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.

Margolis decided that an internal report (PDF) into the conduct of John Yoo and Jay S. Bybee, who wrote the notorious memos in August 2002, which attempted to redefine torture so that it could be used by the CIA, was mistaken in concluding that both men were guilty of “professional misconduct,” and should be referred to their bar associations for disciplinary action.

Instead, Margolis concluded, in a memo (PDF) that shredded four years of investigative work by the Office of Professional Responsibility (OPR), the DoJ’s ethics watchdog, that Yoo and Bybee had merely exercised “poor judgment.” As lawyers in the Office of Legal Counsel, which is charged with providing objective legal advice to the Executive branch on all constitutional questions, Yoo and Bybee attempted to redefine torture as the infliction of physical pain “equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death,” or the infliction of mental pain which “result[s] in significant psychological harm of significant duration e.g. lasting for months or even years.”

Yoo, notoriously, had lifted his description of the physical effects of torture from a Medicare benefits statute and other health care provisions in a deliberate attempt to circumvent the UN Convention Against Torture, signed by President Reagan in 1988 and incorporated into US federal law, in which torture is defined as:

any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person …

Obsessed with finding ways in which “severe pain” could be defined so that the CIA could torture detainees and get away with it, Yoo drew on some truly revolting examples of physical torture, citing a particularly brutal case, Mehinovic v. Vuckovic, in which, during the Bosnian war, a Serb soldier named Nikola Vuckovic had tortured his Bosnian neighbor, Kemal Mehinovic, with savage and sadistic brutality. Yoo dismissed the possibility that other torture techniques — waterboarding, for example, which is a form of controlled drowning, and prolonged sleep deprivation — might cause “significant psychological harm of significant duration,” or physical pain rising to a level that a judge might regard as torture.

In both of his definitions, however, Yoo was clearly mistaken. No detailed studies have yet emerged regarding the prolonged psychological effects of the torture program approved by Yoo and Bybee, largely because lawyers for the “high-value detainees” in Guantánamo have been prevented — first under Bush, and now under Obama — from revealing anything publicly about their clients.

However, lawyers for Ramzi bin al-Shibh, who was charged in the Bush administration’s Military Commissions, made a good show of demonstrating that bin al-Shibh is schizophrenic and on serious medication, when they argued throughout 2008 that he was not fit to stand trial, and I have seen no evidence to suggest that bin al-Shibh was in a similar state before his four years in secret CIA prisons.

An even more pertinent example is Abu Zubaydah, a supposed “high-value detainee,” held in secret CIA prisons for four and a half years, for whom the torture program was originally developed. Zubaydah’s case may well be the most shocking in Guantánamo, because, although he was subjected to physical violence and prolonged sleep deprivation, was confined in a small box and was waterboarded 83 times, the CIA eventually concluded that he was not, as George W. Bush claimed after his capture, “al-Qaeda’s chief of operations,” but was, instead, a “kind of travel agent” for recruits traveling to Afghanistan for military training, who was not a member of al-Qaeda at all.

Zubaydah was clearly mentally unstable before his capture and torture, as the result of a head wound sustained in Afghanistan in 1992, but as one of his lawyers, Joe Margulies, explained in an article in the Los Angeles Times last April, his subsequent treatment in US custody has caused a profound deterioration in his mental health that would certainly constitute “significant psychological harm of significant duration.” Margulies wrote:

No one can pass unscathed through an ordeal like this. Abu Zubaydah paid with his mind. Partly as a result of injuries he suffered while he was fighting the communists in Afghanistan, partly as a result of how those injuries were exacerbated by the CIA and partly as a result of his extended isolation, Abu Zubaydah’s mental grasp is slipping away. Today, he suffers blinding headaches and has permanent brain damage. He has an excruciating sensitivity to sounds, hearing what others do not. The slightest noise drives him nearly insane. In the last two years alone, he has experienced about 200 seizures.

Moreover, when it came to defining physical torture, the OPR Report’s authors noted that, as so often in the memos, Yoo had ignored relevant case history. The key passage in the report deals with the US courts’ decisions regarding the Torture Victim Protection Act (TVPA). Yoo had drawn on Mehinovic for his description of physical torture “of an especially cruel and even sadistic nature,” and, as the authors noted, he also argued that “only ‘acts of an extreme nature’ that were ‘well over the line of what constitutes torture’ have been alleged in TVPA cases.”

The authors continued:

Thus, the memorandum asserted, “there are no cases that analyze what the lowest boundary of what constitutes torture.” [sic]

That assertion was misleading. In fact, conduct far less extreme than that described in Mehinovic v. Vuckovic was held to constitute torture in one of the TVPA cases cited in the appendix to the Bybee memo. That case, Daliberti v. Republic of Iraq, 146 F. Supp. 2d 146 (D.D.C. 2001), held that imprisonment for five days under extremely bad conditions, while being threatened with bodily harm, interrogated, and held at gunpoint, constituted torture with respect to one claimant.

A close inspection of Daliberti (which dealt with US personnel seized by Iraqi forces between 1992 and 1995) is revealing, as the D.C. District Court held that “Such direct attacks on a person and the described deprivation of basic human necessities are more than enough to meet the definition of ‘torture’ in the Torture Victim Protection Act.” The judges based their ruling on the following:

David Daliberti and William Barloon allege that they were “blindfolded, interrogated and subjected to physical, mental and verbal abuse” while in captivity. They allege that during their arrests one of the agents of the defendant threatened them with a gun, allegedly causing David Daliberti “serious mental anguish, pain and suffering.” During their imprisonment in Abu Ghraib prison, Daliberti and Barloon were “not provided adequate or proper medical treatment for serious medical conditions which became life threatening.” The alleged torture of Kenneth Beaty involved holding him in confinement for eleven days “with no water, no toilet and no bed.” Similarly, Chad Hall allegedly was held for a period of at least four days “with no lights, no window, no water, no toilet and no proper bed.” Plaintiffs further proffer that Hall was “stripped naked, blindfolded and threatened with electrocution by placing wires on his testicles … in an effort to coerce a confession from him.”

Yoo and his apologists will undoubtedly quibble yet again. There is the threat of electrocution, a threat made with a gun, and deprivation of water, in one case for eleven days, none of which feature in the OLC’s memos. However, outside of the specific torture program approved by the OLC, numerous prisoners who were held at Bagram before being transported to Guantánamo have stated that they were actually subjected to electric shocks while hooded (rather than being threatened with electrocution), and that being threatened at gunpoint was a regular occurrence.

Moreover, it has also been stated that the withholding of medication was used with Abu Zubaydah after his capture, when he was severely wounded, and it should also be noted that numerous ex-prisoners have stated that, in Guantánamo, it was routine for medical treatment to be withheld unless prisoners cooperated with their interrogators (PDF).

Most of all, however, a comparison between Daliberti and the OLC memos reveals the extent to which the techniques approved by Yoo resulted in “severe pain or suffering, whether physical or mental,” which clearly exceeded that endured by David Daliberti and his fellow Americans in Iraq.

First of all, there is waterboarding, an ancient torture technique that has long been recognized as torture by the United States. As Eric Holder noted during his confirmation hearing in January 2009, “We prosecuted our own soldiers for using it in Vietnam.” With this in mind, it ought to be inconceivable that anyone could argue that waterboarding Abu Zubaydah 83 times and Khalid Sheikh Mohammed 183 times could be anything less than torture.

In addition, the prolonged isolation, prolonged sleep deprivation, nudity, hooding, shackling in painful positions, cramped confinement, physical abuse, dousing in cold water, beatings and threats endured by the CIA’s “high-value detainees,” as revealed in the leaked ICRC report (PDF) based on interviews with the 14 men transferred to Guantánamo from secret CIA prisons in September 2006, completes a picture that surely “shocks the conscience” more than the torture described in Daliberti, especially as those held were subjected to these techniques for far longer periods.

Should any further doubts remain about the definition of torture — and how it was implemented in the “War on Terror” — these should have been dispelled in January 2009, when, shortly before President Bush left office, Susan Crawford, the retired military judge who was the Convening Authority for the Military Commissions at Guantánamo (responsible for deciding who should be charged) granted the most extraordinary interview to Bob Woodward of the Washington Post.

Crawford told Woodward that the reason she had not pressed charges against Mohammed al-Qahtani, a Saudi who was initially put forward for a trial by Military Commission, along with Khalid Sheikh Mohammed, Ramzi bin al-Shibh and three other men, was because he was tortured in Guantánamo. “We tortured Qahtani,” she said. “His treatment met the legal definition of torture.”

“The techniques they used were all authorized, but the manner in which they applied them was overly aggressive and too persistent,” Crawford explained. “You think of torture, you think of some horrendous physical act done to an individual. This was not any one particular act; this was just a combination of things that had a medical impact on him, that hurt his health. It was abusive and uncalled for. And coercive. Clearly coercive. It was that medical impact that pushed me over the edge,” and to conclude that it was torture.

As I explained in an article at the time:

Al-Qahtani’s treatment was severe, of course. As Time magazine revealed in an interrogation log that was made available in 2005 (PDF), he was interrogated for 20 hours a day over a 50-day period in late 2002 and early 2003, when he was also subjected to extreme sexual humiliation, threatened by a dog, strip-searched and made to stand naked, and made to bark like a dog and growl at pictures of terrorists. On one occasion he was subjected to a “fake rendition,” in which he was tranquilized, flown off the island, revived, flown back to Guantánamo, and told that he was in a country that allowed torture.

In addition, as I explained in my book The Guantánamo Files:

The sessions were so intense that the interrogators worried that the cumulative lack of sleep and constant interrogation posed a risk to his health. Medical staff checked his health frequently — sometimes as often as three times a day — and on one occasion, in early December, the punishing routine was suspended for a day when, as a result of refusing to drink, he became seriously dehydrated and his heart rate dropped to 35 beats a minute. While a doctor came to see him in the booth, however, loud music was played to prevent him from sleeping.

The techniques used on al-Qahtani were approved by defense secretary Donald Rumsfeld, but the impetus came from the torture memos written and authorized by Yoo and Bybee. Moreover, although Crawford was not so principled when it came to considering the treatment to which the “high-value detainees” had been subjected in CIA custody — on the basis, presumably, that such information would be easier to conceal in a Military Commission than al-Qahtani’s well-publicized ordeal — it is clear from the ICRC report on the “high-value detainees” that their treatment also “met the legal definition of torture.” In addition, it seems probable that the treatment of the 80 other prisoners held in secret CIA prisons, the treatment of prisoners in Afghanistan, before their arrival in Guantánamo, and the treatment of over a hundred prisoners in Guantánamo, who were subjected to versions of the “enhanced interrogation techniques” used on al-Qahtani would also constitute torture.

For these reasons, David Margolis’ whitewash of John Yoo and Jay S. Bybee cannot be the final word. In his memo to Attorney General Eric Holder, dismissing the report’s conclusions, Margolis tried to claim that it was important to remember that Yoo and Bybee were working in extraordinary circumstances, striving to prevent another major terrorist attack. In an early version of the report, OPR head Mary Patrice Brown dismissed this argument, asserting that “Situations of great stress, danger and fear do not relieve department attorneys of their duty to provide thorough, objective and candid legal advice, even if that advice is not what the client wants to hear.”

This is correct, but another authoritative source also explains why there are no excuses for twisting the law out of all shape in an attempt to justify torture. As the UN Convention Against Torture stipulates (Article 2.2), “No exceptional circumstances whatsoever, whether a state of war or a threat or war, internal political instability or any other public emergency, may be invoked as a justification of torture.”

The UN Convention also stipulates (Article 4. 1) that signatories to the Convention “shall ensure that all acts of torture are offences under its criminal law” and requires each State, when torture has been exposed, to “submit the case to its competent authorities for the purpose of prosecution” (Article 7.1). As with Article 2.2, there are no excuses for not taking action, and that includes political expediency, or, as Barack Obama described it, “a belief that we need to look forward as opposed to looking backwards.”

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

As published exclusively on Truthout. You can Digg the original article here.

For a sequence of articles dealing with the use of torture by the CIA, on “high-value detainees,” and in the secret prisons, see: Guantánamo’s tangled web: Khalid Sheikh Mohammed, Majid Khan, dubious US convictions, and a dying man (July 2007), Jane Mayer on the CIA’s “black sites,” condemnation by the Red Cross, and Guantánamo’s “high-value” detainees (including Khalid Sheikh Mohammed) (August 2007), Waterboarding: two questions for Michael Hayden about three “high-value” detainees now in Guantánamo (February 2008), Six in Guantánamo Charged with 9/11 Murders: Why Now? And What About the Torture? (February 2008), The Insignificance and Insanity of Abu Zubaydah: Ex-Guantánamo Prisoner Confirms FBI’s Doubts (April 2008), Guantánamo Trials: Another Torture Victim Charged (Abdul Rahim al-Nashiri, July 2008), Secret Prison on Diego Garcia Confirmed: Six “High-Value” Guantánamo Prisoners Held, Plus “Ghost Prisoner” Mustafa Setmariam Nasar (August 2008), Will the Bush administration be held accountable for war crimes? (December 2008), The Ten Lies of Dick Cheney (Part One) and The Ten Lies of Dick Cheney (Part Two) (December 2008), Prosecuting the Bush Administration’s Torturers (March 2009), Abu Zubaydah: The Futility Of Torture and A Trail of Broken Lives (March 2009), Ten Terrible Truths About The CIA Torture Memos (Part One), Ten Terrible Truths About The CIA Torture Memos (Part Two), 9/11 Commission Director Philip Zelikow Condemns Bush Torture Program, Who Authorized The Torture of Abu Zubaydah?, CIA Torture Began In Afghanistan 8 Months before DoJ Approval, Even In Cheney’s Bleak World, The Al-Qaeda-Iraq Torture Story Is A New Low (all April 2009), Ibn al-Shaykh al-Libi Has Died In A Libyan Prison , Dick Cheney And The Death Of Ibn al-Shaykh al-Libi, The “Suicide” Of Ibn al-Shaykh al-Libi: Why The Media Silence?, Two Experts Cast Doubt On Ibn al-Shaykh al-Libi’s “Suicide”, Lawrence Wilkerson Nails Cheney On Use Of Torture To Invade Iraq, In the Guardian: Death in Libya, betrayal by the West (in the Guardian here), Lawrence Wilkerson Nails Cheney’s Iraq Lies Again (And Rumsfeld And The CIA) (all May 2009) and WORLD EXCLUSIVE: New Revelations About The Torture Of Ibn al-Shaykh al-Libi (June 2009), The Logic of the 9/11 Trials, The Madness of the Military Commissions (November 2009), UK Judges Compare Binyam Mohamed’s Torture To That Of Abu Zubaydah (November 2009), UN Secret Detention Report Asks, “Where Are The CIA Ghost Prisoners?” (January 2010), Binyam Mohamed: Evidence of Torture by US Agents Revealed in UK (February 2010). Also see the extensive archive of articles about the Military Commissions.

For other stories discussing the use of torture in secret prisons, see: An unreported story from Guantánamo: the tale of Sanad al-Kazimi (August 2007), Rendered to Egypt for torture, Mohammed Saad Iqbal Madni is released from Guantánamo (September 2008), A History of Music Torture in the “War on Terror” (December 2008), Seven Years of Torture: Binyam Mohamed Tells His Story (March 2009), When Torture Kills: Ten Murders In US Prisons In Afghanistan (July 2009), US Torture Under Scrutiny In British Courts (July 2009), What The British Government Knew About The Torture Of Binyam Mohamed (August 2009), Torture in Bagram and Guantánamo: The Declaration of Ahmed al-Darbi (September 2009), UK Judges Order Release Of Details About The Torture Of Binyam Mohamed By US Agents (October 2009), “Model Prisoner” at Guantánamo, Tortured in the “Dark Prison,” Loses Habeas Corpus Petition (December 2009), Dark Revelations in the Bagram Prisoner List (January 2010), and also see the extensive Binyam Mohamed archive.

And for other stories discussing torture at Guantánamo and/or in “conventional” US prisons in Afghanistan, see: The testimony of Guantánamo detainee Omar Deghayes: includes allegations of previously unreported murders in the US prison at Bagram airbase (August 2007), Guantánamo Transcripts: “Ghost” Prisoners Speak After Five And A Half Years, And “9/11 hijacker” Recants His Tortured Confession (September 2007), The Trials of Omar Khadr, Guantánamo’s “child soldier” (November 2007), Former US interrogator Damien Corsetti recalls the torture of prisoners in Bagram and Abu Ghraib (December 2007), Guantánamo’s shambolic trials (February 2008), Torture allegations dog Guantánamo trials (March 2008), Sami al-Haj: the banned torture pictures of a journalist in Guantánamo (April 2008), Former Guantánamo Prosecutor Condemns “Chaotic” Trials in Case of Teenage Torture Victim (Lt. Col. Darrel Vandeveld on Mohamed Jawad, January 2009), Judge Orders Release of Guantánamo’s Forgotten Child (Mohammed El-Gharani, January 2009), Bush Era Ends With Guantánamo Trial Chief’s Torture Confession (Susan Crawford on Mohammed al-Qahtani, January 2009), Forgotten in Guantánamo: British Resident Shaker Aamer (March 2009), A Child At Guantánamo: The Unending Torment of Mohamed Jawad (June 2009), Torture In Guantánamo: The Force-feeding Of Hunger Strikers (June 2009), As Judge Orders Release Of Tortured Guantánamo Prisoner, Government Refuses To Concede Defeat (Mohamed Jawad, July 2009), Torture And Futility: Is This The End Of The Military Commissions At Guantánamo? (September 2009), A Truly Shocking Guantánamo Story: Judge Confirms That An Innocent Man Was Tortured To Make False Confessions (Fouad al-Rabiah, September 2009), UK Court Orders Release Of Torture Evidence In The Case Of Shaker Aamer, The Last British Resident In Guantánamo (December 2009), Shaker Aamer: UK Government Drops Opposition To Release Of Torture Evidence (December 2009), Afghan Nobody Faces Trial by Military Commission (January 2010), Murders at Guantánamo: Scott Horton of Harper’s Exposes the Truth about the 2006 “Suicides” (January 2010), Two Algerian Torture Victims Are Freed from Guantánamo (January 2010), and the extensive archive of articles about the Military Commissions.

Back in October, when the Obama administration’s interagency Task Force announced that it had cleared 75 prisoners for release — and explained that this figure included 26 Yemenis — I took exception to the administration’s unwillingness to release any of the Yemenis. This was revealed in the case of Alla Ali Bin Ali Ahmed, a Yemeni whose release had been ordered in May by a District Court judge, who had granted his habeas corpus petition. Judge Gladys Kessler ruled that the government had based its case on unreliable allegations made by other prisoners who were tortured, coerced, bribed or suffering from mental health issues, and a “mosaic” of intelligence, purporting to rise to the level of evidence, which actually relied, to an intolerable degree, on second- or third-hand hearsay, guilt by association and unsupportable suppositions.

However, when it came to releasing Ali Ahmed, the government balked, and administration officials told the New York Times in October that, “Even if Mr. Ahmed was not dangerous in 2002 … Guantánamo itself might have radicalized him, exposing him to militants and embittering him against the United States.”

As I explained at the time, “only at Guantánamo can fear trump justice to such an alarming degree” that, “if [the officials’] rationale for not releasing any of the Yemenis from Guantánamo was extended to the US prison system, it would mean that no prisoner would ever be released at the end of their sentence, because prison ‘might have radicalized’ them, and also, of course, that it would lead to no prisoner ever being released from Guantánamo.”

In the end, Alla Ali Bin Ali Ahmed was released — primarily, it seems, because Judge Kessler “appeared to be losing patience with the delay in complying with her May 11 release order,” and was about to criticize the government openly — and not because officials had truly considered the flawed basis of their unwillingness to release him. As a result, the release of six more Yemenis on the weekend of December 19-20 was a significant breakthrough, as it represented the first time that the Obama administration had, of its own volition, released Yemenis cleared by its own interagency Task Force.

As I hope to demonstrate below, in profiles of these six men, the administration’s reticence was unjustified, as their stories represent a cross-section of the horrendous mistakes made by the Bush administration in its search for “terrorists” to imprison without rights at Guantánamo, and also because they strongly suggest that other innocent Yemenis continue to be detained.

The importance of this should not be overlooked, especially because, in the wake of the failed bomb plot on a Northwest Airlines flight on Christmas Day, the connections allegedly established by the would-be bomber, Umar Farouk Abdulmutallab, with terrorists in Yemen has prompted lawmakers in the US to declare that no more Yemenis should be released from Guantánamo.

As Politico reported, Rep. Pete Hoekstra (R-Mich.), ranking member on the House Intelligence Committee, claimed that the news “highlights the fact that sending this many people back — or any people back — to Yemen right now is a really bad idea,” and Rep. Peter King (R-NY) called it “a major mistake” to repatriate any Yemeni prisoners, adding, “I don’t think Guantánamo should be closed, but if we’re going to close it I don’t believe we should be sending people to Yemen where prisoners have managed to escape in the past.” Even Bennie Thompson (D-Miss.), the House Homeland Security Committee Chairman, expressed doubts, telling Politico, “I’d, at a minimum, say that whatever we were about to do we’d at least have to scrub it again from top to bottom.”

These claims now threaten to spiral out of control, with several media outlets reporting that two former Guantánamo prisoners from Saudi Arabia have assumed leadership positions in an al-Qaeda-inspired group, al-Qaeda in the Arabian peninsula, which has claimed responsibility for the failed attack, even though the Obama administration “remains cautious in linking” Abdulmutallab to al-Qaeda, and even though drawing connections between released Saudis and released Yemenis has no sound basis, as the Yemeni authorities stated categorically in October that none of the 16 Yemenis returned from Guantánamo between 2004 and 2008 had joined terrorist groups after their eventual release from Yemeni custody.

Jamal Mar’i: one of the first victims of “extraordinary rendition” in the “War on Terror”

The first of the six Yemenis, Jamal Mar’i, was 31 years old when he was kidnapped from his house in Karachi by US and Pakistani operatives on September 23, 2001, and subjected to what appears to be one of the first “extraordinary renditions” in the Bush administration’s “War on Terror.” After a month in Pakistani custody, where he was interrogated by US agents, he was flown to Jordan by the CIA, and was held by the notorious General Intelligence Directorate (GID) for four months before being sent to Guantánamo. Several years later, he told his lawyer, Marc Falkoff, that he was not subjected to torture, but was “hidden from visiting Red Cross inspectors.”

Jamal Mar’i was an unlikely terror suspect. Married with four children, he had studied petroleum engineering in Azerbaijan from 1994-98, but had found no work in his chosen field, and had worked in his family’s store in Yemen until 2001, when he was employed by the Emirates-based financier for the Saudi charity al-Wafa to buy medicine for the organization in Karachi. He explained that this involved him traveling to Kandahar in May 2001 “to find out how the work was done and how the medicine is distributed,” and that he was then responsible for purchasing medicines from specialist stores in Pakistan.

Mar’i was seized on the day that President Bush signed Executive Order 13224, which was designed to block the assets of individuals and entities that were allegedly involved with terrorism. Al-Wafa was one of the organizations blacklisted, and in the years that followed dozens of prisoners in Guantánamo were accused of being involved with terrorism because of their connections with the organization, even though all but Mar’i — and Ayman Batarfi, discussed below — were released several years ago.

In Guantánamo, little of Jamal Mar’i’s story emerged, as, after finally securing the services of a lawyer, he soon came to believe that the entire process was worthless. In June 2006, Marc Falkoff explained, “When I first met Jamal, he said all he needed was to have his case heard and everyone would see that he was innocent. Now he won’t even meet with us. He said that we initially brought him hope but that we’re now like a mirage in the desert and he can no longer live with hope.”

Ayman Batarfi: the doctor who met Osama bin Laden

The second of the released Yemenis, Ayman Batarfi, was a skilled orthopedic surgeon, who had traveled to Afghanistan in 2001 to care for those less fortunate than himself. He too had worked for al-Wafa, and was clearly referring to Jamal Mar’i when, at his tribunal in Guantánamo, he said that al-Wafa’s representative in Karachi “was taken to Jordan ‘on a special flight.’” Unlike Mar’i, however, Batarfi was not subjected to “extraordinary rendition,” but he came under suspicion when he explained that, through a series of accidents, he had met Osama bin Laden and had also found himself in Afghanistan’s Tora Bora mountains in December 2001, when remnants of al-Qaeda and the Taliban were fighting the US and their Afghan allies, and the US military allowed bin Laden, Ayman al-Zawahiri and numerous other senior figures in al-Qaeda and the Taliban to escape across the unguarded Pakistani border.

The delay in releasing Batarfi is clearly unconscionable, as, earlier this year, when his habeas corpus petition finally reached a District Court, Judge Emmet G. Sullivan was outraged by government lawyers’ “repeated” delays in providing unclassified exculpatory material to the defense. At a status hearing on April 1, he referred to a hearing on March 19, in which he required the Justice Department “to show cause why the government and its attorneys should not be held in contempt for violating” an order in January to produce relevant information, including exculpatory evidence.

This was typical behavior on the part of the Justice Department, but Judge Sullivan’s patience was clearly exhausted when Batarfi’s lawyers explained that they had discovered, in Batarfi’s medical records (which had, after some delay, been provided by the government), “a highly exculpatory record” pertaining to one of the government’s main witnesses against their client, and added that they “believed they were entitled to all other similar records” regarding this particular prisoner, and the government responded, as Judge Sullivan described it, by taking the position that “this had been a, quote, inadvertent production, and sought to, in the government’s words, sequester the document.”

As I explained in an article in summer, analyzing the habeas corpus cases:

Outraged by this, and clearly struggling to contain his anger, Judge Sullivan told the government lawyers, “To hide — and I don’t use that word loosely — to hide relevant and exculpatory evidence from counsel and from the Court under any circumstances, particularly here where there is no other means to discover this information and where the stakes are so very high and do indeed include indefinite detention, is fundamentally unjust, outrageous and will not be tolerated.”

He added, “Fortunately, Dr. Batarfi’s counsel have been diligent and tireless in their efforts, but no one, Dr. Batarfi and not this Court, should have to rely on luck to discover evidence critical to a just resolution … In the face of repeated failures to comply with this Court’s orders, to produce exculpatory evidence, even after orders to show cause and the requirement of no fewer than four declarations from officials at the highest levels of our government, how can this Court have any confidence whatsoever in the US government to comply with its obligation and to be truthful to the Court?”

In response to the meltdown of Batarfi’s case, the government took matters into its own hands, expediting a review by the Justice Department, and announcing that he had been cleared for release. Judge Sullivan accepted this, of course, as he would clearly have granted Batarfi’s habeas petition had the case proceeded, but he made a point of telling the government that, “While the Court on the one hand applauds the government’s belated decision to transfer Dr. Batarfi, the Court must note the disturbing pattern in this and other cases. Time and again we have seen that only once finally pressed to present evidence to justify a petitioner’s detention does the United States belatedly, quote, withdraw, end quote, charges or allegations and/or transfer the detainee.”

Judge Sullivan added that he had “some serious concerns” about whether the sudden decision to release Batarfi was “another ploy not to return Dr. Batarfi to his country of origin but to continue with his deprivation of his fair day in court” — and with good reason, as it took nearly nine months to release him, despite the judge’s devastatingly critical analysis of the government’s actions:

I’m not going to continue to tolerate indefinite delay on the part of the United States government. I mean, this Guantánamo issue is a travesty. It ranks up there with the internment of Japanese-American citizens years ago. It’s a horror story in the American system of jurisprudence, and quite frankly, I’m not going to buy into an extended indefinite delay of this man’s stay at Guantánamo, or anyone else on my calendar.

Farouq Ali Ahmed: a victim of Guantánamo’s “notorious liar”

The story of the third of the Yemenis, Farouq Ali Ahmed, a young man who went to Afghanistan to teach the Koran, has been known since February 2006, when Corine Hegland wrote a series of extraordinary articles for the National Journal, examining a number of Guantánamo cases. In one of these articles, Hegland wrote about the case of Farouq Ali Ahmed, explaining how he had been judged as an “enemy combatant” because of two false allegations. The first — that he was a bodyguard of Osama bin Laden — was directed at 30 prisoners in total, and was made under duress, and later retracted, by Mohammed al-Qahtani. One of several purported “20th hijackers” for the 9/11 attacks, al-Qahtani made the allegations during a seven-week period, from November 2002 to January 2003, when he was subjected to an array of “enhanced interrogation techniques,” which “met the legal definition of torture,” according to Susan Crawford, the Convening Authority for Guantánamo’s Military Commissions, who explained to Bob Woodward in January 2009 that she had refused to press charges against him in the Military Commissions because of the torture.

The second allegation — that Farouq Ali Ahmed had been seen at Osama bin Laden’s private airport in Kandahar, where he was “wearing camouflage and carrying an AK-47” — proved so intolerable to his Personal Representative (a military officer assigned to the prisoners in place of a lawyer during the tribunals at Guantánamo in 2004-05) that he submitted a written protest, in which he stated that the government’s sole evidence that Ahmed had been at bin Laden’s airport was the statement of another prisoner, who, according to an FBI memo that he presented to the tribunal, was a notorious liar. According to the FBI, he “had lied, not only about Farouq, but about other Yemeni detainees as well. The other detainee claimed he had seen the Yemenis at times and in places where they simply could not have been.”

The Personal Representative wrote, “I do feel with some certainty that [the accuser] has lied about other detainees to receive preferable treatment and to cause them problems while in custody. Had the tribunal taken this evidence out as unreliable, then the position we have taken is that a teacher of the Koran (to the Taliban’s children) is an enemy combatant (partially because he slept under a Taliban roof).”

The “notorious liar” had actually made false allegations against 60 prisoners in total, as was revealed after the tribunal of Mohammed al-Tumani, a young Syrian economic migrant, who had traveled to Afghanistan with other family members shortly before the 9/11 attacks (and who was finally released in Portugal in August this year). In his tribunal, he denied an allegation that he had attended the al-Farouq training camp with such vigor that his Personal Representative decided to investigate the matter further. When he looked at the classified evidence, however, he found that only one man — the same prisoner mentioned above, and probably the same man identified in the habeas petition of Ayman Batarfi — claimed to have seen him at al-Farouq, and had identified him as being there three months before he arrived in Afghanistan. As Corine Hegland described it, “The curious US officer pulled the classified file of the accuser, saw that he had accused 60 men, and, suddenly skeptical, pulled the files of every detainee the accuser had placed at the one training camp. None of the men had been in Afghanistan at the time the accuser said he saw them at the camp.”

Muhammed Taher and Fayad al-Rami: seized from a university dorm in Pakistan

The fourth and fifth Yemenis, Muhammed Taher and Fayad Yahya Ahmed al-Rami (identified by the Pentagon as Mohammed Tahir and Fayad Yahya Ahmed), were seized in a house raid in Pakistan on the same night that the “high-value detainee” Abu Zubaydah was captured, and in the same house as Alla Ali Bin Ali Ahmed, described above, and at least a dozen other men who were subsequently transferred to Guantánamo.

When Judge Kessler granted the habeas corpus petition of Alla Ali Bin Ali Ahmed, accepting that he was nothing more than a student, who had been seized because of some tangential connection that the guest house had with Abu Zubaydah, she also made a point of noting, “It is likely, based on evidence in the record, that at least a majority of the [other] guests were indeed students, living at a guest house that was located close to a university,” and this is clearly the case with both Muhammed Taher and Fayad al-Rami, who were also students. Moreover, both men explained that they had repeatedly been told — both in Pakistani custody and at Guantánamo — that they had been seized by mistake, and would be released. In his tribunal at Guantánamo, as I explained in an article in May, Taher said:

The army translator and the interrogator from the Pakistani intelligence said, “yes, all of what this man said … about his story in Pakistan is correct, and therefore that is why we are going to give him back his passport that we took” … I was really surprised that the American intelligence refused all of these proofs and they said no. “We still need him,” they said, and then they took me.

In al-Rami’s case, he explained to his tribunal in 2005 that he had recently been told in Guantánamo that he would be released. “The interrogator and the investigator about a month ago that met with me told [me] that there was nothing against me and that I am an innocent man and should [be] released,” he said.

However, while the release of these men is long overdue, it is noticeable that at least seven other Yemenis seized in the house are still held, including Mohammed Hassen, who was only visiting the house when he was seized. Hassen is one of only two of the guest house prisoners to be cleared for release by a military review board at Guantánamo under the Bush administration, and while the other, Abdul Aziz al-Noofayee, a Saudi, was released in June, Hassen’s continued presence at Guantánamo is, frankly, inexplicable.

Riyad al-Haf: a case of mistaken identity

In the case of the sixth Yemeni, Riyad al-Haf (identified by the Pentagon as Riyad al-Radai or Riyad al-Haj), it was alleged in his tribunal at Guantánamo that, after traveling to Afghanistan, he was “picked up in a car by a group of Taliban members and driven to Kandahar, where he stayed in a Taliban guest house for two to three months,” and that he “admitted he agreed to serve the Taliban” and was posted on the front line for a week. It was also alleged that he admitted working at a field hospital for six months as a nurse’s aide, helping to care for wounded Taliban fighters, but in response he said that he had actually spent six months as a patient in a hospital in Kabul.

When his review board met the following year, he said that “everything in the Unclassified Summary [of Evidence] was a big lie and that America had no choice but to keep him locked up since it would look bad if they released him after holding him for three years.” He “repeatedly and strenuously” stated that he had been confused with some other prisoner, and that this mistake had started in Bagram, where, presumably, the “evidence” against him was first established.

By the time of his next review, in January 2006, this confusing story had become even less clear. Al-Haf maintained that he had “wanted to find out what the Taliban was really all about,” and one allegation — that after “seeing that the Taliban was trying to serve Islam, [he] decided to serve the Taliban in any manner except for fighting” — sounded vaguely convincing, but it was surrounded by numerous other allegations that were patently absurd, which related to his previously aired claim that he had been mistaken for another man.

In this ridiculous scenario, it was stated that he “used additional aliases of al-Sharqawi aka al-Hajj, which are identifiable with a Pakistani facilitator.” This was nonsense, because the real al-Sharqawi (a man also known as Riyadh the Facilitator) was already in Guantánamo. Nevertheless, it seems probable that a host of other groundless allegations sprang from this mistake, including wild claims that he “was identified as having a lot of experience because of the long time he spent at Camp Farouq and on the front line fighting the Northern Alliance,” that he “taught others how to train people in various advanced things such as tanks and explosives,” that he “was identified as a leader of 10 to 15 men and drove a Toyota pick-up truck that was used to haul supplies to the front lines,” that he “was identified as being in Tora Bora and was in charge of delivering food supplies to the fighters and also delivered approximately $3000 to the Emir,” and that he “was one of the old senior guys in Afghanistan that was a commander with a lot of responsibility.”

As we have seen since Guantánamo was first established, nearly eight years ago, it is appallingly easy for its would-be defenders to resort to propaganda when describing the prisoners. When looked at in detail, however, the claims that the prison holds the “worst of the worst” fail to stand up to scrutiny, as is revealed in the stories related above. Running through most of these accounts is the important role played by the District Court judges examining the prisoners’ habeas corpus petitions, who, through their exposure of unreliable witnesses, and of false confessions obtained through torture, coercion or bribery, have revealed themselves to be far more capable arbiters of the truth than the lawmakers who have chosen to use these men, and others still held, as pawns in an unprincipled political game.

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

As published exclusively on Truthout. Cross-posted on AlterNet.

See the following for articles about the 142 prisoners released from Guantánamo from June 2007 to January 2009, and the 30 prisoners released from February to early December 2009, whose stories are covered in more detail than is available anywhere else –- either in print or on the Internet –- although many of them, of course, are also covered in The Guantánamo Files: June 2007 –- 2 Tunisians, 4 Yemenis (here, here and here); July 2007 –- 16 Saudis; August 2007 –- 1 Bahraini, 5 Afghans; September 2007 –- 16 Saudis; September 2007 –- 1 Mauritanian; September 2007 –- 1 Libyan, 1 Yemeni, 6 Afghans; November 2007 –- 3 Jordanians, 8 Afghans; November 2007 –- 14 Saudis; December 2007 –- 2 Sudanese; December 2007 –- 13 Afghans (here and here); December 2007 –- 3 British residents; December 2007 –- 10 Saudis; May 2008 –- 3 Sudanese, 1 Moroccan, 5 Afghans (here, here and here); July 2008 –- 2 Algerians; July 2008 –- 1 Qatari, 1 United Arab Emirati, 1 Afghan; August 2008 –- 2 Algerians; September 2008 –- 1 Pakistani, 2 Afghans (here and here); September 2008 –- 1 Sudanese, 1 Algerian; November 2008 –- 1 Kazakh, 1 Somali, 1 Tajik; November 2008 –- 2 Algerians; November 2008 –- 1 Yemeni (Salim Hamdan) repatriated to serve out the last month of his sentence; December 2008 –- 3 Bosnian Algerians; January 2009 –- 1 Afghan, 1 Algerian, 4 Iraqis; ; February 2009 — 1 British resident (Binyam Mohamed); May 2009 — 1 Bosnian Algerian (Lakhdar Boumediene); June 2009 — 1 Chadian (Mohammed El-Gharani), 4 Uighurs to Bermuda, 1 Iraqi, 3 Saudis (here and here); August 2009 — 1 Afghan (Mohamed Jawad), 2 Syrians to Portugal; September 2009 — 1 Yemeni, 2 Uzbeks to Ireland (here and here); October 2009 — 1 Kuwaiti, 1 prisoner of undisclosed nationality to Belgium; October 2009 — 6 Uighurs to Palau; November 2009 — 1 Bosnian Algerian to France, 1 unidentified Palestinian to Hungary, 2 Tunisians to Italian custody, December 2009 — 1 Kuwaiti (Fouad al-Rabiah).

We know that both President Obama and Attorney General Eric Holder believe that the Bush administration approved the use of torture. In an interview with ABC News on January 11, President-Elect Obama responded to a recent CBS interview with Dick Cheney, in which the then-Vice President had sounded his usual alarms abut the need for “extraordinary” policies to deal with terror suspects, by stating, “Vice President Cheney I think continues to defend what he calls extraordinary measures or procedures and from my view waterboarding is torture. I have said that under my administration we will not torture.”

Two days later, at his confirmation hearing, Eric Holder reinforced Obama’s opinion. Noting, as the New York Times described it, that waterboarding had been used to torment prisoners during the Inquisition, by the Japanese in World War II and in Cambodia under the Khmer Rouge, and adding, “We prosecuted our own soldiers for using it in Vietnam,” he stated unequivocally, “Waterboarding is torture,” and reiterated his opinion just three weeks ago, in a speech to the Jewish Council of Public Affairs in Washington. “Waterboarding is torture,” he said again, adding, “My Justice Department will not justify it, will not rationalize it and will not condone it.”

It took the Bush administration many years to admit that it had authorized the use of waterboarding — a form of controlled drowning with a long and ignoble history  — but Gen. Michael Hayden, the director of the CIA, broke the silence last February, admitting, in an open session of Congress, that three “high-value detainees” in the “War on Terror” — Khalid Sheikh Mohammed (KSM), Abu Zubaydah and Abdul Rahim al-Nashiri — had been waterboarded in secret CIA custody.

In December, Vice President Dick Cheney also confessed, telling ABC News that he had been involved in approving the waterboarding of Khalid Sheikh Mohammed. This was the exchange, with ABC’s presenter, Jonathan Karl:

Jonathan Karl: Did you authorize the tactics that were used against Khalid Sheikh Mohammed?
Dick Cheney: I was aware of the program certainly, and involved in helping get the process cleared, as the agency, in effect, came in and wanted to know what they could and couldn’t do. And they talked to me, as well as others, to explain what they wanted to do, and I supported it.
Jonathan Karl: In hindsight, do you think any of those tactics that were used against Khalid Sheikh Mohammed and others went too far?
Dick Cheney: I don’t.
Jonathan Karl: And on KSM, one of those tactics, of course, widely reported was waterboarding, and that seems to be a tactic we no longer use. Even that you think was appropriate?
Dick Cheney: I do.

As I explained in an article at the time, Cheney’s claim that he was merely responding to pressure from the CIA was patently untrue, as it was clear from at least November 2001 that the crucial decisions to hold prisoners without any rights whatsoever — which led inexorably to decisions that they could be interrogated illegally, and then to decisions that they could be tortured with impunity — originated in the Vice President’s Office. However, even without a clear admission by Cheney that he was responsible for establishing the program, his confession that he was intimately involved in approving plans to waterboard a prisoner in US custody establishes, beyond any doubt, that he was involved in approving the use of torture.

Nor are these the only occasions when senior officials have admitted that the Bush administration was involved in torture. In January, just a week before Barack Obama took office, retired judge Susan Crawford, the “Convening Authority” for the Military Commission trial system at Guantánamo (another brain-child of Cheney and his legal counsel, David Addington), admitted, in a Washington Post interview with Bob Woodward, that Mohammed al-Qahtani, a Saudi prisoner in Guantánamo, regarded as the potential 20th hijacker for the 9/11 attacks, had been tortured. “We tortured Qahtani,” Crawford, a protégée of Cheney and a close friend of Addington, admitted. “His treatment met the legal definition of torture.”

What was remarkable about this confession — beyond it being the first instance of a senior Bush administration official admitting that anyone had been tortured — was that al-Qahtani had not been subjected to waterboarding, but had, instead, been subjected, over a two-month period in late 2002 and early 2003, to a combination of other techniques, approved by defense secretary Donald Rumsfeld. For Crawford, however, it was the combined effect of these techniques — which included extreme sleep deprivation and sustained acts of humiliation — that led to her decision not to put al-Qahtani forward for a trial by Military Commission.

“The techniques they used were all authorized, but the manner in which they applied them was overly aggressive and too persistent,” she said. “You think of torture, you think of some horrendous physical act done to an individual. This was not any one particular act; this was just a combination of things that had a medical impact on him, that hurt his health. It was abusive and uncalled for. And coercive. Clearly coercive. It was that medical impact that pushed me over the edge,” and to conclude that it was torture.

Further evidence that senior officials were intimately involved with the use of torture by US forces came last week, in a detailed analysis by Mark Danner, in the New York Review of Books, of a leaked secret report by the International Committee of the Red Cross, based on interviews with the 14 “high-value detainees” — including KSM, Abu Zubaydah and Abdul Rahim al-Nashiri — who were transferred to Guantánamo in September 2006. Danner’s article did not cite confessions by senior officials that they had authorized the use of torture — although it did include the Red Cross’s own unprecedented conclusion 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” — but what it did establish, with a chilling clarity, is that every slight amendment to the horrors of the torture program had to be approved further up the chain of command

“It wasn’t up to individual interrogators to decide, ‘Well, I’m gonna slap him. Or I’m going to shake him. Or I’m gonna make him stay up for 48 hours,’” CIA interrogator John Kiriakou explained. “Each one of these steps … had to have the approval of the Deputy Director for Operations,” he continued. “So before you laid a hand on him, you had to send in the cable saying, ‘He’s uncooperative. Request permission to do X.’ And that permission would come.” And as Danner noted, soon after the first “high-value detainee,” Abu Zubaydah, was captured in March 2002, CIA officers “briefed high-level officials in the National Security Council’s Principals Committee,” including Vice President Dick Cheney, National Security Adviser Condoleezza Rice, and Attorney General John Ashcroft, who “then signed off on the [interrogation] plan.”

As a result of America’s commitment to the UN Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, which was presented to the US Senate by Ronald Reagan on May 20, 1988, we should, therefore, be applauding an announcement by the Obama administration that those responsible for authorizing the use of torture will imminently be facing prosecution. As the Convention makes clear, “Each state party shall ensure that all acts of torture are offences under its criminal law,” and shall, when alleged acts of torture are discovered, “submit the case to its competent authorities for the purpose of prosecution.” And under Article VI of the US Constitution, “all treaties made … under the authority of the United States shall be the supreme law of the land.”

Instead of prosecution, however, we have Sen. Leahy’s proposed “Nonpartisan Commission Of Inquiry,” and those calling for President Obama to appoint an Independent Prosecutor kept firmly outside the corridors of power.

So how did this happen, and what does it mean? Well, to be blunt, a “Nonpartisan Commission Of Inquiry” is politically useful because it implicitly acknowledges that, although senior officials in the Bush administration committed war crimes, they only did so because they believed that another major terrorist attack was imminent, and because they thought that only torture would enable them to “break” those who possessed vital knowledge that they would not disclose by any other means.

There are, of course, two major problems with this explanation: firstly, senior officials in the administration — including George W. Bush, Dick Cheney, David Addington (photo, left), Donald Rumsfeld and William J. Haynes II, the Pentagon’s general counsel — behaved with an arrogance that is, to my mind, unprecedented in American history, refusing to listen to the many critics (including, to name just two, the FBI and the Naval Criminal Investigative Service), who warned them that what they were doing — or were planning to do — was counter-productive, morally corrosive and illegal; and secondly, because, as the UN Convention Against Torture makes clear, “No exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency, may be invoked as a justification for torture.”

As commentators have been pointing out since the confessions of Dick Cheney and Susan Crawford, “International treaties which the US signs and ratifies aren’t cute little left-wing platitudes for tying the hands of America. They’re binding law according to the explicit mandates of Article VI of our Constitution” (Glenn Greenwald in Salon, on January 18). However, while the Obama administration is clearly unwilling to do what it should, the key to breaking this deadlock — beyond the responsibility that rests on every law-abiding American citizen to demand that no one (not even the President or Vice President of the United States) is above the law — can be found by looking at the reason that Dick Cheney felt so empowered to publicly declare his crimes before leaving office, which is also the reason that those who expected last-minute pardons of senior officials by President Bush were disappointed.

This key, as Cheney himself admitted, consists of the legal advice regarding the use of torture — and other crimes — that was given to senior officials by the Justice Department’s Office of Legal Counsel (OLC). These documents — some of which were recently released by the Obama administration’s Justice Department — include the notorious “Torture Memo” of August 2002 (PDF), which purported to redefine torture, described in the UN Convention as “any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person,” as, instead, an act producing pain of a kind “that would be associated with serious physical injury so severe that death, organ failure, or permanent damage resulting in a loss of significant body function will likely result,” and they were regarded as a “golden shield” by the administration, for good reason.

As Jane Mayer explained in her book The Dark Side, “The OLC plays a unique role in the federal government. Sometimes referred to as the Attorney General’s private law firm, its small but often brilliant staff of lawyers, many of whom are political appointees, issue opinions that are legally binding on the rest of the executive branch. If the OLC interprets the law in a certain way, unless the attorney general overrules it, the government must too. If the OLC says a previously outlawed practice, such as waterboarding, is legal, it is nearly impossible to prosecute US officials who followed that advice on good faith.”

It is for this reason, of course, that Dick Cheney stated, in his December interview with ABC News, “On the question of so-called ‘torture,’ we don’t do torture, we never have. It’s not something that this administration subscribes to. Again, we proceeded very cautiously; we checked, we had the Justice Department issue the requisite opinions in order to know where the bright lines were that you could not cross. The professionals involved in that program were very, very cautious, very careful, wouldn’t do anything without making certain it was authorized and that it was legal. And any suggestion to the contrary is just wrong.” It also explains why George W. Bush felt able to leave office without pardoning anyone responsible for war crimes.

However, the good news, for those who are less than happy living in a country where the highest officials in the land can get away with torture simply by being voted out of office, is that the legal advice prepared by the OLC for use by the Bush administration has been the subject of a four-year investigation, which began in 2003 when law professor Jack Goldsmith took over from Jay S. Bybee (now a judge on the Ninth Circuit Court of Appeals) as the head of the OLC. Goldsmith memorably withdrew many of the OLC’s most controversial memos before leaving the OLC just a year later, complaining, as Newsweek explained last month, that he was “astonished” by the “deeply flawed” and “sloppily reasoned” legal analysis in the memos — including the “Torture Memo” — that were written primarily by Bybee and by John Yoo, a lawyer in the OLC (and now a visiting professor at the Chapman University School of Law), “including their assertion … that the president could unilaterally disregard a law passed by Congress banning torture.”

According to Newsweek’s Michael Isikoff, who broke the story on the Rachel Maddow Show, H. Marshall Jarrett, the head of the Justice Department’s Office of Professional Responsibility (OPR), “confirmed last year he was investigating whether the legal advice in crucial interrogation memos ‘was consistent with the professional standards that apply to Department of Justice attorneys,’” and a draft of the report, submitted in the final weeks of the Bush administration, was apparently “causing anxiety among former Bush administration officials.”

This, it was clear, was because, as Isikoff explained, “OPR investigators focused on whether the memo’s authors deliberately slanted their legal advice to provide the White House with the conclusions it wanted.” A former Bush lawyer, speaking anonymously, added that he “was stunned to discover how much material the investigators had gathered, including internal e-mails and multiple drafts that allowed OPR to reconstruct how the memos were crafted.”

What this means, I believe, is that the investigators discovered not just how Yoo and Bybee — and, later, Stephen Bradbury, the OLC’s acting head from 2005 onwards — produced legal advice that was inconsistent with the OLC’s professional standards, but also how that advice was not produced independently, but in response to demands from Dick Cheney and David Addington, and as a result of close collaboration.

It is, I hope, the smoking gun that leads to the Office of Vice President Dick Cheney — and to David Addington — as it is abundantly clear that, far from maintaining distance between Cheney’s office and the OLC, the “war team” of those who believed in unfettered executive power, including Cheney, Addington, Yoo, Pentagon lawyer Timothy Flanigan, and White House counsel, and later Attorney General Alberto Gonzales, effectively conspired in unison to justify their actions, and I raise it again here, not because there have been any great new developments in the last month — although the Justice Department’s unlikely defense of John Yoo is worth looking at, as is a New York Times article about the “torture lawyers,” and a profile of Bybee in the Las Vegas Sun — but simply because it is far too important to be allowed to drop off the radar.

“No one is above the law,” Attorney General Eric Holder has repeatedly stated. If Holder means what he says, we must demand that the OPR’s report is released.

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 see here for my definitive Guantánamo prisoner list, published in March 2009.

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

For a sequence of articles dealing with the use of torture by the CIA, on “high-value detainees,” and in the secret prisons, see: Guantánamo’s tangled web: Khalid Sheikh Mohammed, Majid Khan, dubious US convictions, and a dying man (July 2007), Jane Mayer on the CIA’s “black sites,” condemnation by the Red Cross, and Guantánamo’s “high-value” detainees (including Khalid Sheikh Mohammed) (August 2007), Waterboarding: two questions for Michael Hayden about three “high-value” detainees now in Guantánamo (February 2008), Six in Guantánamo Charged with 9/11 Murders: Why Now? And What About the Torture? (February 2008), The Insignificance and Insanity of Abu Zubaydah: Ex-Guantánamo Prisoner Confirms FBI’s Doubts (April 2008), Guantánamo Trials: Another Torture Victim Charged (Abdul Rahim al-Nashiri, July 2008), Secret Prison on Diego Garcia Confirmed: Six “High-Value” Guantánamo Prisoners Held, Plus “Ghost Prisoner” Mustafa Setmariam Nasar (August 2008), Will the Bush administration be held accountable for war crimes? (December 2008), The Ten Lies of Dick Cheney (Part One) and The Ten Lies of Dick Cheney (Part Two) (December 2008), Abu Zubaydah: The Futility Of Torture and A Trail of Broken Lives (March 2009), Ten Terrible Truths About The CIA Torture Memos (Part One), Ten Terrible Truths About The CIA Torture Memos (Part Two), 9/11 Commission Director Philip Zelikow Condemns Bush Torture Program, Who Authorized The Torture of Abu Zubaydah?, CIA Torture Began In Afghanistan 8 Months before DoJ Approval, Even In Cheney’s Bleak World, The Al-Qaeda-Iraq Torture Story Is A New Low (all April 2009), Ibn al-Shaykh al-Libi Has Died In A Libyan Prison, Dick Cheney And The Death Of Ibn al-Shaykh al-Libi, The “Suicide” Of Ibn al-Shaykh al-Libi: Why The Media Silence?, Two Experts Cast Doubt On Ibn al-Shaykh al-Libi’s “Suicide”, Lawrence Wilkerson Nails Cheney On Use Of Torture To Invade Iraq, In the Guardian: Death in Libya, betrayal by the West (in the Guardian here) (all May 2009), Lawrence Wilkerson Nails Cheney’s Iraq Lies Again (And Rumsfeld And The CIA), and WORLD EXCLUSIVE: New Revelations About The Torture Of Ibn al-Shaykh al-Libi (June 2009). Also see the extensive archive of articles about the Military Commissions.

For other stories discussing the use of torture in secret prisons, see: An unreported story from Guantánamo: the tale of Sanad al-Kazimi (August 2007), Rendered to Egypt for torture, Mohammed Saad Iqbal Madni is released from Guantánamo (September 2008), A History of Music Torture in the “War on Terror” (December 2008), Seven Years of Torture: Binyam Mohamed Tells His Story (March 2009), and also see the extensive Binyam Mohamed archive. And for other stories discussing torture at Guantánamo and/or in “conventional” US prisons in Afghanistan, see: The testimony of Guantánamo detainee Omar Deghayes: includes allegations of previously unreported murders in the US prison at Bagram airbase (August 2007), Guantánamo Transcripts: “Ghost” Prisoners Speak After Five And A Half Years, And “9/11 hijacker” Recants His Tortured Confession (September 2007), The Trials of Omar Khadr, Guantánamo’s “child soldier” (November 2007), Former US interrogator Damien Corsetti recalls the torture of prisoners in Bagram and Abu Ghraib (December 2007), Guantánamo’s shambolic trials (February 2008), Torture allegations dog Guantánamo trials (March 2008), Sami al-Haj: the banned torture pictures of a journalist in Guantánamo (April 2008), Former Guantánamo Prosecutor Condemns “Chaotic” Trials in Case of Teenage Torture Victim (Lt. Col. Darrel Vandeveld on Mohamed Jawad, January 2009), Judge Orders Release of Guantánamo’s Forgotten Child (Mohammed El-Gharani, January 2009), Bush Era Ends With Guantánamo Trial Chief’s Torture Confession (Susan Crawford on Mohammed al-Qahtani, January 2009), Forgotten in Guantánamo: British Resident Shaker Aamer (March 2009), and the extensive archive of articles about the Military Commissions.

Crawford, a retired judge who served as general counsel for the Army during the Reagan administration and as Pentagon inspector general when Dick Cheney was defense secretary for George W. Bush’s father, has served as the Convening Authority for the Commissions since February 2007. In the interview, with Bob Woodward of the Washington Post, she explained why, last May, she had decided in the case of Mohammed al-Qahtani, a Saudi accused of trying and failing to become one of the 9/11 operatives, that she would not refer his case for prosecution.

“We tortured Qahtani,” she told Woodward. “His treatment met the legal definition of torture.”

The admission was extraordinary for a number of reasons, not least because it was the first time that a senior official in the administration had admitted that a prisoner had been tortured at Guantánamo (or anywhere else, for that matter). Last February, Gen. Michael Hayden, the director of the CIA, admitted in a Senate hearing that three “high-value detainees” — the supposedly senior al-Qaeda operatives Khalid Sheikh Mohammed, Abu Zubaydah and Abdul Rahim al-Nashiri — had been waterboarded in secret CIA custody, but although lawyers and torture experts are well aware that use of the technique — a form of controlled drowning — is torture, and that the Spanish Inquisition had explicitly referred to it as “tortura del agua,” senior government officials either equivocated or continued to deny that US forces had ever engaged in torture.

For the outgoing administration, Susan Crawford’s confession means that equivocations and denials are no longer feasible, and for Barack Obama’s new government it is difficult to see how criminal proceedings can be avoided. As Dahlia Lithwick and Philippe Sands explained in an article for Slate, under the terms of the UN Convention Against Torture (to which the United States is a signatory), all 146 countries who have signed up to the treaty

are under an obligation to “ensure that all acts of torture are offences under its criminal law.” These states must take any person alleged to have committed torture (or been complicit or participated in an act of torture) who is present in their territories into custody. The convention allows no exceptions, as Gen. Pinochet discovered in 1998. The state party to the Torture Convention must then submit the case to its competent authorities for prosecution or extradition for prosecution in another country.

They added, “For the Obama administration, the door to the do-nothing option is now closed,” and any lingering doubts that this is the case should have been dispelled two days after Crawford’s interview was published, when, at his Senate confirmation hearing, Eric Holder, Barack Obama’s choice for Attorney General, stated unambiguously, “Waterboarding is torture” (reiterating the position Obama had taken on ABC News on January 11), and proceeded to explain that it had been used as a torture technique during the Spanish Inquisition, by the Japanese in World War II, and in Cambodia under the Khmer Rouge, adding, “We prosecuted our own soldiers for using it in Vietnam.”

However, despite Eric Holder’s decisive contribution to the torture debate, the impact of Crawford’s confession does not end with its application to the torture of one particular prisoner or to the use of waterboarding. Although the administration attempted to redefine torture, in its notorious “Torture Memo” of August 2002, as the infliction of pain “equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death,” Crawford was clearly more inclined to support the definition in the Torture Convention, which declares torture to be “any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person.”

In describing al-Qahtani’s treatment as torture, for example, Crawford did not object to the use of waterboarding (to which, as far as we know, al-Qahtani was not subjected), but to “a combination” of other interrogation techniques, “their duration and the impact on Qahtani’s health,” as she explained to Woodward.

“The techniques they used were all authorized, but the manner in which they applied them was overly aggressive and too persistent,” she said. “You think of torture, you think of some horrendous physical act done to an individual. This was not any one particular act; this was just a combination of things that had a medical impact on him, that hurt his health. It was abusive and uncalled for. And coercive. Clearly coercive. It was that medical impact that pushed me over the edge,” and to conclude that it was torture.

Al-Qahtani’s treatment was severe, of course. As Time magazine revealed in an interrogation log (PDF) that was made available in 2005, he was interrogated for 20 hours a day over a 50-day period in late 2002 and early 2003, when he was also subjected to extreme sexual humiliation, threatened by a dog, strip-searched and made to stand naked, and made to bark like a dog and growl at pictures of terrorists. On one occasion he was subjected to a “fake rendition,” in which he was tranquilized, flown off the island, revived, flown back to Guantánamo, and told that he was in a country that allowed torture.

In addition, as I explained in my book The Guantánamo Files,

The sessions were so intense that the interrogators worried that the cumulative lack of sleep and constant interrogation posed a risk to his health. Medical staff checked his health frequently — sometimes as often as three times a day — and on one occasion, in early December, the punishing routine was suspended for a day when, as a result of refusing to drink, he became seriously dehydrated and his heart rate dropped to 35 beats a minute. While a doctor came to see him in the booth, however, loud music was played to prevent him from sleeping.

However, although the techniques that were applied to al-Qahtani were specifically approved for use on him by defense secretary Donald Rumsfeld, after senior officers at Guantánamo had requested approval for the use of harsher interrogation techniques, it’s clear that at least two other prisoners at Guantánamo were singled out for particularly abusive treatment: Abdullah Tabarak, a Moroccan regarded as one of Osama bin Laden’s bodyguards, who (before his unexplained release from Guantánamo) was repeatedly prevented from seeing representatives of the International Red Cross due to “military necessity,” and Mohamedou Ould Slahi, a Mauritanian who had met the 9/11 hijackers in Germany, whose torture (which was arguably even more severe than that endured by al-Qahtani) was most recently reported in an article in Der Spiegel.

Moreover, as was made clear in a Senate Armed Services Committee report published last month (PDF), the techniques to which al-Qahtani, Tabarak and Slahi were subjected — which included “stripping detainees of their clothing, placing them in stress positions, putting hoods over their heads, disrupting their sleep, treating them like animals, subjecting them to loud music and flashing lights, and exposing them to extreme temperatures” — were not techniques reserved solely for use on a handful of supposedly significant prisoners.

Instead, they were part of a deliberate policy of reverse engineering techniques taught to US military personnel “to withstand interrogation techniques considered illegal under the Geneva Conventions,” and “based, in part, on Chinese Communist techniques used during the Korean war to elicit false confessions,” which effectively became part of Guantánamo’s standard operating procedure during 2003 and 2004. According to a former interrogator who spoke to the New York Times for an article that was published in January 2005,

While all the detainees were threatened with harsh tactics if they did not cooperate, about one in six were eventually subjected to those procedures …The interrogator said that when new interrogators arrived they were told they had great flexibility in extracting information from detainees because the Geneva Conventions did not apply at the base.

To get some sense of perspective, the maximum number of prisoners that Guantánamo held at any one time was around 660, which means that, according to the former interrogator’s estimate, around 110 prisoners were subjected to these techniques. And while they may not have been applied quite as harshly as they were to al-Qahtani (although the many accounts I report in The Guantánamo Files are almost as harrowing), what Susan Crawford’s confession makes abundantly clear is that, when examining the use of torture, it is not appropriate simply to look at the application of each technique in isolation (when they may not have crossed the torture threshold), but to consider that in most cases their use was combined, as it was with al-Qahtani.

Nor is this the end of the story. In response to a question from Woodward about whether she believed that Khalid Sheikh Mohammed and four other prisoners charged in connection with the 9/11 attacks were tortured, Crawford stated, “I assume torture,” even though, as Woodward explained, she “declined to say whether she considers waterboarding … to be torture.” She then attempted to explain that she “let the charges go forward” in the 9/11 trial “because the FBI satisfied her that they gathered information without using harsh techniques,” using so-called “clean teams” who gained fresh confessions without using torture.

However, although she also attempted to make a distinction between Khalid Sheikh Mohammed and Mohammed al-Qahtani by stating that “Mohammed has acknowledged his Sept. 11 role in court, whereas Qahtani has recanted his self-incriminating statements,” it is, frankly, disingenuous to claim that torture can be magically written off if a tortured prisoner apparently confesses of his own free will at a later date.

As a result, it is also apparent that Crawford’s confession infects the majority of the 19 cases currently scheduled for trial by Military Commission, and, moreover, that it has disturbing implications for the rest of the administration’s detention policies over the last seven years, including the widespread torture of prisoners in the US prisons at Kandahar and Bagram, before they were transferred to Guantánamo, the dozens of prisoners who were tortured in the “Dark Prison” and the “Salt Pit” (two secret CIA prisons in Afghanistan), the rest of the 14 “high-value detainees” transferred to Guantánamo from secret CIA prisons in September 2006, and the unknown number of other prisoners held in secret prisons run by the CIA or rendered for torture to prisons in third countries (PDF).

As if this were not enough, Crawford’s confession also affects the many thousands of prisoners in Afghanistan and Iraq, who have endured wartime detention policies in which the Geneva Conventions were replaced by the reverse engineering of “Chinese Communist techniques used during the Korean war to elicit false confessions,” and, of course, has disturbing ramifications for investigations into the as-yet unknown number of prisoners who have died in Afghanistan and Iraq (PDF) and in secret prisons as a result of the unfettered exercise of these techniques.

As the implications of all this percolate slowly through the nation’s consciousness, the only outstanding question that remains unanswered is why Susan Crawford chose to make her confession to Bob Woodward just days before the Bush administration leaves office, having never granted an interview before.

As a protégée of Vice President Dick Cheney, and a close friend of Cheney’s chief of staff David Addington (the prime architects, with Rumsfeld, of the Bush administration’s torture regime), it seems unlikely that she would have had some kind of Damascene conversion, but her interview was peppered with statements that appear, both on the surface and on closer inspection, to constitute a genuine confession. “I sympathize with the intelligence gatherers in those days after 9/11, not knowing what was coming next and trying to gain information to keep us safe,” she explained. “But there still has to be a line that we should not cross. And unfortunately what this has done, I think, has tainted everything going forward.”

If Crawford had an ulterior motive, it is not readily apparent. Elsewhere in the interview, for example, she complained that the Military Commissions should not have been empowered to accept coerced testimony, and complained about how “unprepared” the prosecutors were to bring cases to trial, and how she had had to force them to provide exculpatory evidence to the defense. She also complained about Donald Rumsfeld’s role in authorizing torture, and complained that the torture of al-Qahtani directly endangered US forces abroad. “It did shock me,” she said. “I was upset by it. I was embarrassed by it. If we tolerate this and allow it, then how can we object when our servicemen and women, or others in foreign service, are captured and subjected to the same techniques? How can we complain? Where is our moral authority to complain? Well, we may have lost it.”

She also said that, although she believed that President Bush was “right to create a system to try unlawful enemy combatants captured in the war on terrorism,” the implementation of the policy was flawed. “I think he hurt his own effort,” she explained. “I think someone should acknowledge that mistakes were made and that they hurt the effort and take responsibility for it. We learn as children it’s easier to ask for forgiveness than it is for permission. I think the buck stops in the Oval Office.”

And although she called al-Qahtani “a very dangerous man,” pointedly asked, “What do you do with him now if you don’t charge him and try him?” and handed the responsibility for dealing with him over to Barack Obama, this would have happened anyway. Perhaps — though this may be a naïve interpretation, and is certainly not meant to excuse her demonstrably poor performance as the Commissions’ Convening Authority — she had looked to the future and was establishing her position accordingly, in case, one day, a Special Prosecutor for war crimes comes knocking.

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.

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

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), Four more charged, including Binyam Mohamed (June 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), High Court rules against UK and US in case of Binyam Mohamed (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), Meltdown at the Guantánamo Trials (five trials dropped, 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), Guilt by Torture: Binyam Mohamed’s Transatlantic Quest for Justice (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), 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), Obama’s Confusion Over Guantánamo Terror Trials (June 2009).

For a sequence of articles dealing with the use of torture by the CIA, on “high-value detainees,” and in the secret prisons, see: Guantánamo’s tangled web: Khalid Sheikh Mohammed, Majid Khan, dubious US convictions, and a dying man (July 2007), Jane Mayer on the CIA’s “black sites,” condemnation by the Red Cross, and Guantánamo’s “high-value” detainees (including Khalid Sheikh Mohammed) (August 2007), Waterboarding: two questions for Michael Hayden about three “high-value” detainees now in Guantánamo (February 2008), The Insignificance and Insanity of Abu Zubaydah: Ex-Guantánamo Prisoner Confirms FBI’s Doubts (April 2008), Secret Prison on Diego Garcia Confirmed: Six “High-Value” Guantánamo Prisoners Held, Plus “Ghost Prisoner” Mustafa Setmariam Nasar (August 2008), Will the Bush administration be held accountable for war crimes? (December 2008), The Ten Lies of Dick Cheney (Part One) and The Ten Lies of Dick Cheney (Part Two) (December 2008), Prosecuting the Bush Administration’s Torturers (March 2009), Abu Zubaydah: The Futility Of Torture and A Trail of Broken Lives (March 2009), Ten Terrible Truths About The CIA Torture Memos (Part One), Ten Terrible Truths About The CIA Torture Memos (Part Two), 9/11 Commission Director Philip Zelikow Condemns Bush Torture Program, Who Authorized The Torture of Abu Zubaydah?, CIA Torture Began In Afghanistan 8 Months before DoJ Approval, Even In Cheney’s Bleak World, The Al-Qaeda-Iraq Torture Story Is A New Low (all April 2009), Ibn al-Shaykh al-Libi Has Died In A Libyan Prison, Dick Cheney And The Death Of Ibn al-Shaykh al-Libi, The “Suicide” Of Ibn al-Shaykh al-Libi: Why The Media Silence?, Two Experts Cast Doubt On Ibn al-Shaykh al-Libi’s “Suicide”, Lawrence Wilkerson Nails Cheney On Use Of Torture To Invade Iraq, In the Guardian: Death in Libya, betrayal by the West (in the Guardian here) (all May 2009), Lawrence Wilkerson Nails Cheney’s Iraq Lies Again (And Rumsfeld And The CIA), and WORLD EXCLUSIVE: New Revelations About The Torture Of Ibn al-Shaykh al-Libi (June 2009).

For other stories discussing the use of torture in secret prisons, see: An unreported story from Guantánamo: the tale of Sanad al-Kazimi (August 2007), Rendered to Egypt for torture, Mohammed Saad Iqbal Madni is released from Guantánamo (September 2008), A History of Music Torture in the “War on Terror” (December 2008), Seven Years of Torture: Binyam Mohamed Tells His Story (March 2009), and also see the extensive Binyam Mohamed archive. And for other stories discussing torture at Guantánamo and/or in “conventional” US prisons in Afghanistan, see: The testimony of Guantánamo detainee Omar Deghayes: includes allegations of previously unreported murders in the US prison at Bagram airbase (August 2007), Guantánamo Transcripts: “Ghost” Prisoners Speak After Five And A Half Years, And “9/11 hijacker” Recants His Tortured Confession (September 2007), Former US interrogator Damien Corsetti recalls the torture of prisoners in Bagram and Abu Ghraib (December 2007), Sami al-Haj: the banned torture pictures of a journalist in Guantánamo (April 2008), Judge Orders Release of Guantánamo’s Forgotten Child (Mohammed El-Gharani, January 2009), Forgotten in Guantánamo: British Resident Shaker Aamer (March 2009).

With no concrete plans announced by the President-Elect’s transition team, pundits and off-the-record officials of all political hues have stepped in to fill the void with speculation about the significance of the remaining 255 prisoners, some shrill demands for legislation endorsing “preventive detention,” some equally shrill warnings that robust techniques will be needed in future to deal with captured terrorists, and a range of opinions about whether the Guantánamo prisoners regarded as a genuine threat to the United States (estimates range from several dozen prisoners to around 80) should be transferred to the US mainland to face trials in federal courts or in another brand-new system.

Some of these opinions are genuinely troubling, and reveal the extent to which the government’s fear-filled “War on Terror” rhetoric of the last seven years has permeated the US psyche. Proposals to create new legislation authorizing “preventive detention,” for example, actually seek to justify much of what the Bush administration has been doing at Guantánamo, and it beggars belief that citizens in a civilized society founded on the rule of law could attempt to justify imprisoning people not for what they have done, but to prevent what they could conceivably do in future.

The proposal is doubly disturbing because the government’s assertions that some of the prisoners may be dangerous comes not from evidence that can be tested in a court of law, but from intelligence reports that may or may not be reliable, and from hearsay and confessions — made by other prisoners, or by the prisoners themselves — that may have been produced through the use of torture or other forms of coercion, or through bribery (a well-chronicled “rewards” system for prisoners regarded as “cooperative”).

In addition, calls for robust techniques to deal with terror suspects captured in the future are clearly influenced by the Bush administration’s arguments that prisoners seized in the “War on Terror” constitute a threat of a kind never encountered before, and that this threat justifies its attempts to redefine torture, and its endorsement of the use of torture by US forces. For the record, torture, as defined in the UN Convention Against Torture (to which the US is a signatory) is defined as “any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person,” and not, as the US administration claimed in its notorious “Torture Memo” of August 2002, an act producing pain which is “equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death.”

Those endorsing greater latitude to deal with terror suspects in future have presumably forgotten the extent to which the administration has belittled the intelligence agencies’ skilled interrogators, who contributed to 107 successful terrorist prosecutions in US federal courts without resorting to the use of torture, and its disdain for the psychological techniques enshrined in the Army Field Manual, which not only prohibits the use of torture, but of any kind of physical violence. Both, however, have a proven track record of success, unlike the torturers, whose activities constitute war crimes, however much the Bush administration has attempted to disguise them, and are also morally corrosive and counter-productive, producing, at best, ripples of truth in a sea of false confessions, with no practical way of separating fact from fiction.

Much of this has been confirmed by Dan Coleman, a senior FBI interrogator who worked on several high-profile terrorism cases before the 9/11 attacks. Coleman is on record as stating that “people don’t do anything unless they’re rewarded.” In an interview in 2006 with the New Yorker’s Jane Mayer, he acknowledged that brutality may “yield a timely scrap of information,” but is “completely insufficient” in the longer fight against terrorism. “You need to talk to people for weeks. Years,” he explained.

When it comes to proposals to establish a new trial system for terror suspects, those putting forward such ideas have obviously failed to scrutinize the failures of the system conceived by Dick Cheney and his close advisers in November 2001. Thrown out by the Supreme Court in June 2006, the Commissions were revived by Congress later that year, but have struggled to establish their legitimacy, primarily because the government-appointed military judges are empowered to accept evidence obtained through coercion, to prevent all mention of evidence obtained through torture, and to blur the distinction between the two, and also because, as I reported at length in a previous article, a growing body of evidence indicates that the entire system is rigged, with Pentagon representatives who are supposed to be impartial actually taking their orders from the heavily biased Office of the Vice President.

It remains to be seen how this chain of command — which pivots on the role played by retired judge Susan Crawford, the Commission’s “Convening Authority,” and a close friend of both Dick Cheney and his chief of staff David Addington — will survive the transition to the Obama administration, but enthusiasts for the creation of another brand-new system should really take on board the sustained opposition to the Commissions that has been mounted from within.

Those who have become implacably opposed to the system are not only the military defense lawyers, who have been prepared to sacrifice their careers in defense of justice, but also Col. Morris Davis, the former chief prosecutor, and several former prosecutors, including, most recently, Lt. Col. Darrel Vandeveld, who turned from being a “true believer to someone who felt truly deceived” by the system, when he discovered that evidence vital to the defense was being routinely withheld in the case of Mohamed Jawad, an Afghan teenager accused of a grenade attack on US forces in December 2002.

In the meantime, while enthusiasts for a new trial system indulge their largely abstract musings, the reality of the Commissions themselves continues to confound reality, as those in charge of the process persist in behaving as though it is business as usual.

On the eve of the Presidential election, the failure of the Commissions to deliver anything approaching justice was demonstrated when Ali Hamza al-Bahlul, a self-confessed member of al-Qaeda, received a life sentence for conspiracy and providing material support for terrorism, which is supposed to be served in total isolation at Guantánamo. Al-Bahlul was convicted after a disgraceful one-sided show trial in which, because of the ill-defined rules governing the Commissions, he was allowed to score what was effectively a propaganda victory for al-Qaeda by refusing to mount a defense.

Since then, the Commissions have stumbled on as though nothing changed with the elections on November 5. On November 17, the chief judge, Marine Col. Ralph Kohlmann, who had been overseeing the meandering pre-trial proceedings for Khalid Sheikh Mohammed and four other men accused of involvement in the 9/11 attacks, announced his immediate retirement, scuppering any possibility that the Commissions’ flagship trial would take place before the Bush administration leaves office.

At a hearing in September, Kohlmann had admitted that he was due to retire in April 2009, prompting Mohammed to ask him to disqualify himself from the case, on the basis that he “might inappropriately rush the proceedings.” Any kind of “rush” is now completely out of the question, of course, and instead, as Lt. Cmdr. James Hatcher (the lawyer for one of the accused, Walid bin Attash) explained, Kohlmann’s departure means that “a new round of pretrial hearings [will] be required and the new judge [will] be forced to reexamine earlier rulings,” which will “make an already complex case even more complex.”

The departure of Kohlmann, a no-nonsense operator who has been involved in the Commissions since December 2005, will certainly not make the trial system’s work any easier, especially as his chosen successor, Army Col. Stephen Henley, has “shown more patience” with defense attorneys than his predecessor (as the Miami Herald described it), and was, at the time of his appointment, the only judge to have ruled that a major part of the prosecution’s evidence in one case — that of Mohamed Jawad — was inadmissible, because it had been extracted through the use of torture.

Jawad’s trial is scheduled to begin on January 5, 2009, but the day after Henley’s appointment to the trial of Khalid Sheikh Mohammed and his alleged co-conspirators, he struck another blow to the prosecution in Jawad’s case by ruling that a second confession, made in US custody the day after his Afghan confession, was also inadmissible, partly because, as the Associated Press described it, “the US interrogator used techniques to maintain ‘the shock and fearful state’ associated with his arrest by Afghan police, including blindfolding him and placing a hood over his head.” As Henley explained in his ruling, “The military commission concludes the effect of the death threats which produced the accused’s first confession to the Afghan police had not dissipated by the second confession to the US. In other words, the subsequent confession was itself the product of the preceding death threats.”

Elsewhere in the Commissions, developments in two other cases also failed to advance the trial system’s legitimacy. In the case of Ibrahim al-Qosi, a Sudanese prisoner arraigned on November 19, the major claim against him — that he was responsible for al-Qaeda’s payroll in Khartoum, before Osama bin Laden and his entourage moved back to Afghanistan in 1996 — has been dropped by the government, and all that remains are claims that he worked at an al-Qaeda compound from 1996 to 1998, that he fought “as an al-Qaeda mortar man near Kabul from 1998 to 2001,” and that he sometimes worked as a driver and bodyguard for bin Laden.

Moreover, al-Qosi’s civilian lawyer, Lawrence Martin, has a take on his client’s role, which, for the government, must sound uncomfortably similar to that of Salim Hamdan. A Yemeni, and one of seven drivers for bin Laden, Hamdan has just been repatriated to serve out the last month of the meager sentence he received in August, after his military jury threw out the conspiracy charge against him, accepting that he knew nothing about the workings of al-Qaeda. At al-Qosi’s arraignment, Martin declared, “Mr. al-Qosi, far from being a war criminal, was a cook,” adding, “He was not even a cook for bin Laden, but a cook for a compound where bin Laden was sometimes a visitor.”

The other arraignment on November 19 — that of Mohammed Hashim, another Afghan prisoner — was even less justifiable. Hashim was charged in June with spying for al-Qaeda in Afghanistan and conducting a rocket attack on US forces, even though he was, at best, a minor Afghan insurgent. As in the cases of two other Afghans (in addition to Mohamed Jawad), it is difficult to work out how the administration construes these charges as “war crimes.” His case is complicated by the fact that his publicly available testimony — which is sprinkled with implausible references to his knowledge of the 9/11 attacks (via a member of the Northern Alliance, the implacable enemies of both al-Qaeda and the Taliban), his supposed relationship with Osama bin Laden and purported links between al-Qaeda and Saddam Hussein — suggests that he either has mental health problems, or has dreamt up the biggest lies possible to secure more favorable treatment.

Despite all these dubious developments, the most worrying sign that the Commissions continue to operate in a parallel reality also came on November 19, when Col. Lawrence Morris, the chief prosecutor, announced that charges against Mohammed al-Qahtani, which were dropped without explanation in May, were to be filed again, and that charges against five other prisoners, which were dropped last month, would also be filed again in the near future.

The case of Mohammed al-Qahtani is one of the most shocking in the whole of Guantánamo’s long and ignoble history. Regarded as the proposed 20th hijacker for the 9/11 attacks, until he was turned away by immigration officials in Orlando, Florida, al-Qahtani was apparently being questioned by the FBI with some success (through the old-school techniques favored by Dan Coleman), when the Pentagon, in the fall of 2002, grew impatient with the FBI’s results.

After securing approval from defense secretary Donald Rumsfeld for a range of “enhanced interrogations techniques,” al-Qahtani was interrogated for 20 hours a day over a 50-day period in late 2002 and early 2003, as Time magazine revealed in an interrogation log (PDF) made available in 2005. The techniques used — beyond the persistent sleep deprivation — included extreme sexual humiliation and “forced grooming” (shaving his hair and beard), and he was also threatened by dogs, strip-searched and made to stand naked, and made to bark like a dog and growl at pictures of terrorists. On one occasion he was subjected to a “fake rendition,” in which he was tranquilized, flown off the island, revived, flown back to Guantánamo, and told that he was in a country that allowed torture.

In addition, as I explained in my book The Guantánamo Files, “The sessions were so intense that the interrogators worried that the cumulative lack of sleep and constant interrogation posed a risk to his health. Medical staff checked his health frequently — sometimes as often as three times a day — and on one occasion, in early December, the punishing routine was suspended for a day when, as a result of refusing to drink, he became seriously dehydrated and his heart rate dropped to 35 beats a minute. While a doctor came to see him in the booth, however, loud music was played to prevent him from sleeping.”

Until Col. Morris made his announcement, it had been widely presumed that the charges against al-Qahtani had been dropped because — unlike the interrogations in the secret CIA prisons in which Khalid Sheikh Mohammed and other “high-value detainees” were held, which can be excluded from their trials — the details of al-Qahtani’s interrogations are not only publicly available, but were declared to be “degrading and abusive” by a Pentagon inquiry in 2005 (PDF).

However, in the parallel world of the Military Commissions, where the Bush administration’s attempts to redefine torture are clearly still embraced with enthusiasm, none of this seems to matter. Announcing his intention to charge al-Qahtani again, Col. Morris declared, as the New York Times explained, that “prosecutors had decided there was ‘independent and reliable’ evidence that Mr. Qahtani had been plotting with the Sept. 11 hijackers.”

Col. Morris also declared his intention to file new charges against the five prisoners whose charges were dropped in October, which is almost as bewildering. When the charges against Noor Uthman Muhammed, Ghassan al-Sharbi, Jabran al-Qahtani, Sufyian Barhoumi and Binyam Mohamed (photo, left) were dropped, it was widely assumed that this was because their prosecutor, Lt. Col. Vandeveld, who had just testified for the defense in Jawad’s case after turning against the government, had more revelations about the machinations of the prosecutors that would undermine their cases. This may well be true, especially in relation to Binyam Mohamed, a British resident who was sent to Morocco in 2002 so that proxy torturers could spend 18 months extracting a false confession from him regarding his role in a non-existent “dirty bomb” plot.

Mohamed is currently involved in legal wrangling over his case in courts on both sides of the Atlantic, and it is, therefore, yet another sign of the Commissions’ detachment from reality that Col. Morris is planning to file new charges against him. What it demonstrates above all, however, as with the case of Mohammed al-Qahtani, is that Barack Obama will need to act swiftly and decisively after January 20 if he is to demonstrate that, under his administration, the use of torture — and of confessions obtained through torture — will no longer be tolerated.

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

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

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), Four more charged, including Binyam Mohamed (June 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), High Court rules against UK and US in case of Binyam Mohamed (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), Meltdown at the Guantánamo Trials (five trials dropped, 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), Guilt by Torture: Binyam Mohamed’s Transatlantic Quest for Justice (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), 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), Obama’s Confusion Over Guantánamo Terror Trials (June 2009).

His case is enormously significant, as I explained in a recent article, The Dark Heart of the Guantánamo Trials, because it involved a plea bargain negotiated by Susan Crawford, the Commissions’ newly-appointed Convening Authority (the overseer of the trial system), which completely sidelined the prosecutors — and in particular, the chief prosecutor, Col. Morris Davis, who later resigned, citing political interference in the process and a desire on the part of those directing the trials to allow the use of evidence obtained through torture. Crawford, a protégée of Dick Cheney and a close friend of Cheney’s chief of staff, David Addington (the prime architect of the administration’s post-9/11 flight from the law) negotiated the plea in March 2007 as a favor to Australian Premier John Howard, following a visit from Cheney. In exchange for admitting to providing “material support for terrorism,” and dropping well-documented claims that he was abused in US custody, Hicks received a nine-month sentence, most of which was served in Australia.

2. Salim Hamdan. One of a pool of seven drivers for Osama bin Laden, the Yemeni — a father with two young daughters — was, like many of the prisoners, charged with conspiracy and providing material support for terrorism. After a two-week trial this summer, which was the Commissions’ first real test, a military jury cleared him of the conspiracy charge and gave him a five-and-a-half year sentence on the lesser charge of supporting terrorism. The judge, Capt. Keith Allred, then allowed credit for time served, which means that Hamdan’s sentence will be completed by the end of the year.

Critics of the system refused to accept the trial as legitimate (in particular, because the gray area regarding the admissibility of coerced evidence was never adequately addressed), but were delighted with the result. The government, however, which had been pressing for a 30-year sentence, was livid. After noting that Hamdan could still be held as an “enemy combatant” after his sentence is over (a notion which would surely shame all but the most hardened dictators), the Defense Department resorted to claiming that Allred was not entitled to reduce Hamdan’s sentence for time served, and called for the jury to be reconvened. Allred dismissed these claims in a terse judgment on October 30, when, having “read the filings and legal citations, as well as reviewing the sentencing hearing transcript” (as the Wall Street Journal explained), he declared, simply, “The prosecution motion to reconsider, reassemble, reinstruct and re-announce a sentence is denied.”

3. Ali Hamza al-Bahlul. Al-Bahlul’s trial — the second US “war crimes” trial since the Second World War — took place at Guantánamo in the week before the Presidential election. Unlike Salim Hamdan’s trial, however, in which justice could at least be seen to be done (even if it was refracted through a dark mirror of unspoken abuse), al-Bahlul, a Yemeni accused of producing videos for al-Qaeda and serving as a bodyguard for Osama bin Laden, refused to mount a defense, and his lawyer, Maj. David Frakt, respected his client’s wishes, and also refused to speak. As I pointed out in a recent article, Frakt was obliged to remain silent because of issues of compelled representation, which could lead to lawyers being punished in the real world outside Guantánamo for representing an unwilling client. As a result, al-Bahlul’s trial highlighted another grave problem with the Commissions: if a prisoner wished to represent himself, this was acceptable, but if he boycotted the proceedings entirely, his trial proceeded as a one-sided show trial.

On November 3, the military jury gave al-Bahlul a life sentence, but without a case for the defense, the administration was allowed to sidestep the question of al-Bahlul’s alleged torture in US custody, and was also allowed to ignore Maj. Frakt’s assertion, made before the trial began, that al-Bahlul “was not an operational combatant,” “had no role in planning terrorist activities,” and “did not engage in terrorist activities.” As I wrote at the time, “The administration will crow that it has achieved a significant victory in the ‘War on Terror,’ but al-Bahlul’s guilt should have been confirmed in a federal courtroom, where he would not have been able to score a propaganda victory for al-Qaeda by being convicted in a one-sided trial.”

4. Omar Khadr. A Canadian, Omar Khadr was just 15 years old when he was captured after a firefight in Afghanistan in July 2002, and, as a juvenile, should therefore have been rehabilitated rather then punished, according to the Optional Protocol to the UN Convention on the Rights of the Child (on the involvement of children in armed conflict). He is accused of throwing a grenade that killed a US soldier, although the disclosure of previously suppressed evidence in the last year indicates that another man threw the grenade. Because of obstruction by the prosecution, Khadr’s trial has been repeatedly delayed, and is now scheduled to begin on January 26, 2009, five days into the new US administration.

At the time of writing, there are hopes that the Canadian government will be obliged to demand his return to Canada, after it was revealed, in a Canadian court, that the government knew about his torture in Guantánamo and that their repeated claims that they had received assurances from the US authorities that he was being treated humanely were untrue. His civilian lawyer, Nate Whitling, told the court, “I don’t want to use the word ‘lie,’ but it was a demonstratively false statement that was made to the Canadian public.”

5. Mohamed Jawad. An Afghan, who was just 16 or 17 years old at the time of his capture, Jawad is accused of throwing a grenade that wounded two US soldiers and an Afghan interpreter in December 2002, although he has always claimed that Afghan police obtained his “confession” through torture.

In the last month, Jawad’s case has threatened the legitimacy of the entire Commission process, after his prosecutor, Lt. Col. Darrel Vandeveld, resigned. He explained that the system was designed to prevent the disclosure of evidence essential to the defense, and described how evidence proving that Jawad was a juvenile, that he was tricked into joining an insurgent group and was drugged before the attack, and that two other men had confessed to the crime, had been deliberately suppressed. Terrified that Vandeveld has more damaging revelations, the administration recently dropped the charges against five other prisoners — Noor Uthman Muhammed, Ghassan al-Sharbi, Jabran al-Qahtani, Sufyian Barhoumi and Binyam Mohamed — for whom Vandeveld was the prosecutor. The government added that it intended to refile charges against the five men in November, but did not explain how it intended to silence Vandeveld indefinitely.

All five were reportedly connected with Abu Zubaydah (photo, left), a training camp facilitator who is regarded by the US administration as a senior al-Qaeda operative, even though the FBI regards him only as a minor logistician with a personality disorder. The government has not explained why Zubaydah has not been charged, but in May it charged Muhammed, a Sudanese prisoner, with serving as the deputy emir and a weapons instructor at the Khaldan training camp in Afghanistan, even though Muhammed has insisted that Khaldan had nothing to do with either al-Qaeda or the Taliban. In June, al-Sharbi and al-Qahtani (both Saudis) and Barhoumi (an Algerian) were charged with various plots involving explosives, and Binyam Mohamed, a British resident whose lawyers have been engaged in a transatlantic struggle to secure evidence relating to the two years he spent being tortured in Morocco and in a secret CIA prison in Afghanistan, was charged with plotting to detonate a “dirty bomb” in a US city (the same non-existent plot that was used to hold US citizen Jose Padilla for three and a half years as an “enemy combatant” on the US mainland).

At the time of writing, the judge in Jawad’s case, Army Col. Stephen Henley, moved one step closer to dismissing the case by ruling that his “confession,” obtained in Afghan custody, was inadmissible, because it had been extracted through the use of torture (confirming Jawad’s repeated claims). As the Miami Herald reported, Henley found that there was “reason to believe Jawad was under the influence of drugs at the time of his capture and forced confession,” and also “accepted the accused’s account of how he was threatened, while armed senior Afghan officials allied with US forces watched his interrogation.” He stated that he believed Jawad’s account of an interrogator telling him, “You will be killed if you do not confess to the grenade attack. We will arrest your family and kill them if you do not confess.” He also made a point of stating that he was accepting Jawad’s account because the government had failed to provide “timely disclosure of evidence” for his trial, which is scheduled to begin on January 5, 2009.

Noting that Henley was explicitly rejecting the administration’s notorious attempts to redefine torture, Maj. David Frakt, Jawad’s tenacious defense attorney, congratulated the judge for “adopting a traditional legal definition of torture, rather than making one up,” and Lt. Col. Vandeveld also spoke out, telling the Associated Press that Jawad’s “confession” to Afghan officials was “among the most important evidence for his upcoming war crimes trial,” and adding, “To me, the case is not only eviscerated, it is now impossible to prosecute with any credibility.”

6. Ahmed al-Darbi. A Saudi, who is accused of plotting attacks on shipping for al-Qaeda, al-Darbi was kidnapped in Azerbaijan and rendered to Guantánamo in 2002, via the US prison at Bagram airbase, where he has claimed that he was severely abused. At his arraignment in April, he refused to take part in the Commissions, prompting his military-appointed lawyer, Army Lt. Col. Bryan Broyles, to comment that, in order to comply with established legal rules that prevent lawyers from representing clients who refuse their services (as in Ali Hamza al-Bahlul’s case), his role in al-Darbi’s forthcoming trial was now equivalent to that of a “potted plant.”

At a short pre-trial hearing in September, Broyles announced his resignation from the case, reiterating his complaints about compelled representation, and explaining that al-Darbi never came to trust him because “the attorney-client relationship is close to impossible to establish” in a system in which a lawyer is imposed on a prisoner, and that it was “compounded by the fact that counsel wear the same uniform as [the prisoner's] interrogators.” As a parting shot, Broyles was asked what he thought about the chief prosecutor’s claim that al-Darbi’s trial would be completed before the new administration takes office. “It’s not about timing,” he said, “it’s about doing justice.” While a new defense team was being arranged, al-Darbi was represented by his civilian lawyer, Ramzi Kassem.

7. Ibrahim al-Qosi. A Sudanese, who is accused of being a bodyguard and a driver for Osama bin Laden, and a quartermaster for al-Qaeda, al-Qosi was previously charged in the Commissions’ first aborted incarnation. In April, he also boycotted his pre-trial hearing, telling the judge, “I do not recognize the justice or the lawfulness of this court,” and adding, “What is happening in your courts is in fact a sham, which aims solely that the cases move at the pace of a turtle in order to gain some time to keep us in these boxes without any human or legal rights.” To the best of my knowledge, no date has yet been set for al-Qosi’s trial, even though it was one of the cases that the chief prosecutor, Col. Lawrence Morris, wanted to see completed before the new administration takes office in January 2009.

8. Khalid Sheikh Mohammed (KSM). Reportedly the third most important figure in al-Qaeda, after Osama bin Laden and Ayman al-Zawahiri, KSM, who was captured in Pakistan in March 2003, and the four men described below are among the 14 “high-value detainees” transferred to Guantánamo in September 2006 after being held for years in secret prisons run by the CIA. KSM confessed in his military tribunal in Guantánamo last year (convened to confirm that he was an “enemy combatant” who could be tried by Military Commission) that he was “responsible for the 9/11 operation, from A to Z.” He is one of three “high-value detainees” whom CIA director Michael Hayden admitted had been subjected to waterboarding (a torture technique that involves controlled drowning) while held in CIA custody.

KSM and his co-defendants were charged in February, and arraigned in June. In September, at a pre-trial hearing, KSM dominated the proceedings. Taking advantage of the fact that the Military Commissions Act allows prisoners to represent themselves (but only if they are willing to mount a defense, as revealed in the case of Ali Hamza al-Bahlul), he cheekily quizzed the judge, Marine Col. Ralph Kohlmann, about his beliefs, as part of the voir dire process (which allows lawyers to question the judge’s impartiality), and enjoyed a media platform which, ironically, would not have been available to him if he was being prosecuted in a courtroom on the US mainland.

9. Ramzi bin al-Shibh. A Yemeni, and reportedly a friend of the 9/11 hijackers, who helped coordinate the attacks with KSM after he was unable to enter the United States to train as a pilot for the operation, bin al-Shibh was captured in Pakistan in September 2002. After being held in secret CIA custody for four years, he refused to take part in his tribunal at Guantánamo, and only finally spoke at the pre-trial hearing in September. His lawyers, whom he is seeking to dismiss, are engaged in a legal tussle to secure an independent psychiatric evaluation of bin al-Shibh, who is receiving psychotropic drugs that are typically used for schizophrenia. At the hearing in September, Col. Kohlmann refused to allow the lawyers to visit Camp 7, the secret prison within Guantánamo where the “high-value detainees” are held, but on October 27 he relented, ruling that the lawyers should be allowed to visit the block to “inspect the defendant’s conditions of confinement as part of an inquiry into his mental health.”

10. Mustafa al-Hawsawi. A Saudi, who was captured with KSM, al-Hawsawi is accused of sourcing funding for the 9/11 attacks from Dubai. In his tribunal at Guantánamo, he admitted providing support for jihadists, including transferring money for some of the 9/11 hijackers, although he denied that he was a member of al-Qaeda. At the arraignment in June, it appeared that KSM and some of al-Hawsawi’s other co-defendants put pressure on him to refuse the services of his lawyer, Army Maj. Jon Jackson, but at the pre-trial hearing in September Jackson was still arguing his client’s corner. Explaining that his client “doesn’t understand about a quarter of the court proceedings because of incomprehensible interpretation,” he complained that the government had opposed a request for “transcripts of each day’s proceedings to be made available in English and Arabic so that they can go over each day’s events with their clients and make corrections for the record,” adding, “I could not believe my government would not provide transcripts in the native language of the accused that it wants to put to death.”

11. Ali Abdul Aziz Ali. Also known as Ammar al-Baluchi, he is a nephew of KSM, and was captured in Pakistan with Walid bin Attash (see below) in April 2003. In his tribunal at Guantánamo last year, he admitted transferring money on behalf of some of the 9/11 hijackers, but insisted that he was a legitimate businessman, who regularly transferred money for Arabs, without knowing what it would be used for. At the arraignment and the pre-trial hearing, he has spoken little, but has demonstrated a firm command of English, and a desire to highlight the inadequacies of the system and his torture at the hands of US forces. At the arraignment, he responded to Col. Kohlmann’s assurance of his right to legal assistance by stating, “Everything that has happened here is unfair and unjust,” and added, referring specifically to the offer of free legal representation, “Since the first time I was arrested, I might have appreciated that. The government is talking about lawyers free of charge. The government also tortured me free of charge all these years.”

12. Walid bin Attash. A Saudi, who lost a leg in Afghanistan before 9/11, bin Attash stated in his tribunal at Guantánamo that he was the link between Osama bin Laden and the Nairobi cell during al-Qaeda’s African embassy bombings in 1998, and admitted that he played a major part in the bombing of the USS Cole in 2000, explaining that he “put together the plan for the operation for a year and a half,” and that he bought the explosives and the boat, and recruited the bombers. Like KSM and Ali Abdul Aziz Ali, he has chosen to represent himself, although he is able to take advantage of the assistance of attorneys. In early October, Col. Kohlmann ruled that the men should be provided with “enough battery power to use their prison camp laptops [which contain the government’s unclassified evidence against them] 12 hours a day,” but stopped short of allowing them to “surf the Internet.”

Initially charged with the five men above, Mohammed al-Qahtani, a Saudi who was reportedly intended to be the 20th hijacker for the 9/11 attacks, but was refused entry into the United States by immigration officials, was tortured for several months at Guantánamo in late 2002 and early 2003. The charges against him were dropped in May, when the others were formally charged, either because evidence of his torture is admissible (whereas that obtained in secret prisons by the CIA is not), or because of a pronounced deterioration in his mental health since he was first charged, which led to a number of suicide attempts. It is unlikely that he will be charged again.

13. Ahmed Khalfan Ghailani. A Tanzanian, and one of the 14 “high-value detainees” transferred to Guantánamo from secret CIA prisons in September 2006, Ghailani, who was captured after a gun battle in Gujrat, Pakistan in July 2004, is accused of being a coordinator of the African embassy bombings, and of running a document-forging operation for al-Qaeda in Afghanistan. In his tribunal, he described himself as a peripheral character in the African embassy bombings, who was duped by others around him, although he admitted forging documents for al-Qaeda in Afghanistan.

On October 22, Ghailani was formally arraigned. Judy Rabinovitz, an observer for the American Civil Liberties Union, reported that the occasion “was not particularly enlightening,” and that the judge “essentially followed a script,” advising Ghailani that he had “a right to obtain civilian counsel in addition to his assigned military counsel,” and “repeatedly asking [him] if he understood what was going on.” A trial date is scheduled for February 2009. As Rabinovitz also noted, Ghailani was indicted in the United States ten years ago for the same crimes with which he is now being charged, “and several of his co-defendants in the federal proceedings have already been convicted and sentenced,” whereas Ghailani faces a dubious trial following years of mistreatment in secret CIA custody.

14. Mohammed Kamin. An Afghan seized in 2003, Kamin’s case is one of the more farcical cases put forward for trial. He is not charged with harming, let alone killing US forces, and is, instead, accused of receiving training at “an al-Qaeda training camp.” For his arraignment in May, he refused to leave his cell, and was dragged to the court by guards, arriving with bruises, cuts and a swollen eye. The judge, Air Force Col. W. Thomas Cumbie, explained that he was handcuffed and shackled because he had “attempted to spit on and bite one of the guards” on his way to the courtroom. Kamin then refused to be represented by a US military lawyer, and called the charges “a lie and a forgery.”

On October 23, a pre-trial hearing took place, although Kamin was not present. Judy Rabinovitz noted, “The officer who had been responsible for bringing him to court said that when she went to Kamin’s cell to notify him of the hearing, he ripped up the notice, began kicking and hitting the cell door and stated that he was innocent and it was President Bush who should be on trial.” She added that a prosecution motion “to compel Kamin’s presence by ‘forcibly extracting’ him from his cell was denied after defense lawyers objected on the grounds that it would put Kamin and others at risk,” although it was clear that the motion was denied in particular because the judge did not want a repeat of May’s proceedings.

The rest of the hearing was farcical. Rabinovitz explained that a mental status evaluation had found that Kamin was competent to participate in the proceedings, even though the two military doctors “had never met or observed the defendant,” and one, Col. Elspeth Cameron Ritchie, “has been criticized for assisting in the interrogation process.” As with other cases — including that of Omar Khadr — the defense sought to appoint an independent psychiatric expert, a proposal which was vigorously opposed by the prosecution, and also raised the issue of obstruction, which was timely, in the wake of Lt. Col. Vandeveld’s resignation. Although they accused the intelligence agencies of a “systemic failure” to cooperate with their requests for discovery, and asked the judge to dismiss the case, “as a sanction for the government’s failure to comply with the discovery process in a timely manner, but also as a deterrent to the intelligence agencies that continue to drag their feet, jeopardizing the integrity of the process,” the judge refused.

15. Mohammed Hashim. Another minor Afghan insurgent (at best), Hashim was charged in June with spying for al-Qaeda in Afghanistan and conducting a rocket attack on US forces. As with the case of Mohammed Kamin, it is difficult to work out how the administration construes these charges as “war crimes,” and in Hashim’s case this is complicated by the fact that his publicly available testimony — which is sprinkled with implausible references to 9/11, Osama bin Laden and links between al-Qaeda and Saddam Hussein — suggests that he either has mental health problems, or has dreamt up the biggest lies possible to secure more favorable treatment. Despite this, Susan Crawford approved the charges against Hashim on October 21.

16. Abdul Rahim al-Nashiri. A Saudi, and another of the 14 “high-value detainees” transferred to Guantánamo from secret CIA prisons in September 2006, al-Nashiri, who was seized in the United Arab Emirates in November 2002, was charged at the start of July for his alleged role in the attacks on the USS The Sullivans and the USS Cole in 2000, and the French tanker Limburg in 2002. What will undoubtedly complicate his case, should it come to trial, is the fact that he is one of three “high-value detainees” whom CIA director Michael Hayden admitted had been subjected to waterboarding in secret CIA custody, and in his tribunal at Guantánamo last year he made a point of mentioning that he had made up false confessions after being tortured. “From the time I was arrested five years ago,” he said, “they have been torturing me. It happened during interviews. One time they tortured me one way, and another time they tortured me in a different way. I just said those things to make the people happy. They were very happy when I told them those things.”

17. Abdul Ghani. Yet another minor Afghan insurgent, Ghani was charged at the end of July with firing rockets at US forces, planting “land mines and other explosive devices on more than one occasion for use against US and coalition forces,” attacking Afghan soldiers, and “accept[ing] monetary payments, including payment from al-Qaeda and others known and unknown, to commit attacks on US forces and bases.” As I wrote at the time, “Apart from the inclusion of the magic words ‘al-Qaeda,’ there was nothing in Abdul Ghani’s charge sheet to indicate that he should find himself in the same trial system as those accused of involvement in the 9/11 attacks, the African embassy bombings of 1998 or the bombing of the USS Cole in 2000, or even, in fact, that he should have been sent to Guantánamo at all.”

18. Obaidullah. If anything, the case against Obaidullah, another Afghan, is even less explicable. In September, he was charged with hiding explosives, which he “knew or intended” would be “used in preparation for and in carrying out a terrorist attack.” The charges were astonishing, because he was not actually accused of attacking US forces, and, according to the transcripts of his tribunal and review boards at Guantánamo, he made it clear that he had come up with false confessions while being threatened by US forces in a prison at the airport in Khost, in eastern Afghanistan.

19. Faiz al-Kandari. The first of two Kuwaitis to be put forward for trial, al-Kandari was charged with conspiracy and providing material support for terrorism on October 22. Seized during the Tora Bora campaign in December 2001, when members of al-Qaeda and the Taliban were holed up in the Afghan mountains near Pakistan, and numerous other civilians were attempting to flee the chaos of war, al-Kandari has always maintained that he traveled to Afghanistan to provide humanitarian aid, but is accused or providing instruction to al-Qaeda members and trainees at the al-Farouq camp (the main training camp for Arabs), serving as an adviser to Osama bin Laden, and producing “recruitment audio and video tapes which encouraged membership in al-Qaeda and participation in jihad,” even though he only arrived in Afghanistan a month before the 9/11 attacks.

20. Fouad al-Rabia. Also charged with conspiracy and providing material support for terrorism, al-Rabia, a businessman — and a father of four who was 42 years old when he was seized — is accused of raising funds for al-Qaeda, and being “in charge of an al-Qaeda supply depot at Tora Bora,” where he “distributed supplies to al-Qaeda fighters.” He has never denied meeting Osama bin Laden, but has explained that, as a good Muslim who undertook humanitarian aid missions every year, he was introduced to bin Laden in 2001 while visiting Afghanistan to research the opportunities for proving aid to the region.

He has also explained that he only ended up in Tora Bora as part of a vast exodus of people — civilians like himself, as well as members of al-Qaeda and the Taliban — who were fleeing the chaos of Afghanistan after the US-led invasion of October 2001, but had conceded that a senior figure in al-Qaeda forced him to look after the “issue counter,” where supplies — food and blankets, rather then weapons — were being handed out, in exchange for arranging for him to leave the mountains, when he was promptly sold by local villagers to the Northern Alliance.

In conjunction with the continuing setbacks described above, the one-sided show trial of Ali Hamza al-Bahlul, investigations into the alleged misconduct of the Commissions’ former legal adviser (described here), and the continuing threat to the credibility of the system that is posed by Lt. Col. Vandeveld, the latest charges do nothing to suggest that the life of the Military Commissions should be extended beyond January 20, 2009.

President Obama should press Congress to repeal the Military Commissions Act, as he promised, and should rapidly establish an objective and intelligent body capable of reviewing the cases of those facing (or scheduled to face) trial by Military Commission, stripping out the juveniles and insignificant Afghan insurgents (who should be freed) from those regarded as genuinely dangerous terrorists involved with al-Qaeda and/or the 9/11 attacks, who should be moved to the US mainland to face trials in federal courts.

After the crimes of the Bush years, no solution is perfect (and these trials will inevitably involve a messy compromise over the use of torture), but I can see no other practical solution. Talk of moving prisoners to the federal court system has already provoked a rash of commentators to step forward and talk about the need for new legislation creating another new trial system or providing a mandate for special “preventive detention” for “terror suspects,” but all such innovations should be resisted. I can only wonder how it is that those proposing such ideas have managed to learn nothing at all from the abuse of the Constitution over the last seven years.

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

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

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), Four more charged, including Binyam Mohamed (June 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), High Court rules against UK and US in case of Binyam Mohamed (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), Meltdown at the Guantánamo Trials (five trials dropped, 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), Guilt by Torture: Binyam Mohamed’s Transatlantic Quest for Justice (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), Obama’s Confusion Over Guantánamo Terror Trials (June 2009).

1. David Hicks. An Australian, who was captured in Afghanistan in December 2001, Hicks accepted a plea bargain in March 2007, admitting to providing “material support for terrorism,” and dropping well-documented claims that he was abused in US custody, in exchange for a nine-month sentence, the majority of which was served in Australia. It has been claimed, plausibly, that his plea bargain was the result of political maneuvering between US Vice President Dick Cheney and Australian Prime Minister John Howard.

2. Omar Khadr. A Canadian, who was just 15 years old when he was captured after a firefight in Afghanistan in July 2002, Khadr is accused of killing a US soldier, although developments over the last six months in his pre-trial hearings suggest that exculpatory evidence, indicating that he was not responsible for the murder, was withheld from his defense team. In the latest twist in Khadr’s case, the Canadian Supreme Court ruled last week that Canadian agents acted illegally when they interrogated Khadr at Guantánamo in 2003 and handed the intelligence to US authorities.

3. Salim Hamdan. A Yemeni, who was a driver for Osama bin Laden and was captured while attempting to cross the Pakistani border in December 2001, Hamdan is accused of being an active member of al-Qaeda, although his defense team argues that he was just a paid employee. It was Hamdan’s case, Hamdan v. Rumsfeld, that caused the Supreme Court to rule that the first version of the Commissions were illegal in June 2006 (although they were later revived by Congress). In April, Hamdan decided to boycott his trial proceedings, and on May 9, following a blistering attack on the legitimacy of the Commissions by their former chief prosecutor, Col. Morris Davis, the judge in Hamdan’s case, Capt. Keith Allred, took the unprecedented step of barring the Commissions’ Pentagon-appointed legal adviser, Brig. Gen. Thomas Hartmann, from playing any further part in Hamdan’s trial. The following week, Capt. Allred made headlines again by postponing the start date of Hamdan’s trial until late July, citing the importance of a pending Supreme Court decision about the prisoners’ rights.

4. Mohamed Jawad. An Afghan, who was just 16 or 17 years old at the time of his capture, Jawad is accused of throwing a grenade that wounded two US soldiers and an Afghan interpreter in December 2002, although he has always claimed that Afghan police obtained his “confession” through torture. At his arraignment in March, he rejected the trial proceedings, and alleged that he had been tortured at the US prison at Bagram airbase in Afghanistan, and had been mistreated in Guantánamo. At a pre-trial hearing in May, Air Force Major David Frakt, who was assigned to represent him on April 28, told the court, “Mr. Jawad is an innocent man. He has been held for five years. He was a homeless boy wrongfully accused and beaten into confession by the Afghanistan police.”

5. Ahmed al-Darbi. A Saudi, who is accused of plotting attacks on shipping for al-Qaeda, al-Darbi was kidnapped in Azerbaijan and rendered to Guantánamo via Afghanistan in 2002. At his arraignment in April, he refused to take part in the Commissions, prompting his military-appointed lawyer, Army Lt. Col. Bryan Broyles, to comment that, in order to comply with established legal rules that prevent lawyers from representing clients who refuse their services (which are worryingly at odds with the Commissions’ own rules), his role in al-Darbi’s forthcoming trial was now equivalent to that of a “potted plant.”

6. Ibrahim al-Qosi. A Sudanese, who is accused of being a bodyguard and a driver for Osama bin Laden, and a quartermaster for al-Qaeda, al-Qosi, who was captured after crossing the Pakistani border in December 2001, was previously charged in the Commissions’ first aborted incarnation. In April, he also boycotted his pre-trial hearing, telling the judge, “I do not recognize the justice or the lawfulness of this court,” and adding, “What is happening in your courts is in fact a sham, which aims solely that the cases move at the pace of a turtle in order to gain some time to keep us in these boxes without any human or legal rights.”

7. Ali Hamza al-Bahlul. A Yemeni, who is accused of producing videos for al-Qaeda and serving as a bodyguard for Osama bin Laden, al-Bahlul, who was captured after crossing the Pakistani border in December 2001, was previously charged in the Commissions’ first aborted incarnation. In May, he also boycotted his pre-trial hearing, proudly proclaiming his association with Osama bin Laden, and telling the judge, “We will continue our jihad and nothing’s going to stop us. You must not oppress the people in the land. Your oppression against us and your support to the strategic ally in the region is what made me leave my house and today, I’m telling you, and you’re a man of law, if you sentence me to life … me and the others will be the reason for the continuation of the war against America.”

8. Khalid Sheikh Mohammed (KSM). Reportedly the third most important figure in al-Qaeda, after Osama bin Laden and Ayman al-Zawahiri, KSM, who was captured in Pakistan in March 2003, and the four men described below are among the 14 “high-value detainees” transferred to Guantánamo in September 2006 after being held for years in secret prisons run by the CIA. KSM confessed in his military tribunal in Guantánamo last year (convened to confirm that he was an “enemy combatant” who could be tried by Military Commission) that he was “responsible for the 9/11 operation, from A to Z.” He is one of three “high-value detainees” whom CIA director Michael Hayden admitted had been subjected to waterboarding (a torture technique that involves controlled drowning) while held in a secret prison run by the CIA.

KSM and his co-defendants, who were charged in connection with the 9/11 attacks in February, are due to be arraigned on June 5, although his recently appointed military lawyer, Navy JAG Prescott Prince, recently told the Los Angeles Times, “I think it’s the constitutional case of our time. Because in the 221st year of America, the question is whether the Constitution applies to the government.” He added, “I have no idea whether he did even half of those things he is accused of doing. But if he did commit those offenses, there are still issues of whether this court has jurisdiction, whether he is an enemy combatant who should be tried in a tribunal of this nature.” Prince also said, “He (KSM) believes his treatment has been illegal. I believe it’s been illegal too. And I personally believe that he cannot, as a result of all these things, get a fair trial.”

9. Ramzi bin al-Shibh. A Yemeni, and reportedly a friend of the 9/11 hijackers, who helped coordinate the attacks with KSM after he was unable to enter the United States to train as a pilot for the operation, as he originally planned, bin al-Shibh was captured in Pakistan in September 2002. After being held in secret CIA custody for four years, he refused to take part in his tribunal at Guantánamo, and if he speaks at his arraignment it will be his first publicly available statement since his capture.

10. Mustafa al-Hawsawi. A Saudi, who was captured with Khalid Sheikh Mohammed, al-Hawsawi is accused of sourcing funding for the 9/11 attacks from Dubai. In his tribunal at Guantánamo, he admitted providing support for jihadists, including transferring money for some of the 9/11 hijackers, although he denied that he was a member of al-Qaeda. Last week, his lawyer, Army Maj. Jon Jackson, sought fruitlessly to delay his arraignment, in particular because he has only been allowed to meet his client twice, and “has not received any potential evidence against al-Hawsawi supporting charges that ‘allege a complex conspiracy spanning several years,’” as the Associated Press put it.

11. Ali Abdul Aziz Ali. Also known as Ammar al-Baluchi, he is a nephew of KSM, and was captured in Pakistan with Walid bin Attash (see below) in April 2003. In his tribunal at Guantánamo last year, he admitted transferring money on behalf of some of the 9/11 hijackers, but insisted that he was a legitimate businessman, who regularly transferred money for Arabs, without knowing what it would be used for.

12. Walid bin Attash. A Saudi, who lost a leg in Afghanistan before 9/11, bin Attash stated in his tribunal at Guantánamo that he was the link between Osama bin Laden and the Nairobi cell during al-Qaeda’s African embassy bombings in 1998, and admitted that he played a major part in the bombing of the USS Cole in 2000, explaining that he “put together the plan for the operation for a year and a half,” and that he bought the explosives and the boat, and recruited the bombers.

13. Mohammed al-Qahtani. A Saudi, who was reportedly recruited as the 20th hijacker for the 9/11 attacks, but was refused entry into the United States by immigration officials, al-Qahtani was tortured for several months at Guantánamo in late 2002 and early 2003. Although he was put forward for trial by Military Commission in February, with KSM and the other four men described above, the charges against him were dropped in May, when the others were formally charged, either because evidence of his torture is admissible (whereas that obtained in secret prisons by the CIA is not), or because of a pronounced deterioration in his mental health since he was first charged, which led to a number of suicide attempts. It’s possible, but unlikely that he will be charged again.

14. Ahmed Khalfan Ghailani. A Tanzanian, and one of the 14 “high-value detainees” transferred to Guantánamo from secret CIA prisons in September 2006, Ghailani, who was captured after a gun battle in Gujrat, Pakistan in July 2004, is accused of being a coordinator of the African embassy bombings, and of running a document-forging operation for al-Qaeda in Afghanistan. In his tribunal, he described himself as a peripheral character in the African embassy bombings, who was duped by others around him, although he admitted forging documents for al-Qaeda in Afghanistan. Evidence of a revealing false allegation that he made in Guantánamo, which I discovered during research for The Guantánamo Files, was reported here.

15. Mohammed Kamin. An Afghan, who was captured in 2003, Kamin is accused of “providing material support for terrorism,” specifically by receiving training at “an al-Qaeda training camp,” conducting surveillance on US and coalition military bases and activities, planting two mines under a bridge, and launching missiles at the city of Khost while it was occupied by US and coalition forces. He is not charged with harming, let alone killing US forces, and were it not for his supposed al-Qaeda connection — he apparently stated in interrogation that he was “recruited by an al-Qaeda cell leader” — it would, I think, be impossible to make the case that he was involved in “terrorism” at all.

For his arraignment on May 21, 2008, Kamin refused to leave his cell, and was dragged to the court by guards. The judge, Air Force Col. W. Thomas Cumbie, explained that he was handcuffed and shackled because he had “attempted to spit on and bite one of the guards” on his way to the courtroom. Refusing to be represented by a US military lawyer, Kamin called the charges “a lie and a forgery,” according to Reuters, adding that he had no connection with al-Qaeda or the Taliban, and that he “did not recognize the court’s legitimacy and would not attend future hearings.” In a brief statement, he said, “My judge is the god that has created the sky and the land. He will be my lawyer and represent me. I wait for his decision. That’s enough.”

16. Noor Uthman Muhammed. A Sudanese, Muhammed was captured in Pakistan in March 2002, during the raid that netted the alleged senior al-Qaeda operative Abu Zubaydah (whose significance is disputed, along with his mental health). While Abu Zubaydah has not been charged before the Military Commissions, Muhammed was charged with “conspiracy” and “providing material support for terrorism” on May 23, 2008. He is accused of serving as the deputy emir and a weapons instructor at the Khaldan training camp in Afghanistan from 1996 to 2000, when the camp was closed. It is also alleged that he delivered a fax machine to Osama bin Laden at a training camp in 1999.

Noticeably, these charges do not relate to the 9/11 attacks, and in his tribunal at Guantánamo in 2004, Muhammed insisted that Khaldan was “a place to get training” that had nothing to do with either al-Qaeda or the Taliban. “People come over to that camp, train for about a month to a month and a half, then they go back to their hometown,” he said, adding that what the people did with the training they received was their own business. This may well have been an evasive explanation on Muhammed’s part, but he is not the only prisoner to state that Khaldan was not connected with al-Qaeda, and that Abu Zubaydah did not have a close relationship with the leadership of al-Qaeda. Similar claims, as I reported here, were made by Abu Zubaydah himself, and by a released Saudi prisoner called Khalid al-Hubayshi, and it will be interesting to see what Muhammed will have to say when he is arraigned — unless, of course, he follows recent trends by boycotting the proceedings completely.

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 see here for my definitive Guantánamo prisoner list, published in March 2009.

As published on CounterPunch, the Huffington Post and Anti-war.com.

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), Four more charged, including Binyam Mohamed (June 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), High Court rules against UK and US in case of Binyam Mohamed (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), Meltdown at the Guantánamo Trials (five trials dropped, 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), Guilt by Torture: Binyam Mohamed’s Transatlantic Quest for Justice (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), Obama’s Confusion Over Guantánamo Terror Trials (June 2009).

This additional chapter complements Chapter 5 of The Guantánamo Files, looking at the stories of 16 prisoners not mentioned in the book, who were the first to be captured crossing from Afghanistan to Pakistan in December 2001. They are referred to as “Osama’s bodyguards,” because of dubious allegations made by Mohammed al-Qahtani, an alleged “20th hijacker” for the 9/11 attacks, during the months that he was tortured at Guantánamo in late 2002 and early 2003, but their stories also contain many other unattributed allegations made by unidentified sources and “al-Qaeda operatives” that are equally suspicious.

Nearly six and a half years since Guantánamo opened, it is to America’s shame that this is the first time that many of these men’s stories have been revealed, especially as none of them appear to have had anything whatsoever to do with the inner workings of al-Qaeda or the 9/11 attacks, which is the purported reason for their long incarceration without charge or trial.

It is, I believe, equally shameful that the majority of them –- who are from the Yemen –- remain in Guantánamo, with no sign of when, if ever, they will be released, because of the inability of the US and Yemeni governments to come to some sort of agreement about the conditions of their repatriation. The fact that the majority of the Saudis –- whose stories are remarkably similar –- were repatriated in 2006 and 2007 only adds to the realization that Guantánamo –- touted as a prison holding “the worst of the worst” –- is actually a failed experiment in torture and interrogation, and that politics, rather then justice, determines who gets to leave, and when.

Note: The first two additional chapters are available here and here, and see the column on the left for the other nine.

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 see here for my definitive Guantánamo prisoner list, published in March 2009.

In the last few weeks, however, Cheney’s dream has been souring at an even more alarming rate than usual. Following boycotts of pre-trial hearings in March and April by three prisoners — Mohamed Jawad, Ahmed al-Darbi and Ibrahim al-Qosi — the latest appearance by Salim Hamdan, a Yemeni who worked as a driver for Osama bin Laden, spread the words “boycott” and “Guantánamo” around the world.

Salim Hamdan’s boycott

Hamdan is no ordinary Guantánamo prisoner. It was his case, Hamdan v. Rumsfeld, that shut down the Military Commissions’ first incarnation in June 2006, when the Supreme Court ruled that they were illegal, a decision that forced the administration to press new legislation — the Military Commissions Act — through a sleeping Congress later that year.

But Hamdan’s fame meant little to him on April 29, when he too decided to boycott his trial, telling Navy Capt. Keith Allred, the judge in his last pre-trial hearing before his trial is scheduled to begin, “The law is clear. The Constitution is clear. International law is clear. Why don’t we follow the law? Where is the justice?”

For his part, Capt. Allred did not give up without attempting to persuade Hamdan that he should believe in the legal process before which he found himself. “You should have great faith in the law,” he said. “You won. Your name is all over the law books.” This was true, but it was little consolation for Hamdan, who was charged again as soon as the Commissions were revived in Congress. Nor could Capt. Allred’s addendum — “You even won the very first time you came before me” — sway him, even though that too was true.

Last June, when Hamdan appeared before Capt. Allred for the first time, in the first pre-trial hearing for his new Military Commission, Allred dismissed the case, pointing out that the Military Commissions Act, which had revived the Commissions, applied only to “unlawful enemy combatants,” whereas Hamdan, and every other prisoner in Guantánamo for that matter, had only been determined to be “enemy combatants” in the tribunals — the Combatant Status Review Tribunals — that had made them eligible for trial by Military Commission.

It was small wonder that Hamdan was despondent, however. Two months later, an appeals court reversed Allred’s decision, and Hamdan — twice a victor — was charged once more, and removed from a privileged position in Guantánamo’s Camp IV — reserved for a few dozen compliant prisoners who live communally — to Camp VI, where, like the majority of the prisoners, he has spent most of his time in conditions that amount to solitary confinement, and where, as his lawyers pointed out in February, his mental health has deteriorated significantly.

As he prepared to boycott proceedings, Hamdan had a few last questions for Capt. Allred. He asked the judge why the government had changed the law — “Is it just for my case?” — and responded to Allred’s insistence that he would do everything he could to give him a fair trial by asking, “By what law will you try me?” When Allred replied that he would be tried under the terms of the Military Commissions Act, Hamdan gave up. “But the government changed the law to its advantage,” he said. “I am not being tried by the American law.”

Col. Morris Davis condemns the Commissions (again)

Hamdan’s eloquent and restrained explanation for his boycott was the most poignant event in his hearing, but it was not the most explosive. That accolade was reserved for Col. Morris Davis, the former chief prosecutor for the Commissions, who resigned noisily last October, citing political interference in the process. Once the Commissions’ stoutest supporter — in 2006 he told reporters, “Remember if you dragged Dracula out into the sunlight he melted? Well, that’s kind of the way it is trying to drag a detainee into the courtroom” — Col. Davis explained his Damascene conversion in an op-ed for the Los Angeles Times in December.

Laying into his chain of command, Col. Davis lambasted his immediate boss, Brig. Gen. Thomas Hartmann, who had recently been appointed as the legal adviser to the Commissions’ “convening authority” Susan Crawford, for politicizing the process, attempting to hold higher profile trials behind closed doors (whereas Davis insisted that transparency was “critical”). He also criticized Crawford, a retired judge, who had served as Army counsel and defense department inspector under Dick Cheney in the first Bush administration in the 1980s, for overstepping her administrative role by “intermingling convening authority and prosecutor roles” and “perpetuat[ing] the perception of a rigged process stacked against the accused.”

Col. Davis also delivered a particularly stern rebuke to Crawford’s overall boss, the Department of Defense’s chief counsel William J. Haynes II, pointing out Haynes’ role in “authorizing the use of the aggressive interrogation techniques some call torture,” declaring, “I had instructed the prosecutors in September 2005 that we would not offer any evidence derived by waterboarding, one of the aggressive interrogation techniques the administration has sanctioned,” and declaring, unambiguously, that he resigned “a few hours after” being informed that he had been placed in a chain of command under Haynes.

On April 28, Col. Davis testified for Hamdan and reprised his complaints, telling Capt. Allred, as the Washington Post described it, that senior Pentagon officials, including deputy defense secretary Gordon England, had “made it clear to him that charging some of the highest-profile detainees before elections this year could have ‘strategic political value.’” After pointing out that he had wanted to wait until both the cases and the entire Military Commissions system had “a more solid legal footing,” he reiterated his complaints against Haynes, telling Navy Lt. Cmdr. Brian Mizer, Hamdan’s military defense lawyer, what he had told the Nation in February: that, during a discussion of the Nuremberg Trials, in which Davis had noted that there had been some acquittals, which had “lent great credibility to the proceedings,” Haynes had told him, “We can’t have acquittals. We’ve been holding these guys for years. How can we explain acquittals? We have to have convictions.”

Col. Davis also defended his uncompromising opposition to the use of evidence obtained through torture, once more directing particular criticism at Brig. Gen. Hartmann. “To allow or direct a prosecutor to come into the courtroom and offer evidence they felt was torture, it puts a prosecutor in an ethical bind,” he said, adding that, in response to his complaints, Hartmann had replied that “everything was fair game — let the judge sort it out.” He added that Hartmann “took ‘micromanagement’ of the prosecution effort to a new level and treated prosecutors with ‘cruelty and maltreatment,’” and explained that he “was trying to take over the prosecutor’s role, compromising the independence of the Office of Military Commissions, which decides which cases to bring and what evidence to use.”

Ali Hamza al-Bahlul and Omar Khadr

A week later, on May 7, the boycott bandwagon rolled on when Ali Hamza al-Bahlul, another Yemeni, also refused to cooperate. Sitting alone in Camp Justice, Guantánamo’s new courtroom, having spurned the assistance of his government-appointed attorney, al-Bahlul, who is accused of producing videos for al-Qaeda, and who famously boycotted his pre-Hamdan Commission hearings in 2006, essentially picked up where he left off over two years ago, proudly proclaiming his association with Osama bin Laden, and telling his judge, Army Col. Peter Brownback, “We will continue our jihad and nothing’s going to stop us. You must not oppress the people in the land. Your oppression against us and your support to the strategic ally in the region is what made me leave my house and today, I’m telling you, and you’re a man of law, if you sentence me to life … me and the others will be the reason for the continuation of the war against America.” He added that he did not intend to dispute any of the prosecution’s allegations. “I am responsible for my own actions in this world and the afterworld,” he said. “I don’t consider it to be a crime.”

While al-Bahlul’s words — delivered to full advantage from his sudden perch in the media spotlight — served only to underline, incongruously, the utter silence in which around 200 other Guantánamo prisoners are held (those considered less dangerous, or not dangerous at all, whom the administration has no intention of ever prosecuting), his words were almost immediately overshadowed when, the day after, Col. Brownback, who was on the verge of securing a dubious place in the history books by ruling that the trial of Omar Khadr — the only prisoner to date who has not boycotted his hearings — would go ahead in June, threatened his own boycott.

Furious that, despite repeated requests, the prosecution (led by Maj. Jeffrey Groharing) had failed to provide Khadr’s lawyers with their client’s Detainee Information Management System records, to analyze his treatment in an attempt to uncover reasons why incriminating statements — possibly obtained through torture — should be suppressed, Col. Brownback declared, “I have been badgered, beaten and bruised by Maj. Groharing since the 7th of November to set a trial date. To get a trial date, I need to get discovery done.” He then ordered the government to provide the records by May 22, or, he said, he would suspend the proceedings entirely.

While Khadr’s lawyer, Lt. Cmdr. William Kuebler, expressed skepticism about Col. Brownback’s exclamation, telling reporters, “What we’ve seen in this process is that military judges will give the defense pyrrhic victories when it doesn’t threaten the foundations of the system,” Brownback’s intervention at the very least delayed confirmation of his own notoriety. If he decides, after May 22, to proceed with the trial of Khadr, who was just 15 years old when he was captured after a gun battle in Afghanistan that left one US soldier dead, he will be the first judge since the Second World War to proceed with a war crimes trial against a prisoner who was just a child when he was captured.

A courtroom sketch of Omar Khadr, now 21 years old, during his most recent pre-trial hearing at Guantánamo on May 8, 2008.

Judge bars Commissions’ legal adviser

The day after Col. Brownback’s shake-up of the prosecutors in Omar Khadr’s case, Capt. Allred, having mulled over Morris Davis’ complaints against Brig. Gen. Hartmann, surprised everyone, and threatened the Commissions’ teetering legitimacy once more, by disqualifying Hartmann from playing any role in Salim Hamdan’s trial. Clearly swayed by Davis’ testimony, Capt. Allred ruled on May 9 that he was “too closely allied with the prosecution,” as the New York Times described it. “National attention focused on this dispute has seriously called into question the legal adviser’s ability to continue to perform his duties in a neutral and objective manner,” Allred wrote, explaining that public concern about the fairness of the cases was “deeply disturbing,” and that he did not find that Hartmann “retains the required independence from the prosecution.”

The Times followed up with more excerpts from Capt. Allred’s decision, which confirmed his support for Morris Davis’ views. “Telling the chief prosecutor (and other prosecutors),” he wrote, “that certain types of cases would be tried and that others would not be tried, because of political factors such as whether they would capture the imagination of the American people, be sexy, or involve blood on the hands of the accused, suggests that factors other than those pertaining to the merits of the case were at play.”

Capt. Allred also referred explicitly to Morris Davis’ statement that Brig. Gen. Hartmann had put pressure on him to use evidence obtained through torture. Noting, as the Times put it, that “prosecutors have an ethical obligation to present only evidence they consider reliable,” Capt. Allred wrote that directing the use of “evidence that the chief prosecutor considered tainted and unreliable, or perhaps obtained as a result of torture or coercion, was clearly an effort to influence the professional judgment of the chief prosecutor.”

9/11 charges confirmed, but Mohammed al-Qahtani dropped

While the administration tried to make light of Capt. Allred’s ruling, arguing that it applied only to Hamdan’s case, and that Brig. Gen. Hartmann’s position was secure, it was difficult not to whiff a stench of desperation in the Pentagon’s announcement, just three days later, that a date had been set for the first pre-trial hearing of another group of prisoners — the alleged 9/11 conspirators, including Khalid Sheikh Mohammed, who confessed in his tribunal last year that he was “responsible for the 9/11 operation, from A to Z” — against whom charges had been announced in February.

Although it’s almost certain that this decision — though perhaps rushed forward — had already been making its tortuous way through the necessary bureaucratic processes, its propaganda value was immediately undermined when it became apparent that, of the six men initially charged, one — Mohammed al-Qahtani — was missing from the final charge sheet.

As Time explained, the charges against al-Qahtani were dropped by Susan Crawford “without formal explanation,” and Brig. Gen. Hartmann’s offering — that the dismissal provided evidence of the “strength of the system and the careful, deliberative and fair legal process in place at Guantánamo” — was hardly sufficient to paper over the cracks. Although the charges were dismissed without prejudice, meaning that they could be reinstated in the future, nobody expects that this will happen.

The problem, as immediately became apparent, is that al-Qahtani, unlike the other five men, who were held for many years in secret prisons run by the CIA, was subjected to torture in Guantánamo, under a program devised specifically for him and approved by Donald Rumsfeld in late 2002. The details of his ordeal are well known, as Time published his leaked interrogation log in 2006, and even a military investigation in 2005, which stopped short of describing his treatment as torture, concluded that he had been subjected to abuse.

In the world of the Military Commissions, al-Qahtani’s case was damaging for two specific reasons: firstly, because, although the other five men were tortured in CIA custody — and the CIA has publicly acknowledged that Khalid Sheikh Mohammed was subjected to the torture technique known as waterboarding (a horrendous form of controlled drowning) — he and the others have been reinterrogated by “clean teams” of FBI agents, who have solicited confessions without resorting to torture, whereas al-Qahtani, according to his lawyers, has not.

Leaving aside for a moment the implausibility of somehow “purifying” confessions obtained through torture by using “clean teams” — and what it reveals, unintentionally, about the “dirty teams” whose activities are purportedly being airbrushed from history — the second reason for dropping charges against al-Qahtani only reinforces the legal netherworld in which the Commissions operate. According to their rules, the records of al-Qahtani’s interrogations, which took place in Guantánamo, could be produced as evidence of torture, whereas those of the “high-value detainees,” interrogated by CIA teams in secret overseas prisons, can be overlooked, because, as Time put it, “Military courts overseeing Guantánamo have indicated they cannot compel evidence from US intelligence agencies.”

In reality, of course, it’s inconceivable that the trials of tortured prisoners — even those who apparently masterminded the 9/11 attacks — can actually proceed without torture being mentioned, but for now, at least, the administration is clinging to its “clean team” alibi, and hoping to minimize the fallout from Capt. Allred’s latest ruling.

As for al-Qahtani, described by his lawyer, Gita Gutierrez, as a “broken man, broken by torture,” his only way out now is for the Saudi government to negotiate his repatriation. Gutierrez told Time that she was “extremely concerned about his ability to survive mentally and physically for much longer in Guantánamo,” and stated, unequivocally, that the dismissal of charges “clearly indicates the government’s awareness that any and all statements obtained from Mohammed [al-]Qahtani were extracted by torture or the threat of torture.” Replace his name with that of Khalid Sheikh Mohammed or any of the other four men charged — Ramzi bin al-Shibh, Mustafa al-Hawsawi, Ali Abdul Aziz Ali, and Walid bin Attash — and you see the problem that faces the administration as it prepares for the United States’ most significant trial since 9/11.

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 see here for my definitive Guantánamo prisoner list, published in March 2009.

As published on CounterPunch, the Huffington Post, Anti-war.com and AlterNet.

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), Fact Sheet: The 16 prisoners charged (May 2008), Four more charged, including Binyam Mohamed (June 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), High Court rules against UK and US in case of Binyam Mohamed (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), Meltdown at the Guantánamo Trials (five trials dropped, 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), Guilt by Torture: Binyam Mohamed’s Transatlantic Quest for Justice (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), Obama’s Confusion Over Guantánamo Terror Trials (June 2009).