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

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

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

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

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

The letter to President Obama

June 16, 2011

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

Dear President Obama:

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

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

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

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

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

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

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

Sincerely,

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

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

Honor Those Who Said “No” To Torture

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

These courageous individuals include:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

In November 2008, the UC Davis Center for the Study of Human Rights in the Americas published a report, “Guantánamo’s Children: Military and Diplomatic Testimonies,” presenting evidence that 12 juveniles had been held, and this was then officially acknowledged by the Pentagon.

The next week, however, I produced another report, “The Pentagon Can’t Count: 22 Juveniles Held at Guantánamo,” providing evidence that at least 22 juvenile prisoners had been held, and drawing on the Pentagon’s own documents, or on additional statements made by the Pentagon, to confirm my claims.

Two and a half years later, I stand by that report, and am only prepared to concede that up to three of the prisoners I identified as juveniles may have been 18 at the time of their capture. In the meantime, I have identified three more juvenile prisoners, and possibly three others, bringing the total back to 22, and possibly as many as 28.

My new research coincides with a new report by the UC Davis Center for the Study of Human Rights in the Americas, “Guantánamo’s Children: The WikiLeaked Testimonies,” drawing on the recent release, by WikiLeaks, of classified military documents shedding new light on the prisoners, identifying 15 juveniles, and suggesting that six others, born in 1984 or 1985, and arriving at Guantánamo in 2002 or 2003, may have been under 18, depending on when exactly they were born (which is unknown, as it is in the cases of numerous Guantánamo prisoners).

However, crucially, the UC Davis report chose to make its assessments based on the prisoners’ dates of arrival in Guantánamo, which was often up to six months after their capture, whereas I have focused on their capture date, thereby demonstrating that at least 22 of the 28 prisoners identified in my research were indeed under 18 at the time of their capture.

Of course, to be strictly correct, this analysis should go further, dealing not with the dates of capture, but with the dates when the prisoners’ alleged crimes took place. However, I simply do not have the time at present to go through every file, and, while such research would undoubtedly yield more juvenile prisoners, I am content for now to have reinforced the claims that I made in November 2008, and to have made a case for there having been at least 22, and as many as 28 juveniles held in Guantánamo.

Just three of these former child prisoners are still held, but the US position has always been a disgrace. Notoriously, in May 2003, when the story first broke that juvenile prisoners were being held at Guantánamo, defense secretary Donald Rumsfeld told a press conference, “This constant refrain of ‘the juveniles,’ as though there’s a hundred children in there — these are not children,” while Gen. Richard Myers, the Chairman of the Joint Chiefs of Staff, said:

I would say, despite their age, these are very, very dangerous people. They are people that have been vetted mainly in Afghanistan and gone through a thorough process to determine what their involvement was. Some have killed. Some have stated they’re going to kill again. So they may be juveniles, but they’re not on a 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.

Moreover, in May 2006, when the Independent reported on “The Children of Guantánamo Bay,” a senior Pentagon spokesman, Lt. Cmdr. Jeffrey Gordon, said that the DoD “rejected arguments that normal criminal law was relevant to the Guantánamo detainees,” as the Independent put it. In Gordon’s own words, “There is no international standard concerning the age of an individual who engages in combat operations … Age is not a determining factor in detention [of those] engaged in armed conflict against our forces or in support to those fighting against us.”

This was nonsense, because, under the terms of Optional Protocol to the UN Convention on the Rights of the Child on the involvement of children in armed conflict, which the US ratified on December 23, 2002, signatory nations are required to promote “the physical and psychosocial rehabilitation and social reintegration of children who are victims of armed conflict,” and not to punish them by imprisoning them alongside adult prisoners in an experimental prison devoted to coercive interrogation and — at its worst — torture.

Despite its obligations, however, only three of the juveniles held at Guantánamo were ever treated differently to the adults — three Afghan boys, Asadullah, Naqibullah and Mohammed Ismail, who were held in a separate camp until their release in January 2004. For the rest, however, there was, or has been no “physical and psychosocial rehabilitation and social reintegration” whatsoever, and, instead, they have been subjected to torture and abuse, as described by many of these prisoners, “extraordinary rendition” to a torture prison in Jordan in the case of one of the juveniles, Hassan bin Attash, and, in the case of Omar Khadr, a war crimes trial, based on charges invented by Congress. In order to secure an eight-year sentence, Khadr was obliged to agree to a disgraceful plea bargain in which he claimed responsibility for his actions aged 15, during the firefight that led to his capture (and the death of a US soldier), when he was not, in fact, responsible for his actions. He was also obliged to admit that he was an “alien unprivileged enemy belligerent” who was not allowed, under any circumstances, to be engaged with US forces in combat.

It remains disgraceful that so many juveniles were held at Guantánamo — and that three former child prisoners are still held — but it is just as disgusting that, under President Obama, one of these former child prisoners was obliged to accept that, in modern-day America, lawmakers and the executive branch, without a murmur of dissent from the judiciary, have arranged for opponents of the US military in wartime to be criminalized, their actions regarded incorrectly as war crimes, and their very existence declared illegal. This is effectively no different than it was under President Bush, when the twisted ideologues who surrounded the President, under the aegis of his dark assistant Dick Cheney, created the concept of “illegal enemy combatants,” people without any rights whatsoever, who could be held forever and tortured with impunity.

The 22 juveniles held at Guantánamo

(i) The three still held

1. Ali Yahya al-Raimi (ISN 167, Yemen) Born 1984, seized December 2001 (aged 16/17). As WikiLeaks revealed, he was approved for transfer from Guantánamo in October 2004, but is still held over six and half years later. As I explained in my article, “Abandoned in Guantánamo: WikiLeaks Reveals the Yemenis Cleared for Release for Up to Seven Years,” the WikiLeaks files reveal 19 Yemeni prisoners approved for transfer between 2004 and 2007 who, disgracefully, are still held.

2. Omar Khadr (ISN 766, Canada) Born 19 September 1986, seized 19 July 2002 (aged 15). After well-chronicled abuse in Bagram and Guantánamo, Khadr, seized after a firefight in Afghanistan, accepted a plea deal in his trial by Military Commission last October, to secure an eight-year sentence, agreeing that he was an “alien unprivileged enemy belligerent,” who was not allowed, under any circumstances, to engage in combat with US forces. The US (under Bush and Obama) and the Canadian government have all behaved appallingly towards him.

3. Hassan bin Attash (ISN 1456, Saudi Arabia) Born 1985, seized 11 September 2002 (aged 16/17). Despite his age at the time of his capture, he was rendered on his capture to a torture prison on Jordan. He was seized with the “high-value detainee” Ramzi bin al-Shibh and is the younger brother of the “high-value detainee” Walid bin Attash (both allegedly involved in the 9/11 attacks), but there is, of course, no excuse for subjecting juveniles to torture because of their family ties.

(ii) The Afghans

4. Faris Muslim al-Ansari (ISN 253, Afghanistan/Yemen) Born 1984, seized December 2001 (aged 16/17), released December 2007. Seized crossing the Pakistani border, he explained that his family had left Yemen when he was a child, and had moved to Afghanistan, where his father had fought the Russians. He was assessed as being “a probable member of the Taliban.”

5. Shams Ullah (ISN 783, Afghanistan) Born 1986, arrived in Guantánamo October 2002 (aged 16/17), released October 2006. Described by his uncle, Bostan Karim (who is still held), as having “a mental problem,” he was shot after US forces raided the compound where he lived, suspecting that it contained insurgents.

6. Mohamed Jawad (ISN 900, Afghanistan) Born 1985, seized December 2002 (aged 16/17, although his family said he was 12 at the time of his detention), released August 2009. Put forward for a trial by Military Commission in October 2007, for allegedly throwing a grenade at US forces in a Kabul marketplace, his Commission trial essentially collapsed when his judge ruled that his confessions had been extracted through torture, and his prosecutor resigned, and he then won his habeas corpus petition in July 2009.

7. Abdul Samad (ISN 911, Afghanistan) Born 1986, seized December 2002 (aged 15/16), released September 2004. One of three (or possibly four) juveniles seized in a raid on a compound owned and run by a warlord named Samoud, who was not captured in the raid (see below for the other two confirmed juveniles). All were treated brutally in a US base in Gardez and at Bagram, where, according to another released prisoner, Habib Rahman, they were abused until they admitted attacking US forces.

8. Asadullah (ISN 912, Afghanistan) Born 1988, seized December 2002 (aged 13/14), released January 2004. See above.

9. Naqibullah (ISN 913, Afghanistan) Born 1988, seized December 2002 (aged 13/14), released January 2004. See above.

10. Abdul Qudus (ISN 929, Afghanistan) Born 1988, seized late 2002 (aged 13/14), released April 2005. He said that he was sold to US forces by opportunistic Afghan soldiers, along with Mohammed Ismail (see below), although he was assessed as having been radicalised by local imams.

11. Mohammed Ismail (ISN 930, Afghanistan) Born 1988, seized in late 2002 (aged 13/14), released January 2004. See above.

(iii) The Pakistanis

12. Khalil Rahman Hafez (ISN 301, Pakistan) Born 20 January 1984, seized December 2001 (aged 17), released September 2004. Like many Pakistanis, he had been recruited for jihad against the Northern Alliance and the US in his home country.

13. Mohammed Omar (ISN 540, Pakistan) Born 1986, seized December 2001 (aged 14/15), released September 2004. Despite traveling to Afghanistan with a friend for military training, it appears that he spent most of his time waiting around, before being captured by Afghans.

14. Saji Ur Rahman (ISN 545, Pakistan) Born 1984, seized December 2001 (aged 16/17, although Rahman himself said he was 15 when captured), released July 2003. He said that he traveled to Afghanistan with two friends to visit shrines in October 2001, but was then captured by Afghans. Perhaps surprisingly, there was no indication that the US authorities didn’t believe his story.

(iv) The Saudis

15. Abdulrazzaq al-Sharekh (ISN 67, Saudi Arabia) Born 18 January 1984, seized November 2001 (aged 17), released September 2007. He was assessed as an al-Qaeda member just a month before his release, although he may, like the majority of those accused of involvement with al-Qaeda because of their attendance at a training camp, have been nothing more than a soldier, recruited to help the Taliban fight the Northern Alliance.

16. Yasser Talal al-Zahrani (ISN 93, Saudi Arabia) Born 22 September 1984, seized November 2001 (aged 17), died in Guantánamo June 2006. A survivor of the Qala-i-Janghi massacre in northern Afghanistan, he died under mysterious circumstances on the night of 9 June 2006, with two other prisoners, as Scott Horton reported last year for Harper’s Magazine (and see my report and updates here, here and here).

17. Yousef al-Shehri ISN 114, Saudi Arabia) Born 8 September 1985, seized November 2001 (aged 16), released November 2007. Seized in northern Afghanistan like his cousin Yousef (see below), he was held in hideously overcrowded conditions in Sheberghan prison, belonging to the US-allied warlord General Dostum, and probably survived a massacre in container trucks, known as the “convoy of death,” before being transferred to US custody.

18. Abdulsalam al-Shehri (ISN 132, Saudi Arabia) Born 14 December 1984, seized November 2001 (aged 17), released June 2006. Like Yasser al-Zahrani, he was a survivor of the Qala-i-Janghi massacre, and, with his cousin, was then held in Sheberghan before ending up in US custody.

19. Ibrahim al-Umar (ISN 585, Saudi Arabia) Born 1985, seized 28 February 2002 (aged 16/17), released May 2003. A student at a religious school in Pakistan, he was encouraged to leave the country after the US-led invasion, but was seized at a checkpoint, held by Pakistan’s notorious ISI (Inter Services Intelligence directorate), and then handed over to US forces.

(v) The others

20. Mohammed El-Gharani (ISN 269, Chad) Born 1986, seized October 2001 (aged 14/15), released June 2009. Seized in a raid on mosque in Karachi, he was treated brutally at Guantánamo, but was finally freed after winning his habeas corpus petition in January 2009.

21. Haji Mohammed Ayub ISN 279, China) Born 15 April 1984, seized December 2001 (aged 17), released May 2006 in Albania. One of 22 Uighurs (Muslims from China’s oppressed Xinjiang province), who were detained by mistake, as they never had any affiliation with either al-Qaeda or the Taliban, and were solely opposed to the Chinese government. For further information, see this McClatchy Newspapers interview from 2008.

22. Rasul Kudayev (ISN 82, Russia) Born 23 January 1984, seized November 2001 (aged 17), released February 2004. A former wrestling champion from the Russian territory of Kabardino-Balkaria, north of Georgia, who also survived the Qala-i-Janghi massacre, he was rearrested in October 2005, after gunmen attacked government buildings in his hometown, and was tortured in police custody, despite protesting his innocence. The latest report, in 2008, indicated that he was still imprisoned.

The six additional prisoners who may have been under 18 at the time of their capture

23. Qari Esmhatulla (ISN 591, Afghanistan) Born 1984, seized 10 March 2002 (aged 17, or possibly 18), released October 2006. After telling a story in which he claimed to have been set up by Afghan soldiers while returning from a shrine, he was assessed as being “a low-level Taliban recruit.”

24. Hezbullah (ISN 666, Afghanistan) Born 1984, seized April 2002 (aged 17, or possibly 18), released November 2003. A Pakistani by birth who was listed as an Afghan “because that was where he had been living since 1990 and [he] considered that his home,” he was seized with his cousin after he had helped US forces locate and remove suspect items from the home of a suspected insurgent leader.

25. Peta Mohammed (ISN 908, Afghanistan) Born 1985, seized December 2002 (aged 16/17), released March 2004. Do note, however, that, in the documents released by WikiLeaks, his date of birth was recorded as 1984, which, if correct, would mean that he was almost certainly 18 at the time of his capture. If he was under 18, he was one of four juveniles seized in a raid on the compound owned and run by a warlord named Samoud (see Abdul Samad, ISN 911, above).

26. Mahbub Rahman (ISN 1052, Afghanistan) Born 1985, seized 1 June 2003 (aged 17, or possibly 18), released August 2008. He was assessed in April 2008 as  being “a member of an Anti-Coalition Militia (ACM) cell” located in Khost province, having been captured after a firefight with coalition forces, and as a “high risk” prisoner, who was “likely to pose a threat to the US, its interests, and allies.” Nevertheless, he was transferred back to Afghanistan just four months later.

27. Sultan Ahmad (ISN 842, Pakistan) Born 1 November 1984, probably seized before November 2002 (aged 17), released September 2004. Regarded as deceptive, he said that he was seized after traveling through Afghanistan to try to reach Turkey. The authorities in Guantánamo suspected that he was “an extremist recruit” in his assessment in November 2003, although he was released 10 months later.

28. Shakrukh Hamiduva (ISN 22, Uzbekistan) Born on 13 December 1983, probably seized in November 2001 (aged 17), released September 2009 in Ireland. He stated that he left Uzbekistan because of religious persecution, lived in a refugee camp in Tajikistan for 18 months, and was then taken to Afghanistan with other refugees, where he eventually worked as a taxi driver, which is what he was doing when he was seized. The US authorities, in contrast, regarded him as a Taliban-affiliated fighter with the Islamic Movement of Tajikistan/Uzbekistan.

In addition, there is a remote possibility that four others were under 18 at the time of their capture. The first is Mohammed Ishaq (ISN 20), a Pakistani. Born in 1983, he and a friend traveled to Afghanistan at the start of November 2001 to find his friend’s brother, who had gone to Afghanistan to fight against the Northern Alliance. Sometime in November 2001, he was seized by Northern Alliance forces in Kunduz, but he would only have been 17 at the time of his capture if he was born in late November or December 1983. Similarly, three Saudis — Ali Mohammed Nasir Mohammed (ISN 172), Tariq al-Harbi (ISN 265) and Abdul Khaliq al-Baidhani (ISN 553) — were also born in 1983 and were probably seized in mid-December 2001, meaning that they would only have been under 18 at the time of their capture of they were born in the second half of December 1983.

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

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

Sadly, it will probably do little to help those still held, abandoned by President Obama and unfairly vilified by opportunistic Republicans, whose continued presence in an experimental prison devoted to holding people neither as criminal suspects not as prisoners of war ought to be an unconscionable act for Americans to be engaging in, over two years after Bush left office, even though it has become, instead, a cause for amnesia, indifference or “patriotic” support that is deeply troubling for the health of the United States as a country that any longer has any comprehension of the difference between right and wrong.

Jawad’s story didn’t feature in my book The Guantánamo Files, as it was one that I felt I could skip when my publishers obliged me to trim 10,000 words from my manuscript, but the story of the boy seized in a marketplace in Kabul in December 2002 after a grenade attack on two US soldiers and an Afghan translator soon caught my attention when Jawad was put forward for a trial by Military Commission in October 2007, and it really took off in 2008, as his lawyers began to fight tenaciously for him, and his prosecutor resigned, complaining that the entire trial system was so disorganized — whether by accident or design — that it was impossible to guarantee that anyone would receive a fair trial.

The lawyers in question — Maj. David Frakt for the defense, and Lt. Col. Darrel Vandeveld, the prosecutor who resigned — became friends of mine during this period, in part because I admired them so much, but also because they both appreciated my dedication to pursuing the Guantánamo story, when so few journalists seemed to care, and I was delighted to follow the story to its just conclusion in August 2009, when Jawad finally won his habeas corpus petition and returned home to Afghanistan.

I had not, at the time, appreciated the role played, largely behind the scenes, by another of Jawad’s lawyers, Marine Maj. Eric Montalvo, who features prominently in Paterniti’s account of Jawad’s story — which, in fact, centers on the relationship between Jawad and Montalvo — although Maj. Frakt made up for this by providing me with a detailed explanation of Montalvo’s role, and that of the rest of the defense team, after Jawad’s release, which I published in an article entitled, The Unsung Heroes Who Helped Secure Mohammed Jawad’s Release From Guantánamo.

I wholeheartedly recommend Paterniti’s article, especially for the way he illustrates the relationship between Jawad and Montalvo, and captures so perfectly how both were so fundamentally betrayed by the US government — Jawad as a deliberately tortured and manipulated prisoner who was supposed to confess to whatever crimes his captors accused him of, and Montalvo as the principled patriotic American who came to see how his country had indeed crossed over to the “dark side” under Bush and Cheney, and was not only prepared to do that to prisoners in the “War on Terror,” but was also prepared to do it even when, as in Jawad’s case, the prisoner in question was clearly a child.

The Boy from Gitmo
By Michael Paterniti, GQ, February 2011

This is a story about lost and broken things, the rubble from which the phoenix — in this case a C-130 military transport — rises over the Caribbean Sea on a spotless day in September 2008. From 30,000 feet, the surface of the water glitters below like jagged glass, shooting spears of light. The plane stalks east, running parallel to the northern coast of Cuba twenty miles off. On board, Major Eric Montalvo is wedged in a seat, thinking, What the fuck have I gotten myself into now?

A month ago, he’d been working at Parris Island, South Carolina, capping a distinguished career during which he’d won more than 95 percent of his cases. He’d recently bought a big house with a huge kitchen and a fountain out back for his wife and two boys — and had begun to turn his attention to finding a civilian job. And then an e-mail pinged his in-box. Copied to a couple of hundred Marine lawyers, it called for applications to help with the military commissions trials at Guantánamo. Montalvo responded impulsively, stirred by the call to duty. Within a couple of hours, he received word. His retirement had been pulled: He was going to Washington, D.C.

The timing was terrible. The real estate market was imploding, the house couldn’t be sold, and Montalvo was forced to leave his family for an indeterminate amount of time. Still, there was worse to come. When he found out he’d been placed on the defense side — when he realized that he’d actually be defending the terrorists — he was stricken. The phone started ringing, colonels he knew on the line repeating the same mantra: “This isn’t going to be good for your career, Major.” Then the call with his parents. On September 11, Montalvo’s uncle Tony had responded with his Harlem fire company to Ground Zero, and Montalvo’s parents believed it was black lung that killed him not long after.

Please don’t do this, Montalvo’s mother told him.

Now the transport sweeps wide around Cuba’s eastern tip, an arid land of organ-pipe cacti and big loping rodents called banana rats. Below is Guantánamo Bay itself (a flume of blue water mushrooming inland, teeming with turtles and parrot fish) and then the naval base, a scattering of roads, buildings, and low-slung homes that accommodate the 6,000 troops here. Montalvo’s first impression is how foreboding the rocky shoreline seems, how moonlike the landscape. A Caribbean Alcatraz. Somewhere down there, too, are the cages that contain “the worst of the worst” — as Donald Rumsfeld labeled them — alleged Al Qaeda terrorists. Montalvo’s stomach burns a little with the thought that he might have to collude with any of them, in any manner. A self-described superpatriot and son of blue-collar parents (mother a hairdresser, father a cargo man for AeroMexico), he grew up in Queens, a skinny Puerto Rican scrapper, then joined the Marines at 18 and morphed into “Mad Dog,” his gonzo jarhead persona. Soon he was touted for Officer Candidates School and afterward went on to law school at Temple, emerging with gravitas as this slightly fattened-up (five feet nine, 220 pounds) lawyer of laser logic and indignant rage, trimmed beard flecked gray, and bad attorney’s back.

When he first found out he’d been assigned to the defense side, he went and spoke to Colonel Morris Davis, the chief prosecutor for the commissions at the time, and the colonel asked Montalvo if he thought he could handle it. The job would get very personal, he said, but it was also the most meaningful kind of work because it was all about the Constitution. And this is how Montalvo buttressed himself in the face of so many doubters, repeating it back to them. “If I’m going to fight the fight for America,” he’d say, “dead center on the Constitution is where I want to be.”

He soon finds himself on the top step of the military commissions building, gazing down on a makeshift tent city and sweating through his cammies in the heat. He’s been assigned the separate cases of two detainees, and enters a small interrogation room where the first, a Yemeni named Ali al-Bahlul, is chained and shackled to the floor. The detainee is surprisingly lithe, a handsome man with close-cropped hair who speaks impeccable English. He’s one of Osama bin Laden’s former media operatives, most famous for having made a two-hour video celebrating Al Qaeda’s attack on the USS Cole. It’s one of the jihad movement’s all-time greatest hits, and al-Bahlul is also among the most doctrinaire, having been locked away in solitary for years. As they sit face-to-face, al-Bahlul asks why the Marine is trying to be so accommodating. “Don’t you know I’m your enemy?” he says. Montalvo responds that, legally speaking, he feels that a First Amendment argument can be made on his behalf, but al-Bahlul interrupts, jangling his chains. “Don’t you know that if that door were opened and we both were out there free, I’d kill you?” Nothing has prepared Montalvo for this kind of venom, but his reaction is visceral. He leans forward and says, “Don’t you know that if that door were open and we both were free, I’d kill you first?” When it’s over, Montalvo leaves the room shell-shocked, thinking, Jesus, how can I defend that?

It’s not just al-Bahlul. He feels it all around: that what’s really being played out here is a clash of civilizations. Even the setting, the harsh sun and roiling ocean, evokes a desolation, the sense that in this otherworld there’s been an allowance made for some unsayable human brutality. Eye for an eye. Montalvo goes back to his tent, gets some grub, sleeps in double sleeping bags because the air-conditioning blows an arctic frost all night. The next day he’s introduced to his second client, Internal Security Number 900. The detainee is said to have committed an attack against two Special Forces soldiers in a marketplace in downtown Kabul, a brazen assault with a grenade that left the soldiers badly maimed but alive.

Before entering the room, Montalvo girds himself, does some deep breathing, pushes through the door in full professional command, and comes face-to-face with … a boy. The kid looks almost goofy, shackled there. He seems shy but unstintingly polite, asking after Montalvo, greeting him with a direct, interested gaze. The room is claustrophobic, the eye of a surveillance camera boring down on them. Where Montalvo felt a hardened knot of despair with al-Bahlul, he can’t quite square the soft-spoken boy who sits before him. Is this the little shit who left two soldiers to die in the middle of a bazaar thousands of miles from home?

“They keep accusing me of something I didn’t do,” the boy says. “I just want to get home to my mother.”

***

He doesn’t know if he believes the kid at first, his utterances of his innocence. But he’s a kid — and because of that Montalvo feels something shift, a nagging doubt not about the boy but the strange American juggernaut running him down. He leaves and boards the transport plane home, and back in his shade-drawn office in D.C., Montalvo keeps returning to that first meeting. Despite everything, the alleged enemy seemed, well, hopeful. As if a clerical error had been made. Like the boy believes he should be going home soon, once he’s been heard by the president or judge or wizard, whoever’s in charge. It’s that conviction that brings Montalvo to a standstill and makes him feel some odd, sudden weight of responsibility.

He spends hundreds of hours reading the official military reports, and the evidence seems damning. On December 17, 2002, two American Special Forces soldiers, Michael Lyons and Christopher Martin, along with their Afghan interpreter, drive an unmarked, soft-top jeep into a Kabul bazaar. They visit with a couple of vendors whom the team is cultivating as informants. They make a final stop, at a shop selling clocks. Lyons enters, asks the owner, “How is everything?” The shopkeeper responds in broken English, “Everything’s fine. How are you?”

“No,” says Lyons, “how’s everything … for me?”

The shopkeeper goes to the front of the store, scans the street, returns.

“Everything’s fine,” he says. “For you.”

Lyons wants twenty-five wall clocks. A long conversation ensues, less haggling than an exercise in trust-building, and then he “tips out,” overpaying an encouraging amount of money. Meanwhile, standing guard on the street, Martin has had a chilling premonition, a feeling that he’s being watched through the scope of a rifle. When Lyons exits the shop with the interpreter, they quickly load the clocks, and all three hop in the jeep. The marketplace swarms with hundreds, thousands, of people just released from afternoon prayer at the mosque; traffic is bumper-to-bumper. Smoke from the outdoor barbecues wafts thickly with the scent of kebab meat. The jeep nudges forward, unable to merge into the swirl around a traffic circle.

And then a sickening thing occurs: The windshield suddenly shatters, leaving a spiderweb of cracked glass. “What the hell was that?” blurts Lyons in the driver’s seat. They’ve been shot at from the front, he thinks, but there’s no sign of attack on the street. Then there’s a hollow thud, like an empty bottle rolling on the floor. Martin, riding shotgun, glances over his shoulder at the interpreter, who’s scanning the floor of the jeep. Martin looks down, frantically searching back to front, and as he lifts his eyes, a blinding flash of orange engulfs everything.

And then a deafening explosion.

In the next instant, Lyons lies slumped over the wheel, unresponsive, blood gushing from a tear in his femoral artery. His legs are mangled; his left foot is missing a toe. Meanwhile, Martin, who’s still in the passenger seat, looks down at his hands to find them covered in blood. But whose? The interpreter, badly wounded himself, flags a nearby taxi, piles the two U.S. soldiers in the back with their feet hanging out the open door, and sends the driver off with directions to get to a German field hospital. The taxi wedges through the crowd, hitting people with the open door as it goes, the bloody legs dangling.

Back at the bazaar, various men are apprehended, but soon the only one left is the main suspect, who is described as “very young and clever” and who was allegedly caught in the act, arm cocked with a second grenade near the smoldering jeep. Unlike a suicide bomber or martyr, the subject is alive, talking, a tangible terrorist potentially packing vital information. Within hours, he supplies a written confession that reads:

I came to Kabul alone from the province of Khost … No one had assigned me this task. I did this myself … I have a grudge against the Brits and the foreigners. They should not be in our country … I executed this operation in Pul-e Khishti while they were riding in their Jeep. When they were on the street, I didn’t attack them because innocent people were going to be killed. Once they climbed into their vehicle, I threw the hand grenade at them. I am sorry that some Afghans got wounded. I am happy that the foreigners got killed.

Goodbye,

***

From the beginning, the boy is considered the highest security threat, a person whom the U.S. military is eager to add to its growing roundup of Al Qaeda detainees. But the Afghan authorities regard him as valuable quarry, too, refusing to relinquish him. Are they playing for a bribe? If so, they’ve misread the situation. With American blood still on the market cobbles, heavily armed U.S. Special Forces storm the Ministry of Interior, where the boy is being interrogated. The Americans seize him by one arm as Afghan officials pull back on the other, a literal tug-of-war, but then, there’s no contest.

Under U.S. custody, the boy is transferred to a forward operating base in the city, where he is subjected to “a harsh-up,” hooded and placed in a prone position for ten minutes, then helped to a chair and exposed to bright lights. The procedure is repeated whenever discrepancies arise in his account. He complains of being thirsty. He slouches and fidgets. The Americans suspect he might be in drug withdrawal.

“Is this what your God wants you to do?” they yell at the boy.

“Did you know that the victims have family and children?”

During those first five hours, he tells a more elaborate story than the one in his thumbprinted confession. Now there are others who are in charge — men he knows only as “39″ and “42″ — and he claims that he never threw the grenade at all; rather, he thinks a man by the name of Nadir did. He claims to have met these men at a mosque in Pakistan, where they recruited him and took him to a nearby training camp. He stayed there for about two weeks with about a dozen others. He spent a lot of time sleeping there, he says. He would eat, the older men would give him white pills that made him dizzy and made people look small; sometimes the men gave him injections in the leg, and he would wake up hours later with his pants undone and everyone laughing at him. Is it all made-up? He’s frightened, perhaps trying to tell them what they want to hear so he can go home. The hood goes on, comes off. The only unchanging fact seems to be that the boy was subdued that December afternoon, not far from two bloodied and maimed American soldiers. And now he feels as if he’s suffocating. They keep asking questions, blasting him with words until he loses his grip on them, until an opaque glow comes down between him and them, and he slips into sleep while sitting straight up in the chair.

***

Sitting in his own chair in his office before the little shrine he’s built with the flag and mementos from his military career, Montalvo wades through boxes and folders and computerized case files, tracking the ghost of the boy back in time. It’s odd, what’s there and what isn’t, what gets emphasized and what doesn’t. Initial military reports on the night of the boy’s arrest identify him as not being “any more clean or dirty than the typical Afghan,” or appearing “much like every other Afghan; not covered in mud, however not freshly showered.” But a military videotape of the U.S. interrogators doing their work that first night suddenly can’t be found. Then there are the nearly two months the boy spends in the prison at Bagram Air Base, days full of forced standing and stress positions, hoodings and physical assaults, at a time that coincides with an array of heightened abuses, including threats of rape and the two beating deaths of other prisoners. (One, a taxi driver, is left hanging in his cell for four days while guards pummel his legs to uselessness.) So what more might have happened to him there?

After the boy has been shackled, hooded, and put on a plane for Guantánamo, after he finds himself whisked from the broken bone of war-torn winter to the humid Tropics — and put in a “cage,” or “punishment place”(as the boy later calls it), for thirty days in isolation — after his life zeros to a captivity where, feet from an ocean, he can see only small patches of parched earth and cacti, the record becomes partially more clear. There are logs in which the guards employ a coded language to detail events of each day. “Alfred Hitchcock on the block” alludes to a visit from a psychologist to a detainee; a “three-piece suit” refers to the shackle system used to move prisoners. A “reservation” means an interrogation (those sometimes with torture), while “Flyer” or “FF” refers to the Gitmo-styled “Frequent Flyer Program,” a sleep-deprivation tactic during which the boy is moved approximately every two hours and fifty-five minutes, from cell to cell, 112 times total, for roughly two straight weeks in May 2004. Even his weight tells a story: 130 pounds …160 …151 …142 …119 … What does a forty-pound dip in a growing male indicate?

The boy appears again and again, in Gitmo’s strange pointillism, hungry, lonely, trading for what little he can, his every transgression etched in the permanent record by an ever changing rotation of guards:

“…came to Kilo block to take [detainee] to Reservation … placed …i n 3 piece suit … found a breakfast roll in [detainee's] orange shorts; 3 salt packets; extra styrofoam cup; empty packets of tea, peaches, salted nuts, and lemon poppy seed pound cake were found in cell … Punishment: Loss of rec x 3 periods; Remove all comfort items x 3 days; loss of hot rations for breakfast and dinner.”

“… did destroy his cup and demand a new one. Loss of CI x 4 days.”

“… refused to give meal up unless he got soap. When he got soap he still refused to give up meal. Detainee later gave his meal to guard #2.”

It goes on and on, the petty rebellions, the hoarding of salt packets, the cross-block talking, the covering himself with a blanket when forced to defecate under the eye of the guard, etc. When the punishments add up, he finds himself in isolation, and the guards mark his hourly activity on charts with single words: sleeping, sitting, praying, reading, reservation … It goes on like this for weeks: pacing, sitting, sleeping, reservation …

Montalvo learns of the boy’s 2003 Christmas Day suicide attempt, the boy bashing his head repeatedly against the wall until he’s bloodied and hauled to the hospital. He reads the psychologist’s evaluation in which the boy’s homesickness and depression are seen as a feint, or fabrication, but also a sign of his vulnerability, and so it is recommended that he be isolated for another thirty days in order to break him. And finally he comes to the photographs.

The photographs arrive on a disk from the prosecution, jammed with files and miscellany, as part of the discovery process. It takes another defense lawyer on the team weeks to realize they’re even there, a small cache from the boy’s initial strip search the night of his arrest. He stands in a room, under pale light, naked before the men of Lyons and Martin’s unit. His face is photographed, revealing a nasty gash across the bridge of his nose (apparently at the hands of the Afghan police). And then the camera lens examines the rest of him: his arms and legs, his torso and butt. Montalvo can’t shake one photograph, taken from low and behind, the boy standing with his arms outstretched while a U.S. soldier stands before him, face-to-face, an American flag draped on the wall behind the boy’s right shoulder. Another soldier sits with legs crossed in the corner, talking with others just out of the frame. It seems so composed.

There are more, including pictures of the boy’s penis. According to a statement by Major Kenneth Chavez, the operations officer in charge of the detainee, he’s examined with “all of his clothes off; with only men present.” Claiming to have seen photographs of the exam, another soldier, Warrant Officer David Alan Rolbiecki, says that he remembers that Jawad’s “genital area, as well as his chest and armpits, had been shaved, which is consistent with a martyr.”

It’s plain to Montalvo that anyone would look at those same pictures and see a boy too young to have reached puberty, that the pictures are more about humiliation than anything. No — this certainly doesn’t feel like justice anymore, he thinks, but some strange violation of it.

***

Over the seven years of the boy’s incarceration, the government puts forth many versions of the detainee: They allege that he claimed to have foreknowledge of 9/11, owned a shop in Khost, and was a member of a group with close ties to bin Laden. The claims seem preposterous for a boy at best 15 or 16 when arrested, but moving toward trial, the defense requests funding to send a private investigator to Afghanistan. When the request is denied, Montalvo volunteers for the trip, nominating fellow defense attorney Christopher Kannady to ride shotgun. They travel without backup, one carrying a nine-millimeter, the other a knife. On the day they plan to go to the marketplace in the shadow of the blue-domed mosque called Pul-e Khishti, Montalvo procures a convoy from the nearby U.S. base. But at the bazaar, the U.S. soldiers start shouting, threatening, and the crowd begins to threaten back. Montalvo and Kannady scramble to document the crime scene, where the incident took place, where the boy allegedly was subdued, where the eyewitnesses were. They work as quickly as possible, filming, photographing, interviewing. They push into a nearby restaurant, one with a blue awning, where the hostility seems so thick Montalvo has a flash of how easily he could become Lyons or Martin. And where would that leave his kids? Which raises another question: What the hell is he doing here?

Montalvo and Kannady track down some of the prosecution’s main witnesses: The Afghan police officer whose testimony is central to the government’s case claims he subdued the boy that December day with his judo, but he also claims that he pointed a gun at the boy’s head when he went to throw a second grenade and muttered, Dirty Harry-style, “I wouldn’t do it.” Other witnesses admit to having been bribed for their testimony, and yet another confesses to have been sitting far across the river. Then there are the Kuchis, a nomadic tribe to which the boy belongs. Montalvo thinks it important to reach out to one of the chieftains, an intimidatingly large mujahideen hero named Shirhan, in order to try to ascertain background on the boy. But in that first meeting, the translator has a hard time deciphering Shirhan’s accent as he grows more and more agitated. “He’s a boy,” Shirhan bellows. “He must be brought back.” Montalvo, fearing that the tribal chief might settle things by violence, plays for a quick wrap-up and a contact number. Suddenly three of Shirhan’s men reach into their robes. Montalvo catches Kannady’s eye, fearing a drawdown, flickering a message — you go left, I’ll go right-and then the Kuchi tribesmen, all at once, pull out their … cell phones.

The boy’s father was also a mujahideen fighter, killed in the first year of the boy’s life in a battle with the Soviets. Which left his mother to raise him. When they meet her, she sits invisibly inside her light blue burka, and though Montalvo isn’t allowed to address her directly, the keening notes of her sobs are unmistakable. She claims her son was 12 when he was arrested, and to Montalvo’s mind the fact jibes with what he knows. Unlike the al-Bahluls of the world, who face their incarceration with defiance — spitting and throwing feces at the guards — the boy is known to call out his mother’s name in the moments of his deepest despair.

The world sees a flicker of that despair during a 2008 hearing at Guantánamo. In a reporter-filled courtroom, with the defense by his side, the boy demands to be heard by the judge, speaking out in Pashto. “I want to express that I have been punished a lot,” he says, and launches into a disjointed ramble, referencing, among others, a “big commander,” “the red prison person,” and “some tape kind of cell or cage.” He touches on his constant blindfolding and then the sleepless rooms in which he’s exposed to twenty-four-hour cycles of bright light. “Why am I sitting here, why am I in the prison?” he pleads. “I am asking you this question.”

And yet the case against him has already begun to unravel. David Frakt, who leads the defense, hammers at the foundation of the charges — three counts of attempted murder and three of serious bodily injury — while the lead military prosecutor, Darrel Vandeveld, abruptly quits, claiming the prosecution is “a charade.” In a burst of conscience, Vandeveld will later write a letter that rails against his side’s cavalier conduct, referencing an inherited trial notebook that represents five years of government effort, calling it “a first-year law student’s untutored attempt to evaluate the case.” To Vandeveld’s mind, the boy holds no intelligence value (“[His] youth, his lack of any but the most rudimentary education, and his manifest gullibility marked him, at best, as a low level foot soldier”) and, worse, has been abused by both Afghans and Americans, while a military behavioral specialist at Guantánamo has recommended more abuse for the detainee in an effort to extract information from him. (“I lack the words to express the heartsickness I experienced when I came to understand the pointless, purely gratuitous mistreatment of [the detainee] by my fellow soldiers.”)

In closing, Vandeveld writes, “[H]ad I been returned to Afghanistan or Iraq, and had I encountered [the detainee] in either of those hostile lands, where two of my friends have been killed in action…I have no doubt at all — none — that [the detainee] would pose no threat whatsoever to me …. I respectfully ask this Court to find that [his] continued detention is unsupported by any credible evidence.”

Not long after Vandeveld’s resignation, the judge rules that all of the boy’s statements, having come as a product of torture, will be inadmissible. On July 30, 2009, the court grants the defense a petition of habeas corpus. The Department of Justice concedes that this boy, Mohammed Jawad, is no longer detainable, and he is ordered released.

Montalvo delivers the news himself at the gate to Camp Iguana. When Jawad approaches that day, he’s already telling Montalvo about another detainee, a Uighur in the camp who needs representation. Montalvo interrupts him. “Your case is over,” he says. “You’re going home.” There, on the spot, the boy falls to his knees and begins praying. After several minutes, he rises with tears in his eyes and hugs Montalvo through the gate.

A month later, Montalvo flies back to Afghanistan to help return the boy. Jawad is taken back separately, just as he came, hooded and cuffed on a transport, but forever marked now. When he touches down in Kabul, more confusion ensues. The Americans encourage the Afghan authorities to detain him. But then Montalvo intervenes again, commandeering Jawad at the office of the Afghan attorney general, taking him home to his mother at last.

In a room, she waits for her son. And then comes a young man with an impressive beard and blemished skin, a heavy brow, and dark, penetrating eyes. Her first reaction is, no, there must be some mistake here. But the man insists he belongs to her. She reaches out, to touch his head, her hand to the spot where her son had always had a knob, and then she knows and can’t speak anymore, holding him close.

***

So this is the happily ever after, the mother-and-child reunion, the tribe killing the fatted lamb to celebrate the answer to their prayers. And this is Montalvo, the gung-ho superpatriot born on Flag Day, the man with a Marine shrine in his office, who’s never voted for a Democrat in his life, having executed his military duties with thoroughness — some might dare say “honor.” But he’s now forever the guy who defended a terrorist. People lambast him on the Internet. He’s lost two years from his wife and kids. The military — his beloved military — has threatened him with the removal of his security clearance and a court martial, though it never acts on those threats. Even after he’s left the military, after he’s finally retired and gone to work for a private firm, he’s marked. He leaves after six months, when the firm begins to lose business based on his “past affiliations.” And the grief he’s caused his own parents: How can he not question the cost? “This has been a monster,” he acknowledges. “I wish I weren’t at the head of the spear.”

Why, though, does he say it in the present tense rather than the past? The rest of the defense team has moved on: Several attorneys pick up other Gitmo cases; Frakt turns back to teaching law school and the occasional public-speaking gig on the Mohammed Jawad case, sometimes with Vandeveld, the old prosecutor, by his side. And yet Montalvo can’t seem to let go of the case itself, the minutiae of it. He is 41 years old, and when he thinks about the boy it all feels terribly personal, triggering some bristling righteousness that he can’t contain. “Look, we took a boy, and we put him in a cage for seven years and tortured him,” he repeats over and over again. “We broke him to the point where he trusts no one, and then we threw him back among potentially shady operators, with no support whatsoever. God forbid he pulls a trigger or causes the death of someone. It’d be on my hands now.”

It sounds selfless and perhaps a little grandiose, principled and perhaps seeded with something else — disillusionment, hope, guilt, an unsettling anger? After all, just how much does one newly retired Marine really owe the supposed enemy? Isn’t it time to go home to his family now?

But he’s not just chasing the ghost of the boy anymore. What moves him, what constitutes an inner cosmology, is a mystery even to him, one that occasionally surfaces in fragments. It’s funny how memory floods the present, how everything organizes itself around lodestars: the boy in the casket, the lost father. He remembers the day he came home from school at age 12 and his mom told him one of his best friends had been sodomized and stabbed to death. He remembers the wake, the open coffin, his buddy there, unsavable. And then there’s the secret of his father, one kept for the first thirty-eight years of Montalvo’s life because his mother always thought him “too tenderhearted” to handle it. That is, his father is not his father, that he’s not Puerto Rican but Italian, the son of a man named Sal Armenia, who’s dead now. He pores over an old file that he obtains, full of legal documents that attach him to his real biological father. There’s a coldness to the law, a crystalline logic. But it helps him understand that he’s no longer the person he thought he was, that nothing can be trusted. It makes him feel at times like there’s some cable or track connecting him to another world that might explain this one.

Now Montalvo speaks to Jawad once a week by phone — and finds himself increasingly troubled by the tone of the calls. The transition has been hard, leaving him sluggish and isolated. And then there are the necessities: food, shelter, work. Upon his immediate return, Jawad meets with President Hamid Karzai, who pledges to help him find a suitable house and to provide financial assistance. But like so many promises in the swirl of the new Afghanistan, this one doesn’t take hold, and as the weeks pass, Montalvo can hear Jawad’s hurt and anger and, worse, his detachment. The kid is floating away. After time has played the slow, cruel trick of robbing him of his most important developmental years, the clock has started again, seemingly at breakneck speed, as if it means to devour him now.

Montalvo senses this, the shell Jawad has become, his defenselessness, from 7,000 miles away. “Take a victim, revictimize him, and dump him on a street corner, and you have a guppy trying to breathe,” he says.

The only way to solve it is to go back to Afghanistan. So that’s what he plans to do, invade this time to save the fatherless boy.

***

Kabul in the morning is cold, unsplintered sunlight and the ash taste of burning refuse blooming from somewhere beyond the walls of the guesthouse compound. It’s December, almost seven years to the day of Jawad’s arrest, and Montalvo emerges from his lair to the courtyard bulked in a gray hoodie, jeans, and a blue watch cap. He knows the risks of being here, outside the wire, heading into the slums south of the city. With each passing week, kidnappings and suicide bombings have been on the rise in the capital. Five U.N. employees have just been gunned down in a guesthouse attack.

Out on the street, the morning hustle is on, and there waiting by the curb is a pickup truck with shot suspension, an Afghan man at the wheel. Today, Montalvo hopes to do some recon — suss out Jawad’s living situation, observe the elements surrounding him, assess the risks. He’s come to reestablish a plan with Jawad, one that might include doctor visits, school, a job. A low cloud of dust sparkles over the boulevard. “Might as well draw a bull’s-eye on yourself in that thing,” says Montalvo, gesturing when a white Land Rover lumbers by, marked in black letters: U.N. On the sidewalks, the women cocooned in blue burkas seem to float with their heads tilted down against the backdrop of bullet-pocked walls.

Eventually the traffic thins; the city falls away. The land opens in rolling scree-covered hillocks of a gray-orange glow. Kabul occupies a narrow slot in a valley surrounded by the towering Hindu Kush mountains. Ten miles from the center of the city looms the old Darul-Aman Palace (translated as “abode of peace”). Having caught fire in the ’60s and then blown to smithereens by the warlords Hekmatyar and Dostum, who spent much of the ’90s destroying the city, the structure stands as its own misshapen symbol. Now, among its hollowed towers and crumbling walls, schizophrenics and heroin junkies skitter in the rubble. Even in broad daylight you can hear them howl.

The pocked dirt road leading into the slum of Chilsutoon runs along the Kabul River, which trickles in a logy flow in winter. A quarter mile along, a dimly etched figure in the dust appears, resolving into a young man, oddly fresh among the squalor. He wears a burgundy Kandahari hat with mirrored decorations, a brown sweater, black sandals, and a camel-colored blanket wrapped over his upper body for warmth. This is Mohammed Jawad. Since returning, he’s become something of a celebrity, recognized on the street by little kids and old people alike. On his wrist he wears an oversize black watch, an accoutrement of the moneyed, though he doesn’t seem to have any. He has thick black hair, close-set eyes, small ears, a wide face with handsome angles that breaks into a smile when he sees Montalvo. They embrace in the street warmly; then Jawad quickly leads him down an alley of caked mud, hemmed by rough earthen walls, running with open sewage, and littered with empty cigarette packs. He comes to a wooden door, pushes into the courtyard of the place he calls home — a concrete structure — then leads Montalvo up a set of stairs to a common room with red cushions and pillows on the floor.

Montalvo has taken pains to keep the time and day of his visit vague, just in case. Yet within ten minutes of arrival, a formal parade of men starts filing into the room. They wear turbans and Kandahari hats, too, beards, cloaks, scarves, and wool blankets draped over their shoulders. From earlier visits, Montalvo already knows Jawad’s uncles — whose names translate as Uncle Good Flower and Uncle Avenger (Jawad, as it turns out, translates as “generous person”) — and his maternal grandfather, an exquisite-looking old man with a wisp of gray beard and ghostly, cataracted eyes. And now comes Shirhan, the tribal leader, the prototype of nomad-warrior-mujahideen, accompanied by three or four boys who throw white candied almonds, a special greeting that causes Montalvo to flinch. (“Oh-okaaay,” he exclaims as one bounces off his biceps, then giggles.) Out comes a cloth that gets laid on the floor, and then a tray with plates and bowls. Green tea, crunchy corn. And the smells of the delicious Kabuli pilau with rice, carrots, and raisins, and hidden chunks of meat, tender and cinnamon-flavored. It’s all a gift from Jawad’s mother, unseen somewhere in the house.

As much as everyone in the room defers to Shirhan, and as much as the crowd huddles close around Jawad, their long-lost son, Montalvo the Marine is the honored guest, which brings another sort of pressure. In the past, Shirhan has asked him for little favors, to check up on a person or two, say, to see if they’ve ended up in Bagram, or in some prison beyond, something Montalvo’s not at all inclined to do. “Important not to get into horse-trading here,” he says. “In the end, we don’t know who any of these guys are.”

Montalvo and Jawad seem at ease with each other, and Montalvo is quick to joke with him. “You looking for a girl?” he says. “We need to find you a girl.” Is this even appropriate conversation for a devout Muslim? Jawad smiles at him — which absolves Montalvo of all the things he may represent for this crowd: like, first and foremost, America. Uncles Good Flower and Avenger sit on either side of their nephew, with contented expressions. In the melee of laughter and competing voices, in the full flush of goodwill, Shirhan leans over and whispers something to the translator, who repeats it to Montalvo. It sounds like: I can no longer guarantee your safety here. The translator repeats it in a low voice.

“Jesus,” mutters Montalvo. “Is this a kidnapping now?” Then, to Shirhan and his men: “Well, that’s our cue, sirs. It’s been nice.” He stands and authoritatively shakes all the hands, and tries to navigate the crowd out the door, down the narrow stairs, out into the alley with its open sewer, everything heightened by that little drip of fear, back out to the dirt road where the cars are supposedly waiting. But when he gets there — out in the sun — the cars are gone.

Montalvo fidgets at the idea of becoming the exact target he’d hoped to avoid being. The group stands like a herd of horses, Shirhan tapping out numbers on his cell phone with his thick fingers (which one of his murky contacts might he be calling?), Jawad sinking back into the protection of the alley (he seems ethereal, half gone, floating away), Montalvo scanning the road.

Finally, vehicles appear. Montalvo heaves a sigh of relief. “What a clusterfuck,” he says.

***

In the middle of Kabul, in a concrete villa behind high walls that houses the offices for an NGO called Children in Crisis, an Afghan therapist talks about Jawad’s fear. He was so full of fright when he first came home that they kept him on tranquilizers and sedatives. The therapist talks about his depression and his trouble concentrating and his mistrust of authority figures. Jawad regularly dodges his weekly appointments, he says, to the point where he no longer bothers to schedule them. When Montalvo hears this, he can barely suppress his concern, and a little fury, too, directed at the therapist. “He’s very fragile. He needs to be talking all the time about what happened,” he says, “sometimes a little, sometimes a lot.”

There’s also an Afghan doctor here and two caseworkers, all members of the team Montalvo has assembled to save the boy, who sits among them in the circle, following the conversation as if it’s all about someone who’s not there. Then suddenly his fingers flutter up to his temples, and his head drops. Montalvo addresses him in a big-brotherly tone, one kindly though gently admonishing. “They can’t help you if you don’t show up for your appointments, Jawad. So — why aren’t you showing up?”

Jawad understands — and can speak — more English than he allows after his time at Gitmo, but whenever asked a question, he leans forward, fingers steepled before his mouth, waiting for the translation, considering for a moment, quickly scanning the room (making flitting, almost nervous eye contact), and then speaking in Pashto, a pause belonging to someone who has learned to weigh his words, been scrubbed of anything impulsive or rambunctious or irrepressible.

“Because of the house problem,” Jawad says finally. (Jawad has made it clear in earlier phone calls to Montalvo that he fears the neighborhood in which he lives, wants a cot after seven years on one at Guantánamo, and dreams of a computer, a refrigerator, or taxi, but would first take a good stove that doesn’t leak smoke everywhere.)

Montalvo pushes again. “We’re gonna deal with the house,” he says. “But why aren’t you showing up for these appointments?”

Jawad steeples his fingers again, exhales. “Listen,” he says, gazing intently at Montalvo, “when I was in Guantánamo, the psychologists asked questions. ‘Do you like Arabs?’ ” — as it turns out, a common saying directed at disobedient children in Afghanistan invokes an Arab as the bogeyman — “And when I said, ‘No, they frighten me,’ then they moved me into the camp with Arabs. Everything I told them, they used against me.”

The other reason for skipping appointments, says Jawad, is that he doesn’t want to remember all that has happened to him. When he thinks about it — the memories of his incarceration — his head hurts so badly he sometimes has to lie down. Which is partly why he never seems to leave the house, has given up on a job or taking classes in hopes of becoming the doctor he dreams to be. “He does nothing right now,” declares Montalvo, turning back to the doctors. “This nothing is also a disease for him.”

And so the question of the moment becomes how to reanimate Jawad — until Jawad himself interrupts. “I have something to say,” he says, and the room stills. He then describes a recent evening when he woke to a knock at the door. His aunt had answered. From upstairs, Jawad heard murmuring. Two men, their faces covered, had demanded to see him. His aunt told them to leave at once. They left — but then returned on another night soon after, late, only to be turned away again. Clearly they were intent on making their shadowy presence known, but who were they? What did they want? And how long before they merely take what they want?

Jawad has no answers to these questions, only fear, a spindled pain in his head. “I just want to live in peace,” he says. He seems suddenly cranky. Clearly he’s been at it for too many hours. The perceived threat — the dark riders from some myth looking to devour him — discomposes him so much that he abruptly rises to leave the room. “When I’m scared, I read the Koran,” Jawad says. In his absence, the team members let their conjecture fly, presuming the men at the door that night to have been Taliban, or worse.

Montalvo wearily runs a hand over his face. He looks pale, a little sick, as if he’s just been punched in the gut. “Do you see what we’re up against here?” he says in disgust. “We think it’s over, but it’s just beginning.”

***

After the meeting, Montalvo tries to arrange the next day’s rendezvous. “I’m sorry to say this,” announces Jawad, “but I can’t be seen with you. There are people who think I’m a spy for the Americans.” Montalvo belies no anxiety, responds simply: “Okay, Jawad, but I’d like to see you a little while I’m here.” Then, when Jawad leaves with his uncles, Montalvo says, “I can’t tell what kind of shit he’s pulling now.”

For the next few days, Montalvo careens across the city from meeting to meeting, trying to rouse support, funds, a flicker of interest for Jawad. He meets with Afghanistan’s leading human-rights lawyer to solicit help. Then he powwows with a representative from UNICEF, a French woman named Christine, with whom he contemplates the idea, proposed by Afghan officials, of moving Jawad to England. When Karzai’s schedule proves impenetrable — Montalvo hopes to press him to make good on his initial promise of support — he solicits Sayed Hamed Gailani, the 79-year-old head of one of the country’s most influential families, a fabled mujahideen leader and now deputy speaker of the senate, who warmly receives the American. Over pomegranate juice and pastries, Montalvo states that his great fear is that now Jawad has become “distracted.”

“We are tremendously carried away by your human sentiments toward Jawad,” responds the old man. “You know, Jawad is an exceptional case for us. He is one of us, the best of us. When we were under Soviet occupation, his father gave his life for Afghanistan as a freedom fighter, leaving a widow and an orphan, so we feel a deep obligation. And yet his tribe, the Kuchis, have fought with the militants against the government. Those militants have made handsome offers to use him, and those who offer are not doing it for God but to expand their own ranks. So we must try to educate him and help as best we can.”

There’s a swirl of futility to these conversations, as if everyone is biding their time until Montalvo leaves. “I couldn’t agree more, Your Excellency,” he says, unwavering. “Someone has to take responsibility for him. But in the end, who will that be?”

***

Somewhere in the slums south of the city, Jawad is in his cell, sleeping, pacing, praying … Then, on the fourth day, in the week just before Christmas, he finally rings Montalvo’s phone. He thinks it best to meet at Montalvo’s guesthouse — the one across from the Iranian embassy, with its black-masked guards — far from the prying eyes of his Chilsutoon neighbors. He arrives with Uncle Good Flower and Uncle Avenger. They park in the street, then come through two checkpoints, past the guards armed with Uzis, who vaguely pat the three men down, after which they enter the inner sanctum. Before the war, before the little compound had been bought by a BBC cameraman and decorated with old Winchesters and vintage movie posters, Osama bin Laden had installed his fourth wife, his alleged favorite, here. Now it has a lively bar and good pizza, packed with the odd lot of Western security people and aid workers, journalists, and contractors.

Thus, Jawad’s entrance is met by some uneasy stares. He seems relieved to retreat to Montalvo’s room. “I’ve been missing you, Jawad,” booms Montalvo, walking across the courtyard with an arm slung over his shoulders. “Why you been hiding out on me?”

In the room, Montalvo provides bullet-pointed updates of his conversations and negotiations of the past few days. Jawad sits and listens, but it’s clear he’s losing patience. His leg bounces up and down; his fingers butterfly up to his temples and down again. He tells Montalvo that he’d like all the case files so that he can review them, to remember all those things that happened to him back there, in that humid cage. And although he can’t really read English, he keeps asking for them, over and over. “Do you remember the cameras they had at Guantánamo, the ones in the corners of the room every time we met?” he says. “I want all that film, too.” As Montalvo tries to explain how security cameras work — that it’s doubtful that any of the video at Guantánamo still exists — there sits Jawad, the shattered mirror, grasping to put the pieces back in order to catch sight of himself.

“I didn’t want to ask you this when you were at the house,” he says now to Montalvo, “but why are you here?”

Montalvo absorbs the translation, blinks, and — rather than replay the twenty hours in coach it has taken to get “here,” or his separation again from his family during Christmas; instead of relating the conversation he had with his eldest son (“This isn’t fair,” he’d said. “Why do you keep leaving us to go see that boy?”), not to mention the danger involved every time he sticks his bristly head outside the gate –he resettles his big frame on the seat. He betrays no emotion, replying calmly, “Look, Jawad, I came to see you because I’m worried about you –  and I’m here to get you squared away.”

“What about the case?” shoots Jawad.

There’s been some preliminary talk about filing a lawsuit against the U.S. government — something Jawad is very keen to do with Montalvo’s support, though Montalvo knows “the shitstorm” a case like this will cause back home and the daunting odds of it going forward in the first place.

“If this is something you really want,” says Montalvo, “then we’re going to have to go through everything that happened to you again. Is that something you think you can do?”

“I want to know when somebody’s going to apologize to me for what they did,” Jawad says. “I’ve already told you all about what happened. Over and over.” He’s touching different parts of his body — his shoulder, his stomach, as if remembering. “Why do I have to go through all of that again?”

***

In a brief moment of downtime, Montalvo has done a little Christmas shopping, buying a rug for his wife and some slingshots for the boys. He returns to the marketplace near the blue-domed mosque, Pul-e Khishti, walking in Jawad’s footsteps yet again, to eat lunch in the restaurant with the blue awning where all the stares from blanket-wrapped men make him skittish again. Is there a boy out there waiting to lob a grenade through the door? Why does he tempt fate like this?

Perhaps it’s something unconscious, a felt affinity, the proximity to one’s possible annihilation, that renews one’s commitment to his ideals. Being here this time, too, has triggered that unconscious need to do something for those who can’t do for themselves. He’s made a series of calls to embassies and orphanages to try to adopt an Afghan girl — a plan he hasn’t even cleared with his wife — only to find that being American means he can’t. He registers his disappointment (“Now what will her life be like?”), then carries on.

At the guesthouse, Montalvo and Jawad meet one last time, ensconced in Montalvo’s room, with time almost run out. It has dawned on Montalvo that, in the glacial, corrupt flow of Afghanistan, he isn’t going to fix Jawad with one, or two, or maybe even three visits. This is going to be a life project, an exorcism of anger. One thing Jawad has taken from Guantánamo is a willingness to speak his mind. On the day of his return to Afghanistan, just after being freed, he was filmed by Reuters forcefully excoriating the U.S. military for the way it was treating Gitmo detainees, in particular the way it had disrespected Islam. Montalvo had stood off to the side listening to him like that, on the verge of proselytizing. Afterward, he cautioned Jawad to stop “talking smack.” What he didn’t tell him then was that when the devout young man spoke with that underlit fury, he seemed to all the world like the very zealot the Americans said he was.

What flickers on their faces now, however, as they lean over the table, is a gauzy weariness. They both need each other, that much seems true, but why? As proof that it’s not been a dream? Unlikely as this fragile coexistence remains, they affirm for each other all that is absurd and perverse about what has indeed actually transpired — from September 11 to Gitmo to the war on terror to all those mistakenly tortured to this journey back to find some unfindable reconciliation — that it’s all real. Somewhere inside, Jawad knows that he can’t put himself back together — or won’t  — just as Montalvo understands he can never put back together his own shattered sense of American promise and justice. How do you mend a net infinitely rent?

Montalvo asks Jawad to stay and eat lunch with him, but Jawad insists that he has to be at the mosque for prayer, and keeps glancing at his oversize watch. Home and mosque, those are the only two places he feels comfortable. He fiddles with his water glass, smooths his vest, and stands to leave, when a huge blast sounds somewhere nearby, shaking the room, rattling the lights, trembling the water in the glass.

“Damn — that didn’t sound good,” says Montalvo.

From the courtyard a huge bloom of smoke can be seen, rising up through the air roughly a quarter mile away. A suicide bombing, in front of another guesthouse. Just like that, eight are dead, forty wounded. Several buildings have been crushed. Sirens fill the city, which comes to a standstill. Montalvo watches the smoke rise higher in the sky. “Looks like you’re having lunch with us, Jawad,” he says.

In the guesthouse restaurant they sit at a long table, suffering the stares of the Western clientele. Jawad eats French fries, smiles at Montalvo, and is the perfect polite guest, but his eyes keep skittering around the room, then down to his watch. Finally he sits with his hands folded in his lap. Soon he will exit through the barriers and checkpoints and disappear into the smoky void of Kabul — the city acting again as if nothing has happened, the sparkled dust clouds over the boulevards, the menace in every slow-moving vehicle, the cleanup operation of body parts and bone bits, viscera and glass fragments, nearing completion for the day.

Mohammed Jawad will soon go back to his mother, who’ll be waiting, preparing dinner — but also back to his own fate again, to some deeper nothingness. He’ll walk out under that plume of acrid smoke, where anything, any act of violence or kidnap, is possible. In the months to come, he’ll be briefly rearrested by the Afghan police, held passingly by the U.S. military, and finally flee to Pakistan, in order to “live in peace,” as he’ll tell Montalvo on the phone, in tribal lands where he hopes no one can reach him, not even his uncles — who, it turns out, are not who he first thought they were.

But now he steals a glance at Montalvo, who’s laughing at a joke. Others in the restaurant — the contractors and war profiteers and hangers-on — look up again from their meals, register the noise, the image of a burly American consorting with what appears to be the enemy, and then go back to stabbing their food, heads down, in low whispers. Montalvo will never be able to explain it to them, or anyone. Not even his kids. This boy needs him. It’s that simple. If Jawad is unhappy to be missing prayer, he doesn’t show it. If Montalvo harbors his own discontent, he doesn’t show it, either. They’re together, having both waited much longer than this to be free.

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

Ghailani faces 20 years to life as a result of this decision, and critics of the trial, who oppose criminal trials for terrorists on an ideological basis, mistakenly concluding that terrorists are not criminals, but are warriors in the Bush administration’s “War on Terror,” are incapable of realizing that they are fortunate that Ghailani could be prosecuted at all, given that he was held in a secret CIA prison for two years and two months following his capture in Pakistan in July 2004, and that, for at least some of that time, was subjected to torture.

These critics railed against Judge Lewis Kaplan’s decision, last month, to exclude the government’s star witness because it appeared that his name had only been revealed by Ghailani while he was being tortured, but even though this did not derail the trial, or prevent Ghailani from being successfully prosecuted, they now complain that the trial was a disaster and that he should have been tried  by Military Commission at Guantánamo.

Below, I cross-post an incisive op-ed published in yesterday’s New York Times by Morris Davis, the director of the Crimes of War Project. Davis is a former Air Force colonel, and was the chief prosecutor for the Military Commissions at Guantánamo from 2005 to 2007, when, crucially, he resigned after he was put in a chain of command under the Pentagon’s Chief Counsel, William J. Haynes II (part of Dick Cheney’s inner circle of advisors on the “War on Terror”) who wanted information derived through torture to be used in the Commissions, in spite of Davis’ implacable opposition to its use.

Davis points out that there is no guarantee that a judge in the Commissions would have decided to overlook the use of torture, given that information derived through the use of torture is prohibited in the Commissions, and the only difference between the Commissions and federal court trials is that judges in the former have some leeway in deciding whether to accept information that may have involved some sort of coercion.

Crucially, his conclusions — and my own — indicate that critics of the verdict in the Ghailani trial want the Commissions to be a punitive fantasy land, as originally envisaged by Dick Cheney when he first resurrected them in November 2001, where the use of torture is acceptable — and may, indeed, be positively encouraged — and where military judges and juries, like automata, endorse without question the case put forward by the prosecution, even though, as Davis points out, the reality of the Commissions is very different, and Ghailani will almost certainly serve longer in prison than four out of the five prisoners prosecuted in the Commissions.

A Terrorist Gets What He Deserves
By Morris Davis, New York Times, November 18, 2010

Critics of President Obama’s decision to prosecute Guantánamo Bay detainees in federal courts have seized on the verdict in the Ahmed Ghailani case as proof that federal trials are a disastrous failure. After the jury on Wednesday found Mr. Ghailani guilty of only one charge in the 1998 African embassy bombings, Mitch McConnell, the Republican leader in the Senate, called on the administration to “admit it was wrong and assure us just as confidently that terrorists will be tried from now on in the military commission system.”

The verdict — in which Mr. Ghailani was found guilty of conspiring to blow up United States government buildings and not guilty on 284 other counts — came as a surprise to many, but the outcome does not justify allowing political rhetoric like Senator McConnell’s to trump reality.

True, prosecutors suffered a major setback when Judge Lewis Kaplan of the Federal District Court in Manhattan refused to permit the testimony of the only witness who could connect Mr. Ghailani to the explosives used in the bombings. The judge did so because Mr. Ghailani claimed that he revealed the identity of this witness after being tortured by the CIA. The prosecution did not contest his claim, arguing instead that the identificationof this “giant witness for the government” was only remotely linked to Mr. Ghailani’s interrogation.

Judge Kaplan disagreed, saying that Americans cannot afford to let fear “overcome principles upon which our nation rests.” He said that, given the same circumstances, a military commission judge might have reached the same conclusion and barred the testimony.

Many have scoffed at this claim. Representative Peter King, a New York Republican, insists that Judge Kaplan “doomed” the case. Yet a look at the record shows that Judge Kaplan’s assessment of what a military commission judge might have decided was well founded.

Consider Mohammed Jawad, an Afghan teenager who was charged with attempted murder for throwing a grenade at an American vehicle in Kabul in 2002. In 2008 a military judge, Col. Stephen Henley, suppressed incriminating statements Mr. Jawad had made after he was beaten and his family threatened while he was in Afghan custody. The military commission charges were later dropped and last year the United States sent Mr. Jawad home to Afghanistan.

We don’t know for certain whether a military judge would have reached the same conclusion as Judge Kaplan, but given the Jawad precedent it seems very possible. Those who claim to know that the government would have gotten a more favorable ruling in a military commission are ignoring the record.

In any case, Mr. Ghailani now faces a sentence of 20 years to life. Even if he gets the minimum, his sentence will be greater than those of four of the five detainees so far convicted in military commissions. Only one defendant, Ali Hamza al-Bahlul, has been sentenced to life, and this was after he boycotted his tribunal and presented no defense.

Of the four detainees who participated in their military commissions, Omar Khadr, a Canadian citizen who was 15 when arrested, is serving the longest sentence after pleading guilty to murder. Yet he will serve no more than eight years behind bars, less than half of Mr. Ghailani’s minimum incarceration. Salim Hamdan, Osama bin Laden’s former driver, was sentenced to five and half years in 2008 but given credit for time served; five months later he was free. There is no reason to assume that a military commission sentence will be more severe than one from a federal court.

In addition, Mr. Ghailani may well serve his sentence at the “supermax” federal prison in Florence, Colo., where others convicted in the embassy bombings are confined. If so, he will spend more time in solitary and enjoy fewer privileges than those under the most restrictive measures at Guantánamo.

President Obama is in a no-win situation when it comes to trying detainees — any forum he chooses will set off critics on one side of the debate or the other. I hope he pauses to reflect on what he said at the National Archives in May 2009: “Some have derided our federal courts as incapable of handling the trials of terrorists. They are wrong. Our courts and our juries, our citizens, are tough enough to convict terrorists.”

The Ghailani trial delivered justice. It did so safely and securely, while upholding the values that have defined America. Now Mr. Obama should stand up to the fear-mongers who want to take us back to the wrong side of history.

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.

One of these instances of shameful political maneuvering arose last week, when the Wall Street Journal published an article explaining that “Republican staffers on the Senate Intelligence Committee recently traveled to Spain, Germany, France and other countries to dig for evidence of lax oversight of former detainees transferred there.”

The Journal described the trip as “an indicator of the next phase of the fight” over Guantánamo, focused on whether the release of prisoners to their home countries, or to third countries if they face the risk of torture or other ill-treatment in their home countries, “can continue at the same pace” that it has over the last 21 months, with the release of 64 men under President Obama.

This news was shocking for two particular reasons, both of which reveal deep cynicism on the part of the two men responsible for the trip: Sen. Christopher Bond of Missouri, the senior Republican on the Senate Intelligence Committee, who has stated the administration should “start prioritizing the safety and security of the American people over the so-called rights of these terrorists,” and Sen. Jeff Sessions of Alabama, the senior Republican on the Judiciary Committee, who has complained about what he has called the “administration’s politicized rush to shut down Gitmo and release dangerous inmates,” and who has apparently written to Attorney General Eric Holder “seeking documents related to the decisions to transfer detainees.”

The first reason for shock at the latest attempt by Sens. Bond and Sessions to undermine efforts to close Guantánamo is that all of the transfers from the prison were approved by the Guantánamo Review Task Force, an interagency body established by President Obama to review the remaining Guantánamo cases. The Task Force was led by Matthew G. Olsen, a lawyer with the Department of Justice for 12 years (who, in other words, had served eight years under President Bush), and it consisted of around 60 lawyers, analysts and agents, including representatives from the intelligence agencies (in other words, a cross-section of career officials who did not obviously have a radical left-wing ax to grind).

In addition, when the Task Force delivered its report in January, its members presented an extremely cautious appraisal, concluding that, of the 174 men still held, 35 should face trials, 48 should continue to be held indefinitely without charge or trial (which should please Sens. Bond and Sessions as much as it has enraged opponents of Guantánamo), and the remainder — around 90 men at present — were eligible for transfer.

However, no sooner had the Task Force issued its findings than the President announced a moratorium on the transfer of any prisoners to Yemen, following hysterical overreaction to the news that the failed Christmas Day plane bomber, Umar Farouk Abdulmutallab, a Nigerian, had apparently been recruited in Yemen. As 58 of the men approved for transfer were Yemenis, and there is no sign of when, if ever, the President will lift the moratorium, this means that Sens. Bond and Sessions are fretting about the release of just 32 men — all of whom, to reiterate, have been approved for transfer by a Task Force of cautious career officials.

The second reason for shock at the outrage manufactured by Sens. Bond and Sessions — along with the mention of Sessions’ letter to Attorney General Holder “seeking documents related to the decisions to transfer detainees” — is that no prisoner can actually be released from Guantánamo without the approval of Congress in the first place.

Last October, Lt. Col. David Frakt, a law professor and the former military defense attorney for two Guantánamo prisoners, pointed out that, in summer 2009, Congress “passed a law that requires the Administration to give Congress 15 days notice before releasing anyone from Guantánamo.” Lt. Col. Frakt explained that this is what had happened to his client, Mohamed Jawad, an Afghan, and a former child prisoner, who had won his habeas corpus petition in July, but had not been released from Guantánamo until Congress had reviewed his case. As he also 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.

Lt. Col. Frakt added that this, coupled with a “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,” revealed “the extent of Congressional depravity on any issues related to detainees.”

However, although he was undoubtedly correct to assert that Congress had no authority to interfere in the cases of prisoners determined by the Executive and the Judiciary to be unlawfully held, he conceded that, “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.”

In other words, Congress already has extensive powers not only to review a prisoner’s case before release for 15 days, but also, if it wishes, to raise questions about the expenditure involved. This realization, coupled with the fact that the likes of Sens. Bond and Sessions have already succeeded in stopping the release of any prisoners to Yemen, thoroughly undermines the credibility of any attempt by either Senator to turn the release of Guantánamo prisoners to Europe and other countries into an opportunistic new campaign against the closure of the prison.

Despite the Senators’ best efforts to stir up dissent on the deceptive basis that they have no say over the administration’s transfer policy — and the Wall Street Journal’s willing part in promoting these lies — the Republican staffers were unable to pinpoint any specific problems they encountered in their visit to Europe, where the prisoners released have either had their release approved by federal court judges (through their habeas corpus petitions), or by the Guantánamo Review Task Force.

Lamely, they “declined to say whether the delegation uncovered any evidence of detainees being in touch with suspected al-Qaeda affiliates” — because there clearly was no evidence of anything of the kind – and, “[w]ithout offering details,” claimed that “some countries’ monitoring of detainees differed from what the administration has described.”

This was countered by an Obama administration official “involved in overseeing the Guantánamo transfers,” who stated that “US security officials receive regular reports from countries hosting transferred detainees,” and explained that, although the reports “include details of behavioral problems by some detainees, some of whom are experiencing culture shock,” there was absolutely no evidence that any of the men were “dangerous,” and none “has been confirmed or suspected of re-engaging” with terror groups.

This denial of the scaremongering of Sens. Bond and Sessions was only introduced towards the end of the article, but it should have been sufficient to silence the Senators. Elsewhere, however, it was made clear that they were also obsessed with the propaganda that regularly emerges from the Pentagon regarding the supposed “recidivism” of released prisoners, which, on its last outing, in January this year, involved an outrageous claim that 20 percent of the prisoners released under President Bush — at least 110 men — had “returned to the fight.”

I have previously dealt with the shocking unreliability of this figure and its obvious genesis as black propaganda aimed at keeping Guantánamo open — citing thorough research by the Seton Hall Law School and the New America Foundation, refuting the Pentagon’s claims — but even on this point the Republican critics were unable to establish why, as the Journal put it, “Mr. Obama should abandon the release policy in light of that figure,” for the simple reason that, of the 66 men released by Obama, only one, an Afghan named Abdul Hafiz, released in December 2009, has allegedly “returned to the fight,” reportedly joining the Taliban in Afghanistan.

With no case whatsoever, and lies and deceit aplenty, Sens. Bond and Sessions should cease their negative campaigning, stop wasting tax-payers’ money on cynical jaunts to Europe, accept that Obama’s release policy is deeply cautious, and start answering some more difficult questions instead, such as why they think it is appropriate to suspend the release of 58 men to Yemen, approved for transfer by the cautious officials of the President’s Task Force. If they were capable of thinking straight, they would realize that all that does is inflame anti-American sentiment in Yemen, where the entire population has, essentially, been accused of being terrorist sympathizers.

Note: Sen. Kit Bond retired at the 2010 mid-term elections. The new Senator for Missouri is Roy Blunt, who takes over from Bond on January 3, 2011.

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

As published exclusively on the website of the Future of Freedom Foundation. Cross-posted on The Public Record, Cageprisoners, Uruknet and Free Thought Manifesto.

In that article, written while Khadr was enduring interminable pre-trial hearings for a planned trial by Military Commission under the Bush administration, I analyzed an important, and almost completely overlooked document regarding the treatment of juvenile prisoners at Guantánamo — those under 18 at the time their alleged crime took place.

That document, “Recommended Course of Action for Reception and Detention of Individuals Under 18 Years of Age” (PDF), prepared for the Pentagon by four doctors at Guantánamo, was dated January 14, 2003, three months after Khadr arrived at Guantánamo from Bagram, and just three weeks after the Bush administration ratified the UN Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflict. The Optional Protocol includes the agreement that all States Parties who ratify the Protocol “[r]ecogniz[e] the special needs of those children who are particularly vulnerable to recruitment or use in hostilities,” and are “[c]onvinced of the need [for] the physical and psychosocial rehabilitation and social reintegration of children who are victims of armed conflict.”

Compare this with my explanation of the doctors’ report two years ago:

The doctors’ document began by noting, “All efforts should be made to keep those in the pediatric age range [those under 18] from undergoing detention at Guantánamo Bay, Cuba,” and pointing out, “People less than age 18 years are emotionally, psychologically, and physically dynamic and complex. If it is determined that they must be detained, then all aspects of their transport, in-processing, and detainment should be specific for this age group.” They added, as a stark warning, “Exposure of pediatric detainees to adult detainees will have a high likelihood of producing physical, emotional, and psychological damage to the pediatric detainee. As such, all activities of the pediatric detainee, prior to and including detention, should be isolated by sight and sound from the adult population of detainees.”

As a result of the US ratification of the Optional Protocol, and the doctors’ recommendations, Khadr should, therefore, have been rehabilitated as a juvenile (having been influenced by an adult — in his case, his father, a reported fundraiser for Osama bin Laden, who had taken him to Afghanistan as a child), or, at the very least, held separately from the adult population at Guantánamo, and provided with education and psychological care.

Of course, the Bush administration ignored its international obligations, and the advice of its own doctors, choosing instead to subject Khadr — and the majority of the 21 other confirmed juvenile prisoners at Guantánamo — to experimental detention and interrogation techniques, with no distinction made between adult and juvenile prisoners.

Moreover, in May 2003, when the story broke that child prisoners were being held at Guantánamo, defense secretary Donald Rumsfeld declared that they were “not children,” and the administration’s disdain for the rights of juvenile prisoners was such that Khadr and another juvenile prisoner, Mohamed Jawad, were put forward for trial by Military Commission. These special courts, conceived for trying dubious “war crimes,” were initially intended to accept evidence obtained through the use of torture, and to deliver the death penalty after trials that were noticeably lacking in any recognizable form of due process or adherence to established military law.

Khadr was charged in the first incarnation of the Commissions, ruled illegal by the Supreme Court in June 2006, but after Congress brought them back to life in the fall of 2006 he was charged for a second time, and was followed, soon after, by Jawad, who may have been no more than 14 years old when he was seized after a grenade attack in Kabul in December 2002.

When President Obama came to power, one of his first acts was to suspend the Commissions, but by May 2009 he had softened his opposition to the much-criticized trial system, and last summer the Obama administration worked with Congress to revive them yet again. In the meantime, Jawad was released, after his lawyers established that he had produced a false confession to Afghan forces on the day of his capture, while being threatened with torture, but last November, when Attorney General Eric Holder announced that five prisoners would face trials by Military Commission, Khadr was one of the first five names put forward.

If the Bush administration didn’t care that he was a child on capture, the Obama administration was not so sure. In leaks to major media outlets throughout this year, officials complained about the negative publicity surrounding the first planned trial of a juvenile for war crimes since the Second World War, culminating, in August, with officials whining to the New York Times that complaints about Khadr’s trial were “undermining their broader effort to showcase reforms that they say have made military commissions fair and just.”

This latter claim was deeply suspicious, as Lt. Col. David Frakt, defense attorney for Mohamed Jawad and another Guantánamo prisoner, Ali Hamza al-Bahlul, explained in April this year that, although Khadr is charged with murder in violation of the law of war for allegedly throwing a hand grenade that killed a US Delta Force soldier, “there is no evidence that he violated the law of war in doing so.”

Lt. Col. Frakt proceeded to explain how first the Bush administration, then Congress, and then the Obama administration had confused lawful and unlawful targets during wartime, and I explained the result of the administration’s hypocrisy and confusion in an article at the time of the officials’ complaint to the New York Times:

Given that the Obama administration chose to ignore both of these criticisms in proceeding with Khadr’s trial, the complaint aired to the Times by anonymous officials — that “No one intended the Khadr case to be the first trial under the revamped system,” as Charlie Savage described it — is frankly reprehensible, as it involves the explicit recognition that the entire trial is unacceptable, and would only be acceptable if it could have been hidden behind the coat tails of a more prominent case — one, for example, that involved recognizable allegations of terrorism.

The outcome, predictably, was a feverish attempt to cut a deal to prevent a full-blown trial from going ahead, reducing Khadr to the role of a pawn in a face-saving game of extraordinary cynicism. Attempts to secure a plea deal were first made in summer, which were sabotaged by Khadr, and were then submerged after his defense lawyer was taken ill and proceedings were suspended, but as today’s trial date approached, the horse-trading resumed with a vengeance.

According to media reports over the last few days, Khadr was offered a plea deal giving him an eight-year sentence (one more year at Guantánamo, plus seven years to be served in Canada) in exchange for a confession to some or all of the charge against him, but as Dennis Edney, one of his Canadian civilian lawyers, explained on Sunday, “All I can tell you is there’s [a] trial tomorrow, and there’s no deal in place as of this particular moment.” Edney added, “Consider the circumstances he’s in: There’s not much choice Omar Khadr has. He either pleads guilty to avoid trial, or he goes to trial, and the trial is an unfair process.”

As Michelle Shephard reported in the Toronto Star, Edney also “hinted that Khadr was still conflicted,” stating, “He has a tough time rationalizing … why he is singled out to be on trial Monday. Where are the rest of those so-called bad guys?”

Edney did not speak specifically about Canada’s role, although several news outlets reported that, on Thursday, Secretary of State Hillary Clinton phoned Lawrence Cannon, the Canadian Foreign Affairs Minister, to talk about the Khadr case, and, allegedly, “to press the Conservative government into repatriating” Khadr. Cannon, however, remained tight-lipped about the conversation, reflecting another aspect of Khadr’s manipulation as a pawn, in this case by the government of his home country.

Despite signing the Optional Protocol to the UN Convention on the Rights of the Child on the involvement of children in armed conflict on July 7, 2000, and advocating on the world stage for the rights of child soldiers from other countries, the Canadian government persistently refused to call for his repatriation, even though Canada’s Supreme Court had repeatedly stated that the government acted illegally in sending interrogators to interview Khadr at Guantánamo in 2003, and violated his rights under Canadian law.

With this track record, it would have been unsurprising if Khadr was unwilling to trust his home government even to accept the terms of a plea deal, and this must, of course, have been a deeply disturbing position in which to find himself. As a final reminder of hypocrisy, however, it is difficult to beat a comment about child soldiers made just six weeks ago by Ambassador Susan E. Rice, the US Permanent Representative to the United Nations, at a Security Council debate on Somalia, which was picked up on by former US interrogator Matthew Alexander in an article in the Huffington Post. Ambassador Rice stated:

The United States strongly condemns the use of children … to pursue violent agendas. We call upon all parties to immediately release all children within their ranks, to halt child recruitment, and to provide for the proper reintegration into civilian life of former child soldiers.

No wonder Omar Khadr, the victim of rank hypocrisy from both the US and the Canadian governments, feels “singled out,” as that is exactly what has happened to him, and the plea deal announced today does nothing to indicate that justice has actually been served. Although the exact details of the deal have not yet been revealed, it seems clear that one thing they will involve is Khadr’s agreement that he will not appeal the terms of his confession, leaving unchallenged a number of otherwise legally questionable charges.

As the Globe and Mail explained, these included his acceptance of the charge that “he was an ‘alien, unprivileged, enemy belligerent,’ unqualified therefore to shoot back or engage in combat hostilities with US or other coalition forces,” and that he was guilty of “murder in violation of the laws of war,” both of which are charges that should shame the United States.

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

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

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

My Debate with Marc Thiessen
By David Frakt, The Huffington Post, September 18, 2010

Earlier this week, I debated General Michael Hayden (USAF, retired), former director of both the CIA and NSA, and Marc Thiessen, former Bush speechwriter and current columnist for the Washington Post, as part of the “Intelligence Squared” Debate series from New York. I was joined by Stephen Jones, an accomplished attorney best known for defending Timothy McVeigh, the Oklahoma City Bomber. The specific proposition debated was whether terrorists (or more accurately suspected terrorists) should be treated as enemy combatants, as opposed to handling within the traditional criminal justice system, but the debate covered a wide range of issues in the conduct of the war on terrorism. According to the audience, Stephen and I won the debate handily. For those interested in seeing or hearing the debate, it will be televised on the Bloomberg News Channel starting Monday, and it will also be available soon as a podcast from NPR, or you can watch the unedited version of the debate here.

For the most part, Thiessen and Hayden voiced the usual Bush Administration talking points. Thiessen is the author of the bestselling book Courting Disaster: How the CIA Kept America Safe and How Barack Obama Is Inviting the Next Attack, which Jane Mayer of the New Yorker described as the “unofficial Bible of torture apologists.” Thiessen’s basic argument was that the detention and interrogation practices of the prior administration were effective, as proven by the fact that there have been no successful terrorist attacks domestically since 9/11. Thiessen failed to note the multiple successful terrorist attacks on our allies, such as the London and Madrid bombings, and the constant assaults on our troops in Afghanistan and Iraq, where 5700 Americans have been killed and 39000 injured. He also continues to assert that the US didn’t torture anybody, that all the interrogation methods we used were legal, and that life for detainees at Guantánamo is a picnic:

What do you think these detainees in Guantánamo do all day? They’re not busting rocks. They’re not making license plates. They sleep. They read the Koran. They play football. They play soccer. They eat whenever they want, sleep whenever they want.

General Hayden, for his part, kept repeating that the law of armed conflict allows enemy combatants to be removed from the battlefield and detained for the duration of the conflict, a point that was not disputed. Thiessen and Hayden didn’t score many points, but they did make one point that I wished that I had more time to respond to, and that relates to the right of habeas corpus. In the summer of 2008, in Boumediene v. Bush, the Supreme Court ruled that, despite Congress’ and the Administration’s efforts to deny it, Guantánamo detainees did have the right to petition for a writ of habeas corpus. Thiessen and Hayden still just don’t understand why we should be giving “terrorists” the right to challenge the basis for their detention in federal court. In [Thiessen’s] words, “Since the Revolutionary War, the United States has held over 5 million enemy combatants. Until the war on terror, not one of them was given habeas corpus rights to petition their detention.” Hayden made a similar comment, lamenting that we “give them rights that 6 million other prisoners of war we’ve held as a nation have not had.”

According to Thiessen, “terrorists” “violate all of the rules of war” by targeting civilians and by failing to wear uniforms or distinctive insignia. The way Thiessen sees it, by failing to comply with the law of war these “terrorists” get an advantage, getting extra legal rights that regular POWs don’t get, which he sees as fundamentally unfair and deeply offensive. Since there is a sort of superficial appeal to this argument, I decided to respond to it in greater depth than the format of the debate allowed me to do.

First, it must be emphasized that detainees are not POWs, or at least the US has not afforded them that status, nor have they been treated in accordance with the Geneva Prisoner of War Convention. So, in considering the claim that Guantánamo detainees are getting extra unprecedented rights, we should keep in mind that POWs would receive an extensive array of rights under the Geneva Conventions which the detainees at Guantánamo don’t. Indeed, the original position of the Bush Administration, announced by President Bush in February 2002 [PDF], was that even Geneva Convention Common Article 3, which sets a minimum baseline of humane treatment for all persons detained in armed conflict, did not apply to those persons detained at Guantánamo. It was only after the Supreme Court ruled in Hamdan v. Rumsfeld in June 2006 that Common Article 3 did apply, that the Bush Administration was forced to accept that humane treatment was legally required. So, even accepting that Guantánamo detainees are getting one right not previously afforded to traditional prisoners of war, on balance, it is far better to be a POW than a detainee. But the right to habeas corpus, to judicial review of the basis for detention, is a significant one. Is it fair that detainees are getting even this one extra right, or is it an affront to both American history and the laws of war, as Thiessen and Hayden believe? In my view, the nature of this particular conflict makes judicial oversight of the detention process an absolute necessity.

All of our major armed conflicts in the past have been against sovereign states, or at least against regular armies, and were confined to specific geographic areas. It was clear who the enemy was because of the uniform they wore, their nationality and language, and because of where they were found. There was little likelihood of error.

But the “Global War on Terror” is quite different. Our enemies are non-state actors who wear no uniforms and blend in with the civilian population; don’t carry ID cards indicating membership in al-Qaeda. Unlike in other conflicts, many Guantánamo detainees were not captured on the battlefield during active combat situations. Rather, most were turned in for bounty by locals of unknown reliability, captured at the border trying to leave Afghanistan, or arrested in law enforcement style raids based on intelligence tips.

Precisely because the enemy was not readily identifiable by uniform, insignia, identification card, or nationality, our intelligence personnel and armed forces often, understandably, erred on the side of caution, especially when it came to foreigners found in Afghanistan, choosing to detain first and ask questions later. Although there were any number of legitimate reasons foreigners might be visiting Afghanistan, because al-Qaeda was made up primarily of non-Afghans, any suspicious Muslim foreigner without an airtight explanation for his presence in the country and perfect documentation was liable to be detained.

Both Thiessen and Hayden acknowledged during the debate that the detention process was not perfect and did not require rigid proof that an individual was an enemy combatant, but rather merely a “reasonable belief.”

As General Hayden stated during the debate:

If they are enemy combatants … I have the right to hold them, consistent with the laws of armed conflict because they are a danger to you. The Geneva Convention doesn’t require me to prove that they’re a criminal. I simply have to have a reasonable belief that they’re enemy combatants.

Asked by an audience member what an acceptable error rate would be, General Hayden responded,

We do the very best we can … I hope the audience is not demanding 100 percent certitude and 100 percent perfection before your intelligence services or your military services can act in your defense.

Thiessen echoed Hayden in his explanation of the process of detaining enemy combatants:

You have to have a reasonable belief that these people were captured in the war and that they are members of al-Qaeda or the Taliban and were conducting operations against us … Were there some people that were sent there by accident, that we made a mistake? … There’s some mistakes made, absolutely.

Although both Thiessen and Hayden acknowledged that innocent people might have been rounded up, they also stressed that there were procedures in place, namely Combatant Status Review Tribunals (CSRTs), to review the basis for detention. According to Hayden, we “ensure through this process, due process, that the individual you have is the individual you believe them to be.” Thiessen explained the CSRTs this way: “we had a process in Guantanamo that was set up to review the evidence against them and to make sure that people who … didn’t belong there were sent back.” Both debaters failed to mention that the Bush Administration’s initial position was that the detainees were not entitled to any form of review of their detention and that the CSRTs were only set up in July 2004, more than two and a half years after Guantánamo opened, in response to the Supreme Court’s ruling in Hamdi v. Rumsfeld [the Supreme Court ruling in June 2004, which, with Rasul v. Bush, gave habeas rights to the Guantánamo prisoners].

More to the point, as the Supreme Court has determined, the rules and procedures which apply in CSRTs are hopelessly inadequate for the critical function they serve. These tribunals gave a presumption of reliability to the government’s evidence, admitted unlimited hearsay, and provided no meaningful opportunity for a detainee to call witnesses or introduce exculpatory evidence. Perhaps their most fatal flaw was the lack of legal representation for detainees at such hearings, which the Department of Defense curiously labeled “non-adversarial” proceedings. Thus, according to the majority opinion in Boumediene [PDF], “even when all the parties involved in this process act with diligence and in good faith, there is considerable risk of error in the tribunal’s findings of fact.”

Another difference between the current conflict and our wars of the past is that wars against sovereign nations have a definable endpoint, when one side surrenders or is defeated and a treaty or armistice is signed. The war against al-Qaeda and the Taliban has already gone on for 8 years, and there is no clear end in sight. The terrorist threat certainly has not abated since 9/11, and arguably has multiplied. The jihadists see the fight as a multi-generational struggle, and there is little likelihood that Osama bin Laden, or his successor, will ever make peace with the US. Thus, if detainees may be held until the end of the conflict, they could be in for a very long stay. This might be acceptable for a genuine terrorist, but for a person wrongly detained, it is wholly unacceptable. As Justice Kennedy put it, “given that the consequence of error may be detention of persons for the duration of hostilities that may last a generation or more, this is a risk too significant to ignore.” In affirming the right of Guantánamo detainees to habeas corpus, the Court was responding to the concern that without the format of an adversarial trial with reasonable evidentiary safeguards in front of a neutral fact-finder, an innocent detainee might never leave Guantánamo.

The Court’s wisdom has been borne out in the subsequent habeas litigation. In the cases to reach the merits in the federal district courts, 38 of 55 of the detainees have prevailed and been granted the writ, despite the fact that all of the detainees were at one time found by a CSRT to be enemy combatants. That is, in 70% of cases, the government has failed to meet the modest burden of proving to a federal judge by a preponderance of the evidence that the detainee meets the expansive definition of an enemy combatant. (According to General Hayden, one detainee won his petition because the only way to prove he was an enemy combatant was to reveal an intelligence source, which he declined to do; he had no explanation for the other 36.)

The fundamental difference between people like Marc Thiessen and General Hayden and “terrorist sympathizers” like myself is that they seem to feel that detaining dozens of innocent people potentially for decades is acceptable. Those wrongfully held at Guantánamo are, in essence, just another form of collateral damage, civilian casualties in a just and necessary war. What upsets Thiessen and Hayden is not that we have detained scores of innocent men for so many years, but that the detainees were ever allowed into court in the first place. For my part, I don’t see forcing the government to justify the long-term detention of an individual in a court of law as a great imposition on the most powerful nation in the history of the world.

I represented a detainee at Guantánamo, Mohammed Jawad. He was detained in Afghanistan in December 2002 and transferred to Guantánamo in February 2003. Six and half long years later, a federal district judge finally ordered the US government to prove that he truly was an enemy combatant. Two weeks before the trial on the merits, the Department of Justice notified the court that they no longer considered Mr. Jawad “detainable.” The writ of habeas corpus was granted and Mr. Jawad was released back to Afghanistan, a free man. If Thiessen and Hayden had their way, he never would have had his day in court and would still be languishing in Guantánamo. In my opinion, that would be a travesty. If Thiessen and Hayden would like to try to convince me otherwise, I’ll be happy to debate them again.

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.

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).