A former prosecutor and “true believer” in the Commissions, Lt. Col. Vandeveld resigned spectacularly in September 2008, after discovering, as the Post-Gazette profile explained, that, although he had expected to work within a familiar military justice system, what he found instead was “a chaotic environment in which cases were tainted by questionable interrogation techniques and evidence was scattered, missing, of questionable origin or simply unavailable.”

Lt. Col. Wingard’s experiences were similar. Although he had “prosecuted cases in 110-degree courtrooms in Iraq, investigated war crimes in Bosnia and acquired years of experience” as an officer in the Air Force Reserve JAG corps, and had signed on expecting to encounter the “worst of the worst,” it was the system itself that was “the worst of the worst.”

Assigned to the defense office, rather than the prosecutors, as he had hoped, Lt. Col. Wingard discovered, when assigned the case of Fayiz al-Kandari, a Kuwaiti who was put forward for a trial by Military Commission in November 2008, that the case against his client was non-existent. As he explained in May last year, “There simply is no evidence other than he is a Muslim in Afghanistan at the wrong time, other than double and triple hearsay statements, something I have never seen as justification for incarceration, let alone eight years.” Last October, with assistance from Lt. Col. Wingard, I wrote a detailed article about Fayiz al-Kandari, entitled, “Resisting Injustice In Guantánamo: The Story Of Fayiz Al-Kandari.”

In the nine months since the Post-Gazette article was published, Lt. Col. Wingard has become a persistently outspoken opponent of the Commissions, and an equally persistent defender of his client. He now has a blog at TPM (Talking Points Memo), which I urge you to check out and support, and yesterday he had the following op-ed published in Kuwait Times:

Kuwait Needs to Speak Up on Guantánamo
By Barry Wingard, Kuwait Times, February 25, 2010

With the Obama administration’s January 2010 deadline for closing Guantánamo Bay now in the past, two Kuwaiti detainees remain imprisoned in Cuba where they have been held without trial for more than eight years. While the US government is primarily responsible for the suffering these Kuwaitis have endured, the Government of Kuwait is also responsible for allowing the injustice to continue.

As is universally recognized, Kuwait is a close and faithful ally of the United States. The United States liberated Kuwait following the Iraqi invasion of 1990. More recently, Kuwait provided critical support as a staging area for the US military during the Iraq War.

To be fair, the Emir of Kuwait has sought the return of the Kuwaiti detainees in face-to-face meetings with both President Bush and President Obama. The Emir has also sent a letter to the US government requesting that all Kuwaiti citizens detained at Guantánamo be returned. Other Kuwaiti officials have repeated that request to their counterparts in the US government.

The Government of Kuwait has also fulfilled all of the conditions the US government established for the return of the Kuwaiti detainees. Perhaps most significantly, Kuwait established a state-of-the-art rehabilitation center that provides access to education, medical care, group discussions, and physical exercise to help detainees recover from their long ordeal in Guantánamo.

But while Kuwait has clearly made an effort to secure the return of its citizens, these efforts have not been strong enough. Contrast Kuwait’s quiet, diplomatic approach with that of Saudi Arabia, which openly criticized the US government and demanded its citizens back. As a result, more than 100 Saudi detainees were transferred from Guantánamo to Saudi Arabia.

Despite the close ties between the United States and Kuwait, the United States does not appear eager to send Kuwaitis home. For example, on September 17, 2009, a US federal judge ordered the immediate release of Fouad Al Rabiah, an innocent Kuwaiti who was interrogated in “enhanced” ways at the hands of his US captors.

Rather than immediately returning him to Kuwait, the US government delayed and stalled Mr. Al Rabiah’s transfer, forcing his attorneys to ask that US officials be held in contempt of court. It was not until December 9, 2009, almost three months after the judge’s order, that Mr. Al Rabiah was finally released from Guantánamo and returned to Kuwait. Still, even with a Federal judge’s opinion that the United States had no authority to detain Mr. Al Rabiah, the Kuwaiti government refused to demand his return.

If the United States was reluctant to release a demonstrably innocent man, it most certainly will be in no rush to repatriate my client, Fayiz Al Kandari, whose habeas case is still pending, despite Fayiz having spent more than eight years in Guantánamo.

At this critical time, the United States is turning its back on its faithful ally. The United States may be legitimately reluctant to return detainees to countries such as Tunisia or Libya where former prisoners may face further torture or persecution. But there are no such concerns about Kuwait. To the contrary, Kuwait treats its returned detainees humanely and helps reintegrate them into society with a rehabilitation program modeled after the successful Saudi program.

No one likes to tell their friends they are wrong. But there comes a time in every relationship when a little push back is necessary. And the friendship survives. Now is the time for the Government of Kuwait to take a stand. It might be outside its comfort zone, but it is the right thing to do for its two citizens still imprisoned at Guantánamo.

Note: The other Kuwaiti held at Guantánamo is Fawzi al-Odah, who lost his habeas corpus petition last August. As I explained at the time, Judge Colleen Kollar-Kotelly agreed with the government that it was “more likely than not” that he “became part of Taliban and al-Qaeda forces in Afghanistan,” even though her ruling “was based on a dubious assemblage of information that relied more on inconsistencies in al-Odah’s account of his activities than it did on anything resembling concrete evidence, as she herself admitted, when she wrote that there were ‘significant reasons why the Government’s proffered evidence may not be accurate or authentic.’”

For more articles on Fayiz al-Kandari and Barry Wingard, see the archive at The Political Carnival.

Andy Worthington is the author of The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison (published by Pluto Press, distributed by Macmillan in the US, and available from Amazon — click on the following for the US and the UK). To receive new articles in your inbox, please subscribe to my RSS feed (and I can also be found on Facebook and Twitter). Also see my definitive Guantánamo prisoner list, updated in January 2010, details about the new documentary film, “Outside the Law: Stories from Guantánamo” (co-directed by Polly Nash and Andy Worthington, and launched in October 2009), and, if you appreciate my work, feel free to make a donation.

Binyam was thinking about Omar Khadr, the Canadian citizen, who was just 15 years old when he was seized after a firefight in Afghanistan in July 2002, and who now faces a trial in the much-criticized Military Commission trial system that was ill-advisedly resuscitated and revived by the Obama administration and Congress last summer. I have written extensively about Khadr’s case (and would be delighted if you checked out one of my favorite articles here), and was dismayed when Attorney General Eric Holder announced in November that Omar Khadr would face a trial by Military Commission.

Recently, following a toothless ruling by Canada’s Supreme Court, I spoke about Omar with the progressive radio host Jeff Farias, but I have not, of course, had the opportunity to meet Omar, whereas Binyam Mohamed has. And so, after Binyam got in touch with me to ask if I’d like to reproduce the following article, I was delighted to accept. It was first published on the website of the Guantánamo Justice Centre, an organization founded by ex-prisoners to raise awareness about Guantánamo and to assist other former prisoners to rebuild their lives, and also on Binyam’s own newly established website, The Political Hostage.

Omar Khadr is a scapegoat for a failed “war on terror”
By Binyam Mohamed

I was and continue to be astonished by the fate of Omar Khadr, a 15-year-old child who has grown into a man in an illegal prison. Locked away in neighbouring cages, we spent a lot of time trading torture and abuse stories. We were psychologists treating each other. By listening to each other we beat an exploitative system established to break us and drive us insane.

Commissioning [being put forward for trial by Military Commission] brought peace to us. It meant the end of “enhanced interrogations” (otherwise known to the common man as torture) and offered our only opportunity to break our silence and attempt to refute falsehood with truth. Due to the public nature of the first ten commissions [in 2004-05, before the Supreme Court struck down their first incarnation], we few emerged from the hundreds of forgotten prisoners, our testimony exposing America’s injustices.

I am amazed how US officials, driven by the desire to justify their illegal acts, have turned this Palestinian-Canadian child into a hero in the eyes of the Muslim youths around the world. And I am more amazed at how America keeps hiding exculpatory evidence in his case, claiming secrets of national security. Yet we all know the facts.

There is a contradiction in the “evidence” tortured out of this man, and the facts hidden. I can’t comprehend nor can I write of the torture and abuse suffered by Omar. The scars seen say it all. Those who witness them swell up with tears and are embarrassed at sharing their own experiences of oppression, as the evidence also classified as secret in the interest of national embarrassment shows.

As we sat in the recreation yard in Camp 5, Guantánamo Bay, Omar recounted to me what happened: the one who threw the grenade at the Americans was shot and killed, the American soldier who Omar is accused of killing with a hand grenade died of a gun shot wound, and not of grenade shrapnel as the American government claims. As the American soldiers came in, they shot Omar in the back, and he fell amongst the other people killed. They shot at one man who was still standing, defending himself from the American onslaught. Once the soldiers had killed him, they walked over and stepped on Omar, thinking him to be dead. I have not only seen the bullet holes on his back, but I have touched them.  He has lost his eyesight in one eye and partially in the other, due to the grenade thrown at him by the Americans in the ensuing gunfire.

The American government is guaranteed a conviction in an illegal system they call “military commissions.” And what a great victory it must be for them: America versus a juvenile, imprisoned and tortured for eight long years. Yet the question greater than this is, “where is justice, equality and a fair trial?” I am enraged to hear these baseless allegations against a juvenile for the interests of oppressive politics. Omar could refute all of these charges in a regular court established under the pretext of justice, fairness and equality, but after the recent case against Aafia Siddiqui, convicted without any evidence, we know that justice will not be upheld, as the American government will never admit to its wrongdoing, and will continue to seek to justify these illegal practices.

This child’s case has pushed America to break all laws, go against her constitution, and to violate everything that she preaches.

Andy Worthington is the author of The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison (published by Pluto Press, distributed by Macmillan in the US, and available from Amazon — click on the following for the US and the UK). To receive new articles in your inbox, please subscribe to my RSS feed (and I can also be found on Facebook and Twitter). Also see my definitive Guantánamo prisoner list, updated in January 2010, details about the new documentary film, “Outside the Law: Stories from Guantánamo” (co-directed by Polly Nash and Andy Worthington, and launched in October 2009), and, if you appreciate my work, feel free to make a donation.

I wrote about the Military Commissions appeal in “Lawyers Appeal Guantánamo Trial Convictions,” which covers in depth what Jeff and I discussed, focusing primarily on whether it was legitimate to try (and convict) Hamdan and al-Bahlul on charges of supporting material support to terrorism, which even the Obama administration believes may be overturned on appeal. In al-Bahlul’s case, he was also convicted on a conspiracy charge, but what makes his case most alarming is that he was convicted (on the eve of 2008 Presidential election) in a one-sided trial in which he refused to mount a defense, and received a life sentence, which he is now serving in isolation in Guantánamo. Disturbingly, he will remain there, while Guantánamo closes around him, unless the government presses for legislation to move him to a prison on the US mainland.

Jeff and I also discussed how inadvisable it was for the Obama administration to revive the Commissions, given their lamentably poor history under the Bush administration, and their reemergence as what appears to be part of a three-tier quasi-judicial system, involving federal court trials for some prisoners (when the evidence appears to be secure), Military Commissions (when it is less reliable), and, most shockingly, indefinite detention without charge or trial in 50 cases in which the government has no reliable evidence whatsoever.

We also discussed the case of Omar Khadr, the Canadian who was seized in Afghanistan when he was just 15 years old, following a recent ruling by the Canadian Supreme Court, in which Canada’s most important judicial body ruled that the Canadian government violated Khadr’s rights when it sent interrogators to question him at Guantánamo, but failed to order the government to demand his repatriation.

This discussion allowed me to lament Canada’s continuing indifference and hypocrisy regarding Khadr, and also to criticize the Obama administration for reviving his trial by Military Commission. With regard to Canada, I pointed out that the government’s position is particularly hypocritical because the country has done so much to promote the rights of child soldiers in other conflicts, but has been content to abandon one of its own citizens.

Analyzing the US position, I pointed out that it was always unforgivable that the Bush administration chose to prosecute a child soldier, even before the hidden evidence emerged which demonstrates that Khadr was unconscious and buried under a pile of rubble when he allegedly threw a grenade that killed a US soldier. I added that it was deeply distressing that the Obama administration has revived the prosecution, and has failed to realize not only that prosecuting a former juvenile prisoner in a war crimes trial will attract international criticism, but also that it repeats the Bush administration’s unjustifiable claims that, in armed conflict, those who fight for the US are soldiers, but those who oppose them are war criminals and terrorists.

Jeff and I also talked about Bagram, following up on the recent publication of my annotated prisoner list (which, in turn, followed the publication of the first ever prisoner list, obtained by the ACLU), and two accompanying articles, “Dark Revelations in the Bagram Prisoner List,” and “UN Secret Detention Report Asks, ‘Where Are The CIA Ghost Prisoners?,’” analyzing the list and an important new UN report on secret detention, which includes a detailed account of the US secret detention program under George W. Bush. Shortly after the interview, I also published another article, “Bagram: Graveyard of the Geneva Conventions,” which looks at how President Obama has failed to revive the Geneva Conventions regarding the detention of prisoners in wartime, and which also provides new information about other secret prisons in Afghanistan.

After running through the vile — and violent — history of Bagram, where several men were murdered in US custody in 2002, I discussed Bagram’s more recent history, covering the cases of the three men rendered to Bagram from other countries who won habeas corpus petitions last year (in a ruling which has been challenged by the Obama administration) and explaining how I researched the names on the list made available by the Pentagon, with the intention of discovering what happened to the many dozens of foreign prisoners held at Bagram, who are not listed. I also explained that I hope to encourage other people who have information about Bagram to come forward to provide further details about those who are still held — and those who have disappeared — so that I can update the list as a collaborative project, and can continue to expose the disturbing truth about US detention policies in Afghanistan.

As I also explained, the importance of exposing the truth about Bagram and secret prisons in Afghanistan is not just because of the ongoing need for accountability for crimes committed by the Bush administration, but also because of increasing evidence that current US detention policy in Afghanistan remains a disturbingly gray area in the Obama administration’s policies.

There was much more in the interview, which lasts for about 35 minutes (including an analysis of Glenn Greenwald’s important article about the seemingly permanent right-wing drift in American consciousness regarding terrorism), and I look forward to talking to Jeff again in the near future.

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Andy Worthington is the author of The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison (published by Pluto Press, distributed by Macmillan in the US, and available from Amazon — click on the following for the US and the UK). To receive new articles in your inbox, please subscribe to my RSS feed (and I can also be found on Facebook and Twitter). Also see my definitive Guantánamo prisoner list, updated in January 2010, details about the new documentary film, “Outside the Law: Stories from Guantánamo” (co-directed by Polly Nash and Andy Worthington, and launched in October 2009), and, if you appreciate my work, feel free to make a donation.

The two men in question — Salim Hamdan and Ali Hamza al-Bahlul — were tried and convicted in 2008, but whereas Hamdan, a driver for Osama bin Laden, had the major charge against him (conspiracy) dismissed by a military jury in August 2008, and was sentenced to serve just six months for providing material support to terrorism, al-Bahlul, who made a video promoting al-Qaeda and is regularly described as al-Qaeda’s “media secretary,” was convicted of conspiracy, solicitation of murder, and providing material support to terrorism, and received a life sentence in November 2008.

Under consideration are two specific questions: firstly, whether providing material support to terrorism is a valid basis for conviction in a war crimes court; and, secondly, whether al-Bahlul’s trial was unfair because he was denied the right to represent himself.

On the first point, lawyers have always maintained that providing material support to terrorism is not a valid war crime. In an email exchange last week, Lt. Col. David Frakt, who represented al-Bahlul before his trial, explained, “It has always been my position that material support to terrorism was a fabricated war crime that was not traditionally triable in a military commission as of the time of Mr. al-Bahlul and Mr. Hamdan’s affiliation with al-Qaeda, but rather was illegally retroactively applied to them several years after the fact.”

As Lt. Col. Frakt also mentioned, the problems with the material support charges had been advanced by Hamdan’s attorneys in a pre-trial motion to dismiss the charge back in February 2008, when they also attempted to dismiss the conspiracy charge for the same reason. On July 16, the judge in Hamdan’s case, Army Capt. Keith Allred, rejected the motion to dismiss on ex post facto grounds, finding that “conspiracy and material support for terrorism have traditionally been considered violations of the law of war,” as Human Rights First explained in a summary of Hamdan’s case.

However, as Lt. Col. Frakt described it, Allred indicated that it was “a very close issue. Although he acknowledged that the crime of material support to terrorism had never been the subject of charges in a military commission before, he reasoned that similar conduct, essentially being part of an armed insurgent group committing war crimes against civilians, had been treated as a war crime in the past, such as during the US Civil War. He argued that Congress was merely providing a new name to conduct that had always been treated as a law of war offense triable by military commission.”

Significantly, Lt. Col. Frakt added, “What Captain Allred ignored is that what Mr. Hamdan was charged with was essentially serving as a personal driver and servant to Osama bin Laden and there was no indication of involvement in any war crimes, against civilians or otherwise.”

Even more significantly, when the Obama administration and Congress revived the Commissions last summer, David Kris, a senior Justice Department official in the National Security Division, testified that the Justice Department had concluded that material support to terrorism was not a traditional war crime and should be removed from the new version of the Military Commissions Act. As Kris explained (PDF):

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

As Lt. Col. Frakt explained to me, despite Kris’ concerns, “Congress rejected this sound advice and included material support to terrorism in the revised 2009 MCA, possibly in part because I advised Congress when I testified that if they removed this crime from statute there would be very few detainees left to prosecute.”

Noticeably, Kris was more enthusiastic about retaining the conspiracy charge, but as I explained in an article in November, “this, too, is fraught with problems. In Hamdan v. Rumsfeld, the case in which the Supreme Court shut down the Commissions’ first incarnation, Justice John Paul Stevens, in an opinion in which he was joined by three other justices, made a point of mentioning that ‘conspiracy’ has not traditionally been considered a war crime.”

In Hamdan’s case, a successful appeal on the material support charge would have little practical effect, as he is already a free man (although Charles Schmitz, who served as his interpreter during proceedings at Guantánamo, told the Wall Street Journal that it was “important to him to clear the conviction,” because “In Yemen, they look at him as a criminal. He’s been tainted”).

To be honest, a successful appeal on the material support charge would mean little to al-Bahlul either, although, it would, of course, fulfill the Justice Department’s own fears about including it in the new legislation, especially as the Obama administration has already announced its intention of using it against several prisoners currently held at Guantánamo.

It remains to be seen, of course, whether material support and/or conspiracy survive an appeal, but in court last week, lawyers for al-Bahlul pushed both points. As the Wall Street Journal described it, Michel Paradis, representing al-Bahlul, argued that the charges on which al-Bahlul was convicted “weren’t traditionally considered war crimes under international law, and thus Congress in 2006 couldn’t retroactively make them so. International law strongly discourages viewing conspiracy as a war crime. Providing material support for terrorism, while a domestic US crime since the 1990s, has never been considered a war crime.”

Ingeniously, the lawyers also argued that al-Bahlul’s production of propaganda material for al-Qaeda should have been protected by the First Amendment of the US Constitution, guaranteeing freedom of speech. One of his attorneys, Mike Berrigan, told reporters, “Mr. al-Bahlul’s conduct in making this documentary — his prosecution for that conduct — was a violation of the US First Amendment.  Not that Mr. al-Bahlul had particular First Amendment rights, but the constitutional restrictions on the US government prosecuting someone for speech made the prosecution itself illegal. Mr. al-Bahlul’s conduct in making that documentary does not come close to the standard of inciting violence that can be criminalized.”

The prosecution disagreed, of course, and Navy Capt. Edward White, who argued for the government at the appeal, stated, “Our position was that, as an enemy combatant waging war against the United States from abroad, he does not have First Amendment rights. He crossed the line into criminally, soliciting other people — inducing, enticing, encouraging, persuading them — to commit war crimes.”

Beyond all these claims, however, the most disturbing aspect of al-Bahlul’s conviction is the nature of his trial, and what Lt. Col. Frakt described to me as his “best hope” is that the Court of Military Commission Review will recognize that the one-sided trial, in which he refused to mount a defense, was fundamentally unfair — or, as Lt. Col. Frakt put it, the judge’s “denial of his right to self-representation essentially denied him of a fair trial because the judge knew that he would not allow me to represent him.”

This was indeed what happened. Al-Bahlul sought strenuously to represent himself, but although his request was granted by Army Col. Peter Brownback, his first judge in the revived Commissions, Brownback was then involuntarily retired from the Army, and the new judge, Air Force Col. Ronald Gregory, revoked al- Bahlul’s pro se status (his right to represent himself).

As I explained at the time, after Maj. Frakt (as he was at the time) announced that al-Bahlul was boycotting the trial, because he wished to represent himself, and did not wish to be represented by a military lawyer, Frakt then asked to be relieved, noting that he was obliged to respect his client’s wishes. When Col. Gregory refused, he declared that he too was unable to participate. “I will be joining Mr. al-Bahlul’s boycott of the proceedings,” he said, “standing mute at the table.” He then refused to answer any further questions from Col. Gregory, even though the judge attempted to argue that he was “obliged to participate,” before conceding that it was not in his power to force him to do so. As Lt. Col. Frakt described it to me last week, Col. Gregory’s actions “ensured there would be no defense at all in the final military commission trial of the Bush era.”

Lt. Col. Frakt also explained that, although appeals are automatic in the Commissions unless waived in writing, the only reason that al-Bahlul failed to waive his right to appeal in writing was because he “refused to accept any papers from his lawyers or the court.” As Frakt described it, “Mr. al-Bahlul made it plain to me that he did not wish to appeal any conviction and he categorically refused to meet with his appointed appellate counsel to discuss any possible grounds for appeal.”

Lt. Col. Frakt was full of praise for the lawyers attempting to defend al-Bahlul, even though they “were hampered by the fact that I did not preserve any issues for appeal (other than the self-representation issue) because I did not speak during the entire trial.” He noted that they “managed to find a way to raise a number of interesting and important issues that strike at the core of the legitimacy of the military commissions,” but in the end, what is most noticeable about al-Bahlul’s case is how he remains in a position of extraordinary isolation at Guantánamo.

Not only is he imprisoned, alone, to serve out his life sentence, but as Lt. Col. Frakt explained, “it remains a mystery what will happen to Mr. al-Bahlul. Although he is serving a life sentence, under current US law, he can’t be transferred out of Guantánamo to a prison on the mainland because detainees can only be transferred to the US to face trial.”

Unless he is to stay in Guantánamo, as the prison slowly empties around him, until, perhaps, he is the only prisoner left, it seems, as Lt. Col. Frakt also explained, that “special legislation will be required” to enable him to leave Guantánamo, even if it is just to resume his life sentence elsewhere.

Lost in the system, essentially, Ali Hamza al-Bahlul is another example of the way in which justice at Guantánamo never progressed much beyond an ad hoc system full of holes, and, whatever the outcome of these appeals, it should give the Obama administration some salutary reminders as to why the Commissions remain an unsuitable system for any kind of credible trial.

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Andy Worthington is the author of The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison (published by Pluto Press, distributed by Macmillan in the US, and available from Amazon — click on the following for the US and the UK). To receive new articles in your inbox, please subscribe to my RSS feed (and I can also be found on Facebook and Twitter). Also see my definitive Guantánamo prisoner list, updated in January 2010, details about the new documentary film, “Outside the Law: Stories from Guantánamo” (co-directed by Polly Nash and Andy Worthington, and launched in October 2009), and, if you appreciate my work, feel free to make a donation.

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

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

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

Notwithstanding the weaknesses of the Military Commission trial system (some of which emerged in its first faltering outing last month), and the very real fear that it is being used by the Obama administration as a second-tier system of justice, the decision to charge Obaidullah is particularly dispiriting, as he is so clearly a peripheral character of such insignificance that putting him up for a war crimes trial risks ridicule.

As I explained in September 2008, when he became the 18th prisoner to be put forward for a trial by Military Commission, 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.

This was not all. In his Combatant Status Review Tribunal and Administrative Review Boards at Guantánamo (the military review boards established to ascertain whether he had been correctly designated as an “enemy combatant,” and whether he still posed a threat to the US), he made it clear that he had made false allegations against himself and another Afghan prisoner still held — a shopkeeper named Bostan Karim — because of the abuse he had suffered, at the hands of US forces, in a forward operating base in Khost and in the main US prison in Afghanistan, at Bagram airbase.

The following exchange, from his ARB in 2005, when he explained that he had been “forced” to make false confessions about Karim while held in Bagram is particularly enlightening:

Board Member: Who forced you to say things?
Detainee: Americans.
Board Member: How did they force you?
Detainee: The first time when they captured me and brought me to Khost they put a knife to my throat and said if you don’t tell us the truth and you lie to us we are going to slaughter you.
Board Member: Were they wearing uniforms?
Detainee: Yes … They tied my hands and put a heavy bag of sand on my hands and made me walk all night in the Khost airport … In Bagram they gave me more trouble and would not let me sleep. They were standing me on the wall and my hands were hanging above my head. There were a lot of things they made me say.

Back in September 2008, I concluded my article by asking, “So tell me, after reading this: does charging Obaidullah for ‘war crimes’ look like justice?”

With the news that Obaidullah is to be charged again, when he is not actually accused of harming a single American, and when he may, in fact, have been tortured, through sleep deprivation and “Palestinian hanging,” to produce false confessions against himself and at least one other prisoner, leads me not only to repeat the question, but to actively call for the open mockery of Attorney General Eric Holder and the lawyers and bureaucrats in the Justice Department and the Pentagon who thought that reviving the charges against him was a good idea.

POSTSCRIPT: No one seems to be entirely sure if Obaidullah is the sixth or the seventh prisoner to be put forward for trial by Military Commission under Obama. On December 11, as Carol Rosenberg reported for the Miami Herald, the Pentagon withdrew charges “without prejudice” against Mohammed Kamin, an Afghan accused of “joining al-Qaeda and then conducting surveillance on US and allied troops.” As Rosenberg also explained, “The move by the prosecutor’s office averted a hearing next week” in Kamin’s case, “and derailed at least temporarily Kamin’s lawyers federal appeals court challenge in Washington, D.C., to the constitutionality of military commissions.” She added, however, “Pentagon officials have said they would refile charges against Kamin, who has been described as an ‘al Qaeda scout’ in his homeland, using new regulations approved by Congress in the Military Commissions Act of 2009.”

For information about Mohammed Kamin’s experiences of the Military Commission trial system under George W. Bush, see here (when, after he was first charged in March 2008, I described him as “an unworthy candidate for any kind of war crimes trial at all”), here and here, where he boycotted his hearings, see here for a report on his pre-trial hearing in September last year, and see this report by David Danzig of Human Rights First of his last pre-trial hearing on November 19, six days after Eric Holder announced that five men would face trials by Military Commission — but did not include Kamin. As Danzig explained:

Mohammed Kamin is, in the words of his defense attorney, “someone who almost no one in the western world has ever heard of.”

When Attorney General Eric Holder announced on Friday that the five men charged with conspiring to plan the 9/11 attacks would be moved to federal court, there was no mention of what would be done with Kamin.

It was unclear how — if at all — a Department of Justice-led review of detainees held at Guantanamo might impact the case against Kamin. No one had bothered to tell his lawyer.

“The fact that we are standing here in this courtroom today suggests that we are going to proceed to military commissions,” Navy Lt. Cmdr. Richard Federico, the military attorney charged with defending the Afghan detainee, said uncertainly at the beginning of the proceedings today. “That would be my assumption too,” chipped in Judge Thomas Cumbie.

Andy Worthington is the author of The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison (published by Pluto Press, distributed by Macmillan in the US, and available from Amazon — click on the following for the US and the UK). To receive new articles in your inbox, please subscribe to my RSS feed (and I can also be found on Facebook and Twitter). Also see my definitive Guantánamo prisoner list, updated in January 2010, details about the new documentary film, “Outside the Law: Stories from Guantánamo” (co-directed by Polly Nash and Andy Worthington, and launched in October 2009), and, if you appreciate my work, feel free to make a donation.

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

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

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

In off-the-record briefings, officials suggested that between 35 and 90 of the 198 prisoners still held at Guantánamo would be moved to Illinois, and, in a conference call with reporters, to accompany the release of the letter, two government officials explained that “Thomson is not for individuals who will be tried in US criminal courts. It’s for individuals who will be tried in the military commissions.” On Thursday, in a memo from the White House to members of the Illinois congressional delegation, the administration elaborated, explaining, “If Thomson is selected, we do not anticipate that any detainees currently at Guantánamo Bay who are transferred to Thomson would be prosecuted in civilian courts. Instead, detainees who will be prosecuted in Federal court would be transferred directly to the jurisdiction where they would be prosecuted.”

With reference to the Military Commissions, the memo stated, “Although a final decision has not yet been made on where reformed military commissions will take place, one option under consideration is to hold military commissions at the detention facility selected for detention. If Thomson is that facility, it has existing space that could be used to try military commission cases as well as significant administrative space and other amenities that could provide support to military commissions.” The authors added, “Detainees prosecuted in reformed military commissions would be held at the same location where they are being tried. If the Thomson facility is selected for such detainees, they would be held securely before, during, and after trial within the facility.”

In Tuesday’s conference call, the two government officials also explained what would happen to two other categories of prisoner. The first are those who, the government hopes, will be “transferred to our friends or allies overseas” — 103 of the prisoners, at the last count, who have been cleared for release by the government’s inter-agency Task Force. These men, the officials explained, will remain at Guantánamo, until arrangements for their release have been negotiated.

Those in the second category, who will also be transferred to the prison in Illinois, subject to Congressional approval, are those who, as President Obama described them in a national security speech in May at the National Archives, “cannot be prosecuted for past crimes, in some cases because evidence may be tainted, but who nonetheless pose a threat to the security of the United States.”

Republicans, predictably, sought to capitalize on the fearmongering that has sustained them throughout most of this year, despite the fact that the prison has largely stood empty since its construction in 2001, and that the plan (which also calls for a new influx of federal prisoners to be housed separately from the Guantánamo prisoners) will bring much-needed jobs to the area. Senate Minority leader Mitch McConnell, for example, complained that the administration had “failed to explain how transferring terrorists to Gitmo North will make Americans safer than keeping these terrorists off of our shores in the secure facility in Cuba,” conveniently forgetting to mention that the government does not need to provide an explanation, because, by 307 to 114 votes in the House, and 79 to 19 in the Senate, lawmakers voted in October to allow prisoners to be brought to the mainland to face trials, as part of a $42.8 billion bill for Homeland Security.

If McConnell’s wailing was rather toothless, critics on the left had more to savage in the plans, seizing on the proposals to transfer prisoners “who cannot be prosecuted … but who nonetheless pose a threat to the security of the United States” as an example of the Obama administration bringing the worst aspects of Guantánamo to the US mainland. In a statement, Amnesty International explained:

The only thing that President Obama is doing with this announcement is changing the Zip Code of Guantánamo. A fundamental principle of the rule of law is that people cannot be held without charge or trial. The founding fathers knew it, the greatest generation fought for it, candidate Obama campaigned for it and the president needs to remember it.

However, although this criticism is certainly accurate with regard to the government’s intent, it does not address whether the administration will be able to achieve its aim. At present, Congress has only approved the transfer to the US mainland of prisoners facing trials, as the government officials who spoke to reporters on Tuesday acknowledged, when they stated that currently “it would be a violation of the law to transfer prisoners to Thomson for the purpose of anything other than prosecution.” They added that, as a result, the administration acknowledges that it “will need some change of law … Ultimately the facility would allow for the detention of some number of detainees who the President outlined in the Archives speech as not being triable either in federal courts or in military commissions.”

It remains far from clear that lawmakers will approve the “change of law” required by the administration to fulfill its plan, and even if Congressional approval is forthcoming, it is not entirely certain that the government has thought out what its proposal actually means.

Despite being inexplicably proud of its plans to hold some prisoners indefinitely without charge or trial, which has been mentioned with alarming regularity since that speech at the National Archives in May, senior officials have generally been reluctant to acknowledge that the majority of the prisoners that it proposes to transfer to Illinois for the rest of their natural lives — around 55, on the basis of the figures bandied about last week — have habeas corpus petitions pending in US District Courts, and that judges may, if the 78 percent success rate to date is anything to go by, grant the petitions of some of these men and order their release.

In its memo on Thursday, the White House finally acknowledged the role of the courts, but only, it appeared, as a supplement to the administration’s right to detain prisoners indefinitely under the Authorization for Use of Military Force (AUMF), enacted by Congress in September 2001, which authorized the President to “use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States.” The memo also pointed out that, in Hamdi v. Rumsfeld, in June 2004, the Supreme Court had concluded that “Congress has clearly and unmistakably authorized detention” of individuals covered by this legislation.

As a result, the memo stated that the “interagency review panel is in the final stages of determining the number of detainees who will continue to be held, and for whom no prosecution is planned,” under the AUMF, and tagged on, almost as an afterthought, was the following passage: “In addition, the Supreme Court ruled in Boumediene v. Bush [in June 2008] that all detainees currently held at Guantánamo have the right to file petitions for habeas corpus to challenge their detention in federal court. Detainees will continue to have that right when they are transferred to the United States.”

If, as can be expected, some of these men win their habeas corpus petitions, the administration will then be left holding innocent men — or, at least, men whose guilt cannot be established by a court — in a maximum-security prison with no obvious means of release, especially if, as with dozens of the 103 cleared prisoners already at Guantánamo, they cannot be repatriated because they hail from countries with notoriously poor human rights records, where they face the risk of torture.

Admittedly, this is not necessarily any better or worse than remaining in Guantánamo, but it appears to be an outcome that has not been fully thought out by senior officials, including the President, while they have been banging on endlessly about continuing the Bush administration’s disgusting and disgraceful policy of holding men without charge or trial, and I doubt that it will be as easy as it is in Guantánamo to continue to deprive prisoners cleared by the courts of all rights when they are on US territory.

The government should have thought about all of this months ago, of course, but senior officials seem to have regarded the courts with a Bush-like disdain, preferring to conduct their own inter-agency Task Force review of the prisoners’ cases, and doing nothing to prevent Bush-era lawyers in the Justice Department from continuing the same policy of obstruction in the habeas cases that typified the previous administration.

The result is that, of those 55 cases of proposed indefinite detention, only nine — those who have lost their habeas petitions — have any sort of basis in law. Even in these cases, I doubt that the government will be able to maintain forever that it has the right to hold prisoners indefinitely, when their habeas petitions demonstrated only that they had some sort of tangential or minor connection with either al-Qaeda or the Taliban, but the oddest thing about these nine cases is that they do not seem to have been considered by the government at all.

On Tuesday, in their briefing to reporters, one of the two government officials stated, in response to a question regarding “indefinite detention” from Jake Tapper of ABC News, “The last category which the president suggested may — you called ‘indefinite detention,’ and which the president indicated in his speech at the Archives — we may, in fact, have to address. The fact of the matter is, this review is ongoing. There are no specific cases, to date, that meet that standard that the president has signed off on, and so I don’t want to jump to any conclusions on that.”

This suggests that the administration is not prepared to make a decision about these nine men until the inter-agency Task Force completes its review, indicating that senior officials regard the District Court rulings in these men’s habeas corpus petitions as less significant than the administration’s own, unaccountable Executive review of their cases.

This is actually rather disturbing, because for now these nine men are, at least, detained on a legal basis that has involved the US courts, and are not merely subjected to indefinite detention at the whim of the government, based on eight-year-old legislation passed by Congress in the immediate aftermath of the 9/11 attacks. From my own point of view, I think we actually need to be having a new conversation, to point out that these men should either be prisoners of war, protected by the Geneva Conventions, or terrorists who should be put forward for trials, rather than remaining, essentially, the unique class of human being known as “enemy combatants” — whatever the Obama administration now chooses to call them (“alien unprivileged enemy belligerents” being the latest twist).

As it stands, however, the omission of these men from the government’s statements in the past few days suggests that senior officials think so highly of the AUMF that they not only believe that it authorizes them to bring prisoners to the US mainland and imprison them indefinitely, but have also fooled themselves into thinking that this will do anything meaningful to remove the taint of Guantánamo.

The reason why it was so important to close Guantánamo in the first place was to bring to an end the ruinous and unjust policy of indefinite detention without charge or trial, and it amazes me that President Obama has, apparently, fooled himself into thinking that a sleight of hand that perpetuates the same policy as that established by George W. Bush will be any more acceptable when he is its architect, or that a change of scenery — from Guantánamo Bay to Thomson, Illinois — can help to accomplish such a brazen betrayal of the fundamental values on which the United States was founded.

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

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

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).

In a letter dated November 20, Daniel P. Mulhollan, the director of CRS, told Col. Davis that he had not shown “awareness that your poor judgment could do serious harm to the trust and confidence Congress reposes in CRS,” and notified him that he would not be kept on after his one-year probationary period at CRS ends on December 21.

The ACLU immediately stepped in, sending a letter on Friday to Dr. Jim Billington, the Librarian of Congress, arguing that “CRS violated the First Amendment when it fired Davis for speaking as a private citizen about matters having nothing to do with his job there, and that CRS must reinstate Davis to his position in order to avoid litigation.”

Aden Fine, staff attorney with the ACLU First Amendment Working Group, said, “The First Amendment protects Col. Davis’s right to speak and write as a private citizen about issues on which he has personal knowledge. Col. Davis didn’t give up his right to express his opinions and first-hand knowledge about a matter of such public importance when he left the military commissions system and went to work at CRS.”

In correspondence over the weekend, Col. Davis reinforced the ACLU’s views, explaining:

I am the head of the Foreign Affairs, Defense, and Trade Division at the Congressional Research Service (one of five CRS research divisions) at the Library of Congress.  My division does not now nor has it ever had responsibility for providing Congress with advice on military commissions; that responsibility resides with the American Law Division … The Library of Congress has a regulation on outside activities for staff and it “encourages” outside writing and speaking on topics outside the staff member’s area of responsibility and the Congressional Research Service has a similar policy … In short, it was clear that I was prohibited from expressing my opinions publicly on matters within my area of responsibility, but I believe I retained the same right as all citizens to express opinions on matter outside the scope of my official duties.

He added:

The First Amendment guarantees the right of free speech and the Supreme Court has long recognized that public employment does not override that right (although regulation of speech is permissible when related to an employee’s official duty … and as noted, I have absolutely no official duty connected to military commissions). It is ironic that our offices are located in the James Madison Building, which is named for the “Father of the Constitution” and the primary architect of the Bill of Rights who led the effort to secure the right of free speech. I suspect Mr. Madison would be surprised to learn that the right he cherished is denied those working in the building that bears his name.

Morris Davis and the ACLU are right, of course, and I hope that Davis is reinstated. Even aside from the fact that he should be entitled to express his personal opinions under his First Amendment rights, it is difficult to see how his published comments could possibly be construed as demonstrating “poor judgment” that “could do serious harm to the trust and confidence Congress reposes in CRS.”

In his Wall Street Journal article on November 10, for example, Col. Davis stated only that the administration’s decision to try some prisoners in federal court and others in Military Commissions was “a mistake.” As he explained, “It will establish a dangerous legal double standard that gives some detainees superior rights and protections, and relegates others to the inferior rights and protections of military commissions. This will only perpetuate the perception that Guantánamo and justice are mutually exclusive.”

And in his letter to the Washington Post, he chided former AG Mukasey for claiming that the decision to try prisoners in federal courts “comes down to a choice between protecting the American people and showcasing American justice,” and also for implying that the Commissions were “essential to keep detainees from returning to terrorism.” As he added, “The Geneva Conventions permit detaining the enemy during armed conflicts to prevent them from causing future harm. Criminal trials punish past misconduct. Suggesting that the choice is either criminal prosecution or freedom is false.”

Ironically (given his subsequent treatment), Col. Davis’s comments about the Commissions were actually rather constructive, as he pointed out that the administration “could legitimately choose to prosecute detainees in either forum — federal courts or military commissions — and satisfy its legal obligations,” noting only that “The problem is trying to have it both ways.” He also explained, “It is not as if double-standard justice is required to keep suspected terrorists off our streets. Those detainees who cannot be prosecuted can still be detained under rules the administration approves — likely in the next several months — for the indefinite detention of those who pose a threat to us during this ongoing armed conflict.”

Jut as ironic is the fact that Davis’s dismissal follows nearly a year at CRS in which he has, in fact, been the soul of discretion regarding his former role as the Chief Prosecutor of the Commissions, the politicization that drove him to resign, and the comments he made in February 2008 that led to the immediate resignation of William J. Haynes II, the Pentagon’s Legal Counsel, even though countless journalists (myself included) would dearly love to talk to him about these matters.

Arguably, no one knew more — or, at least, felt more keenly — the politicization of the Commission process in 2007, after the system was revived by Congress in the fall of 2006 (following a Supreme Court ruling in June 2006, which found that it violated both the Geneva Conventions and the Uniform Code of Military Justice).

Detailed accounts of Davis’ resignation — and his subsequent explanations of his reasons for doing so, which strike at the heart of the Bush administration’s torture regime, and its attempts to prosecute the victims of torture over Davis’s objections — can be found, in particular, in my article, “The Dark Heart of the Guantánamo Trials,” but to conclude this account with a concise explanation, it is worth noting the following passages taken from that article:

[I]n a blistering op-ed in the Los Angeles Times, two months after his resignation, Col. Davis stated, “I was the chief prosecutor for the military commissions at Guantánamo Bay, Cuba, until Oct. 4, the day I concluded that full, fair and open trials were not possible under the current system. I resigned on that day because I felt that the system had become deeply politicized and that I could no longer do my job effectively or responsibly.”

[Col. Davis] explained that the particular trigger for his decision was [a] memo … informing him that he had been placed in a chain of command under Haynes. Stating that he resigned “a few hours after” being informed of this, he mentioned that “Haynes was a controversial nominee for a lifetime appointment to the US 4th Circuit Court of Appeals, but his nomination died in January 2007, in part because of his role in authorizing the use of the aggressive interrogation techniques some call torture.” He added, “I had instructed the prosecutors in September 2005 [shortly after taking the job] that we would not offer any evidence derived by waterboarding, one of the aggressive interrogation techniques the administration has sanctioned.”

In February 2008, Col. Davis told Ross Tuttle of the Nation about a conversation he had with Haynes in August 2005:

“[Haynes] said these trials will be the Nuremberg of our time,” recalled Davis, referring to the Nazi tribunals in 1945, considered the model of procedural rights in the prosecution of war crimes. In response, Davis said he noted that at Nuremberg there had been some acquittals, which had lent great credibility to the proceedings.

“I said to him that if we come up short and there are some acquittals in our cases, it will at least validate the process,” Davis continued. “At which point, [Haynes's] eyes got wide and he said, ‘Wait a minute, we can’t have acquittals. If we’ve been holding these guys for so long, how can we explain letting them get off? We can’t have acquittals. We’ve got to have convictions.’”

This, I’m sure you’ll agree, is far more explosive than Col. Davis’s op-ed and letter regarding the Military Commissions, but even had he chosen to talk about these matters, he should have been free to do so. The fact that he has not is a loss for those of us who wish to see the Bush administration held accountable for its crimes (and who are keen to follow the chain of command from Haynes, via Susan Crawford, the Commissions’ Convening Authority, to Dick Cheney and David Addington), but it also provides another demonstration that, when it came to exercising his freedom of speech whilst employed by the CRS, Col. Davis had no intention of demonstrating “poor judgment” at all.

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 on the Huffington Post. Cross-posted on Common Dreams, The Public Record and Campaign for Liberty.

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).

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

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

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

Rounding on the Bush administration, Carter stated:

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

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

As Greenwald noted, bringing the story up to date:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

As a result, far too little attention has been paid to the inadequacy of the Military Commissions as a venue for trying crimes related to terrorism, although there have been some notable exceptions. Both Glenn Greenwald and myself (in an article entitled, “The Logic of the 9/11 Trials, The Madness of the Military Commissions”) have written about it, and Lt. Col. David Frakt, who served as the military defense attorney for the released Afghan prisoner Mohammed Jawad, and for Ali Hamza al-Bahlul, who was convicted in a one-sided show trial last November, delivered a withering analysis of the Commissions’ failings in an email exchange with Marcy Wheeler on Firedoglake, and has also spoken to Truthout about his concerns. In an email to Marcy Wheeler, he explained:

I reject the government’s claim that the nature of the crime determines the forum (federal court or military commission). I believe it is largely political considerations that are the basis for these determinations. Basically, if there is a US Attorney who wants to try the case and they think they can prove it, they get priority and it goes to federal court. Clearly, there weren’t any federal prosecutors who wanted to touch the [Omar] Khadr case with a ten-foot pole. Who wants to be the first person to try a 15-year old child soldier as a war criminal in history? (Answer — the prosecutors at OMC [the Office of Military Commissions]).

It is absolutely appalling that AG Holder has approved this case to continue in the military commissions. This is truly one of the great disappointments of the Obama Administration to date. The claim that the nature of the crime determines the forum is similarly false. The Administration claims that “law of war offenses” will be tried in commissions, but there are precious few, if any, legitimate law of war violations to try. The attack on the USS Cole looks like a war crime (because it was perpetrated by suicide bombers pretending to be harmless civilian fishermen) but the law of war only applies during an armed conflict. The military commission prosecutors are relying on an incredibly dubious claim that the US was engaged in an armed conflict with al-Qaeda since 1996 based on declarations of jihad by Osama bin Laden, even though everyone knows that the armed conflict really didn’t start until 9/11. I was on active duty with the Air Force from 1995 to 2005. There was absolutely no armed conflict taking place between the US and al-Qaeda prior to 9/11.

Lt. Col. Frakt was essentially reprising a damning appraisal of the system’s many failures that he delivered to a House Subcommittee this summer, when committees in both the Senate and the House of Representatives were discussing proposals to revive the Commissions. I reported on his testimony in detail in an article entitled, “David Frakt: Military Commissions ‘A Catastrophic Failure,’” which followed articles dealing with similar testimony by retired Adm. John Hutson and by Lt. Col. Darrel Vandeveld, a former prosecutor in the Commissions, who resigned when he discovered that the system was incapable of delivering justice to Mohammed Jawad.

Sadly, Congress failed to pay attention to these critics — and to others who testified against proposals to revive the system — and even ignored advice from senior administration officials, including Assistant Attorney General David Kris, who warned that retaining “material support for terrorism” as a crime in the planned legislation would almost certainly lead to successful appeals, as it is not a legitimate law of war violation (although, ironically, it is a legitimate crime in the federal court system).

I strongly urge anyone with an interest in the revival of the wretched Commission system to read Lt. Col. Frakt’s testimony (plus the testimony of Adm. Hutson and Lt. Col. Vandeveld), and also to read the following statement by Rep. Jerrold Nadler (D-NY), which was recently forwarded to me (via Secrecy News) by Charles Gittings, who runs the excellent website Project to Enforce the Geneva Conventions.

This was the opening statement at the meeting of the House of Representatives’ Subcommittee on the Constitution, Civil Rights, and Civil Liberties on July 30, 2009, at which Lt. Col. Frakt demolished the Commissions’ viability, and it is clear that Rep. Nadler is one of the few lawmakers to understand not only that reviving the Commissions is a bad idea, but also that the Obama administration, with the backing of Congress, was, in summer, proposing to instigate a three-tier system of justice to deal with the remaining Guantánamo prisoners, which has now been realized. As he explained, in the key passage:

[W]e may be creating a system in which we try you in Federal court if we have strong evidence, we try you by military commission if we have weak evidence, and we detain you indefinitely if we have no evidence. That is not a justice system.

The full statement is reproduced below, as I think Rep. Nadler also succinctly explained why the whole of the Bush administration’s “War on Terror” detention policies were such a disgrace, and an affront to US notions of justice.

Introductory statement by Representative Jerrold Nadler at a meeting of the House of Representatives’ Subcommittee on the Constitution, Civil Rights, and Civil Liberties to discuss “Proposals for Reform of the Military Commission System” on July 30, 2009

Today the Subcommittee examines proposals for reform in the military commissions system and, more importantly, how we in Congress can work together productively and with the administration to clean up the terrible legacy of the Bush administration’s detention policies in a manner that provides us with a legitimate legal framework going forward.

Over the past seven years, approximately 800 individuals have been detained at Guantánamo, Cuba, with some 500 already having been released before President Obama took office in January.

In those seven years, only three detainees have been convicted of terrorism offenses using the military commissions, and approximately 230 individuals remain at the facility.

Most of these men have been held for at least four years. Some have been detained for more than six years. By contrast, approximately 200 individuals have been charged with international terrorism, prosecuted, convicted and sentenced to long prison terms using our normal Article III Federal courts.

These numbers speak for themselves, yet the Obama administration, after initially halting use of the military commissions and beginning an in-depth case-by-case review of the individuals still being detained at Guantánamo, has said that the commissions are necessary.

Why? The general explanation is that military commissions provide the flexibility that is necessary to account for “the reality of battlefield situations and military exigencies,” such as chain of custody concerns, the need to use hearsay statements, and an appropriate test for determining whether incriminating statements were coerced or voluntary under the circumstances.

This might explain the need in cases where an individual is caught in the heat of battle, but it does not explain the need for military commissions in other circumstances.

My concern remains, as I articulated at our hearings a few weeks ago, that we may be creating a system in which we try you in Federal court if we have strong evidence, we try you by military commission if we have weak evidence, and we detain you indefinitely if we have no evidence. That is not a justice system.

Mohammed Jawad’s case, which was again before a Federal judge today, provides just one example. At our hearing a few weeks ago, Lieutenant Colonel Vandeveld, the lead military prosecutor responsible for bringing Mr. Jawad to justice in the military commission system, testified that he resigned because he could not ethically or legally prosecute the case.

After discovering exculpatory evidence had been withheld from the defense and determining that Mr. Jawad’s confession, the only evidence against him, had been obtained through torture, Lieutenant Colonel Vandeveld was unable to convince his supervisor to reach a plea agreement that would have allowed Mr. Jawad’s release and return to his family after nearly seven years in Guantánamo.

Convinced that it was not possible to achieve justice through the military commission system, Lieutenant Colonel Vandeveld felt he had no choice but to resign his post.

A military judge and a Federal judge have since ruled that Mr. Jawad’s confession was obtained through torture. In the Federal habeas corpus proceedings, the judge has called the case “an outrage” and has urged the administration to send Mr. Jawad, who may have been 12 years old when captured in 2002, home.

It is my understanding that at a hearing this morning the judge, in fact, ordered his release.

Mr. Jawad’s case is not an anomaly. In 26 of the approximately 31 habeas corpus cases brought by Guantánamo detainees and decided so far, Federal judges have concluded that the government does not have sufficient evidence to justify or continue the detention.

These numbers are staggering — not one case, not two, but in 85 percent of the cases when an individual finally has gotten meaningful review, Federal judges have found that there was no grounds for detention. This is a stain on American justice.

Not only has the system served as a tremendous recruiting tool for our enemies, it has proven legally unsustainable and unjust. We would challenge such a system set up by another country to detain and try Americans. We should demand no less of ourselves.

The detainees at Guantánamo and other individuals who we may capture today or tomorrow are accused terrorists. They are not terrorists. They are accused terrorists. Some may be terrorists, but right now they are accused terrorists. They have not been proven to be terrorists.

And while officials in the previous administration were fond of claiming that its detainees at Guantánamo were the worst of the worst, the Bush administration released the vast majority of them, approximately 500 in all. Apparently the Bush administration did not really think they were the worst of the worst.

The people who we have detained because they were turned over to us by someone with a grudge or by someone who wanted to collect a bounty do not belong in custody.

We have an obligation to determine who should and should not be imprisoned and to afford fair trials to those we believe have committed crimes. This is especially important if our government plans to seek prison sentences or to execute those convicted.

There is no doubt that keeping America safe is paramount. We must decide how to deal with these individuals in a manner that ensures that our Nation is protected from those who would do us harm, in a manner that is consistent with our laws, our treaty obligations and our values.

We are the United States of America, and we have traditions and beliefs worth fighting for and worth preserving. This problem will not go away simply because we close Guantánamo. We are still fighting in Afghanistan and Iraq. We are still battling terrorists around the world.

We will continue to have to intercept and detain individuals who have attacked us or who threaten us. We need to be sure that, however we handle these cases, we do not conduct kangaroo courts.

This debate has been dominated by a great deal of fear-mongering. That is no way to deal with a problem of this magnitude. Fanning the flames with the unfounded claim that it is a threat to our national security to transfer individuals to the US for detention and trial defies logic and reality.

We have long housed and prosecuted dangerous criminals and terrorists in my district and elsewhere. It is an insult to our law enforcement and military to suggest that they cannot do the same with regard to those individuals that we have been holding at Guantánamo.

Others have argued that because some individuals released from Guantánamo have turned to battle, we must now hold all others forever. But we are not a police state. In order to imprison anyone, we must have sufficient evidence to do so.

Much as some people would like to drop detainees down a hole and forget about them, this is simply not an option legally or morally. It is also not necessary.

We are not the first country in history to have to deal with potentially dangerous people. Indeed, this is not the first time this country has had to deal with potentially dangerous people.

I do not underestimate the enormity of the challenge both from a security standpoint and a legal one, but we can and will find solutions that honor the rule of law, and in so doing keep us safe.

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

Cross-posted on The Public Record.

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

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