In her latest article, Carol has focused on the conditions of isolation in which the four men who have lost their trials by Military Commission are held, and for once I’m going to cross-post the entire article, as it oozes a thinly-disguised disdain for some of the exaggerations, lies and unfairnesses of the regime at Guantánamo — her description of the four men as “a cook, a kid, a small-arms trainer and a videographer,” for example, or her description of how “TV time is spent alone, each man shackled by an ankle to the floor of an interrogation room, always under the watch of a special guard force implementing a Pentagon policy for ‘punitive post-conviction confinement.’” Get that: punitive post-conviction confinement. Another Guantánamo speciality for the lucky few who aren’t merrily detained forever without charge or trial, or cleared for release by an administration that, it turns out, has no intention of releasing them at all.

I also like, with reference to former child prisoner Omar Khadr, the understatement with which she notes that, “once back in Canada, Khadr’s parole is all-but certain because he was captured as a juvenile, 15 at the time of the crime” — something the US, to its shame, thoroughly ignored — and again, towards the end, when she lays out the possibilites facing one of the men, Ibrahim al-Qosi, whose sentence ends next July, when he “may leave Guantánamo — if the Obama administration chooses to negotiate [his] release,” and “congressional restrictions” don’t get in the way.

After nine years, as Carol knows, any kind of monstrously unjust nonsense — such as not releasing someone after they have served a sentence negotiated by the Pentagon — remains a distinct possibility.

Inside the convicts cellblock where war criminals stay at Guantánamo Bay
By Carol Rosenberg, Miami Herald, February 28, 2011

GUANTANAMO BAY NAVY BASE, Cuba — One Sudanese prisoner is filing his hours until release reading Decision Points, George W. Bush’s memoir on why he quit alcohol, ran for president and approved waterboarding war on terror captives.

Another is being home-schooled every other week inside a cell, learning the astronomy, math, grammar, Shakespeare, even elocution, he never got as a child of al-Qaeda.

These are the war criminals of Guantánamo Bay. They are four convicts — captured as a cook, a kid, a small-arms trainer and a videographer — kept out of sight of visitors in a segregated cellblock of a SuperMax-style 100-cell $17 million penitentiary.

Because each man was sentenced for war crimes by a U.S. military jury, three after guilty pleas in exchange for short sentences, theirs is what the Pentagon calls “punitive confinement.” They are “prisoners” set apart from the other 168 captives at what former Defense Secretary Donald Rumsfeld calls “one of the finest prison systems in the world.”

Yet, military defense lawyers say the convict cellblock at Camp 5 is especially austere and that their clients are doing hard time reminiscent of Guantánamo’s early years when interrogators isolated captives of interest.

Each man spends 12 or more hours a day locked behind a steel door inside a 12-by-8-foot cell equipped with a bed, a sink and a toilet.

They get up to eight hours off the cellblock in an open-air recreation yard, a huge cage surrounded by chain-linked fencing. If recreation time coincides with one of Islam’s five times daily calls to prayer, the convicts can pray together. If it coincides with meal time, they can eat together.

Once locked in their cells, they can shout to each other through the slots in their steel prison doors troops uses to deliver meals and library books.

TV time is spent alone, each man shackled by an ankle to the floor of an interrogation room, always under the watch of a special guard force implementing a Pentagon policy for “punitive post-conviction confinement.” That policy is still in flux, says a spokeswoman, Army Lt. Col. Tanya Bradsher, so the Defense Department won’t let the public see it.

At 50, Ibrahim [al-]Qosi of Sudan is the eldest. Early in his captivity here, Bush era prosecutors portrayed him as al-Qaeda’s payroll master. By the time he pleaded guilty to supporting terror last summer, his crime was working as a cook for bachelor irregulars in Afghanistan and occasionally driving for Osama bin Laden and others in al-Qaeda.

Now up for release from the cellblock in July 2012, he’s passing time with a copy of Bush’s recently released best-selling memoir. His Navy defender couldn’t find an Arabic translation. So Qosi’s learning about the man who waged the global war on terror with the help of an Arabic-English dictionary.

In a failed bid for clemency, Qosi’s attorney, Navy Cmdr. Suzanne Lachelier wrote in January that, after years in communal custody, living in a POW-style setting, his post-sentencing conditions are “grueling” and “reminiscent for him of the eight difficult months he spent in complete isolation when first arriving at Guantánamo.”

But a senior guard who works at the prison said it’s far from isolation. “They do get to commune together,” said Army Command Sgt. Major Daniel Borrero, whose 525 Battalion pulled guards from the blocks interning U.S. criminal soldiers at Fort Leavenworth to work at Guantánamo.

“It’s a prison, ma’am,” said Borrero. “I make the assumption they don’t want to be here.”

The cellblock’s youngest is confessed teen terrorist Omar Khadr, 24, and he’s on the fast-track to freedom.

He pleaded guilty to war crimes last year in exchange for a promise to repatriate him before his 26th birthday. A military jury sentenced him to 40 more years in prison for hurling a grenade that killed an American commando in a July 2002 gun battle in war-time Afghanistan. But once back in Canada, Khadr’s parole is all-but certain because he was captured as a juvenile, 15 at the time of the crime.

At his sentencing hearing, a government paid psychiatrist said Khadr spent his years here “marinating in a radical Islamic community’’ — memorizing verses of the Quran in the company of captives who got to eat, pray, watch satellite TV and shoot hoops in groups as a reward for good behavior.

Now Khadr’s cut off from that group, as a war criminal segregated in circumstances his Army lawyer, Lt. Col. Jon Jackson, calls “horrific and stupid and don’t make any sense.”

Khadr’s father, a since slain al-Qaeda insider, moved the family from Toronto to Afghanistan when the boy was in elementary school. So to prepare him for life back in Canada, Khadr’s Pentagon defense team is shuttling twice a month to the remote base for attorney-client visits in a compound, Camp Echo.

There, for four days out of five military lawyers and paralegals are drilling Khadr on a home-school styled curriculum designed by a Canadian college professor — history, astronomy, math, grammar, elocution.

English is the emphasis, said Jackson, to help him achieve “mature student” status in Canada, a gateway to college admission.

Not so long ago, the al-Qaeda convict played Romeo to the Army officer’s Juliet.

“He’s very serious about his education,” said Jackson. “His attitude is positive. There’s been a real change in him now that he has the legal matters behind him.”

Also on the cellblock are Guantánamo’s lone lifer, al-Qaeda filmmaker Ali Hamza al-Bahlul and former weapons instructor, Noor Uthman Mohammed. Bahlul keeps to himself, according to military sources, and Noor is just settling in. On Feb. 2, he traded 34 months imprisonment on the cellblock for testimony at future trials about terrorists he knew in Afghanistan.

Theirs is a prison within the sprawling prison system, cut off from the other captives regardless of how good their behavior.

Elsewhere on the base, the military has built a secret lockup for men interrogated by the CIA and suspected in some of the most heinous attacks against America — the Sept. 11th terror attack, the 2000 suicide bombing of the USS Cole off Yemen, beheading Wall Street Journal correspondent Daniel Pearl.

There are five Uighurs, ethnic Muslims fearing religious persecution in their native China, likewise segregated from the other captives because a federal judge found them unjustly imprisoned.

But Bahlul and Qosi, Khadr and Noor are segregated because they are “serving punitive sentences,” says Navy Cmdr. Tamsen Reese, a Guantánamo spokeswoman.

Under the 1949 Third Geneva Conventions, she said, the other captives are “detained under the Law of War only as a security measure” and “should not be subjected to a penal environment or comingled with prisoners punitively incarcerated as a consequence of a criminal conviction.”

Once their sentences are over, under Pentagon doctrine, they become ordinary detainees again — put back with the others in a penitentiary away called Camp 6, the closest thing at Guantánamo today to POW-style barracks housing.

Or they may leave Guantánamo — if the Obama administration chooses to negotiate their release, and congressional restrictions don’t hamstring future releases, for example to Sudan, a State Sponsor of Terror nation.

That test could come next year. The Sudanese man reading the Bush memoirs finishes his sentence on July 7, 2012.

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

As a result, al-Qosi, a peripheral figure in al-Qaeda, who “worked as a cook in a portion of an al-Qaeda compound that housed single men in Kandahar, Afghanistan” (as the Miami Herald put it), and also allegedly served on occasion as a bodyguard for bin Laden, should be freed from Guantánamo and returned home in July 2012. As Reuters explained, “Qosi’s lawyers said last year that once he returned to Sudan, he would enter a program run by the Sudanese intelligence service and designed to rehabilitate those with radical views. He would then return to live with his family but would be monitored to ensure he had no contact with radicals.”

The US still claims it has the right to continue holding al-Qosi after his two-year sentence expires, but that kind of injustice would, I hope, be a step too far even for the current administration and Congress, who have abandoned any attempt to close Guantánamo or deal fairly with the men still held, descending into callousness and scaremongering on the part of Congress, and cowardice and capitulation on the part of the administration.

Nevertheless, last Monday, responding to a specific request from the Miami Herald, Army Lt. Col. Tanya Bradsher stated, “Decisions regarding Mr. al-Qosi’s status after he serves his punitive confinement will be made by the detention authorities at that time.” The Herald added that she “called the sentence due to expire July 7, 2012 ‘being punished for past acts,’” explaining that al-Qosi could still be subject to “detention under the law of war” as “a belligerent during an armed conflict.”

This provoked a fierce and entirely justified response from al-Qosi’s military defense attorney, Navy Cmdr. Suzanne Lachelier, who said, “Indefinitely detaining a 53-year-old man who will have served his sentence and been in custody more than 11 years for being a cook serves neither our national security or foreign policy interests.” Instead, she added, “It bludgeons ‘the interests of justice.’”

However, as the Miami Herald also pointed out, another problem for al-Qosi is that Sudan, his home country, is on the State Sponsors of Terror list, and “Congressional limits on Guantánamo detainee transfers [introduced in a military spending bill before Christmas] forbid the Obama administration from sending even cleared captives to states on the list” — although it should be noted that Congress did not insist on interfering with prisoners cleared for release by US courts.

What no one wants to discuss, of course, is how, logically, a two-year sentence for a man who actually met Osama bin Laden and was demonstrably involved, even in the most minor way, with al-Qaeda, means that the majority of the other men in Guantánamo, who never met bin Laden or worked with al-Qaeda, should also be freed by July 2012.

Logic, however, is in short supply when it comes to discussing Guantánamo in the corridors of power in the United States, where, apparently, justice, fairness and respect for international law may never again be of concern to US lawmakers or the administration. Increasingly cast adrift from opinions in the rest of the world, America blithely continues to assert that everyone still in Guantánamo can be held indefinitely without charge or trial, with the exception of al-Qosi, and three other men subjected to trials by Military Commission.

Those already tried are:

Ali Hamza al-Bahlul, a Yemeni, and a self-confessed member of al-Qaeda who produced a propaganda video for the organization, and is serving a life sentence after a one-sided trial in October 2008, in which he refused to mount a defense;

Omar Khadr, a Canadian citizen, and a former child prisoner who accepted a plea deal last October, and will be repatriated to Canada next October to serve the last seven years of an eight-year sentence in his homeland; and

Noor Uthman Muhammed, from Sudan, a trainer at the Khaldan military camp in Afghanistan, who accepted a plea deal on February 15. On February 18, after a brief sentencing phase, in which prosecutors attempted to persuade a military jury to hand down a punitive sentence to Muhammed, he was given a 14-year sentence, reduced to 34 months as part of his plea deal, in which he has apparently agreed to be a witness in the trials of other men still held.

The absurdity of this is all too obvious to anyone who cares to examine it. Unlike Ibrahim al-Qosi, Omar Khadr and Noor Uthman Muhammed, 89 of the remaining 172 men in Guantánamo have actually been cleared for release for at least a year — and in some cases for nearly two years — after all the cases inherited by the Obama administration were examined by the Guantánamo Review Task Force, consisting of 60 career officials and lawyers in government departments and the intelligence agencies. Some of these men had also been cleared even earlier — in 2006 and 2007, for example — by military review boards under the Bush administration, but had not been freed by the time Bush left office.

Despite this, it’s possible that all of them — or nearly all of them — will still be held when al-Qosi is scheduled for release (and probably when Noor Uthman Muhammed’s date for release comes round in 2014), because 58 are Yemenis, and the release of Yemenis — even those cleared for release by President Obama’s own Task Force — was suspended by the President last January, after a backlash provoked by the discovery that Umar Farouk Abdulmutallab, the failed Christmas Day plane bomber in 2009, had been recruited in Yemen.

The future is barely less bleak for the 31 other cleared prisoners who are still held because they face the risk of torture if sent back to their home countries (which include China, Libya and Syria), and are waiting for third countries to offer them new homes instead. Although 15 countries have taken in 36 prisoners in this category (between May 2009 and August 2010), it’s possible that other countries’ well of good will has run dry, and that the men will therefore remain at Guantánamo indefinitely, as Congress, lawmakers and the administration itself have all made sure that no cleared prisoner will ever set foot on the US mainland.

As for the other men still held, the Task Force recommended that 33 should be put on trial. As a result, some may be tried by Military Commission before 2012 (the option for federal court trials having been cut off by Congress), and may, like al-Qosi, Omar Khadr and Noor Uthman Muhammed, be offered plea deals. In part this is because the administration is fearful of losing if it proceeds with actual trials, and, in Muhammed’s case, it is because officials were obviously fearful that a trial would expose details of the case of Abu Zubaydah (with whom he was seized in Pakistan in March 2002), allowing room for lawyers to point out that this supposed “high-value detainee” and “al-Qaeda No. 3,” for whom the CIA’s torture program was specifically developed, was no such thing, and was instead a mentally damaged training camp facilitator. A trial in Muhammed’s case might also have allowed exposure for the story of Ibn al-Shaykh al-Libi, the emir of the camp, who was flown to Egypt by the CIA, tortured until he confessed to non-existent links between Saddam Hussein and al-Qaeda, which were used to justify the invasion of Iraq in March 2003, and later returned to Libya, where he died in mysterious circumstances in May 2009.

For 47 others, however, even the option of trial is out of the question, as the Task Force concluded that they were too dangerous to release, but that there was insufficient evidence to put them on trial — in other words, that the supposed evidence is not evidence at all, but unverifiable statements and hearsay, often produced in dubious circumstances.

Even ignoring the valid presumption that some of these 47 men are almost certainly regarded as less significant than al-Qosi (and yet are to be held indefinitely), the mind reels at the revelation that the surest way out of Guantánamo is to be regarded as so significant that you are put forward for a trial by Military Commission and secure a favorable plea deal.

It wasn’t supposed to be this way. After all, when Dick Cheney first revived the Military Commissions in November 2001, they were intended to provide a means to swiftly try and execute alleged terrorists after rigged trials in which evidence derived from torture was admissible. The Supreme Court brought this phase to an end in June 2006, ruling it illegal, but when the Commissions were revived by Congress later that year in the Military Commissions Act of 2006, they were still regarded as a poor substitute for federal court trials by legal experts, who were particularly alarmed that they involved prosecutions for war crimes that were invented by Congress. Significantly, the same problems remained when Obama and Congress revived the Commissions again in the summer of 2009.

Ironically, it may be this fundamental weakness, as much as the fear of losing trials, that is driving the Obama administration to seek plea deals rather than proceeding with trials, and which, in turn, is providing the majority of those charged with a better chance of leaving Guantánamo than their fellow prisoners.

Another irony is that we have been here before, but under George W. Bush. In August 2008, when Salim Hamdan, a Yemeni who had taken a job as part of bin Laden’s car pool, was tried by Military Commission, a military jury gave him a five and a half year sentence, which translated to just five more months in Guantánamo when the judge in his case, Navy Capt. Keith Allred, took account of time served since Hamdan had first been charged.

As with al-Qosi, the administration claimed that it had the right to continue holding him even after his sentence was served, but in the end could not countenance what would, presumably, have been an international uproar. In al-Qosi’s case, it is to be hoped that similar concerns will prevail next July, but it is a sign of how monstrously and unjustly politicized Guantánamo has become in the US that it is by no means certain that the administration will recognize that certain principles — such as freeing prisoners after they have served their sentence — have to be honored if notions of justice are to mean anything at all.

By December 2008, Hamdan was a free man, back home in Yemen, and as I explained at the time of his sentence, and of his release, this should have shattered the supposed justification for holding every other prisoner regarded as less significant than him, although this did not happen then, just as it is not happening now, in the case of Ibrahim al-Qosi.

History repeating itself this way should, of course, be a humiliation for the Obama administration, but I suppose that no one in a position of authority really cares that they are presiding over a prison in which Kafka meets Alice in Wonderland, as, crucially, the American people don’t care in sufficient numbers, and all that matters now is sending out the right messages to try and win the 2012 Presidential Election.

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

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

As published exclusively on the website of the Future of Freedom Foundation, as “Military Commissions and the Case of Bin Laden’s Cook.”

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The Return of the Military Commissions

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

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

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

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

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

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

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

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

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

The sad history of the Military Commissions

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

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

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

The men scheduled to face trials by Military Commission

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

Noor Uthman Muhammed

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

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

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

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

Ahmed Mohammed al-Darbi

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

Abd al-Rahim al-Nashiri

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

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

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

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

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

Obaidullah

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

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

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

As I also explained:

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

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

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

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

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

Congress has an extremely poor record when it comes to Guantánamo, having pretty much endorsed whatever cruel and illegal nonsense came its way during the Bush years, and having demonstrated, in 2009, that it had no interest in any reforms proposed by President Obama.

Last October, by 258 to 163 votes (with the majority including 88 Democrats), the House of Representatives backed a motion proposed by Rep. Hal Rogers (R-Ken.), which was designed to “[p]rohibit the transfer of GITMO prisoners, period,” and which, in Rep. Rogers’ words, was concerned with “protecting the American people from all threats … including the warped intentions of terrorists and radical extremists.” It was telling that Representatives would vote in such large numbers for a motion based on such unsubstantiated information, given that there is no confirmation whatsoever that the majority of the prisoners held at Guantánamo are, or have ever been, “terrorists and radical extremists.”

Under pressure from the administration, the Senate foiled this plan, voting, by 79 votes to 19, to allow the administration to bring prisoners to the US mainland to face trials, as part of a $42.8 billion bill for Homeland Security, although no cleared prisoner could be resettled on the US mainland by the country that had wrongly imprisoned them in the first place — a veto that, it should be noted, was also endorsed by Obama’s Justice Department, the D.C. Circuit Court, and by President Obama himself, when he quashed a plan by White House Counsel Greg Craig to bring a handful cleared prisoners — out of 17 Uighurs, wrongly imprisoned Muslims who could not be returned to China because of the risk of torture — to live in the United States.

The House of Representatives’ plan to keep Guantánamo open

Last week, the House of Representatives was at it again, voting by 212 votes to 206, as part of a  $1.1 trillion appropriations bill, to prohibit the President from spending any money to transfer prisoners to the US mainland or to acquire facilities to hold them on US soil.

In the two relevant sections of the bill, those who drafted the legislation took particular aim at the administration’s plans to hold federal court trials for Khalid Sheikh Mohammed and four other men accused of involvement in the 9/11 attacks, which were announced by Attorney General Eric Holder last November, but delayed by the President in the face of widespread opposition, and also at plans, announced last December, to buy a prison in Illinois to house prisoners designated for trials (34 at present) — and, more contentiously, 48 other prisoners designated for indefinite detention without charge or trial.

Cleared prisoners — the 33 or so men awaiting third countries prepared to offer them new homes, because of fears of torture in their home countries, and because of the US ban on housing them in the US — would remain at Guantánamo, as would the 58 Yemenis cleared for release, who are now held as political prisoners because of a moratorium that President Obama announced last January, in response to widespread hysteria following the news that the failed Christmas Day plane bomber, Umar Farouk Abdulmutallab, had been recruited in Yemen.

There was no word about what would happen to the one man who had been convicted in a trial by Military Commission — Ali Hamza al-Bahul, sentenced to life in November 2008 for producing a promotional video for al-Qaeda, after a one-sided trial in which he refused to mount a defense — but it was presumed by commentators that he would continue to be held at Guantánamo (even if the prison closed around him), and in the last six months he has been joined by two others — Ibrahim al-Qosi, a sometime cook for al-Qaeda, who accepted a plea deal in summer and is expected to serve just two more years, and Omar Khadr, the Canadian former child soldier, who accepted a plea deal in October, and who will be transferred to Canadian custody next October.

The first of the two sections in the appropriations bill that refer to Guantánamo (Section 1116) states, “None of the funds made available in this or any prior Act may be used to transfer, release, or assist in the transfer or release to or within the United States, its territories, or possessions Khalid Sheikh Mohammed or any other detainee who (1) is not a United States citizen or a member of the Armed Forces of the United States; and (2) is or was held on or after June 24, 2009, at the United States Naval Station, Guantanamo Bay, Cuba, by the Department of Defense.”

The second (Section 2210) states, “None of the funds provided to the Department of Justice in this or any prior Act shall be available for the acquisition of any facility that is to be used wholly or in part for the incarceration or detention of any individual detained at Naval Station, Guantánamo Bay, Cuba, as of June 24, 2009.”

How House Democrats were fooled — and Obama was asleep at the wheel

What is particularly ridiculous about the vote is not so much that the House of Representatives contains so many elected representatives who are opposed to the President’s plans because they are either fearful and credulous about Guantánamo, or cynical and fearmongering, but, as The Hill reported on Thursday, that many Democrats in the House of Representatives had not even bothered to read the bill, and had failed to notice the two sections, and, moreover, that neither President Obama nor Eric Holder had alerted the House about its contents either.

As The Hill explained:

[Many] Democrats, including Rep. Jim Moran (D-Va.), a member of the defense appropriations subcommittee, said they didn’t even know the provision was included. Moran’s anger with the president boiled over in a short interview Thursday with The Hill about the provision and the tax debate held shortly after the Democratic Caucus voted to reject Obama’s tax-cut deal. “This is a lack of leadership on the part of Obama,” fumed Moran. “I don’t know where the f*** Obama is on this or anything else. They’re AWOL.”

Most Democrats didn’t know the provision was included in the continuing resolution until the rule for the bill hit the floor, when liberal members began defecting in large numbers. Rep. Jane Harman (D-Calif.), a leading voice on national security issues, and the four top Democrats on the Judiciary Committee found out during the vote on the rule, Moran said. At one point, the rule governing the bill was hanging by just one vote while Majority Leader Steny Hoyer (D-Md.) and Speaker Nancy Pelosi (D-Calif.) rushed around the floor doing damage control.

As The Hill also reported, Eric Holder finally responded the day after the vote, calling on the Senate to remove the provisions in the bill when they come to vote on it. The Hill explained that, in a letter, Holder “called the move an unprecedented grab of executive authority by Congress,” and stated, ”We have been unable to identify any parallel … in the history of our nation in which Congress has intervened to prohibit the prosecution of particular persons or crimes.” He did not, however, explain why, as Jim Moran explained, the administration was “AWOL” when it came to recognizing the poison pills tucked away in the bill.

Another unsubstantiated “recidivism” report

While we wait to see whether the Senate will indeed remove these two sections, supporters of Guantánamo secured another propaganda victory last week when the Office of the Director of National Intelligence, headed, since August 5 this year, by Lt. Gen. James R. Clapper, issued a “report” — actually a two-page “Summary of the Reengagement of Detainees Formerly Held at Guantánamo Bay, Cuba” — which was about as damaging to the government’s plans to close Guantánamo as it was possible for a report to be. It makes me wonder who is running the show when Clapper, the former head of the Pentagon’s National Geospatial-Intelligence Agency, “played a key role in promoting the Bush administration’s claim that Iraq had weapons of mass destruction prior to the 2003 invasion,” as Democracy Now! explained in August.

I have previously complained about the Pentagon’s tendency to produce unsubstantiated claims about the “recidivism” of released Guantánamo prisoners, which are then promoted enthusiastically by a mainstream media that loves shocking headlines for their own sake, and is prepared to abandon all pretense that they exercise journalistic rigor when presented with propaganda by the Pentagon. The last example of this distressing trend was in January this year, when the Pentagon claimed — without providing any supporting evidence whatsoever — that 1 in 5 of the prisoners released from Guantánamo had returned to militant activities.

Last week, again without providing any evidence, the Director of National Intelligence, “consistent with direction in the Fiscal Year 2010 Intelligence Authorization Act,” reported that, of the 598 detainees released from Guantánamo, “The Intelligence Community assesses that 81 (13.5 percent) are confirmed and 69 (11.5 percent) are suspected of reengaging in terrorist or insurgent activities after transfer.” The assessment also noted, “Of the 150 former GTMO detainees assessed as confirmed or suspected of reengaging in terrorist or insurgent activities, the Intelligence Community assesses that 13 are dead, 54 are in custody, and 83 remain at large.” It was also noted that, of the “66 individuals transferred since January 2009″ — under President Obama, in other words — “2 are confirmed and 3 are suspected of reengaging in terrorist or insurgent activities.”

Predictably, the assessment’s own claims were amplified in subsequent headlines, which failed to distinguish between “confirmed” and “suspected” terrrorists or insurgents. Fox News ran with “25 Percent Recidivism at Gitmo,” and there was an unhinged, and completely inaccurate report on GOP USA, which claimed, in defiance of what had actually been proposed, “Guantánamo recidivism rate skyrockets under Obama early release program.” However, even the New York Times, which was badly stung last year when it ran a front-page story backing a claim that 1 in 7 released prisoners were recidivists, failed to report the story accurately. Although the Times‘ headline was the modest, “Some Ex-Detainees Still Tied to Terror,” the article itself stated that the report “offered the most detailed public accounting yet of what the government says has happened to former Guantánamo detainees, a matter that has been the subject of heated political debate.”

“The most detailed public accounting yet”? The report provided no such thing, and the Times reinforced its journalistic failures by refusing to ask who these 150 men might be. We know of a handful of suspected — and disputed — recidivists in Russia, of a dozen or more in Saudi Arabia, of a Kuwaiti who became a suicide bomber, and of Afghans who resumed their opposition to the US — or took up arms for the first time — after their release, and we also know that some of these men were released because they fooled the US authorities in Guantánamo, and their captors were too arrogant to liaise with the Afghan authorities, who would have known who they were.

Why “recidivists” are not necessarily terrorists

However, there are three major problems with this current assessment: firstly, “suspected” terrorists or insurgents is a remarkably vague claim for an intelligence assessment, and is, I would suggest, worthless; secondly, the only way that this report could be remotely accurate would be if 3 out of every 4 released Afghans had taken up arms against US forces; and thirdly, focusing on the word “terrorist” — even in those unsubstantiated cases which are apparently “confirmed” — rather tends to obscure the fact that, if released Afghans are fighting against US forces, it may be that this is because they are from a country that is still under US occupation.

In conclusion, I have seen no evidence to suggest that more than a few dozen released prisoners have ever engaged in anything that could honestly be labeled “terrorism.” It may well be that dozens of released Afghan prisoners are fighting the US in their home country, but if so, the hysteria that is allowed to flourish at the mention of this information reveals a major failing on the part of the Obama administration.

In sitting back and continuing to hold prisoners at Guantánamo under legislation passed the week after the 9/11 attacks — the Authorization for Use of Military Force — the Obama administration persists in endorsing the false basis of the “War on Terror”: that al-Qaeda and the Taliban are, essentially, interchangeable. It is distressing that such a damaging piece of propaganda as this latest report should emerge from the Office of the Director of National Intelligence under Obama’s very nose, but it is more distressing that, by refusing to tackle the fundamental detention problem head-on — telling the American people in no uncertain terms that Guantánamo held, and in some cases continues to hold, a small number of criminal suspects (terrorists) and a far larger number of soldiers, as well as all the innocent men rounded up for bounties — the administration continues to foster and allow the type of counter-productive hysteria that regards all Guantánamo prisoners, past and present, as terrorists, when this has never been the case.

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

In fact, after deliberating for five days, the jury found him guilty on one count of conspiracy to destroy US property and buildings, which carries a mandatory 20-year sentence, although the judge in his case, Judge Lewis Kaplan, can decide that a life sentence is appropriate.

Why, then, did Representative Peter King (R-NY), who is poised to become the chairman of the House Homeland Security Committee in January, exclaim, “This is a tragic wake-up call to the Obama Administration to immediately abandon its ill-advised plan to try Guantánamo terrorists” in federal civilian courts?

The reason is naked ideology, of a very damaging kind, as Rep. King revealed in the comment that followed. “We must treat them as wartime enemies,” he said, “and try them in military commissions at Guantánamo.”

For Rep. King and his fellow Republicans, who were queuing up to damn President Obama for his imperceptible failure, the naked truth is that they would have been even more dissatisfied if the jury had convicted Ghailani on the other 284 counts on which they found him not guilty, as it would have made it more difficult for them to attempt to justify their obsession with treating Ghailani — and all the other prisoners in Guantánamo — as “warriors” in the “War on Terror” launched by the Bush administration, for whom federal court trials are ideologically unsuitable.

Such is the blinkered obsession of these critics that they actively want information derived from torture to be used in the trials of alleged terrorists, and they blame Judge Kaplan for upholding the law by excluding from the trial the government’s alleged “star witness,” a Tanzanian named Hussein Abebe, whose name was revealed by Ghailani while he was being subjected to torture in a secret prison run by the CIA — part of a network of secret prisons in which he was held for two years and two months, after his capture in Pakistan in July 2004, until his transfer to Guantánamo, with 13 other alleged “high-value detainees,” in September 2006.

To these critics, it is irrelevant that information derived through the use of torture was excluded by Judge Kaplan because such information can never be used in federal court — and because the use of torture is a crime under domestic US law — just as it is irrelevant that Hussein Abebe’s testimony may also have been suspicious, as Marcy Wheeler pointed out in two articles on FireDogLake.

Nor, bizarrely, do they care that experts with deeper knowledge of the Commissions have pointed out that a military judge in a trial by Military Commission would also have excluded evidence derived through the use of torture, or that the Commissions themselves have a dismal record when it comes to successful prosecutions, having secured just five verdicts since their revival nine years ago: three through plea deals (in the cases of David Hicks, Ibrahim al-Qosi and Omar Khadr); one, in the case of Salim Hamdan, a driver for Osama bin Laden, after a trial in which the military jury threw out a charge of conspiracy; and another, in the case of Ali Hamza al-Bahlul, who produced a propaganda video for al-Qaeda, after a one-sided trial in which al-Bahlul refused to mount a defense.

With the exception of al-Bahlul, who is serving a life sentence (although this is being appealed), all these supposed victories have perished under scrutiny: in 2007, Hicks was freed almost immediately, to serve just seven months in Australia; Hamdan received a sentence of five and a half years, but the judge decided it included time already served, and he was a free man after just five months; al-Qosi, a sometime cook for al-Qaeda, is expected to serve two years; and Omar Khadr’s plea deal means he will be freed from Guantánamo in a year, with seven years ahead of him in a Canadian prison.

Also irrelevant to these advocates of torture and bent trials is the fact that federal courts have an enormously successful track record of prosecuting terrorists, and that the fate of Ghailani’s alleged co-conspirators in the 1998 bombings provides a salutary lesson regarding these successes, providing a ringing endorsement of federal court trials for terrorists, and — along the way — also providing a damning repudiation of the extralegal novelties of the “War on Terror.” Rather than being diverted into a network of secret prisons run by the CIA, where torture was making an ill-advised renaissance, Mohamed Rashed Daoud al-’Owhali, Khalfan Khamis Mohamed, Mohamed Sadeek Odeh and Wadih el-Hage were interrogated by FBI officials without the use of torture, were successfully convicted in a federal court in New York in May 2001, and were sentenced to life without parole in October 2001 — when the “War on Terror” had already begun.

All of the above is supposedly irrelevant to critics of the verdict in Ghailani’s trials because these cheerleaders for the Commissions — and for the use of information derived through the use of torture — want to ignore reality and return to the world envisaged by former Vice President Dick Cheney and his legal counsel David Addington in November 2001, when they first revived the Military Commissions, intending that they would be able to launder information derived through torture, and sentence supposed terrorist suspects to death without anything remotely resembling due process.

This is the system which, although still a second-rate system of justice, reserved for foreigners regarded as terrorist suspects, or as “alien unprivileged enemy combatants,” who are not allowed to raise arms against US forces under any circumstances, has been amended over the years, after the Supreme Court ruled it illegal in June 2006, demolishing Cheney’s dream so that information derived through the use of torture is banned, as it is in federal court trials. As a result, the only essential difference between the Commissions and federal court trials is that the military judges in the former can use their discretion to decide whether or not to allow the use of information that may have been derived through coercion rather than torture.

This may have made a difference in Ghailani’s case, but it seems unlikely, given the Commissions’ track record, that it would necessarily have led to a harsher sentence than the one Ghailani will receive after his federal court trial. In addition, it is worth considering that Ghailani’s trial took place with barely a mention of his treatment in secret CIA prisons or in Guantanamo, when the precedents from the Commissions indicate that military defense lawyers may have fought more tenaciously to raise it as an issue.

Once it becomes apparent that critics of the verdict in Ghailani’s trial are actually seeking a return to the lawless fantasy land envisaged by Dick Cheney and David Addington, and believe — contrary to the evidence — that US law is soft and useless, it also becomes apparent that the silence of President Obama and Attorney General Eric Holder in response to these complaints is deeply troubling.

The Obama administration needs to put down those who are insulting US law through the prism of their own warped ideology, or there is no telling where the rot will stop. Fortunately, for now, few critics have rallied behind a small group of other critics — Benjamin Wittes of the Brookings Institution, Jack Goldsmith, former Assistant Attorney General in the Justice Department’s Office of Legal Counsel, and law professor Robert Chesney — who have taken another troubling unconstitutional line, suggesting that Congress should enact legislation to hold terror suspects indefinitely without even bothering to think about putting them on trial.

However, without decisive action in support of US law and the Constitution on the part of the government, it may be that the idea of avoiding trials altogether for terrorist suspects will gain in strength. In this, Wittes, Goldsmith and Chesney may find that they are encouraged, disturbingly, by the Obama administration itself, which has already endorsed indefinite detention without charge or trial for 48 of the remaining 174 prisoners in Guantánamo, on the advice of the interagency Guantánamo Review Task Force, which was established by President Obama last year to review the cases of the remaining prisoners.

Moreover, in its apparent paralysis regarding trials either in federal court or by Military Commission for 34 prisoners (who were recommended for trial by the Task Force), the Obama administration is close to finding that it has enshrined indefinite detention without charge or trial as official US policy unless it acts immediately to put other Guantánamo prisoners on trial in federal court — starting, I suggest, with Khalid Sheikh Mohammed and his four alleged co-conspirators in the 9/11 attacks, whose federal court trial was announced by Eric Holder almost exactly a year ago.

If senior officials believe in the ability of federal courts to try terrorist suspects, they need to find the courage to say so, to say so boldly and with a courage that has been sadly lacking, and to follow through on their beliefs without caving in to criticism from opponents whose entire point of view is fueled by blind vengeance and a thorough disdain for the law.

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

As published exclusively on the website of the Future of Freedom Foundation, as “The Rule of Law and the Ghailani Case.” Cross-posted on The Public Record, Cageprisoners and Uruknet.

The 20 prisoners listed below were the first group of prisoners seized crossing from Afghanistan to Pakistan in December 2001. They have been identified as the “Dirty Thirty,” because of allegations that they served as bodyguards for Osama bin Laden, although these allegations have long been challenged by the prisoners and their attorneys, and by those who have studied the stories in detail, for three reasons: firstly, because the majority of the men had been in Afghanistan for such a short amount of time that it is inconceivable that they would have been trusted with such an important role; secondly, because one source of the allegations is Mohammed al-Qahtani (ISN 063, see below), who was tortured at Guantánamo, and who later withdrew his false allegations; and thirdly, because two other sources of the allegations are Sharqwi Abdu Ali al-Hajj and Sanad Yislam Ali al-Kazimi (ISN 1457 and ISN 1453), whose false confessions were recently exposed in a US court, in the habeas corpus petition of Uthman Abdul Rahim Mohammed Uthman (ISN 027, see below).

Moreover, as the figures indicate, ten of the “Dirty Thirty” have already been released, and although some were Saudis, there are no indications that any of them have returned to militant activity (unlike others — 11 in total — who, according to reports in February 2009, had “left the country and joined terrorist groups abroad”). In fact, the most significant story, out of all the released prisoners, seems to be that of Farouq Ali Ahmed, a Yemeni released in December 2009, who maintained throughout his detention that he was a missionary, despite counter-claims that he was a bodyguard for bin Laden, and that he had been seen at Osama bin Laden’s private airport in Kandahar, where he was “wearing camouflage and carrying an AK-47.”

As I explained in 2007, this particular allegation proved so intolerable to Ahmed that his Personal Representative (a military officer assigned to the prisoners in place of a lawyer during the tribunals at Guantánamo in 2004-05) investigated his files, and submitted a written protest, in which he stated that the government’s sole evidence that Ahmed had been at bin Laden’s airport was the statement of another prisoner, who, according to an FBI memo that he presented to the tribunal, was a notorious liar. According to the FBI, he “had lied, not only about Farouq, but about other Yemeni detainees as well. The other detainee claimed he had seen the Yemenis at times and in places where they simply could not have been.” As the Personal representative discovered, after cross-referencing the detainees’ files, this particular man had made false allegations against 60 of his fellow prisoners.

Bearing this in mind, an analysis of the 20 remaining members of the so-called “Dirty Thirty” reveals that only three have been subjected to any kind of serious allegations relating to their involvement with al-Qaeda, although it is certain that, of the rest, some are among the 26 Yemenis that, in January, the Obama administration’s interagency Guantánamo Review Task Force recommended should continue to be held indefinitely without charge or trial.

ISN 026 Ghazi, Fahed (Yemen)
As I explained in The Guantánamo Files, Ghazi, who was cleared for release by a military review board under President Bush, was just 19 years old at the time of his capture, according to US military records, and was apparently at al-Farouq (the main training camp for Arabs in Afghanistan, associated with Osama bin Laden in the years before 9/11) for just nine days before the camp closed. According to Human Rights Watch, he was just 17 years old when he was seized. Human Rights Watch also noted, “His daughter, who was two months old at the time of Ghazi’s arrest, is now eight years old. The two reportedly send drawings back and forth to each other regularly.” Also see this letter that he submitted to his military review board in September 2006.

ISN 027 Uthman, Uthman Abdul Rahim Mohammed (Yemen)
Uthman, who “said that he had traveled between Kabul and Khost teaching the Koran from March to December 2001.” won his habeas corpus petition in February 2010, when Judge Henry H. Kennedy Jr. ruled that the main allegation against him — that he had “acted as a bodyguard for Osama bin Laden” — came from unreliable statements made by two other prisoners, Sharqwi Abdu Ali al-Hajj (ISN 1457) and Sanad Yislam Ali al-Kazimi (ISN 1453). Judge Kennedy stated, “The Court will not rely on the statements of Hajj or Kazimi because there is unrebutted evidence in the record that, at the time of the interrogations at which they made the statements, both men had recently been tortured.” The government has appealed the ruling.

ISN 028 Al Alawi, Muaz (Yemen)
Al-Alawi lost his habeas corpus petition in January 2009, when Judge Richard Leon ruled that he “was part of or supporting Taliban or al-Qaeda forces,” because he “stayed at guest houses associated with the Taliban and al-Qaeda … received military training at two separate camps closely associated with al-Qaeda and the Taliban and supported Taliban fighting forces on two different fronts in the Taliban’s war against the Northern Alliance.” Although none of the allegations above related to “hostilities against the US or its coalition partners,” and Judge Leon acknowledged that al-Alawi was in Afghanistan before the 9/11 attacks, and was fighting with the Taliban against the Northern Alliance, he endorsed the government’s additional claim that, “rather than leave his Taliban unit in the aftermath of September 11, 2001,” al-Alawi “stayed with it until after the United States initiated Operation Enduring Freedom on October 7, 2001; fleeing to Khost and then to Pakistan only after his unit was subjected to two-to-three US bombing runs.”

ISN 029 Al Ansi, Muhammad (Yemen)
Al-Ansi has stated that he and some friends taught the Koran in a village outside Khost, although the authorities claim, via allegations made by unidentified individuals, by an “al-Qaeda commander,” and by an “al-Qaeda operative,” that he was a bodyguard for Osama bin Laden, that he was present at Tora Bora, and that he also guarded bin Laden at his airport in Kandahar. Al-Ansi was so disturbed by the allegations against him that he told his review board, “All of the prisoners here are trying to leave this place. All the prisoners are telling lies about other prisoners just to get out of here. All these allegations are lies and I want the truth.”

ISN 030 Al Hikimi, Ahmed (Yemen)
Al-Hikimi has stated that, after selling his taxi business, he traveled to Khost, where he met a local student with whom he spent about eight months teaching in various villages, and then returned to the Yemen, traveling again in February 2001, when, he said, he hooked up with the student once more and resumed teaching. In contrast to these claims, he was subjected to allegations similar to those leveled against Muhammad al-Ansi. An “al-Qaeda operative” claimed to have seen him at the al-Farouq camp and in Kabul in 1999, and said that he “would drive from the front line to the mountains once a week to supply food to the brothers.” Other unnamed sources also identified him as a driver, and “an escort for Osama bin Laden and his family” said that he saw him fighting on the front lines against the Northern Alliance. Crucially, another anonymous source identified him “as an associate of the Kandahar Airport Group” — the same false allegation that was leveled against Farouq Ali Ahmed.

ISN 031 Al Mujahid, Mahmoud (Yemen)
As I explained in The Guantánamo Files, al-Mujahid stated that he was inspired to visit Afghanistan to teach the Koran by a sheikh at whose institute he was studying. In contrast, the US authorities alleged that he was a bodyguard for bin Laden, that he was “seen on the front lines,” and that he was “seen with Osama bin Laden in Kandahar, Afghanistan (April 2001) and Tora Bora (November 2001).” In November 2007, he attended a military review board, in which he declared that he had made up the story about the sheikh, when he was first interrogated in US custody in Pakistan, and added that he wanted to explain this to the board, as it had been on his mind for five years, but he had been unable to discuss it with his interrogators, because they were “stupid” and only gave him “bad treatment.” In the hearing, he admitted that he had arrived in Afghanistan in July 2000, but “strongly denied” knowing anything about the 9/11 attacks or any other terrorists attacks, and also dismissed as ridiculous the notion that he could have been become a bodyguard for Osama bin Laden.

ISN 034 Al Yafi, Al Khadr Abdallah (Yemen)
Al-Yafi, who was cleared for release by a military review board under the Bush administration, is a farmer who has stated that, after hearing a sermon, he “decided to return home and sell his sheep so that he could travel to Afghanistan to teach.” In contrast, the US authorities have drawn on what I described as an “array of unsubstantiated allegations, which appear to have involved the exploitation of several ‘high-value detainees’”: a “senior al-Qaeda commander” apparently “recognized the detainee’s face as a Yemeni he saw at the Kabul guest house, probably in the 1999-2000 time frame”; another, a “senior al-Qaeda lieutenant,” stated less confidently that he “recalled possibly seeing the detainee at the al-Zubayr guest house” before 9/11; and an alleged “bodyguard of Osama bin Laden stated he saw the detainee (circa 1999) at an Arab compound in Kandahar.” It was also stated, without any additional explanation whatsoever, that he “was seen at Tora Bora.”

ISN 035 Qader Idris, Idris (Yemen)
Idris has stated that he taught the Koran in Kabul for approximately eight months. Set against his story are just two allegations: that the individual who facilitated his travel to Afghanistan from Yemen “has been identified by a known al-Qaeda member as a fund collector and recruiter for al-Qaeda,” and that the group of 30 Arabs that he joined as he fled Afghanistan for Pakistan was “organized” by Mohammed Annas, a “known alias” of Ali Hamza Ismail (aka Ali Hamza al-Bahlul, see ISN 039, below).

ISN 036 Idris, Ibrahim (Sudan/Yemen)
Idris, sometimes listed as a Yemeni, and sometimes as Sudanese, is accused of attending al-Farouq and of fighting with the Taliban for two years. In December 2007, he attended a military review board and stated that he had actually been seized in Pakistan, where he had traveled for 40 days to work as a missionary. “No disrespect to the interrogators,” he explained. “I said what I had to say, and they made me say things that weren’t true.”

ISN 037 Al Rahabi, Abd Al Malik (Yemen)
Al-Rahabi (also identified as Abd al-Malik Abd al-Wahab) has stated that he traveled to Pakistan and Afghanistan with his wife and his young daughter, although the US authorities allege that he “was very close to Osama bin Laden, and had been with him a long time. He was a known Osama bin Laden guard and errand boy and was frequently seen at Osama bin Laden’s side.” As I explained in The Guantánamo Files, he told his lawyer that he had made false confessions, stating that he was “tortured by beatings” in Kandahar, that his thumb was broken by American interrogators, and that he was “threatened with being held underground and deprived of sunlight until he confessed.” According to his lawyers, around September 2000, he “traveled with his wife to Pakistan in order to study the Koran. Their daughter was born while they were together in Pakistan. In November 2001, his wife returned to Yemen. Al-Rahabi intended to return as well, but he was arrested while in Pakistan.”

ISN 038 Al Yazidi, Ridah (Tunisia)
As I explained in The Guantánamo Files, it is alleged that he traveled to Afghanistan from Italy in 1999, that he attended the Khaldan training camp, and that he fought on the Taliban front lines in 2001. There is little publicly available information about al-Yazidi’s response to the allegations, although he refuted additional claims that he was involved with the Algerian Armed Islamic Group (the GIA, or Groupe Islamique Armé), and also apparently “stated that he did not engage in any significant combat during the entire time he was on the front lines.”

ISN 039 Al Bahlul, Ali Hamza (Yemen)
Widely described as Osama bin Laden’s “press secretary,” al-Bahlul produced a propaganda video for al-Qaeda and was first put forward for trial by Military Commission in February 2004. He was formally charged in June 2004. At a pre-trial hearing in August 2004, he declared, “I am an al-Qaeda member,” and asked the judge, “Am I allowed to represent myself?” and at another hearing in January 2006, he decided to withdraw from the proceedings, waving a sign that read “boycott” in Arabic, He was charged for a second time in February 2008, after the first version of the Commissions was ruled illegal by the US Supreme Court in June 2006, and in May 2008 he again decided to boycott pre-trial hearings, explaining, “I am responsible for my own actions in this world and the afterworld. I don’t consider it to be a crime.” His trial took place in October 2008, and he was convicted of conspiracy, solicitation of murder, and providing material support to terrorism after a one-sided trial in which he refused to mount a defense. He received a life sentence, which he is serving in solitary confinement in Guantánamo, away from all the other prisoners, but his lawyers are currently appealing the sentence, on the basis that providing material support to terrorism is “a fabricated war crime that was not traditionally triable in a military commission as of the time of Mr. al-Bahlul’s affiliation with al-Qaeda” (as his former military defense attorney, Lt. Col. David Frakt, explained), and also on the basis that his trial was unfair because he was denied the right to represent himself.

ISN 040 Al Mudafari, Abdel Qadir (Yemen)
Al-Mudafari (aka al-Mudhaffari) apparently “stated that he wanted a struggle or jihad and chose to travel to Afghanistan rather than Palestine,” but was subjected to several dubious allegations (beyond the most obvious — that he was a bodyguard for Osama bin Laden). It was also alleged that he was “identified as a trainer” at al-Farouq, and was also stated that he was identified by “an al-Qaeda operative” as being “a friend of Osama bin Laden’s personal secretary,” and was also “identified as being at a Taliban Supreme Leader’s [sic] compound.” Confusing matters were notes that he had received instruction in Yemen from Sheikh Muqbil al-Wadi (who was actually opposed to bin Laden), his own claims that he traveled to teach the Koran, and a claim by another unidentified source, who “stated that he did not think that the detainee ever fought with the Taliban because he was against the Taliban.”

ISN 041 Ahmad, Majid (Yemen)
Ahmad, who was 21 years old when seized, apparently admitted that he “first learned of jihad in Afghanistan” at an institute in the Yemen, “and then wanted to fight along with the Taliban.” He added that he “prayed and fell in love with the idea of dying for the sake of God,” and after being given a fatwa by a sheikh, who told him during a telephone call that “it was a good thing for Muslims to go fight jihad,” traveled to Afghanistan and “fought for the Taliban the two years he was in Kabul.” Nevertheless, as with the majority of the so-called “Dirty Thirty,” there appears to be no basis for the claim that he “was an Osama bin Laden bodyguard and was usually by his side.” He has repeatedly stated that he never met bin Laden and has also stated that “the attack on the World Trade Center was wrong because Islam did not permit people to kill innocent people.”

ISN 042 Shalabi, Abdul Rahman (Saudi Arabia)
According to an unidentified source cited at Guantánamo, Shalabi “was teaching at a madrassa” in Kandahar, and, moreover, he “taught over 300 men” and was “very well known.” In contrast, the US authorities have drawn on various claims about him being a bodyguard for Osama bin Laden that appear to be as unreliable as those leveled against the majority of the “Dirty Thirty.” According to one source, he “came to Afghanistan around 1997 and became a bodyguard for Osama bin Laden after 1998,” and according to another, he was “related to a bodyguard for Osama bin Laden.” Other unidentified sources said that they saw him in Kabul and Jalalabad “approximately ten times with Osama bin Laden in the latter part of 2001 and identified him as Osama bin Laden’s security guard,” that they saw him “speaking directly with Osama bin Laden” and that he “was with him at all times while in Tora Bora.” In Guantánamo, he has been a long-term hunger striker, and has been on a hunger strike since August 2005, when the largest hunger strike in the prison’s history took place. He weighed 124 pounds on arrival at Guantánamo in January 2002, but weighed just 100 pounds in November 2005. In September 2009, after four years of being force-fed daily, he weighed just 108 pounds, and wrote a distressing letter to his lawyers, in which he stated, “I am a human who is being treated like an animal.” In November 2009, when his letter was included in a court submission, one of his lawyers, Julia Tarver Mason, stated, “He’s two pounds away from organ failure and death.”

ISN 043 Moqbel, Samir (Yemen)
As I explained in The Guantánamo Files, Moqbel (also identified as Samir Mukbel) stated that he was tricked by a friend, who told him he would find a job in Afghanistan. “He told me I would like it in Afghanistan and I could live a better life than in Yemen,” he said in a hearing at Guantánamo. “I thought Afghanistan was a rich country but when I got there I found out different … it was all destroyed with poverty and destruction. I found there was no basis for getting a job there.” His lawyers at Reprieve explained that he “is the eldest son of seven brothers and five sisters, and as the eldest son, is the family breadwinner,” and added that he was enticed by the false prospect of “more jobs and better salaries” in Afghanistan because, at the time, he “was working in a factory in Yemen earning just $50 a month.” In Guantánamo, in response to allegations that he was a bodyguard for bin Laden, and that he fought with the Taliban in various locations, he stated, “These accusations make you laugh. These accusations are like a movie. Me, a bodyguard for bin Laden, then do operations against Americans and Afghanis and make trips in Afghanistan? I don’t believe any human being could do all these things … This is me? I have watched a lot of American movies like Rambo and Superman, but I believe that I am better than them. I went to Pakistan and Afghanistan a month before the Americans got there … How can a person do all these operations in only a month?”

ISN 044 Ghanim, Mohammed (Yemen)
In Guantánamo, Ghanim was accused of having “participated in jihad activities” in Bosnia and of taking part in the Yemeni civil war, and of being a bodyguard for Osama bin Laden. In response, he has apparently stated that he fought only with the Taliban. In a report from a former prisoner published by Cageprisoners, it was stated that Ghanim was subjected to prolonged sleep deprivation in Guantánamo, as part of what was euphemistically termed “the frequent flier program,” and was also denied medical treatment: “Every two hours he would get moved from cell to cell, 24 hours a day, seven days a week, sometimes cell to cell, sometimes block to block, over a period of eight months. He was deprived of sleep because of this and he was also deprived of medical attention. He had lost a lot of weight. He had a painful medical problem, haemorrhoids, and that treatment was refused unless he cooperated. He said he would cooperate and had an operation. However, the operation was not performed correctly and he still had problems. He would not cooperate. [H]e was [then] put in Romeo Block where the prisoners would be made to stand naked. It was then left to the discretion of the interrogators whether a prisoner was allowed clothes or not.”

ISN 045 Al Rahizi, Ali Ahmad (Yemen)
Al-Rahizi (also identified as al-Rezehi) has stated that he “went to Afghanistan to teach the Koran because the Imam at his mosque told him that the Afghans were using magic and were not following the teachings of Islam.” In contrast, the US authorities allege that he attended al-Farouq and was one of bin Laden’s bodyguards. Al-Rahizi has specifically stated that he “taught the Koran to Afghan children at the Abu Bakur al-Sadiq mosque in Shurandam” (in Kandahar province), where he “worked directly for the mosque Imam,” and that it was the Imam who told him about the US-led invasion of October 2001, and advised him to return home. In the clearest indication that the group of men seized together had picked up stragglers along the way, he stated that he traveled to Khost, via Ghazni, “and then traveled by foot for two days to a small town,” where he “joined approximately 30 other Arabs … who had assembled to flee Afghanistan,” and who subsequently traveled together for eight days before being arrested on the Pakistani border by the Pakistani authorities.

ISN 054 Al Qosi, Ibrahim (Sudan)
Subjected, over the years, to a variety of allegations, including claims that he served as the accountant for a company run by Osama bin Laden in Sudan from 1992 onwards, that he visited Chechnya to fight in 1995, with bin Laden’s support and permission, that he served as a bodyguard, cook and driver for bin Laden in Afghanistan from 1996 onwards, and that he fought in Afghanistan as part of a mortar crew, al-Qosi was first put forward for a trial by Military Commission in February 2004 (along with Ali Hamza al-Bahlul, ISN 039), and was formally charged in June 2004. At a hearing in August 2004, his military defense lawyer, Air Force Lt. Col. Sharon Shaffer, complained that she was not being provided with the information she needed to defend al-Qosi, and also complained that al-Qosi had told her that the translators in court were so poor that he couldn’t understand what was happening. When the Commissions were revived, al-Qosi was charged, for a second time, with al-Bahlul in February 2008, and took part in several inconclusive hearings. In November 2009, he was charged for the third time, after President Obama decided to revive the Commissions, and last month he accepted a plea bargain, making a guilty plea on one count of conspiracy and one count of providing material support to terrorism, in a decision that was widely seen as providing his best opportunity to be released from Guantánamo. A military jury sentenced him to 14 years’ imprisonment on August 11, but was not told the details of his plea deal, and it is therefore thought that the jury was being used to deliver what appears to be a public vindication of the Commissions’ ability to deliver tough sentences, even though, by all accounts, al-Qosi will be held for just two more years before being released.

ISN 063 Al Qahtani, Mohammed (Saudi Arabia)
Despite allegations that he was intended to be the 20th hijacker for the 9/11 attacks, al-Qahtani is not expected to face a trial of any kind. He was originally put forward for a trial by Military Commission (with Khalid Sheikh Mohammed and four other men accused of involvement in the 9/11 attacks) in February 2008, but the charges were subsequently dropped by Susan Crawford, the Convening Authority for the Commissions, responsible for pressing charges, because, as she explained to Bob Woodward in January 2009, “We tortured Qahtani. His treatment met the legal definition of torture.” A harrowing log recording the details of al-Qahtani’s torture from November 2002 to January 2003, in a program approved by defense secretary Donald Rumsfeld, was made publicly available in June 2005 (PDF).

Note: The courtroom sketch of Ibrahim al-Qosi, by Janet Hamlin, is courtesy of Janet Hamlin Illustration.

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

As published exclusively on Cageprisoners. Cross-posted on The Public Record, Eurasia Review, the World Can’t Wait, Uruknet, Blog from Middle East and New Left Project. mentioned on No Lies Radio, Portland Indymedia and Dhafir Trial.

The sentence was the first under President Obama and only the fourth in the long and troubled history of the Military Commissions at Guantánamo. The trial system was dragged from the history books by Vice President Dick Cheney in November 2001, ruled illegal by the US Supreme Court in June 2006, revived by Congress later that year, suspended by President Obama on his first day in office, and then revived last November, in a move that was widely criticized as part of a hideously compromised three-tier system of justice for the Guantánamo prisoners, involving federal court trials or Military Commissions for 35 prisoners in total, and indefinite detention without charge or trial for 48 others.

As Reuters explained, al-Qosi, who is Sudanese, met Osama bin Laden in Sudan, traveled with him to Afghanistan, and “acknowledged that he knew al-Qaeda was a terrorist group when he ran one of the kitchens in bin Laden’s Star of Jihad compound in Afghanistan.” He also “admitted helping the al-Qaeda leader escape US forces in the Tora Bora mountains of Afghanistan,” but added that he “had no involvement in or prior knowledge of terrorist attacks.” Putting these admissions in context, Renee Schomp, a Program Associate for Human Rights First’s Law and Security Program, stated:

[A]l-Qosi pled guilty to living on a compound with supporters of Osama bin Laden in Jalalabad, Afghanistan and acting as a cook. His wife and children were with him until about November 2001. Al-Qosi’s guilty plea states that his activities in Afghanistan were the sole means of support for them. Al-Qosi never acted as a bodyguard or security guard for bin Laden, but for 12-18 months he served on defensive lines in a mortar crew — before the “war on terror” began, and not against US forces.

Crucially, al-Qosi’s sentence was part of a plea bargain whose full details have not yet been made publicly available. According to the Dubai-based al-Arabiya TV network, his sentence was capped at two years, although it is clear from the negotiations during his trial — in which the prosecution and the defense called for the military jury to deliver a sentence of between 12 and 15 years — that the jury had not been given any information about the plea deal, and that, essentially, all the details had been worked out behind the scenes to use the jury to deliver a sentence that appeared to validate the system, even though it did no such thing.

What was also apparent during al-Qosi’s sentencing was typical confusion — of the kind that has undermined the Commissions throughout their troubled history — regarding practical considerations; in this case, where his sentence will be served.

As Reuters reported, al-Qosi’s sentencing “hit a snag” because of the military’s inability to develop a coherent policy regarding his desire not to be held in solitary confinement. His plea deal “required the convening authority overseeing the trial [Retired Vice Adm. Bruce MacDonald, who replaced President Bush’s appointee Susan Crawford in March this year] to recommend that Qosi serve his time in Camp Four, where detainees live communally under fewer restrictions than in the other camps.” However, “military rules forbid housing convicted criminals with other detainees.”

Of the three men previously convicted, only one, Ali Hamza al-Bahlul, is still held, and he is serving a life sentence in solitary confinement. Asked to explain the circumstances of al-Bahlul’s confinement, Navy Cmdr. Brad Fagan stated, “He is separated from the general population,” but “declined to elaborate” except to say that “he’s by himself.”

Al-Qosi’s judge, Air Force Lt. Col. Nancy Paul, was clearly unimpressed by the military’s inability to establish a policy regarding the circumstances in which convicted prisoners are to be held. As Reuters explained, “an assistant defense secretary ordered two years ago that the army and the military’s Southern Command, which oversees the Guantánamo base, develop a detailed plan for housing prisoners after their conviction.” As Judge Paul noted, however, “This has not been done.” She added that the absence of an official policy was “especially troubling” because of the possibility of another conviction in the trial of Omar Khadr, the Canadian who was just 15 years old when he was seized in Afghanistan in July 2002.

As a compromise, Judge Paul ruled that al-Qosi’s plea agreement “was valid because it called only for a recommendation that he be housed in the communal camp, and did not guarantee he would be.” She ordered him to “remain in Camp Four for 60 days while the military worked out where he would serve the rest of his sentence.”

Press reports also noted that, at the end of his sentence, al-Qosi will be repatriated to Sudan, where, as the Wall Street Journal explained, the Sudanese National Intelligence and Security Service stated, in correspondence introduced at al-Qosi’s trial by one of his military defense lawyers, Maj. Todd Pierce, that “it would put Mr. Qosi in mandatory ‘rehabilitation,’ monitor his phone calls and email, and deploy ‘informants’ to ensure he ‘no longer [adheres] to a radical ideology.’”

The Wall Street Journal added that the Sudanese intelligence agency reported that its program, used to deal with nine Sudanese prisoners previously released from Guantánamo (between 2004 and 2008), was “85% effective,” and also suggested that the US government “has been working with the Sudanese government to repatriate detainees from Guantánamo Bay.” These men were not named in the report, but there are only two other Sudanese prisoners in Guantánamo, in addition to Ibrahim al-Qosi.

The other two Sudanese prisoners

The first, Ibrahim Idris, who has sometimes been listed as a Yemeni, is clearly of no great significance. Accused of attending al-Farouq (the training camp associated with Osama bin Laden in the years before the 9/11 attacks), and of fighting with the Taliban for two years, he attended a military review board in December 2007, in which he stated that he had actually been seized in Pakistan, where he had traveled for 40 days to work as a missionary. “No disrespect to the interrogators,” he explained. “I said what I had to say, and they made me say things that weren’t true.” This may or may not be accurate (although it is certainly possible), but no information has emerged in the last eight years to indicate that he was involved in any way with terrorist activities.

The case of the other Sudanese prisoner, Noor Uthman Muhammed, who was involved with the Khaldan training camp as a trainer, and who appears to have run the camp when its leader was away, is clearly more problematical for the government. Muhammed was one of 29 prisoners put forward for a trial by Military Commission under President Bush between 2007 and 2008, and was one of five prisoners whose military trials under President Obama were announced by Attorney General Eric Holder last November. Progress in his case has been slow in the months since, with inconclusive wrangling over his defense team’s request for his evaluation by an independent psychologist, but it would be surprising if the government were to be in any great hurry to proceed with the trial, as his case involves two men whose stories the government would prefer to keep hidden. The first is Ibn al-Shaykh al-Libi, the camp’s leader, and the second is Abu Zubaydah, the camp’s mentally troubled gatekeeper.

Al-Libi, who died in mysterious circumstances in a Libyan jail last May, was the notorious CIA “ghost prisoner” who produced a false confession about links between al-Qaeda and Saddam Hussein, while being tortured in Egypt on behalf of the CIA, which was used to justify the US-led invasion of Iraq in March 2003, and Abu Zubaydah, as has become increasingly apparent over the last few years, is the supposed “high-value detainee,” for whom the CIA’s torture program was initially developed, who, in fact, was not part of al-Qaeda and had no knowledge of al-Qaeda’s terrorist plans.

In general, the government has spent the last few years removing all mention of Zubaydah from other prisoners’ cases, and Muhammed’s proposed trial is therefore a potentially disturbing aberration. As McClatchy Newspapers explained in an article on July 1 this year, when Muhammed boycotted a pre-trial hearing, “Declassified documents say Abu Zubaydah has told interrogators that the Khaldan training camp that Noor allegedly ran was a rival to training camps run and sanctioned by bin Laden, wasn’t associated with al-Qaeda, that it was first set up by the US-backed resistance to the Soviet invasion of Afghanistan and was committed to a defensive, not offensive, jihad.”

As McClatchy also noted, there was “little likelihood” that Muhammed would be tried in the near future, because, in April this year, his judge, Navy Capt. Moira Modzelewski, “said it would take her until January or February to sift through classified evidence the prosecution intends to use against him and that the trial couldn’t begin before she’d done that.”

Pre-trial hearings are scheduled to continue next month, but with al-Qosi’s example, it may make more sense for the government to try to work out a plea bargain in Muhammed’s case that would bypass the potential embarrassment of an actual trial.

Whether any of these proposals have anything to do with justice is debatable. As Melina Milazzo, Pennoyer Fellow with Human Rights First’s Law and Security Project, stated after al-Qosi’s sentence was announced, Judge Paul’s decision that “it was in the best interest for both the government and al-Qosi that the details of his plea agreement should continue to be sealed until after his confinement was completed” was “unprecedented in both US federal court as well as US court martial,” adding, “Moreover, shrouding his plea agreement in secrecy does little to provide much needed transparency to a grossly opaque system.”

Noticeably, however, it is pragmatism and diplomacy rather than justice that have largely enabled prisoners to leave Guantánamo, and if President Obama is at all serious about closing the prison, then he should be aware that the Sudanese government has at least provided him with an opportunity to close one more chapter in Guantánamo’s sordid history by facilitating the repatriation of all three of the remaining Sudanese prisoners.

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

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

As published exclusively on Cageprisoners. Cross-posted on New left Project.

For a sequence of articles dealing with the Obama administration’s response to the Military Commissions, see: Don’t Forget Guantánamo (February 2009), Who’s Running Guantánamo? (February 2009), The Talking Dog interviews Darrel Vandeveld, former Guantánamo prosecutor (February 2009), Obama’s First 100 Days: A Start On Guantánamo, But Not Enough (May 2009), Obama Returns To Bush Era On Guantánamo (May 2009), New Chief Prosecutor Appointed For Military Commissions At Guantánamo (May 2009), Pain At Guantánamo And Paralysis In Government (May 2009), My Message To Obama: Great Speech, But No Military Commissions and No “Preventive Detention” (May 2009), Guantánamo And The Many Failures Of US Politicians (May 2009), A Child At Guantánamo: The Unending Torment of Mohamed Jawad (June 2009), A Broken Circus: Guantánamo Trials Convene For One Day Of Chaos (June 2009), Obama Proposes Swift Execution of Alleged 9/11 Conspirators (June 2009), Predictable Chaos As Guantánamo Trials Resume (July 2009), David Frakt: Military Commissions “A Catastrophic Failure” (August 2009), 9/11 Trial At Guantánamo Delayed Again: Can We Have Federal Court Trials Now, Please? (September 2009), Torture And Futility: Is This The End Of The Military Commissions At Guantánamo? (September 2009), Resisting Injustice In Guantánamo: The Story Of Fayiz Al-Kandari (October 2009), Military Commissions Revived: Don’t Do It, Mr. President! (November 2009), The Logic of the 9/11 Trials, The Madness of the Military Commissions (November 2009), Rep. Jerrold Nadler and David Frakt on Obama’s Three-Tier Justice System For Guantánamo (November 2009), Guantánamo: Idealists Leave Obama’s Sinking Ship (November 2009), Chaos and Confusion: The Return of the Military Commissions (December 2009), Afghan Nobody Faces Trial by Military Commission (January 2010), Lawyers Appeal Guantánamo Trial Convictions (February 2010), When Rhetoric Trumps Good Sense: The GOP’s Counter-Productive Call for Military Commissions (March 2010), David Frakt’s Damning Verdict on the New Military Commissions Manual (May 2010), Prosecuting a Tortured Child: Obama’s Guantánamo Legacy (May 2010), The Torture of Omar Khadr, a Child in Bagram and Guantánamo (May 2010), Bin Laden Cook Accepts Plea Deal at Guantánamo Trial (July 2010), Defiance in Isolation: The Last Stand of Omar Khadr (July 2010), Omar Khadr Accepts US Military Lawyer for Forthcoming Trial by Military Commission (July 2010), A Letter from Omar Khadr in Guantánamo (July 2010).

In the six years since al-Qosi, now 50 years old, was charged in the first incarnation of the Commissions (which were ruled illegal by the Supreme Court in June 2006), he has been accused of serving as the accountant for a company run by Osama bin Laden in Sudan from 1992 onwards, of visiting Chechnya to fight in 1995, with bin Laden’s support and permission, of serving as a bodyguard, cook and driver for bin Laden in Afghanistan from 1996 onwards, and of fighting in Afghanistan as part of a mortar crew. He was seized in December 2001, crossing the border from Afghanistan to Pakistan.

Charged again in February 2008, and again last November, he had, until yesterday, taken part in several inconclusive hearings, and had, for the most part, watched as the government largely failed to secure any legitimacy for the Commissions, winning only three dubious victories: David Hicks (via a plea deal) in March 2007, Salim Hamdan after a trial in August 2008, and Ali Hamza al-Bahlul, after a one-sided trial in which he refused to mount a defense, in November 2008.

At his hearing on Wednesday, the final picture that emerged, as the Miami Herald explained, was of a man who left Sudan to follow bin Laden to Afghanistan, taking his wife and children with him, and who “admitted that his work for al-Qaeda was his family’s only means of support.” He also admitted that he “went to Pakistan for al-Qaeda and met the Taliban’s top leader, Mullah Omar, who used to stop by the terrorist compound on holidays,” that he “drove a caravan of vans when bin Laden and his associates went to Kandahar, where married and single terrorists were separated into groups in two-room apartments,” and where he “cooked for the bachelors,” and that he “also spent more than a year on the front lines, getting bombed on the Pakistan border and coming under fire from US helicopters in Jalalabad.”

During the hearing, he told the judge, Air Force Lt. Col. Nancy Paul, that “he acknowledged his offenses and he understood his plea deal,” as the Associated Press explained, although he “did not speak at length.” The details of the deal, which have spared him from facing additional charges at a trial, were not disclosed, although rumors of a deal have circulated for several months, and it was understood that a plea deal would also prevent him from receiving a life sentence, as may have happened had his case proceeded to trial. The Miami Herald noted that the Dubai-based Al-Arabiya satellite news network, “[c]iting two anonymous sources who read the plea agreement,” reported that he “agreed to a maximum of two more years in prison before he is sent home to Sudan.”

A panel of military officers is scheduled to deliver al-Qosi’s sentence on August 9. Navy Capt. David Iglesias, a spokesman for the Prosecution Office of the Military Commissions, explained that “[m]ilitary legal authorities can reject the panel’s sentencing decision if it exceeds what was agreed upon as part of the plea deal.” He “declined to say how much more time, if any, the prisoner could serve under the agreement,” but stated, “Both sides reached an agreement that they felt was fair and it would be against the interests of justice not to accept it.”

Iglesias also said that al-Qosi “admitted to knowing [bin Laden] personally, helping him and was willing to follow him around. He was somewhere between a foot soldier and less than a general. We are not talking about robbing a 7-Eleven in Hialeah. We are talking about war crimes.” This analysis, which was perhaps acceptable until it came to Iglesias’ conclusion about “war crimes,” was strongly challenged by critics who have opposed the Commissions throughout their generally dismal eight-year existence, and who were dismayed when President Obama decided to revive them last May, conveniently forgetting how much he had opposed them as a Senator in 2006 and 2007.

Stacy Sullivan, a senior counter-terrorism advisor for Human Rights Watch, said, “He’s a cook who served as a driver and possibly a bodyguard, Can you imagine if, during Nuremberg, they prosecuted cooks and drivers? It didn’t happen. They consider the fourth conviction in eight years a victory?” She also noted, as the Miami Herald explained, that al-Qosi’s “accusations of abuse, including that he was wrapped in an Israeli flag and subjected to loud music, was not mentioned in court,” and nor was there any mention of claims made in 2005 by Lt. Col. Sharon Shaffer, who was assigned to represent al-Qosi at the time, who ”characterized his treatment as possibly torture but certainly inhumane treatment; he was held in stress positions for protracted periods, subjected to military dogs and sexually humiliated.”

Adding to the criticism, Daphne Eviatar, a senior associate in Human Rights First’s Law and Security Program, stated, “This is not a victory for the military commission system. In fact Mr. al Qosi’s case is a textbook example of the inability of the military commission system … to achieve swift justice. The case has dragged on for more than six years without a trial.”

Given how shambolic al-Qosi’s last hearing in December was, it is unsurprising that the administration chose to pursue a plea deal rather than a full-blown trial. On that occasion, as I explained at the time, Lt. Col. Paul resisted the prosecution’s attempts to push back the start date of al-Qosi’s alleged crimes from 1996 to 1992, noting that:

although the rules regarding proposed changes in the new Military Commissions Act appeared to provide no guidance on this point, the relevant passages in the 2006 Act, which were drawn substantially from passages in the US military’s Rules for Court-Martial, were clear that the government’s request constituted a “major change” to the charges, and that “major changes may not be made over the objection of the accused unless the charges are withdrawn and re-referred.”

She added that the proposed amendments were “troubling in nature as the four-year extension of time and addition of overt acts dramatically changes the nature of the offense alleged,” noted that the request disrupted trial preparation which “has been ongoing for almost 2 years,” and, in conclusion, denied the request because the changes “are essentially new and additional offenses and contain substantial matters not fairly included in those previously referred,” and, additionally, because they bring “unfair surprise to the Accused.” In the courtroom, as Devon Chaffee [an observer for Human Rights First] explained, Lt. Col. Paul made a point of adding that, five years after the government first filed charges against al-Qosi, the defense still “doesn’t even know what the charges are going to look like.”

With the plea deal, further embarrassments like these will presumably be avoided (in al-Qosi’s case at least), as will legal challenges to the charges themselves — of conspiracy and material support — which have both been subjected to serious criticism, leading to doubts about whether either charge will stand up on appeal.

In Hamdan v. Rumsfeld, the case in which the Supreme Court shut down the Commissions’ first incarnation, Justice John Paul Stevens, in an opinion in which he was joined by three other justices, made a point of mentioning that “conspiracy” has not traditionally been considered a war crime. Moreover, on the charges of material support, which are currently being appealed in the cases of Salim Hamdan and Ali Hamza al-Bahlul, senior administration officials proposed to Congress last summer, as the Commissions were being revived with lawmakers’ support, that the charge of material support for terrorism should be dropped. As I explained last December:

Assistant Attorney General David Kris conceded (PDF), in Congressional testimony in July, that “there is a significant risk that appellate courts will ultimately conclude that material support for terrorism is not a traditional law of war offense, thereby reversing hard-won convictions and leading to questions about the system’s legitimacy.” The Justice Department’s position was echoed by the Pentagon, where General Counsel Jeh Johnson also accepted in July (PDF) that “material support is not a viable offense to be charged before a military commission because it is not a law of war offense.”

The irony, as I also noted at the time, was “not only that David Kris and Jeh Johnson failed to persuade Congress to drop the charge of material support for terrorism, but also that Congress ignored Kris’ additional suggestion that ‘material support charges could be pursued in federal courts where feasible.’”

With this in mind, it may be worth watching out for more plea bargains in the Military Commissions, while everyone who should know better — or who has influence but no insight — continues to ignore the fact that the Commissions should never have been revived, and that any trials should take place in federal courts.

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

Cross-posted on Common Dreams, Eurasia Review, The Public Record and The Smirking Chimp.

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

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

And for a sequence of articles dealing with the Obama administration’s response to the Military Commissions, see: Don’t Forget Guantánamo (February 2009), Who’s Running Guantánamo? (February 2009), The Talking Dog interviews Darrel Vandeveld, former Guantánamo prosecutor (February 2009), Obama’s First 100 Days: A Start On Guantánamo, But Not Enough (May 2009), Obama Returns To Bush Era On Guantánamo (May 2009), New Chief Prosecutor Appointed For Military Commissions At Guantánamo (May 2009), Pain At Guantánamo And Paralysis In Government (May 2009), My Message To Obama: Great Speech, But No Military Commissions and No “Preventive Detention” (May 2009), Guantánamo And The Many Failures Of US Politicians (May 2009), A Child At Guantánamo: The Unending Torment of Mohamed Jawad (June 2009), A Broken Circus: Guantánamo Trials Convene For One Day Of Chaos (June 2009), Obama Proposes Swift Execution of Alleged 9/11 Conspirators (June 2009), Predictable Chaos As Guantánamo Trials Resume (July 2009), David Frakt: Military Commissions “A Catastrophic Failure” (August 2009), 9/11 Trial At Guantánamo Delayed Again: Can We Have Federal Court Trials Now, Please? (September 2009), Torture And Futility: Is This The End Of The Military Commissions At Guantánamo? (September 2009), Resisting Injustice In Guantánamo: The Story Of Fayiz Al-Kandari (October 2009), Military Commissions Revived: Don’t Do It, Mr. President! (November 2009), The Logic of the 9/11 Trials, The Madness of the Military Commissions (November 2009), Rep. Jerrold Nadler and David Frakt on Obama’s Three-Tier Justice System For Guantánamo (November 2009), Guantánamo: Idealists Leave Obama’s Sinking Ship (November 2009), Chaos and Confusion: The Return of the Military Commissions (December 2009), Afghan Nobody Faces Trial by Military Commission (January 2010), Lawyers Appeal Guantánamo Trial Convictions (February 2010), When Rhetoric Trumps Good Sense: The GOP’s Counter-Productive Call for Military Commissions (March 2010), David Frakt’s Damning Verdict on the New Military Commissions Manual (May 2010), Prosecuting a Tortured Child: Obama’s Guantánamo Legacy (May 2010), The Torture of Omar Khadr, a Child in Bagram and Guantánamo (May 2010).

First dragged out of obscurity in November 2001 by Dick Cheney and his close advisors, specifically to secure the convictions of “terror suspects” in a system designed to allow evidence obtained through the use of torture, the Commissions failed twice before their recent reincarnation. In June 2006, the Supreme Court ruled that they violated both the Geneva Conventions and the Uniform Code of Military Justice, and when they were revived by Congress later that year (with torture banned, but coerced evidence allowed at the discretion of the judges), they then stumbled from one disaster to another from March 2007 until January 2009, when President Obama suspended them.

Throughout that time, they secured only three contentious results, and were publicly undermined by their own military defense attorneys. On two other occasions, they were rocked even more fundamentally: in October 2007, when the Chief Prosecutor, Col. Morris Davis, resigned, complaining that the entire process was subjected to political interference, and in September 2008 when another prosecutor, Lt. Col. Darrel Vandeveld, resigned because he discovered that the system was incapable of delivering justice.

President Obama’s freeze on proceedings on his first day in office should have been the end of the story, and he should have had the courage to realize that federal courts — with their long and successful history of prosecuting cases related to terrorism — were the only valid venues for trials. Instead, he turned his back on his own pledges on the campaign trail, and his opposition to the Military Commissions Act as a Senator in 2006, and, with the support of Congress, tinkered once more with the Commissions’ rules, tightening the restrictions on the use of hearsay and coerced evidence, but neglecting to introduce either a lower age limit for those who can be charged, or a sunset clause in case it all goes horribly wrong.

Last week, when the new rules were tested on Ibrahim al-Qosi, a Sudanese prisoner who was first charged in February 2004, was charged again in February 2008, and is one of the first five prisoners charged by the Obama administration, the hearing began in chaos and confusion, and never recovered. In a demonstration of the kind of lack of attention to detail for which the Bush administration was notorious, and which left the military judges fumbling for answers, the judge, Air Force Lt. Col. Nancy Paul, was immediately confronted by a fundamental problem that, bizarrely, no one appeared to have seen on the horizon.

Under the Bush administration, for prisoners to be eligible to face trials by Military Commission, they had to have been subjected to a Combatant Status Review Tribunal, and to have been designated as an “unlawful enemy combatant.” Under the Mk. 3 Commissions, however, they are referred to as “alien unprivileged enemy belligerents.” The Washington Post explained that this description was “more in line with the Geneva Conventions,” according to military prosecutors, but no one had thought to inquire whether the change would be acceptable to the judge, and although Lt. Col. Paul did accept it, noting that it was “specifically authorized under the MCA of 2009,” she was in no mood to do so without allowing a challenge from al-Qosi’s defense team.

In a “Motion for Article 5 Status Determination, Or, Alternatively, Dismissal for lack of Personal Jurisdiction” (PDF), the defense argued, firstly, that “the only competent authority to make such a determination is an Article 5 hearing, applying the procedures set forth in Army Regulation (AR) 190-8, Enemy Prisoners of War, Retained Personnel, Civilian Internees and Other Detainees.” This was a long shot, as Article 5 tribunals, established under the Geneva Conventions to ascertain, close to the time and place of capture, whether non-uniformed personnel are combatants or not, were abandoned in the “War on Terror” by Donald Rumsfeld’s Defense Department. This was in spite of the fact that they had been successfully used by the US military in every conflict from Vietnam onwards, and, during the first Gulf War, had led to the release of 886 out of 1,196 men detained (at Guantánamo, in contrast, the lack of Article 5 tribunals meant that large numbers of innocent men ended up in the prison alongside foot soldiers for the Taliban and a handful of terrorists).

Lt. Col. Paul refused to accept this proposition, pointing out that AR 190-8 “is not determinative of jurisdiction in a Military Commission.” She did, however, accept the second part of the motion, noting that “a pre-trial finding by a military judge by a preponderance of the evidence that the Accused is an alien unprivileged enemy belligerent does not eliminate the requirement for the Commission members to find beyond reasonable doubt the Accused’s status if an element of the offense,” and set a date of January 6, 2010 for a hearing regarding the designation. According to the Washington Post, a military prosecutor explained that he “feared it could become a ‘mini-trial’ in itself, adding to the government’s burden in that case and others.”

After this terrible start, the government had no more luck when it came to the charges against al-Qosi. In his charge sheet in February 2008 (PDF), al-Qosi was accused of “conspiracy” and of “providing material support for terrorism,” primarily based on allegations that, from 1996 to 2001, he was a bodyguard and driver for Osama bin Laden. However, as Devon Chaffee, an observer of the proceedings for Human Rights First, explained, “Under the new law the defendant no longer has to have had any connection to hostilities against the US to fall within the jurisdiction of the commissions.” As a result, the government filed a “Motion to Amend Charges” (PDF), asking to “[e]xpand the time frame” for the charges from 1996 to 1992, which would include the time that al-Qosi spent with bin Laden in Sudan, before his departure for Afghanistan in 1996, and, allegedly, combat that he undertook in Chechnya in 1995, “after bin Laden financed his trip there.”

Again, Lt. Col. Paul was unimpressed, noting that, although the rules regarding proposed changes in the new Military Commissions Act appeared to provide no guidance on this point, the relevant passages in the 2006 Act, which were drawn substantially from passages in the US military’s Rules for Court-Martial, were clear that the government’s request constituted a “major change” to the charges, and that “major changes may not be made over the objection of the accused unless the charges are withdrawn and re-referred.”

She added that the proposed amendments were “troubling in nature as the four-year extension of time and addition of overt acts dramatically changes the nature of the offense alleged,” noted that the request disrupted trial preparation which “has been ongoing for almost 2 years,” and, in conclusion, denied the request because the changes “are essentially new and additional offenses and contain substantial matters not fairly included in those previously referred,” and, additionally, because they bring “unfair surprise to the Accused.” In the courtroom, as Devon Chaffee explained, Lt. Col. Paul made a point of adding that, five years after the government first filed charges against al-Qosi, the defense still “doesn’t even know what the charges are going to look like.”

As the government decides whether to start all over again in al-Qosi’s case, two other issues are worth considering. The first, as I explained in an article last month, is that, at al-Qosi’s arraignment in 2008:

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

The second is that the other charge against al-Qosi — that he provided “material support for terrorism” — may not stand up to an appeal, even if he is convicted of material support in a forthcoming trial by Military Commission. To its credit, the Obama administration recognized this in summer, and proposed to Congress that the charge of material support for terrorism should be dropped. Assistant Attorney General David Kris conceded (PDF), in Congressional testimony in July, that “there is a significant risk that appellate courts will ultimately conclude that material support for terrorism is not a traditional law of war offense, thereby reversing hard-won convictions and leading to questions about the system’s legitimacy.” The Justice Department’s position was echoed by the Pentagon, where General Counsel Jeh Johnson also accepted in July (PDF) that “material support is not a viable offense to be charged before a military commission because it is not a law of war offense.”

The irony, as the new Military Commissions began to unravel on their first outing, is not only that David Kris and Jeh Johnson failed to persuade Congress to drop the charge of material support for terrorism, but also that Congress ignored Kris’ additional suggestion that “material support charges could be pursued in federal courts where feasible.”

When Kris’ boss, Attorney General Eric Holder, announced last month that five prisoners — including al-Qosi — would face trials by Military Commission, no one piped up to ask why these men would be charged with material support, despite the opposition of both the Justice Department and the Defense Department to its incorporation in the revised Military Commissions Act. The administration will, I suppose, be able to blame Congress if the system collapses, but it would surely have made more sense for senior officials to follow the advice of their own lawyers, and to pursue these cases in federal court, along with those of Khalid Sheikh Mohammed and the other four men accused of involvement in the 9/11 attacks.

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

As published exclusively on Truthout.

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

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