhetoric, more detainees have died in that prison than have been charged with a crime.

On three occasions, in 2004, 2006 and 2008, the Supreme Court issued serious, but not mortal, blows to the overreach and illegality of the Bush administration. The rulings in 2004 and 2008 granted the Guantánamo prisoners habeas corpus rights; in other words, the right not to be held in a legal black hole, and to ask an impartial judge why they were being held, if, as many of them claimed, they had been seized by mistake. The 2006 ruling, Hamdan v. Rumsfeld, involved the Court not only ruling that the trials at Guantánamo (the military commissions) were illegal, but also telling the government that all its prisoners have the protection of Common Article 3 of the Geneva Conventions, which prohibits cruel treatment, torture, and humiliating and degrading treatment.

Sadly, Congress has also played a major part in allowing the president to do whatever he says is necessary, even if it is illegal. Congress passed the dangerously open-ended Authorization for Use of Military Force (AUMF) the week after the 9/11 attacks, which has been used by both Bush and Obama to justify the detention of “war on terror” prisoners, and to hold them neither as prisoners of war nor as criminal suspects, but as what the Bush administration called “enemy combatants.” Moreover, Congress pulled the rug out from under the landmark Supreme Court decisions, seeking to repeal the prisoners’ habeas corpus rights, and reviving the military commissions.

Under Obama, all three branches of government — the executive, Congress and the courts — have largely refused to tackle Bush’s dreadful legacy. Obama has dedicated himself to looking forward and not back when it comes to the accountability of Bush administration officials and lawyers for authorizing the use of torture, and courts throughout the land have endorsed his position, and he has also revived the military commissions, in the face of opposition to federal court trials for terrorists, despite the latter being the appropriate venue for terrorist trials. He has also endorsed indefinite detention for 46 of the 171 men still held at Guantánamo, and has, in some cases, expanded Bush’s programs, declaring, for example, that he has the right to assassinate U.S. citizens abroad, without any form of legal process.

In addition, the Supreme Court has failed to act as the court of appeals in Washington D.C. has undermined the Guantánamo prisoners’ habeas corpus rights, effectively gutting habeas of all meaning, and Congress has launched an all-out assault on the president’s ability to close Guantánamo, preventing him from bringing prisoners to the U.S. mainland, and interfering in his right to release prisoners as he sees fit.

Beyond pure policy and legal considerations, the results have been devastating for the victims and survivors of these practices and policies. The men in Guantánamo, and the “black sites” have endured a decade of arbitrary detention without charge or trial, and suffered torture, abuse and cruel, degrading treatment as alleged “enemy combatants.” The “black sites” may now be part of the past, along with Abu Ghraib, but the US under Obama maintains prisons in Afghanistan, including Bagram, where there have been allegations of the use of secret prisons, and where, in addition, the Geneva Conventions have not been reinstated.

Moreover, those that have been released continue to face mental anguish, suspicion and stigma, as well as the loss, in some cases, of family ties. These social costs will continue to extend far beyond the immediate victims. They affect entire families, communities, societies and even nations that have been subjected to forced engagement with the effects of the “war on terror” paradigm.

Illegal Surveillance … Again

The government used to need a warrant before spying on us, but those days are long gone. Thirty years ago, President Nixon’s warrantless wiretapping scandalized the nation. And although that administration used “national security” as a justification for the illegal acts, Congress and the Supreme Court insisted that the law had to govern all intelligence and counterintelligence gathering by the government, even when it was undertaken to protect against terrorism.

The Bush Administration discarded the US Constitution, again using the war and national security paradigms as justification. Bush and his advisors simply ignored the rules and wiretapped Americans and others without warrants or judicial oversight. Restoring the constitutional protections against government spying, uncovering the full extent of illegal surveillance programs, ending immunity for telecommunications companies and prosecuting those responsible for violating the law are essential to reclaiming our democratic power — our rights to be free from unreasonable searches and seizures, and our expectation that the constitutional system will function to protect those rights, are essential elements of restoring democracy.

The Foreign Intelligence Surveillance Act (FISA) had been the fundamental tool to regulate government surveillance. It properly involved Congress and the courts in issues deemed to be of concern to national security and established accountability frameworks for surveillance programs. That all changed radically after September 11, 2001. Congress joined forces to pass new laws, justified on “national security” grounds, that granted more power to surveillance and intelligence agencies. The Bush administration, however, not only pushed for these laws, but made up its own secret plan, through an executive order to the NSA, for reviving the kinds of programs explicitly deemed unconstitutional by the Supreme Court (in a 1972 Center for Constitutional Rights case) and prohibited by FISA. These Bush programs existed outside of the law and included wiretapping US and foreign individuals without a warrant from any court and subject to no judicial oversight. The details were largely kept secret from Congress and the public until exposed, years later, by whistleblowers and the press.

In 2001, when the Authorization for the Use of Military Force and the PATRIOT Act were passed, the Bush administration never asked Congress for expanded surveillance authority including the right to spy on attorney-client communications, or to amend FISA to accommodate wiretapping unchecked by the FISA Court. As Attorney General Alberto Gonzales would admit years later, the administration did not try to amend FISA to authorize the NSA spying program because “it was not something we could likely get.”

In November 2001, following the Bush administration’s call for an all-out “war on terror,” the USA PATRIOT Act was passed by wide margins in both houses of Congress. The PATRIOT Act included unprecedented expansions of government surveillance powers, including spying and government involvement in political and associational activity. It made extensive changes to FISA, eliminating many of the safeguards against surveillance abuse, and ramped up existing legislation such as the 1996 Anti-terrorism and Effective Death Penalty Act, which created new “material support” laws that defined political activity as criminal.

Although the current program of warrantless wiretapping and surveillance of Americans’ telephone calls that blatantly violated FISA began in the Bush Administration, the Obama administration has not renounced the power that Bush claimed. Moreover, the Obama administration has fought relentlessly in court to preserve these abuses of power.

Repression of Dissent

“Terrorism” is a word that has been used by the executive branch repeatedly since 9/11 to provide rationale for going to war, maintaining those wars, and cracking down on protest and dissent domestically in violation of the Constitution and international law. In doing so, Bush and Obama have ushered in a new era of repression, enabling law enforcement agencies to abuse their powers by targeting, detaining and silencing political activists. While this type of repression is far from a new exercise for the government, given the capitulation of Congress and the courts to the president, the people of this country will once again find themselves nose to nose with government crackdown on their protest of unjust government action.

A key question for us to ask is what effect will US war-making foreign policy continue to have on our protest of that policy? Unless and until the United States stops its current policy of declaring war on anyone in the world in the name of combating terrorism, people will continue to organize themselves to oppose it. And as long as people oppose “war on terrorism” policies, the government will use its power to label the dissenters themselves as terrorists.

While the stakes for defending dissent couldn’t be higher today, the obstacles are more difficult and more complicated than they were even ten years ago. Much of the organizing these days occurs online and by mobile phone and computer. This makes organizing more effective for the activists, but it also makes it easier for law enforcement to spy on and disrupt the activists’ plans. For example, law enforcement has established “Joint Terrorism Task Forces,” which bring together federal, state and local law enforcement and other agencies into “fusion centers.” State governments are even contracting out their illegal surveillance to private companies, as was done recently in Pennsylvania, when state homeland security director, James Powers, hired a private company to research and distribute information about groups engaged in lawful activity.

The nature of whistleblowing has changed in the last decade as well. In the current digital age, evidence of government wrongdoing is likely to come in the form of data dumps which can be distributed widely and quickly as in the case of WikiLeaks. And when the government pushes corporations to shut down public access to that information, the counter activism can take the form of hacking, as with Anonymous. In addition, an enormous change has occurred in how whistleblowers are treated. Despite a move prior to 2001 to protect whistleblowers, the Obama administration has taken on the mantle of prosecuting them — as terrorists.

In the last decade, the truth has become either a state secret or treason. With respect to WikiLeaks and its founder, Julian Assange, Sarah Palin calls Assange an “anti-American operative with blood on his hands” and wants him hunted down like an Al-Qaeda chief, Rick Santorum and Peter King want him prosecuted as a “terrorist,” and Joe Lieberman suggests that the five news outlets that published the leaked State Department cables should be investigated for espionage. Exposing the facts — especially those concerning illegal government conduct and abuse — has become a serious crime.

Moreover, activists today run the very real risk of being arrested and prosecuted for their First Amendment activity. A ruling in a recent CCR case, Holder v. Humanitarian Law Project (HLP), highlights why dissent must be defended at all costs, even while the Supreme Court turns the First Amendment and “material support for terrorism” on its head. CCR argued HLP in the Supreme Court and challenged the “material support” statues, including a portion of the USA PATRIOT Act, which makes it a crime to provide support, including humanitarian aid, literature distribution and peaceful political advocacy, to any entity that the government has designated as a “terrorist” group. The Court ruled that human rights advocates, providing training and assistance in the nonviolent resolution of disputes, can be prosecuted as terrorists. As a result, the Court has criminalized speech and polished the hammer with which the Obama government can now prosecute peace activists and human rights organizations who engage with groups on the government’s terrorist list even to support lawful goals.

Endless War

Finally, it is unacceptable that George Bush marched us into Iraq and Afghanistan illegally and under false pretenses, while Barack Obama has almost tripled the number of wars we are fighting. Hundreds of thousands of civilians have been killed in Afghanistan, Iraq and Pakistan alone, and millions have been displaced. Over 6,000 US military service members have been killed, and more than 50,000 wounded in wars that have cost the American people trillions of dollars.

It’s not just where these wars are happening, but it’s also how. We are conducting drone strikes in Pakistan, Libya, and Yemen, countries on which Congress has not declared war. To the extent that Bush and his advisors ignored the law to justify torture, Obama and his advisors ignore the law to justify warfare. Currently, his advisors are going so far as argue that the President can bypass the War Powers Resolution’s restrictions on unilateral, executive warmaking simply by using high-tech weaponry like drones, which don’t require the presence of troops on the ground.

Conclusion — bringing power back to the people

Ten years on from the terrorist attacks of September 11, 2001, at the end of the distressing decade defined by those attacks, we find ourselves in a position where the president has claimed more power than ever and the people have conceded more power than ever. Ten years ago, federal trials were the norm for alleged criminal terroristic activity; now, the default method is military show trials that include the death penalty or indefinite or preventive detention. Ten years on from 9/11, more illegal wars are being fought today than under Bush, more laws are subverted in the name of national security, more people are being deported than at any point in our history, and the executive branch has seized or accrued more power than it has ever had.

In the end, the test of our democracy is to look at the actions that have been done in our name and under our watch — the wars, the repression, the extra-judicial detention and killings, the torture, the profiling — and ask ourselves: are we in a better position now to stop the acts that continue, to ensure that they don’t happen in the future, to ensure that the officials are held accountable, and to put the presidency back in the constitutional box than we were 10 years ago?

The answer to that is yes, to the extent that we are able to demand that our government end the lawlessness, stop stockpiling constitutional power and move back towards a path of lawful, democratic action, but the restoration of the values that we hold dear requires concerted action by many people.

The 10th anniversary of the 9/11 attacks is a painful anniversary, but let us also make it the occasion when, en masse, we say to the government, “Enough is enough,” and demand an end to the ongoing injustices, and the return of our values.

The Center for Constitutional Rights is dedicated to advancing and protecting the rights guaranteed by the United States Constitution and the Universal Declaration of Human Rights. Founded in 1966 by attorneys who represented civil rights movements in the South, CCR is a non-profit legal and educational organization committed to the creative use of law as a positive force for social change.

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, 700,000-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 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.

John Walker Lindh is the original scapegoat in the “War on Terror,” a young man who never raised arms against anyone, but who was vilified as a terrorist because, in November 2001, he was seized in Afghanistan, where he had traveled because of his interest in the Taliban government. A convert to Islam, Lindh, like many Muslims, wanted to see for himself what life was like in Taliban-controlled Afghanistan.

Lindh was held with hundreds of other men in Qala-i-Janghi, a fortress in northern Afghanistan, but when a CIA officer, Johnny “Mike” Spann, was killed by some of the prisoners, who staged an uprising when they feared that they would be shot, most of those held were killed by Northern Alliance soldiers supported by US and British Special Forces and American bombers. Lindh, however, was one of 86 men (and boys) who survived for a week in the basement of the fort, despite being bombed and flooded.

As I explained in May, “Lindh was never sent to Guantánamo (even though he had been designated as Guantánamo prisoner number 1 — ISN number 001), because the horrors of Guantánamo were only for foreigners, and not for anyone in possession of an American passport.” Instead, as I also explained:

[H]e was moved to Camp Rhino near Kandahar, where he was stripped naked, blindfolded, bound to a stretcher with duct tape, held in a shipping container ringed with barbed wire and interrogated by the US military and the CIA, who reported regularly to Donald Rumsfeld (and where soldiers scrawled “shithead” on his blindfold and told him he would be hanged).

He was then held on two ships (the USS Peleliu and the USS Bataan), and was brought to the US on January 22, 2002, and charged on February 5 on ten charges relating to his alleged involvement with al-Qaeda and the Taliban. In July 2002, he was persuaded to accept a plea deal, which led to a punitive 20-year sentence, announced on October 4, 2002, which he is still serving in at the Federal Correctional Institution at Terre Haute, Indiana. He is held in one of the Communication Management Units (CMUs) for mainly Muslim prisoners that have come under intense criticism from human rights activists, as I explained in two articles in April, and, as a result of his plea deal, is prevented from speaking publicly and is also permanently prevented him from challenging anyone in authority about his shameful abuse in US custody prior to his trial.

Following his op-ed in the New York Times, Frank Lindh has followed up with a  full-length article about his son, which was published in the Observer on July 10, and I’m cross-posting it below for a variety of reasons. Frank Lindh tells his son’s story in a compelling manner, but he also strikes to the very heart of the terrible and deliberate confusion at the heart of the Bush administration’s “War on Terror” — the cynical decision to equate soldiers with terrorists, and to hold both categories of prisoner without any rights whatsoever.

Describing how “the US has, for 10 years, been affected by post-traumatic shock,” Frank Lindh specifically points out that his son is not a terrorist, and, crucially, cites evidence given by the author and journalist Rohan Gunaratna, who “conducted a lengthy interview with John, and prepared a written report for the American court to which John was brought for trial,” explaining, “Those who, like Mr. Lindh, merely fought the Northern Alliance cannot be deemed terrorists. Their motivation was to serve and to protect suffering Muslims in Afghanistan, not to kill civilians.”

Lindh also points out that, in December 2001, prior to his son’s return from Afghanistan to face what was surely the most prejudiced trial in modern US history, a Justice Department lawyer cut through the disgraceful propaganda emanating from the mouths of Donald Rumsfeld and John Ashcroft, by stating, simply, “At present, we have no knowledge that he did anything other than join the Taliban.”

Lindh acknowledges that his son was guilty of “misplaced idealism,” and that his “decision to volunteer for the army of Afghanistan under the control of the Taliban was rash, and failed to take into account the Taliban’s mistreatment of its own citizens.” However, he adds that “his assessment of the Northern Alliance warlords was neither exaggerated nor inaccurate. The brutal human rights violations committed by the Northern Alliance were thoroughly documented in the US department of state’s annual human rights reports throughout the 90s.”

This is certainly true, and Frank Lindh provides an important service in an age of forgetfulness not only by running through the US history of involvement with Afghanistan in the 1980s, as supporters of the mujahideen against the Russians, but also by digging up references to American support for the Taliban prior to the 9/11 attacks.

However, what remains of particular importance is that cynical manipulation at the heart of the “War on Terror,” in which soldiers were confused with terrorists, and everyone was deprived of their rights. Lindh faced this when he was tortured in Afghanistan and then subjected to little more than a show trial, with the punitive sentence that his father is seeking to overthrow, but for those held in Guantánamo the twist was that they were labelled as “enemy combatants,” and, on February 7, 2002, in a particularly vile presidential order, George W. Bush decided that they were not protected by the Geneva Conventions.

Under President Obama, the direct torture that followed on from this decision has come to an end, but the confusions remain. Of the 171 men who are still held at Guantánamo, the President has only designated for trial (or subjected to trial) 36 of them, although he maintains that he can continue to hold everyone under the Authorization for Use of Military Force, passed by Congress the week after the 9/11 attacks, which has become the justification for holding forever prisoners who were involved, however tangentially, with al-Qaeda and/or the Taliban.

The result is that other soldiers from other countries, who did not do “anything other than join the Taliban,” are held alongside the handful of genuine terrorist suspects at Guantánamo, and still , essentially, regarded as one and the same. Congress is content to allow this unjust charade to continue, the right-wing judges of the D.C. Circuit Court, who are now dictating detainee policy — after the Supreme Court demonstrated that it was no longer interested, despite giving the prisoners habeas corpus rights in 2004 and 2008 — apparently believe that everyone in Guantánamo is a terrorist, without proof being required, and President Obama cannot be bothered to remember what is right and what is wrong.

The 20-year sentence given to John Walker Lindh is a disgrace, but so too is the open-ended detention of the majority of the men in Guantánamo, who did nothing more than Lindh — the 58 Yemenis still held because of Congressional scaremongering and Obama’s cowardice, the 31 men held because they cannot return home safely, and because America is unwilling to provide them with a new home, and, I can say with confidence, the majority of the 46 other men that the President, disgracefully, wants to hold forever because he regards them as dangerous even though he has no evidence against them that would stand up in any court.

As Frank Lindh calls for the release of his son, I call for the release of 135 of the 171 men still held at Guantánamo — all those who will not be tried, and who, in the absence of any more compelling information, have, like John Walker Lindh, been subjected to abuse and dressed up as terrorists when they are no such thing.

America’s ‘detainee 001′ – the persecution of John Walker Lindh
By Frank Lindh, The Observer, July 10, 2011

Frank Lindh, father of ‘American Taliban’ John Walker Lindh, explains why his son is an innocent victim of America’s ‘war on terror’

John Phillip Walker Lindh, my son, was raised a Roman Catholic, but converted to Islam when he was 16 years old. He has an older brother and a younger sister. John is scholarly and devout, devoted to his family, and blessed with a powerful intellect, a curious mind, and a wry sense of humour.

Labelled by the American government as “Detainee 001″ in the “war on terror”, John occupies a prison cell in Terre Haute, Indiana. He has been a prisoner of the American government since 1 December 2001, less than three months after the terror attacks of 9/11.

John is entirely innocent of any involvement in the terror attacks, or any allegiance to terrorism. That is not disputed by the American government. Indeed, all accusations of terrorism against John were dropped by the government in a plea bargain, which in turn was approved by the US district court in which the case was brought.

Despite its proud history as a stable constitutional democracy, the US has, for 10 years, been affected by post-traumatic shock, following the horrific events of 11 September 2001. I can find no other explanation for the barbaric mistreatment and continued detention of a gentle young man like John Lindh.

John is blessed with a calm and curious nature. As a child, he was more sceptical than our other two children about such things as Santa Claus. When he was 12 years old, he saw the film Malcolm X, and was moved by its depiction of the pilgrims in Mecca. He began to explore Islam and, four years later, decided to convert.

What attracted John to Islam, I think, was the simplicity of its beliefs, and the authenticity of its source documents — the Qur’an and Hadith. It appealed to his intellect as well as his heart. To me and to John’s mother, his conversion was a positive development and certainly not a source of worry. I once told him I felt he had always been a Muslim, and only needed to find Islam in order to discover this in himself. He remained the loving son and brother he had always been. There was never a breach of any kind between us.

John had always been a good student, but his study habits improved after his conversion. He immersed himself in Islamic literature, and quickly came to the conclusion that he needed to learn Arabic in order to continue his studies.

In 1998, at the age of 17, John left home in California and travelled to Sana’a, the ancient capital of Yemen, where he embarked on a rigorous course of study. He was determined not only to become fluent in Arabic, but also to pursue an education in the old traditions of Islam. He returned home briefly in 1999, and then returned to Yemen in February 2000, just before his 19th birthday. John’s mother and I supported him, emotionally and financially. He remained in close contact with us and with his sister and brother while overseas.

In September 2000, John told me he intended to continue his studies in Pakistan, focusing on Arabic grammar and Qur’an memorisation. I wrote back: “I trust your judgment and hope you have a wonderful adventure.” He arrived in Pakistan in November 2000 and enrolled in a Qur’an memorisation programme in a madrassa.

John’s letters home showed passionate enthusiasm for both Yemen and Pakistan. He loved the cultures he discovered in both countries. He was a Muslim in a Muslim world.

In late April 2001, John wrote to me and his mother, saying he planned to go into the mountains to escape the oppressive summer heat. We had no further contact from him for seven months. Unbeknown to us, he crossed the Khyber Pass into Afghanistan, with the intent of volunteering for service in the Afghan army under the control of the Taliban government.

John’s mother and I grew increasingly worried as the summer passed. John had warned us that there might be gaps in his contact with us, as there were no internet cafes in the mountains of Pakistan from which to send emails. But we did not anticipate such a complete lapse in correspondence from him. We also never guessed he was in Afghanistan rather than Pakistan. John’s mother, especially, was frantic with worry as the months passed with no word from him.

At that time, the Taliban governed most of Afghanistan, and were engaged in a long-running civil war against a Russian-backed insurgency known euphemistically as the Northern Alliance. John was quickly accepted as a volunteer soldier, and received two months of infantry training in a Taliban military camp before being dispatched to the front lines.

Rohan Gunaratna, an international terrorism expert and author of the book Inside Al-Qaeda: Global Network of Terror, conducted a lengthy interview with John, and prepared a written report for the American court to which John was brought for trial. Gunaratna is an expert consultant to the US government itself on terrorism matters. “Those who, like Mr. Lindh, merely fought the Northern Alliance,” he wrote, “cannot be deemed terrorists. Their motivation was to serve and to protect suffering Muslims in Afghanistan, not to kill civilians.”

John described his motivation in similar terms. “I felt,” he later explained to the court, “that I had an obligation to assist what I perceived to be an Islamic liberation movement against the warlords who were occupying several provinces in northern Afghanistan. I had learned from books, articles and individuals with first-hand experience of numerous atrocities committed by the Northern Alliance against civilians. I had heard reports of massacres, child rape, torture and castration.”

To the western world, and to me as John’s father after I learned where he had been, this was misplaced idealism. John’s decision to volunteer for the army of Afghanistan under the control of the Taliban was rash, and failed to take into account the Taliban’s mistreatment of its own citizens. But his assessment of the Northern Alliance warlords was neither exaggerated nor inaccurate. The brutal human rights violations committed by the Northern Alliance were thoroughly documented in the US department of state’s annual human rights reports throughout the 90s. They did indeed include massacres, rape (of both women and children), torture and castration.

John’s impulse was to help. In doing so, he was responding not only to his own conscience, but to a central tenet of the Islamic faith, which calls upon able-bodied young men to defend innocent Muslim civilians from attack, through military service if necessary. This is not “terrorism” at all, but precisely its opposite.

From the time of the Soviet invasion in 1979, tens of thousands of young Muslim men from all over the world had volunteered, as John did, for military service in Afghanistan. It was comparable to the influx of young volunteer soldiers in support of the republic of Spain during the Spanish civil war.

These young soldiers performed heroically in the defeat of the Soviet Union. Their cause was openly supported by the American government itself, particularly during the administration of President Ronald Reagan, who took office two weeks before John’s birth in early 1981.

In March 1982, President Reagan declared: “Every country and every people has a stake in the Afghan resistance, for the freedom fighters of Afghanistan are defending principles of independence and freedom that form the basis of global security and stability.” In March 1983, he cited “the Afghan freedom fighters” as “an example to all the world of the invincibility of the ideals we in this country hold most dear, the ideals of freedom and independence”. In a March 1985 speech, he said: “They are our brothers, these freedom fighters, and we owe them our help… They are the moral equivalent of our Founding Fathers and the brave men and women of the French resistance. We cannot turn away from them.”

Given the history of US involvement in Afghanistan, it would seem absurd to suggest that John Lindh was being disloyal to America when he went into Afghanistan in 2001 and joined the army there. If the march of history could be arrested in the spring or summer of 2001, John’s odyssey might be regarded as quixotic and unusual for a young American, but not in the least bit sinister, and certainly not criminal in nature. In fact, John’s concern about the suffering of people in Afghanistan was shared by his own government. On 21 July 2000, for example, the US department of state issued a “fact sheet” that reported that the US was “the largest single donor of humanitarian aid to the Afghan people”.

The US also provided substantial economic assistance directly to the Taliban government. In May 2001, for example, the American government under President George W. Bush announced a grant of $43m to the Taliban government for opium eradication. Secretary of State Colin Powell personally announced the grant himself in a press release and pledged: “We will continue to look for ways to provide more assistance to the Afghans.” The New York Times called this “a first, cautious step toward reducing the isolation of the Taliban” by the new Bush administration.

This is not to suggest the US was entirely friendly with the Taliban. In 1999, President Clinton placed the Taliban government under economic sanctions as a consequence of its human rights violations, particularly against women. But there were no hostilities between the US and the Taliban, and by 2001 relations were improving.

In his novel Nineteen Eighty-Four, George Orwell describes a nightmarish world of perpetual war, in which two massive nations, Oceania and Eastasia, are aligned against a third nation state known as Eurasia. The alliance between Oceania and Eastasia ends, and Eastasia then begins fighting alongside Eurasia against Oceania. In what Orwell famously called “doublethink”, the population of Oceania then is taught to believe “we have always been at war with Eastasia”.

Something eerily similar happened in the US after 9/11. Thirty years of American policy abruptly changed and America swung to the opposite side. The Taliban became our enemy. “They have always been our enemy” is what people in America came to believe.

In October 2001, the US invaded Afghanistan and aligned itself with the Northern Alliance in order to oust the Taliban government. Colin Powell’s April press release was quietly removed from the state department’s website.

In early September 2001, days before the 9/11 attacks, John arrived at his military post in the province of Takhar in the far north-eastern corner of Afghanistan, near the border of Tajikistan. This was the frontline in the civil war between the Taliban and the Northern Alliance. John was issued with a rifle and two hand grenades — standard issue for an infantry soldier. He performed sentry duty and did some cooking for the Taliban troops. He never used his weapons. He served with a number of other foreign volunteer soldiers. They were called Ansar, an Arabic term meaning “helpers”.

The training camp in Afghanistan where the Ansar received their infantry training was funded by Osama bin Laden, who also visited the camp on a regular basis. He was regarded by the volunteer soldiers as a hero in the struggle against the Soviet Union. These soldiers did not suspect Bin Laden’s involvement in planning the 9/11 attacks, which were carried out in secret. John himself sat through speeches by Bin Laden in the camp on two occasions, and actually met Bin Laden on the second such occasion. John has said he found him unimpressive.

After 9/11, America’s intelligence agencies came under intense scrutiny for their failure to anticipate and prevent the attacks, and their apparent inability to track down Osama bin Laden. It is a curious fact of history that John Lindh, an idealistic 20-year-old Californian, suspecting nothing of bin Laden’s connections to terrorism, was able without difficulty to meet this notorious figure in the summer of 2001. Why American intelligence agents were unable to do so remains unexplained. John himself did not believe he was encountering a terrorist. John knew only that bin Laden had been generous in funding the military camp, and he was able to discern that Bin Laden was not a legitimate scholar or leader in the traditions of Islam.

The American invasion of Afghanistan commenced in October 2001. Few American troops were deployed in the northern reaches of Afghanistan. The Americans relied on Northern Alliance forces as their proxy, combined with aerial bombing, to displace the Taliban forces.

The front between the Taliban and the Northern Alliance in Takhar where John was stationed quickly dissolved after the bombing commenced. Taliban troops fled in panicked retreat to Kunduz. They marched without stop for two days, covering a distance of 50 miles of harsh, desert terrain. The conditions were hellish. The Northern Alliance troops killed all stragglers who fell behind, often castrating them before killing them.

The soldiers at Kunduz who wished to surrender faced a terrible dilemma. For years it had been the practice of the Northern Alliance to torture and murder prisoners of war. These crimes were legendary and well known to both the Taliban soldiers and the US government.

John’s lawyers later obtained from the American government an unclassified cable sent from the US embassy in Kunduz on 20 November 2001, to Colin Powell and the joint chiefs of staff. The cable was labelled “priority”. It bore the subject line: “Kunduz representatives appeal for a bombing halt during surrender negotiations.” It said that, according to local authorities in Kunduz, Taliban soldiers trapped in Kunduz “wanted to surrender to someone who would not kill them”. This was described as a “sticking point” in the surrender negotiations. The Taliban, according to the cable, had “proposed surrendering to the US or the UN”. The cable confirmed that the American authorities had informed their counterparts in Kunduz that “neither was a realistic option and suggested that they seek the [Red Cross's] involvement if they had not done so already”.

On 21 November 2001, the regional Taliban military leader, Mullah Fazel Mazloom, entered into face-to-face surrender negotiations with General Abdul Rashid Dostum of the Northern Alliance. The pact was destined not to end well. Dostum was a notorious figure who had served as an officer in the Soviet occupation government. Troops under Dostum’s command were believed responsible for the mass execution of an alleged 2,000 Taliban prisoners captured near Mazar-i-Sharif in 1997. The New Yorker magazine has referred to Dostum as “perhaps Afghanistan’s most notorious warlord”, a man who is “viewed by most human rights organisations as among the worst war criminals in the country”.

Nonetheless, a bargain was reached in which Dostum demanded and received a large cash payment, then agreed to grant approximately 400 disarmed Taliban soldiers safe passage through Dostum-controlled territory to the city of Herat. John, in haggard condition after the march through Takhar, was among those 400 troops.

The Taliban soldiers had no sooner laid down their arms when Dostum breached the agreement. Instead of the safe passage they had been promised, the soldiers were loaded into trucks and diverted to the ancient Qala-i-Janghi fortress on the outskirts of Mazar-i-Sharif. As the prisoners were being unloaded in the courtyard, John heard a loud explosion when one of the prisoners detonated a grenade that he had concealed. Two of Dostum’s men were killed in the blast.

Dostum’s soldiers quickly regained control, but they were infuriated. The prisoners were crowded into the basement of a sturdy, pink Soviet-built classroom building adjacent to a horse pasture. The “pink building”, as it became known, was at the centre of the events that unfolded over the next seven days. It was dark in the basement rooms into which the 400 men were crowded. To retaliate for the earlier attack, Dostum’s men dropped a grenade down an air duct that wounded or killed several prisoners, narrowly missing John, who spent the night crouched in a corner unable to sleep.

The next morning, Sunday 25 November, was sunny and warm at the Qala-i-Janghi fortress. Video footage shows a seemingly calm scene as the prisoners, with arms tied behind backs, are led out of the basement and made to kneel in rows in the horse pasture beside the pink building. The main sound on the film is the chirping of hundreds of birds. Dostum’s men were rough. Some prisoners were kicked and beaten with sticks. John was hit in the back of the head and nearly knocked unconscious. Nonetheless, he hoped they would be released for the agreed upon journey to Herat.

Although there were no US or British troops at the fortress that morning, two American intelligence agents were present, dressed in civilian clothes. They circulated among the prisoners, occasionally giving instructions to Dostum’s guards. One of them, Dave Tyson, was dressed in a long Afghan shirt and carried a large gun and a video camera. The other, Johnny “Mike” Spann, a former marine, was dressed in a black shirt and jeans. He was also armed. As they moved among the prisoners, they singled out captives for interrogation. They never identified themselves as American agents, and so they appeared to John and the other prisoners to be mercenaries working directly for General Dostum.

John was spotted and removed from the body of prisoners for questioning. The moment was recorded on video and later seen by millions on television.

In the video, John sits mutely on the ground as he is questioned about his nationality.

“Irish? Ireland?” Spann asks.

John remains silent.

“Who brought you here? … You believe in what you are doing that much, you’re willing to be killed here?”

Still no reply.

Tyson to Spann [for John's benefit]: “The problem is, he’s got to decide if he wants to live or die, and die here. We’re just going to leave him, and he’s going to [expletive] sit in prison the rest of his [expletive] short life. It’s his decision, man. We can only help the guys who want to talk to us. We can only get the Red Cross to help so many guys.”

I think it was apparent that Spann and Tyson were American agents, but because they were in the company of Dostum’s forces, unaccompanied by American troops, it clearly was not safe for John to talk to them. They meant business when they said John might be killed by Dostum, and that the Red Cross could only “help so many guys”. John was in extreme peril at that moment, and he knew it.

John was then returned to the main body of prisoners, while others were still being brought out of the basement and forced to kneel in the horse pasture. Then, suddenly, there was an explosion at the entrance to the basement, shouts were heard, and two prisoners grabbed the guards’ weapons. According to Guardian journalist Luke Harding’s account: “It was then … that Spann ‘did a Rambo’. As the remaining guards ran away, Spann flung himself to the ground and began raking the courtyard and its prisoners with automatic fire. Five or six prisoners jumped on him, and he disappeared beneath a heap of bodies.”

Spann’s body was later recovered by US special forces troops. He was the first American to die in combat in the American–Afghan war. He was buried with full military honours at Arlington National Cemetery, near Washington.

As soon as the uprising began, the Northern Alliance guards turned their weapons on the 400 bound prisoners, killing or severely wounding scores of them. Some prisoners tried to stand and run; they were gunned down. It was a slaughter. John tried to run, but he was shot in the right thigh and fell to the ground. For the next 12 hours he lay motionless, pretending to be dead.

There were two groups of Taliban prisoners in the fortress: those who chose to fight and those who hunkered down in the basement of the pink building and tried to survive. John was in the latter group. The prisoners who fought put up a fierce resistance, looting buildings for weapons and ammunition, firing from windows, rooftops, and ditches. Using a satellite phone, Dave Tyson, who had just seen his colleague killed, telephoned the US embassy in Tashkent, shouting: “We have lost control. Send in helicopters and troops.” US air controllers stationed outside the fortress walls called in air strikes, which struck with devastating impact inside the fortress.

More air raids were staged the next day, Monday, when a massive 2,000lb bomb was dropped. It missed its intended target, the pink building, and hit Dostum’s soldiers. This “friendly fire” incident brought an end to the air strikes. For John and the other Taliban soldiers holed up in the basement of the pink building, the percussive effect of the bomb shook them to their bones and left them trembling.

By Wednesday, the last of the resisting Taliban fighters had been killed, and Dostum’s soldiers were once again in full control of the fortress. Luke Harding was allowed into the compound along with some other journalists, and he found a horrific scene: “We had expected slaughter, but I was unprepared for its hellish scale … It was hard to take it all in. The dead and various parts of the dead … turned up wherever you looked: in thickets of willows and poplars; in waterlogged ditches; in storage rooms piled with ammunition boxes.” Harding observed that many of the Taliban prisoners had died with their hands tied behind their backs.

On Wednesday and Thursday, Dostum’s troops engaged in a sustained effort to kill the Taliban survivors who remained in the basement of the pink building, which they were afraid to enter themselves. More grenades were dropped down the air ducts and RPGs were fired directly into the basement. John received shrapnel wounds in his shoulder, back, ankle and calf, in addition to the bullet still lodged in his thigh. At one point, fuel was poured down the air ducts and a fire was ignited in which some fuel-drenched prisoners were burned to death. John, choking on the black smoke, lost consciousness. He awoke with the taste of gasoline in his mouth and loud explosions in the hall, as more rockets and grenades ricocheted through the basement.

On Friday, Dostum’s troops tried yet another tactic. They flooded the basement with cold water. Unable to stand on his own, John braced himself on a stick and a fellow soldier for the next 24 hours to avoid drowning in the waist-deep water, which was full of blood and waste. The next morning no one inside the fortress thought it possible that anyone was still alive in the pink building, but 86 of the prisoners had managed to survive the week-long ordeal. One of them was John Lindh.

On Saturday 1 December, the Red Cross arrived at the fortress and the survivors, who for several days had been trying to surrender, were finally allowed to exit the basement. When they emerged into the bright sunlight, they encountered a confusing horde of journalists, Red Cross workers, Dostum’s soldiers, and British and American troops.

That evening John and the other survivors were taken to a prison hospital in Sheberghan. Although wet and cold from the flooding of the basement, they were transported in open bed trucks in the frigid night air. At Sheberghan, John was carried on a stretcher and set down in a small room with approximately 15 other prisoners. CNN correspondent Robert Pelton came in accompanied by a US special forces soldier and a cameraman. Despite John’s protests, Pelton persisted in filming John and asking questions as an American medical officer administered morphine intravenously. By the time he departed a short time later, Pelton had captured on videotape an interview in which John said that his “heart had become attached” to the Taliban, that every Muslim aspired to become a shahid, or martyr, and that he had attended a training camp funded by Osama bin Laden.

The CNN interview became a sensation in the US. By mid-December, virtually every newspaper in America was running front-page stories about the American Taliban, and the broadcast media were saturated with features and commentary about John. Here was a “traitor” who had “fought against America” and aligned himself with the 11 September terrorists. Newsweek magazine published an issue with John’s photograph on the cover, under the caption “American Taliban”.

Beginning in early December, President Bush, vice-president Dick Cheney, members of the cabinet and other officials then embarked on a series of truly extraordinary public statements about John, referring to him repeatedly as an “al-Qaida fighter”, a terrorist and a traitor. I think it fair to say there has never been a case quite like this in the history of the US, in which officials at the highest levels of the government made such prejudicial statements about an individual citizen who had not yet been charged with any crime.

I will offer only a small sample of these statements. In an interview at the White House on 21 December 2001, President Bush said John was “the first American al-Qaida fighter that we have captured”. Donald Rumsfeld, secretary of defence, told reporters at a press briefing that John had been “captured by US forces with an AK-47 in his hands”. Colin Powell, secretary of state, said John had “brought shame upon his family”. Rudy Giuliani, New York mayor, remarked: “I believe the death penalty is the appropriate remedy to consider.”

John Ashcroft, the US attorney general, staged two televised press conferences in which he accused John of attacking the US. “Americans who love their country do not dedicate themselves to killing Americans,” he declared.

A federal judge took the unusual step of writing to the New York Times criticising the attorney general for violating “Justice Department guidelines on the release of information related to criminal proceedings that are intended to ensure that a defendant is not prejudiced when such an announcement is made”.

Even the ultra-conservative National Review thought Ashcroft had gone too far in making such prejudicial comments about a pending prosecution. It criticised the comments as “inappropriate” and “gratuitous”, stating that in the future “it would be better for the attorney general simply to announce the facts of the indictments, and to avoid extra comments which might unintentionally imperil successful prosecutions”.

I am a lawyer, trained in the law, with more than 25 years of experience. Never have I seen or read about a case in which a person accused of a crime was so conspicuously deprived of what we call “the presumption of innocence”. On the contrary, my son was presumed guilty, not only by government officials but by the entire mainstream journalism and media establishment in America. It was — and still is — widely reported in America that John Lindh is a “terrorist” who fought against the US.

Our lives back home were completely upturned by the sudden and pervasive notoriety of John’s case. We found ourselves dodging television cameras and reporters. In the first couple of days after John’s capture, I appeared on several news programmes in an effort to explain who John was and to ask for mercy. My sense of privacy and anonymity were at least temporarily destroyed.

All of us in John’s family also were wracked with anxiety about John’s own physical and emotional wellbeing. We had no source of information about John from within the government itself. They were holding our son incommunicado, even as President Bush and other officials made repeated statements about him. Anything we were able to learn about John came from the news media, not from the government.

Happily, our neighbours, friends, co-workers and even strangers in California were uniformly warm and supportive towards me, John’s mother and our other children. One Sunday, on my way to church, a friendly stranger stopped his car and shouted to me: “How’s John?”

Another enormous source of comfort to us came from James Brosnahan, a distinguished and courageous trial lawyer in San Francisco who agreed to represent John. On 3 December, Brosnahan took up his case, and from that day forward we had a valiant defender in him and the other lawyers who worked on the defence team. It felt as if a protective shield had been constructed around John and all of us in the family.

Once John was in the custody of the US military, the US government had to decide what to do with him. The FBI has estimated that during the 90s as many as 2,000 American citizens travelled to Muslim lands to take up arms voluntarily, and that as many as 400 American Muslims received training in military camps in Pakistan and Afghanistan. None of these American citizens was indicted, or labelled as traitor and terrorist. They were simply ignored by their government, which made no attempt to interfere with their travel. But the 9/11 attacks changed everything, and it was the timing of John’s capture that contributed to his fate. It soon became apparent to me that, rather than simply repatriate my wounded son, the government was intent on prosecuting him as a “terrorist”.

In the days and weeks that followed, John endured abuse from the US military that exceeded the bounds of what any civilised nation should tolerate, even in time of war. Donald Rumsfeld directly ordered the military to “take the gloves off” in questioning John.

On 7 December, wounded and still suffering from the effects of the trauma at Qala-i-Janghi, John was flown to Camp Rhino, a US marine base approximately 70 miles south of Kandahar. There he was taunted and threatened, stripped of his clothing, and bound naked to a stretcher with duct tape wrapped around his chest, arms, and ankles. Even before he got to Camp Rhino, John’s wrists and ankles were bound with plastic restraints that caused severe pain and left permanent scars — sure proof of torture. Still blindfolded, he was locked in an unheated metal shipping container that sat on the desert floor. He shivered uncontrollably in the bitter cold. Soldiers outside pounded on the sides, threatening to kill him.

After two days in these circumstances, John was removed from the shipping container and taken into a building at Camp Rhino. When his blindfold was removed, John found himself in front of a man who identified himself as an FBI agent and then read from an advice-of-rights form. When the agent reached the part that concerned right to counsel, he said: “Of course, there are no lawyers here.” John was not told his mother and I had retained an attorney for him who was ready and willing to travel to Afghanistan. Worried that he would be returned to the shipping container if he did not sign the form, John signed the waiver.

A lengthy interrogation followed, after which US military personnel put John back in the metal shipping container, although this time his leg restraints were loosened and he was no longer bound by duct tape or blindfolded. On 14 December, he was placed on board the USS Peleliu, where navy physicians observed that he was suffering from dehydration, hypothermia, and frostbite, and that he could not walk. On 15 December, the bullet was finally removed from his leg in a surgical procedure — more than two weeks after he had been transferred to the custody of the US military. The doctor who removed the bullet later told John’s lawyers there had been little or no healing of the wound, which he attributed to malnutrition and cold.

In June 2002, Newsweek obtained copies of internal email messages from the justice department’s ethics office commenting on the Lindh case as the events were unfolding in December 2001. The office specifically warned in advance against the interrogation tactics the FBI used at Camp Rhino, and concluded that the interrogation of John without his lawyer present would be unlawful and unethical. This advice was ignored by the FBI agent who conducted the interrogation.

Interestingly, in an 10 December email, one of the justice department ethics lawyers noted: “At present, we have no knowledge that he did anything other than join the Taliban.”

The government brought 10 counts against John in its overblown indictment. “If convicted of these charges,” attorney general Ashcroft boasted, “Walker Lindh could receive multiple life sentences, six additional 10-year sentences, plus 30 years.” The most serious count was a charge of conspiracy to commit murder in connection with the death of Mike Spann. The charge was groundless: the prisoner uprising at the Qala-i-Janghi fortress had been spontaneous and John was also a victim, not a participant.

John arrived back in the US on 23 January 2002 in chains aboard a military plane that landed at Washington Dulles International airport. The government selected Dulles so they could bring charges against John in northern Virginia, near the Pentagon (one of the 9/11 targets), where hostility against John was assured. He was flown by helicopter to the Alexandria City Jail. John’s mother and I tried to visit him that night, along with the lawyers we had retained for him, but we were turned away. We finally were able to see our son the next morning in a holding cell on the first floor of the US courthouse. His lawyers met him only briefly before his first appearance in the court that morning.

The case of United States of America v John Philip Walker Lindh was set for trial before Judge T.S. Ellis III. On 24 January, the judge announced he was setting a trial date for late August. We were horrified, as this would ensure that John would be on trial on the first anniversary of 9/11. It would be hard to conceive of a more prejudicial circumstance for a criminal defendant, especially in the wake of the intemperate statements attorney general Ashcroft had made in his two press conferences.

John’s lawyers filed a motion to “suppress” the statements that had been extracted him under duress at Camp Rhino. A hearing was scheduled in July 2001, which would have included testimony by John and others about the brutality he had suffered at the hands of US soldiers. On the eve of the hearing, the government prosecutors approached John’s attorneys and negotiated a plea agreement. It was apparent they did not want evidence of John’s torture to be introduced in court.

In the plea agreement John acknowledged that by serving as a soldier in Afghanistan he had violated the anti-Taliban economic sanctions imposed by President Clinton and extended by President Bush. This was, as John’s lawyer pointed out, a “regulatory infraction”. John also agreed to a “weapons charge”, which was used to enhance his prison sentence. In particular, he acknowledged that he had carried a rifle and two grenades while serving as a soldier in the Taliban army. All of the other counts in the indictment were dropped by the government, including the terrorism charges the attorney general had so strongly emphasised and the charge of csnspiracy to commit murder in the death of Mike Spann.

At the insistence of defence secretary Rumsfeld, the plea agreement also included a clause in which John relinquished his claims of torture.

The punishment in the plea agreement was by any measure harsh: 20 years of imprisonment, commencing on 1 December 2001, the day John came into the hands of US forces in Afghanistan. The prosecutors told John’s attorneys that the White House insisted on the lengthy sentence, and that they could not negotiate downward.

On 4 October 2002, the judge approved the plea agreement as “just and reasonable” and sentenced John to prison. Before the sentence was pronounced, John was allowed to read a prepared statement, which provided a moment of intense drama in the crowded courtroom. He spoke with strong emotion. He explained why he had gone to Afghanistan to help the Taliban in their fight with the Northern Alliance, saying it arose from his compassion for the suffering of ordinary people who had been subjected to atrocities committed by the Northern Alliance. He explained that when he went to Afghanistan he “saw the war between the Taliban and the Northern Alliance as a continuation of the war between the mujahideen and the Soviets”.

John strongly condemned terrorism. “I went to Afghanistan with the intention of fighting against terrorism and oppression.” He had acted, he said, out of a sense of religious duty and he condemned terrorism as being “completely against Islam”. He said: “I have never supported terrorism in any form and never would.”

After a brief recess, the judge granted a request by John Spann, the father of Mike Spann, to address the court and express his dissatisfaction with the plea agreement. He began by saying that he, his family, and many other people believed that John had played a role in the killing of Mike Spann. Judge Ellis interrupted and said: “Let me be clear about that. The government has no evidence of that.” Spann responded: “I understand.” The judge politely explained that the “suspicions, the inferences you draw from the facts are not enough to warrant a jury conviction”. He said that Mike Spann had died a hero, and that among the things he died for was the principle that “we don’t convict people in the absence of proof beyond a reasonable doubt”.

Osama bin Laden is dead. John Lindh, now 30 years old, remains in prison. He spends most of his time pursuing his study of the Qur’an and Islamic scholarship. He also reads widely in a variety of nonfiction subjects, especially history and politics. He remains a devout Muslim.

As a father, I am grateful that John survived his ordeal, and I am pleased that he maintains his good-natured disposition. I am especially proud of the dignity he displayed throughout his ordeal overseas and in court.

Other than his lawyers, the only visitors John has been permitted during all his years in prison are those of us in his immediate family. We treasure these visits. We are not allowed any sort of physical contact with John, and are kept separated from him by a glass partition. We must speak via telephones, and everything we say is monitored and recorded by a government agent who sits in an adjoining room. Despite these constraints, our conversations are free-flowing and punctuated with humour.

A commentator at the Hoover Institution at Stanford University called this “a petty prosecution” that was “unworthy of a great country”. But it was more than petty, in my view; it was brutally inhumane.

My hope and prayer is that at some point rational, fair-minded officials in the American government will see the wisdom in releasing John from prison, rather than making him serve the entire 20-year sentence. His continued incarceration serves no good purpose. Releasing John from prison would help restore America’s image in the world, and particularly among Muslim people, as a humane country committed to the rule of law.

Note: The Observer pointed out that Frank Lindh had donated the fee for this article to charity.

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.

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.

As the groups point out, these individuals — who include Sgt. Joe Darby, former Navy General Counsel Alberto Mora, Col. Morris Davis, Lt. Col. V. Stuart Couch, Lt. Col. Darrel Vandeveld and former CIA Inspector General John Helgersen — upheld America’s values and its laws when the Bush administration had moved over to the “dark side” embraced by former Vice President Dick Cheney, and their contributions deserve to be officially acknowledged, especially as others who actively contributed to the illegal and immoral torture program were rewarded by President Bush.

Obviously, the elephant in the room, when it comes to asking President Obama to honor those who publicly opposed the Bush administration’s torture program, is that this should also be accompanied by a call for the officials who authorized the program (up to and including President Bush, who boasted about authorizing waterboarding — a crime — in his autobiography last year) or attempted to justify the torture program (like John Yoo and Jay S. Bybee in the Justice Department’s Office of Legal Counsel, who wrote and approved what are now known as the “torture memos”) to be prosecuted according to the US federal anti-torture statute.

However, while I regard this as a serious omission, I’m prepared to endorse this campaign, as it is obviously designed to insert a resounding anti-torture message into the mainstream by praising those patriotic Americans who opposed torture rather than through the more confrontational means of demanding that the President — or his Attorney General — fulfil their obligations under the anti-torture statute and the UN Convention Against Torture. It is wrong that anyone should have to tiptoe around this issue, but then America, here and now, rocked by President Obama’s lack of courage and by the mad wailing of his unprincipled and mostly Republican detractors, is not a sane place.

I’m cross-posting below the letter, a follow-up article by the ACLU, telling more of the stories of those who resisted the Bush administration’s lawlessness, and an op-ed from the New York Times, by Jameel Jaffer, deputy legal director at the ACLU, and Larry Siems, director of the “Freedom to Write” program at the PEN American Center, which kick-started the entire process.

Please note that you too can be involved, by visiting this page and signing the petition to President Obama. Whether you are in the US or anywhere else in the world, please consider adding your name to those calling for President Obama to acknowledge those who shone a light for justice in the darkest hours of America’s recent history.

The letter to President Obama

June 16, 2011

President Barack Obama
The White House
1600 Pennsylvania Avenue, N.W.
Washington, D.C. 20500

Dear President Obama:

We were among the many Americans who strongly supported your executive order prohibiting American personnel from using torture. As you said when you issued the executive order in January 2009 and again at the National Archives in May 2009, torture is inconsistent with our laws and our values and counterproductive as a matter of national security policy.

We are writing to you now to urge you formally to honor the soldiers and public servants who, when our nation went off course, stayed true to our nation’s most fundamental ideals. Honoring these brave men and women would be important in any circumstances, but it is especially crucial now because some have used your administration’s success in locating Osama bin Laden to reopen the debate about torture and to propose that the United States should once again adopt torture as a method of gathering intelligence. Formally commending those who rejected torture would send a necessary message that torture is — and will always be — inconsistent with who we are as a nation.

In your remarks at the National Archives, you reflected on the United States’ response to the terrorist attacks of September 2001. You said, rightly, that “all too often our government made decisions based on fear rather than foresight.” Perhaps worst of all, as you observed, “during this season of fear, too many of us — Democrats and Republicans, politicians, journalists, and citizens — fell silent.”

Not everyone remained silent. As advocates from the ACLU and PEN American Center recently observed, “[t]hroughout the military, and throughout the government, brave men and women reported abuse, challenged interrogation directives that permitted abuse, and refused to participate in an interrogation and detention program that they believed to be unwise, unlawful and immoral.”

There were soldiers and government employees alike that recognized — as you did — that in using torture not only had we “failed to rely on our legal traditions and time-tested institutions” and “failed to use our values as a compass,” but that we had compromised the security we sought to protect.

We owe a debt to the public servants who rejected torture. The US government has a long history of honoring the brave acts of our soldiers and public servants who have courageously taken a stand to preserve our government’s integrity and American values. Recognizing those who opposed the violation of the most fundamental humane treatment standards would send a message to current government personnel across all agencies that they have a personal responsibility to ensure that torture prohibitions are upheld. Today, as voices are raised once again in support of torture, your administration should reinforce the public’s understanding that our national values require a complete rejection of prisoner abuse.

Honoring those who stood up against cruelty would not exhaust our national responsibility to reckon with the abuses that were committed in our name, but it would be a significant step, and a crucial one. By officially acknowledging those public servants who safeguarded our principles even as fear caused us to compromise our commitments, your administration would send a clear message to all Americans about who we are and what we stand for as a nation.

Sincerely,

American Civil Liberties Union
Amnesty International, USA
Center for Victims of Torture
Human Rights First
Human Rights Watch
National Religious Campaign Against Torture
Open Society Foundations
PEN American Center
Physicians for Human Rights
The Rutherford Institute

In an accompanying article, the ACLU spelled out who some of the principled individuals are who refused to pt their allegiance to the President above their allegiance to the Constitution.

Honor Those Who Said “No” To Torture

President Obama has disavowed torture, but he has been reluctant to examine the Bush administration’s abusive interrogation practices. By refusing to examine the past, we betray the public servants who risked so much to reverse what they knew was a disastrous and shameful course.

These courageous individuals include:

Sgt. Joe Darby is former Army Reservist best known as the Abu Ghraib whistleblower. Then 24-year-old Darby was serving in Iraq when he discovered a set of photographs showing other members of his company torturing prisoners at the Abu Ghraib prison. The discovery anguished him, but ultimately he burned the photos onto a CD and delivered it with an anonymous letter to the Army’s Criminal Investigation Command. Celebrated by some, and threatened with death by others, Darby has said that he “never regretted for one second” turning in the photographs.

Former Navy General Counsel Alberto Mora led an effort inside the Department of Defense to oppose legal theories put forward by Justice Department lawyers that justified the use of coercive interrogation techniques. Mora argued that the techniques were ineffective and unlawful.

Col. Morris Davis, an Air Force officer and lawyer, was appointed to serve as the third Chief Prosecutor in the Guantánamo military commissions system. Col. Davis made clear that he would never permit the introduction of evidence extracted through waterboarding and insisted that the proceedings be transparent. Col. Davis resigned from his post in 2007 [after he was placed in a chain of command under Pentagon General Counsel William J. Haynes ii, who had played a role in introducing and defending the torture program, and who wanted information derived through the use torture to be used in the military commissions].

Lt. Col. V. Stuart Couch, a veteran Marine pilot and prosecutor, volunteered to return to active duty to help achieve justice for a fellow Marine who had been co-pilot on the second plane that struck the World Trade Center. A self-identified evangelical Christian, Couch ultimately decided he could not seek a conviction based on statements obtained through torture [in the case of Mohamedou Ould Slahi], stating that the abuse violated basic religious precepts of the dignity of every human being.

Lt. Col. Darrel Vandeveld was the lead prosecutor in the military commissions case against detainee Mohammed Jawad, who was a teenager when he was captured in Afghanistan. After learning about the abuse and torture that Jawad was subject to in custody, Vandeveld decided he could no longer continue with the case. He later filed an affidavit in support of the child prisoner’s case, referring to himself as Jawad’s “former prosecutor and now-repentant persecutor.”

Former CIA Inspector General John Helgersen wrote a meticulously researched report [PDF] documenting some of the abuses that had taken place in CIA prisons, questioning the legality of the policies that had led to the abuse, and characterizing some of the agency’s activities as inhumane.

So far, our official history has honored only those who approved torture, not the courageous men and women who rejected it. For example:

George J. Tenet, former CIA director who signed off on torture, was awarded the nation’s highest civilian honor, the Presidential Medal of Freedom, by President Bush.

Geoffrey D. Miller, a retired United States Army Major General who oversaw the torture of prisoners at Guantánamo and Abu Ghraib, was awarded the Distinguished Service Medal, the highest non-valorous military and civilian decoration of the United States military.

Steven Bradbury, a former Justice Department lawyer responsible for some of the infamous “torture memos,” received awards from the Justice Department, the Defense Department and the National Security Agency.

Top officials of the Bush Administration approved the torture of prisoners, but brave men and women throughout the military and the government challenged the policies, called out abuses, and worked to end the use of coerced evidence. These courageous individuals should be honored for their integrity and their commitment to real American values.

Honoring Those Who Said No
By Jameel Jafeer and Larry Seims, New York Times, April 27, 2011

In January 2004, Spec. Joseph M. Darby, a 24-year-old Army reservist in Iraq, discovered a set of photographs showing other members of his company torturing prisoners at the Abu Ghraib prison. The discovery anguished him, and he struggled over how to respond. “I had the choice between what I knew was morally right, and my loyalty to other soldiers,” he recalled later. “I couldn’t have it both ways.”

So he copied the photographs onto a CD, sealed it in an envelope, and delivered the envelope and an anonymous letter to the Army’s Criminal Investigation Command. Three months later — seven years ago today — the photographs were published. Specialist Darby soon found himself the target of death threats, but he had no regrets. Testifying at a pretrial hearing for a fellow soldier, he said that the abuse “violated everything I personally believed in and all I’d been taught about the rules of war.”

He was not alone. Throughout the military, and throughout the government, brave men and women reported abuse, challenged interrogation directives that permitted abuse, and refused to participate in an interrogation and detention program that they believed to be unwise, unlawful and immoral. The Bush administration’s most senior officials expressly approved the torture of prisoners, but there was dissent in every agency, and at every level.

There are many things the Obama administration could do to repair some of the damage done by the last administration, but among the simplest and most urgent is this: It could recognize and honor the public servants who rejected torture.

In the thousands of pages that have been made public about the detention and interrogation program, we hear the voices of the prisoners who were tortured and the voices of those who inflicted their suffering. But we also hear the voices of the many Americans who said no.

Some of these voices belong to people whose names have been redacted from the public record. In Afghanistan, soldiers and contractors recoiled at interrogation techniques they witnessed. After seeing a prisoner beaten by a mysterious special forces team, one interpreter filed an official complaint. “I was very upset that such a thing could happen,” she wrote. “I take my responsibilities as an interrogator and as a human being very seriously.”

Similarly, after Defense Secretary Donald H. Rumsfeld told interrogators that they could hold Guantánamo prisoners in “stress positions,” barrage them with strobe lights and loud music, and hold them in freezing-cold cells, FBI agents at the naval base refused to participate in the interrogations and complained to FBI headquarters.

But some of the names we know. When Alberto J. Mora, the Navy’s general counsel, learned of the interrogation directive that Mr. Rumsfeld issued at Guantánamo, he campaigned to have it revoked, arguing that it was “unlawful and unworthy of the military services.” Guantánamo prosecutors resigned rather than present cases founded on coerced evidence. One, Lt. Col. Stuart Couch of the Marines, said the abuse violated basic religious precepts of human dignity. Another, Lt. Col. Darrel J. Vandeveld of the Army, filed an affidavit in support of the child prisoner he had been assigned to prosecute.

There were dissenters even within the CIA. Early in 2003, the agency’s inspector general, John L. Helgerson, began an investigation after agents in the field expressed concern that the agency’s secret-site interrogations “might involve violations of human rights.” Mr. Helgerson, a 30-year agency veteran, was himself a kind of dissenter: in 2004 he sent the agency a meticulously researched report documenting some of the abuses that had taken place in CIA-run prisons, questioning the wisdom and legality of the policies that had led to those abuses, and characterizing some of the agency’s activities as inhumane. Without his investigation and report, the torture program might still be operating today.

Thus far, though, our official history has honored only those who approved torture, not those who rejected it. In December 2004, as the leadership of the CIA was debating whether to destroy videotapes of prisoners being waterboarded in the agency’s secret prisons, President Bush bestowed the nation’s highest civilian honor, the Presidential Medal of Freedom, on George J. Tenet, the former C.I.A. director who had signed off on the torture sessions. In 2006, the Army major general who oversaw the torture of prisoners at Guantánamo was given the Distinguished Service Medal. One of the lawyers responsible for the Bush administration’s “torture memos” received awards from the Justice Department, the Defense Department and the National Security Agency.

President Obama has disavowed torture, but he has been unenthusiastic about examining the last administration’s interrogation policies. He has said the country should look to the future rather than the past. But averting our eyes from recent history means not only that we fail in our legal and moral duty to provide redress to victims of torture, but also that we betray the public servants who risked so much to reverse what they knew was a disastrous and shameful course.

Those who stayed true to our values and stood up against cruelty are worthy of a wide range of civilian and military commendations, up to and including the Presidential Medal of Freedom. Honoring them is a way of encouraging the best in our public servants, now and in the future. It is also a way of honoring the best in ourselves.

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.

In the three years since that landmark case, Boumediene v. Bush, the prisoners’ initial success in the District Court in Washington DC., where they won 38 of the first 52 cases, has been abruptly halted, as right-wing judges in the D.C. Circuit Court, led by Senior Judge A. Raymond Randolph, have pushed back, insisting that little evidence is required to continue holding men indefinitely, even if, as in most cases, they were nothing more than insignificant foot soldiers for the Taliban, rather than international terrorists.

In response to this repeated hurling down of gauntlets by Judge Randolph, who is notorious for approving every piece of Guantánamo-related legislation that was subsequently overturned by the Supreme Court, there has been no repeat of Boumediene. In the last few months, lawyers for the prisoners have tried to undermine Judge Randolph and his colleagues on numerous fronts. Eight Guantánamo cases have made their way to the Supreme Court, as SCOTUSblog reported back in December, but all have failed.

Some of these cases have previously been discussed here. There are, for example, the poor Uighurs, innocent Muslims from China’s Xinjiang province, seized by mistake but trapped in Guantánamo because no one wants to allow them to be resettled in the US. Their attempt to secure justice in the courts finally came to an end last month, when the Supreme Court refused to consider their case, leading to an extraordinary and eloquent lament by one of their attorneys, Sabin Willett.

Before that, Judge Laurence H. Silberman, another aged right-winger, had wandered off on an extraordinary tangent about the perceived threat of terrorists in the case of a generally insignificant Yemeni, Yasein Esmail, who lost his appeal, and in March another generally insignificant Yemeni, Uthman Abdul Rahim Mohammed Uthman, whose habeas petition was granted in February 2010 by a judge who perceived that the government’s evidence consisted entirely of statements made by prisoners who had been tortured or whose testimony was officially regarded as unreliable, had his successful petition reversed. On that occasion, the culprits were a panel of judges that included another well-known right-winger, Judge Brett Kavanaugh, who declared, as ProPublica reported, “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.”

The Supreme Court fails to tackle torture in the past

Over the last two weeks, the Supreme Court has cemented its reputation as a court that has turned its back on the lingering injustices of the Bush administration, which have, in addition, been endorsed and defended by President Obama. In the first instance, on May 16, the Court refused to grant a day in court to five victims of “extraordinary rendition,” who have been trying, since May 2007, to have a court hear their stories of how they were abducted and sent to be tortured in locations around the world with the help of Jeppesen Dataplan, Inc., a subsidiary of Boeing, which, it is clear, acted as the CIA’s travel agent for torture.

The five plaintiffs — who include the British residents Binyam Mohamed, rendered to torture in Morocco, and Bisher al-Rawi, kidnapped on business in the Gambia and rendered to the CIA’s “Dark Prison” in Afghanistan — won a crucial appeal in their case in March 2009, in the Ninth Circuit Court of Appeals, when the government’s attempt to protect itself (and its predecessors) from scrutiny by invoking the little known and little used “state secrets doctrine” was thwarted by a panel of three judges, who ruled that the executive branch’s claim that it was entitled to dismiss lawsuits merely by invoking the words “national security” would “effectively cordon off all secret actions from judicial scrutiny, immunizing the CIA and its partners from the demands and limits of the law.”

That ruling, however, was overturned last September, when a full panel of judges supported the government’s unprincipled use of the “state secrets doctrine.” As I explained at the time:

[W]hen asked to rule on whether these five men should have their day in court, or whether the government should be allowed to dismiss their lawsuit by claiming that the exposure of any information relating to “extraordinary rendition” and torture threatened the national security of the United States, American justice contemplated looking at itself squarely in the mirror, telling truth to power, and allowing these men the opportunity to address what had happened to them in a court of law, but, at the last minute, flinched and turned away. By six votes to five, the Court decided that, in the interests of national security, the men’s day in court would be denied.

In declining to review the men’s case, the Supreme Court has, as described in a strongly worded editorial in the New York Times, “abdicated [its] duty” and allowed “a major stain on American justice” to proceed unchecked.

The Times‘ editors did not mince their words. After noting that the abduction of “often innocent” foreigners, and their rendition to “countries well known for torturing prisoners” was “central to President George W. Bush’s antiterrorism policy,” and that he “then used wildly broad claims of state secrets to thwart any accountability for this immoral practice,” they added that “President Obama has adopted the same legal tactic of using the secrecy privilege to kill lawsuits,” and that therefore the only hope lay with the courts.

The editors’ verdict on the Supreme Court was harsh but completely justified. After noting first of all that the Ninth Circuit Court of Appeals “gave in to the pretzel logic shaped by the Bush administration that allowing the torture victims a chance to make their case in court using nonsecret evidence would risk divulging state secrets,” and that the Supreme Court has now “allowed that nonsense to stand,” the editors added:

By slamming its door on these victims without explanation, it removed the essential judicial block against the executive branch’s use of claims of secrecy to cover up misconduct that shocks the conscience. It has further diminished any hope of obtaining a definitive ruling that the government’s conduct was illegal — a vital step for repairing damage and preventing future abuses.

They also stated:

The Supreme Court should have grabbed the case and used it to rein in the distorted use of the state secrets privilege, a court-created doctrine meant to shield sensitive evidence in actions against the government, not to dismiss cases before evidence is produced.

In conclusion, the Times‘ editors pointed out that this was “not the first time the Supreme Court has abdicated its responsibility to hear cases involving national security questions of this sort,” lamenting that not even a single one of the justices was prepared to offer “a dissent or comment to let the world know that the court’s indifference was not unanimous,” either in the Jeppesen case, or, last year, in the case of Maher Arar, an innocent Canadian sent to Syria by George W. Bush to be tortured, or even, in 2007, in the case of Khaled El-Masri, a German citizen, seized by mistake, who was rendered to a torture prison in Afghanistan.

“What the world sees,” the editors added, “is rendition victims blocked from American courts while architects of their torment write books bragging about their role in this legal and moral travesty … The Supreme Court’s action ends an important legal case, but not President Obama’s duty to acknowledge what occurred, and to come up with ways to compensate torture victims and advance accountability.”

Unfortunately, as they also added, “It is hard, right now, to be optimistic.”

The Supreme Court fails to tackle torture in the future

In its second recent abdication of responsibility, the Supreme Court dismissed the last of the Guantánamo-related cases to come before them on May 23, with only two dissenters, Justice Stephen G. Breyer and Justice Sonia Sotomayor, prepared to consider Khadr v. Obama, a case named after Omar Khadr, but now, after Khadr accepted a plea deal last October, dealing solely with the question of whether the courts have any say in where Guantánamo prisoners are sent.

Related to Kiyemba v. Obama, the Uighurs’ case, which involved other questions regarding the courts’ ability to dictate where Guantánamo prisoners are — or are not — sent, the focus in Khadr was an attempt by prisoners to prevent the administration from forcibly repatriating them to countries where they fear the risk of torture. In defense of the administration, this has not often been an issue, although President Bush repatriated two Tunisians unwillingly, and Obama has done the same with two Algerians, but it remains a worry (as, for example, in the case of Ahmed Belbacha, an Algerian who is terrified of being repatriated), and it is, of course, disappointing that only two justices were prepared to consider the prisoners’ legitimate fears.

Instead, they have, once more, handed the decision making process to the D.C. Circuit Court, where judges, using a narrow reading of an Iraq detention case (Munaf v. Geren) decided on the same day as Boumediene, have ruled, as SCOTUSblog described it, that they have almost no power “to control the ultimate fate of Guantánamo detainees,” and that the prisoners themselves “have no other constitutional rights than a basic right to file a habeas challenge to their detention.” The Circuit Court also ruled that a 2005 federal immigration law “bars a Guantánamo detainee from making a claim in US court that a transfer to a given nation will violate a global treaty against torture.”

With this decision, as SCOTUSblog noted, “The chances that the Supreme Court will review the way lower courts have implemented its constitutional decision on the legal rights of detainees at Guantánamo Bay moved close to the vanishing point .” It was also noted, in what could almost be read as a sad epitaph for any hope that the law will ever lead to the closure of Guantánamo:

In terms of constitutional history, the Court’s sweeping declarations in the Boumediene decision, about the role of the judiciary in keeping the government from switching the Constitution on and off, now appear to have meant far less as a check on Executive power than they had seemed when that ruling came down in June 2008. And, while that decision might once have seemed to hold out the promise of ending the detention of many held at Guantánamo, it now appears to mean that some will remain at Guantánamo for years to come, and that facility will remain open indefinitely.

And that, in the end, is not something that the Supreme Court foresaw when the ruling in Boumediene was issued, and nor, furthermore, should it be something that the Court can now continue to ignore indefinitely.

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, as “The Supreme Court’s Failure to Tackle Torture, Now and Forever.”

However, although it’s reassuring to see renewed interest in Guantánamo — and to see a decent amount of insightful reporting about the crimes and distortions of the Bush administration in the reporting of WikiLeaks’ media partners in the US and throughout Europe — I’m not yet persuaded that the release of these documents has caused significant enough ripples in the US to effect any kind of change to the existing policies.

This may not be possible — given the current deplorable state of US politics, and the New York Times‘ damaging introduction to its own unofficial release of the WikiLeaks documents last week — and it may be, as I have been suggesting all year, that the only answer to the appalling inertia regarding Guantánamo is for the international community, including the UN, to reassert the kind of criticism to which George W. Bush was particularly subjected in his second term in office.

With more articles by WikiLeaks’ media partners to be published in the weeks to come, and with my own detailed analyses of some of the documents also forthcoming, the story is far from over, but for now, as I continue to release links to interviews in which I discuss the importance of the released documents — and the particular importance of recognizing that the supposed intelligence in the files is in fact thoroughly infected with the unreliable testimony of tortured, coerced and bribed prisoners — I’m posting below the notes I wrote for WikiLeaks explaining how to read and understand the different sections in the documents, and also the introductions I wrote for a handful of briefing documents that were also made available last week by WikiLeaks.

Of particular interest, I hope, is my observation, under “5. Capture Information,” that the “Reasons for Transfer” included in the documents, which have been repeatedly cited by media outlets as an explanation of why the prisoners were transferred to Guantánamo, are, in fact, lies that were grafted onto the prisoners’ files after their arrival at Guantánamo. This is because, contrary to the impression gven in the files, no significant screening process took place before the prisoners’ transfer. As a senior interrogator who worked in Afghanistan explained in a book that he wrote about his experiences, every prisoner who ended up in US custody had to be sent to Guantánamo, even though the majority were not even seized by US forces, but were seized by their Afghan and Pakistani allies at a time when substantial bounty payments for “al-Qaeda and Taliban suspects” were widespread.

No exceptions to these rules were allowed, which explains why Maj. Gen. Michael Dunlavey, an early commander at the prison, complained about the large number of “Mickey Mouse prisoners” that he was expected to deal with, and the lack of screening also helps to explain why Marine Brig. Gen. Mike Lehnert, the prison’s first commander, told the BBC in February 2002 (before he was silenced) that “A large number [of the prisoners] claim to be Taliban, a smaller number we have been able to confirm as al-Qaeda, and a rather large number in the middle we have not been able to determine their status. Many of the detainees are not forthcoming. Many have been interviewed as many as four times, each time providing a different name and different information.”

How to Read WikiLeaks’ Guantánamo Files

The nearly 800 documents in WikiLeaks’ latest release of classified US documents are memoranda from Joint Task Force Guantánamo (JTF-GTMO), the combined force in charge of the US “War on Terror” prison at Guantánamo Bay, Cuba, to US Southern Command, in Miami, Florida, regarding the disposition of the prisoners.

Written between 2002 and 2008, the memoranda were all marked as “secret,” and their subject was whether to continue holding a prisoner, or whether to recommend his release (described as his “transfer” — to the custody of his own government, or that of some other government). They were obviously not conclusive in and of themselves, as final decisions about the disposition of prisoners were taken at a higher level, but they are very significant, as they represent not only the opinions of JTF-GTMO, but also the Criminal Investigation Task Force, created by the Department of Defense to conduct interrogations in the “War on Terror,” and the BSCTs, the behavioral science teams consisting of psychologists who had a major say in the “exploitation” of prisoners in interrogation.

Under the heading, “JTF-GTMO Detainee Assessment,” the memos generally contain nine sections, describing the prisoners as follows, although the earlier examples, especially those dealing with prisoners released — or recommended for release — between 2002 and 2004, may have less detailed analyses than the following:

1. Personal information

Each prisoner is identified by name, by aliases, which the US claims to have identified, by place and date of birth, by citizenship, and by Internment Serial Number (ISN). These long lists of numbers and letters — e.g. US9YM-000027DP — are used to identify the prisoners in Guantánamo, helping to dehumanize them, as intended, by doing away with their names. The most significant section is the number towards the end, which is generally shortened, so that the example above would be known as ISN 027. In the files, the prisoners are identified by nationality, with 47 countries in total listed alphabetically, from “az” for Afghanistan to “ym” for Yemen.

2. Health

This section describes whether or not the prisoner in question has mental health issues and/or physical health issues. Many are judged to be in good health, but there are some shocking examples of prisoners with severe mental and/or physical problems.

3. JTF-GTMO Assessment

a. Under “Recommendation,” the Task Force explains whether a prisoner should continue to be held, or should be released.

b. Under “Executive Summary,” the Task Force briefly explains its reasoning, and, in more recent cases, also explains whether the prisoner is a low, medium or high risk as a threat to the US and its allies and as a threat in detention (i.e. based on their behavior in Guantánamo), and also whether they are regarded as of low, medium or high intelligence value.

c. Under “Summary of Changes,” the Task Force explains whether there has been any change in the information provided since the last appraisal (generally, the prisoners are appraised on an annual basis).

4. Detainee’s Account of Events

Based on the prisoners’ own testimony, this section puts together an account of their history, and how they came to be seized, in Afghanistan, Pakistan or elsewhere, based on their own words.

5. Capture Information

This section explains how and where the prisoners were seized, and is followed by a description of their possessions at the time of capture, the date of their transfer to Guantánamo, and, spuriously, “Reasons for Transfer to JTF-GTMO,” which lists alleged reasons for the prisoners’ transfer, such as knowledge of certain topics for exploitation through interrogation. The reason that this is unconvincing is because, as former interrogator Chris Mackey (a pseudonym) explained in his book The Interrogators, the US high command, based in Camp Doha, Kuwait, stipulated that every prisoner who ended up in US custody had to be transferred to Guantánamo — and that there were no exceptions; in other words, the “Reasons for Transfer” were grafted on afterwards, as an attempt to justify the largely random rounding-up of prisoners.

6. Evaluation of Detainee’s Account

In this section, the Task Force analyzes whether or not they find the prisoners’ accounts convincing.

7. Detainee Threat

This section is the most significant from the point of view of the supposed intelligence used to justify the detention of prisoners. After “Assessment,” which reiterates the conclusion at 3b, the main section, “Reasons for Continued Detention,” may, at first glance, look convincing, but it must be stressed that, for the most part, it consists of little more than unreliable statements made by the prisoners’ fellow prisoners — either in Guantánamo, or in secret prisons run by the CIA, where torture and other forms of coercion were widespread, or through more subtle means in Guantánamo, where compliant prisoners who were prepared to make statements about their fellow prisoners were rewarded with better treatment. Some examples are available on the homepage for the release of these documents (cross-posted with links here).

With this in mind, it should be noted that there are good reasons why Obama administration officials, in the interagency Guantánamo Review Task Force established by the President to review the cases of the 241 prisoners still held in Guantánamo when he took office, concluded that only 36 could be prosecuted.

The final part of this section, “Detainee’s Conduct,” analyzes in detail how the prisoners have behaved during their imprisonment, with exact figures cited for examples of “Disciplinary Infraction.”

8. Detainee Intelligence Value Assessment

After reiterating the intelligence assessment at 3b and recapping on the prisoners’ alleged status, this section primarily assesses which areas of intelligence remain to be “exploited,” according to the Task Force.

9. EC Status

The final section notes whether or not the prisoner in question is still regarded as an “enemy combatant,” based on the findings of the Combatant Status Review Tribunals, held in 2004-05 to ascertain whether, on capture, the prisoners had been correctly labeled as “enemy combatants.” Out of 558 cases, just 38 prisoners were assessed as being “no longer enemy combatants,” and in some cases, when the result went in the prisoners’ favor, the military convened new panels until it got the desired result.

*****

In addition, please find below the introductions that I wrote to three briefing documents that were put up on WikiLeaks’ Guantánamo Files page last week, to accompany the release of the prisoner files (which have now almost all been released). I also wrote the introduction to a classification document, whch is not incuded here, because it is probably only of interest those who take a professional interest in the US military’s obsession with classification, but I hope that the three briefing documents provide a fascinating accompaniment to the prisoner files.

Cover Story Assessment

This document, a four-page briefing paper entitled, “Assessment of Afghanistan Travels and Islamic Duties as they Pertain to Interrogation,” was published in August 2004 and provides interrogators with information about the perceived activities of foreigners in Afghanistan, and the types of cover stories that were allegedly used on a regular basis by foreigners who had traveled there for jihad.

While this may well have proved useful in identifying individuals who were attempting to hide their true motives, it also undoubtedly contributed to an atmosphere in which everyone who claimed to be innocent was regarded as having been trained by al-Qaeda to resist interrogation, leading to confirmation bias, even if, as was the case with many of those held, they were indeed innocent.

EC Threat Indicators

This document, a 17-page briefing paper entitled, “JTF-GTMO Matrix of Threat Indicators for Enemy Combatants,” was intended to help interrogators “to determine a detainee‟s capabilities and intentions to pose a terrorist threat if the detainee were given the opportunity,” primarily through the use of three types of indicators: “1) the detainee himself provides acknowledgement of a fact; 2) another detainee, document, government, etc. provides an identification of the detainee; and 3) analysis of the detainee‟s timeline, activities, and associates in context with other known events and individuals.”

The document contains detailed lists of places where prisoners were captured, which are regarded as suspicious, and groupings of prisoners regarded as significant. It also includes signs allegedly indicating military training and fighting, indicators of membership in al-Qaeda and other terrorist groups, including travel routes and locations allegedly frequented by al-Qaeda members, and an analysis of what are regarded as common cover stories.

Also included are similar analyses regarding the Taliban or “Anti-Coalition Militia,” and a worryingly large list of “Associated Forces,” including relief organizations that were not regarded as a threat outside of Guantánamo, and the huge missionary organization Jama’at Al-Tablighi, which has millions of members worldwide, but which was routinely described in Guantánamo as a front for terrorist activities.

JTF-GTMO Threat Matrix

This two-page document, entitled, “JTF-GTMO Detainee Recommendation and Threat Matrix,” was published in May 2008 and explains the different categories of prisoners at Guantánamo, designated as high-risk, medium-risk and low-risk, and the recommendations for their disposition, which consist of “Continued Detention,” “Transfer Out of DoD Control,” and “Release.”

It should be noted that there is no category for innocent people seized by mistake, even though the documents themselves reveal that many of the prisoners were indeed seized by mistake, and were therefore no risk at all, although two of the definitions of a low-risk prisoner are that they “had little or no terrorist sponsored or related training” and that they “had few, if any, associations with terrorists, terrorist groups, or terrorist support networks.”

The document also includes the following alarming footnote about prisoners facing “Imminent Death”: “Medical prognosis indicating death within 6-12 months may be justification for humanitarian transfer.”

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.

This is an important article, in which Hertzberg contrasts Guantánamo unfavorably with how the United States treated prisoners of war in the Second World War, describing how a “relative handful of shackled, isolated prisoners has somehow been permitted to engender a miasma of popular fear and political cowardice that contrasts shamefully with the matter-of-fact courage of an earlier and simpler time.” In addition, when writing about how Obama’s promise to close Guantánamo has not come to pass, he correctly identifies the reasons as “a combination of political nihilism on the part of Republicans, political ineptitude on the part of his own Administration, and political fecklessness on the part of the people’s representatives on Capitol Hill.”

Crucially, however, Hertzberg recommends that Obama could, and should address “the lack of any official accountability for the abuses of the past, especially the embrace of torture,” noting, “Perhaps there are good, prudential reasons for stopping short of prosecuting those who authorized this vile offense to elementary morality for the crimes against American and international law that it entailed,” but adding, “No such reasons forbid the appointment of a truth commission,” which “would be a healthy act of atonement.”

Prisoners
By Hendrik Hertzberg, The New Yorker, April 18, 2011

On May 13, 1943, Axis forces in North Africa surrendered. The Allies suddenly found themselves saddled with nearly three hundred thousand prisoners of war, including the bulk of General Erwin Rommel’s famed Afrika Korps. Unable to feed or house their share, the British asked their American comrades to relieve them of the burden. And so, by the tens of thousands, German soldiers were loaded aboard Liberty Ships, which had carried American troops across the Atlantic. Eventually, some five hundred P.O.W. camps, scattered across forty-five of the forty-eight United States, housed some four hundred thousand men. In every one of those camps, the Geneva conventions were adhered to so scrupulously that, after the war, not a few of the inmates decided to stick around and become Americans themselves. That was extraordinary rendition, Greatest Generation style.

The “war on terror” is a very different kind of war, and the prisoners thereof are very different, too. It’s not just that a higher proportion of them appear to have been truly dedicated to the ideology in whose name they were fighting, or that they were unaffiliated with a government. It’s also that their numbers are small — a hamlet compared to the city-size P.O.W. population of 1945. In the nine years since the creation of the purpose-built prison at Guantánamo Bay, Cuba, a grand total of seven hundred and seventy-nine men (and boys — the youngest was fifteen years old when he was captured) have been sent there. It currently holds a hundred and seventy-two. Yet this relative handful of shackled, isolated prisoners has somehow been permitted to engender a miasma of popular fear and political cowardice that contrasts shamefully with the matter-of-fact courage of an earlier and simpler time.

A week ago, on the same day that President Obama officially launched his campaign for reelection, his Attorney General, Eric Holder, announced that Guantánamo’s most notorious inmate, Khalid Sheikh Mohammed, along with four others accused of direct involvement in the 9/11 attacks, will at last be brought to trial — but on Cuban, not American, soil, and before a panel of military officers, not a civilian judge and jury. You may recall that the last time Barack Obama was a candidate he promised that, if elected, he would shut Guantánamo down (by then a fairly uncontroversial position, one that even President Bush and his would-be Republican successor had come around to) and that he would see to it that accused terrorists were prosecuted in civilian courts rather than by military commissions. He promised, too, that his Administration would not continue indefinite detention without indictment or trial and, of course, that it would put a definitive end to the use of torture. He has been able to keep only the last of these promises fully. The rest have been undone by a combination of political nihilism on the part of Republicans, political ineptitude on the part of his own Administration, and political fecklessness on the part of the people’s representatives on Capitol Hill.

Two days after the inauguration, Obama, in the dazzling dawn of his Presidency, issued an executive order directing that the Guantánamo detention camps “be closed as soon as practicable, and no later than one year from the date of this order.” The slippage began less than a month later, with a complicated legal tussle over seventeen Gitmo prisoners. Even though they were Chinese Uighurs who had had nothing to do with anti-American violence, the mere possibility that they might set foot on the United States mainland was enough to ignite a brushfire of not-in-my-back-yard hysteria. By May of 2009, it had reached the point where the Senate voted, 90–6, not only to keep Gitmo open indefinitely but also to block the transfer of any of its detainees to U.S. soil, where the civilian courts are. (Though all six dissenters were Democrats, the rest of the caucus voted with the Republicans.) At times, Administration bungling has enabled local grandstanding. Later in 2009, the Justice Department neglected to prepare New York’s City Hall for the impact of its original plan for Khalid Sheikh Mohammed, which was to try him in a Manhattan civilian court. Mayor Bloomberg, Police Commissioner Raymond Kelly, and Senator Charles Schumer quickly turned tail, and so did Obama.

A dispiriting series of tactical retreats from civil-liberties principles has followed. In January of this year, the President signed a politically veto-proof defense-appropriation bill that had been amended to again block funding for any transfer of detainees from Guantánamo to the home of the brave. In March, Obama issued another executive order. While it establishes twice-yearly reviews of the status of current detainees, confirms their habeas-corpus rights, and permits them to be represented by outside lawyers as well as by government-appointed defenders, the order also allows trials by military commissions to go forward, and at Guantánamo to boot. Now, in April, we learn that one such trial will be the case that, a year ago, Holder said (to this magazine’s Jane Mayer) would be “the defining event of my time as Attorney General.” It appears that Holder’s prediction will come true, though not in the way he intended. He was sure that he had an overwhelming case against Khalid Sheikh Mohammed, one that would not have relied on evidence obtained through torture. (Mohammed was waterboarded a hundred and eighty-three times.) But he lost the bureaucratic battle. His anger last week as he announced the decision could not quite mask the Administration’s shame.

The collapse of Obama’s effort to close Guantánamo is the kind of failure that, in our atomized, increasingly dysfunctional political system, has a thousand deadbeat dads. But it has always been within the President’s power to remedy one aspect of the moral morass that Guantánamo symbolizes: the lack of any official accountability for the abuses of the past, especially the embrace of torture. There is no dispute that there was torture, that it was systematic, and that it was encouraged at the highest levels — George W. Bush, in his memoir, currently adorning the best-seller lists, practically boasts of approving it. Perhaps there are good, prudential reasons for stopping short of prosecuting those who authorized this vile offense to elementary morality for the crimes against American and international law that it entailed. No such reasons forbid the appointment of a truth commission. The work of such a commission, charged with compiling the record, affixing responsibility, and formally acknowledging what was done, would be a healthy act of atonement.

Obama has said more than once that he prefers to look forward, not backward. Not everyone feels that way. As soon as the Khalid Sheikh Mohammed reversal was announced, Peter King, the New York Republican who heads the House Committee on Homeland Security, called it “yet another vindication of President Bush’s detention policies.” It is no such thing. Even with all the failings of the current Administration, the difference between its approach and its predecessor’s is the difference between night and day, albeit a rainy, miserable day, overcast with dark clouds. But, by elevating amnesia to official policy, the President has put himself in a poor position to make even that argument.

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.