This is probably a wise move on Khadr’s part, although it does shut the door on the perhaps remote possibility that his defiance could have prompted the Obama administration to put pressure on the Canadian government to demand his repatriation before the trial begins. As I explained in an article on Friday, “Defiance in Isolation: The Last Stand of Omar Khadr,” the Canadian government has a wretched record regarding Omar Khadr, having ignored demands for his return that have been issued by the Federal Court, and having also ignored a strongly-worded condemnation of its actions that was issued by the Supreme Court.

However, the prospect of a one-sided trial, boycotted by Khadr, might have made the Obama administration — already unnerved by the implications of its own willingness to prosecute a former child soldier for war crimes — so uncomfortable that senior officials could have attempted to exert extra pressure on Stephen Harper’s government to request Khadr’s repatriation.

On the ground at Guantánamo, these deliberations have, in any case, been studiously avoided by Khadr’s military judge, Army Col. Patrick Parrish, who was extremely unwilling to allow Khadr to represent himself. In a pre-trial hearing last Monday, Khadr began by declaring that he intended to represent himself, after firing his lawyers, but then, after a recess, announced his intention to boycott the proceedings entirely, prompting Col. Parrish to declare that he would not let Khadr fire his military lawyer if he intended to boycott his trial. Col. Parrish then “directed Lt. Col. Jackson to consult his professional bodies, including the Arkansas bar, as to his obligations regarding Mr. Khadr’s defense,” as the Globe and Mail explained.

Over the weekend, Lt. Col. Jackson responded to the judge’s order by stating that he was “ethically required” to defend Khadr, adding, in a robust defense of Khadr’s rights that also included a ringing denunciation of the Commissions:

Therefore, I intend to provide him with a zealous defense at his trial in August. Omar Khadr continues to be the victim in this case. I never envisioned a scenario in my career as an Army lawyer that would require me to defend a child-soldier against war crimes charges levied by the United States. I always believed we were better than that.

Khadr’s decision to accept Lt. Col. Jackson as his military defense lawyer, which Dennis Edney, one of his Canadian civilian lawyers, confirmed today, means that “a defense motion will proceed on Aug. 9, over the question of whether prosecution evidence against Mr. Khadr was obtained through torture and coercion,” as the Globe and Mail explained. The defense motion follows up on hearings in May in which a psychiatrist and a psychologist, commissioned by Khadr’s defense team, stated that, in their assessment, Khadr was traumatized by his experiences in US custody, and a number of interrogators — some summoned by the prosecution — revealed the dubious circumstances in which Khadr was first interrogated in the US prison at Bagram airbase, immediately after being discharged from the hospital where his life-threatening wounds had been treated, and, in one session, revealed that Khadr had been threatened with gang rape in a US prison if he failed to cooperate.

As the Globe and Mail described it, “If Lt. Col. Jackson had decided differently and that suppression motion not gone forward, it could have ended one of Mr. Khadr’s best defenses.” This is undoubtedly true, although doubts remain about the gray areas in the Commission’s rules regarding self-representation, and what the rules are if a prisoner wishes to boycott the proceedings entirely.

One person who has practical experience of these issues is Air Force Lt. Col. David Frakt, who told the Globe and Mail that, over the weekend, Lt. Col. Jackson had “turned to [him] for advice on how to proceed in Mr. Khadr’s case.” Lt. Col. Frakt was the military lawyer for Ali Hamza al-Bahlul, a Yemeni who produced a video for al-Qaeda, and for Mohamed Jawad, an Afghan teenager accused of throwing a grenade that wounded two US servicemen and an Afghan translator in a marketplace in Kabul in December 2002.

In Jawad’s case, Lt. Col. Frakt’s tenacious representation of his client was invaluable, leading to the collapse of the charges against him in his proposed trial by Military Commission, and, last July, a successful habeas corpus petition in the District Court in Washington D.C. that led to his release. In al-Bahlul’s case, however, all the issues raised last week by Omar Khadr emerged in a riot of confusion that severely dented the Commission’s attempts at credibility.

Since first being charged in 2004 (in the first incarnation of the Commissions, ruled illegal by the Supreme Court in 2006), al-Bahlul had expressed his desire to represent himself, and in 2005 this led to a crisis for his court-appointed military defense lawyer, Army Maj. Tom Fleener, who was obliged to represent him under the Commissions’ rules at the time. Speaking to GQ in 2007, Maj. Fleener explained, “The concept of compelled representation has always bothered the crap out of me. You just don’t force lawyers on people. You don’t represent someone against his will. It’s never, ever, ever done.”

When the Commissions were revived by Congress in the fall of 2006, prisoners were allowed to represent themselves, leading to some lively pre-trial hearings involving Khalid Sheikh Mohammed and four other men accused of involvement in the 9/11 attacks that further undermined the Commissions’ attempts at credibility.

However, as Sean Flynn explained in the GQ article, “there were reasons to be skeptical, to suspect that the provision wasn’t as clear as it seemed.” The Military Commissions Act stated, “The accused shall be permitted to represent himself, as provided for by paragraph (3), ” but paragraph (3) included “a list of caveats that allowed self-representation to be revoked if the defendant didn’t behave to the presiding officer’s liking.” As Flynn asked, “So what would happen if a man’s idea of representing himself was to boycott his trial? Would a lawyer be forced on him then? That wasn’t clear at all.”

In al-Bahlul’s case, the judge, Air Force Col. Ronald Gregory, responded to these problems by ruling that al-Bahlul could not represent himself, and this was how I described what happened next as his trial began on October 27, 2008:

As the court convened today, [al-Bahlul] sat in silence as his appointed military defense lawyer, Maj. David Frakt, announced that al-Bahlul was boycotting the trial, and that he had two specific reasons: firstly, because the judge had repeatedly denied his requests to represent himself, and secondly because he did not wish to be represented by a military lawyer.

Noting that he was obliged to respect his client’s wishes, Maj. Frakt then asked to be relieved, and when the judge, Air Force Col. Ronald 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.

In response, Col. Gregory attempted to argue that Maj. Frakt was “obliged to participate,” as the Associated Press described it, and insisted, “The commission will not proceed with an empty defense table.” However, he then appeared to concede that it was not in his power to force Maj. Frakt to represent al-Bahlul, and determined to proceed with a trial based solely on evidence provided by the prosecution.

The result, as I explained in a follow-up article, was that al-Bahlul received a life sentence after a one-sided trial in which neither he, nor Maj. Frakt, uttered a word in his defense, which, of course, only succeeded in bringing the words “show trial” to mind.

Bringing the story up to date with reference to Omar Khadr’s case, Lt. Col. Frakt explained to the Globe and Mail that the problems he encountered in the fall of 2008 had still not been adequately addressed, and that “Lt. Col. Jackson’s conclusion didn’t come from a bar association or military directive” (Jackson himself “would not elaborate on whether the ethics opinion came from his Army judge advocate corps or his Arkansas Bar,” as the Miami Herald reported). Lt. Col. Frakt added that the lawyers in the Commissions are left “to sort of fend for themselves on these things,” and that their responses only arise after “lengthy discussion[s].”

“In these situations there’s two concerns a lawyer has,” Lt. Col. Frakt continued. “One is, ‘How do I represent the client and carry out the client’s wishes?’ And, two, ‘How do I not lose my license to practice law?’ … There’s an added layer of complexity in these cases because the court is ordering Jackson to represent [Mr. Khadr], but what does that really mean?”

Nevertheless, in Khadr’s case, as Lt. Col. Frakt also explained, the most crucial element is that he “needs an active defense.” He added that refusing to provide a defense or insisting on representing himself would have been “basically a recipe for getting convicted on all counts and getting a very lengthy sentence. Al-Bahlul was willing to sacrifice himself for what he saw as a greater cause, [but] Khadr, from my understanding he’s not a jihadist, he’s not a martyr. He’s just a scared, angry kid that wants to go home.”

Under the rules of the new Military Commissions Act (PDF, pp. 9-10), introduced by President Obama, who bears the ultimate responsibility for reviving Khadr’s prosecution by Military Commission, rather than in a federal court, the accused still has the right to self-representation, if he “knowingly and competently waives the assistance of counsel, subject to the provisions of paragraph (4)” (which replaces the earlier paragraph (3) mentioned above). This stipulates, as before, that the right to self-representation is dependent upon “deportment” and “conduct” that conforms “to the rules of evidence, procedure, and decorum applicable to trials by military commission.”

For now, at least, Omar Khadr has stepped back from testing the rules on self-determination, and is undoubtedly in a far better position to actually defend himself as a result of Lt. Col. Jackson’s assistance. As Lt. Col. Frakt explained in an article in May, this ought to mean that the government is required to explain how, under the Commissions’ absurd rules, he can be “charged with murder in violation of the law of war,” even though “there is no evidence that he violated the law of war” in allegedly throwing the grenade that killed Sgt. Speer.

If all goes to plan, Lt. Col. Jackson will be able to expose this absurdity, as well as other glaring holes in the government’s case, in Khadr’s favor (including airing the long-established claim that he never even threw the grenade that killed Sgt. Speer), leaving the unresolved issues about self-representation — and the headache that will undoubtedly represent for the government — for some other prisoner to raise instead.

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

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

Cross-posted on Cageprisoners, The Public Record and Uruknet.

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

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

As UN Secretary-General Kofi Annan explained on June 26, 1998 (when the day was first marked), “This is a day on which we pay our respects to those who have endured the unimaginable. This is an occasion for the world to speak up against the unspeakable. It is long overdue that a day be dedicated to remembering and supporting the many victims and survivors of torture around the world.”

At the time, Kofi Annan lamented that, although over 100 States had ratified the Convention, the use of torture was “still reported” in many of those countries. Nevertheless, for the US and other supposed civilized countries, the creation of the International Day came at a time when, in general, the involvement of Western nations in torture was minimal.

The threat posed by Osama bin Laden had not yet manifested itself in the African embassy bombings of 1998, the attack on the USS Cole in 2000, and, finally, the attacks on the US mainland on September 11, 2001, which prompted the Bush administration to actively embrace torture. Within a year of the attacks, the President had secured memos purporting to redefine torture, prepared by lawyers in the Justice Department’s Office of Legal Counsel, which was supposed to provide the Executive branch with impartial legal advice.

President Clinton and “extraordinary rendition”

In retrospect, however, the Clinton administration had begun to pave the way for the torture regime that was developed in response to the 9/11 attacks by allowing — or tacitly encouraging — the CIA to become involved in a program of “extraordinary rendition” as early as 1995. Building on a long tradition of kidnapping foreign nationals and bringing them to the US to face justice (the original version of “rendition”), the “extraordinary rendition” program did away with the US courts, and allowed the CIA to kidnap terror suspects in various countries, and to dispose of them by sending them to Egypt.

The first known “extraordinary rendition” took place in September 1995, when Tal’at Fu’ad Qassim, also known as Abu Talal al-Qasimi, a purported Egyptian militant who had been living in exile in Denmark, was seized in Croatia by US forces and, reportedly, questioned aboard a US navy vessel and handed over to Egypt “in the middle of the Adriatic Sea.” He was executed in 2000.

Disturbingly, the plan to seize the next five targets of the “extraordinary rendition” program began on June 25, 1998 (the day before the first International Day in Support of Victims of Torture), when, as the Wall Street Journal explained in 2001, the Egyptian government “issued a prearranged arrest warrant” for Shawki Salama Attiya, who apparently “produce[d] fake visas and other bogus documents” for a cell of Egyptian Islamic Jihad members in Albania. That same day, Albanian police, with the co-operation of the CIA, seized Attiya. “Several days later,” the report continued, “he was taken, handcuffed and blindfolded, to [an] abandoned air base, north of Tirana,” and flown to Egypt, arriving on July 2, 1998. Over the next month, four other members of the alleged cell were kidnapped and flown to Egypt. Attiya later received a life sentence, while two others were hanged, and two others received 10-year sentences. In a bleak postscript, Egyptian Islamic Jihad (which, by this point, was intimately tied to the activities of al-Qaeda through the figure of Ayman al-Zawahiri) responded to the “extraordinary renditions” by vowing vengeance, and the bombings of the US embassies in Nairobi and Dar-es-Salaam, which killed 223 people and wounded over 4,000 others, took place on August 7, 1998.

Although President Clinton’s program, which apparently involved no more than 14 renditions, was tightly controlled and included a strict paper trail and a requirement that convictions in Egypt had already been obtained (however unreliable those convictions may have been), the program provided a ready-made template for the Bush administration.

Torture today

Twelve years after the original International Day in Support of Victims of Torture, the landscape has changed profoundly. Seizing on the “extraordinary rendition” program, the Bush administration involved other countries, including Jordan, Morocco and Syria, and established its own secret prisons in countries including Thailand, Poland, Romania and Lithuania, as well as indulging in the industrial-scale rendition of prisoners to Guantánamo. It has left in its wake malignant policies, whose effects have proven difficult to undo, not only at Guantánamo, but also at Bagram in Afghanistan.

This is in spite of the fact that, on his second day in office, President Obama issued an executive order upholding the absolute ban on torture. However, although this purported to mark a clean break with the Bush administration, its impact has been undermined by the refusal of President Obama — or of his Attorney General, Eric Holder — to order a thorough, independent investigation into the Bush administration’s torture program. This reluctance to address the crimes committed by the previous administration was signaled before Obama took office, when he explained his “belief that we need to look forward as opposed to looking backwards.”

The impact of President Obama’s torture ban has also been damaged by persistent allegations of torture in a secret prison at Bagram, and by the President’s inability to meet his self-imposed deadline of January 22, 2010 for the closure of Guantánamo, where, as critics rightly point out, the open-ended nature of detention is itself a form of abuse. Although the prisoners have had access to lawyers since 2004, and have been able to lodge habeas corpus petitions since June 2008, the underlying situation is not markedly different from how it was in October 2003, when, in a break with protocol, Christophe Girod of the International Committee of the Red Cross told the New York Times, “The open-endedness of the situation and its impact on the mental health of the population has become a major problem.”

Revelations of torture since President Obama took office

The Obama administration’s refusal to open an official investigation into its predecessor’s record has allowed admissions of torture to fester, unaddressed or cynically ignored, in almost every policy area relating to the detention of “War on Terror” prisoners. Just before Obama took office, for example, Susan Crawford, a close friend of Vice President Dick Cheney and a retired judge who served as the convening authority for the military commission trial system at Guantánamo, admitted that she had refused to press charges against Mohammed al-Qahtani, a Saudi prisoner subjected to a brutal program of “enhanced interrogation” in late 2002 and early 2003, because, as she stated bluntly in an interview with Bob Woodward, “We tortured Qahtani. His treatment met the legal definition of torture.”

Mohammed al-Qahtani was not the only prisoner at Guantánamo who was subjected to torture. According to an official who spoke to the New York Times for an article published in January 2005, as many as 1 in 6 of the prisoners held were subjected to “enhanced interrogation techniques.”

Moreover, in the last year and a half, President Obama’s inaction has been regularly challenged, in reports on the treatment in secret CIA prisons of 14 “high-value detainees” transferred to Guantánamo in September 2006, and in reports of the torture of other prisoners. These have surfaced in the District Court in Washington D.C., where judges have been delivering rulings on the prisoners’ habeas corpus petitions, and to date, have found for the prisoners in 36 out of 50 cases.

In April 2009, a confidential ICRC report on the 14 “high-value detainees,” delivered to the US government in 2007, was leaked to the New York Review of Books (PDF). The report, based on interviews with the 14 men at Guantánamo, described how they had been treated in the CIA’s secret prisons, and the men’s statements were so disturbing that the ICRC concluded:

The allegations of ill-treatment of the detainees indicate that, in many cases, the ill-treatment to which they were subjected while held in the CIA program, either singly or in combination, constituted torture. In addition, many other elements of the ill-treatment, either singly or in combination, constituted cruel, inhuman or degrading treatment.

That same month, there was further bad news for Bush administration officials. In response to a court order, the Obama administration released four “torture memos,” written in August 2002 and May 2005 by lawyers in the Justice Department’s Office of Legal Counsel (John Yoo, Jay S. Bybee and Stephen Bradbury), which demonstrated a disturbing predilection for twisting the torture statute out of all recognizable shape in an attempt to redefine torture, so that it could be used by the CIA.

This was followed by an unclassified version of a damning 231-page Senate Armed Services Committee investigation into detainee abuse (PDF), which, although it managed to avoid the use of the word torture, nevertheless concluded that “senior officials in the United States government solicited information on how to use aggressive techniques, redefined the law to create the appearance of their legality, and authorized their use against detainees.” Those held responsible included President George W. Bush, defense secretary Donald Rumsfeld, Vice President Dick Cheney’s legal counsel (and later chief of staff) David Addington, Pentagon general counsel William J. Haynes II, Gen. Richard Myers, the Chairman of the Joint Chiefs of Staff, White House general counsel (and later Attorney General) Alberto Gonzales, Guantánamo commanders Maj. Gen. Michael Dunlavey and Maj. Gen. Geoffrey Miller, and Lt. Gen. Ricardo Sanchez, the commander of coalition forces in Iraq.

Revelations of torture in the Guantánamo prisoners’ habeas petitions

In addition, other references to torture have steadily seeped out of the District Court in Washington D.C., in the judges’ rulings on the Guantánamo prisoners’ habeas corpus petitions. The first concerned Mohamed Jawad, an Afghan teenager seized after a grenade attack in Kabul in December 2002, who had been put forward for a trial by military commission under President Bush. In Jawad’s case, the government ignored the fact that Army Col. Stephen Henley, the military judge in his proposed trial by military commission, had ruled on two separate occasions in October and November 2008 that the crux of the government’s case against him — two “confessions” made on the day of his capture, the first in Afghan custody, and the second, just hours later, in US custody — were inadmissible because they had been obtained through treatment that constituted torture.

Without these confessions, the government essentially had no case, but the Justice Department persisted in pursuing his case before Judge Ellen Segal Huvelle, who granted Jawad’s habeas petition last July after repeatedly stressing that the government did not have a single reliable witness, and that the case was “lousy,” “in trouble,” “unbelievable,” and “riddled with holes.”

In September, Judge Colleen Kollar-Kotelly granted the habeas petition of Fouad al-Rabiah, a Kuwaiti prisoner, after discovering that his confessions about meeting Osama bin Laden and distributing supplies in Afghanistan’s Tora Bora mountains, during a showdown between al-Qaeda and US forces in December 2001, were completely false, and had been conjured up by al-Rabiah after he was subjected to prolonged sleep deprivation and other “enhanced interrogation techniques.”

In November, Judge Kollar-Kotelly granted the habeas petition of Farhi Saeed bin Mohammed, an Algerian, after she concluded that crucial elements of the government’s supposed evidence were unreliable, because they came from statements made by the British resident Binyam Mohamed, shortly after his arrival at Bagram in May 2004. Judge Kollar-Kotelly ruled that Mohamed’s statements were unreliable because, after he was seized in Pakistan in April 2002, he was sent by the CIA to Morocco, where he was reportedly tortured for 18 months, and was then held for another four months in the CIA’s notorious “Dark Prison” near Kabul.

To establish the unreliability of Mohamed’s evidence. Judge Kollar-Kotelly devoted much of her unclassified opinion to a harrowing analysis of his treatment, noting, in particular, that “The government does not challenge or deny the accuracy of Binyam Mohamed’s story of brutal treatment,” and reminding senior officials that the UN Convention Against Torture “requires that governments which are party to it ‘ensure that any statement which is established to have been made as a result of torture shall not be invoked as evidence in any proceedings, except against a person accused of torture as evidence that the statement was made.’”

The month after the bin Mohammed ruling, Judge Ricardo Urbina granted the habeas petition of Saeed Hatim, a Yemeni, after crediting Hatim’s claims that, while held in the US prison at Kandahar, Afghanistan, before his transfer to Guantánamo:

he was severely mistreated, including being beaten repeatedly, being kicked in the knees and having duct tape used to hold blindfolds on his head. To this day, he cannot raise his left arm without feeling pain. The petitioner also alleges that he was threatened with rape if he did not confess to being a member of the Taliban or al-Qaeda. As a result, he claims that the inculpatory statements that he made in Kandahar were made only because of these threats. He further alleges that after being transferred to GTMO in 2002, he repeated those inculpatory statements in 2004 because he feared that he would be punished if he changed his story.

The most recent example of torture being exposed in the District Court came in February this year, when, in the case of Uthman Abdul Rahim Mohammed Uthman, a Yemeni, Judge Henry H. Kennedy Jr. granted his habeas petition, after refusing to accept the government’s central allegation — that Uthman had been a bodyguard for Osama bin Laden — because these allegations had been made by two men (Sharqwi Abdu Ali al-Hajj and Sanad Yislam Ali al-Kazimi) who were held in secret prisons before their transfer to Guantánamo, and because “there is unrebutted evidence in the record that, at the time of the interrogations at which they made the statements, both men had recently been tortured.”

The need for a thorough investigation

It should be apparent from these reports that the Obama administration will find it impossible to staunch the flow of torture stories, and, moreover, that attempts to do so will only end up destroying whatever lingering credibility the administration has regarding its purported respect for human rights. In January, the Justice Department cynically allowed a senior DoJ official, David Margolis, to override the conclusion of a four-year internal investigation into John Yoo and Jay Bybee, which had concluded that both men should face disciplinary measures for “professional misconduct,” by stating that they had only exercised “poor judgment.”

However, that same month, the United Nations issued a detailed report on secret detention, which, while cautiously endorsing the changes introduced by the Obama administration, pointedly asked what had happened to the many dozens of prisoners held in the CIA’s secret prisons, or rendered by the CIA to prisons in other countries, who had not ended up in Guantánamo. Moreover, just last week, a psychologist in Texas filed a complaint with the Texas State Board of Examiners of Psychologists regarding multiple ethical violations committed by Dr. James Mitchell, one of the architects of the Bush administration’s torture program.

With more revelations of torture expected in the District Court, President Obama would do well to reflect, on this particular day, that when Ronald Reagan signed the UN Convention Against Torture in 1988 he willingly accepted that there are “no exceptional circumstances whatsoever” justifying torture, and also accepted that all signatory countries are obliged to “ensure that all acts of torture are offenses under its criminal law” and “either to prosecute torturers who are found in its territory or to extradite them to other countries for prosecution.”

In January this year, Glenn Greenwald noted that, when L. Paul Bremer, then the senior State Department official in charge of terrorism policies, described the Reagan administration’s official policy towards terrorists, he declared that “a major element of our strategy has been to delegitimize terrorists, to get society to see them for what they are — criminals — and to use democracy’s most potent tool, the rule of law against them.” Now, however, we have fallen so far from these ideals that, as Greenwald explained:

The express policies of the right-wing Ronald Reagan — “applying the rule of law to terrorists”; delegitimizing Terrorists by treating them as “criminals”; and compelling the criminal prosecution of those who authorize torture — are now considered on the Leftist fringe … In those rare cases when Obama does what Reagan’s policy demanded in all instances and what even Bush did at times — namely, trials and due process for accused Terrorists — he is attacked as being “Soft on Terror” by Democrats and Republicans alike.

On the International Day in Support of Victims of Torture, it is time for Americans who care about justice to demand that the Obama administration stops vacillating on torture, returns to Ronald Reagan’s “Leftist fringe,” and initiates a thorough investigation into the torture policies implemented by the Bush 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) and of two other books: Stonehenge: Celebration and Subversion and The Battle of the Beanfield. To receive new articles in your inbox, please subscribe to my RSS feed (and I can also be found on Facebook and Twitter). Also see my definitive Guantánamo prisoner list, updated in January 2010, details about the new documentary film, “Outside the Law: Stories from Guantánamo” (co-directed by Polly Nash and Andy Worthington, currently on tour in the UK, and available on DVD here), and my definitive Guantánamo habeas list, and, if you appreciate my work, feel free to make a donation.

As published exclusively on Truthout.

For an overview of all the habeas rulings, including links to all my articles, and to the judges’ unclassified opinions, see: Guantánamo Habeas Results: The Definitive List. Also see the archive of articles about Guantánamo and habeas corpus here. For articles about US torture, see the links following the article here, here and here, and the archive of articles here. For chronological lists of all my articles, with links, see here.

The rot set in almost immediately, when the new administration invoked the “state secrets doctrine” last February, to combat a lawsuit brought by several men subjected to “extraordinary rendition” and torture, and was sealed last May, when Obama delivered a major national security speech in which he announced that the Military Commissions were back on the table, and also announced his intention to continue holding some prisoners at Guantánamo without charge or trial.

In November, Attorney General Eric Holder set the seal on the administration’s two-tier justice system for terror suspects at Guantánamo by announcing that five men would face federal court trials for their alleged involvement in the 9/11 attacks, but that five others would face trial by Military Commission, in a revamped version of the “terror courts,” approved by Congress over the summer.

This year, Obama disappointed critics in the US, and those scrutinizing his activities around the world, by failing to close Guantánamo within a year as promised, and by failing to set a new deadline for the prison’s closure, but last week his administration pressed ahead with what may well be viewed as the single most disappointing failure to repudiate the cruel, chaotic and unjust policies of the Bush administration’s “War on Terror”: the trial, by Military Commission, of Omar Khadr.

A Canadian citizen, Khadr was just 15 years old when he was seized by US forces after a firefight in Afghanistan in July 2002, in which he allegedly threw a grenade that killed a US soldier, Sgt. Christopher Speer, and was taken first to the US prison at Bagram airbase, and then to Guantánamo, where he remains to this day. I have been covering his case since June 2007, when his first pre-trial hearing took place in the Commissions’ first reincarnation, after the Supreme Court ruled in June 2006 that the original version, the brainchild of Dick Cheney and his legal counsel David Addington, was illegal.

For nearly three years, therefore, I have watched as a disturbingly shambolic and misconceived excuse for a judicial system has attempted, without success, to prosecute Omar Khadr, and the many failures of this endeavor have not been resolved through Congress tweaking the system last summer.

The shame and disgrace of prosecuting a child

Firstly, and most importantly, Khadr was a child when seized. This meant nothing to the Bush administration, but it is clear that it also means nothing to the Obama administration either. Back in May 2003, when the story first broke that juvenile prisoners were being held at Guantánamo (and research indicates that at least 22 juveniles were held in total), defense secretary Donald Rumsfeld impatiently told a press conference, “This constant refrain of ‘the juveniles,’ as though there’s a hundred children in there — these are not children,” and General Richard Myers, the chairman of the Joint Chiefs of Staff, added that they “may be juveniles, but they’re not on the Little League team anywhere. They’re on a major league team, and it’s a terrorist team, and they’re in Guantánamo for a very good reason — for our safety, for your safety.”

This rhetoric played well with those who hold that everyone is accountable for their actions, whatever their age, but in a more enlightened world, of which the US is technically a part, juveniles — defined as those under the age of 18 when the crime they are accused of committing took place — “require special protection” according to the Optional Protocol to the UN Convention on the Rights of the Child, on the involvement of children in armed conflict, to which the US is a signatory. The Optional Protocol specifically recognizes “the special needs of those children who are particularly vulnerable to recruitment or use in hostilities,” and requires its signatories to promote “the physical and psychosocial rehabilitation and social reintegration of children who are victims of armed conflict.”

It would be difficult to find a more appropriate case of a child who was “particularly vulnerable to recruitment or use in hostilities” than Omar Khadr, who spent much of his childhood in Afghanistan, taken there by his father, an alleged fundraiser for Osama bin Laden, and yet, as I demonstrated in an article in October 2008, entitled, “Omar Khadr: The Guantánamo Files,” Khadr has never received “physical and psychosocial rehabilitation and social reintegration,” because a detailed plan submitted by four doctors to the Defense Department in January 2003, entitled, “Recommended Course of Action for Reception and Detention of Individuals Under 18 Years of Age,” was completely ignored.

The problem of invented war crimes charges

Beyond this most glaringly obvious problem with Omar Khadr’s trial (and his nearly eight years in detention), another fundamental problem with Obama’s decision to proceed with prosecuting a former juvenile prisoner in a war crimes trial concerns the basis of the charges against Khadr. On an intuitive level, critics of Khadr’s trial have, from the beginning, recognized that there is something horribly skewed about redefining the internationally accepted laws of war so that one side in an armed conflict — the US — can kill whoever it wants with impunity, whereas its opponents are viewed as terrorists, or, when brought to trial, as those who have committed “Murder in Violation of the Law of War.”

Lt. Col. David Frakt, who knows more about the laws of war than Congress or officials in either the Bush or Obama administrations, has long pointed out that the Military Commissions are fundamentally flawed because they contain “law of war offenses” invented by Congress, including “Providing Material Support to Terrorism” and “Murder in Violation of the Law of War.” As he explained last week, as Khadr’s pre-trial hearings got underway, the latter was introduced by the DoD in 2003, when it was defining the crimes eligible for trial by Military Commission, as “Murder by an Unprivileged Belligerent.” He added:

This status-based definition conflated two different concepts — unprivileged belligerents and war criminals. Under Article 4 of the Geneva Prisoner of War Convention it is clear that while a member of an organized resistance movement or militia may be an unprivileged belligerent (because of not wearing a uniform or failing to carry arms openly, for example) he may still comply with the laws and customs of war, so not all hostile acts committed by unprivileged belligerents are war crimes. Attacks by unprivileged belligerents which comply with the law of war (in that they attack lawful military targets with lawful weapons) may only be tried in domestic courts. In Iraq, for example, insurgents who try to kill Americans by implanting roadside bombs are properly arrested and tried before the Central Criminal Court of Iraq as common criminals. Attacks by unprivileged belligerents which violate the law of war, such as attacks on civilians or soldiers attempting to surrender, or using prohibited weapons like poison gas, can be tried in a war crimes tribunal.

When Congress revived the Commissions in 2006 (after Congress ruled them illegal), “Murder by an Unprivileged Belligerent” became “Murder in Violation of the Law of War.” However, as Lt. Col. Frakt explained, the distinction appeared to be cosmetic, and, crucially, judges in the only two full trials that ever took place (those of Salim Hamdan and Ali Hamza al-Bahlul), as well as the judge in the case of Mohamed Jawad (released in August 2009), rejected the supposed crime, “each ruling that the mere status of unprivileged belligerency was insufficient to prove a violation of the law of war.”

Despite Lt. Col. Frakt alerting Congress to these problems last summer, lawmakers left the definition of “Murder in Violation of the Law of War” unchanged in the new version of the Commissions, but, astonishingly, DoD officials added an “official comment,” explaining that “an accused may be convicted in a military commission … if the commission finds that the accused engaged in conduct traditionally triable by military commission (e.g., spying; murder committed while the accused did not meet the requirements of privileged belligerency) even if such conduct does not violate the international law of war.” In other words, as Lt. Col. Frakt explained, “a detainee may be convicted of murder in violation of the law of war even if they did not actually violate the law of war.”

The first flawed week of Omar Khadr’s pre-trial hearings

This new twist in the absurdly ill-conceived Commissions did not permeate the first week of pre-trial proceedings in Omar Khadr’s case, although it will undoubtedly surface should the trial actually go ahead in July, and his defense team has not yet flagged up Khadr’s age on capture as a campaigning issue. Even so, there was more than enough incompetence and manipulation at work to indicate that President Obama’s decision to revive the Commissions will, in all probability, lead not only to protracted legal challenges, but also to international indignation at the failure of both the administration and Congress to deliver justice to the prisoners at Guantánamo.

As dozens of journalists geared up for the pre-trial hearings at Guantánamo last Tuesday, having experienced the logistical nightmare that makes trials at the naval base such a poor idea on the basis of expense and practicability alone, they received their first notification of the chaos that, without fail, marks the proceedings as little more than a dark farce. The first day’s hearing was delayed so that everyone could review the new Military Commissions Manual (PDF), which was not signed by defense secretary Robert Gates until the evening of April 27, and now had to be downloaded and printed out in a part of the world where technology is often stranded in, at best, the late 20th century.

Although Khadr turned up for the delayed start of the first day’s hearings, which commenced on Wednesday afternoon, he essentially boycotted the rest of the week’s proceedings, when, whether deliberately or not, he highlighted the kind of excessive security measures that pass for normal at Guantánamo. On Day Two, after complaining of eye pain, apparently brought on by conjunctivitis, he refused to don blackout goggles for his trip from his cell to the courtroom in a windowless vehicle, telling his escort, Marine Capt. Laura Bruzzese, “You’re trying to humiliate me.” Although he was persuaded to attend later that day, he again refused to attend on Day Three, complaining that a waistband search for contraband “comes too close to his genitalia in the way it’s being done,” as Barry Coburn, one of his military defense lawyers, explained. On Saturday, he refused again, telling Capt. Bruzzese, “I’m not going, nothing is starting at 0730.”

In the courtroom, meanwhile, discussions focused on the reliability of the evidence gathered by the government during Khadr’s interrogations. Khadr’s defense team has long maintained that Khadr, who was badly wounded at the time of his capture, having been shot twice in the back, was subjected to brutal treatment in the US prison at Bagram, and later at Guantánamo, which rule out any self-incriminating statements he may have made as the “fruits of torture.” As I explained in a major review of Khadr’s case in November 2007:

According to his own account, reported by Amnesty International, he “asked for pain medication for his wounds but was refused,” said that “during interrogations a bag was placed over his head and US personnel brought military dogs into the room to frighten him,” and added that he was “not allowed to use the bathroom and was forced to urinate on himself.” Like many other prisoners, he was also hung from his wrists, and explained that “his hands were tied above a door frame and he was forced to stand in this position for hours.” An article in Rolling Stone, in August 2006, added further details, noting that he was “brought into interrogation rooms on stretchers, in great pain,” and was “ordered to clean floors on his hands and knees while his wounds were still wet.”

Most of the above seems to have taken place in Bagram, where brutality was so commonplace at the time of Khadr’s stay there that at least two prisoners died of wounds inflicted by their guards just months after his departure. However, the abuse continued in Guantánamo, where, it should be noted, he arrived around the time that a regime of humiliation, isolation and abuse, including extreme temperature manipulation, forced nudity and sexual humiliation, had just been introduced, by reverse-engineering torture techniques used in a military program designed to train US personnel to resist interrogation if captured, in an attempt to increase the meager flow of “actionable intelligence” from the prison. As I explained in 2007:

He told his lawyers that he was “short-shackled by his hands and feet to a bolt in the floor and left for five to six hours,” and that “occasionally a US officer would enter the room to laugh at him.” He also said that he was “kept in extremely cold rooms,” “lifted up by the neck while shackled, and then dropped to the floor,” and “beaten by guards.” In one particularly notorious incident, the guards left him short-shackled until he urinated on himself, and then “poured a pine-scented cleaning fluid over him and used him as a ‘human mop’ to clean up the mess.” As if further humiliation was required, he added that he was “not provided with clean clothes for several days after this degradation.”

In contrast to Khadr’s claims, the government has proposed that he was treated humanely, and that he offered up self-incriminating information voluntarily. Robert Fuller, an FBI agent who interviewed Khadr at Bagram in October 2002, testified on Wednesday that his interrogations of Khadr were “conversational” and “non-confrontational,” adding, “We never put our hands on Mr. Khadr,” and stating that Khadr spoke “openly, confidently and comfortably about al-Qaeda” and admitted to throwing the grenade that killed Sgt. Speer. Fuller’s testimony continued on Thursday, and on Friday, a young female Navy Reservist (identified only as “Agent Number 11”) also spoke about non-coercive interrogations, this time at Guantánamo.

As Michelle Shephard explained in the Toronto Star, the former interrogator told the court that, “over the course of 12 interviews, which began in the prison hospital when Khadr arrived [at Guantánamo] on Oct. 28, 2002, he agreed to talk while they shared M&Ms and fig newtons.” Claiming that she was chosen to interrogate Khadr in the hope that he would relate to her as a “mother figure,” she also stated that their rapport was so good that Khadr told her, “I’d rather be in the booth with you than bored in my cell.”

Whether this is true or not, “Agent Number 11” inadvertently revealed the general futility of cooperating with the interrogators in Guantánamo, when she explained that “He knew if he was cooperative it would expedite his repatriation back to Canada” — a claim that was clearly groundless. She also said that he confessed to throwing the grenade that killed Sgt. Speer “like it was done in the movies,” adding that he said “he checked his watch just before throwing the grenade to note the time.” Military defense lawyer Lt. Col. Jon Jackson challenged this as “odd,” according to Shephard, “especially since … Khadr was bleeding from his head and blinded in one eye by shrapnel by that time” — or, in another possible scenario, was unconscious and face-down beneath a pile of rubble.

Did Omar Khadr throw the grenade?

The question of whether or not Khadr even threw the grenade that killed Sgt. Speer is crucial to his case, of course, and on Day Three of the hearings (on Saturday), these claims and counter-claims were addressed. Back in March 2008, it was revealed that there were two versions of a report describing the firefight, both written by the commander of the Special Forces unit responsible for capturing Khadr, who is identified only as “Lt. Col. W.”

In the first version, “Lt.-Col. W” stated that the person who had thrown the grenade had been killed. This, of course, would rule out Khadr as the suspect, but in the revised version, “Lt. Col. W” changed a single line to note that the person who threw the grenade was “engaged,” thereby implicating Khadr, who was the only non-US survivor of the firefight. On Saturday, “Lt. Col. W.” testified by video link from the US Army War College in Pennsylvania, claiming that he had changed his report for “history’s sake,” but only because he had initially believed that Khadr had died. He said that he changed it, several years after the event, after being visited by military investigators.

This sounds plausible, but, as Michelle Shephard noted, his revised report “appears to conflict with a March 2004 statement written by a commando identified only as OC-1, which states that after the grenade was thrown he shot two fighters — one fatally,” demonstrating that two men were alive at the time the grenade was thrown (Khadr and another insurgent), and that, as a result, either of them could have thrown the grenade.

How this will all pan out is unknown at present, as the defense team has not yet had the opportunity to present its evidence, including the alarming claim, mentioned above and made last October when Khadr’s defense team released previously classified photos, that Khadr could not have thrown the grenade because, at the time, he was buried face-down under a pile of rubble.

Will a plea deal save Omar Khadr (and Obama) from the perils of a trial?

Pre-trial hearings are continuing this week at Guantánamo, and, to be honest, anything could happen. According to some of the first reports last week, prosecutors offered Khadr a plea bargain before the hearings even began — proposing that he would serve five years in a US prison in exchange for pleading guilty to the war crimes charges against him — but the defense team turned down the offer. However, on Saturday the Washington Post claimed that the Obama administration was actively seeking a plea agreement. A senior official, speaking of the proposed trial in July, which would be the first trial under Obama to go ahead, told the Post, “This is not what you would choose to open with. Khadr has become a cause, and this is not a case that will demonstrate the strength and validity of military commissions.”

This seems rather disingenuous, as the administration clearly knew what it was doing when Khadr’s name was put forward last November, but maybe Obama has finally found his conscience, and is getting cold feet. After all, as Lt. Col. David Frakt declared authoritatively last week:

The Administration’s decision to press forward with the first war crimes trial of a child soldier in modern history is unfathomable. That the Administration would then try to ensure a conviction by attempting to rewrite the law to create a new war crime is reprehensible.

If an administration that promised “hope and change” is not definitely to become one tarred as an advocate of the “unfathomable and reprehensible,” Obama needs to move fast. Changing the plea bargain to one that frees Khadr after a much shorter period of time than five years would be a good start; and scrapping the Commissions immediately afterwards would be a sensible way to follow up.

(‘’)

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 currently on tour in the UK), 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 AlterNet, Campaign for Liberty, The Public Record, Infowars, The World Can’t Wait, Uruknet, Eurasia Review, Pacific Free Press, BreaktheChains, Stranger than Fiction, Kanan 48 and NWO.eu.

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

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

New Manual for Military Commissions Disregards the Commander-in-Chief, Congressional Intent and the Laws of War
By David Frakt, Huffington Post, April 29, 2010

Late Monday, on the eve of Omar Khadr’s suppression hearing, the first major military commission hearing at Guantánamo since President Obama took office, the Defense Department released the new Manual for Military Commissions [PDF]. The Manual is the primary implementing regulation for the Military Commissions Act of 2009, containing detailed procedural guidance, rules of evidence, and a penal code with explanations of the offenses which may be prosecuted in these military tribunals.

On the whole, the 2009 MCA is substantially fairer than the 2006 version of the law and the new Manual also contains some significant improvement over the previous version. The standards for admissibility of coerced statements and hearsay evidence, for example, now are much closer to the standards which apply in general courts-martial and federal court. There is, however, some very troubling language in the new Manual relating to the proof required to convict for certain offenses, which undermines the Obama Administration’s claims of respect for the law of war and adherence to the rule of law.

On May 21, 2009, in an important national security speech at the National Archives, President Obama explained his rationale for seeking to amend the MCA and keeping military commissions available as one option for trying detainees: “[D]etainees who violate the laws of war … are best tried through Military Commissions. Military commissions … are an appropriate venue for trying detainees for violations of the laws of war.” As Assistant Attorney General David Kris explained to the Senate last July, “The President has made clear that military commissions are to be used only to prosecute law of war offenses.”

What President Obama may not have realized, or at least neglected to mention in his speech, is that very few detainees are actually suspected of violating the laws of war. Last summer, I was invited to testify before a Congressional Subcommittee considering proposals to reform the military commissions and I tried to explain this point: “The Obama administration has talked about military commissions being a suitable forum for law of war offenses, and I agree with that. They are a legitimate forum for law of war offenses. But what gets left out of the debate is that there are virtually no law of war offenses to be tried.” While I encouraged Congress to limit military commissions to true war crimes, I warned the lawmakers that if reformed military commissions “are limited to law of war offenses … there is not going to be anybody to try.”

Unfortunately, in enacting the Military Commissions Act of 2009, Congress did not strictly limit the jurisdiction of the military commissions to law of war violations and included non-war crimes like “Providing Material Support to Terrorism,” a crime which even the Justice Department was forced to admit was not a traditional law of war offense. The Secretary of Defense, in publishing the new Manual for Military Commissions, has done Congress one better, attempting by regulation to broaden the scope of a real war crime to include conduct that does not violate the law of war in order to ensure convictions where they would otherwise be doubtful. In so doing, Secretary Gates has subverted the will of Congress and undermined the President’s law of war justification for military commissions.

Under a 2003 DoD Instruction defining the crimes eligible for trial by the military commissions [PDF] created by executive order of President Bush, the President attempted to create a new war offense called “Murder by an Unprivileged Belligerent.”

The theory underlying this offense was that any attempt to fight Americans or coalition forces was a war crime. This status-based definition conflated two different concepts — unprivileged belligerents and war criminals. Under Article 4 of the Geneva Prisoner of War Convention it is clear that while a member of an organized resistance movement or militia may be an unprivileged belligerent (because of not wearing a uniform or failing to carry arms openly, for example) he may still comply with the laws and customs of war, so not all hostile acts committed by unprivileged belligerents are war crimes. Attacks by unprivileged belligerents which comply with the law of war (in that they attack lawful military targets with lawful weapons) may only be tried in domestic courts. In Iraq, for example, insurgents who try to kill Americans by implanting roadside bombs are properly arrested and tried before the Central Criminal Court of Iraq as common criminals. Attacks by unprivileged belligerents which violate the law of war, such as attacks on civilians or soldiers attempting to surrender, or using prohibited weapons like poison gas, can be tried in a war crimes tribunal.

In the 2006 MCA [PDF], Congress rejected the status-based crime of “Murder by an Unprivileged Belligerent,” replacing it with the related, but more narrowly defined, “Murder in Violation of the Law of War.” The statute made it plain, as the name implies, that this offense applied only to killings that violated the law of war. Despite this clear distinction, military commission prosecutors argued in three separate cases convened under the 2006 law that “Murder in Violation of the Law of War” really was just “Murder by an Unprivileged Belligerent” by another name, explicitly claiming that the mere status of a person as an unlawful combatant rendered any hostile acts committed by him violations of the law of war.

Three separate military judges in three commissions (Salim Hamdan, Mohammed Jawad and Ali [Hamza] al-Bahlul) rejected the government’s argument, each ruling that the mere status of unprivileged belligerency was insufficient to prove a violation of the law of war. (I was the lead defense counsel in both the Jawad and al-Bahlul cases). Congress was well aware of these rulings when it enacted the 2009 MCA — I specifically mentioned them in my testimony [PDF] — but left the definition of “Murder in Violation of the Law of War” unchanged, reflecting their comfort with these judges’ interpretation of the crime.

Now, the Department of Defense has once again attempted to revive this discredited interpretation of the offense with a slight twist. In the new Manual the following official comment has been included in explanation of the offense of Murder in Violation of the Law of War: “an accused may be convicted in a military commission … if the commission finds that the accused engaged in conduct traditionally triable by military commission (e.g., spying; murder committed while the accused did not meet the requirements of privileged belligerency) even if such conduct does not violate the international law of war.” Astoundingly, according to the Pentagon, a detainee may be convicted of murder in violation of the law of war even if they did not actually violate the law of war.

It is gratifying that DoD has finally acknowledged officially that status as an unprivileged belligerent – “merely failing to meet the requirements of privileged belligerency” — does not equate to a violation of the law of war, an argument that I made repeatedly before the commissions [PDF] and in my congressional testimony. But it is deeply troubling that DoD has nevertheless opined that a non-law of war violation can still constitute murder in violation of the law of war. The commentary also directly contradicts the elements of the offense which specifically include a requirement that the prosecution prove beyond a reasonable doubt that the killing was in violation of the law of war. Although comments in a regulation do not have the force of law, the inclusion of this commentary is clearly intended to send a message to the military commission judges that they are not to let the law of war get in the way of a conviction.

It is no coincidence that this provision was published on the eve of the recommencement of the Omar Khadr commission. Khadr, a Canadian who was just 15 when he was captured in 2002, is charged with murder in violation of the law of war. Khadr allegedly threw a hand grenade which killed a US soldier, but there is no evidence that he violated the law of war in doing so and in court filings the prosecution has admitted to relying solely on his status as an unprivileged belligerent to prove this element of the offense.

The absurdity of claiming that no actual violation of the law of war is required to commit murder in violation of the law of war severely undermines the Administration’s claims of commitment to adherence to the rule of law and their pledge to use military commissions only to prosecute law of war offenses. The Administration’s alleged devotion to transparency was also undercut by the release of the new manual. The DoD rejected the plea of the National Institute for Military Justice and other civil liberties groups for a public comment period on the draft manual and chose to publish the document as a final product. The obvious contradiction between the legislative intent and the Pentagon’s interpretation of this offense demonstrates precisely why a public comment period was needed.

The Administration’s decision to press forward with the first war crimes trial of a child soldier in modern history is unfathomable. That the Administration would then try to ensure a conviction by attempting to rewrite the law to create a new war crime is reprehensible.

(‘’)

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 currently on tour in the UK), and, if you appreciate my work, feel free to make a donation.

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

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

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NOTE: This list has now been superseded by a dedicated page, “Guantánamo Habeas Results: The Definitive List,” which will be used to monitor the ongoing habeas rulings.

As part of my series, “Guantánamo Habeas Week” (introduced here, and expanded, on April 23, to become “Guantánamo Habeas Fortnight”), it’s my pleasure to present a list of the 47 habeas corpus rulings made to date, with links to the articles I have written over the last 19 months analyzing the judges’ rulings.

As I explained in the introduction to this series, I remain impressed that the judges involved have ruled in the prisoners’ favor in 34 of the 47 cases, particularly because they have revealed the alarming flimsiness of most of the material presented by the government as evidence — primarily, confessions extracted through the torture or coercion of the prisoners themselves, or through the torture, coercion or bribery of other prisoners, either in Guantánamo, the CIA’s secret prisons, or proxy prisons run on behalf of the CIA in other countries.

However, as I also explained, I remain deeply troubled about the justification for continuing to hold the majority of the prisoners who lost their habeas petitions, because the basis for doing so — the Authorization for Use of Military Force, passed by Congress in the wake of the 9/11 attacks and maintained as a justification by President Obama — was, and is a deeply flawed document, which fails to distinguish between a small group of genuine terrorists (al-Qaeda) and a considerably larger group of men (and boys) associated with the Taliban. The result is that men continue to be consigned to indefinite detention, on an apparently sound legal basis, even though they were only peripherally involved with the military conflict in Afghanistan to secure the fall of the Taliban, and should, all along, have been held (if at all) as prisoners of war, and protected by the Geneva Conventions.

Please note that, although 23 of the prisoners who won their habeas petitions have been released, eleven are still held. With the exception of the Uighurs, the government has appealed the rulings (or appears intent on appealing). In the cases of prisoners who lost their habeas petitions, a number of appeals have also been filed. See the Center for Constitutional Rights’ Habeas Scorecard for further information on the status of the various appeals.

The 47 Guantánamo Habeas Corpus Results

October 2008

1 WON: Abdul Helil Mamut (aka Abdul Khalil Manut, Abdul Nasser, Abdulnassir) (Uighur, ISN 278)
Released in Bermuda, June 2009.
2 WON: Abdullah Abdulquadirakhun (aka Abdulla Abdulqadir, Jalal Jalaladin) (Uighur, ISN 285)
Released in Bermuda, June 2009.
3 WON: Emam Abdulahat (aka Salahidin Abdulahad, Abdul Semet) (Uighur, ISN 295)
Released in Bermuda, June 2009.
4 WON: Huzaifa Parhat (aka Hozaifa Parhat, Ablikim Turahun) (Uighur, ISN 320)
Released in Bermuda, June 2009.
5 WON: Nag Mohammed (aka Edham Mamet) (Uighur, ISN 102)
Released in Palau, October 2009.
6 WON: Ahmad Tourson (Uighur, ISN 201)
Released in Palau, October 2009.
7 WON: Anwar Hassan (aka Hassan Anvar) (Uighur, ISN 250)
Released in Palau, October 2009.
8 WON: Abdulghappar Abdul Rahman (Uighur, ISN 281)
Released in Palau, October 2009.
9 WON: Dawut Abdurehim (Uighur, ISN 289)
Released in Palau, October 2009.
10 WON: Adel Noori (Uighur, ISN 584)
Released in Palau, October 2009.
11 WON: Arkin Mahmud (Uighur, ISN 103)
Released in Switzerland, March 2010.
12 WON: Bahtiyar Mahnut (Uighur, ISN 277)
Released in Switzerland, March 2010.
13 WON: Abdul Razak (Uighur, ISN 219)
Still held.
14 WON: Yusef Abbas (Uighur, ISN 275)
Still held.
15 WON: Saidullah Khalik (Uighur, ISN 280)
Still held.
16 WON: Hajiakbar Abdulghupur (Uighur, ISN 282)
Still held.
17 WON: Ahmed Mohamed (Uighur, ISN 328)
Still held.

For my analysis of the ruling, see: From Guantánamo to the United States: The Story of the Wrongly Imprisoned Uighurs.
For Judge Ricardo Urbina’s unclassified opinion, see here. And see here for a transcript of the hearing.
For the releases in Bermuda, see: Who Are The Four Guantánamo Uighurs Sent To Bermuda?
For the releases in Palau, see: Who Are The Six Uighurs Released From Guantánamo To Palau?
For the releases in Switzerland, see: More Dark Truths from Guantánamo, as Five Innocent Men Released.
For the Supreme Court’s refusal to consider the case of the last five Uighurs held, see: Guantánamo Uighurs Back in Legal Limbo.

November 2008

18 WON: Mohammed Nechle (Bosnian Algerian, ISN 10003)
Released in Bosnia, December 2008.
19 WON: Mustafa Ait Idr (Bosnian Algerian, ISN 10004)
Released in Bosnia, December 2008.
20 WON: Boudella al-Haj (Bosnian Algerian, ISN 10006)
Released in Bosnia, December 2008.
21 WON: Lakhdar Boumediene (Bosnian Algerian, ISN 10005)
Released in France, May 2009.
22 WON: Sabir Lahmar (Bosnian Algerian, ISN 10002)
Released in France, November 2009.
1 LOST: Belkacem Bensayah (Bosnian Algerian, ISN 10001)
Still held.

For my analysis of the ruling, see: After 7 Years, Judge Orders Release of Guantánamo Kidnap Victims.
For Judge Leon’s unclassified opinion, see here.
For the releases in Bosnia, see: Freed Bosnian Calls Guantánamo the “worst place in the world”.
For the release of Boumediene in France, see: Pain At Guantánamo And Paralysis In Government.
For the release of Lahmar in France, see: Four Men Leave Guantánamo; Two Face Ill-Defined Trials In Italy.
For Bensayah’s appeal, see: First Guantánamo Prisoner To Lose Habeas Hearing Appeals Ruling. And also see this New York Times article examining conflict within the Obama administration on prisoner cases, including that of Bensayah.

December 2008

2 LOST: Hisham Sliti (Tunisia, ISN 174)
Still held.
For my analysis of the ruling, see: No End in Sight for the “Enemy Combatants” of Guantánamo.
For Judge Richard Leon’s unclassified opinion, see here.

January 2009

3 LOST: Muaz al-Alawi (aka Moath al-Alwi) (Yemen, ISN 28)
Still held.
For my analysis of the ruling, see: No End in Sight for the “Enemy Combatants” of Guantánamo.
For Judge Richard Leon’s unclassified opinion, see here.

23 WON: Mohammed El-Gharani (Chad, ISN 269)
Released June 2009.
For my analysis of the ruling, see: Judge Orders Release of Guantánamo’s Forgotten Child.
For Judge Richard Leon’s unclassified opinion, see here.
For El-Gharani’s release, see: Guantánamo’s Youngest Prisoner Released To Chad.

4 LOST: Ghaleb al-Bihani (Yemen, ISN 128)
Still held.
Al-Bihani appealed, and lost his appeal in January 2010.
For my analysis of the ruling, see: How Cooking For The Taliban Gets You Life In Guantánamo.
For Judge Richard Leon’s unclassified opinion, see here.
For my analysis of the verdict in the appeal, see: Appeals Court Extends President’s Wartime Powers, Limits Guantánamo Prisoners’ Rights.
For the Circuit Court’s unclassified opinion, see here.

March 2009

24 WON: Yasim Basardah (aka Yasin Basardh) (Yemen, ISN 252)
Still held.
For my analysis of the ruling, see: Guantánamo And The Courts (Part Two): Obama’s Shame.
For Judge Ellen Huvelle’s unclassified opinion, see here.

April 2009

5 LOST: Hedi Hammamy (aka Abdulhadi bin Haddidi) (Tunisia, ISN 717)
Still held.
For my analysis of the ruling, see: Farce at Guantánamo, as cleared prisoner’s habeas petition is denied.
For Judge Richard Leon’s unclassified opinion, see here.

May 2009

25 WON: Alla Ali Bin Ali Ahmed (Yemen, ISN 692)
Released September 2009.
For my analysis of the ruling, see: Judge Condemns “Mosaic” Of Guantánamo Intelligence, And Unreliable Witnesses.
Also see: Guantánamo: A Prison Built On Lies.
For Judge Colleen Kollar-Kotelly’s unclassified opinion, see here.
For Ali Ahmed’s release, see: Three Prisoners Released From Guantánamo: Two To Ireland, One To Yemen.

June 2009

26 WON: Abdul Rahim al-Ginco (aka Abdul Rahim Janko) (Syria, ISN 489)
Released.
For my analysis of the ruling, see: Why Did It Take So Long To Order The Release From Guantánamo Of An Al-Qaeda Torture Victim?
Also see: Andy Worthington Discusses Guantánamo on Democracy Now!
For Judge Richard Leon’s unclassified opinion, see here.

July 2009

27 WON: Khalid al-Mutairi (Kuwait, ISN 213)
Released October 2009.
For my analysis of the ruling, see: Judge Orders Release From Guantánamo Of Kuwaiti Charity Worker.
Also see: Guantánamo And The Courts (Part Three): Obama’s Continuing Shame.
For Judge Colleen Kollar-Kotelly’s unclassified opinion, see here.
For al-Mutairi’s release, see: Two More Guantánamo Prisoners Released: To Kuwait And Belgium.

28 WON: Mohamed Jawad (Afghanistan, ISN 900)
Released August 2009.
For my analysis of the ruling, see: As Judge Orders Release Of Tortured Guantánamo Prisoner, Government Refuses To Concede Defeat.
Also see: How Judge Huvelle Humiliated The Government In Guantánamo Case.
For Judge Ellen Huvelle’s unclassified opinion, see here. And see here for a transcript of the hearing.
For Jawad’s release, see: Reflections On Mohamed Jawad’s Release From Guantánamo.

August 2009

6 LOST: Adham Ali Awad (Yemen, ISN 88)
Still held.
For my analysis of the ruling, see: No Escape From Guantánamo: The Latest Habeas Rulings.
For Judge James Robertson’s unclassified opinion, see here.

29 WON: Mohammed al-Adahi (Yemen, ISN 33)
Still held.
For my analysis of the ruling, see: No Escape From Guantánamo: The Latest Habeas Rulings.
For Judge Colleen Kollar-Kotelly’’s unclassified opinion, see here.
For my analysis of the government’s subsequent appeal, and Judge Kollar-Kotelly’s response to it, see: What Does It Take To Get Out Of Obama’s Guantánamo?

7 LOST: Fawzi al-Odah (Kuwait, ISN 232)
Still held.
For my analysis of the ruling, see: No Escape From Guantánamo: The Latest Habeas Rulings.
For Judge Colleen Kollar-Kotelly’s unclassified opinion, see here.

September 2009

8 LOST: Sufyian Barhoumi (Algeria, ISN 694)
Still held.
For information about Barhoumi, see:
Guantánamo trials: critical judge sacked, British torture victim charged.
For the 2-page ruling by Judge Rosemary Collyer, see here. The unclassified opinion has not been released.

30 WON: Fouad al-Rabiah (Kuwait, ISN 551)
Released December 2009.
For my analysis of the ruling, see: A Truly Shocking Guantánamo Story: Judge Confirms That An Innocent Man Was Tortured To Make False Confessions.
For Judge Colleen Kollar-Kotelly’s unclassified opinion, see here.
For al-Rabiah’s release, see: Innocent Guantánamo Torture Victim Fouad al-Rabiah Is Released In Kuwait.

November 2009

31 WON: Farhi Saeed bin Mohammed (Algeria, ISN 311)
Still held.
For my analysis of the ruling, see: Judge Orders Release Of Algerian From Guantánamo (But He’s Not Going Anywhere).
For Judge Colleen Kollar-Kotelly’s unclassified opinion, see here.
For an analysis of the significance of Judge Kollar-Kotelly’s ruling with reference to statements made by torture victim Binyam Mohamed, see: Binyam Mohamed: Evidence of Torture by US Agents Revealed in UK.
For a more detailed article, based on an analysis of Judge Kessler’s unclassified opinion, see: How Binyam Mohamed’s Torture Was Revealed in a US Court.

December 2009

9 LOST: Musa’ab al-Madhwani (Yemen, ISN 839)
Still held.
For my analysis of the ruling, see: “Model Prisoner” at Guantánamo, Tortured in the “Dark Prison,” Loses Habeas Corpus Petition.
For Judge Thomas Hogan’s unclassified opinion, see here. And see here for a transcript of the hearing.

32 WON: Saeed Hatim (Yemen, ISN 255)
Still held.
For my analysis of the ruling, see: Judge Orders Release From Guantánamo Of Unwilling Yemeni Recruit.
For Judge Ricardo Urbina’s unclassified opinion, see here.
For a more detailed article, based on an analysis of Judge Urbina’s unclassified opinion, see: Why Judges Can’t Free Torture Victims from Guantánamo.

February 2010

10 LOST: Suleiman al-Nahdi (Yemen, ISN 511)
Still held.
For my analysis of the ruling, see: The Black Hole of Guantánamo.
For Judge Gladys Kessler’s unclassified opinion, see here.
For a more detailed article, based on an analysis of Judge Kessler’s unclassified opinion, see: Guantánamo and Habeas Corpus: Consigning Soldiers to Oblivion.

11 LOST: Fahmi al-Assani (Yemen, ISN 554)
Still held.
For my analysis of the ruling, see: The Black Hole of Guantánamo.
For Judge Gladys Kessler’s unclassified opinion, see here.
For a more detailed article, based on an analysis of Judge Kessler’s unclassified opinion, see: Guantánamo and Habeas Corpus: Consigning Soldiers to Oblivion.

33 WON: Uthman Abdul Rahim Mohammed Uthman (Yemen, ISN 27)
Still held.
For my analysis of the ruling, see: The Black Hole of Guantánamo.
For Judge Henry H. Kennedy Jr.’s unclassified opinion (March 2010), see here.
For Judge Henry H. Kennedy Jr.’s revised unclassified opinion (April 2010), see here.
For a more detailed article, based on an analysis of Judge Kennedy’s unclassified opinion, see: Judge Rules Yemeni’s Detention at Guantánamo Based Solely on Torture.

March 2010

34 WON: Mohamedou Ould Slahi (aka Salahi) (Mauritania, ISN 760)
Still held.
For my analysis of the ruling, see: Guantánamo and Habeas Corpus: The Torture Victim and the Taliban Recruit.
For Judge James Robertson’s unclassified opinion, see here.
For a more detailed article, based on an analysis of Judge Robertson’s unclassified opinion, see: Mohamedou Ould Salahi: How a Judge Demolished the US Government’s Al-Qaeda Claims.

12 LOST: Mukhtar al-Warafi (Yemen, ISN 117)
Still held.
For my analysis of the ruling, see: Guantánamo and Habeas Corpus: The Torture Victim and the Taliban Recruit.
For Judge Royce C. Lamberth’s unclassified opinion, see here.
For a more detailed article, based on an analysis of Judge Lamberth’s unclassified opinion, see: With Regrets, Judge Allows Indefinite Detention at Guantánamo of a Medic.

April 2010

13 LOST: Yasin Qasem Muhammad Ismail (Yemen, ISN 522)
Still held.
For my analysis of the ruling, see: An Insignificant Yemeni at Guantánamo Loses His Habeas Petition.
Judge Henry H. Kennedy Jr.’s unclassified opinion is not yet available.

(‘’)

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 currently on tour in the UK), and, if you appreciate my work, feel free to make a donation.

The introduction to “Guantánamo Habeas Week” was discussed in detail by Jeff Kaye on Firedoglake and Invictus, by Kelly Vlahos at Antiwar.com, which also posted a link on its front page, and by Jeff Farias, and was cross-posted on The Public Record, Eurasia Review, The World Can’t Wait, War Criminals Watch, Campaign for Liberty, Global Research, The Lift: Legal Issues in the Fight against Terrorism, Uruknet, Cageprisoners, New Left Project, Political Theatrics, Countercurrents, Zinmag Chronicle and The Ruthless Truth. It was also mentioned in a round-up of news on Foreign Policy’s website, by Reprieve, and on Democratic Underground. In addition, the full list was cross-posted on The Public Record, The World Can’t Wait, New Left Project and War Criminals Watch, and was linked to in a banner headline on Cageprisoners’ front page.

For a sequence of articles dealing with the Guantánamo habeas cases, see: Guantánamo and the Supreme Court: the most important habeas corpus case in modern history and Guantánamo and the Supreme Court: What Happened? (both December 2007), The Supreme Court’s Guantánamo ruling: what does it mean? (June 2008), Guantánamo as Alice in Wonderland (Uighurs’ first court victory, June 2008), What’s Happening with the Guantánamo cases? (July 2008), Government Says Six Years Is Not Long Enough To Prepare Evidence (September 2008), From Guantánamo to the United States: The Story of the Wrongly Imprisoned Uighurs (October 2008), Guantánamo Uyghurs’ resettlement prospects skewered by Justice Department lies (October 2008), Guilt By Torture: Binyam Mohamed’s Transatlantic Quest for Justice (November 2008), After 7 Years, Judge Orders Release of Guantánamo Kidnap Victims (November 2008), Is Robert Gates Guilty of Perjury in Guantánamo Torture Case? (December 2008), A New Year Message to Barack Obama: Free the Guantánamo Uighurs (January 2009), The Top Ten Judges of 2008 (January 2009), No End in Sight for the “Enemy Combatants” of Guantánamo (January 2009), Judge Orders Release of Guantánamo’s Forgotten Child (January 2009), How Cooking For The Taliban Gets You Life In Guantánamo (January 2009), Lies, Damned Lies and Statistics (February 2009), Bad News And Good News For The Guantánamo Uighurs (February 2009), The Nobodies Formerly Known As Enemy Combatants (March 2009), Farce at Guantánamo, as cleared prisoner’s habeas petition is denied (April 2009), Obama’s First 100 Days: A Start On Guantánamo, But Not Enough (May 2009), Judge Condemns “Mosaic” Of Guantánamo Intelligence, And Unreliable Witnesses (May 2009), Pain At Guantánamo And Paralysis In Government (May 2009), Guantánamo: A Prison Built On Lies (May 2009), Free The Guantánamo Uighurs! (May 2009), Guantánamo And The Courts (Part One): Exposing The Bush Administration’s Lies (July 2009), Obama’s Failure To Deliver Justice To The Last Tajik In Guantánamo (July 2009), Obama And The Deadline For Closing Guantánamo: It’s Worse Than You Think (July 2009), How Judge Huvelle Humiliated The Government In Guantánamo Case (Mohamed Jawad, July 2009), As Judge Orders Release Of Tortured Guantánamo Prisoner, Government Refuses To Concede Defeat (Mohamed Jawad, July 2009), Guantánamo As Hotel California: You Can Check Out Any Time You Like, But You Can Never Leave (August 2009), Judge Orders Release From Guantánamo Of Kuwaiti Charity Worker (August 2009), Guantánamo And The Courts (Part Two): Obama’s Shame (August 2009), Guantánamo And The Courts (Part Three): Obama’s Continuing Shame (August 2009), No Escape From Guantánamo: The Latest Habeas Rulings (September 2009), First Guantánamo Prisoner To Lose Habeas Hearing Appeals Ruling (September 2009), A Truly Shocking Guantánamo Story: Judge Confirms That An Innocent Man Was Tortured To Make False Confessions (September 2009), 75 Guantánamo Prisoners Cleared For Release; 31 Could Leave Today (September 2009), Resisting Injustice In Guantánamo: The Story Of Fayiz Al-Kandari (October 2009), Justice Department Pointlessly Gags Guantánamo Lawyer (November 2009), Judge Orders Release Of Algerian From Guantánamo (But He’s Not Going Anywhere) (November 2009), Innocent Guantánamo Torture Victim Fouad al-Rabiah Is Released In Kuwait (December 2009), What Does It Take To Get Out Of Obama’s Guantánamo? (December 2009), “Model Prisoner” at Guantánamo, Tortured in the “Dark Prison,” Loses Habeas Corpus Petition (December 2009), Judge Orders Release From Guantánamo Of Unwilling Yemeni Recruit (December 2009), Serious Problems With Obama’s Plan To Move Guantánamo To Illinois (December 2009), Appeals Court Extends President’s Wartime Powers, Limits Guantánamo Prisoners’ Rights (January 2010), Fear and Paranoia as Guantánamo Marks its Eighth Anniversary (January 2010), Rubbing Salt in Guantánamo’s Wounds: Task Force Announces Indefinite Detention (January 2010), The Black Hole of Guantánamo (March 2010), Guantánamo Uighurs Back in Legal Limbo (March 2010), Guantánamo and Habeas Corpus: The Torture Victim and the Taliban Recruit (April 2010).

Also see: Justice extends to Bagram, Guantánamo’s Dark Mirror (April 2009), Judge Rules That Afghan “Rendered” To Bagram In 2002 Has No Rights (July 2009), Bagram Isn’t The New Guantánamo, It’s The Old Guantánamo (August 2009), Obama Brings Guantánamo And Rendition To Bagram (And Not The Geneva Conventions) and Is Bagram Obama’s New Secret Prison? (both September 2009), Dark Revelations in the Bagram Prisoner List (January 2010), Bagram: Graveyard of the Geneva Conventions (February 2010).

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).

In the article, I ran through these disturbing developments, explaining how, in May, the Senate voted overwhelmingly in favor of an amendment to the Supplemental Appropriations Act of 2009, which eliminated $80 million from planned legislation intended to fund the closure of Guantánamo, and specifically prohibited the use of any funding to “transfer, relocate, or incarcerate Guantánamo Bay detainees to or within the United States,” and how, in June, the House of Representatives followed up by passing a spending bill turning down the administration’s request for $60 million to close Guantánamo, which also prohibited funds from being used to release detainees from Guantánamo into the United States. The spur for my article came just last week, when Representatives voted overwhelmingly for a nonbinding motion proposed by Rep. Hal Rogers (R-Ken.), “clearly prohibiting” the transfer of any Guantánamo prisoner to the United States “for whatever reason”; in other words, even for federal court trials, or some revision of the horribly flawed Military Commission trial system favored by the Bush administration.

I’m pleased to say that I was not alone in my despair. On Tuesday, Attorney General Eric Holder stated, “The restrictions that we’ve had to deal with on the Hill give me great concern,” adding, as the Associated Press described it, that he “disputed the claim, made often by Republican lawmakers, that Guantánamo Bay detainees are simply too dangerous to be brought to US soil.” “I don’t see how that in fact is accurate,” Holder said, adding, “You can go through a litany of very, very dangerous people who are safely housed in facilities that pose no dangers to the communities that surround them.” Citing the examples of Ramzi Yousef, the mastermind of the 1993 World Trade Center bombing, and the “Unabomber” Ted Kaczynski, he stated, “I think we have a good track record.”

In combating the fearmongering in Congress that, on last week’s showing, threatens to completely derail the administration’s ability to close Guantánamo at all, Holder was echoing important points made by President Obama in a major national security speech in May, when he stated:

[W]e will be ill-served by some of the fear-mongering that emerges whenever we discuss this issue. Listening to the recent debate, I’ve heard words that are calculated to scare people rather than educate them; words that have more to do with politics than protecting our country … [B]ear in mind the following fact: nobody has ever escaped from one of our federal “supermax” prisons, which hold hundreds of convicted terrorists. As Senator Lindsey Graham said: “The idea that we cannot find a place to securely house 250-plus detainees within the United States is not rational.”

Over the last few days, following intense negotiations, it appears that the administration has managed to persuade Democratic senators and congressmen to accept that prisoners can be brought to the US to face trial, although, as Reuters added, the measure added by the Senate stipulated that the administration “would be required to present a risk assessment and give 14 days’ notice before bringing any of the 223 detainees remaining in the facility to the United States to face charges in American courtrooms.” Moreover, although Democrats in the House of Representatives also added an amendment to their bill — less generously demanding that the president provides a “comprehensive disposition plan” at least 45 days before any proposed transfer — these measures still “face a tough vote” before the full Senate and the House of Representatives (as Reuters explained), especially after the widespread capitulation last week to Rep. Rogers and his paranoid talk about “the American people” and their fears of “terrorists in their hometowns, inciting fellow prisoners, abusing our legal system, and terrorizing their communities.”

However, although this is progress of a sort, it should not be forgotten that the nation’s lawmakers persistently failed to call a halt to the excesses of the Bush administration, and, in fact, played a decisive role in propping up a lawless regime by endorsing two pieces of dreadful legislation (the Detainee Treatment Act of 2005 and the Military Commissions Act of 2006), which purported to strip the prisoners of the habeas corpus rights they were granted by the Supreme Court in 2004, revived the Commissions after the Supreme Court ruled them illegal, and also sought to grant immunity for any wrongdoing to the entire Bush administration.

For these lame apologies for legislative scrutiny, lawmakers were severely chastised by the Supreme Court in June 2008, when the nation’s senior judges restored the prisoners’ habeas corpus rights and ruled that the habeas-stripping aspects of the DTA and MCA had been unconstitutional, but as Lt. Col. David Frakt, law professor and former military defense attorney for Guantánamo prisoner Mohammed Jawad explained to me in an email this week, Congress is still behaving unconstitutionally with regard to the right of the Executive branch and the Judiciary to order the release of prisoners from Guantánamo who have won their habeas corpus petitions.

Drawing on the experience of Mohammed Jawad — just one of the 30 prisoners (out of 38 in total) whose release has been ordered by a judge after finding that the government had failed to establish, “by a preponderance of the evidence,” that they had any connection to either al-Qaeda or the Taliban — Lt. Col. Frakt pointed out, with reference to an article I had written suggesting that 31 cleared prisoners in Guantánamo could be released immediately, that I had neglected to mention that an impediment to their immediate release had been established by Congress, which, in summer, “passed a law that requires the Administration to give Congress 15 days notice before releasing anyone from Guantánamo.” Lt. Col. Frakt added, “This was why, when Mohammed Jawad was ordered released, it still took 22 days to release him. The Department of Justice said they needed a week to prepare the notice and then he couldn’t be released until 15 days after that.”

Crucially, Lt. Col. Frakt explained:

I consider this Congressional notification requirement to be blatantly unconstitutional as a violation of the separation of powers. In Jawad’s case, it meant that after the Executive Branch and the Judiciary had concluded there was no lawful basis for the military to detain Mohammed Jawad (after the Department of Justice ultimately conceded the habeas corpus petition), the military was required to continue to detain him at Guantánamo at the order of the legislature, Congress. As I explained in Federal District Court, this placed Jawad in the status of “Congressional prisoner,” a status for which there is no Constitutional authority.

After explaining that Jawad’s defense team “chose not to challenge this ridiculous provision, because a challenge would have likely taken months to work its way through the courts,” Lt. Col. Frakt concluded:

It may be that, if the US is contemplating releasing a detainee that it has the lawful basis to detain under the laws of war, that Congress can legitimately condition the expenditure of US funds to effectuate the release on the provision of this notification to Congress, but for those detainees determined to be unlawfully held, this law simply arbitrarily extends their unlawful stay at Guantánamo. This provision, coupled with the refusal to authorize funds for detainees to be resettled in the United States — even those determined to be innocent of any wrongdoing who should qualify for political asylum — shows the extent of Congressional depravity on any issues related to detainees.

These are tough words, but no less than lawmakers deserve, and as the battle over Guantánamo’s future continues throughout the fall, I hope that officials in the Obama administration will be able to make good use of them. As Lt. Col. Frakt so ably points out, it is completely unacceptable that, on Guantánamo, both the Executive and the Judiciary are now at the mercy of Congress, where lawmakers are not only continuing to endorse Dick Cheney’s evidence-free rationale for arbitrary detention, but have also seized arbitrary detention powers for themselves.

Note: Regular readers will recall that Lt. Col. Frakt was formerly Maj. Frakt, and I’m delighted to announce that he was promoted on October 1 — and that there are, therefore, some rewards for military lawyers who defend the principles they have sworn to uphold.

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

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

As a follow-up, I’m posting below (via YouTube) a report from al-Jazeera about Mohammed Jawad celebrating Eid ul-Fitr for the first time in seven years with his family.

In the report, broadcast on Sunday, Jawad told reporter Zeina Khodr, “Eid is a day of happiness. Prisoners in Guantánamo, they have children, and they want to be with them. They are innocent. They called me a terrorist. Now they know I was just an innocent child.” His uncle, Haji Naik Gul, added, “Seven Eids we spent without him. We were worried, wondering whether he was eating. We didn’t know anything about him.”

As Jawad also explained to Zeina Khodr, “They violated all rights for children. The Americans say they are human rights lovers, but I am a human being. They didn’t respect the fact that I was a child. They tortured me, and kept me illegally in prison.”

Mohammed also explained to Khodr that he believes that at least 25 Afghans are still held at Guantánamo, but as Khodr added, “it’s not only Guantánamo. Hundreds of others are imprisoned at a US military base here in Kabul. Bagram holds approximately 600 detainees, the majority Afghans, many held for years without trial or charge.” She also discussed the Obama administration’s recent plans to introduce tribunals for the Bagram prisoners, which I discussed at length — and with profound skepticism — in two articles last week, “Obama Brings Guantánamo And Rendition To Bagram (And Not The Geneva Conventions),” and “Is Bagram Obama’s New Secret Prison?”

As for Mohammed Jawad, as Zeina Khodr also explained, “[He] is now free, but he says his happiness won’t be complete until the release of all detainees.”

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

I had been reporting Jawad’s story since October 2007, when he was first put forward for a trial by Military Commission (the “terror trials” introduced by former Vice President Dick Cheney in November 2001), despite his age, despite the fact that a grenade attack in wartime is not a war crime, and despite severe doubts that he actually threw the grenade.

I had also written extensively about the fine work undertaken on his behalf — and against the Commissions in general — by his military defense attorney, Maj. David Frakt, who delivered a compelling speech to a House Committee in July, and by his former prosecutor, Lt. Col. Darrel Vandeveld, who resigned as a prosecutor in September 2008, when — based largely on his experience of Jawad’s case — he declared that the Commissions were incapable of delivering justice, and followed up by submitting a stunning submission in Jawad’s habeas corpus petition in January 2009 and a powerful speech to a Senate Committee in July.

I had also praised Col. Stephen Henley, the judge in Jawad’s proposed trial by Military Commission, who had effectively demolished the case against him last October and November, when he ruled that the government’s primary evidence — confessions made to Afghan and US forces shortly after his capture – could not be used because they had been extracted through threats of torture, and Judge Ellen Segal Huvelle, who had denounced the government’s case against Jawad during his habeas hearing in July, when she condemned the Justice Department for its persistent obstruction, and repeatedly stressed that the government did not have a single reliable witness, and that the case was “lousy,” “in trouble,” “unbelievable,” and “riddled with holes,” and who finally granted his habeas petition on July 30.

I was aware of some of the contributions made by another member of the defense team, Maj. Eric Montalvo, as I had written, in June, about a visit to Afghanistan that had recently been made by Maj. Montalvo, who had come up with the latest information about Jawad’s possible age at the time of his capture, and had also been liaising with the Afghan authorities to encourage them to play a part in securing his release. However, it was not until I contacted Maj. Frakt, to congratulate him personally for the part he played in securing Jawad’s release, that I learned how extensive had been the role played by Maj. Montalvo, and how Maj. Frakt hoped that the contributions of other members of the defense team would also be recognized.

As a result of these discussions, I reproduce below what Maj. Frakt told me about the unsung heroes in Mohamed Jawad’s case.

David Frakt: Thank you for recognizing the contributions of the Jawad defense team. The extraordinary story of how Maj. Montalvo ended up in Kabul is also worthy of comment. When I arrived at the Office of Military Commissions-Defense in April 2008, we were extremely shorthanded and I was assigned two cases to try on my own. In the summer of 2008, additional military defense counsel started showing up at OMC-D looking for work. In late June, I asked the eminently capable Lt. Cmdr. Katharine Doxakis (a Navy Reservist, soon to be promoted to Commander) to join the defense team on both the Jawad and al-Bahlul cases [the latter refers to the case of Ali Hamza al-Bahlul, which I covered here and here].

Lt. Cmdr. Doxakis made her first court appearance with me at a two-day hearing in August. At that point, it appeared that Mr. Jawad was headed to trial (a trial date was actually scheduled for December 2008, then moved to January 2009 due to the government’s inability to provide discovery in a timely manner, then delayed again due to a government appeal of Judge Henley’s ruling suppressing Mr. Jawad’s “confessions” as the product of torture, before finally being postponed indefinitely when President Obama assumed office). Both Lt. Cmdr. Doxakis and I thought we needed another experienced trial lawyer on the Jawad defense team. When Maj. Eric Montalvo showed up later that month, we instantly hit it off. I immediately asked for him to be assigned to my team as assistant defense counsel.

Lt. Cmdr. Doxakis, Maj. Montalvo and I all worked together preparing for the next hearing, a suppression hearing in late September. It was shortly before this hearing that Lt. Col. Vandeveld resigned, and he appeared as a defense witness at this hearing. We had filed two suppression motions, one to suppress statements made to Afghan authorities, and one to suppress statements in US custody. Both were litigated at this hearing.

One of the difficulties with the Jawad case was that we were trying to reconstruct events from December 2002 based on very flimsy evidence. The investigation of the hand-grenade incident, such as it was, was incredibly shoddy and incomplete. Alleged witnesses had disappeared. Important evidence, such as a videotape of Jawad’s first interrogation, had also disappeared. We realized that in order to properly defend Jawad, we needed to conduct our own independent investigation into the crime, not just rely on the meager evidence provided by the government.

Unfortunately, at that time the Office of Military Commissions-Defense had no investigative personnel assigned to it. Accordingly, we were obliged to request funding for an investigator from the Convening Authority Susan Crawford [whose role overseeing the Commissions as an impartial advisor, despite her close connections with both Dick Cheney and David Addington, is discussed here and here]. We found an eminently qualified investigator with years of experience investigating murders and terrorism offenses. He had already investigated one high-profile case in Afghanistan. He was even willing to do the work for half his usual rate because he felt it was important that detainees be given an adequate defense. Our request, like virtually every other request for resources made to the Convening Authority, was denied [see the note at the end of this article for further details about how most requests for resources were denied by the Convening Authority]. We appealed the denial to the military commission, but at the September hearing, our motion was denied.

It was clear that if we wanted to investigate, we were going to have to do it ourselves. Maj. Montalvo volunteered to go. As a combat-trained Marine, he was clearly our best choice to go into an active conflict zone to investigate. Lt. Cmdr. Doxakis was pregnant and I was preparing for the al-Bahlul trial in late October. Maj. Montalvo drafted another fine young Marine JAG, Capt. Chris Kannady, to join him on the trip. Maj. Montalvo’s mission to Afghanistan was highly successful. He located several key witnesses. Many of these witnesses gave very different descriptions of the events of December 17, 2002, than the statements that had been ascribed to them by the prosecution. Maj. Montalvo took detailed photos, videos and sketches of the scene of the attack. We were prepared to use these to prove that several of the key witness accounts by the government witnesses were physically impossible. Of course, the case never went to trial so we did not present our evidence in Court, but we did share it with the Justice Department and I believe that this ultimately led to their decision not to pursue an indictment against Jawad [following the granting of his habeas appeal by Judge Huvelle]. The evidence just wasn’t there.

Maj. Montalvo and Capt. Kannady also met with several senior Afghan officials. They explained to these officials what had happened to Jawad while in US custody to try to convince the Afghan government to press for Jawad’s release. In anticipation that Jawad would someday be released, they met with representatives from various agencies to determine what resources were available for Jawad upon his return and to begin to lay the groundwork for a rehabilitation and reintegration plan. Finally, they met with Jawad’s family and tribal representatives. They took videos of Jawad’s family to bring back to Jawad at Guantánamo. These provided a tremendous lift to Jawad’s spirits.

Maj. Montalvo and Capt. Kannady returned to Afghanistan in May 2009 to conduct additional investigation and to meet again with Afghan officials. On this trip, they persuaded the Afghan Independent Human Rights Commission to file a lawsuit forcing the Afghan government to seek Jawad’s return. They persuaded the Afghan Attorney General and Minister of Defense to support Jawad’s return and to promise not to reincarcerate him upon his return. They continued with their efforts to identify and establish relationships with organizations that could assist with the reintegration process for Jawad. They met with “new” witnesses that the government had identified. Once again, these witnesses’ accounts, as told to Maj. Montalvo, differed dramatically from what they had supposedly told the government.

When the government’s case against Jawad finally disintegrated for good in July, culminating in the grant of the writ of habeas corpus by District Judge Ellen Huvelle on July 30, the Jawad team immediately started making plans to assist with Jawad’s repatriation. I even asked the Judge to order the government to permit the defense to accompany Jawad home. She stated that she did not believe she had the authority to mandate the terms of release, but did strongly recommend to the government that defense counsel be permitted to be present.

Once again, the path to Afghanistan led through the Convening Authority Susan Crawford. All defense requests for funding for overseas travel must be approved by her. In early August, I submitted a request with a detailed justification, reproduced below:

Subject: Request for Team Jawad Travel To Afghanistan (U)

UNCLASSIFIED

Team Jawad proposes to send Major Eric Montalvo, Capt. Chris Kannady and their regular interpreter, Chand, to assist with the repatriation of Mohammed Jawad. Major Montalvo and Capt. Kannady have already made two trips to the theater and have all the necessary training and clearances to make the trip on short notice. More importantly, they have an established a network of contacts on the ground within the Afghan government, in the NGO community and with Mohammed’s tribe and family. Team Jawad is working with UNICEF, the ICRC, and other government agencies, NGOs and human rights organization within Afghanistan to ensure that he is provided appropriate counseling and rehabilitation services. Team Jawad needs to be present to ensure a smooth transition to the new team of social workers and other aid groups who will be overseeing his rehabilitation and reintegration. Major Montalvo and Capt. Kannady have received a number of personal assurances from senior government officials in Afghanistan, including the Minister of Defense, the Attorney General, and the Minister of Foreign Affairs, about what will happen to Mr. Jawad upon his return. Major Montalvo and Capt. Kannady need to be present to ensure that these promises are carried out.

There are a number of reasons why Team Jawad feels it is of paramount importance to be in Afghanistan to receive Mohammed when he arrives and to assist with his transition to Afghan society. Because of security rules at Guantánamo, Mohammed has been deprived of virtually all news from Afghanistan. He has no idea what is going on there now and is unaware of the seismic changes that have taken place in Afghanistan since he was detained in December 2002.  He will be landing in a war-torn country that is dramatically different from the place that he left seven years ago.  As the attached memorandum from the court-appointed psychologist attests, it is critical to have “familiar trusted adults” present when he reenters Afghan society after so many years in captivity. Mohammed’s lawyers are the only “familiar trusted adults” in his life. While one could argue that the representation of the client ends at the time charges are dropped, this has not traditionally been the practice of military defense counsel, who frequently continue to provide counseling and assistance after the criminal phase of representation has ended.

Team Jawad’s detailed counsel unanimously agree that under our duty of loyalty and thoroughness (required under the duty of competence) to our client, we have an ethical obligation to Mohammed that will not be fulfilled if one or more of us are not present to assist with his repatriation. As a matter of force protection, it is essential that we send a minimum of two officers.  It should be noted that US District Court Judge Ellen Segal Huvelle, at the time she granted the writ of habeas corpus, strongly recommended from the bench to the Department of Justice that Mr. Jawad’s lawyers be permitted to be present when he is turned over to Afghanistan. Clearly she did not believe that the representation ended upon ordering his release.  Indeed, I would suggest the US is obligated to provide Mohammed with the assistance of his lawyers in this critical stage.

Article 6 of the Optional Protocol to the Convention on the Rights of the Child on the Involvement of Children in Armed Conflict, which the US ratified in 2002, requires that “States Parties shall take all feasible measures to ensure that persons within their jurisdiction recruited or used in hostilities contrary to this Protocol are demobilized or otherwise released from service. States Parties shall, when necessary, accord to these persons all appropriate assistance for their physical and psychological recovery and their social reintegration.” Article 7 of the protocol provides that “States Parties shall cooperate in the rehabilitation and social reintegration of persons who are victims of acts contrary to this Protocol.”

As a child allegedly recruited to participate in armed conflict, Mohammed is considered a victim entitled to rehabilitation and social reintegration. Unfortunately, the US has woefully failed to fulfill its obligations under this binding international treaty for the last six and a half years. Mohammed was offered virtually no assistance for his physical and psychological recovery. Indeed, the abuses he received at the hands of the US are the primary cause of his psychological problems.  We cannot morally, ethically or legally abandon him now when he is actually about to be reintegrated into society.

An additional justification for sending Major Montalvo and Capt. Kannady is the strong level of international interest in this case. Mohammed’s plight has become a significant matter of worldwide interest in the media. Indeed, just yesterday, the New York Times devoted an entire editorial to his long ordeal and urged the Obama Administration to release him without delay.  The mistreatment of Mohammed, a juvenile, by the United States has generated significant anger in Afghanistan. This anger has been partially mollified by the fact that Mohammed has been so zealously and ably represented by his appointed military defense lawyers. It would not enhance the image of the US in Afghanistan at this critical period if we were to simply dump Mohammed unceremoniously on the Afghans. Having well-respected members of the US military present to aid in the repatriation process will undoubtedly generate favorable publicity and dampen negative feelings towards the US.

Finally, it is in the interests of all concerned that Mohammed be placed in a living situation where he has appropriate services available and is not at risk of being caught up in the ongoing armed conflict. Major Montalvo and Capt. Kannady can assess the security situation on the ground and ensure that suitable arrangements are made.

Thank you in advance for your prompt consideration of this request.

David J. R. Frakt, Major, USAFR
Defense Counsel
Office of Military Commissions

This request was denied by the Convening Authority in a terse one-paragraph letter which indicated that such a trip was beyond the scope of the duties of military commission defense counsel. Our boss, Col. Peter Masciola, the Chief Defense Counsel, appealed the denial to Susan Crawford’s boss, the DoD General Counsel. Late on Friday afternoon on August 21, the day before Jawad was scheduled to be released, we received word that the appeal was denied.

Maj. Montalvo was determined to be present when Jawad arrived in Afghanistan and had promised him that he would be there, even at his own expense. In anticipation that the official DoD travel request would be denied, he had obtained a civilian visa for himself to enter Afghanistan. Maj. Montalvo had been approved to retire from the US Marine Corps after 21 years of service and was in “terminal leave” status, a status in which one is still technically in the service, but is using up accumulated leave prior to the official retirement date. During terminal leave, retiring officers are authorized to work for other employers and Maj. Montalvo had already begun work for a private law firm in Washington D.C. Using the firm’s credit card (with a promise to reimburse the firm from his personal funds) Maj. Montalvo booked an airline ticket for himself and our intrepid interpreter, who agreed to take a week of unpaid leave from his regular job with no promise of compensation in order to assist Maj. Montalvo. Capt. Kannady, still on active duty, was denied permission to go by the military chain of command. As for me, by this time, my military orders had expired and I was back at my civilian job as a law professor in California.

Before Maj. Montalvo departed, I promised him I would find a way to pay for the trip, even if I had to pay for it myself. Maj. Montalvo told me that his only concern was ensuring that our interpreter was paid. I am pleased to report that through the extraordinary generosity of the ACLU, Human Rights Watch, and Amnesty International, I was able to raise enough money to reimburse Maj. Montalvo for his expenses and to pay our interpreter, albeit at 50% of his usual rate.

Mohammed Jawad and Maj. Eric Montalvo at a press conference in Kabul, August 27, 2009 (photo Xinhua/Zabi Tamanna).

Maj. Montalvo’s trip was an extraordinary success. He was able to put in place an effective rehabilitation and reintegration plan for Jawad in coordination with the Afghan government, the US State Department, UNICEF, and various other intergovernmental organizations and NGOs. Maj. Montalvo’s efforts received substantial positive publicity in the international media, and the US Embassy sent a letter of appreciation in praise of his efforts to the Chief Defense Counsel.

Upon Maj. Montalvo’s return, Lt. Cmdr. Doxakis submitted a request for additional funding to go back and check on Jawad’s progress later this year. The request was denied.

While I have received the lion’s share of the credit for winning the release of Mohammed Jawad, I could not have done so without the tireless contributions of the entire defense team. Maj. Montalvo’s extraordinary selflessness was just one of many examples of the heroic efforts of our team to do justice and uphold the rule of law in the face of continuous opposition from the US government (except Lt. Col. Vandeveld, of course). While this narrative focuses on the contribution of my military co-counsel and our interpreter, I would be remiss if I failed to mention my fine habeas co-counsel from the ACLU National Security Project, Hina Shamsi (now at NYU), Jonathan Hafetz, and our local counsel Art Spitzer, who kept us out of trouble by ensuring that we complied with D.C. local rules. And of course, no attorney is effective without strong paralegal administrative and research support. We had several highly dedicated military paralegals assisting us and received exceptional research support from law students at Duke’s Guantánamo Defense Clinic. Our habeas efforts were also enhanced considerably by outstanding support from Joe Pace, a law student at Yale.

Note by Andy Worthington: In order to understand why virtually every request for resources made to the Convening Authority by the military defense lawyers was denied, it is important to understand, as Col. Masciola, the Chief Defense Counsel, explained in testimony to the House Judiciary Committee on July 30 (PDF), that the Convening Authority holds an “untenable and inherently conflicted role.”

In the military justice system, it makes sense for the convening authority in courts-martial cases — generally the commander of the unit in which the alleged crime took place — to be responsible for overseeing both the prosecution and the defense, because “the court-martial takes place in a military unit in which the convening authority, as commanding officer, is the ultimate military authority and promotes military discipline and efficiency.”

In the Military Commissions, however, as Col. Masciola explained, “Neither logic nor military reality compels any such centralization of prosecution and defense control in the hands of a single individual.” Pointing out that the Office of Military Commissions-Convening Authority is “entirely a creature of Congressional and Department of Defense Regulation, headed by a political appointee (who is currently a civilian),” Col. Masciola added that there was no “military or otherwise natural necessity for the Convening Authority to hold ultimate power over funding of both the prosecution and defense.”

Col. Masciola also explained that the in-built bias in the role was readily apparent, because although, on the one hand, the Convening Authority is responsible for “the ultimate decision to proceed with charging and trial of the accused,” the “ultimate acceptance or rejection of pretrial agreements” and “initial review and correction of all convictions” (“all prosecutorial or quasi-prosecutorial functions,” in his words), she is also responsible for “all of the most critical defense resource and funding decisions: the initial decision whether or not the defense is entitled to retain and fund defense experts at government expense, the initial decision to authorize travel funding of all witnesses (which, given the location of the accused and trials in Guantánamo Bay, is tantamount to virtual veto power over the presentation of most witnesses), and to provide for interpretation and translation services for the defense.”

The result, as he proceeded to explain, is that, “because the Convening Authority is the de facto chief prosecutor as well as the arbiter of defense resources, defense requests have not been ruled upon with even a semblance of fairness or objectivity.” As examples, he explained that, although 56 requests for expert assistance were filed in eleven cases, only nine were granted, and six of these were in the case of Omar Khadr. He added that none were granted in any of the four capital cases, and described these decisions as “astonishing, given the special need for mitigation specialists and other experts in capital cases,” as recognized by the Supreme Court and the Court of Appeals for the Armed Forces.

As Col. Masciola also explained, perhaps the most significant effect of having a politically-appointed Convening Authority overseeing both the prosecution and the defense is that, when requests for defense resources are made, “simply filling out a request to the CA requires our defense teams to lay out, in detail, defense strategy and privileged materials that the CA freely shares with the prosecution. Moreover, in practice, the prosecutors have enjoyed a vote on whether or not defense counsel requests will be granted.”

Col. Masciola’s testimony was delivered (along with the statements of Maj. Frakt and Lt. Col. Vandeveld, mentioned at the start of this article) in an attempt to persuade Congress to reconsider its plans to revive the Commissions in an amended form, as proposed by President Obama. Given the bias he describes above, it is, I think, remarkable that Mohammed Jawad made it through the entire process and eventually secured his release, but it remains deeply troubling to me that, as Col. Masciola explained to the House Committee, the “inherently conflicted role” of the Convening Authority is not addressed in the Senate bill aimed at reviving the Commissions, and, moreover, that Susan Crawford, a protégée of Dick Cheney and a close friend of David Addington, is still in her job nine months after Obama took office.

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

Cross-posted on Common Dreams and 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).

Since then, I have assiduously covered the various twists and turns in his story, including, in particular, the crisis in the Commission system that was precipitated in September 2008, when his military prosecutor, Lt. Col. Darrel Vandeveld, resigned, declaring that the Commission system was unable to deliver justice, and explaining how he had gone from being a “true believer to someone who felt truly deceived,” the incidents in October and November 2008, when his military judge, Army Col. Stephen Henley, refused to accept the confessions made by Jawad shortly after his capture (both in Afghan and US custody), because they had been extracted through threats of torture, an explosive statement by Lt. Col. Vandeveld in January this year, to accompany Jawad’s habeas claim, in which the former prosecutor delivered an even more comprehensive denunciation of the Commissions’ systemic failures, his lawyers’ discovery in May that Jawad may have been as young as 12 when he was first seized, the savage denunciation of the government’s case that was delivered by Judge Ellen Segal Huvelle during his habeas corpus hearing in July, when she condemned the Justice Department for its persistent obstruction, and repeatedly stressed that the government did not have a single reliable witness, and that the case was “lousy,” “in trouble,” “unbelievable,” and “riddled with holes,” and statements to a Senate and House Committee in July by Lt. Col. Vandeveld and by Jawad’s military defense attorney, Lt. Col. David Frakt.

These not only provided the final word on the whole of the sordid story of Jawad’s imprisonment and ill-treatment, but also provided — in Frakt’s electrifying testimony, in particular — a comprehensive account of the fatally flawed genesis and development of the Commissions, which should have convinced the administration and the politicians that their proposal to revive the Commissions in a revised form is doomed to failure, and that they should be consigned to the scrap heap of history, along with every other innovation dreamt up by former Vice President Dick Cheney and his close advisors.

I extend my belated congratulations to these brave and principled men and women for securing Mohamed Jawad’s release and for defending the values on which the United States prides itself, and am delighted to note that, on Jawad’s return, he was reunited with his family, and was even granted an audience with President Hamid Karzai, who offered to help the former refugee readjust to his new-found freedom by providing him with a house. The Associated Press reported that “Turbaned men, many who had traveled to Kabul from villages in a nearby province, greeted him with a flurry of hugs and wide smiles,” and added that Jawad, standing in a courtyard surrounded by family members, stated, “I am bursting out of my clothes. I spent a long time in prison and now I am very happy to be back with my family.” The London Times also reported that the Defence Minister, Abdul Rakhim Wardak, “offered to pay for him to study overseas,” following a statement by Jawad, in which he announced that he would like to study to become a doctor.

Below is a video from al-Jazeera (via YouTube) featuring a report on Jawad’s return and a brief interview. He also spoke to a number of other media representatives, including Jeremy Page of the London Times, who reported that Jawad “furrowed his brow and fidgeted nervously as he struggled to explain his extraordinary ordeal over the past seven years.” “This is one of the happiest moments in my life — to be back in Afghanistan after all this time,” he explained, adding, “I hadn’t done anything — they took me for nothing. All I could do was hope that one day I’d be free and back home in Afghanistan with my mother.”

Page noted that, when Jawad was finally reunited with his mother, “she refused initially to believe he was her son because he had changed so much, and fainted in a fit of hysterics,” according to Sher Khan Jalalkhil, a close friend of Mr. Jawad’s late father. Jalalkhil added, “Only when she came round and checked for a distinctive bump on the back of his head, did she embrace him as her offspring.” He also explained that the family had searched for Jawad for nine months after his initial disappearance. “We didn’t know if he had been killed, or kidnapped, or got lost. His mother went crazy,” he said, adding that they did not realize that he was in Guantánamo until a member of the International Committee of the Red Cross came to visit them.

At a press conference on August 27, one of Jawad’s lawyers, Marine Maj. Eric Montalvo, stated that Jawad planned to sue the US government for compensation for his long ordeal, although Jawad himself refused to elaborate. Maj. Montalvo explained that he “did not want any perceived anti-American statements to jeopardize his legal claim for compensation.” “If he starts speaking out in the coming days, he could put himself at risk,” Maj. Montalvo said. When he was asked if the “risk” referred to the US government, he said only that “it had not ended well” for other Guantánamo prisoners.

After his release, Jawad had privately described the abuse he had suffered in US custody, reinforcing the claims made by his lawyers, and by Lt. Col. Vandeveld. His uncle, Gul Nek, who met with him “for a long time” on the afternoon of his return, as the Associated Press described it, said that his nephew “recounted tales of torture by sleep deprivation,” and explained, “You can see in his face that he has been tortured.”

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

See the following for articles about the 142 prisoners released from Guantánamo from June 2007 to January 2009, and the twelve prisoners released from February to August 2009, whose stories are covered in more detail than is available anywhere else –- either in print or on the Internet –- although many of them, of course, are also covered in The Guantánamo Files: June 2007 –- 2 Tunisians, 4 Yemenis (here, here and here); July 2007 –- 16 Saudis; August 2007 –- 1 Bahraini, 5 Afghans; September 2007 –- 16 Saudis; September 2007 –- 1 Mauritanian; September 2007 –- 1 Libyan, 1 Yemeni, 6 Afghans; November 2007 –- 3 Jordanians, 8 Afghans; November 2007 –- 14 Saudis; December 2007 –- 2 Sudanese; December 2007 –- 13 Afghans (here and here); December 2007 –- 3 British residents; December 2007 –- 10 Saudis; May 2008 –- 3 Sudanese, 1 Moroccan, 5 Afghans (here, here and here); July 2008 –- 2 Algerians; July 2008 –- 1 Qatari, 1 United Arab Emirati, 1 Afghan; August 2008 –- 2 Algerians; September 2008 –- 1 Pakistani, 2 Afghans (here and here); September 2008 –- 1 Sudanese, 1 Algerian; November 2008 –- 1 Kazakh, 1 Somali, 1 Tajik; November 2008 –- 2 Algerians; November 2008 –- 1 Yemeni (Salim Hamdan) repatriated to serve out the last month of his sentence; December 2008 –- 3 Bosnian Algerians; January 2009 –- 1 Afghan, 1 Algerian, 4 Iraqis; ; February 2009 — 1 British resident (Binyam Mohamed); May 2009 — 1 Bosnian Algerian (Lakhdar Boumediene); June 2009 — 1 Chadian (Mohammed El-Gharani), 4 Uighurs, 1 Iraqi, 3 Saudis (here and here).